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Feature - About the Net
Law and the Net: Dangerous Ground


By Dudette
(September 27, 1998)

When the Copyright Act of 1976 became law, the Internet as it is today was imaginable only by science fiction writers. Many people therefore assume that, because many of the publishing technologies today had not yet been invented, the copyright laws written at the time do not apply to this new medium.

Not true! Intellectual property is as real in cyberspace as it is in the "real world." Although new legislation is being created to deal with new issues, courts are ruling that existing laws apply to electronic media much the way they do to their traditional counterparts.

You -- Global Publisher

What has changed is that the freedom of distribution provided by the Internet has turned everyone into a publisher with a world-wide reach. Before the Net, your content needed a publisher -- with levels of editing and copyright-savvy review -- before it reached a large audience. Now, you can publish whatever you want with nothing more than the click of a button, and there it is for the whole world to see.

But just because you can publish something doesn't mean that you may. Before you shout "freedom of speech," remember that the foundation of copyright also is framed in the Constitution.

Trouble on the Edge.

As long as you understand what copyright is about, and abide by both the law and the spirit of the law, you are likely to be OK. But if you decide that your interpretation of it allows you to publish or distribute anything created by someone else without their specific permission, you are asking for trouble.

What kind of trouble? Pushing the edge of the law may very well end you up in court. Even if you are correct in your interpretation, it can cost you years and tens of thousands of dollars to have the court rule in your favor. If you are wrong, it can cost you even more -- especially if the court rules that your infringement was willful. Remember that it is the court, not you, who will decide.

On the Edge: Sampling

Sampling is a "new digital method" for incorporating existing sounds and excerpts from recordings into musical compositions. A number of musicians have confused their ability to sample others' works with a right to do so. "Not so," says the court, and virtually every sampling case that has gone to court has ended with a judgement for the original creator.

The rap group Tag Team and its publisher, Bellmark Records, tried to stretch the law by using music publishing's "compulsory license" rule to excuse their default on a sampling license for use of a sample of "I'm Ready" in the song "Whomp! There It Is!" Bad move. Not only did the judge rule them to be infringing in a summary judgement (that is, without full trial), but extended the way damages were calculated to hit the defendants with a judgement of over $700,000!

Ruling Expands Sampling Case Law

On the Edge: Framing and Linking

Frames in a webpage allow multiple pages to be shown together, and also provide the ability to follow hotlinks in a framed page with the results also displayed in the frame.

The legal issue of "framing" arises when the page that you're showing in the frame isn't yours. "Ah," you might argue, "I'm not copying -- I'm displaying their webpage from their site within my frame." Do that, and you're likely to find yourself arguing with some very big guns. An Arizona service, TotalNEWS, tried displaying a number of newspapers within their framed site in a bid to become the "definitive" news service. After a lawsuit by six major papers including the LA Times, TotalNEWS removed the framing and settled for an undisclosed amount.

The argument in the case would have been that TotalNEWS misappropriated the news organizations assets for their own commercial benefit. This also was the basis of the suit filed last fall by Times-Mirror against WebTV over the issue of Surf Spot interstitial advertising. The suit was withdrawn when WebTV cancelled the Surf Spots; it remains to be seen whether or not any organization takes issue with WebTV's latest version of the interstitial ads which do not show the source page underneath.

Some organizations do not take kindly to your posting links to their content beneath their main "entry" page. When a deal fell through that would have had Microsoft posting links to TicketMaster's order pages in its Sidewalk service, Microsoft posted them anyway and TicketMaster sued. (The suit was settled out of court.) You would have thought that TicketMaster would have loved the traffic, but the company was in the middle of a deal with CitySearch and Microsoft's use of the links had the potential for interfering.

"Linking in" pictures, audio, and other content into a website has even less of a valid "it's OK" argument. People who do this often claim "I'm not copying it to my directory, so therefore it's not infringement." However, the copyright owner has the sole right to determine when, where and how the content will be published. Not only are linkers infringing on that right, but they also are stealing the bandwidth of the site where the original is located -- potentially, a theft of services action.

News Sites Go After Framers

On the Edge: Incorporation into New Works

One of the common fallacies on the Net is that, if you use a copyrighted work in the creation of a new work of your own, that you own the copyright to the new work. Amateur "Net lawyers" frequently cling to the "transformative use" clause in the Fair Use doctrine or argue that only the unmodified original is copyrighted.

Fallacious indeed! The right to create "derivative works" belongs to the copyright owner alone, while the "transformative use" is only one factor in judging fair use. When collage creator Robert Rauschenberg incorporated a "found art" of an old Time Magazine cover in one of his works, the photographer whose picture was on the cover sued and won for copyright infringement.

Rauschenberg: Vulture of Culture

On the Edge: Parody

Parody is considered one of the "fair uses" defined in the Copyright Act, but just calling something a parody or satire is not enough to keep you out of court. By its very nature, parody evokes the impression a well-known work for the purpose of criticism or satire; if the work is not so well-known that it brings to mind the original, the defense of "parody" is likely to bring a ruling of "infringement."

Owners of well-known works are not likely to appreciate the parody, and also are likely to have the will and the resources to take you to court. Even if you prevail, it can take years. This year, the courts finally ruled in favor of Paramount Pictures' parody of Annie Leibovitz' photo of the pregnant Demi Moore from a Vanity Fair cover in their advertising for "Naked Gun: The Final Insult." When the appeal was ruled in February, 1998, it had been ongoing for almost four years and legal expenses had run into seven figures!

Court of Appeals Ruling: Leibovitz v Paramount Pictures

Penalties Can Be More Than Money!

Copyright infringement generally is a civil matter. But when you cross the line into piracy, you can be looking a jail time! For example, distributing pirated copies of one or more recordings with a value of over $1,000 is a felony and can mean Federal Prison. Now you know why there is an FBI warning at the beginning of the videos you rent.

The value, by the way, doesn't apply to how much you charged for it, but to the value that the owner of the copyright lost in sales that he might have made. Even if you give it away for free -- and especially if there is anything of value returned -- any copying in volume may put you in danger of jail time, especially if you promote your copies on the Web or in newsgroups.

Remember that when you buy a video, a CD, or a karaoke disc, you are not buying the rights to use the programming it contains in any way you want -- you are only buying a specific license to use it in a specific way. You cannot use the music video you bought, for example, to show at a bar or club: that's a performance right that's licensed separately. Karaoke disks that are licensed for clubs include the right of public performance, while those licensed for home usually do not. In either case, you cannot distribute tapes of yourself singing over the music on those disks without acquiring a license from the songwriter, the music publisher, and the performer of the underlying music.

Trade A Tape: Go To Jail

Staying Away From the Edge.

The way to stay the safest is to ask permission to use any content that you yourself did not create or that you have not licensed for the use that you are making of it. There are many, many sources of content that will allow you to use their material if you ask, and often will give it freely or will ask for nothing more than a link back.

Even with your best efforts, someday you may receive a "cease and desist" letter for something that you thought you were free to use -- perhaps an image or audio that came from a "free" Web archive but that had been posted there without the owner's permission. Say "I'm sorry, I didn't know," and take it down. If you have demonstrated a practice of paying attention to copyrights, it's highly unlikely that anything else will happen.

But if you push the edge -- if you rely on the statements of wishful thinkers who claim "if it's on the Net, it's free for the taking," or try to come up with your own novel legal interpretations to excuse your use of other people's property, you could find yourself in trouble. And the more you do it, the more trouble you could be in.

Most of all, don't fall into the trap of thinking "hey, I'm small potatoes. Everybody does it, so nothing will happen to me!" There is more and more technology being applied every day to pursuing copyright violators on the Net, including intelligent agents that walk through pages looking for infringing content. You're not "small potatoes" -- you're a global publisher. Stay safe -- do the right thing.

Educate Yourself!

The Copyright Website. An entertaining, easy-to-understand over view of some of the basic issues in copyright with some juicy examples of famous infringers.

10 Big Myths About Copyright Explained. An oft-quoted FAQ on Copyright as it applies to the Net.

Atlantic Unbound Copyright Forum. A lively presentation and discussion of some of the issues in copyright in the Digital Age.

'Free'dom of Music in CyberSpace. Elissa D. Hecker's excellent explanation of why music copyrights are as important in cyberspace as they are in the "real" world. New York Law Journal.

Copyright Law Resources.


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