[long] Nice Summary of Copyright Issues

Subject: [long] Nice Summary of Copyright Issues
From: John Gear <catalyst -at- PACIFIER -dot- COM>
Date: Mon, 1 Apr 1996 11:27:00 WET

> ClariNet * Brad Templeton Home Page * Copyright Myths

> 10 BIG MYTHS ABOUT COPYRIGHT EXPLAINED

> By Brad Templeton

> AN ATTEMPT TO ANSWER COMMON MYTHS ABOUT COPYRIGHT SEEN ON THE NET AND
> COVER ISSUES RELATED TO COPYRIGHT AND USENET POSTING.



> 1) "If it doesn't have a copyright notice, it's not copyrighted."

> This was true in the past, but today almost all major nations follow
> the Berne copyright convention. For example, in the USA, almost
> everything created privately and originally after April 1, 1989 is
> copyrighted and protected whether it has a notice or not. The default
> you should assume for other people's works is that they are
> copyrighted and may not be copied unless you know otherwise. There are
> some old works that lost protection without notice, but frankly you
> should not risk it unless you know for sure.

> It is true that a notice strengthens the protection, by warning
> people, and by allowing one to get more and different damages, but it
> is not necessary. If it looks copyrighted, you should assume it is.
> This applies to pictures, too. You may not scan pictures from
> magazines and post them to the net, and if you come upon something
> unknown, you shouldn't post that either.

> The correct form for a notice is:


> "Copyright [dates] by [author/owner]"

> You can use C in a circle ) instead of "Copyright" but "(C)" has never
> been given legal force. The phrase "All Rights Reserved" used to be
> required in some nations but is now not needed.



> 2) "If I don't charge for it, it's not a violation."

> False. Whether you charge can affect the damages awarded in court, but
> that's essentially the only difference. It's still a violation if you
> give it away -- and there can still be heavy damages if you hurt the
> commercial value of the property.

> 3) "If it's posted to Usenet it's in the public domain."

> False. Nothing is in the public domain anymore unless the owner
> explicitly puts it in the public domain(*). Explicitly, as in you have
> a note from the author/owner saying, "I grant this to the public
> domain." Those exact words or words very much like them.

> Some argue that posting to Usenet implicitly grants permission to
> everybody to copy the posting within fairly wide bounds, and others
> feel that Usenet is an automatic store and forward network where all
> the thousands of copies made are done at the command (rather than the
> consent) of the poster. This is a matter of some debate, but even if
> the former is true (and in this writer's opinion we should all pray it
> isn't true) it simply would suggest posters are implicitly granting
> permissions "for the sort of copying one might expect when one posts
> to Usenet" and in no case is this a placement of material into the
> public domain. Furthermore it is very difficult for an implicit
> licence to supersede an explicitly stated licence that the copier was
> aware of.

> Note that all this assumes the poster had the right to post the item
> in the first place. If the poster didn't, then all the copies are
> pirate, and no implied licence or theoretical reduction of the
> copyright can take place.

> (*) Copyrights can expire after a long time, putting someting into the
> public domain, and there are some fine points on this issue regarding
> older copyright law versions. However, none of this applies to an
> original article posted to USENET.

> Note that granting something to the public domain is a complete
> abandonment of all rights. You can't make something "PD for
> non-commercial use." If your work is PD, other people can even modify
> one byte and put their name on it.

> 4) "My posting was just fair use!"

> See other notes on fair use for a detailed answer, but bear the
> following in mind:

> The "fair use" exemption to copyright law was created to allow things
> such as commentary, parody, news reporting, research and education
> about copyrighted works without the permission of the author. Intent,
> and damage to the commercial value of the work are important
> considerations. Are you reproducing an article from the New York Times
> because you needed to in order to criticise the quality of the New
> York Times, or because you couldn't find time to write your own story,
> or didn't want your readers to have to pay to log onto the online
> services with the story or buy a copy of the paper? The first is
> probably fair use, the others probably aren't.

> Fair use is almost always a short excerpt and almost always
> attributed. (One should not use more of the work than is necessary to
> make the commentary.) It should not harm the commercial value of the
> work -- in the sense of people no longer needing to buy it (which is
> another reason why reproduction of the entire work is generally
> forbidden.)

> Note that most inclusion of text in Usenet followups is for commentary
> and reply, and it doesn't damage the commercial value of the original
> posting (if it has any) and as such it is fair use. Fair use isn't an
> exact doctrine, either. The court decides if the right to comment
> overrides the copyright on an individual basis in each case. There
> have been cases that go beyond the bounds of what I say above, but in
> general they don't apply to the typical net misclaim of fair use. It's
> a risky defence to attempt.

> 5) "If you don't defend your copyright you lose it."

> False. Copyright is effectively never lost these days, unless
> explicitly given away. You may be thinking of trade marks, which can
> be weakened or lost if not defended.

> 6) "Somebody has that name copyrighted!"

> You can't "copyright a name," or anything short like that. Titles
> usually don't qualify, but I doubt you could write a song entitled
> "Everybody's got something to hide except for me and my monkey."
> (J.Lennon/P.McCartney)

> You can't copyright words, but you can trademark them, generally by
> using them to refer to your brand of a generic type of product or
> service. Like an "Apple" computer. Apple Computer "owns" that word
> applied to computers, even though it is also an ordinary word. Apple
> Records owns it when applied to music. Neither owns the word on its
> own, only in context, and owning a mark doesn't mean complete control
> -- see a more detailed treatise on this law for details.

> You can't use somebody else's trademark in a way that would unfairly
> hurt the value of the mark, or in a way that might make people confuse
> you with the real owner of the mark, or which might allow you to
> profit from the mark's good name. For example, if I were giving advice
> on music videos, I would be very wary of trying to label my works with
> a name like "mtv." :-)

> 7) "They can't get me, defendants in court have powerful rights!"

> Copyright law is mostly civil law. If you violate copyright you would
> usually get sued, not charged with a crime. "Innocent until proven
> guilty" is a principle of criminal law, as is "proof beyond a
> reasonable doubt." Sorry, but in copyright suits, these don't apply
> the same way or at all. It's mostly which side and set of evidence the
> judge or jury accepts or believes more, though the rules vary based on
> the type of infringement. In civil cases you can even be made to
> testify against your own interests.

> 8) "Oh, so copyright violation isn't a crime or anything?"

> Actually, recently in the USA commercial copyright violation involving
> more than 10 copies and value over $2500 was made a felony. So watch
> out. (At least you get the protections of criminal law.) On the other
> hand, don't think you're going to get people thrown in jail for
> posting your E-mail. The courts have much better things to do than
> that. This is a fairly new, untested statute.

> 9) "It doesn't hurt anybody -- in fact it's free advertising."

> It's up to the owner to decide if they want the free ads or not. If
> they want them, they will be sure to contact you. Don't rationalize
> whether it hurts the owner or not, ask them. Usually that's not too
> hard to do. Time past, ClariNet published the very funny Dave Barry
> column to a large and appreciative Usenet audience for a fee, but some
> person didn't ask, and forwarded it to a mailing list, got caught, and
> the newspaper chain that employs Dave Barry pulled the column from the
> net, pissing off everybody who enjoyed it. Even if you can't think of
> how the author or owner gets hurt, think about the fact that piracy on
> the net hurts everybody who wants a chance to use this wonderful new
> technology to do more than read other people's flamewars.

> 10) "They e-mailed me a copy, so I can post it."

> To have a copy is not to have the copyright. All the E-mail you write
> is copyrighted. However, E-mail is not, unless previously agreed,
> secret. So you can certainly report on what E-mail you are sent, and
> reveal what it says. You can even quote parts of it to demonstrate.
> Frankly, somebody who sues over an ordinary message might well get no
> damages, because the message has no commercial value, but if you want
> to stay strictly in the law, you should ask first. On the other hand,
> don't go nuts if somebody posts your E-mail. If it was an ordinary
> non-secret personal letter of minimal commercial value with no
> copyright notice (like 99.9% of all E-mail), you probably won't get
> any damages if you sue them. Note as well that the law aside, keeping
> private correspondence private is a courtesy one should usually
> honour.
> _______________________________________________________________

> IN SUMMARY
> * These days, almost all things are copyrighted the moment they are
> written, and no copyright notice is required.
> * Copyright is still violated whether you charged money or not, only
> damages are affected by that.
> * Postings to the net are not granted to the public domain, and
> don't grant you any permission to do further copying except
> perhaps the sort of copying the poster might have expected in
> the ordinary flow of the net.
> * Fair use is a complex doctrine meant to allow certain valuable
> social purposes. Ask yourself why you are republishing what you
> are posting and why you couldn't have just rewritten it in your
> own words.
> * Copyright is not lost because you don't defend it; that's a
> concept from trademark law. The ownership of names is also from
> trademark law, so don't say somebody has a name copyrighted.
> * Copyright law is mostly civil law where the special rights of
> criminal defendants you hear so much about don't apply. Watch out,
> however, as new laws are moving copyright violation into the
> criminal realm.
> * Don't rationalize that you are helping the copyright holder; often
> it's not that hard to ask permission.
> * Posting E-mail is technically a violation, but revealing facts
> from E-mail isn't, and for almost all typical E-mail, nobody could
> wring any damages from you for posting it.

> _______________________________________________________________

> Permission is granted to freely copy (unmodified) this document in
> electronic form, or in print if you're not selling it. On the WWW,
> however, you must link here rather than copy it. If you had not seen
> a notice like this on the document, you would have to assume you did
> not have permission to copy it. This document is still protected by
> you-know-what even though it has no copyright notice.
> _______________________________________________________________

> It should be noted that the author, as publisher of an electronic
> newspaper on the net, makes his living by publishing copyrighted
> material in electronic form and has the associated biases. However, DO
> NOT E-MAIL HIM FOR LEGAL ADVICE; for that use other resources or
> consult a lawyer. Also note that while most of these principles are
> universal in Berne copyright signatory nations, some are derived from
> Canadian and U.S. law. This document is provided to clear up some
> common misconceptions about intellectual property law that are often
> seen on the net. It is not intended to be a complete treatise on all
> the nuances of the subject. A more detailed copyright FAQ, covering
> other issues including compilation copyright and more intricacies of
> fair use is available in the same places you found this note, or here.
> Also consider gopher://marvel.loc.gov/11/copyright for actual
> statutes. Another useful document is the EFF's IP law primer.
> Other net articles on my Home Page
> Up to ClariNet e.News home page


John Gear (catalyst -at- pacifier -dot- com)

The Bill of Rights -- The ORIGINAL Contract with America
Beware of Imitations. Accept No Substitutes. Insist on the Genuine Articles.

***** T shirts with the above saying available, send e-mail for info****


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