Disclaimers for when you’re knowingly pirating intellectual property

My recent experience with content scrapers leads me down a rabbit hole thinking about how intellectual property rights are perceived and ignored online. I see so many examples of legal texts were people try to distance themselves from activities they clearly understand isn’t entirely by the law books.

Having to think about copyright, or more specifically the rights to distribute someone else’s creative digital media content, is inconvenient. If you just want to share a comic or song, the logical thing to do would be to send the media file to the person or persons you want to share it with, right? Of course, it’s never that simple.

“No copyright infringement intended” is a favorite of people who upload stolen videos to YouTube. It’s currently found on over 12.5 million pages in Google’s search index. The small disclaimer gets tacked onto pirated videos and other digital content in the hopes of distancing the act of uploading the video from the illegal distribution of the video the uploading results in. As a legal defense, I don’t believe there’s any jurisdiction on the surface of this planet that wouldn’t take such a disclaimer as anything but self-incrimination and an admission of guilt.

Among my personal favorites are the boilerplate disclaimers that go something like this: “Don’t imply in any way that I’m responsible for the contents on this website.” It’s one of the best stick your head in the sand and hides disclaimers there is. Of course, the person who publishes the thing is responsible for what they publish. Simply writing out a disclaimer saying they aren’t responsible for their actions doesn’t change anything.

These disclaimers are usually accompanied by statements saying the “content is sourced from a variety of websites” and that “copyright belongs to their respectful owners.” Again, this is nothing but an admission of guilt. These kinds of disclaimers are common on Tumblr and other services where users aggregate and redistribute images within their niches, for the most part without consent and licenses.

A variant of the above boilerplate disclaimer that sounds legit but is still entirely wrong is: “All pictures and videos were found on the Internet and are assumed to be in the public domain.” This one is a favorite among porn-bloggers on Tumblr. The assumption that images are in the public domain rather than being copyrighted goes entirely against international copyright law. All creative works are automatically copyrighted at the point of creation following international copyright treaties. The assumption should thus be that any work found online is indeed copyrighted unless explicitly marked as being licensed otherwise.

These types of disclaimers get passed around a lot of websites built around sharing. I think the users of these websites see it on one or more other profiles, and think “If these other people think including this is a good idea, I’ll put it on my profile too!”

Creative Commons is a series of licenses that grants various distribution rights depending on the specific license that the content producer chooses. Unfortunately, many seem to think there’s only one license and one requirement: Attribution. I suspect that many just choose to ignore the license picked by the content producer and instead apply the most liberal license that allows them to do what they want.

A popular set of Creative Commons licenses are the NonCommercial variants that specify that the creative work can’t be used in a context “intended for or directed toward commercial advantage or monetary compensation”. If the licensee doesn’t just choose to ignore this requirement, you’ll often find a disclaimer like this: “This website isn’t commercial, the ads here just pay for my bills.” Well, those ads are still a monetary benefit and your website is then indeed commercial. How you intend to use the money you earn is no grounds for an exception to the NonCommercial clause.

Since I started regularly visiting websites that hosts Creative Commons photos and illustrations, I see images I recognize from these websites around the web almost every week. I’ll take a guess that half of the uses I see either omit the Creative Commons entirely, or otherwise don’t comply with the license.

Creative Commons licenses aren’t absolute, you can still contact the rights holder and ask for other licensing terms. Asking the rights holder for an exception is the only way to use Creative Commons NonCommercial work on commercial websites.

Speaking of attribution, “Source: YouTube” and “Source: Wikipedia” isn’t much of attribution at all. These two strings are found on some 20 million websites in Google’s search index, yet they don’t attribute the content creator at all. Instead, they accredit the distribution platform rather than the creator.

For this website, I use a combination of my own photos and illustrations, photos donated by friends, public domain works, and occasionally Creative Commons licensed works as well. Finding images for articles sometimes takes me several hours. It’s not that I couldn’t find a suitable image using some web image search engine; but finding an image that I can legally use usually requires much more work. I don’t always credit public domain works (like the bemused looking owl used as a feature-image for this article) when it’s hard to track down who is the original photographer. The same photo can be found on different public domain gallery websites published within hours of each other each crediting different people around the world.

Respecting the wishes of the rights holder is inconvenient and time-consuming. For example, it can take hours to find the right image to use with one of my articles. I’ll often come by images that would be perfect, but that’s licensed in a restrictive way. I don’t just nick these photos.

As I’ve spent more time perusing stock photography websites with liberal licenses, I’ve started to recognize many of the photos appearing on other websites. Their use of the photos more often than not go unattributed, and without abiding by the [often Creative Commons] licenses set by the creator.

I totally understand why some authors under strict deadlines just ignore small inconvenient details like license requirements. It’s frustrating to see this happen almost every week, especially considering how unlikely it’s to cause any negative consequences for the responsible party. If you’re not a big company, you probably can’t properly protect your intellectual property. Except, when the thieves are stupid and predictable, of course.