Some common myths about copyright law

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Some common myths about copyright law

Postby ProgRocker » Sun Jan 30, 2005 8:35 pm

[This is an updated and modified version of a piece that I had contributed to filebreech.com last year. ---Prog]

Some common myths and misconceptions about copyright law and file sharing.
There are many misconceptions surrounding copyright law and its effect on file sharing. I hope this clears up some of them.

Myth: If a song is old, there is no copyright protection for it and I can share it without legal consequence.
Fact: In the U.S., copyright protection can still apply to worksdating back to the 1920s. Many of the Disney cartoon characters were created in the late '20s. Many believe this was a major motivation behind Sonny Bono's legislation (which Congress passed) to extend the duration of copyright terms before Mickey Mouse entered the public domain. Under the current law, a work created and published today by a corporation would not fall into the public domain until January 1, 2101.

Myth: If there is no copyright notice on the work, or 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 to having protection. This "notice" requirement has now been eliminated in most nations. Copyright protection begins automatically as soon as the creator "affixes 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.

As to registration of a work in the U.S. Copyright Office, such registration is not a prerequisite for it having copyright protection. Registration is required before a copyright owner can bring an action seeking damages for willful infringement in Federal Court. Rest assured that the major content-holders (i.e., RIAA, MPAA, etc.) have registered most, if not all, of their product, thereby guaranteeing their full ability to utilize the federal court system.

Myth: If I don't charge for making a copy (or if I'm sharing online), I am not infringing.
Fact: Charging money or otherwise receiving some commercial benefit from distributing copies to others is not a required element to prove infringement, though the element of commercial gain can increase the damage awards in infringement cases. You can 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. There is some fair use right under section 1008 to make a copy of recorded music for non-commercial purposes, but no one is certain at this time the extent to which you can do that. How many copies crosses the line? One? Ten? A thousand? Is fair use of recorded music limited to making copies for yourself, or can you give a copy to a friend? Until the legal issue of file sharing is settled in the courts, or legislation is passed to clarify the issue, it's a guess as to the legality of file sharing and other means of distributing copies. Interestingly, there has not yet been a litigated case involving someone making a free copy and giving it to another. People have been copying music and video since the advent of recording machines.

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" such that the copyright owner controls only the first sale of the copy. After that, consumers are free to sell or give them away. 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 someone to make a second generation copy of a work, then give or sell the original copy.

Myth: Hey, at least I can't get hit with criminal sanctions for infringement.
Fact: While most infringement cases invoke civil law, certain infractions can subject an infringer to criminal penalties. Infringement for commercial gain that involves works valued at over $2500 can bring criminal action under the No Electronic Theft (NET) Act. Penalties can include hefty fines and/or prison terms. Selling a dozen copies of MS Office could get you in trouble under the NET Act. This law is directed toward commercial pirates, and would generally not apply to file-sharers who are not receiving commercial benefit from their activity. However, the Justice Dept recently served criminal warrants on several individuals who were allegedly involved in a high-volume P2P network, with several terabytes of files allegedly being distributed. There appears to be no element of commercial gain among these users, but the sheer volume of files drew the attention of authorities. What is the threshold for raising the stakes to the criminal level? No one is sure right now.

Myth: 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? Not likely, as they have bigger fish to fry.

Myth: I use _______ as my P2P program, and not Kazaa. The RIAA can't catch me.
Fact: This is more a technical than a legal question. While many programs such as WinMX are currently under the RIAA's radar, it should not be assumed that any P2P program is infallible. The recent actions against BitTorrent trackers underscores this vulnerability. You as a P2P user must decide if the risks are worth it. If sharing files and taking the legal risks associated with it (albeit slim) are not within your comfort zone, then by all means do not do it. But if you choose to not share files, do not expect others to share with you. They are taking legal risks too. You must make the decision whether or not to use a P2P network. No one here can make it for you.

Myth: Instead of sharing via P2P, I'm planning to start a good, old-fashioned "tape tree." The RIAA won't bother coming after me.
Fact: 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. Tape trees, where users meet online to exchange copies of sound recordings through the mail, may not be a hot-button issue with the RIAA in light of the more pressing P2P issue, but that doesn't mean that they cannot take action.

Myth: If I place a disclaimer online, I will be protected from an infringement suit.
Fact: 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 fluff. 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 some "law" or "Act of Congress" giving them protection. No such law or Act exists in the U.S.

First of all, 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 sharer is attempting to take away the copyright owner's right to sue for infringement. No court would uphold such a disclaimer, and it would fail as a means of defense if the sharer 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 sharer to receive protection from his unlawful activities. Contracts made under such a premise are automatically deemed null and void. Again, worthless. No court would even consider it.

The RIAA 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 the RIAA, and you had one of those disclaimers, the RIAA 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.


I might add some more examples to this as I think of them. The above examples are not absolute and can be subject to change, due to our ever-changing legal system. Differences in interpretation of the law from one jurisdiction to the next also makes this a bit blurry. This information is not to be used as legal advice, and should not be relied upon as such. If you face any legal action or threat thereof, you should seek qualified legal counsel immediately. Hopefully, this article will give a general picture of some common misconceptions regarding copyright law. I hope it is helpful.

Cheers.
"Remember, on the Internet, your ISP knows you're a dog, and your adversary is only a subpoena away from compromising your constitutionally protected right to bark anonymously." Fred von Lohmann, Senior Staff Attorney, Electronic Frontier Foundation.
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Postby Rat » Mon Jan 31, 2005 8:15 am

Thank you Prog. Nice to see you here. :)
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Postby me here » Mon Jan 31, 2005 2:58 pm

Excellant!!! work I found these very interesting.. ty
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Postby ProgRocker » Mon Jan 31, 2005 4:29 pm

Thanks for the support, Rat & me here. It's nice to see that these articles are useful, or at least interesting.

Cheers.
"Remember, on the Internet, your ISP knows you're a dog, and your adversary is only a subpoena away from compromising your constitutionally protected right to bark anonymously." Fred von Lohmann, Senior Staff Attorney, Electronic Frontier Foundation.
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Postby moongirl » Sat Feb 12, 2005 3:53 pm

Prog, I came back to re-read this, thankyou.
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Postby Red XIII » Sun Feb 13, 2005 8:41 am

The copyright law for a song is your age + either 40, 60, or 80 years after your death...

its sad :roll:
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Postby ProgRocker » Sun Feb 13, 2005 5:33 pm

Actually it's based on an author's life and some other factors. And it depends on the country. In many European nations, copyright extends throughout the life of the author, plus 50 years. That was the case in the U.S. until about 7 years ago when Sen. Sonny Bono helped enact an extension. Mickey Mouse was on the verge of falling irretrievably into the public domain, and we just couldn't let THAT happen. So now in the U.S., it's life + 70 years. If the work is a "work for hire" (rights are assigned to someone else - usually a corporation), the term extends for 95 years from publication or 120 years from creation, whichever comes first. Since most works for hire are promptly published, the 95 year term is generally the case.

For example, if Red XIII writes a song today, he automatically has copyright protection until 70 years after his death. So if by unfortunate fate, Red gets hit by a bus in 2010, his heirs own the rights to his musical composition through Dec. 31, 2080. If he had assigned the rights to his song to a publishing company as a work-for-hire today, the company has copyright protection through Dec. 31, 2100 (the law allows rounding up through end of the final year).

Once, when asked how long a copyright should last, Bono replied, "forever minus one day."

Cheers.
"Remember, on the Internet, your ISP knows you're a dog, and your adversary is only a subpoena away from compromising your constitutionally protected right to bark anonymously." Fred von Lohmann, Senior Staff Attorney, Electronic Frontier Foundation.
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Postby moongirl » Tue Feb 15, 2005 2:30 am

Something I have just read Prog;
Under tough new American laws to be introduced by 2007 under the Free Trade Agreement.
Anyone found guilty of unlocking an encrypted code
that prevents multiple copies of a CD being made, faces two years in jail.

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.


Prog is that jail as well as fines?
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Postby ProgRocker » Tue Feb 15, 2005 5:06 am

Actually, the statute you cited (17 U.S.C., sec. 504) is currently in force. The fines of up to $30,000 per work (or $150,000 if willful) are civil damages that can be awarded to a prevailing plaintiff (e.g., RIAA). There are also criminal penalties for certain cases of willful infringement for commercial gain. This is the so-called "No Electronic Theft" (NET) Act, in section 506 of the copyright code. What is interesting about the language of section 506 is that it states, "evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement." That means if someone is alleged to have criminally infringed copyrighted material, the prosecution must show willfulness by means of some other evidence ("extrinsic" evidence). Mere proof of copying and distribution alone would not be sufficient. This places an additional burden on the prosecution.

The law prohibiting the unlocking of encrypted DRM schemes (anticircumvention) is in another part of the copyright code (section 1201), and yes, the penalties can be criminal if the person violates the anticircumvention law willfully and for commercial advantage or financial gain (section 1204). The penalties can be fines up to $500,000 and/or 5 years imprisonment for the first offense. So, yes, possible jail time and fines, although this statute has rarely been invoked. This is used for people who crack CDs and sell copies of them for profit. True "pirates," as opposed to ordinary file-sharers. Without the willfulness and commercial/financial elements, the defendant can only be subject to civil penalties (section 1203).

Keep in mind that these penalties set forth in the statutes are maximums. In a trial, the jury can choose to impose lesser penalties. Furthermore, a judge has the power to reduce a jury award (called "remittitur"). Still, fines of thousands of dollars and jail time is nothing to take lightly.

Cheers.
"Remember, on the Internet, your ISP knows you're a dog, and your adversary is only a subpoena away from compromising your constitutionally protected right to bark anonymously." Fred von Lohmann, Senior Staff Attorney, Electronic Frontier Foundation.
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Postby moongirl » Tue Feb 15, 2005 6:12 am

Thanks Prog, it would be a good case for one of the "Law And Order" type shows to run with (if it hasn't already been done!!)
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Postby ProgRocker » Tue Feb 15, 2005 3:28 pm

Moongirl said:
it would be a good case for one of the "Law And Order" type shows to run with
:lol:

While this stuff might make interesting legal reading, it would make for boring television. Now if you added some murder and mayhem into the plot... Accused file-sharer strangles RIAA exec... Of course, I'm just joking. We would never want to hurt our friends in The Music Cartel.:wink:

Cheers.
"Remember, on the Internet, your ISP knows you're a dog, and your adversary is only a subpoena away from compromising your constitutionally protected right to bark anonymously." Fred von Lohmann, Senior Staff Attorney, Electronic Frontier Foundation.
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Postby moongirl » Wed Feb 16, 2005 1:59 pm

:wink:
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Postby StorbinC » Wed Feb 16, 2005 7:29 pm

ProgRocker wrote: ... Accused file-sharer strangles RIAA exec... Of course, I'm just joking. We would never want to hurt our friends in The Music Cartel.


speak for yourself, i want to kill all the RIAA gansters.
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Postby quicksilver » Mon Mar 21, 2005 9:50 am

Heres a little info on them that is plain and easy to read without losing the thread .

http://www.answers.com/topic/recording- ... of-america

Nice poster :D
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