On the Topic of Copyright

11 02 2011

February 11, 2011 (Updated February 25, 2011)

On August 26, 2010, just before cancelling my first three month old order for the “Oracle Tuning: The Definitive Reference Second Edition” book, I wrote the following in a blog article (side note: the second order for the book is now more than three months old, and I have no intention of cancelling that order):

In June 2010 an article appeared on another blog that identifed three blog articles appearing on a blog operated by an Oracle Certified Master (OCM) that were copied nearly verbatim from three other blogs, thus saving the OCM a considerable effort in not only typing verbage appearing in the article, but also effort in actually building useful content.  Why spent four hours developing a blog article (this is probably the average time I spend), when a simple copy, paste, find-and-replace can be accomplished in a couple of minutes?  Those copies of articles clearly violated commonly understood copyright restrictions, and a quick search showed that the copyright violations extended far beyond the initial three articles which were mentioned (yes, I have screen captures and PDF copies of all that I identified).

So, why did I write the above paragraph?  For some reason I was recently browsing through some of the information about DMCA:

“Any material that was posted without the copyright owner’s authorization must be removed or blocked promptly once the service provider has been notified that it has been removed, blocked, or ordered to be removed or blocked, at the originating site.”

I realized that a random reader of this blog could potentially send a note to WordPress stating that they are, in fact under penalty of law, the owner of the material I just spent 2 hours, 4 hours, 8 hours, 16 hours  – maybe even months writing, and demand that the article be taken offline because I clearly stated that I quoted a couple of words from one of their articles while agreeing with or disagreeing with the other article.  Is quoting another source, while clearly stating that the other source is being quoted, in an effort to critique the quoted section an example of fair use?

I greatly dislike seeing people copying other people’s work and passing it off as their own work.  It takes considerable effort to put together many of my blog articles; it requires a good deal of past experience troubleshooting other problems; and once my blog articles are published, those blog articles are not complete without the valuable input provided by reader comments.  It is not uncommon for me to post a blog article with the sole intention of helping one or two people, with the knowledge that reader comments on the blog articles often take the articles to a completely different level, expanding the articles to help a much wider audience.  The article that is currently the second highest ranked article on this blog in the last 90 days is just one example of this approach in action. 

The Digital Millennium Copyright Act (DMCA), among other things, helps protect original, copyrighted content that is posted to the Internet to prevent that material from being republished for profit, or claimed as original, copyrighted content authored by the person who copied the previously copyrighted material.  The doctrine of fair use outlines four factors that determine whether or not a particular use of copyrighted material is considered fair use:

  • “The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  • The nature of the copyrighted work
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • The effect of the use upon the potential market for, or value of, the copyrighted work”

If you see your original, copyrighted content on an unauthorized site, file a DMCA take down notice.  If you do so, be aware that you will be swearing under penalty of perjury that you are, in fact, the owner of the copyrighted material.  Just for the entertainment value, I decided to see what the law states in Michigan about the penalty of perjury:

“Perjury committed in courts—Any person who, being lawfully required to depose the truth in any proceeding in a court of justice, shall commit perjury shall be guilty of a felony, punishable, if such perjury was committed on the trial of an indictment for a capital crime, by imprisonment in the state prison for life, or any term of years, and if committed in any other case, by imprisonment in the state prison for not more than 15 years.”

Translation, “You better know what the heck you are claiming when you file a DMCA take down notice and you sign, under penalty of perjury, that you are the copyright holder.”

Why all of this discussion of copyright and DMCA?  Some of you may have noticed that my recent article titled “SQL Performance Problem, AWR Reports Query is #1 in Elapsed Time, #2 in CPU Time – How Would You Help?” that was posted on February 6, 2011 has disappeared.  Why has it disappeared?  A DMCA take down notice was filed, and that notice in part stated the following:

——————–BEGIN NOTICE

Pursuant to the DMCA, please see this takedown notice.

I have confirmed that the site says “powered by WordPress.com”, and is hosted by WordPress.

This blog page http://hoopercharles.wordpress.com/2011/02/06/sql-performance-problem-awr-reports-query-is-1-in-elapsed-time-2-in-cpu-time-how-would-you-help/

Contains this material originally published on our forum:

(My modified version of the SQL statement posted by a user of an online forum who was seeking help with a performance problem)

This was copied from our forum here:

http://dbaforums.org/oracle/index.php?s=ec2b9e8d676465331d7fe6cd6e07fa0c&showtopic=20523

Where it was originally published in this format:

(SQL statement as posted by a user of an online forum who was seeking help with a performance problem)

Donald K. Burleson
CTO, Burleson Consulting

Kittrell, NC, USA 27544
(email address withheld)@remote-dba.net

I hereby swear that this content is copied from the BC DBA forum and that this page infringes on my copyright and it is not authorized.

Under penalty of perjury, I swear that all of the information contained in your Infringement Notice is accurate, and that I am the copyright owner of this material.

Signed: Donald K. Burleson, copyright owner

——————–END NOTICE

You are required to remove the specific content outlined in this notice and identified as the infringing material. If you would like to formally challenge the notice, please let us know so that we can provide you with further instructions.

Interesting… so Donald K. Burleson holds the copyright of anything posted to the forums on dbaforums.org?  So, did I remove the SQL statement that was posted by a user of the forum, or did I file a DMCA challenge stating that Donald K. Burleson is not the owner of that SQL statement?  Think about that for a moment, would I back down when trying to help someone solve a problem (falling under the doctrine of fair use), especially after readers of the forum my blog article provided valuable information to further help the person experiencing the performance problem?  Would I back down when an action by Donald K. Burleson would impede the freely provided furthering of the Oracle community’s Oracle Database knowledge?  Think about that for a moment…

Finished thinking already?  I filed a DMCA challenge with the following text:

The quoted section mentioned in the DMCA take down notice was in fact copied from Donald K. Burleson’s forum, with minor changes to improve readability.  The copied text, however, does not infringe on Donald K. Burleson’s copyright.  The text that I copied was posted by one of the users of his online forum, and that text originated in the computer program titled “Patrol for Oracle” written by BMC Software (as indicated in the comments attached to the blog article).  The copied text is essentially a SQL statement that is submitted to a database server by the “Patrol for Oracle” program, and that SQL statement was exhibiting poor performance.  If anything, the rightful owner of the copyright for the copied text is BMC Software, and credit for the SQL statement currently appears in the comments section of the blog article.  A user posting a SQL statement (the alleged copied text) to a forum does not transfer the copyright for that SQL statement to the owner of the forum, especially if the user posting the SQL statement was not the original author of the SQL statement.

This is not the first time that Donald K. Burleson has falsely claimed ownership of copyright.

The attached “DMCA Challenge 2011-02-08.pdf” file is my signed notice that I did not infringe on a copyright owned by Donald K. Burleson.  The attached “DMCA Challenge 2011-02-08 Attachment.pdf” file shows my blog article content where the alleged copied text appears, and is followed on pages 11, 12, and 13 by the content where the alleged original text appears.

Please keep in mind that this blog is one that is dedicated to technical Oracle Database related discussions, and personal attacks do not belong here.  Attacking technical discussions containing faulty information, of course, is expected.  See the About page for more information.

——–

Edit February 25, 2011:

Donald K. Burleson, apparently realizing what it means to file a false DMCA claim under penalty of perjury, did not file a lawsuit to back up his DMCA claim to copyright ownership of the modified SQL statement that I posted in my February 6, 2011 article titled SQL Performance Problem, AWR Reports Query is #1 in Elapsed Time, #2 in CPU Time – How Would You Help?  His false DMCA claim held hostage one of my articles for a total of 17 days, during which time the article was not available for readers of this blog (for the record, I completely understand and agree with WordPress’ handing of this matter, where their processes require taking DMCA challenged articles offline for two weeks to allow the true copyright holder sufficient time to file a lawsuit).  False DMCA claims from Donald K. Burleson against my blog articles will not be tolerated, and this article will serve as evidence of past abuse, if necessary.








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