Striking similarity


Jason Falls wrote a blog post recently about originality, plagiarism, and synthesis. If you haven’t read it, go read it first.

Disclaimer: I am not a lawyer. If you need legal assistance, contact a real lawyer!

The concern on the Internet isn’t about plagiarism per se. While it’s unethical, it’s not illegal in its own right. What is illegal is copyright infringement, either under the Berne Convention or under domestic laws in the nation that you reside in. The United States of America, for example, has some of the most draconian and oppressive copyright laws in the world; works that are legally public domain in other nations are still subject to copyright in the United States.

The test that many courts use to determine copyright infringement in a jury trial is called striking similarity. Via Wikipedia:

  • Uniqueness, intricacy, or complexity of the similar sections.
  • If the plaintiff’s work contains an unexpected or idiosyncratic element that is repeated in the alleged infringing work.
  • The appearance of the same errors or mistakes in both works.
  • Fictitious entries placed by the plaintiff that appear in the defendant’s work. For example, fake names or places are often inserted in factual works like maps or directories to serve as proof of copying in a later infringement case since their appearance in a defendant’s work cannot be explained away by innocent causes.
  • Obvious or crude attempts to give the appearance of dissimilarity.

For example, I had to send a takedown notice to a publisher not too long ago for copyright infringement. A guest blogger copied the ideas and style of my post, down to the screenshots, and submitted it as their work. The offending post failed the second and fifth tests above, the publisher agreed, and the copy was removed.

So how do you know when you’re infringing copyright vs. creating something new or synthesizing something new out of existing materials? Subject it to the above tests. If all you’ve done is rewrite an idea in your own words, chances are you’re going to fail test 5, especially in a jury trial where people not familiar with the intricacies of your field will judge whether the copy is substantially similar to the original.

For example, let’s say you’re the inventor a ball-peen hammer. If I make a copy but spray paint it red, it’ll fail test 5. Now, if I take the hammer idea and merge it with a crowbar to invent a claw hammer, that’s not substantially similar. It’ll pass the striking similarity tests.

How can you defend your own works against infringement? As the tests above state, you’ll want to introduce subtle errors into your content. Watermark your images (which are basically a kind of error that’s hard to see).

Give out mostly correct recipes, but omit things.

Create a linguistic style of writing that is unquestionably you and only you, such that people making copies will have a difficult time imitating you.

Use your own original photography, video, music, etc. wherever and whenever you can.

Post your content on social networks as soon as you publish it so that there’s an immediate timestamp in the public record of when your original went up versus when a copy appeared.

Post your content to your owned media properties first before you publish to a third party property like a social network.

If you’ve got a genuinely big idea, get a copyright lawyer and go through the process of filing a formal copyright and/or patent.

Finally, lawyer up and vigorously defend your work. Most people who copy things do so inadvertently, and as a result will generally respond to a polite request for a takedown. The few bad actors who maliciously copy will receive the message when you press a lawsuit, and if you build a reputation as someone who will go to the mat for your work, chances are those folks will learn to steer clear of you.

Let me reiterate that I am not a lawyer. If you’re facing copyright issues, get a real lawyer. But if you’re looking to protect yourself, or know when a work is protected, use some of the tips and ideas above!

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Customer Review: Julien Smith’s Breather


I’ve been watching Julien Smith’s new startup, Breather, with interest ever since it launched in June of 2013. If you’re unfamiliar with Breather, it’s basically rentable quiet space for business. Some people have called it room-sharing (similar to ridesharing) or other slightly clumsy comparisons. I had a chance to use the Flatiron 2 space in New York City recently to host a business luncheon and webinar for SHIFT Communications.

Breather is elementary to use. You log into the website, find a suitable location that fits what you’re looking for (based on room capacity), and then rent it by the hour. To make use of the actual spaces, you show up with your smartphone and the Breather app. You touch your phone to start your time, get a unique PIN code for the door, and you’re in the space.

What can you use Breather for? Ostensibly, it’s for the traveling businessperson who needs a breather, who needs a quiet place to work with some seating, high speed Internet access, and none of the distractions that come with places like coffee shops (and the associated noise). The facilities are intentionally spartan – whiteboards and chairs, couches, Wi-Fi and power, and restrooms. Not much more is included.

That’s not what I used Breather for. SHIFT has an office in downtown Manhattan – a very nice one, to boot, but with it being fully staffed and the team there keeping super-busy, the conference rooms in the office are almost always booked, all the time. Breather has everything I need to hold a simple meeting or webinar while hosting people in a professional, clean environment that isn’t a hotel room or hotel conference room. I had to bring in my own large-screen monitor for participants in the room to see the webinar (as well as lunch) but beyond that, the space was perfect. The space would be just as appropriate for smaller meetings, for media briefings and off-site desksides, etc.

Oh, and the price? $25/hour for the Breather space I used. Let that sink in for a moment. $25/hour for a space that comfortably holds 10+ people in Lower Manhattan. That’s an outlandish steal, when regular executive suite rentals and conference room rentals run $150-$200/hour easily. Hotel conference rooms are even more expensive. If you’re doing business in any city that Breather has a location in, you owe it to your bottom line to see if Breather is available and practical for your business needs. I know I’ll be going back.

Disclosure: I received no compensation, direct or indirect, from Breather for writing this review.

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Losing for the win

At the dojo

Last night at the Boston Martial Arts Center I had an interesting experience while coaching one of the green belt students on some avoidance techniques. The drill was simple: I swung at the student with a foam-padded bopper and after avoiding a relatively slow swing, they had to hit a padded target. It’s a drill of avoidance and footwork on one hand, and accuracy on the other. The drill encourages not only good technique, but presence of mind – you can’t just wildly avoid or you’ll be out of position for the target hitting.

What was interesting to me wasn’t the drill itself but two insights I had. The first insight was that I had to strongly resist my own urge to “win”, to hit the student with the foam stick. That wasn’t the point of the drill, and initially, my own ego and desire to “win” by the conventional definition (hit them with the bopper) was quite strong. It took me a good minute or two before we started to put myself in the right frame of mind, that I was there to help the student first and foremost, and to appropriately move at a speed that insured more success than failure, while not eliminating the chance for failure.

The second insight, which was part of that reframing, was that “winning” in this case wasn’t hitting the student with the bopper. Winning was actually “losing” the majority of the time for my role as the attacker. If I was not able to hit them the majority of the time, if I was able to have them succeed first and foremost, that was the true win, the win in the bigger picture. They’d walk away with more skill, more insight of their own, and more happiness rather than walk away demoralized or ashamed of their performance. In this case a narrow-minded personal “win” would have been a failure on my part as a coach and a failure on the part of the student.

When I look over my career, this is a pattern writ large. Those times that have been the most fruitful and the most successful were when I put a bigger picture win ahead of a narrow-minded personal win. When you help create success in others, they root for your success and actively look for ways to help you achieve it. Those times that have been the most stressful and unpleasant were because I created selfish success at the expense of others. In a world where you are the platform, creating situations where people don’t want to see you succeed is tantamount to career suicide, while creating situations where people are actively and eagerly supporting you is a rocketship to the top.

The challenge I continue to face is whether my ego is willing to lose small for the big win.

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