Copyrights in Cyberspace
While browsing through on an electronic bulletin board, you come across an interesting article on dog training. Thinking it might be of interest to the members of your dog owners' club, you download it, print it out, and reprint it in the next issue of your club's newsletter.
Congratulations -- you've probably just violated federal law.
Don't worry, you probably won't be hauled off to the federal pen. The law you ran afoul of is copyright law, which gives authors, composers, and others who create works of expression certain rights over their creations.
You would probably think about copyright rules if you wanted to republish a chapter of a book, a play, or a song you liked. But copyright rules are easy to overlook when you're dealing with electronic media. These bits of information fly around so rapidly and can be reproduced so easily that it's hard to remember that someone out there probably owns the right to determine when and how copies are made and used.
All works of original expression have at least one thing in common: They are protected by copyright as soon as they are created and fixed in a tangible medium. For the most part, once an expression is entered into a computer in a form that can be read on screen or routed to a printer, it is considered fixed in a tangible medium, even if it is never printed out or saved to a disk. A copyright notice -- that little © followed by the year and the author's name -- is not required, but is recommended to remind people that the author claims a copyright.
The author of the expression owns the copyright unless there has been a formal written transfer of that ownership, or the expression is created as a work for hire or paid for by an employer. So a person who enters an expression into a computer for other people to see usually owns the copyright on that expression.
What does owning a copyright on an expression mean? Simply, that no one else can copy, distribute, display, or adapt that expression without the copyright owner's consent. This consent may be given for free, for a fee, or on the condition that an appropriate attribution be given. It is always a good idea, if you send material into cyberspace, to explicitly state the conditions for its use and reproduction.
As a starting point, therefore, you can assume that you control the right to use any expressions that you author and put online. The important corollary is that any expressions you find online are probably controlled by someone else and shouldn't be used without permission.
How Copyright Works
Copyright protects expression, not ideas or facts. For instance, information in a telephone book or a weather summary can be freely used. On the other hand, the expression used in an essay on telephones or a creative explanation of weather systems is protected by copyright even though the underlying data and ideas aren't.
Copyright law doesn't mean that you can never quote something interesting that you find online. The "fair use" rule allows you to use a small portion of an expression to comment on it or for an educational purpose. But if you want to use the expression for commercial gain, the fair use exception probably won't apply unless the portion you use is extremely small in relation to the entire expression.
It's extremely difficult to apply the fair use rule to new forms of expression such as the discussions that take place in "cyberspace" -- for example, on Internet "newsgroups" or the conferences on online services such as AmericaOnline and CompuServe. A hundred people may each contribute a few lines to a discussion. If you want to use a big chunk of the conversation, must you get every contributor's permission? Theoretically yes, because each contributor owns the copyright to his or her words. However, since none of the contributions has any significant commercial value by itself, it's hard to see where the copyright owners would be harmed if the entire conversation were used without their individual permissions. Nevertheless, people whose words are used without their permission may be angry about it. It is always better to ask.
Digital Millennium Copyright Act of 1998
This federal statute, signed by the President on Oct. 28, 1998, addresses a number of copyright issues created by the increasing use of the Internet for commerce in materials protected by copyright. Because the act is so new, it is sure to undergo much interpretation by the courts and by copyright experts in the coming years.
The act outlaws attempts to get around devices used by software publishers to keep their programs from being copied, but makes a number of exceptions. Most of these exceptions involve nonprofit uses, legitimate personal privacy concerns, and law enforcement activities. The act also:
- prohibits the falsification of identifying information that often accompanies copyrighted works, such as the familiar copyright notice, and the distribution of works that contain such falsified information
- takes Internet service providers off the hook for infringement for transient transmissions automatically passing through their computers
- allows Internet and other online service providers to escape liability for infringement regarding more permanent materials if they promptly remove infringing materials upon request, and
- allows a copy of a computer program to be made for the purpose of repairing or maintaining a computer.
If a court finds that a violation of the act has occurred, it can award the copyright owner money damages for any loss suffered from the violation or, in the alternative, statutory damages (damages to be assessed by the court on the basis of how intentional the violation was). The court can also:
- order the violator to cease its violation
- impose triple the amount of actual damages on repeat offenders, and
- order the violator imprisoned for up to 10 years if the violation was for personal or financial gain.
One last thing. Copyright is not the only law to be concerned about when launching words onto the information highway. You should also avoid:
- invading a person's privacy
- falsely accusing someone of committing an immoral or illegal act, and
- using a trademark or service mark that is already being used by someone else.
Copyright © 1999 Nolo.com Inc.
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