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CS 5339
Web-Based Systems
Copyright Law
(slides modified with permission
from originals created by Rolfe Sassenfeld)
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Copyright Law and the Web
Purpose?
To protect the creative and economic
interest of the creator.
To protect the integrity of work by
ensuring that it isn’t changed.
To protect written works, music, and art.
Patents protect objects (inventions).
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Copyright Law and the Web
The Rights of Creators and Copyright Owners
According to Title 17, Section 102 of the United States
Code (17 U.S.C. § 102),
"Copyright protection subsists . . .in original works of
authorship fixed in any tangible medium of expression,
now known or later developed."
As soon as a creative work is written down, recorded,
drawn, etc., it is protected by copyright.
This means that mere ideas cannot be copyrighted.
It also means that a creator does not have to publish his or
her work or register it with the Library of Congress in order
to have that work protected by copyright.
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Copyright Law and the Web
The Rights of Creators and Copyright Owners
Copyright grants six specific rights to owners (17
U.S.C. § 106). The right to:
reproduce the work
prepare derivative works based upon the original
distribute copies (by sales or otherwise)
perform the work publicly
display the work publicly
in the case of sound recordings, perform the
copyrighted work publicly by means of a digital audio
transmission.
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Copyright Law and the Web
Fair Use and Educational Use Exemptions to the
Copyright Law.
The following criteria must be considered when using
copyrighted material for private, nonprofit purposes:
Fair Use Criteria (17 U.S.C. § 107):
The purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
educational purposes.
The nature of the copyrighted work.
The amount and substantiality of the portion used in relation
to the copyrighted work as a whole.
The effect of the use on the potential market for or value of
the copyrighted work.
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Copyright Law and the Web
Educational Use Exemptions (17 U.S.C. § 110):
Section 110(1) exempts from infringement liability the
performance or display of a copyrighted work in the course
of face-to-face teaching activities by a non-profit
educational institution in a classroom or similar setting.
Section 110(2) exempts from liability the transmission of a
performance or display of a copyrighted work if
(1) the performance or display is a regular part of the systematic
instructional activities of the non-profit educational institution;
(2) the performance or display is directly related and of material
assistance to the teaching content of the transmission; and
(3) the transmission is made primarily for reception in classrooms
or similar places or by persons to whom the transmission is
directed because of their disabilities.
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Copyright Law and the Web
Common Copyright Questions
Can I go to jail for violating copyrights?
Yes, but rarely. Copyright is enforceable in
civil court.
You can be fined but not incarcerated. An
exception is Federal copyright violation which
is punishable by prison. (FBI warning)
If I don’t make money can I be sued?
Yes because you can cause a loss of revenue
for the owner (giving it away for free). The
fact that you didn’t profit is irrelevant.
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Copyright Law and the Web
Are all web pages in the public domain?
No.
Does an author renounce copyright when
something appears online?
No.
Rights are only relinquished by a statement
pronouncing that the work is being placed in
the public domain.
The default however is that all pages are
copyrighted.
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Copyright Law and the Web
Are older written works in the public domain?
Not necessarily.
All written work is copyrighted for the life of
the author.
If the author is dead, is it still copyrighted?
Probably.
Heirs may continue the copyright for 70 years
after the death of the author.
Just because something is popular and
common does not mean it is free to use.
Happy Birthday is copyrighted!
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Copyright Law and the Web
Does an author have to mark a document as
copyrighted to enjoy the privileges?
No.
This used to be required but was changed in
1989. All documents are copyrighted by
default.
Can an author grant specific rights to the
general public?
Yes.
An example would be the right to freely copy
and distribute, but not to modify.
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Copyright Law and the Web
Can I print copies of online materials?
Yes.
As long as they are for your own personal use.
Can I store online files on my own computer?
Yes.
As long as you do not distribute them.
Can I download a web page and email it to a friend?
No. Unless it grants you permission to distribute
freely.
Is this a good way to show other’s web pages?
No! You should email the address for them to pull up
themselves.
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Copyright Law and the Web
If a photo or cartoon has been published in print, can
I put it online?
No.
You must get permission first.
Can I incorporate files found elsewhere into my own
pages?
Yes.
With permission.
Exception to the rule!
You may download another’s web page and use the
HTML as a guide to create your own page.
Look and feel are not copyrightable.
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Copyright Law and the Web
The doctrine of Fair Use
You may quote 300 words from a book or 150 words
from a magazine or newspaper if--The excerpt is not a complete work (an entire poem)
The excerpt is less than 20% of the original work
The excerpt is integrated into your writing and does
not stand alone.
You must give full credit to the author, source and
publisher.
If you excerpt a series of quotes the totals cannot
exceed the above numbers
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Copyright Law and the Web
Lotus Vs Borland
Lotus 1-2-3 was a very popular
spreadsheet application.
Borland created Quattro-Pro to compete
against Lotus.
Quattro-Pro utilized the same
keystrokes and menus to facilitate use
by people trained in Lotus.
Lotus sued citing copyright
infringement.
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Copyright Law and the Web
Court Decision:
Lotus could not copyright the ‘look and
feel’ of their program.
Since menus and keystrokes are merely
operations.
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Copyright Law and the Web
Court Decision:
The court reasoned that the commands, and
their hierarchical ordering, constitute the
electronic operation of the software program,
and that constitutes a method by which the
computer is operated.
Since the Copyright Act excludes protection to
procedures or methods of operation, the use of
the software's command to operate the
computer software itself is not protected by
copyright.
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Copyright Law and the Web
The court pointed out that the legislature intended
to exclude electronic operation from copyright
protection.
While revising the Copyright Act in 1976, Congress
stated that:
"Section 102(b) is intended, among other things, to
make clear that the expression adopted by the
computer programmer is the copyrightable element
of a computer program, and that the actual process
or methods embodied within the program are not
within the scope of copyright law."
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Copyright Law and the Web
Congress thereby limited the definition of
copyright protection available to a computer
program to its literary form, the actual
statements and instructions of the source
code, and excluded from protection the
program's electronic operation.
18
Copyright Law and the Web
The gray area of copyright law.
19
Copyright Law and the Web
Today when assessing infringement, the Court uses
a new test for determining the gap between idea
and expression.
The court decided that the purpose or function of a
utilitarian work, such as a computer program, is the
work's idea, and that everything not necessary to
that purpose or function is part of the expression of
the idea.
Where there are various means of achieving the
purpose or function, the means chosen are not
necessary and therefore constitute expression.
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Copyright Law and the Web
With this rule, the court held that copyright
in a computer program protects the nonliteral structure, sequence and organization
of that program.
Consequently, copyright infringement could
be found for these elements even in the
absence of direct source code or object code
copying.
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Copyright Law and the Web
In 1998 the On-line copyright
Infringement Liability limitations act.
This act strengthens the rights of online
publishers to that of conventional
authors.
BE CAREFUL AND RESPONSIBLE
When in doubt – get permission!
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Recent Court Cases
Los Angeles Times v. Free Republic, 54 U.S.P.Q.2D 1453
(C.D. Cal. 2000)
A bulletin board website allowed members to post full articles
from newspapers in order to generate awareness and discussion
of various subjects. Access to the site was unrestricted. The
defendant was a for-profit corporation, but was in the process
of seeking nonprofit tax status and did not charge for access to
materials on its website.
Purpose: The articles were copied directly from the news
sources and were not “transformative.” The judge was also not
persuaded that a link to the news source would not be
sufficient. While the court generally favored the claim of a
“nonprofit” use, the court still found that posting the articles
was drawing readers away from the commercial websites where
the articles originated.
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Recent Court Cases
Nature: The articles are predominately factual,
tipping the factor in favor of fair use.
Amount: The website included the full text of the
articles, and the court found that the copying was
more extensive than necessary to accomplish the
defendant’s objectives.
Effect: The newspapers were seeking to exploit the
market for the articles and draw traffic to their
websites; the defendant was “usurping” the copyright
owner’s potential markets.
Conclusion: The bulletin board’s use of the
newspaper articles was deemed to not be fair use.
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Recent Court Cases
Kelly v. Arriba Soft Corp., 280 F.3d 934 (9th Cir.
2002).
An internet search engine website copied Kelly’s
photos off the internet. The photos were converted
to small-scale “thumbnail” images. Clicking on the
“thumbnail” would open a page that took the user to
a full-size copy of the photo.
Purpose: Taking images and converting them into
“thumbnails” (smaller, lower-resolution images),
which serve a different purpose, is transformative.
But placing the full-sized image on the website is not
transformative. Therefore, this factor leans toward
fair use for the “thumbnails” but against fair use for
the full-sized image.
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Recent Court Cases
Nature: The works used are creative works of art, which leans
against fair use in both cases.
Amount: This factor is neutral in the case of the “thumbnails”
because it was necessary to copy the whole work for the
intended use. However, it was not reasonable to copy the entire
full-sized image, hence this factor leans against fair use.
Effect: The use of the “thumbnails” does not harm the market
for the original images because there would be no way to obtain
the original without visiting the creator’s website. But placing
the full-sized images on the website harms all of the creator’s
markets by giving users access to the works without requiring
them to visit the original website.
Conclusion: Conversion of internet photos to “thumbnails” is fair
use. However, copying full-size images onto a website is not fair
use.
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Liability
Direct infringement
The Act provides that direct infringement may arise
either by a person doing any of the acts which fall
within the exclusive rights of the copyright owner or
by a person authorizing someone else to do one of
these things.
Direct infringement does not require knowledge of
the fact that an infringement is occurring.
Innocent intention affords no defence and ignorance
of the existence of copyright is no excuse for
infringement.
Copyright being a proprietary right, it does not avail
the defendant to plead motive or intent.
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Liability
Many copyright infringements may be committed on
the Internet using physical equipment owned by
others.
By way of example, while the copy of a work could
be made on the server of a BBS and retained there, it
is the user posting the work on the BBS which
actually makes the copy using the BBS’s equipment.
In these circumstances, it is relatively clear that it is
the user which is infringing and not the passive
equipment operator unless the operator starts being
involved in the infringing act to the point that it
"authorizes" the act.
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Liability
Indirect infringement
Indirect infringement cannot be authorized by a third
party since the acts which constitute indirect
infringement are not within the list of those acts to
which the copyright owner has an exclusive right.
A further distinguishing feature of indirect
infringement is that knowledge on the part of the
infringer that copyright is being infringed. In such
cases therefore, ignorance may constitute a valid
defense.
"Knowledge" has been interpreted to mean that
information which would suggest to a reasonable
man that a breach of copyright was being committed,
or notice of facts such as would put a reasonable
person on inquiry.
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Liability
Once an individual has either actual or imputed
knowledge that the work dealt with may be infringing
copyright, the individual has an obligation to make
inquiries to ensure that the work does not infringe
copyright.
In the case of the intermediaries involved in the
Internet content transmission chain, if the
intermediary is put on notice of an infringement and
takes no reasonable steps to prevent its continuation,
the intermediary may be liable for indirect
infringement.
Since many of the participants in the Internet content
transmission chain can play various roles, it is useful
to categorize the infringing activities according to
such roles which can be classified in three categories:
posters, recipients and intermediaries.
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