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Copyright

Copyright is a limited monopoly provided by the laws of the United States (title 17, US Code; see the "Copyright" section) to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

  1. copy (reproduce) the work;
  2. distribute the work;
  3. perform or display the work; and/or
  4. prepare new (derivative) works based upon the work. A sequel to a movie, Rocky IX for example, is a derivative work.

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

Answer: Infringement occurs whenever someone who is not the copyright holder exercises one of the rights listed above. The most common defense to an infringement claim is "fair use," a doctrine that allows people to use copyrighted material in certain situations, such as quotations in a book review. To evaluate fair use of copyrighted material, the courts consider
(1) the purpose and character of use
(2) the nature of the copyrighted work
(3) the amount and substantiality of copying, and
(4) the market effect.

The most important factor in this analysis is (4). If a defendant's use adversely affects the market for the original items, then it will be very difficult for him to claim fair use.

Question: Do reproductions of photographs infringe on copyrights?

Answer: Photographs are protected by the copyright holder's rights to both reproduce and display his work, and this right may be violated by posting those photographs on the Internet.

Question: If a hyperlink is just a location pointer, how can it be illegal?

Answer: 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.

Question: What is an "inline" image?

Answer: An "inline" image refers to a graphic displayed in the context of a page, such as the picture here: HTML (Hypertext Markup Language) permits web authors to "inline" both images from their own websites and images hosted on other servers. When people complain about inline images, they are most often complaining about web pages that include graphics from external sources.

Question: What is fair use of a copyright protected work?

Answer: The fair use doctrine says that otherwise copyrighted works may be used for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. To decide whether a use is "fair use" or not, courts consider:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

Parody is also fair use.

Under this doctrine, artists have been permitted to create and display their art even if it uses copyrighted works of others.

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Question: What is "parody"?

Answer: The courts have defined the word parody in the context of an Internet site. Here's what some of the cases have to say: A "parody" is a "simple form of entertainment conveyed by juxtaposing the irreverent representation of the trademark with the idealized image created by the mark's owner." A parody must "convey two simultaneous--and contradictory--messages: that it is the original, but also that it is not the original and is instead a parody. To the extent that an alleged parody conveys only the first message, "it is...vulnerable under trademark law, since the customer will be confused." While a parody necessarily must engender some intial confusion, an effective parody will diminish the risk of consumer confusion "by conveying [only] just enough of the original design to allow the consumer to appreciate the point of parody."

Question: What is defamation?

Answer: An attack by speech on the good reputation of a person or business entity. Speech that involves a public figure--such as a corporation--is only defamatory if it is false and said with actual malice. It also must be factual rather than an expression of an opinion. In the United States, because of our strong free speech protections, it is almost impossible to prove defamation against a public figure.

Question: What is the right of publicity?

Answer: The right to prevent the unauthorized commercial use of someone's identity. A natural person, and the person's heirs, can sue under this right which is available, if there is a likelihood of confusion over the endorsement. However, there may be protection under the first amendment of the Constitution for the use of the identity if it is used for a statement of public/social interest, or a work of art/entertainment and the use is not for profit nor a threat to the commercial value of the identification.

Question: Is anonymous speech a right?

Answer: Yes. Anonymous speech is presumptively protected by the First Amendment to the Constitution. Anonymous pamphleteering played an important role for the Founding Fathers, including James Madison, Alexander Hamilton, and John Jay, whose Federalist Papers were first published anonymously. And the Supreme Court has consistently backed up that tradition. The key U.S. Supreme Court case is called McIntyre v. Ohio Elections Commission.

Question: Why is anonymous speech important?

Answer: There are a wide variety of reasons why people choose to speak anonymously. Many use anonymity to make criticisms that are difficult to state openly - to their boss, for example, or the principal of their children's school. The Internet has become a place where persons who might otherwise be stigmatized or embarrassed can gather and share information and support - victims of violence, cancer patients, AIDS sufferers, child abuse and spousal abuse survivors, for example. They use newsgroups, Web sites, chat rooms, message boards, and other services to share sensitive and personal information anonymously without fear of embarassment or harm. Some police departments run phone services that allow anonymous reporting of crimes; it is only a matter of time before such services are available on the Internet. Anonymity also allows "whistleblowers" reporting on government or company abuses to bring important safety issues to light without fear of stigma or retaliation. And human rights workers and citizens of repressive regimes around the world who want to share information or just tell their stories frequently depend on staying anonymous sometimes for their very lives.

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