Copyright myths

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Robert A. Pelak

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Oct 20, 1995, 3:00:00 AM10/20/95
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I got this off the net a little while back. I can't say for certain
that it is true, but it seems reasonable to this non-lawyer. While
this document doesn't answer your questions directly, it gives you the
gist of the law.

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 as much as they
like. This is very probably wrong. First, the whole
purpose of copyright is to provide protection to people
*after* they freely distribute it. For example, George
Lucas still owns Star Wars after broadcasting it on free TV
or giving copies to lots of people. Secondly, that argument
breaks down when one considers what it would mean for you to
post an MPEG of Star Wars to the net (other than some really
annoyed people with v.32bis modem feeds.) All the copying
would still go on, but clearly without permission since you
-- unless you are George Lucas -- didn't have the right to
give permission to copy in the first place.

(*) 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 the 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, news reporting and education *on*
copyrighted works without the permission of the author. In
this case, the "on" is important. You must 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 ruin the commercial value of the
work (which is why reproduction of the entire work is
generally verboten.)

5) If you don't defend your copyright you lose it.

False. Copyright is *never* lost now, 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
the judge or jury believes more.

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 lose, 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.
--
Brad Templeton, publisher, ClariNet Communications Corp.
The net's #1 electronic newspaper (circulation 60,000) -- in...@clarinet.com

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