Copyright Myths FAQ: 10 big myths about copyright explained

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From: brad@clari.net (Brad Templeton)
Date: Tue, 28 Mar 1995 09:00:15 GMT
Newsgroups: news.announce.newusers, news.admin.policy, misc.legal,
misc.legal.computing, misc.int-property, misc.answers, news.answers
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Original-author: brad@clari.net (Brad Templeton)
Archive-name: law/Copyright-FAQ/myths/part1
Last-change: 29 Nov 1994 by brad@clari.net (Brad Templeton)
Changes-posted-to: news.misc,news.answers

                10 Big Myths about copyright explained
                        By Brad Templeton


        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 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 can't 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.

        (*) It's also usually in the public domain if the creator has
        been dead for 50 years.  If anybody dead for 50 years is posting
        to the net, let me know.  There are some other fine points
        to this issue -- check more detailed documents for info.

        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 former is probably fair
        use, the latter probably isn'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 (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 indidvidual 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 self-incriminate.

        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.


        -----------------    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 this
                document in electronic form, or to print for
                personal use.  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 for FTP
        on rtfm.mit.edu in pub/usenet-by-group/comp.answers/law/Copyright-FAQ.
        Also consider gopher://marvel.loc.gov/11/copyright for
        actual statutes.  Another useful document is
        http://www.eff.org/pub/CAF/law/ip-primer

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