It's That Simple
Archaeology, Science, Beer

Guilt by Association

MadbloggermoiBoy, what a headache this blog has turned into. Don't get me wrong: I love writing the blog. It's great to have a personal journal again, a place where I can write merely for the purpose of expressing my thoughts—with the usual writer's eye to mining those posts for use elsewhere, which is why I went to the trouble of putting a clear copyright statement on it. My other blog, Spawn of Blogorrhea, only has a Collective Commons copyright, stating that people are free to use the content, unaltered, for non-commercial purposes. I'm happy to have people subscribe to its feed, link, quote, or use the content for educational purposes. What I almost always protest is people just posting my content to draw traffic to their site, which may or may not have anything to do with book arts. Write your own damn content then. Don't steal from others.

So Dowsing, simply by virtue of its name, has ended up in the aggregate feed for a site called "Life Technology™. They sell pseudo-scientific, New Agey crap like Tesla oscillation fields, alchemical compounds, and Atlantean crystals (!! No, seriously!). So it's rather ironic that they're using my content on their site, since what Dowsing is all about is freedom from bad science and superstition. I've got hardly any hits on Dowsing, which I really don't care about in that sense. People will find it and read it if they're interested. It's as much for me as it is a public endeavor. So when I found Life Technology™'s url in my stats, I was curious, and then I was pissed off.  But I'll let you read the exchange; here's what I wrote to them yesterday:

I notice that the content on your site is protected by the Digital Millennium Copyright act. Guess what? So is mine. Please stop lifting content from my blog, Dowsing (, to use on your website as its purpose is antithetical to everything on your site. You have no less than a dozen posts from my blog on your dowsing page ( Please remove them now or I will be filing a complaint with your ISP and website host.


Lee Kottner

And here's the nice little note I got in return this morning:

dear lee,
our news headlines at are used according to fair use provisions and are intended to direct people to relevant sites.

you can read more about the fair use policy at

we have not published your articles, only headings with links to your articles at your own blog.

if we were breaking copyright provisions as you claim then most sites on the web would also be breaking the rules but that is not the case.

this law has been tested in court many times and rulings have universally been in the favour of the blogger.

thank you

Are you laughing yet? I was. Wikipedia, huh? Here's my reply:

First of all, Kirsty, this is a very flimsy and erroneous argument, and you have picked the wrong person to use it on. I've written a series of posts on copyright for artists on another blog, so I'm fairly well educated about it. Find yourself a better source than Wikipedia. Try the U.S. Government copyright office instead.

As one of the intellectual property lawyers I spoke to said, "fair use only earns you the right to go to court." Fair use is in the eye of the copyright holder, who is much more likely to be favored in a court case than the person in violation; there is no hard and fast rule about proportion or magic number of words that the user may interpret for their own purposes. You are not using just the "headlines" from my posts; you are using much of the introductory paragraph. The feed from yesterday's post (7/02 "It's Just That Simple") uses almost the entire post, since it was a short written introductory paragraph with a video attached. The fact that you have selections from more than half of my posts would probably count against you too. I've become a major source for that particular feed, simply because my blog is called "Dowsing." As of this date, there are only 30 posts on my blog. 13 of those posts appear in some form on your page. That's a high proportion of content.
Fair use usually holds up best in court when it is used for educational purposes, in a classroom, or by artists. Your site is clearly primarily a commercial endeavor, not a news and information aggregator, and you are using my content to draw commercial traffic to your commercial site. Either you offer me a fee for the use of my content in this way, since you are clearly using it in a commercial manner, or you are in violation of my copyright, which states that my content cannot be used for commercial purposes unless I agree to it. I have not agreed, so you're in violation.
If you'd like a clear run-down on "fair use" you can find it here, at the U.S. Government copyright office site: It clearly states that commercial use has less protection than non-profit or educational uses. It also clearly states that the safest course is always to get permission, which you have not done. Here are some of the uses which have generally been considered "Fair use" in the past.
The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use:

quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.
None of these fit your case. In your reply, you state: "this law has been tested in court many times and rulings have universally been in the favour of the blogger." Guess what? You're not the blogger here. I am. You are the aggregator. The Associated Press has recently sued a news aggregator over just this issue. You can read about it here:
Secondly my site is not a "news" site nor is it relevant to your content; it is not about the paranormal, or dowsing, and is in fact, in part about real science, not the fake kind you're selling to gullible seekers. Now, if you'd like to see a totally scientific debunking about every one of your products appear in that "news" feed from my site, I'll be happy to oblige. It happens to fit my subject matter pretty tidily. I also happen to know a couple of well-respected science writers (and physicists) who'd be happy to pitch in, I'm sure.

Section 1204 sets out a hefty penalty for copyright infringement: 

§ 1204. Criminal offenses and penalties

(a) GENERAL  Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain

(1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and

(2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.

I went to the trouble of clearly marking this site as copyrighted because I intend to use some of the posts in a non-fiction book. Your publication of them without my consent and without a fee injures me as an author and I think a court would side with me on this. Do you really want to risk a half-million dollar fine on this? And that's not counting the $100,000 for each infringement, i.e, each separate use of one of my posts. That's well over a million dollars in fines should it reach the maximum. Not to mention jail time.

Care to risk it?


Lee Kottner

Oddly enough, within an hour of receiving this, the feed from the news pages disappeared from their site. I suspect there is some serious editing of the spider going on.

UPDATE: Then the feed came back, and I began plotting with Jen to do the debunking posts, but this morning, I got a little note from their "legal counsel":

Dear Lee,
Thank you for your bringing your DMCA related concerns to our attention.
Life Technology acts as a news aggregator to provide news stories for the purpose of disemmination of news in categories that are relevant to our website. Dowsing is one such area that we are involved in. You will find many bona fide articles about dowsing at our website and blog. Despite what you seem to believe, our news stories are offered for educational purposes.
We are not guilty of publishing your work for our commercial gain nor have we acted in bad faith.
From a legal perspective, an infringement case would be very weak. There is strong argument for a fair use defense here. The brief exerpts of your work posted by ourselves are not stifling demand for your work. We are actually creating demand, not decreasing demand by providing links to the original work. Further, posting excerpts of the articles and linking to the original facilitates and invites critical discussion of the content, one of the primary reasons for the fair use defense.
You could not use the argument that we are diminishing the value of your work by disseminating copyrighted work prior to the publication of a book if you are publishing these exerpts into the public domain yourself.
Links are the currency of the internet. Instead of harassing bloggers etc., you should be praising them for bringing people to your content. It's a very poor business decision to ask people not to facilitate access to your product.
We are aware of the recent filing where Associated Press is suing a news aggregator on the same grounds. We feel that this even marks an unfortunate event in the history of the internet and free speech.
We have temporarily removed the offending page dowsing.php pending the outcome of The Associated Press versus Moreover technologies lawsuit and further clarification of DMCA law.
Thank you.
Joshua Silverberg, Legal Counsel Life Technology

He's got some interesting interpretations of "public domain," "educational," and "news" and I love the scolding tone that I should be "praising" people for stealing my content and not paying me for it. The upshot, however, is the removal of the offending feed, so that is already some admission of ambiguity, if not guilt. And removing the page is enough for me. Needless to say, I'll be watching my stats.

I'm not normally in favor of bullying people with the DMCA. Big corporations have made a bad habit of using it to intimidate perfectly legal uses of their content, so they can control all the money. I was happy to see The Naked Cowboy win the right to sue M&M Mars for use of his image for that reason. As a teacher, I'm all for fair use. But as a writer, I'm also all for being paid for your work and for having it appear only where you want it to. There's a thin and badly defined line between fair use and exploitation.

In this case, there's also the issue of guilt by association. As a writer, I do not want to be associated with any entity that sells the kind of pseudo-scientific crap this site sells. This is a list of their other "news" feeds, most of which I have a lot of objections to:

Kabbalah Radionics Magick Radiesthesia Homeopathy Alternative Health Mercola Jeff Sutherland PRWEB NLP Hypnosis Orgone Orgonite Rife Psychotronics Psionics Illuminati Alchemy Ormus Free Energy Alternative Science Spirituality Huna Metaphysics Occult Witchcraft Health Spirit Conspiracy Herbal Medicine Dowsing Healing Seduction Rosicrucian Paranormal Philosophy Technology Science Paganism Wicca Time Travel Feng Shui Atlantis UFO Scientology Zappers Cloudbusters Nikola Tesla Grimoires Chemtrails Manifesting Yoga Astrology Psychic Powers Xtrememind Forum

I hate to see yoga, spirituality, metaphysics, health, philosophy, technology, science, and Nikola Tesla lumped in with Atlantis, UFOs, Scientology, Orgone, Alchemy, and the Illuminati. Some of these things are not like the others, not even remotely. I  suspect it was at least as much the threat of debunking as it was the legal talk that led to the sudden demise of the news feed. People have a right to believe whatever they like, but they also have a right not to be forced to associate or have their work associated with causes or ideas they don't condone. And control of your own intellectual work trumps, every time, the notion that information wants to be free.

[Cross posted at Spawn of Blogorrhea]


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