FAQ: Questions and Answers

[back to notice text] 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. [back to notice text] Question: Does a cease and desist letter recipient have a duty to remove materials alleged to infringe copyright? Answer: The cease and desist letter gives its recipient ("you") notice that someone is claiming something you've done or something on your site infringes a copyright. If the materials that are the subject of the notice are in fact infringing, then you do have a duty to remove them, although there may be statutory provisions (DMCA Safe Harbor) that protect you from a lawsuit if the materials were posted by someone else. You may have to give the poster notice of the complaint. If you do not believe that the materials are infringing, or if you believe that you are making fair use of the materials, you may choose to take the risk of not removing the materials, but a lawsuit might follow in which the complainer tries to prove they they are right and you are wrong. If the accuser obtains a court order, then you must take down the materials. [back to notice text] 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. [back to notice text] Question: Can an internet service allow users to store and listen to compact disks sold by record companies through an internet connection? Answer: Probably not. According to the court in UMG Recordings v. MP3.Com, an internet company may not store MP3 music files to facilitate their retransmission. Reproducing audio compact disks into MP3s does not transform the copyrighted work. An internet operator must do more than merely retransmit the original work in a different medium. The court in UMG also found that storing digital files in this way would have an adverse market effect on the record companies. [back to notice text] Question: What constitutes copyright infringement? 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. [back to notice text] Question: What rights are protected by copyright law? 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. [back to notice text] Question: What is the purpose of the fair use defense? Answer: There is no easy answer to this question. However, one way to approach the question is to examine the purposes of the copyright laws. The clause of the Constitution that gives Congress the power to enact copyright laws indicates that the purpose of the given power is to "promote the progress of science and the useful arts" by allowing authors to secure the exclusive rights in their works for "limited times." Thus, many see the Constitutional scheme behind copyright as a kind of balance between (1) forming incentives for authors to create new works by giving them rights that will allow them to make money from their works, and (2) limiting the rights so that the works themselves are useful to the public and in turn advance the "progress of science and the useful arts." Fair use fits into this scheme by giving the public the right to use copyrighted works in certain situations even though the author has exclusive rights. That is, in some circumstances, such as certain uses involving scholarship or research, the "progress" referred to in the Constitution is best promoted and the public is best served by allowing an unauthorized use of the copyrighted work. These uses are deemed fair because they are consistent with the power given to Congress to enact copyright laws. [back to notice text] Question: What is unfair competition? Answer: "Unfair competition" covers a wide range of kinds of unjust business behavior---so many kinds, in fact, that it is impossible to give one simple general definition. In essence, unfair competition means trademark infringement or false advertising to confuse the public. In most states, only commercial competitors can be engaged in "unfair competition." [back to notice text] Question: Who may hold a copyright? Answer: A copyright ordinarily vests in the creator or creators of a work (known as the author(s)), and is inherited as ordinary property. Copyrights are freely transferrable as property, at the discretion of the owner. 17 U.S.C. [back to notice text] Question: What defines a service provider under Section 512 of the Digital Millennium Copyright Act (DMCA)? Answer: A service provider is defined as "an entity offering transmission, routing, or providing connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received" or "a provider of online services or network access, or the operator of facilities thereof." [512(k)(1)(A-B)] This broad definition includes network services companies such as Internet service providers (ISPs), search engines, bulletin board system operators, and even auction web sites. In A&M Records, Inc. v. Napster Inc., the court refused to extend the safe harbor provisions to the Napster software program and service, leaving open the question of whether peer-to-peer networks also qualify for safe harbor protection under Section 512. There are four major categories of network systems offered by service providers that qualify for protection under the safe harbor provisions: Conduit Communications include the transmission and routing of information, such as an email or Internet service provider, which store the material only temporarily on their networks. [Sec. 512(a)] System Caching refers to the temporary copies of data that are made by service providers in providing the various services that require such copying in order to transfer data. [Sec. 512(b)] Storage Systems refers to services which allow users to store information on their networks, such as a web hosting service or a chat room. [Sec. 512(c)] Information Location Tools refer to services such as search engines, directories, or pages of recommended web sites which provide links to the allegedly infringing material. [Sec. 512(d)] [back to notice text] Question: What are the DMCA Safe Harbor Provisions? 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. [back to notice text] Question: What are the notice and takedown procedures for web sites? Answer: In order to have an allegedly infringing web site removed from a service provider's network, or to have access to an allegedly infringing website disabled, the copyright owner must provide notice to the service provider with the following information: The name, address, and electronic signature of the complaining party [512(c)(3)(A)(i)] The infringing materials and their Internet location [512(c)(3)(A)(ii-iii)], or if the service provider is an "information location tool" such as a search engine, the reference or link to the infringing materials [512(d)(3)]. Sufficient information to identify the copyrighted works [512(c)(3)(A)(iv)]. A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of [512(c)(3)(A)(v)]. A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner [512(c)(3)(A)(vi)]. Once notice is given to the service provider, or in circumstances where the service provider discovers the infringing material itself, it is required to expeditiously remove, or disable access to, the material. The safe harbor provisions do not require the service provider to notify the individual responsible for the allegedly infringing material before it has been removed, but they do require notification after the material is removed. [back to notice text] Question: What does a service provider have to do in order to qualify for safe harbor protection? Answer: In addition to informing its customers of its policies (discussed above), a service provider must follow the proper notice and takedown procedures (discussed above) and also meet several other requirements in order to qualify for exemption under the safe harbor provisions. In order to facilitate the notification process in cases of infringement, ISPs which allow users to store information on their networks, such as a web hosting service, must designate an agent that will receive the notices from copyright owners that its network contains material which infringes their intellectual property rights. The service provider must then notify the Copyright Office of the agent's name and address and make that information publicly available on its web site. [512(c)(2)] Finally, the service provider must not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network. [512(c)(1)(A)], [512(d)(1)(A)]. If it does discover such material before being contacted by the copyright owners, it is instructed to remove, or disable access to, the material itself. [512(c)(1)(A)(iii)], [512(d)(1)(C)]. The service provider must not gain any financial benefit that is attributable to the infringing material. [512(c)(1)(B)], [512(d)(2)]. [back to notice text] Question: What are the possible penalties for copyright infringement? Answer: Under the Copyright Act, penalties for copyright infringement can include: 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)

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