(Transcript continued from the Episode 105 show notes and audio podcast)

Late Night Listener Feedback

As you know, you can give feedback about this podcast on iTunes. Those reviews on iTunes are incredibly helpful to me. The reason is that’s one of the ways that iTunes decides which episodes to show people that are searching around in iTunes. It helps people discover the podcast. When someone leaves a review on iTunes I like to thank them here.

I want to give a shout out to RLewis02 from the UK who left a podcast review and said he just discovered the podcast and he thinks there is some great content. He listens on his way home from work and he’s slowly making his way through the older content, but he’ll eventually catch up, and he wanted to say thanks on iTunes and left a five star review. I really appreciate it.

If you would like to take a second to go iTunes and leave a rating or review, I would really appreciate it. You can do that by going to LateNightIM.com/itunes and that will take you straight over to iTunes where you can click the View in iTunes button on your PC or smartphone and it will help you get a review done.

If you’re not an Apple iTunes person, that’s cool too. Whatever you can do to help us would be great and I sure do appreciate it.

Be Careful to Avoid Time Sucks

Talking about stuff that gets in the way of your internet business, people have personal interests. One of mine is baseball, as you guys know. The Texas Rangers baseball team are about to win the American League West. Right now as I record this episode, their magic number is 2. What that means is they need a combination of two wins, or a win and a loss of the team that is following them, or two losses by the team that is following them to lock up the American League West. That would guarantee them a place in the playoffs and we’re looking forward to that around here in Texas.

You have to be careful with those things, because that can suck away time from your internet business as well. But I sure love baseball. I think all work and no play, as the saying goes, certainly makes Johnny a dull boy. You have to allow for some balance in that, but you really have to be careful not to get sucked all the way over to the dark side when it comes to wasting time watching Major League Baseball.

Internet Marketing News

In this news this week, actually for the last couple of weeks, has been some activity in the search engine optimization side of internet marketing. Basically what people are seeing is changes in the way that Google is ranking websites. A lot of you are familiar with Penguin and Panda, and we’ve talked about those various types of algorithm updates on the show, what those are and what they mean.

This kind of idea of Google updating search engine rankings is an ongoing thing, it’s happening every day. In fact, I once read an article where people who track these things have estimated that if you add them all up, the discrete changes that Google appears to be making coupled with the statements they make out of Google headquarters, you can estimate that there are approximately 500 or so tweaks to the Google algorithm that are let loose into the wild that impact the search engine every year. That’s almost a couple per day, so that is a lot of changes.

This is one of the reasons why you’ll hear me say, especially these days, that tweaking your content specifically for Google and writing for Google is really folly. There are some things that you should do to make it easy for Google to love you, but as far as trying to trick Google or write articles exactly for Google, that’s craziness. The reason is whatever you do today is not going to work tomorrow, so it’s a bad idea to base a business on that.

There are people that track this stuff, there’s an entire industry of people that make their living helping websites rank better in the search engines. That is an incredibly lucrative source of free traffic that you can get, so people will pay money in order to have their websites rank higher, so that gives rise to this SEO industry.

People that watch this stuff have said that around Labor Day here in the United States (around September 1st) there have been some changes in what people refer to as the SEO weather. Over at MozCast they do what’s called a Weather Report and they basically report on the “temperature” of search engine rankings. Is it hot outside?

This idea of heat and temperature in science has to do with the speed at which molecules are moving around. They’ve borrowed that idea over at MozCast and they report on the speed at which the internet is moving around, the turbulence over in Google. They measure that and watch it change over time.

They reported a spike in the weather, a spike in the temperature. I think the word they actually used for the weather forecast for September for the Google algorithm was stormy. It looks like there were some updates that indicate some changes that may have to do with this thing called RankBrain. You’ll hear more about this, and maybe we should have an entire episode to talk about RankBrain. Basically it’s the part of the algorithm that uses artificial intelligence to predict what it is that you actually want or need based on what you typed.

An example might be let’s say you type “how to cure foot pain.” It might try to understand that by foot pain you probably mean planter fasciitis, for example. Rather than ranking on exactly what you type, which Google has done for a long time, that’s why there is so much work on keyword optimization, RankBrain might use its intelligence to understand that people who type a certain thing are actually looking for this sort of information. It can learn (that’s the brain part) over time based on things like bounce rate and the amount of time people spend on your site for certain keywords when people who type a thing tend to stay on your site more than they do on your competitor’s site. For that thing, even though maybe those exact keywords that the person typed don’t actually appear on your page, they recognize the fact that people who land on your page once they’ve typed that really like it because they don’t leave it, they stay there a long time and read your content.

It looks like the update that has come out in September may signal the increase of the importance of this algorithm called RankBrain, which tries to interpret what someone has typed in and interpret what content would be best for them rather than literally making sure that the keywords they typed are in the article that gets pulled up.

That’s really important because it goes to this idea of writing for readers, not for Google. It means that the content that you create needs to be the best content for people who are searching for your topic, because if it’s not Google is going to increasingly seek out the best content on the topic that you’re writing on and make sure they show that instead of your page in cases where your page is not the best content.

Really important. Content is still king in internet marketing, so you really have to up your game when it comes to creating content and publishing it on the internet.

Affiliate Marketing Copyright Law

For the main segment today what we wanted to talk about was copyright infringement. What brought all of this up was a discussion about fair use with regard to my commentary on Hamilton: An American Musical, where I took small snippets out of the musical and used them in the podcast episode. If you missed that episode, you can find that over at Episode 104, The Ten Small Business Commandments.

I thought it would be useful if we spent some time talking about copyright from the perspective of marketers, and particularly affiliate marketers because we’re always reviewing products in content and trying to make statements about things. We wanted to understand this idea of copyright when we’re publishing information on the web.

Let me tell you right off the bat that I am not an attorney. What I am is a relatively intelligent guy. Not sure relative to what, I’m not even making a claim that I’m super intelligent, but I am able to read complicated documents on the internet and try to explain them to you.

This information is for educational purposes and the intent of it is to give you the kind of information that you might need to potentially make the right choice, but really have a discussion with your attorney. Again, I am not an attorney. If you need to make decisions about copyright you need to make those in consultation with your own attorney. I hope that’s clear. This essentially means that I am not responsible for your actions, you are. Which is a concept we seem to be losing track of in the world today, but that’s a whole other episode there. Be sure to talk to your attorney if you have questions about copyright.

The first question is; what is copyright? I guess this conversation is about copyright law in the United States, but this applies pretty broadly in terms of general principles. Again, you’ll need to check with your attorney for laws that are applicable in your particular area of the world, but here is the general idea of what it means to have your work protected by copyright.

The essence of copyright is your right to control work that you create. It means that you can do whatever you want with the work that you create and other people that you don’t give privileges to cannot do stuff with your work. It gives you exclusive rights that you have exclusively (only you) to reproduce your work, to prepare derivatives from your work, things that follow on directly from your work, to distribute copies of your work, which means publication and copies on the internet and so forth, to perform the work in the case of a musical work or play, or if it’s a dramatic reading you have the exclusive right to do that, you control that, and to display the work publicly, to put the image out there in the world.

Those are your rights and they are exclusive to you and you alone, unless you willingly give them up. That’s what copyright is. You can see immediately that that’s incredibly important in the internet when it comes to images, typed content, music, and video as examples, because the people who create those works have the exclusive right to say how they’re used.

I think what’s interesting, and the first thing that you need to understand is there aren’t at this level exceptions to that. If you write a blog post, that blog post is yours to distribute, to display, to copy, to control; no one else’s. Anyone who copies that without your permission is violating copyright law, at least in the United States.

I think the next logical question from that is how do I get this copyright? To get a patent I need to file a patent. To get a trademark I need to file for a trademark. Do I need to file for a copyright? The answer is generally no, you don’t need to file a copyright in order for something to be protected in the United States. It just needs to be fixed in tangible medium of expression, which means that you need to write it down or you need to record it, or you need to carve it on a stone tablet or put it out there, carve it into marble, fix it in a tangible medium where it can be perceived, reproduced, or communicated.

That means that unrecorded speech and stuff like that is a gray area, we’re not going to get into that here. Copyright gets really complicated really quickly. But if you’re doing something that is fixed in a tangible medium, like a blog post, a photograph, or something on a hard drive somewhere you get copyright by fixation. The moment you record it it’s protected in the United States. That’s true even if it’s a temporary thing that you create that can be erased later, the act of fixation actually gets you this protection.

What’s protected is your right to reproduce it, derive work from it, to distribute it, to perform it and to display it. Those are your rights a copyright holder. That’s how you get it and there’s nothing else you need to do. There’s no need to file or even place the copyright notice on a work, that is not required. I think attorneys would probably tell you that’s a best practice. It helps dissuade people from copying your stuff, but that is not a requirement of law.

You get these protections of copyright without the formalities that used to be required to secure copyright protection. Things like copyright notices and filing for copyright were more important prior to the late ‘70s, but the copyright law was updated to protect everything as soon as it’s fixed, so now while those things are best practices in some cases – again, consult your attorney – anything that you create and fix is protected.

What that means is that as a general rule that you as a person who is creating content who might violate someone’s copyright should assume that work is protected. Whatever it is that you’re considering copying, your ability to copy it means that is fixed somewhere, your ability to copy that picture or to swipe some copy from a website somewhere, your ability to do that means it’s fixed and therefore if you do that and publish it you are in violation of copyright law.

The question that always comes up is; “Will I get caught? I’m just a little website over here, nobody is going to notice. I’m just using this one picture. Who in the world is going to notice if I use someone else’s picture?” The truth of the matter is the more important the internet gets the more likely it is that you’re going to get caught. In fact, with pictures particularly, the ability to search the internet for pictures is getting more and more sophisticated.

There are firms out there that that’s how they make their money, they go looking around, they’re either hired by companies to look for copyright infringement or they go and find egregious cases of copyright infringement and they go and report those to companies that aren’t even looking for it in hopes of getting a bounty. They’ll go say, “We’re aware of some really important copyright violations that we found regarding your content. Pay us and we will tell you all about them.”

So not only are companies trying to enforce their copyright and protect their own stuff, there are companies that solely exist for the purpose of seeing you out and finding you in violation. In general, you just don’t want to do that because you don’t want to come up against either a company where you violated their rights of copy or one of these companies that does this kind of bounty hunting of copyright violations.

The first question that everyone asks is, “What about fair use? I should be able to use these things because of this fair use.” I think there are a couple of things to understand about fair use. Here is the most important one. Fair use is not part of copyright law in the sense that when you go read the copyright it doesn’t say here are the rights of the copyright holder, except for the cases for fair use. What is says is, “Here are the rights,” and I mentioned these to you; the right to reproduce the work, the right to prepare derivatives, the right to distribute copies, and so on, the exclusive right. That’s what the law says. The fair use doesn’t play into the rights that you are granted as a person who creates work.

Fair use a defense that people can use when they violate copyright. The most common one you’ll see is when someone is providing commentary on a work; you quote something that someone wrote in order to provide criticism. The other very common case is parody. What has happened is over the years the courts have said that it is okay, in order to run society in a way that is reasonable we have to allow for discussion of things that are copyrighted, so in order to do that we have this idea of fair use.

Of course these ideas of when you can use things there are special ideas for education, but in our case for affiliate marketing when we talk about fair use we’re talking about swiping a little piece of review or swiping a little piece of copy from a manufacturer’s website, or swiping an image.

Unfortunately, the only way you can really get an answer about whether or not your use is fair use is to have a judge tell you. What does that mean? That means you’re in court. I think to actually get an idea of whether or not you have a fair use case you can consult your attorney, but all this boils down to an idea of business risk. When judging whether or not something is fair use judges will use what’s called the four factor test.

They look at the purpose and character that you’re using. One of the things that they look at there is whether or not you’ve added additional content, or meaning, or analysis to the work that you have borrowed.

The second part of the test is the nature of the work that is copyrighted. The reason they have this kind of distinction is because if you’re quoting facts and getting those out into the world generally the idea is to run society well we need to disseminate information and so we need to allow for quoting a study, for example. If you’re reporting something that you heard in the news, like I reported earlier in this episode about things that had been observed in the SEO world, if I had quoted some facts from a report that might very well fall under fair use.

Another part of the four part test is the amount and substantiality of how much you took. Did you take the entire song or did you take a snippet? You have to be really careful about music, by the way, because if you take the heart of music, the hook for example, a lot of precedent in court will suggest that’s a lot more important than taking something that is not at the heart of a work.

The fourth thing, which used to be in the old days really the only thing that mattered, is whether or not your use will affect the potential market or how does it affect the potential market. Will people now not buy a book because you’ve republished so much of it that they don’t need to read it anymore?

If you copy a book and distribute it in China, will that reduce the amount of sales that book publisher gets? Absolutely. Well, you violated their copyright and that’s not fair use. If you take a book that someone has written and you record it in audio and sell that recording to Audible, will that decrease the amount of people that buy the book? Yes, obviously. Absolutely you are violating their copyright, that’s not fair use.

This is the idea of fair use, but I think the most important thing that you need to understand about fair use is that only judges can decide this. By the time you get sued or receive a demand letter from a lawyer to take down your content, now you’re looking at legal fees, consulting with an attorney, and all of this other stuff that is just not a whole lot of fun to mess with.

Now we understand what fair use, we understand where copyright law comes from, and we understand some of the basic issues. What does this mean for an affiliate marketer?

It all sounds very scary and complicated, I’ve got this four part test and I never know what to do. Obviously most of us cannot afford to contact a lawyer every time we write a blog post, although as I said before I do recommend that if you have a question about copyright you need to contact your lawyer because I am not a lawyer. (Do you get the sense that maybe I’m trying to disclaim liability there? That’s what I’m doing.)

Here are some practical tips regarding copyright:

The very first thing is don’t steal images. That’s probably the easiest thing to get across and to make sure that you don’t do. Get your images from a place where you can buy them, like iStock Photo (which is incredibly expensive). The place that I use is Deposit Photos, which is much cheaper. There’s a free service out there called Death to the Stock Photo where you can get images. There are lots of places on the internet, this is a thriving economy where you can go get images.

In the case of affiliate marketing, if you’re using Amazon as your affiliate marketplace, there are places inside of the Amazon Affiliate Area where you can get images. Generally speaking, when I read the Amazon Terms and Conditions you can’t just steal images directly from the product listing, you need to get them out of their builder tool that they have. You can’t just willy-nilly steal things out of Amazon product listings.

You also cannot directly copy significant portions of Amazon reviews. If you think about it, one of the reasons that people shop at Amazon is because of their reviews. If you steal Amazon reviews and put them on your site you’re affecting the value of the reviews on their site. It goes to this idea of fair use that you are materially taking away from the value of something that someone has.

If you’re borrowing a sentence or two from a review to give some commentary or analysis on that, that might be fair use. That’s the kind of balance that you’re trying to strike.

For affiliate marketers I recommend if you are dealing with Amazon just follow their instructions and get pictures and images out of their builder. If you need particular images of a product, either take those images yourself with your camera or cell phone camera or contact the manufacturer directly, especially if it’s a favorable review. They are often thrilled to give you product images or they’ll point you to a link on their website where product images exist that are designed specifically for your purpose.

My recommendation on copyright is clear:

  • Understand what it is. Hopefully I’ve helped you understand that today.
  • Consult your attorney if you need advice regarding copyright.
  • Don’t steal people’s stuff. Make sure you know where stuff is from and don’t use it.
  • Understand fair use, but make sure that you don’t rely on it as permission. It is not permission. It is a defense against violating copyright law.
  • When you can, make sure that you have direct permission, licensed images, and so forth.

Another place you can go, a lot of times you will see that images or content are available with a Creative Commons license. I won’t go into the details of that except to say that if you have something where use is authorized and licensed be sure to read the terms of that license and make sure that you are complying with them as best you can.

If you have further questions about copyright law, I recommend that you do one of two things. One is leave a comment on the blog at LateNightIM.com/106 under the show notes of this episode and I’ll do my best to research and answer your question, even though I’m not a lawyer and I don’t even play one on TV. Or if you want more information about legal issues in general, go on over to Pat’s podcast at Smart Passive Income Episode 231 and he has a panel discussion with some attorneys over there and they discuss copyright law for about 10 minutes and that will also help you understand this complicated issue.

Wrapping Things Up…

That’s it for this week. I want you to take some action. Identify something that you’ve been meaning to do this week. This is what I want you to do for me. I want you to identify something you’ve been meaning to do – and by meaning to do I really mean needing to do – in your business but that you’ve been avoiding.

Pick something important, something that really needs to get that will move your business forward, and commit right now while you’re driving in your car, or mowing your yard, or washing dishes, or whatever you’re doing to have that thing done by next week. It helps a lot if you write it down.

I’ll wait….

Hopefully you’ve written that down and you’ll have that done by next week and I’m going to check in with you. If you want me to hold you accountable, email to me what you’re going to have done. You don’t have to be all that specific, I don’t need to know your secrets, but tell me what you’re going to do with your business.

Email it to me [email protected] and I’ll help hold you accountable for a week and make sure that you’re doing that. I’ll follow up with you once or twice over the next week and make sure you get that done. Let me know what you’re working on, I’d love to hear from you. I’ll follow up with you and encourage you and say something nice.

Until next week, let’s go out and crush something.

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