Wednesday, December 06, 2006

Copyright Law

I was emailed with a clarification about copyright issues based on earlier posts. This person is far more knowledgable than me on the laws of copyright and therefore I am posting their email (with their permission) so that we all can learn a bit more. If you are a lawyer, you can respond with various other points, but I can't answer questions about this, as it is not my material.

1. The California Supreme Court has never held that everything posted on the internet is fair use. Furthermore, the California Supreme Court can only bind California courts, and because copyright is a federal statute, anyone who wanted to get around such a ridiculous decision would simply sue in federal court. If this really happened, I'd like to see a citation.

2. Everything posted on the internet is copyrighted by the author. Now, if the original author posted the material, the author's posting on the internet usually implies a pretty broad license for what other people can do with it: read it, download it to cache, maybe even save copies. But the fact that it's posted on the internet doesn't mean it can be subjected to wholesale redistribution. And in many cases, things are posted to the internet without the imprimatur of the original author. Do you really think that if I retype Harry Potter on my blog, that there's a fair use right for you to then copy what I've written? Of course not.

3. What you posted, from what I gathered, was a hunk of material and a criticism. That is fair use, plain and simple. You're allowed to quote material to ridicule it, or to prove a point, or any number of things. This country is founded on the idea that we can ridicule others' words, and copyright doesn't prevent you from doing that. See 17 U.S.C. 107 (noting that criticism and comment are fair use).

4. You can be sued for copyright infringement if you don't make money off of the infringement.
First, the person can seek an injunction forcing you to take the material off your site. You won't have to pay up, but you'll have to deal with lawyers, and lawyers suck. See 17 U.S.C. 503.
Second, the person can claim that your posting caused them to LOSE money (e.g., they were selling their story for cash on their website, but now nobody will buy it because they're downloading it for free). See 17 USC 504(b) (allowing suit for damages in addition to profits).
Third, the person can claim statutory damages in some instances. Statutory damages for willful infringement can get as high as $150,000 per infringing copy. Ouch! See 17 U.S.C. 504(c).

5. Copyright law does not prohibit you from claiming a story belongs to someone else. For instance, if I send you a link to a story and I say "I wrote it" but actually, it's Harlan Ellison's story, I am just a liar and a cheat. I haven't infringed copyright. Copyright grants certain exclusive rights. Copyright law gives no right of attribution, at least not to authors of written works. See 17 U.S.C. 106 (listing exclusive rights granted under copyright statute); 107 (granting rights of attribution to visual works only).

6. If your post is saved on a server in another country, you are still liable for copyright infringement if you committed the infringing act while in the United States.

Thank you, reader.


Anonymous said...

My wife is an experienced copyright attorney. (Several of her cases are taught in law schools, here and abroad.) She's read the post above and concurs on all the legal points.

Thanks for a truly useful blog, Rejecter. I appreciate your insights and advice.

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Anonymous said...

Hey I said the same thing, just not as fancy...

Now, being a meanspirited sort, I would have titled this particular post with a "So there!" ;o)

Anonymous said...


You're right, you did. Though in the email The Rejecter posted, I did appreciate the specific citations and the structure of the numbered list.

Thanks for the pro bono advice and best wishes with your writing. :)

Anon (12:18)

Anonymous said...

Not entirely related, but does the fact that US copyright doesn't require attribution means that releasing something in the US under Creative Commons (the most common options which require attribution, anyway) doesn't merely reduce the usual copyright limitations, but is actually more limiting in some aspects?