The New Crash Course on Copyright Laws

By Carl Weiss

Courtesy of Flickr

If you work the web you need to be cognizant about copyright issues. What most people who publish blogs and social posts online do not realize is that for the most part, the writer relinquishes all rights to the publisher when it comes to online publications.  That's right, Virginia, all the blogs and tweets you sent out to the Internet now belong to the folks at Google and Twitter and Facebook.  Add to this the fact that you can still be held liable for copyright infringement or even sued for libel for anything you post and this adds up to double indemnity for everyone online.

The intent of this article is not to teach you everything there is to know about copyright law or to be advice on what your particular situation calls for. As a matter of fact we recommend you discuss your particular situation with a copyright lawyer and not rely on just internet sources. Having said that, our radio show note page for 3/12/13 is full of links that will let you research this subject and get you started on your own journey of copyright discover.

Who Owns the Content You Create Online?

"Can I upload" copyright flowchart (Photo credit: giulia.forsythe)

The copyright laws are in flux right now. Currently, the Supreme Court is ruling on a case in the United States that has a direct impact on any “self-replicating” media. That case has to do with Monsanto’s lawsuit on use of their genetically alter seeds and whether a farmer can then harvest seeds from the mature plants and then plant those seeds to grow their next corp. We also have seven countries, (The USA, Canada, UK, Germany, Japan and Finland) currently have either created new laws or have new laws pending approval, that institute many new provisions. These new laws either expand or constrict a consumers right for fair usage. Also along these lines, a 1976 law kicks into effect this year that allows artist to reclaim the music rights from the record companies. I have provided more that a 1/2 dozen links for the 3/12/13 radio show and this blog that discusses these issues in detail.

To make matters worse, there is recent legislation that even makes you liable for everything from illicitly copying music and videos from the Internet to unlocking your cell phone.  As of the publication of this blog it is still illegal for you to unlock any phone bought after January 2013 so that you can use it on another cell phone network.  This move actually contravenes laws created back in 2006 and 2010 that permitted cell phone users to unlock their own phones.  

A recent article from the Bangor Daily News states: "Following a recent pitch from the wireless industry, the library determined in its most recent review that consumers no longer need the exception. Carriers say they are unlocking users’ phones under many conditions, and customers can find phones that are unlocked from the start. The wireless industry, meanwhile, insists that preventing users from unlocking their phones is an important protection of its business model, under which wireless providers subsidize the purchase of phones when customers sign up for a lengthy service contract.

But why should the government guarantee the viability of that business model — especially at the threat of criminal penalty? And why should copyright law be misused to do it? The industry has other tools available, beginning with hefty penalties for breaking a contract, to make the costs and benefits of these arrangements explicit to consumers. If the business model is indeed viable, companies should flourish under those conditions, as they did during the years in which mobile customers had the Library of Congress’s permission to unlock their phones.

"In response to an online petition, R. David Edelman, President Barack Obama’s senior adviser for Internet, innovation and privacy, announced that the White House would support “narrow legislative fixes” to change the phone-unlocking policy permanently. “Neither criminal law nor technological locks,” he wrote, “should prevent consumers from switching carriers when they are no longer bound by a service agreement or other obligation.” What, though, about those who want to pay an early-termination fee to break their service agreements? Or those who want to use their phones on different networks while abroad without asking for permission? We can’t think of a good reason why they should be subject to the threat of criminal sanction for unlocking their devices. Neither, we trust, will Congress as it examines the issue."

Even the Big Guys Get Busted

Don't feel bad, because many of the biggest online companies in the world have been dragged into the copyright infringement fracas, including Google, which has had to defend itself from lawsuits involving everything from multinational conglomerates and European nations.  Everyone from the Author's Guild to Viacom to Germany has sued Google in the past with mixed results.  Google won over Viacom when the judge ruled that the US-based YouTube was protected under copyright law.  They also won the suit filed against them in Germany, which concerned the use and display of thumbnail images that popped up as mixed media in Google searches. However, they weren't so lucky when they were forced to settle the lawsuit with the Author's Guild to the tune of $125 million.

Google has settled the class action litigation entitled The Authors Guild, Inc., et al. v. Google Inc., which alleged that Google Book Search, including the company’s practice of scanning books to distribute them online, violated the copyrights of publishers and authors. Subject to final court approval, the settlement calls for Google to pay $125 million to litigants and clears the way for Google to continue scanning books. It also establishes some novel services and distribution mechanisms for the future.

The plaintiffs suing Google included The Authors Guild (and individual authors) and the Association of American Publishers, which includes The McGraw-Hill Companies, Pearson, John Wiley & Sons, and Simon & Schuster. The plaintiffs claimed that Google’s plan to scan and distribute part of all of copyrighted books online, without the explicit permission of the authors and publishers, was a violation of US copyright law.

Now that the cases have been tentatively settled, a “Book Rights Registry” is being created “to resolve existing claims by authors and publishers and to cover legal fees.” That will be funded by Google’s $125 million settlement payment.

Where is Social Media in All This?

Mark Zuckerberg, founder and CEO of Facebook (Photo credit: Wikipedia)

Over the last several years, social media subscribers have struggled with the idea that they don't own what they write in a post. The reality is that whoever houses the data by default controls the data. Facebook, Twitter, Instagram and others have recently had to deal with subscriber complaints as to who owns the posted data. Two of the articles on our notes section clearly point this out. One is posted on Facebook’s blog where Mark Zuckerberg addresses this issue. Here it clearly states that the users own their post. However, the wording of the policy is vague enough that it promoted the subscriber protest in the first place. Instagram’s executives published a similar retraction. Their subscribers complained that they felt Instagram was going to sell their content (mainly photos). Instagram executive wrote that they regretted that the words they chose did not communicate their true intentions.

Back to Future

While lawsuits against major online players continues to rear its ugly head from time to time, this dilemma is almost as old as the World Wide Web itself.  In fact, way back in 1998 the Digital Millenium Copyright Act  was passed that created a safe harbor for online service providers by shielding them from their own acts of direct copyright infringement as well as shielding them from liability for infringement caused by others.  

An excerpt from Wikipedia concerning the Online Copyright Infringement Liability Limitation Act states: "The 1998 DMCA was the U.S. implementation of the 1996 WIPO Copyright Treaty (WCT) directive to “maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information”^[1] when updating copyright norms for the digital age. In the context of Internet intermediaries, OCILLA attempts to strike this balance by immunizing OSP’s for copyright liability stemming from their own acts of direct copyright infringement (as primary infringers of copyright), as well as from the acts of their users (as secondary infringers of copyright), provided that OSP’s comply with two general requirements protecting the rights of authors.

First, the OSP must “adopt and reasonably implement a policy”^[2] of addressing and terminating accounts of users who are found to be “repeat infringers.”^[2] Second, the OSP must accommodate and not interfere with “standard technical measures.”^[3] OSPs may qualify for one or more of the Section 512 safe harbors under § 512(a)-(d), for immunity from copyright liability stemming from: transmitting,^[4]caching,^[5] storing,^[6] or linking ^[7] to infringing material. An OSP who complies with the requirements for a given safe harbor is not liable for money damages, but may still be ordered by a court to perform specific actions such as disabling access to infringing material.

In addition to the two general requirements listed above, all four safe harbors impose additional requirements for immunity. The safe harbor for storage of infringing material under § 512(c) is the most commonly encountered because it immunizes OSPs such as YouTube that might inadvertently host infringing material uploaded by users."

While OCILLA’s passage clearly represented a victory for telecom groups over powerful copyright interests who wanted service providers to be held liable for the acts of their users, the copyright owners as it turned out obtained valuable concessions. In addition to the general and specific preconditions on the created immunity, OCILLA requires online service providers seeking an immunity to designate an agent to whom notices of copyright infringement can be sent, as well as disclosing information about users who are purportedly violating the letter of the law. The OSP also agrees to remove repeat offenders and to receive no direct financial benefit from the presence of infringed material.  

This latter inclusion is a spinoff from the 2001 lawsuit where A&M Records sued Napster.  Started by 18-year-old college student Shawn Fanning, Napster allowed users to download digital music from other user's machines.    Unlike many other peer-to-peer services, Napster not only created a list of indexed user files, they directly profited from the service.  In essence, the service made money by allowing others to virtually strip mine songs from other sites without paying the musicians who created them or the labels that produced them a fee.  As a result, music industry revenues took a precipitous fall and have not truly recovered since.

Who’s Watching the Watchers?

With the prevalence of file sharing sites and software, it isn't only the music industry that is affected.  The motion picture industry and television networks have also found fault with the Internet.  So much so that last week the Copyright Alert System was launched.  

watching the watchers (Photo credit: leff)

Created by the recording and film industry, it essentially deputizes copyright holders who stealthily monitor peer-to-peer networks for illegal sharing of movies, TV shows, and music. When they notice material is being illegally shared, they contact the crook's ISP, which in turn will send a warning message to the subscriber. After six strikes, the ISP will do more than spam you; it can choose to slow your access speed, temporarily downgrade you to a lower-tier service, or automatically direct you to a special landing page until you contact them or complete an online education program.
Read more

While the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA) insist that they aren't out to persecute offenders, appealing any alleged violations will cost the accused a minimum of $35. That the CAS is targeted toward consumers and not major criminal elements is apparent when you consider the fact that cybercriminals have the ability to mask the origin of their act of piracy.  So what the CAS amounts to in the eyes of many watchdog groups is nothing short of online vigilantism.

What this and other online copyright legislation means to you and me is that we all need to watch out Ps and Qs. Other legislation like the 2012 Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) also provided search engines, online advertising companies and payment processors with the ability to sever ties with accused copyright violators at will.  

An article in Business Insider entitled The Dumbest Examples of Online Copyright Law Enforcement, states:  "In the last several years, the DMCA's notice and takedown provisions have been used by less than scrupulous parties to bully websites into removing competitor content which, more often than not, did not infringe any of the parties' rights. For example:

·         'Paranormalist' Uri Geller got YouTube to remove a video of a 1993 PBS piece that Geller did not own which debunked the psychic's special abilities. The poster's YouTube account was also suspended.

·         Competitors of dancer/model/actress Elizabeth "Sky" Ordonez registered the trademark ELIZABETH SKY and got Twitter, MySpace and Facebook to take down the actress' pages based on nonsense claims of trademark infringement.

·         Most recently, Warner Bros. admitted that it did not bother to confirm whether a slew of content that it asked cyberlocker website Hotfile.com to take down actually infringed on its copyrights. (In a rare show of support for its users, the content publisher sued Warner Bros. for violating the DMCA by making a false take-down request.)

In each of the above cases, the innocent parties were ultimately successful in getting their content back online but only after having had their content down for, at minimum, the two week period that the DMCA sets out for takedown counter-notices.  In the above example, Elizabeth Sky was awarded $78,000 for damage caused to her "online presence."  Of course, the above examples made the news because the victims had the resources to get lawyers and fight back. When it comes to young startups, such successful outcomes are far less likely.  Now enter SOPA, the newest, biggest bully in the yard."

Get your FREE copy above. 

While there is no question that online piracy and other forms of digital copyright infringement are a serious and costly blight to businesses large and small, it seems that the government has provided industry with just the kind of clout that many Internet advocates believe target consumers to the detriment of all concerned.  

If you like this article, you can find more by typing in "copyright" in the search box at the top left of this blog. If you found this article useful, share it with your friends, families and co-works. If you have a comment related to this article, leave it in the Comment sections below. 

If you'd like a FREE Copy of our eBook, "Internet Marketing Tips for the 21st Century," please fill in the form in the upper right-hand sidebar, where you will receive instant access to our eBook. Your information is always kept private and is never sold.

Since 1995, Carl Weiss has been helping clients succeed online.  He owns and operates several online marketing businesses, including Working the Web to Win and Jacksonville Video Production. He also co-hosts the weekly radio show, "Working the Web to Win," every Tuesday at 4 p.m. Eastern on BlogTalkRadio.com.

Related articles

• Copyright for Educators (Free Online Course) - from the new School of Open
• Using Google Images? Think about copyright permissions
• Finland Is Crowdsourcing Its New Copyright Law (Slashdot)
• EFF To Represent Bloggers Against Copyright Troll
• 3D printing gunmaker forms company to flout copyright law, à la the Pirate Bay | Ars Technica
• 10 Big Myths about copyright explained
• Canadian Copyright law, Bill C11, and You
• Germany Passes New Internet Copyright Law After Watering It Down To Spare Google From Having To Pay
• New Textbook On Copyright Law For Librarians
• Don't make people pay for music - Let them: An Alternative View Of Copyright Law