Farworks Doesn't Dig Digg Link to Far Side Video -- Chilling Effects Clearinghouse

Answer: The purpose of copyright law is to encourage creative work by granting a temporary monopoly in an author's original creations. This monopoly takes the form of six rights in areas where the author retains exclusive control. These rights are:

(1) the right of reproduction (i.e., copying),
(2) the right to create derivative works,
(3) the right to distribution,
(4) the right to performance,
(5) the right to display, and
(6) the digital transmission performance right.

The law of copyright protects the first two rights in both private and public contexts, whereas an author can only restrict the last four rights in the public sphere. Claims of infringement must show that the defendant exercised one of these rights. For example, if I create unauthorized videotape copies of Star Trek II: The Wrath of Khan and distribute them to strangers on the street, then I have infringed both the copyright holder's rights of reproduction and distribution. If I merely re-enact The Wrath of Khan for my family in my home, then I have not infringed on the copyright. Names, ideas and facts are not protected by copyright.

Trademark law, in contrast, is designed to protect consumers from confusion as to the source of goods (as well as to protect the trademark owner's market). To this end, the law gives the owner of a registered trademark the right to use the mark in commerce without confusion. If someone introduces a trademark into the market that is likely to cause confusion, then the newer mark infringes on the older one. The laws of trademark infringement and dilution protect against this likelihood of confusion. Trademark protects names, images and short phrases.

Infringement protects against confusion about the origin of goods. The plaintiff in an infringement suit must show that defendant's use of the mark is likely to cause such a confusion. For instance, if I were an unscrupulous manufacturer, I might attempt to capitalize on the fame of Star Trek by creating a line of 'Spock Activewear.' If consumers could reasonably believe that my activewear was produced or endorsed by the owners of the Spock trademark, then I would be liable for infringement.

The law of trademark dilution protects against confusion concerning the character of a registered trademark. Suppose I created a semi-automatic assault rifle and marketed it as 'The Lt. Uhura 5000.' Even if consumers could not reasonably believe that the Star Trek trademark holders produced this firearm, the trademark holders could claim that my use of their mark harmed the family-oriented character of their mark. I would be liable for dilution.

Answer: In order for material to be copyrightable, it must be original and must be in a fixed medium.

Only material that originated with the author can support a copyright. Items from the public domain which appear in a work, as well as work borrowed from others, cannot be the subject of an infringement claim. Also, certain stock material might not be copyrightable, such as footage that indicates a location like the standard shots of San Francisco in Star Trek IV: The Voyage Home. Also exempted are stock characters like the noisy punk rocker who gets the Vulcan death grip in Star Trek IV.

The requirement that works be in a fixed medium leaves out certain forms of expression, most notably choreography and oral performances such as speeches. For instance, if I perform a Klingon death wail in a local park, my performance is not copyrightable. However, if I film the performance, then the film is copyrightable.

Single words and short phrases are generally not protected by copyright, even when the name has been "coined" or newly-created by the mark owner. Logos that include original design elements can be protected under copyright or under trademark. Otherwise, words, phrases and titles may be protected only by trademark, however.

Answer: Unless you typed the URL directly into your web browser, you probably followed a hyperlink to get to this page. A hyperlink is a location reference that the web browser interprets, often by underlining the text in blue, to "link" to another information resource when clicked. In HTML (HyperText Markup Language, the code used to write web pages), a hyperlink looks like this: link

Answer: "Deep linking" refers to the creation of hyperlinks to a page other than a website's homepage. For example, instead of pointing a link at http://www.chillingeffects.org, this site's "homepage," another site might link directly to the linking FAQ at http://www.chillingeffects.org/linking/faq .

Some website owners complain that deep links "steal" traffic to their homepages or disrupt the intended flow of their websites. In particular, Ticketmaster has argued that other sites should not be permitted to send browsers directly to Ticketmaster event listings. Ticketmaster settled its claim against Microsoft and lost a suit against Tickets.com over deep linking.

From Ticketmaster v. Tickets.com opinion:
Further, hyperlinking does not itself involve a violation of the Copyright Act (whatever it may do for other claims) since no copying is involved. The customer is automatically transferred to the particular genuine web page of the original author. There is no deception in what is happening. This is analogous to using a library's card index to get reference to particular items, albeit faster and more efficiently.

So far, courts have found that deep links to web pages were neither a copyright infringement nor a trespass.

Answer: Subject to certain defenses, it is copyright infringement for someone other than the author to do the following without the author's permission:

1. reproduce (copy) the work;

2. create a new work derived from the original work (for example, by translating the work into a new language, by copying and distorting the image, or by transferring the work into a new medium of expression);

3. sell or give away the work, or a copy of the work, for the first time (but once the author has done so, the right to sell or give away the item is transferred to the new owner. This is known as the "first sale" doctrine: once a copyright owner has sold or given away the work or a copy of it, the recipient or purchaser may do as she pleases with what she posesses.) 17 U.S.C. ?109(a);

4. perform or display the work in public without permission from the copyright owner. 17 U.S.C. ?106. It is also copyright infringement to violate the "moral rights" of an author as defined by 17 U.S.C. 106A. Moral rights are discussed here.

Answer: In the US, trademark rights come from actual use of the mark to label one's services or products or they come from filing an application with the Patent and Trademark Office (PTO) that states an intention to use the mark in future commerce. In most foreign countries, trademarks are valid only upon registration.

There are two trademark rights: the right to use (or authorize use) and the right to register.

The person who establishes priority rights in a mark gains the exclusive right to use it to label or identify their goods or services, and to authorize others to do so. According to the Lanham Act, determining who has priority rights in a mark involves establishing who was the first to use it to identify his/her goods.

The PTO determines who has the right to register the mark. Someone who registers a trademark with the intent to use it gains "constructive use" when he/she begins using it, which entitles him/her to nationwide priority in the mark. However, if two users claim ownership of the same mark (or similar marks) at the same time, and neither has registered it, a court must decide who has the right to the mark. The court can issue an injunction (a ruling that requires other people to stop using the mark) or award damages if people other than the owner use the trademark (infringement).

Trademark owners do not acquire the exclusive ownership of words. They only obtain the right to use the mark in commerce and to prevent competitors in the same line of goods or services from using a confusingly similar mark. The same word can therefore be trademarked by different producers to label different kinds of goods. Examples are Delta Airlines and Delta Faucets.

Owners of famous marks have broader rights to use their marks than do owners of less-well-known marks. They can prevent uses of their marks by others on goods that do not even compete with the famous product.

Answer: In general, if someone is making a website publicly available, others may freely link to it. That open linking is what makes the web a "web."

Answer: In 1998, Congress passed the On-Line Copyright Infringement Liability Limitation Act (OCILLA) in an effort to protect service providers on the Internet from liability for the activities of its users. Codified as section 512 of the Digital Millennium Copyright Act (DMCA), this new law exempts on-line service providers that meet the criteria set forth in the safe harbor provisions from claims of copyright infringement made against them that result from the conduct of their customers. These safe harbor provisions are designed to shelter service providers from the infringing activities of their customers. If a service provider qualifies for the safe harbor exemption, only the individual infringing customer are liable for monetary damages; the service provider's network through which they engaged in the alleged activities is not liable.

Answer: The On-Line Copyright Infringement Liability Limitation Act (OCILLA), included as section 512 of the Digital Millennium Copyright Act (DMCA), was passed in 1998. It provides Internet Service Providers (ISPs), such as providers of DSL and dial-up Internet access, as well as other Online Service Providers (OSPs), such as search engines, with a ?safe harbor,? a way to avoid liability for the wrongdoing of their customers. If an ISP meets the criteria set out in section 512, it cannot be held liable for copyright infringement even if its users engage in that activity. Following is a general summary of each of the subsections of section 512.

Subsection 512(a) provides a safe harbor for ISPs when their systems or networks transmit, rout, provide connections for, or store infringing material en route to its destination. This subsection only refers to automatic, temporary transmissions over which the ISP exercises no control, such as for file sharing. (See What are the criteria a service provider must sati...? for more information.)

Subsection 512(b) provides a safe harbor for ISPs when they cache infringing material on their systems or networks. This subsection only refers to automatic storage such as for efficiency purposes to speed Internet access, etc. The ISP must stop caching the material if it receives notice that the material infringes a copyright.

Subsection 512(c) provides a safe harbor for ISPs when they, at the direction of a user, store infringing material on their systems or networks. This subsection only refers to automatic storage such as for websites, blogs, newsgroups, etc. The ISP must stop storing the material if it receives notice that the material infringes a copyright, or if it has reason to believe so. The ISP must also designate an agent to handle claims of copyright infringement and make the contact information of that person available to the public. Paragraph (3) of subsection 512(c) sets out the requirements for sending a ?notice and takedown? request. The copyright owner must, in good faith, identify the copyrighted material, the infringing material, and the location of the infringing material.

Subsection 512(d) provides a safe harbor for OSPs for linking to infringing material, such as for search engines, websites with links, etc. The OSP must stop storing the material if it receives notice that the material infringes a copyright, or if it has reason to believe so.

Subsection 512(e) provides a special safe harbor for nonprofit educational institutions, such as public schools and universities. While entities are generally liable for the conduct of their employees, 512(e) protects nonprofit educational institutions from liability for the copyright infringement of their teachers and researchers. Nonprofit educational institutions must inform all of their users about copyright law and promote compliance with it. (See How are the safe harbor provisions applied to educ...? for more information.)

Subsection 512(f) attempts to limit false and fraudulent claims of copyright infringement under the DMCA. Anyone who fraudulently claims copyright infringement or fraudulently claims that non-infringing material was wrongly removed, or that access to it was wrongfully disabled, is liable to anyone who suffers any damages because of that misrepresentation, including court costs and attorney?s fees.

Subsection 512(g) provides a safe harbor for ISPs and OSPs when they remove or disable access to material, but only if they have a good faith belief that it infringes copyright, even if it turns out not to. The ISP or OSP must notify the alleged infringer and copyright owner. Paragraph (3) of subsection 512(g) sets out the requirements for sending a ?counter-notice and put-back? request. The alleged infringer must, in good faith, identify the allegedly infringing material and its location.

Subsection 512(h) authorizes copyright owners to subpoena the identities of copyright infringers. If a copyright owner requests such a subpoena from a court, the court must issue it and the ISP must comply with it. (See Can a copyright owner find out the identity of the...? for more information.)

Subsection 512(i) requires ISPs and OSPs to terminate the accounts of repeat copyright infringers and to inform all users of this policy. (See What happens if an individual is found to repeated...? for more information.)

Subsection 512(j) states that, while ISPs and OSPs can usually only be held liable for money damages if they fail to meet the safe harbor requirements of section 512, sometimes courts can issue injunctions requiring them to terminate the account of a copyright infringer or to deny access to infringing material. In considering whether to grant an injunction, courts must weigh the burden it would place on the ISP/OSP, the degree of harm the copyright owner would suffer without it, and the feasibility of narrowly tailoring the injunction so as not to affect non-infringing material. ISPs/OSPs are generally entitled to notice and an opportunity to respond before courts may issue an injunction on them.

Section 512(k) defines an Internet Service Provider (ISP) as an entity that (1) automatically transmits, routes or provides connections for digital online communications of material of a user?s choosing, between or among points specified by the user; or (2) provides online services or network access. The subsection also defines monetary damages, from which ISPs and OSPs are always exempt if they meet the safe harbor provisions, to include damages, court costs, attorney?s fees, and any other form of monetary payment.

Section 512(l) states that the failure of an ISP or OSP to take advantage of section 512?s safe harbor provisions may not adversely affect any other defenses it may claim in a suit for copyright infringement.

Section 512(m) states that the safe harbor provisions of section 512 apply to ISPs and OSPs even if they do not monitor or otherwise actively seek out infringing material; and even if they gain access to, remove, or disable access to material protected by other statutes, such as privacy laws.

Section 512(n) tells courts how to interpret the statute. It states that subsections (a)-(d) of section 512 describe separate and distinct functions of ISPs and that an ISP only qualifies for the safe harbor of each subsection whose requirements it meets.

Answer: It probably isn't, however, a few courts have now held that a hyperlink violates the law if it points to illegal material with the purpose of disseminating that illegal material:

Like anything else on a website, a hyperlink could also be problematic if it misrepresents something about the website. For example, if the link and surrounding text falsely stated that a website is affiliated with another site or sponsored by the linked company, it might be false advertising or defamation.

Finally, post-Grokster, a hyperlink might be argued to induce copyright infringement, if the link were made knowing that the linked-to material was infringing and with the intent of inducing people to follow the link and infringe copyright.

Answer: Someone who posts hyperlinks to online material may benefit from the DMCA safe harbor in section 512(d), "information location tools." If you linked to materials without knowing they were infringing, but then receive a notice of claimed infringement, you can claim the statutory immunity if you remove the link expeditiously (see also What does a service provider have to do in order t...?).

Answer: No. An ISP may choose not to follow the DMCA takedown process, and do without the safe harbor. If it would not be liable under pre-DMCA copyright law (for example, because it is not contributorily or vicariously liable, or because there is no underlying copyright infringement), it can still raise those same defenses if it is sued.

Answer: The concept of third party liability refers, as the name implies, to situations in which responsibility for harm can be placed on a party in addition to the one that actually caused the injury. The most common example comes from tort law: a customer in a grocery store drops a bottle of wine and another customer slips on the puddle and injures himself; he may bring an action for negligence against the customer who dropped the bottle and against the owner of the grocery store. Under the common law doctrine of third-party liability, a plaintiff must show not only that an injury actually occurred, but also (in most cases) that some sort of connection existed between the third party and the person who actually caused the injury.

As such the concept of third-party liability is often divided into two different types: contributory infringement and vicarious liability. Typically, contributory infringement exists when the third party either assists in the commission of the act which causes the injury, or simply induces the primary party to do so commit the act which caused the injury. (See What is contributory infringement?.) Vicarious liability often requires the third party to have exerted some form of control over the primary party?s actions. In copyright law, vicarious liability may be established if the third party had the "right and ability to control" the infringer's activities, and if the third party received some financial benefit from the acts of infringement. (See What is vicarious liability?.)

Answer: The primary defense to copyright infringement is "fair use." 17 U.S.C. ?107. The fair use doctrine allows the reproduction and use of work, notwithstanding the rightsof the author (17 U.S.C. ?? 106 and 106A), for limited purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Fair use may be described as the privilege to use the copyrighted material in a reasonable manner without the owner's consent. In deciding whether a copier's actions were fair, judges will consider

1. the purpose and character of the copying (certain types of educational copying is allowed)
2. the nature of the original (originals made for commercial reasons are less protected from copying than their purely artistic counterparts)
3. the amount and substantiality of the portion copied (one may not copy the "heart" of a work without the author's permission); and
4. the effect that such copying may have on the market for the original (copying may be permitted if it is unlikely to cause economic harm the original author).

Examples of activities that may be excused as fair use include: distributing copies of a section of an article in class for educational purposes; providing a quotation in a book review; and imitating a work for the purpose of parody or social commentary.

an injunction against further infringement -- such as an order preventing the infringer from future copying or distribution of the copyrighted works

impounding or destruction of infringing copies

damages -- either actual damages and the infringer's profits, or statutory damages

costs and attorney's fees

A copyright owner can only sue for infringement on a work whose copyright was registered with the Copyright Office, and can get statutory damages and attorney's fees only if the copyright registration was filed before infringement or within three months of first publication. (17 U.S.C. 411 and 412)

Farworks Doesn't Dig Digg Link to Far Side Video

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