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Copyright Law in Cyberspace Consider the following situations: * You buy a piece of software and e-mail it to five friends.
* You download an article from a newspaper's Web page and post in on an electronic bulletin board. * You take a post from one news group and forward it to another news group. * You respond to someone's discussion
list post, and quote part of his post in yours. Each of these examples implicates copyright law. In each of them there's at least a possibility that you'd be violating the law (though we'll find that in at least some
of them you're probably safe). Copyright law (1) usually (2) gives a copyright owner the exclusive right to control copying (3) of a writing (or recording or picture or electronic transcription). In the
next several messages, we'll explore each of these three elements. A WORD OF WARNING: Copyright law can be maddeningly vague, and copyright law online is doubly vague. We'll often say something "might" be
legal, and you might often be frustrated by it. But we have to be honest here -- though copyright law is certain in some areas, it's uncertain in others. Under these circumstances, "might" makes right. Copyright: Pretty much all writing are copyrighted. Let's begin with how to obtain a copyright. What do you need to do to get a copyright for something
you've written? * You don't need to send it in to the Library of Congress. * You don't need to put a copyright notice on it. * Your work is copyrighted That's right: To get a copyright for something you've written, you need to do absolutely nothing except for writing it down. So the e-mail you send to a friend? It's
copyrighted. (Copyright law applies to things you write electronically, even if they never end up actually "written" on a piece of paper.) The personal Web page you've put up? It's copyrighted. The memo
you write on the job? It's copyrighted, though under the "work made for hire" doctrine, the copyright is owned by your employer. The general rule is that anything you write within the scope of your employment
is owned by the employer. (The rule may be different if you're an independent contractor, but the legal distinction between employee and non-employee is too complex for this seminar.) There are only two basic
limitations here: (1) Extremely short writings -- for instance, several words or shorter -- or extremely simple drawings are generally not copyrighted. (2) If you simply copy what someone else has done, without adding
anything new of your own, your copy is generally not copyrighted. Copyright: Electronic copying can infringe a copyright At the moment, it looks
like the basic rules of copyright law are pretty much the same in cyberspace as they are in the "real world." Some people have argued that this can't work -- that online copyright rules have to be very
different (or perhaps shouldn't exist at all). But for now, there's no indication that either Congress or the courts are about to accept this argument. As we saw, things that are written down electronically are just
as protected by copyright as things that come out on paper. Likewise, copying something in cyberspace can be just as much an infringement -- assuming the copyright owner doesn't allow you to do it -- as copying
something on paper: If you download an article from a newspaper Web site and forward it to a news group, you've made copies, which might be infringements. If someone saves your e-mail in an archive, he's made
copies, which might be infringements. If you quote someone's newsgroup post in your response to the post, you've made copies, which might be infringements. In some of these situations, the copies might be legal,
either because they are EXPLICITLY ALLOWED by the copyright owner (you might have seem some online documents which specifically allow readers to copy them), because they are FAIR USES or, because they are allowed by
IMPLIED LICENSES. We'll talk more about this later. But they are definitely copies, and therefore potential infringements: If a work is COPYRIGHTED (which, as we saw, is an easy hurdle to jump), and you've made a
COPY of it (which we'll talk about more below), and you weren't authorized to do so -- authorized by the copyright owner's express permission, by an implied license, or by the fair use doctrine -- then you've violated
the copyright law. Copyright: "Copying" covers many kinds of copying Copyright, as we saw, generally gives the copyright owner the exclusive
right to make copies of a work. Copies include electronic copies, and copyrighted works include electronic works. But what does "copy" mean? It covers copies of LESS THAN THE WHOLE thing: If you write an
article and I make a copy of five pages, that might violate your copyright. It covers PARAPHRASES, so long as they're close enough: If I translate your article into a foreign language, or make a movie based on your
book, that will probably violate your copyright. It covers MANUAL copies as well as mechanical copies: It doesn't matter whether you make an electronic copy of an electronic document, scan in a print document, or
hand-enter a document into the computer. All of this is copying. It covers Copyright: It's OK to copy facts and ideas There are some things that aren't "copying" for copyright purposes: Copying the FACTS from someone else's work isn't considered
copying. If a physicist discovers a law of nature, or a historian uncovers some facts about the past, everyone will be free to copy this information. And this is true even if they've invested years of effort into their
discovries -- facts are in the public domain. But copying the words someone uses to express the facts, and often the selection and arrangement of the facts, still isn't allowed. Copying an IDEA from someone else's
work isn't considered copying for copyright purposes (though in some situations it might violate rights under the patent laws). Thus, even if I'm the first person to think about writing a courtroom drama set in a
virtual cybercourt, everyone is free to copy this idea. Of course, people again aren't free to copy the WORDS I use to express this idea, and they may not be free to copy the details of the plot, if the details are
detailed enough. How detailed is too detailed? That's the $65,536 question -- it's very hard to tell, and sometimes it takes a lawsuit to find out. Copyright: A copyright owner's conduct may sometimes create an "implied license" that lets others copy. You post something to a discussion list. I quote your message in my response. Have I acted illegally?
Probably not, though your message is copyrighted, and I copied it. Your posting the message to a discussion list almost certainly gives others an "implied license" to quote it. When a copyright owner acts in
such a way that reasonable people would assume that he's allowing them to make copies, the law interprets his conduct as creating an "implied license." A familiar non-cyber example is a letter to the editor.
If I send the letter to the newspaper that starts with "Dear Mr. Editor," a reasonable person would assume that I'm allowing them to publish. This is so because this is a customary practice, and because almost
everyone knows about this custom. So when the newspaper publishes the letter, they'll be protected by the implied license. A few more examples: Someone sends a personal message to one other person. Reasonable people
would generally not assume that the author is allowing the recipient to forward the message to others. NO IMPLIED LICENSE. A newspaper posts something on its advertising - supported Web page. Reasonable people
probably wouldn't assume that it's allowing readers to forward it to news groups. PROBABLY NO IMPLIED LICENSE. Someone sends a message to a discussion list. It's not clear whether reasonable people would assume
that they're allowed to forward it to other lists. A lot might depend on the list's customs, and on whether the list is wide open or limited to only a few people. It should be clear by now that this is a VERY mushy
test (a lot of law is, for better or worse, that way). Fortunately, though, you as the copyright owner can make things less mushy: Implied licenses can always be EXPRESSLY REVOKED, just by saying so in a way that
potential copiers will see. If my letter to the newspaper starts with "Dear Editor: Don't publish this," then I'm not giving the newspaper any sort of license. Similarly, if my e-mail to a discussion group
clearly says "Don't forward this to any other group," readers won't have an implied license to forward it. If I were the lawyer for a newspaper that didn't want its stories copied from its Web page, I'd tell
them to put up a prominent notice about this. One more important point: An implied license can only be granted by the Copyright: Some copies are OK because they are "fair uses" There's one other rule that lets many people lawfully copy others' work: The fair use doctrine.
The fair use doctrine asks several questions:
1. Is your use noncommercial? 2. Is your use for purposes of criticism, comment, parody, news reporting, teach, scholarship, or research? 3. Is the original work mostly fact (as opposed to mostly fiction or
opinion)? 4. Has the original work been published (as opposed to sent out only to one or a few people)? 5. Are you copying only a small part of the original work? 6. Are you copying only a relatively
insignificant part of the original work (as opposed to the most important part)? 7. Are you adding a lot new to the work (as opposed to just quoting parts of the original)? 8. . Does your conduct leave
unaffected any profits that the copyright owner can make (as opposed to displacing some potential sales OR potential licenses of reprint rights)?
The more YES answers there are to the above questions, the more likely it is that your use is legal. The more NO answers there are, the more likely it is that your use is illegal. The trouble is that you can't just
count the answers. Sometimes even a few YESes will lead to a finding of fair use; sometimes even a few NOes will lead to a finding of no fair use. Often even the sharpest lawyers won't be able to predict the result.
In the next few message, though, we'll try to give some rules of thumb -- which we hasten to say are our own interpretations of the law, with which others might disagree -- about what's allowed and what's not. Copyright: :More on "fair use" Here are a few basic rules of thumb on when a use is fair: 1. If you're copying only a LITTLE BIT -- for text, this
generally means no more than a couple of paragraphs here or there, but it could be less if you're copying from a work that's already quite short -- your use is probably FAIR. We wish we could tell you how much is
"a little bit," but we can't -- there's no bright line. If someone tells you something like "It's OK to copy 20% of a newspaper article or 10% of a scholarly article," that's a COPYRIGHT MYTH. 2.
If you're copying more than a little bit, but you're doing it for (a) SYSTEMATIC NEWS REPORTING, (b) CRITICAL COMMENTARY (whether positive or negative), or (c) PARODY, your use is probably FAIR. Note that it's not
enough just to say "I'm reporting the news to the list" or "I'm commenting on this article just by quoting it." A little test: If pretty much any copier can make the same claim of "news
reporting" or "commentary" that you're making, your claim is probably too ambitious. 3. If you're copying UNPUBLISHED work -- work that the copyright owner hasn't displayed to all comers -- then your
use is probably NOT FAIR. The classic example of unpublished work is a personal e-mail. You might get away with quoting several lines in some situations, but generally you can't.
Copyright: Still more on "fair use" As we've seen,
(1) copies of small excerpts tend to be FAIR, (2) copies for systematic news reporting, criticism, or parody tend to be FAIR, and (3) copies of unpublished works tend to be UNFAIR.
Outside the area covered by these three basic rules, there are two more:
1. COMMERCIAL copying is generally UNFAIR. "Commercial" here just means copying that makes the copier money.
It doesn't much matter (A) whether you're making money from subscribers or advertisers, (B) whether you're a for-profit organization or a non-profit-one, and (C) whether your ultimate goal is the betterment of
mankind or just making a quick buck. If you're making money from the copying, you should probably ask the copyright owner for a license (which might mean having to pay him for it).
2. NONCOMMERCIAL copying is generally fair UNLESS the text you're copying is available for money (or for free in a place that carries advertising) either online or offline.
The test is: If this noncommercial copying became WIDESPREAD, would it displace some sales (or some advertising revenues)? If it will, it's unfair. That's why it's a copyright infringement for you to send a copy of
WordPerfect to a friend. Even if you're pretty sure your friend would never buy it himself, WordPerfect loses some money when this sort of copying becomes commonplace. Copyright: Some fair use examples
1. You get a personal message and you pass it along to one other person.
PROBABLY UNFAIR, though you might still have an implied license. (For instance, if the message asks for help on a nonprivate matter, there might be an implied license to pass it along to others who might be able to
help.)
2. You download an article from a newspaper's Web site and post it to a news group. The site carries advertising, and says "Do not send any copies of these articles to other people" (thus negating any
implied license).
PROBABLY UNFAIR, since if this becomes commonplace, fewer people would access the Web site and see the advertising.
3. You key in an article from a paper magazine that doesn't have a Web site and post it to a news group.
PROBABLY UNFAIR, if the magazine is available on some online service (such as DIALOG or NEXIS), or if the magazine is still on the newsstands for people to buy.
4. You forward someone's message from one publicly accessible news group to another news group.
PROBABLY FAIR, because the message was published, and because the person posting it has no commercial interest in selling the message.
5. You quote a few sentences from a news article that you downloaded.
PROBABLY FAIR, because it's only a few sentences.
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