@Home Network AUP Violation - Copyright Infringement/Hotline Server -- Chilling Effects Clearinghouse

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Re: @Home Network AUP Violation - Copyright Infringement/Hotline Server

It has been brought to our attention that you are running a personal Hotline
server off your @Home Network connection that is distributing copyrighted
files. Please remove it within 24 hours. This behavior is in violation of
the @Home Acceptable Use Policy and continuation of this activity will
result in termination of your @Home services. Please reply to this email
with your assurances that these infringing activities will not continue.

If you would like further information about the @Home AUP, it is posted at
http://www.home.net/aup. The relevant section is quoted below. We will also
mail you a hard copy of this communication. Thank you for your cooperation.

The @Home Network AUP Management Team/WARNING Before Termination Bandwidth, Data Storage and Other Limitations

You must comply with the then current bandwidth, data storage and other
limitations on the Services.

Users must ensure that their activity does not improperly restrict, inhibit,
or degrade any other user's use of the Services, nor represent (in the sole
judgment of @Home) an unusually large burden on the network itself. In
addition, users must ensure that their activity does not improperly
restrict, inhibit, disrupt, degrade or impede @Home's ability to deliver the
Services and monitor the Services, backbone, network nodes, and/or other
network services.

@Home network residential customers may not resell, share, or otherwise
distribute the Services or any portion thereof to any third party without
the written consent of @Home. For example, you cannot provide Internet
access to others through a dial up connection, host shell accounts over the
Internet, provide email or news service, or send a news feed.

The @Home residential service offering is a consumer product designed for
your personal use of the Internet. You may not use the @Home residential
service for commercial purposes. For example, the service does not provide
the type of security, upstream performance and total downstream throughput
capability typically associated with commercial use.

You may not run a server in connection with the @Home residential service,
nor may you provide network services to others via the @Home residential
service. The @Home residential service includes personal Webspace accounts
for publishing personal Web pages. Examples of prohibited uses include, but
are not limited to, running servers for mail, http, ftp, irc, and dhcp, and
multi-user interactive forums. For information about @Work products for
commercial or network services purposes, including commercial-grade remote
LAN access, please see http://work.home.net.

The use of the Services for any activity that violates any local, state,
federal or international law, order or regulation is a violation of this
Policy. Prohibited activities include, but are not limited to:

Posting or disseminating material which is unlawful (such as child
pornography or obscene material). Disseminating material which violates the
copyright or other intellectual property rights of others. You assume all
risks regarding the determination of whether material is in the public
domain. Pyramid or other illegal soliciting schemes. Any fraudulent
activities, including impersonating any person or entity or forging anyone
else's digital or manual signature.

FAQ: Questions and Answers

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Question: What kinds of things are copyrightable?

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.

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Question: What is copyright infringement? Are there any defenses?

Answer: Infringement occurs whenever someone who is not the copyright holder (or a licensee of the copyright holder) exercises one of the exclusive rights listed above.

The most common defense to an infringement claim is "fair use," a doctrine that allows people to use copyrighted material without permission in certain situations, such as quotations in a book review. To evaluate fair use of copyrighted material, the courts consider four factors:

the purpose and character of the use
the nature of the copyrighted work
the amount and substantiality of copying, and
the market effect.

(17 U.S.C. 107)

The most significant factor in this analysis is the fourth, effect on the market. If a copier's use supplants demand for the original work, then it will be very difficult for him or her to claim fair use. On the other hand, if the use does not compete with the original, for example because it is a parody, criticism, or news report, it is more likely to be permitted as "fair use."

Trademarks are generally subject to fair use in two situations: First, advertisers and other speakers are allowed to use a competitor's trademark when referring to that competitor's product ("nominative use"). Second, the law protects "fair comment," for instance, in parody.

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Question: What is the purpose of copyright law?

Answer: Copyright law provides an incentive to create software, music, literature and other works by ensuring that the creator will be able to reap the financial benefits of the work.

Topic maintained by USF Law School - IIP Justice Project