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Fluther to Maholo: Stop Copying Us

There's a lot of interest in getting questions answered on the Internet. And now there's a flare-up between two of the companies in this space. Fluther has accused Maholo of wholesale theft of the company's content, but the whole thing is shaping up as a cross between a business rivalry and a message forum flame war -- which makes you wonder if this companies will grow up enough to keep this from becoming the future of the web.

Fluther's approach is to let people post questions on an open messaging board and see what answers come from the crowd. Mahalo bills itself as "human search engine," meaning that it has people put together collections of links for popular search terms. Recently Mahalo has added a service called Mahalo Answers, in which people can ask questions and get answers from other users. The format is relatively common; LinkedIn does something similar, for example. But both also use Twitter to let people ask and answer questions, and that is where the dispute started.

On May 29, Fluther CEO Ben Finkel apparently emailed Mahalo CEO Jason Calacanis, claiming that Mahalo was taking questions sent in Fluther's tweets and posting them on its own site. Here's what Fluther posted on its blog as the response from Calacanis:

We don't autoscrape questions, but our users can answer questions from the public timeline on Twitter-- those publicly asked questions can be answered by anyone, anywhere at any time based on fair use (ie including on twitter or a person's blog).

In other words, we don't feel you can copyright a publicly asked questions [sic].

However, I respect your right to disagree with my position.

But things get a little stranger when you check some other blogs, and, apparently, Calacanis says that the reposting was done by a Mahalo user, and not by the company itself:
We'll take down the account for you if it's such a big deal. It's like a half dozen questions that were imported by our user.

However, in your case I guess you think it's going to make some huge difference to either of our sites. It won't--. really. A half dozen questions out of 100k+ on Mahalo Answers and I'm sure thousands on your site don't make a difference.

Also, frankly, I don't think you can copyright a question asked in a public forum like Twitter-- but who really cares. we'll take it down and respectfully disagree and buy you a beer when we see you.

A quick look on Mahalo Answers suggests that they do have a lot of questions on their board, including one from Jason Calacanis himself, asking whether questions asked in public can enjoy copyright. It's the sort of business wrestling that traditionally was kept out of the public eye because it distracted customers from actually doing business.

The legal issues get complex, so I double checked with Anthony Elia, an IP lawyer that I've known for years and have used myself. As I suspected, there was plenty of misunderstanding on both sides:

  • Every "original work of authorship" has copyright from the moment it's fixed in a "permanent medium."
  • Given the length of the questions, there's an argument that they wouldn't qualify for copyright protection, but that has nothing to do with them being displayed publicly.
  • The copyright belongs to the person who formulated the specific thought or, in this case, question, not to the entity that transmitted it. Given that the Fluther terms and conditions only provide the company with a license to use anything posted as it wishes, it doesn't own the copyright in any question. Transferring that right would, under U.S. law, require a written and signed statement from the person asking the question.
  • Furthermore, the Fluther terms only demand a mention of Fluther and attribution to the author for "any posted content on this site." Given that the questions were asked and taken from Twitter, Fluther might not have a claim because it then has no agreement with other Twitter users.
But the sniping nature of the whole back and forth makes you wonder when customers might eventually start tweeting, "Oh, shut up."

Fighting figures image via stock.xchng user arte_ram, standard site license.

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