Is Article Spinning Copyright Infringment?
Article Spinning & Copyright Infringement
"Article spinning" is becoming a popular method of producing web content by webmasters, Internet marketers, and others who want to own online content without having to pay much to get it.
For those who don't know what it means, to "spin" an article means to use software or humans, or a combination of both, to reword an initial article enough that the reworded versions appear dissimilar to search engines like Google when they index a page, thereby increasing the prestige of the website that they are hosted on without getting a negative score from the search engine for copying someone else's content.
When a person owns the copyright to the original article and reproduces different versions of it through spinning, there will usually be few issues with republishing the content. However, many would like to know what the rules are around spinning someone else's content enough that it's difficult for a search engine to judge the difference between the spun content and the original content. Is it copyright infringement to take the work of someone else, and use software or a human to reword it to appear different?
The answer is, yes.
Copyright laws do not only protect the original version of an article. The fact that someone may reword an article that someone else wrote does not make the reworded version legal. If a plaintiff can establish proof of access by a defendant to the allegedly infringed content, and a substantial similarity between the infringing content and the infringed content, a case of copyright infringement is made out. Proof of access is easy to establish if the infringed content was located online for public viewing, since anybody with Internet access would have the opportunity to view it. Anybody, including a judge, who reads a spun article and an original article, is likely to see that there is a substantial similarity between the two. It is therefore easy to make out a case for infringement when online content was made publicly available.
But what if the infringed content is not publicly available? In the case Testa v. Janssen (1980), the plaintiffs owned the rights to the song, "Kept on Singing," and the defendants made a song called "Keep on Singing." The plaintiffs alleged that the defendants had copied their song, even though the two songs were not identical and there was no proof of access. The Court ruled against the defendants' motion for summary judgment and permitted the case to proceed on the grounds that if the infringing content is "strikingly similar," that in and of itself can constitute proof of access by the defendants of the infringed content. Since there was evidence before the Court from experts about the content being strikingly similar, there was a prima facie case and it was permitted to proceed.
Although it concerned music, the Testa decision can be applied to Internet content. If someone believes their non-publically available content was infringed, but cannot prove access by the infringer to that content, the Testa case establishes that a striking similarity of the infringing content to the infringed content is sufficient to proceed with the case. This might be applicable in cases where, for example, an eBook or the code of some software has been copied, but the owner cannot prove access by the defendant of the material. If the eBook or software which is a copy is strikingly similar to the original, it is quite possible to pursue a copyright infringement case, notwithstanding the lack of proof of access.
Proving the similarities may prove costly, however. Expert witnesses would usually need to be hired to testify as to the level of similarity between the defendant's content and your own. Therefore, if possible, it is best to establish that the defendant actually did access the infringed content, while using the level of similarity to establish a substantial similarity rather than a striking one.
About the Author
Aaron M. Kelly is an attorney based in Scottsdale, AZ that focuses on Internet Law, Business Law, and Bankruptcy. Aaron is an experienced Internet lawyer and regularly speaks on topics involving Internet law.
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