Copyright law, especially on the web, is not well understood. What seems practical and reasonable from a common sense point of view...isn't always legal. YouTube and MySpace have been in the news a lot, and I have written several stories about them that touched on copyright issues. Based on the feedback and comments I thought I should start a discussion on copyright laws. I am not a lawyer, nor an expert in copyright law, but I have a few scars from my Napster days.
Every photo, video, audio recording, or writing is copyrighted. Even this blog post is copyrighted...automatically. It doesn't matter if it is done by an amateur or professional...it is copyrighted. It also doesn't matter if their is no copyright symbol or notice attached to the work. All creative works, no matter how lame, are implicitly copyrighted. This change happened in 1989 with the Berne copyright convention.
The question is, does the copyright owner care to enforce their copyright? This usually comes down to money. Most times, only professionals who sell their work for money care about enforcing copyrights. However, even professionals sometimes encourage free distribution of their work to gain a wider audience. The key point is the "owner" gets to decide how their content gets distributed. In its simplest form copyrights allow the "creator" of the work to control who can make copies and what "terms" (license, price, duration) are applied. People who care about money and control typically put a copyright symbol on their work and/or a copyright notice indicating who to contact.
What about "fair use"? The definition of "fair use" with regard to music recordings was one of the central issues in the Napster case. Needless to say, there are differing legal opinions on what constitutes fair use, and I will not get into that here. Lets focus on the most frequent and practical fair uses. Students, writers, comedians, critics, and pundits can reference copyrighted works and include excerpts and quotes to make a point, without asking permission. On the web it is common practice, but not legally necessary, to include a hyperlink to the source for attribution.
Hey, I'm just helping to promote their work. I'm not making any money off this. Sorry, it doesn't matter what your intentions are, or if you try to make money at it. In fact, it is the other way around. It matters what the copyright owners intentions are, and if they want to make money at it. Most blog writers and non-commercial web site owners don't care about making money from content that quite frankly doesn't have much commercial value anyway. But, there are people who do care, and they might come after you. Most times they will just ask you to remove the copyrighted material from your site, or ask you for proper attribution. Lawyers and lawsuits are way too expensive for most situations. In the case of recorded music, movies, videos and professional photos assume that the owners do care, and don't use their content without permission.
Everyone is doing it. I just copied it from another site. Well, here is where life is not fair. It all depends on who you are and how deep your pockets are. Copyright holders and their lawyers will probably not waste their time and money chasing after small time web sites and blogs. But, the exact same content found on a big commercial site, or used by a high profile person or rich person, will draw the attention of the lawyers.
The RIAA and MPAA will file lawsuits to "set an example" or gain publicity that will scare everyone else into compliance. This is the whole concept behind IRS tax audits too. A few high profile cases that make the news will keep most people in compliance. The RIAA went after only the biggest distributors of music on Napster. They would troll around Napster looking for users with huge collections to share. They would sue these individuals thinking that would stop a big part of infringement and scare the others.
What are "take down" notices? Big web site owners and search engines are sometimes served with official take down notices from copyright holders. This means the site owners must use "commercially reasonable efforts" to take down this specific content anywhere it exists. So, in the case of YouTube or MySpace they would need to scan user accounts to see if this particular "file" is present and take it down whenever it is found. This is probably what happened with CoolzOr and Nate Weinberg. It happened at Napster all the time. Then users got really creative with file names to disguise the content. Hmmmm...that made it very difficult.
YouTube and MySpace can handle these issues without too much problem. They just need to be clear and consistent with their users. If they get this right they will be very successful.
BTW, you can copy this post, in full or in part, without my permission. Just give me attribution and a link and I am a happy guy :-)
Subscribe - To get an automatic feed of all future posts subscribe here, or to receive them via email go here and enter your email address in the box in the right column.
Don -
Like you, I also work often on copyright issues on the Internet and I'm not an attorney either. (Thank God)
I thought this was a great overview of the legal and practical aspects of copyright but what would be great is a list of simple do's, don't's and gray areas. It might be impossible to ask but there are lots of "unlicensed and unapproved" copyright violations that holders don't care about and in some cases even encourage. On the other hand, there are also many "fair use" examples that are mistakenly assumed by copyright holders to be violations of their rights.
My experience is that most people
1) generally try to do the right thing
2) are empowered by these new tools of expression
3) are not copyright attorneys
Posted by: Jeff Schrock | May 11, 2006 at 07:40 PM