All About Content

3M Corporation is attempting to generate buzz for its sticky notes product with a user-generated content promotion about creative ways to use Post-it Notes. The displays promoting the contest — prominently displayed in Staples, Office Max, Office Depot and other office supply stores across the country — features a photo that might look familiar to people who spend time on Digg, YouTube and similar social sites.

Here’s how a $24.5 billion multinational corporation fubars an attempt to do a viral ad campaign by refusing to pay a small licensing fee to the amateur photographer who inspired it.

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Eight Four years after the launch of the community site Digg, three years after media giant Yahoo acquired the photo-sharing site Flickr, and the same summer that YouTube reached one billion video views per day — it’s not unusual for corporations to try to reach consumers through social media channels. Savvy execs understand that social media success can equal advertising gold.

There are a couple of ways a corporate marketer can leverage social media’s power to take things viral. One of them is to find something that is already enjoying viral success and ride its coat tails. That’s apparently the route 3M wanted to take with its current promotion.

The perfect idea already existed for the 3M campaign, ready to be exploited: the Post-It Note Jaguar.

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In December 2006, a bunch of people at an Internet company went down to the parking garage and covered a coworker’s beloved Jaguar with tens of thousands of Post-It Notes. Scott, a photographer and Flickr enthusiast, posted the evidence of the prank in progress to his Flickr account intending to show it to the Jag’s owner.

View the entire Post-It Note Jaguar photo set on Flickr.

Next thing Scott knew, the Post-it Note Jaguar started to spread on the Internet. The photos took on a life of their own, generating tons of comments and faves from the Flickr community. The photos got reposted on blogs around the world (including the very popular blogs Neat-o-Rama and Boing Boing), hit the front page of Digg more than once, were circulated in millions of emails, were featured as a Yahoo pick of the day, and even appeared in a filmed segment on ABC News.

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More than a year passes before the maker of the Post-it Note thinks to capitalize on the viral success that was this Post-it inspired office prank. After all, large multinational corporations aren’t the most nimble players — they can’t just shoot from the hip; after all, they have to dot their i’s, cross their t’s, and generally make sure everything gets approved by lawyers and stuff, right? RIGHT?

So when in the Spring of 2008, the 3M Corporation finally contacts the photographer to ask about using the photos of the Post-it Note Jaguar photos in a marketing campaign, he’s pretty sure they’ve already thought this through. He asked a friend in the photo business what a typical licensing fee for a national marketing campaign would be, and quoted that amount to 3M.

Their response? They tell him they’d rather not pay when they can just recreate the photograph themselves.

Here’s what floors me: 3M doesn’t even try to maintain plausible deniability. The 3M representative who contacted Scott comes right out and says it would be cheaper to copy the photo than it would be to license the original photos.

Scott responded to the email from the corporation’s eMarketing Supervisor and gave the company another chance to do things properly, by lowering the license fee he originally quoted (to a mere $2,000 for the entire campaign!). He was met with complete radio silence.

That was the last he heard of it until the Flickr pages and YouTube channel started getting a whole new spike in traffic, along with comments like “Hey man, I saw this photo at Staples. Congratulations!”

The point-of-sale displays prominently placed in office supply stores around the country would easily have run 6 figures in production costs alone. And if you know anything about in-store promotions, you know there are plenty more expenses associated just with getting the display space. In other words, this was a big budget production… the extra $1,000 to actual license the original photos would have been insignificant in the greater scheme of 3M’s budget for this project.

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Putting sticky notes all over a car, admittedly, isn’t a completely original idea, but 3M went to pains to make their photograph look very similar to the original Post-it Note Jaguar photo that garnered all the publicity. They could have done anything, but they did this:

It’s clear they set out to create a replicate of the Post-it Note Jag and they were counting on people “recognizing” the photos. Why else contact Scott about getting copyright permission in the first place? Even the work-in-progress photo montage 3M posted on YouTube looks eerily like Scott’s Flickr set.

Now, I’m not a copyright attorney, so I’d love for someone with an intellectual property law to chime in here, but just for kicks, let’s do my layman’s check for violations of fair use:

1. The copied work is for commercial gain: Check
2. The work copies substantially from the copyrighted one: Check
3. The effect of the copied work undermines the potential market for or value of the copyrighted work: By definition

But let’s pretend the legality of this move wasn’t even a question for now, and focus on this: Social media marketing campaigns rely on the social media community to carry them. As a marketer, you have to respect the community and its members. Ripping off community members and then turning around and asking that same community to generate buzz for your campaign is just ballsy… or stupid.

The irony: The YouTube contest rules say “Remember, creativity and true brilliance will get you noticed.” I’m hoping that 3M’s “creativity” and true chutzpah get noticed as well.

The original Post-It Note Jaguar

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Lest anyone think I’m slamming all companies and corporate marketers for wanting to take advantage of social media, I’m not. I think there are plenty of creative ways to get your product’s name in front of social communities in ways that don’t disrespect the users.

For example: create an original marketing campaign around a concept specifically designed to be share-worthy. A recent example of this tactic is Extended Stay’s “Very Clean” Video (Disclosure: New Media Strategies, my current employer, helped promote this campaign).

Of course, corporate attempts to become viral can ring hollow, so smart social media marketers know that it helps to let the fans come up with the idea as well as leaving it to them to drive the campaign’s popularity.

Therefore some companies ensure the campaign is going to reach a wide audience by latching on to something that’s already gone viral. There are legit ways to do that. In fact, that’s what Stride Gum did with its sponsorship of the Dancing Guy (aka Matt Harding).

If you’re a corporate marketer interested in getting into social media marketing, viral video promotion, link bait, etc., I suggest consulting with people who know the communities you’re targeting. Any of us could have told you that stealing photo ideas from the community and using them to pimp your office supplies is not a good move.

If you do a Google search and there are two results that contain the same wording, and one of them is from some no-name blogger and the other is on the MSN.com domain, which one do you think is guilty of plagiarism? If you guessed the blogger, think again.

Let’s be clear, I’m not talking about my content being scraped by some spam blog. That happens all the time and I’m quietly resigned to that. What I’m talking about is plagiarism by a professional writer, for profit, on a presumably credible news portal.

My recent post on Viagra’s anniversary happens to rank well for a search on that phrase, but so does an article posted on MSN India.

This piece, “written” by Aditya Mehta and syndicated through India Syndicate blatantly rips off my post’s funniest line (on what SEOHack calls my only decent best post on this blog). The one word difference (the use of a second “please” at the beginning of the last sentence) is due to my having gone back a day later and editing it out of my post because it was redundant… something Aditya Mehta apparently didn’t catch.

It’s not MSN’s fault because they just bought content from a third-party provider, right? And I’m sure India Syndicate has hundreds of freelance writers, making too difficult for the content syndicator to police all its writers. (<-- this is sarcasm, in case that wasn't clear. I don't care how difficult it is to do QA on a product you sell, that's still your responsibility)

So, boo-hoo, who really cares about MSN India or some stupid Indian article syndication company and whether a few sentences of a fluff article aren’t original? Well, it certainly pisses me off and since this is my blog, I get to rant about whatever I want. There’s also no easy way to contact MSN’s editorial team or India Syndicate (an email to their Contact Us address bounces), so it’s not like I have any other outlet.

Who, if anybody, is responsible for ensuring integrity of the content on MSN’s network (whether it be MSN India or any other portal)? And now that freelance writers for India Syndicate know they can get away with content theft and even have that work published on major resume-padding sites like MSN.com, what’s to stop them from taking shortcuts on everything else they do from now on?

It’s really not that hard to figure out if something is plagiarized — a company with resources like MSN surely can afford some sort of software that checks if content already exists on the web (you could even call it a “search engine”) before it publishes something to its content network.

Update: April 8, 2008

Wow, did my complaining help? The URL to the offending article has changed to point to a completely different article. Good thing I took that screen shot of the SERPs first; wish I’d done the same with the page itself since I wanted to go back and check how much else of that article was copied from other people. The complete text that was copied from me read:

Indirectly or directly, Pfizer is responsible for probably half of your email volume, so be sure to take a moment to reflect on the historic importance of this day. But remember, if your celebration of Viagra’s anniversary lasts more than three hours, please call a doctor. (original post)

Here it is viewed from a different angle:

Same URL, different page info when viewed through my browser cache. The old post appears to be gone from MSN, Google and Yahoo as well.

Recently, a Google search results page presented a notice at the bottom that I’ve never seen before:

Clicking on the “read the DMCS complaint” link takes you to a copy of the complaint on ChillingEffects.org — a project co-managed by the Electronic Frontier Foundation and the law clinics of Harvard, Stanford, Berkeley, University of San Francisco, University of Maine, George Washington School of Law, and Santa Clara University School of Law — which publishes these cease and desist letters to copyright infringers.

At first it appears these letters are published as a way to shame the copyright infringer, but if you take a closer look at the site it becomes clear that ChillingEffects.org seeks to prevent abuse of the DMCA by companies or individuals trying to squelch free speech.

From the site’s homepage:

Anecdotal evidence suggests that some individuals and corporations are using intellectual property and other laws to silence other online users. Chilling Effects encourages respect for intellectual property law, while frowning on its misuse to “chill” legitimate activity.

Recipients of cease and desist (C&D) letters are encouraged to contribute them to the Chilling Effects database. Some letters are published and subjected to legal scrutiny and/or explanations of actions/recourse the recipient can take.

Google has info on how to file a copyright infringement complaint regarding infringing material that can be found through Google Search. Any C&D letter you send to Google may be forwarded to ChillingEffects.org.

A federal court has ruled that Google’s image search violates the copyrights of Perfect 10 Inc. by displaying thumbnails of images from the publisher’s website in the search results.

The argument that showing thumbnails in search results constitutes copyright infringement is similar to previous arguments leveled at Google Print — namely that search engines shouldn’t be able to display book snippets in the SERPs because that is the same as “republishing” copyrighted content.

The difference is that the intent of Google Print (aka Google Books) was to take content that did not exist online, whose authors had no intent of putting on the Web, and scan it in order to display those snippets. In this case, Perfect 10 Inc was disputing thumbnail displays of photos it presumably wants people to find, but only directly on its website and for a fee.

The ruling could prevent Google from featuring thumbnail pictures, but not limit Google from linking to actual photos which exist on other Web sites. Google expects to appeal an injunction if the judge issues one, the Mountain View, California-based company’s litigation counsel Michael Kwun said in a statement.

Kwun tries to reassure us: “We anticipate that any preliminary injunction will have no effect on the vast majority of image searches, and will affect only searches related to Perfect 10.”

Evil? No. But unprincipled disingenuous maybe. Google has resumed its scanning for Google Print but is now making clear that its first focus is and always was on out-of-print books. But I have a feeling that what they hope to imply is that in the short term, they only plan to scan out-of-print books, as a way to mollify critics. If they can pull that off, they already have a foot in the door for going ahead with currently in-print books as well. And/but, since the books we’re talking about in this case are already out of print, that wouldn’t be a problem right?

Except that the one thing doesn’t have anything to do with the other. “Out of print” does NOT mean that the work is no longer protected by copyright. If Google truly believes that authors should not have a problem with digitization of their books and that they are not outside the bounds of copyright principles, then why make a big deal out of focusing on out-of-print books?

If they make the argument that a) users can only see snippets of the book, which isn’t useful enough to undermine the original work and therefore qualifies as fair use, and that b) one of the goals is to help drive book sales by letting searchers find titles that they’ll eventually want to buy …

… then wouldn’t there be more internally consistent logic in starting with books that are still in print? A snippet for which you cannot get context, or discovery of a monograph that can’t be acquired, surely is not more useful than a searchable index of commonly read, in-print books.

Google has made its position clear. If Google Print in no way violates copyright law, then they really ought to stick with that, instead of confusing the issue.

Updated Nov. 7
Just got an email from Danny Sullivan, who says that Google hasn’t said their focus is out-of-print books, but just out-of-copyright books (to make available in whole). “They’ve consistently said they’d only republish books that are out of copyright.” Google is scanning a lot of books (starting with old books), but is supposed to be republishing only copyright books online.

Okay, so I’m placated. … or confused! So what exactly are Google Print’s opponents all bent out of shape about? Is or isn’t Google going to make copyrighted books available for keyword searches?? And isn’t the lawsuit and copyright debate about the scanning in the first place?

The Copyright Society on October 24 held a panel discusion about the Google Print for Libraries project and his organization’s lawsuit, The Authors Guild v. Google, Inc. (PDF, 741k)

The event was called Google Print for Libraries: Fair or Foul? Paul Aiken, Executive Director of The Authors Guild, delivered this speech:

Last Thursday, Google delivered stunning financial news. It reported a 700% increase in third quarter profits. Its earnings now dwarf those of another company that relies chiefly on advertising for its income, the New York Times. The Washington Post reported that Google’s earnings are now more than 10 times that of the New York Times. Google’s market capitalization, now exceeding $100 billion, is 25 times that of the New York Times. Google’s market cap even exceeds that of Time Warner — that combination of AOL, Time Warner cable, film studios, TV and radio networks and book and magazine publishing — beating it out by 25%.

In the book industry, some of us think of Barnes & Noble as big. Google is 40 times bigger. Or we think of Amazon as our Internet champ. Google has its value five times over. Yahoo is in the same business as Google, pretty much, and eBay is no slouch as an Internet company. Combined, they’re worth about the same as Google.

And good for Google. Really. It seems they’ve found the best Internet business to be in: searching the Internet. They’ve come up with clever search algorithms, securing hard-earned patents to protect some of them. They’re pursuing their business aggressively and by all accounts intelligently.

We’re all for profit. Nothing warms an author’s heart more than healthy semi-annual royalty statements. Helps pay the rent and put the kids through college. It keeps the author plugging away, trying to create more works that readers will value. Profit also puts a spring in the step of book publishers. It encourages them to take a chance on a new author, or to give a good author with a so-so sales record another shot. Profit is good.

So it’s cheering news that Google sees value in feeding copyrighted books by the million into its banks of computers, that teams of Ph.D.-laden mathematicians and engineers would be tweaking their search algorithms, to help its users find book excerpts. Google seems to have figured something out: there’s a demand for searching those books, a demand that warrants the investment of tens of millions of dollars. A demand that Google is determined to satisfy, because Google, a sensible, profit-seeking enterprise, believes its investment will pay off in increased visitors to its site, and increased ad revenues. Google senses a competitive advantage

We get it. We bet Google is right. If books were digitized and searchable on the Internet, we bet Google could make a pretty penny by allowing its legions of users to search that database. And what a mind-boggling database! An assemblage of the nation’s copyrighted books, the result of the efforts and investments of hundreds of thousands of authors and thousands of publishers, served up in handy excerpts by Google’s generous computers.

But here comes the bad part. Google says that its copying of these books — that its scanning of countless copyrighted volumes, then using optical character recognition technology to digitize the text of those works to create files to assemble into a new, unimaginably vast database, surely one of the largest databases ever assembled — that all of that copying and use of these works, would be fair use, so it doesn’t need a license from anyone for this copying. For good measure, it’s handing over a digital copy to its partner libraries, and telling them its OK to post the works to their websites. That, too, I guess, is fair use.

Since there’s no license needed, in Google’s view, Google doesn’t have to give pesky rightsholders contractual assurances about the security of their database. Could a backup tape go astray from Google or one of its partner libraries, unleashing a couple hundred thousand copyrighted works onto the Internet? Sure seems possible. We’re asked to trust that that’s under control. The list of companies, meanwhile, that lose critical data grows daily. What successes do hackers have at breaking in to the sites of Google and its partner libraries? There’d be no contractual need to report this, so it would likely go unreported. Security experts tell us that most data losses to hackers go unreported, and we don’t doubt it. No contract, no reporting, no control. “Trust us” security.

What about other companies that want to do the same thing? When we first filed suit, we mentioned to reporters our concern that others would see the same business opportunity and join in. We mentioned the obvious players: Amazon.com, Microsoft, Yahoo. Yahoo, of course, has since jumped in, but they tell us they’re seeking permission to use copyrighted works. But if Google gets away with it’s vast database, Yahoo won’t stand still. They’ll make their own database, just to keep pace. Microsoft, too, has a search engine to feed and the resources to do so. Amazon has been investing heavily in its search engine, and has a certain interest in books.

So we might have four or more companies, each pursuing private gain, happily digitizing the stacks of libraries. We’d have to trust each of them, naturally, and no doubt their partner libraries, not to misplace backup tapes or let down their guard against hackers.

That seems kind of inefficient. Wouldn’t it make more sense for, say, Yahoo and Microsoft to buy the digital database from Amazon? Still fair use, right? Copyright law wouldn’t impose such a wasteful burden of redigitizing on each of these companies. And there are dozens of other search engines, large and small. Seems “unfair” to cut them out.

Specialized databases wouldn’t be far behind. WebMD would want to digitize a couple medical libraries for excerpting by its users. Fair use, of course. eterinarians, chemists and electrical engineers have their needs and websites, too. These digital databases would all be secure, not to worry. Trust us, but don’t audit us.

What about uses by the partner libraries? Again, the only contractual obligation imposed on libraries – at least in the sample available to us from the University of Michigan contract with Google – allows the University of Michigan to post the works at its website. No mention in the contract of limiting browsers to so-called fair use snippets. The contract also contemplates sharing the works with other academic libraries. No biggie.

Fair use is a handy concept. Just keep the excerpts shortish and the databases big. And watch the copies proliferate.

So Google’s found the best way to make money on the Internet: searching the Internet. To make copyrighted books fit into its business model, it wants to pull books onto the Internet. It’s a fine idea, mostly, but we’re saying you can’t simply cut authors and publishers out of this venture. Do it the right way, with proper contracts and proper controls. We want to be dealt in. It’s the best business on the Internet.

Notice how he barely mentions “fair use.” Instead he warns of security issues because Google Print isn’t hack proof, and paints a picture of a brave new world in which authors don’t get paid. Hacker boogeymen and starving artists are certainly more compelling than the minutiae of copyright law or technical explanations of how search engine indexing works, but that isn’t much of a legal argument.

For a different perspective from search engine expert Danny Sullivan, see my post GooglePrint: Finding Not Reading. He explains that when a search engine indexes a page, there exists no copy of the page anywhere. Just data on what words are contained on that page and where they are in releation to each other. It is impossible, therefore, to piece together an entire book from snippets.

(And these hackers Aiken talks about, the ones he thinks can so easily get into Google’s database and post copyrighted material on the web for free … I wonder if I can commission them to steal the Google algorithm while they’re at it.)

Don’t get me wrong… I think there may be legitimate legal arguments to be made, but I wonder if the Authors Guild stance isn’t indicative of not quite “getting” the direction the world is headed.