By Kerry Gorgone, {grow} Contributing Columnist
Today, it is really difficult making money off of content. Despite rising demand, there is an expectation of “free,” leaving musicians, artists, and writers to scramble for a living.
That makes it all the more aggravating when we find examples of companies unfairly making money off your copyrighted content. And that is exactly what is happening in a questionable method of monetizing blog content involving sites like Business2Community and NewsCred.
In fact, they may even be making money off of you without your knowledge.
How Business2Community makes money off of free content
Business2Community is a website of curated content from across the web that was founded by Brian Rice, senior director integrated marketing for SAP, and others. The site has no association with SAP. According to those associated with the site, it has struggled to create a viable revenue stream. A few years ago, the site was up for sale.
Recently, several bloggers, including Mark Schaefer, discovered that their original, copyrighted content was being sold to unsuspecting companies for their use without the knowledge or permission of the content creators. Here’s a notice at the bottom of a piece of Mark’s content that showed up on a business site without his consent:
Business2Community is licensing the content to NewsCred, which is then selling the content to corporate clients. Both NewsCred and B2C are profiting from the original content skimmed from blog sites for free.
Mark, and hundreds of other writers, had given Business2Community permission to syndicate blog content on the B2C site, but there was no agreement to sublicense the content to others. And yet his piece had been among those sold to Newscred, which in turn licensed the content to brands to post on their own sites.
This situation becomes even more complicated because tech giant Dell paid Mark to write the original article. Technically, Dell owned the content and Business2Community stripped the reference to Dell from the post before selling it to NewsCred.
This situation opens up many questions about the Business2Community practice and the rights of authors who had contributed content to them in good faith. How does this happen, and is it legal?
Copyright in a world of curation
Most people understand the fundamentals of copyright: you create something (like a photo, a blog post, or an ebook), and you own it. If someone else wants to use that content, they need to get your permission (subject to the exception for “fair use,” which I’ve explained in detail here).
Seems simple enough, and yet people infringe copyright all the time, intentionally or unintentionally. One marketing practice that seems to create confusion is content curation—sharing content created (and owned) by someone else on your website, social media feed, or other channel.
Essentially, “content curation” means sharing quality content from outside sources (i.e. content that you didn’t create) for the benefit of your audience. The value in curation lies in using discretion to sort through the mountains of crap content and guide your audience to the select few gems that are worth their time and attention.
Typically, ethical curation involves linking to the original content source, as opposed to copy/pasting the entire text or uploading video and images to your own site. Content creators can, however, give permission for a website or other publisher to republish their work.
Copyright, Licensing, and Sublicensing
Here’s where things get sticky.
Let’s say that you (the creator and licensor) give a website (the licensee) permission to republish your work. A third party finds it on the licensee’s website and offers the licensee money to let them post it on their website, too.
Without your express permission as the content creator, this kind of sublicensing as practiced by Business2Community and NewsCred is not legal.
Attorney Sara F. Hawkins illustrates the problem this way:
“It would be like somebody came to you and said ‘hey, would you hold my purse?’ and all of the sudden you’re like ‘oh my gosh, this is a really nice purse, I bet I could put it on eBay and sell it.’ That’s what they’re doing [when they sublicense your content without express permission]. Even worse, actually. They’re putting it on ‘Rent the Runway’ and licensing it over and over.”
And yet there are entire businesses (like Business 2 Community and NewsCred) built on licensing content created by others to third parties.
Your original content is like your purse. You wouldn’t intentionally give away your purse, but it’s possible that some of the sites you publish on have terms that say that by publishing on their site, you are granting them a license to use your content and license others to use it.
There’s nothing about copyright licensing in Business 2 Community’s contributor guidelines, but check out this section from their terms of use:
“By posting to or otherwise engaging in any communication within the Site, you are granting the Site (or any of its assignees) a perpetual, royalty-free, and irrevocable right and license to use, reproduce, modify, adapt, publish, translate, distribute, transmit, publicly display, publicly perform, sublicense, create derivative works from, transfer, and sell any such information.” [Emphasis mine.]
In other words, by letting Business 2 Community run your content on their site, you irrevocably grant the company permission to sell your content to third parties.
What’s worse, these terms aren’t dated, so it would be difficult for you as a contributor to know if those terms were in effect when you first agreed to let Business 2 Community use your content.
They are, at least, supposed to give you attribution, but you’ll probably find that any third party who licenses the content simply credits Business 2 Community (as we saw earlier), and not the original source (your website), as was the case with Mark Schaefer’s post that Stratford University licensed through NewsCred after it appeared in Business 2 Community. In this case (look carefully) it appears that Mark Schaefer is an employee of Business2Community:
Placing license provisions in the terms of use (as Business2Community has done) would be considered a “browsewrap agreement.” The enforceability of this type of agreement is a matter of some debate, particularly where, as here, the rights granted are sweeping.
Really, contributors are giving the site all of the same benefits they themselves hold in relation to their content except actual ownership. Once you’ve submitted your post, Business 2 Community is free to sell it, remix it, and create derivative works.
“Short of handing them over the actual copyright,” explains Hawkins, “you’re giving them everything.”
Because so many copyright cases settle out of court, it’s difficult for people to know what’s enforceable and what isn’t, but recently a California court refused to enforce ProFlowers’s browsewrap agreement that required arbitration of disputes. (Long vs. Provide Commerce, Inc.)
In that case, the court suggested that businesses would be “well-advised” to use hyperlinks and “conspicuous textual notice” to ensure that consumers understand that the “linked page contains binding contractual terms.”
In the case of Business 2 Community, contributors can get through the entire submission process without seeing any notice of the copyright provisions in the terms of use. If the syndication happens automatically, the original creator might never even interact with Business 2 Community’s portal—the process is entirely automated at that point.
“A Lawsuit Waiting to Happen”
In Hawkins’s opinion, this situation presented by Business2Community and NewsCred is a class-action lawsuit waiting to happen. “You don’t even get a click,” she observes. “I don’t see how even a browsewrap agreement would apply, because you don’t affirmatively agree to the terms and it doesn’t block you at some point [from submitting a post].”
NewsCred’s business model is different: the company licenses large swaths of content from publishers like The Wall Street Journal (and Business 2 Community), but also uses freelance writers to create original content that they then license to third parties.
“We have over 100,000 newsletter subscribers. It’s really difficult to nurture all of those subscribers against their personalized journeys and their interests,” explains NewsCred Vice President of Marketing Alicianne Rand. “It’s really difficult to scale that with original content production, so we turn to licensed content.”
NewsCred licenses content from more than 5,000 different publishers, including Associated Press, Reuters, TechCrunch, and FastCompany. “We syndicate that content and we allow our customers to host that content on our site,” says Rand. “We’re paying the publishers as customers millions of dollars every single year to have the right to license that content.”
The problem is, publishers might not have the right to sublicense that content in the first place.
“Newscred appears to be buying some shady goods [from Business 2 Community] and they don’t know it, because they’re being told ‘we’ve got permission to do this,” explained Hawkins.
This means that you could see your content appearing on brand websites all over the Internet. If you don’t monitor your content closely, you might miss when it gets reposted — at a profit — to places you never expected.
In other words, someone could well be making money off your content, but it isn’t you.
Brian Rice of Business2Community was contacted multiple times with an opportunity to comment for this article but did not respond to our requests.
Protect Yourself
If you’re not vigilant about protecting your content, someone could easily put your metaphorical purse on ‘Rent the Runway’ without you realizing it.
Before you post any content (articles, videos, pictures, etc.) on someone else’s website, or grant them permission to repost any of your content, carefully review their site’s terms of use or terms of service, as well as any contributor guidelines.
If you don’t find the answers you’re looking for, email the site owner and ask (in writing) exactly what rights you reserve and which you grant if you contribute content to the site.
If you don’t read the terms of service, you could be letting someone else make money off of your content without owing you a dime. Few people would knowingly agree to that type of arrangement. After all, “exposure” doesn’t pay your bills.
Kerry O’Shea Gorgone is a writer, lawyer, speaker and educator. She’s also Senior Program Manager, Enterprise Learning, at MarketingProfs. Kerry hosts the weekly Marketing Smarts podcast. Find Kerry on Twitter.
Illustration courtesy Flickr CC and Thomas Galvez
