DRAFT FAQ: 10 myths about copyright explained DRAFT FAQ: 10 myths about copyright explainedOriginal-author: brad@clarinet.com (Brad Templeton)
>>Archive-name: law/Copyright-FAQ/myths
>>Last-change: 29 Nov 1994 by brad@clarinet.com (Brad Templeton)
>>Changes-posted-to: news.misc
>>
>>[This is a draft FAQ, proposed for inclusion in news.announce.newusers. It
>>has not yet been sent to news.answers for approval, so the Archive-name
>>above is just a proposal. After a few rounds of posting this as a draft,
>>it'll be added to news.answers. - netannounce@deshaw.com]
>>
>> 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. After April
>> 1, 1989, everything created in the USA, for example, is
>> copyrighted and protected whether it has a notice or not.
>> The default you must 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 must assume it is.
>>
>> 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 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 the author'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.
>>
>> (*) It's also 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.
>>
>> 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 commentary, parody, news reporting and education *on*
>> copyrighted works without the permission of the author. In
>> this case, the "on" is important. You should be commenting on
>> or reporting about the *work*, not the subject matter of the
>> work. If you could have reported the facts in your own
>> words, but didn't to save typing, it's probably not fair
>> use. If you needed to demonstrate something about the
>> actual work or writing, then it might be fair use.
>>
>> Fair use is almost always a short excerpt and almost always
>> attributed. It should not harm the commercial value of the
>> work (which is why reproduction of the entire work is
>> generally verboten.)
>>
>> Note that most inclusion of text in USENET postings is for
>> commentary and reply, and it doesn't damage the commercial
>> value of the 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 supersedes the copyright
>> on an indidvidual basis in each case.
>>
>> 5) If you don't defend your copyright you lose it.
>>
>> False. Copyright is *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."
>>
>> However, you can trademark an adjective, when applied to 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.
>>
>> 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, I'm innocent until proven guilty.
>>
>> 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. 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.
>>
>> 8) Oh, so copyright violation isn't a crime or anything?
>>
>> Actually, recently in the USA commercial copyright
>> violations involving more than 10 copies and/or value over
>> $2500 was made a felony. So watch out. (At least you get
>> the protections of criminal law.)
>>
>> 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
>> jerk 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.
>>
>> 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 makes his living by publishing
>>copyrighted material in electronic form, and also that while most
>>of these principles are universal in Berne copyright signatory
>>nations, some are derived from Canadian and U.S. law.
>>
>>--
>
Lewis Rose 202-857-6012 (voice)
Arent Fox 202-857-6395 (fax)
1050 Connecticut Avenue, NW lewrose@netcom.com (email)
Washington, DC 20036 Advertising and Marketing Law
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