There are many misconceptions surrounding U.S. copyright law and related technology and Internet legal issues. It's often difficult to separate fact from fallacy. While it is not the goal of this article to provide a comprehensive discussion on this area of law, it is my hope that this article will help put to rest some of the common myths, fallacies and urban legends.
Myth #1: Fair Use allows me to make and distribute copies of music, video, games, software, etc.
As to the question of what a user can actually copy, there seems to be no clear legal consensus. Further blurring the issue is that the law treats recorded music somewhat differently than for other protected works. It is generally accepted that a person may make personal copies (such as mix discs) of his/her legitimately-acquired CDs; indeed the RIAA even concedes this point. However, the question of whether a person may give copies to others is not clear. Copyright law provides in 17 U.S.C. §1008, that no legal action may be taken against anyone who engages in "noncommercial" copying of musical recordings. However, there is a dispute surrounding the legal meaning of "noncommercial," as it applies to the statute. Some people simply believe that any copying not made for profit fits within the definition and is thus legal. Others (particularly those in the entertainment industry) insist that any form of copying provides pecuniary gain (unjust enrichment) and displaces potential sales (that the person would have bought the disc but for having received an unauthorized copy), and thus constitutes commercial gain. There are flaws in both arguments, and there doesn't seem to be a logical "middle ground" for this dilemma. Also, section 1008 was enacted in the early 1990s, before the advent of Internet file sharing and cheap CD burners. It is argued by some that the true legislative intent of section 1008 was to be applied narrowly to the digital audio tape (DAT) recorders used by professionals at that time. Unfortunately, there is currently no caselaw to provide a modern view of the true construction of section 1008. The best rule of thumb is: if you don't feel comfortable giving a copy to someone or letting someone borrow your disc to copy, don't do it.
The issue of distribution of copyrighted works has opened the proverbial can of worms. Few legal issues in recent history have evoked such controversy. For the last five or six years, the issue of unauthorized Internet distribution (namely, peer-to-peer file-sharing) has been prominently thrust into the legal system and into the public consciousness. Most of the established caselaw has concerned the secondary infringement liability of P2P companies, most notably, A&M Records v. Napster and MGM v. Grokster. In the former case, the court found Napster contributarily liable for infringement because it enabled its users to directly infringe. This has opened the door for the recording industry to launch thousands of infringement suits against individual P2P users alleged to have shared music online. While many of these lawsuits have been settled out of court, typically for between $2000 and $10,000 each, at the time of this writing only one other file-sharing lawsuit has resulted in adjudication, with a damage award of $220,000 at trial. In that case, which involved some rather dubious defenses, it was held that even making copyrighted material available to others constituted infringement. In any case, this author finds it difficult to believe that a file-sharing defendant would be successful applying a Fair Use defense. A few RIAA cases have been dismissed due to mistaken identity or lack of evidence, however.
Due to the magnitude of the current P2P dilemma, and the fact that I seem to get lots of questions on the topic, I will include some common myths surrounding file-sharing below.
For works other than sound recordings, there is no "section 1008." The unauthorized copying of a video, book or software program may put the user squarely within the scope of copyright infringement. In the case of software, there are typically user licensing agreements that apply at the point of purchase, which expressly state the conditions surrounding a consumer's use of the software. With the exception of freeware and open-source software, most proprietary software programs are accompanied with an elaborate set of contractual conditions, and the right to make copies is rarely among them. Sometimes a user agreement will allow a user to make one backup copy, but will clearly state that only one copy is to be installed on the computer system. The best way to look at it is this way: you really don't "own" the software, you simply have the right to use one copy of it on one computer.
Myth #2: I'm a software developer. How people use my programs is their problem, not mine.
Myth #3: When I buy a CD (or a book, DVD, print, software program, etc.), I own the copyright to it.
Myth #4: Copyright, as the name implies, only protects against the copying of a work.
Fact: Copyright is actually a bundle of several rights. The copyright owner has exclusive rights to reproduction of the work, preparation of derivative works, and the distribution of copies. In the case of literary works, the copyright owner also has public performance and display rights. The owner of copyright to a sound recording retains the right to public performance via digital audio transmission. Never assume that a copyright owner has given up any of these rights.
Myth #5: I just bought a software program. I should be able to freely make copies of it.
Fact: Not unless the copyright owner has expressly granted permission to do so. This was discussed to some extent in the Fair Use discussion above. The scope of a consumer's use of software is more a question of contracts than copyright. The use of proprietary software is typically governed by a set of contractual terms, called an "end-user licensing agreement," or EULA. The EULA may be a few simple paragraphs, or may be several pages long. In most cases, what the user can and cannot do with the software is set forth in painstakingly detailed terms. The EULA usually goes into effect at the moment the software is purchased at a store, or downloaded from the vendor's site. Thus the EULA is considered a "shrinkwrap" or "clickwrap" agreement, respectively. These shrinkwrap/clickwrap EULAs are usually enforceable by the courts, even if you fail to read them. Unless the software at issue is freeware or open-source, it is quite likely that the vendor has expressly prohibited copying, with the possible exception of a user being allowed to make a backup copy. In any case, you should thoroughly read the EULA to clear up any doubts you may have regarding the use of the program.
There is a sort of "middle ground" alternative used by some copyright owners. This is the Creative Commons licensing, that allows the copyright holder to grant some of its rights to the public while retaining others. This type of licensing arrangement provides a means for copyright owners to disseminate information more freely on the Internet, while keeping some protections in place. Works protected under a Creative Commons license will usually have a notice stating this fact.
Myth #6: If a work is really old, I can assume there is no copyright protection for it and can copy or distribute it without legal consequences.
Fact: In the U.S., copyright protection can still apply to works dating back to the 1920s. Many of the Disney cartoon characters were created during this era and are still protected. Many believe this was a major motivation behind the 1998 Copyright Term Extension Act (CTEA) to extend the duration of copyright terms before Mickey Mouse and other Disney characters entered the public domain. The CTEA swept thousands of works that were on the brink of falling into the public domain and extended their copyright terms until at least 2019. Under the current law, a work created and published in 2005 by a corporation would not fall into the public domain until January 1, 2101. There was much criticism of this extension of copyright terms, with many arguing that it violated the Constitution's provision of securing copyright for "limited times." However, the U.S. Supreme Court has recently interpreted the "copyright clause" in Article I, Section 8, as being very broad in scope, rejecting a challenge that the Copyright Term Extension Act went beyond the Constitution's limitation.
Myth #7: If there is no copyright notice on the work, or if it is not registered with the Copyright Office, it is fair game.
Fact: Since the U.S. signed the Berne Convention in 1989, placing a copyright notice on a work is no longer a requirement for receiving protection. Copyright protection begins automatically as soon as the creator "fixes the work in a tangible medium." In other words, when the creator prints it, records it, makes a sculpture, photographs it, stores it in computer memory (volatile or non-volatile), etc. As to works created in the U.S. before 1989, there are many factors to determine if an unmarked work is protected, factors that are beyond the scope of this discussion. The best approach is to assume that the copyright is valid, unless its owner has expressly given permission to copy it. If you wish to use a work, you should always seek permission from its owner.
As noted above, registration is not a requirement for a work to have copyright protection. It should be further noted that, under the Berne Convention, registration is not a prerequisite to enforcement by a non-U.S. citizen or for enforcement of a non-U.S. work. However, registration is required before a U.S. person or U.S. copyright owner can bring an action in Federal Court.
Myth #8 : If I don't charge for making a copy (or if I'm sharing online), I am not infringing.
Fact: This is a common misconception about Fair Use (see the discussion of Fair Use above). The mere fact that no commercial activity is associated with the copying does not necessarily legitimize the copying. The scope of Fair Use is very narrow. For individuals, the allowable copying is generally limited to small portions of a work, or the making of a personal copy (e.g., a "mix" disc) of a CD. Charging money or otherwise receiving some commercial benefit from distributing copies to others is not a required element to prove infringement, though proof of commercial gain can increase the damage awards in infringement cases. Although the law in this area is sparse, it is reasonably likely that you could be liable for infringement for making a copy of software, books or videos, and giving the copy to another person, even if it's for free.
It is also established that you can give or sell your legitimate copy of any copyrighted work (e.g., book, CD, video) to another. This is called the "first sale doctrine," in that the copyright owner controls only the first sale of the copy. After that, consumers are free to sell, trade or give their copies away, protests by Garth Brooks notwithstanding. Used CD and video shops are an example of entities that enjoy the protections under the first sale doctrine. However, the first sale doctrine does not allow you to make a second generation copy of a work, then give or sell the original copy.
However, the first sale doctrine does not necessarily apply to copies of software. This arises due to the fact that the purchaser technically does not "own" the copy (unlike a copy of a book or CD). A decision by the 9th U.S. Court of Appeals (which was denied review by the U.S. Supreme Court) held that so-called "shrinkwrap" and "clickwrap" end-user licenses could usurp the First Sale Doctrine. Software manufacturers can, by means of provisions in their user licensing agreements, prohibit the sale or transfer of software copies. Thus, it becomes an issue of where contract law trumps copyright law. If the user agreement is silent on the issue of transfer, then, of course, the First Sale Doctrine would apply. Some software vendors will choose to allow a user to transfer the original software disc, typically if that user has first uninstalled the program. But the choice of whether to allow transfer of copies is clearly within the discretion of the software vendor, to be embodied in the user agreement. As such, you should always read the terms of the agreement very carefully before selling or giving away software.
Myth #9: Infringement is a civil matter and I can't get hit with criminal sanctions.
Fact: While most infringement cases invoke civil law, some infractions can subject an infringer to criminal penalties. Certain acts of infringement that involve works with a total value of over $2500 can bring criminal action under the No Electronic Theft (NET) Act. Penalties can include hefty fines and/or prison terms, and commercial gain is not prerequisite for a criminal action. Distributing a dozen copies of MS Office could get you in trouble under the NET Act. Unlike an ordinary civil action for file-sharing infringement where the mere offering of copyrighted files online is sufficient, an action under NET requires the prosecution to prove that the distribution had taken place. In other words, the prosecution bears the burden of proof beyond reasonable doubt - as in any other criminal action - to show that a crime had been committed by the defendant. As of yet, NET has not been applied against casual file-sharers. Although many such file-sharers offer content well in excess of the $2500 value, it is nevertheless difficult to prove that file-sharers had actually shared the content. However, the Justice Dept recently served criminal warrants on several individuals who were allegedly involved in high-volume P2P networks, with the online distribution of several terabytes of copyrighted files. The lack of commercial gain didn't prevent the authorities from pursuing those individuals.
Myth #10: I only share a few songs on P2P. The RIAA is not going to mess with me.
Fact: While the recent rounds of RIAA lawsuits have targeted people who share hundreds or thousands of files, technically you only need to share one copyrighted work to be sued. Under Title 17, section 504 of U.S. Copyright law, the copyright owner can collect actual damages, or can opt to collect statutory damages of $750 to $30,000 per work. If the copyright owner can prove that the infringement is willful, the damages can escalate up to $150,000 per work. Keep in mind that $750 per is the mandatory minimum under the law. Will they sue you for sharing a couple songs? Although the odds of being targeted are slim, one woman in Minnesota found out the hard way when a court entered a $220,000 damage award against her for sharing a mere 24 songs on the Internet.
Other means of disseminating copyrighted material are no more immune from infringement actions. There are so-called "tape trees," where users network with one another to exchange copies of sound recordings through the mail. Tape trees have been around since long before the Internet, and there appears to be renewed interest in them as many P2P systems have been shut down. While tape trees may not be a hot-button issue in light of the more pressing P2P phenomenon, that doesn't mean that the recording industry cannot take action. Copyright law is more concerned with the fact that you are infringing, rather than how you go about doing it. It doesn't matter whether you share copyrighted material over a P2P network, via FTP, by trades through the mail, or by handing out copies on a street corner. Unauthorized distribution may be infringement regardless of the method used, and you could be subject to legal action if caught.
The same legal problems can be incurred by users choosing to set up private "darknets" - encrypted file-sharing networks. Again, it doesn't matter what instrumentality is used - infringement is infringement and you could be subject to legal action. And in the case of darknets, the mere fact that users have set up such a secured network in an attempt to avoid detection, can in itself be used as evidence of intent if the users are caught. As discussed above, a showing of willful intent can significantly raise the damage award against an infringer.
Myth #11: If I place a disclaimer on my website or in with my shared files, I will be protected from an infringement suit.
Fact: This urban legend stubbornly refuses to die and I see it mentioned time after time on the Internet. It is incredibly stupid and I will explain why:
A person cannot disclaim in advance their liability for copyright infringement, or other torts. There is a bit of hubbub about these so-called disclaimers, and too many people can get a false sense of security by using them. Worthless tripe. The disclaimers usually state something to the effect of: "As a condition of browsing or downloading files from me, you agree to hold me non-liable for infringement..." Other disclaimers cite a so-called "code 431.322.12 of the Internet Privacy Act" that purportedly shields them from an infringement action. No such law exists. If there was one, everyone would be able to swap copyrighted files and pirated software with impunity.
For one thing, this "disclaimer" is a one-sided (unilateral) contract that the other party has no choice but to agree to, or leave. By using this unilateral contract, the infringer is attempting to take away the copyright owner's right to enforce his copyright against infringement. No court would uphold such a disclaimer, and it would fail as a means of defense if the infringer were sued. It's sort of analogous to a store posting a sign saying "not responsible for accidents." If a customer is injured in the store, and the injury is a result of negligence on the part of the store or its employees - guess what? The store gets sued and the sign does not apply. The store cannot preempt a lawsuit by an injured party simply by putting up a sign.
Second, the "disclaimer" is an attempt for the infringer to receive protection from his unlawful activities. Contracts made under such a premise would automatically be deemed null and void. Again, worthless. No court would even consider it.
The entertainment industry is determined to pursue file sharers, and no "disclaimer" is going to scare them away. In fact, such a disclaimer may even draw some unwanted attention. If you were sued by a copyright owner, and you had used one of those disclaimers, they could use the disclaimer as evidence that (1) you were aware of the wrongfulness of your acts, and (2) you had willful intent to commit infringement, thereby increasing the penalties.
Myth #12: I don't understand why all this copyright law should prevent me from using someone else's material. My First Amendment right to free expression should allow me to use and publish anything I want.
Fact: The First Amendment is not absolute; there are numerous exceptions. Some types of expression are not constitutionally protected, such as defamatory speech, child pornography, and some forms of threatening language. Expression that violates the intellectual property rights of another is also unprotected by the First Amendment. In other words, copyright, trademark, and patent rights trump the First Amendment when infringement is at issue. A First Amendment defense in infringement litigation will fail.
Myth #13: If I want to use another's copyrighted work, all I have to do is change it somewhat and I now have my own work.
Fact: Incorporating the work of another into your own work, in what is known as a "derivative work," requires the express permission of the original owner. A good example of a derivative work is when a film studio incorporates a novel into a motion picture. The studio has obtained permission from the author to use the work, usually by way of a licensing agreement. It doesn't matter if you only "borrow" a tiny amount of the original work, you must still obtain permission from the owner of that work. The adage "imitation is the sincerest form of flattery" is not the rule here. The unflattered copyright owner may become the plaintiff who files a civil complaint against you.
Another variant of this is the use of so-called console emulators, software that emulates certain computer games on other computing platforms. This emulation can create an unauthorized derivative work, even if the emulation is merely embodied within computer memory. Thus, a gamer or game software developer could unwittingly become an infringer. The enforcement of these copyrights is rather spotty, and the case law is sparse, if any exists at all. Some online distributors of unauthorized game emulations (typically in the form of "ROMs") have been shut down under cease-and-desist orders from copyright owners. To avoid legal hassles and provide new markets for older games, some game copyright owners have expressly allowed such emulation. But in the absence that permission, the emulation of an unauthorized copy, even one that merely resides in volatile memory, could be considered an act of infringement. Further complicating the issue is the mistaken belief that if a copyrighted work is no longer produced (so-called "abandonware") that it has fallen into the public domain. While this concept of abandonment is consistent with trademark law, it is not the case with copyrights. (See Myth #16)
Myth #14: If it's in the public domain, I am free to use it.
Fact: Not so fast. While most of the material that has fallen into the public domain is indeed free for the public to use, there are some public domain works that are still protected in other ways. Some public domain art works may be protected by trademark law, though a recent Supreme Court case may limit the extent to which trademark law can be used to restrict works otherwise in the public domain. Other works may be in the public domain in one country, but still under copyright protection in another country. I know this may sound counterintuitive, and "public domain" should really be public. But if you are considering using a public domain work or incorporating it into your work (in a "derivative work"), you should perform some due diligence and determine who, if anyone, still retains rights to it - just to make sure it is free and clear. Keep in mind also, that if a work is in the public domain, you cannot copyright it for yourself.
In another twist, a sound recording that has entered the public domain in one nation can still be protected under a state common law protection. A recent case held that New York common law protection for a sound recording continues to apply, even though the copyright in the country of origin (U.K.) has lapsed. The Berne Convention rule of the shorter term does not apply to sound recordings, thus paving the way for this decision.
Myth #15: If I create a work, I can establish proof of copyright by mailing a copy of it to myself.
Fact: This is a silly idea that is surprisingly pervasive. Sometimes called the "poor man's copyright," the idea is for the author to mail a copy of the work to himself. Upon receipt, the author leaves the envelope unopened to establish proof of an authorship date (by way of the post mark). Doing this proves only one thing: that the author mailed an envelope on a certain date. Mailing a copy of your work to yourself has no effect on the copyright status of the work. Copyright attaches the moment you fix the work in a tangible medium; nothing more is necessary to establish copyright protection. A copy of the work sealed in a self-mailed envelope has no evidentiary value.
Myth #16: If a work is "out of print," I am free to copy it.
Fact: The fact that a work is out of print (abandonware) does not extinguish the owner's copyright. Unlike trademark, which requires a continuous use, copyright is not dependent on the owner's continued exploitation of the work. Copyright protection begins when an original work has been fixed in a tangible medium, and remains in effect for the duration of the copyright term, unless the owner has expressly terminated it in some way. If a copyright owner, such as a publishing house or record company chooses to stop production of copies of a work, it still enjoys an ongoing protection for the entire term of the copyright.
Myth #17: If I use someone else's work, I can avoid infringement liability by crediting the author.
Fact: Posting an attribution does not get you off the hook if you use a copyrighted work without the author's permission. Unless your use of the other's work falls within the very narrow scope of fair use, you need to obtain the author's permission prior to using the work. Ditto for posting the author's copyright mark - this does not take the place of getting the author's permission.
Myth #18: It's OK to sample a small piece of someone's sound recording, as such a small amount is sure to be fair use.
Fact: Unlike the case of musical compositions, there is no "de minimus" exception in the case of sound recordings. Thus, the taking of even a tiny snippet of a recording can be considered infringement. If you want to sample someone else's sound recording, obtain the proper permission (read: a license) first.
Myth #19: If I hire a professional photographer to photograph an event, such as a wedding, I own the copyright to the photos.
Fact: An independent photographer hired to photograph an event is normally considered the "author" and therefore owns the copyright to the photographs taken. This is the case, regardless of whether the photographer is a professional or amateur. So even if you have your buddy shoot your wedding with his cheap digital camera, the buddy nevertheless owns the copyright to the photos taken. If, for example, you post any of those photos on your website without the permission of the photographer, you could become liable for copyright infringement. You might claim copyright to photos taken by the photographer if you have executed a prior agreement stating that the photography is considered a work made for hire. To obtain this status, the work in question must fit into one of the nine categories set forth in the statute, and the parties must agree to this in writing. Realistically, very few professional photographers will agree to relinquish their copyright. They make a good part of their living by selling prints. On the other hand, if the photographer is your employee, and the photography session is within the scope of the photographer's employment, the photos may be considered a work made for hire, and you would own the copyright.
This concept can be applied to other situations, such as hiring someone to commission an artwork, design a website, write a musical score, etc. Absent a valid work for hire agreement or the existence of an employer-employee relationship, the author would own the rights to the work he/she created for you. You would own the physical piece of artwork, but the author owns the copyright to it.
As mentioned above, a work involving independently-hired authors must fall within one of the nine statutory categories to be considered a work made for hire. However, there are often instances where it is difficult to determine if the work in question actually fits within one of the categories. To avoid this uncertainty, it is generally a much safer strategy to forego pursuing the work made for hire status altogether and simply agree to an assignment of copyright (in writing), where the author (assignor) conveys his/her copyright interest to the other party (assignee).
Myth #20: I need to hire an attorney to file a copyright registration.
Fact: Registering a work with the U.S. Copyright Office is an incredibly simple process. Unlike patents, there is no burden of proof and subsequent approval process required for copyright registration. In fact, you need only fill out a brief form, and send in two copies of the work with a small fee to the Copyright Office. While there may be a few attorneys who would be more than happy to file the registration for you (and bill you a fee), I think it would be foolish to waste your money that way when you can easily register it yourself.
Myth #21: After conducting a reasonable search, if I am unable to locate the author of a work, I am free to use it.
Fact: The mere inability to locate the rightful owner of a copyrighted work does not mean that an owner does not exist, nor does it negate that owner's rights. Coming up empty-handed in a search does create a dilemma. However, you still need to get the owner's permission before using the work, unless you are absolutely certain that the work is in the public domain, or that you clearly have a fair use of the work, such as for educational or news commentary purposes. You can search the Library of Congress databases, however, this only covers works that have been registered. Remember that a work is now protected by copyright at the moment it is fixed in a tangible medium. New York attorney Lloyd J. Jassin has published a helpful article, "Locating Copyright Holders," that contains an exhaustive list of publishers and trade organizations you can contact in your due diligence search.
Myth #22: I contacted the copyright owner to request permission but never received a response. It must be OK to use the work.
Fact: Silence does not imply consent. The fact that the owner failed to reply could be due to any number of reasons. But without the express permission of the owner, any use of the work by you is still infringement. In fact, if you choose to use the work anyway, you could be subject to increased penalties, as you may be committing willful infringement of the work. You must either abandon your plans to use the work or make a follow-up effort to obtain permission.
Myth #23: I'm safe in using a work without permission, then removing it if the owner complains.
Fact: This is a risky strategy. Removing the infringing content does not negate the fact that you infringed in the first place. You cannot unring the bell here. While many copyright owners who send out cease-and-desist notices are content when the infringer stops using the work, a copyright owner may pursue further remedies for the past infringement. As I keep emphasizing, be sure to obtain permission before you use the work.
Myth #24: If it's found on the Internet, it's fair game.
Fact: Infringement is still infringement, no matter what instrumentality is used. After years of Internet-related litigation (e.g., peer-to-peer infringement lawsuits) and the accompanying press coverage, one would think that people would stop making this assumption. Yet I still see it posted on discussion boards. The myth is still out there and it is still false. Just because content is freely available online, does not mean it can be freely copied or distributed. Unless the owner has expressly relinquished his rights, those rights are reserved by default.
Myth #25: If I download a copyrighted work and only keep it on my hard drive for a short period of time, I haven't violated copyright.
Fact: There is no de minimus time interval for copyright infringement. There is no such thing as a fair use "try before you buy" period unless the copyright owner has expressly granted it. The moment the unauthorized downloading has taken place and a copy is made on your computer, you have infringed. Your possession of the unauthorized copy, no matter how brief, still constitutes an infringing act. If the copyright holder happens to catch you with unlawful copies of their works on your hard drive, deleting it won't make a lawsuit go away should they decide to take legal action.
DISCLAIMER: The contents of this article are intended for casual informational purposes only. None of the material in this article is intended to constitute the dispensing of legal advice, nor shall it be construed as legal advice, and you should never act or rely upon any material herein as such. If you have a legal question, you should seek the advice of a qualified practitioner.