Article published in Dropline.biz on February 6, 2006

Misconception of Copyright Infringement

By Dino M. Zaffina

Copyright laws are enacted pursuant to Article 1, Section 8 of the U.S. Constitution, which provides that “The Congress shall have Power … To Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The elements of a copyright infringement claim are: (1) ownership of a valid copyright and (2) copying of expression protected by that copyright.

It is a common misconception that everything that a person writes is copyright protected. The Court in Online Policy Group explained that “… copyright law protects only creative works, not facts.” Online Policy Group v. Diebold, Inc., (N.D. Cal. 2004) 337 F. Supp. 2d 1195.

In that case, Diebold produced electronic voting machines. The machines had been the subject of critical commentary. Both the reliability and verification procedures of the machines had been called into question, in part because not all of the machines provided a means for verifying whether a voter’s choice had been recorded correctly. Because of this issue there were many internal e-mails exchanged among Diebold employees containing evidence that some employees had acknowledged problems associated with the machines. Some of the e-mails contained the development of Diebold’s proprietary computerized election systems, as well as Diebold trade secret information, and even employees’ personal information such as home addresses and cell phone numbers.” There were so many e-mails, an archive was created.

Swarthmore College posted the e-mail archive on various websites. An online newspaper, IndyMedia, published an article criticizing Diebold’s electronic voting machines and contained a hyperlink to the email archive. Online Policy Group (“OPG”) provides IndyMedia’s internet access.

Diebold claimed copyright infringement because the parties were posting and linking to the e-mail archive. For various other reasons that will not be discussed in this article, Diebold was sued for violating the rights of Swarthmore College and OPG. U.S. District Court Judge Jeremy Fogel ruled that Diebold inappropriately threatened copyright violations for those who published or linked to their corporate e-mail archive and their Internet Service Providers like OPG. Diebold agreed to pay damages and legal fees of $125,000 in a precedent-setting win.

To find the requirements for copyright protection, one would look to the Copyright Act of 1979 (as Amended), which is codified in Title 17 of the United States Code.  17 U.S.C. § 102 states:

 “(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1)  literary works;

(2)  musical works, including any accompanying words;

(3)  dramatic works, including any accompanying music;

(4)  pantomimes and choreographic works;

(5)  pictorial, graphic, and sculptural works;

(6)  motion pictures and other audiovisual works;

(7)  sound recordings; and

(8)  architectural works.

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” (See U.S. Copyright Act of 1979)

It is important to understand that copyright has two main purposes, namely the protection of the author’s right to obtain commercial benefit from valuable work, and more recently the protection of the author’s general right to control how a work is used.

While copyright law makes it technically illegal to reproduce almost any new creative work (other than under “fair use”) without permission, if the work is unregistered and has no real commercial value, it gets very little protection. The author in this case can sue for an injunction against the publication, actual damages from a violation, and possibly court costs. Actual damages means actual money potentially lost by the author due to publication, plus any money gained by the defendant. But if a work has no commercial value, such as a typical e-mail message or conversational USENET posting, the actual damages will be zero. Only the most vindictive (and rich) author would sue when no damages are possible, and the courts don’t look kindly on vindictive plaintiffs, unless the defendants are even more vindictive.  Note, “In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work.” (U.S. Copyright Office).

One of the biggest misconceptions is copyright protection for an e-mail. Most people believe that just because they created the e-mail somehow automatically it falls under the U.S. Copyright Act’s protection. Wrong. The e-mail must constitute a “Literary Work”; “‘Literary works’ are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.” (17 U.S.C. § 101). (See U.S. Copyright Act of 1979).

Most of the time, e-mails that are sent to one another and forwarded to a third party(ies), are trivial in nature; and if not, they are not usually comprised of creative works, but more factual comments. Therefore, they do not receive copyright protection; and thus, individuals who come in contact with these types of e-mails are free to make copies of the e-mail, distribute copies of the e-mail, and even use some or all of the verbiage from the e-mail without the permission of the author, regardless of any copyright notices in the e-mail. For example:

That is not to say that people should not put these notices on their e-mails. A well written notice, such as this one will most likely deter 85% of people who are not familiar with copyright laws.  Moreover, at some point in time, a person may very well disseminate creative work in their e-mail and this way they will already have their copyright notice affixed.

People who participate in “public” mail lists and USENETs need to realize that their e-mails and bulletin postings have a clear path into public domain. The Internet has the ability to disseminate these e-mails and postings world-wide within seconds. Writers who post messages to public e-mail lists should contemplate, for example, both forwarding and archiving. It is reasonable to assume that they have given permission unless it is explicitly denied. A person’s participation creates a license implied by circumstances.

On the other hand, participants in “private” mail lists (e.g., FYIA (“Free Your IA”)) receive a “Statement of Purpose” prior to signing up. Members who request to subscribe to the service agree not to forward messages pursuant to the following requirement: “The FYIA mailing list and the ideas and expressions contained therein constitute the internal discussion of the affairs of a labor organization … and as such are intended to be kept confidential and restricted solely to subscribed FYIA members for their participation in said internal discussion.”

These subscribers are given a license to use the mail list. If they violate the rules of the mail list (e.g., republishing an e-mail) then their license can be revoked.

Although subscribers of FYIA are not allowed to republish e-mails to non-subscribers, if an e-mail finds its way to an outsider, the FYIA restrictions do not apply to that person. They are free to use the contents of the e-mail or republish it by forwarding it to a third party(ies) as long as the material therein is not copyright protected.

Even if an author has a valid copyright, there is an exemption from infringement (i.e., “The Doctrine of Fair Use,” a.k.a. “The Fair Use Doctrine”). Fair Use is embodied in 17 U.S.C. § 107 which states:

“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.” (See U.S. Copyright Act of 1979).

The Court in Online Policy Group following the prior decisions of the U.S. Supreme Court, held that “fair use is not infringement of a copyright.” (Ibid.); Campbell v. Acuff-Rose Music, Inc., (1994) 510 U.S. 569; Harper & Row Publishers, Inc. v. Nation Enters., (1985) 471 U.S. 539.

The Court determined that, “The email archive was posted or hyperlinked to for the purpose of informing the public about the problems associated with Diebold’s electronic voting machines. It is hard to imagine a subject the discussion of which could be more in the public interest.”

A perfect example of “fair use” is the recent posting of a News Bulletin on Dropline.biz of an important notice authored by Douglas C. Hart of the I.A.T.S.E. Local 600. The information contained in the posting was “news reporting” and most definitely “newsworthy.”  Therefore, an unauthorized posting of the complete notice or a portion thereof would not have constituted an infringement. (See News Bulletin).

Notwithstanding, Dropline.biz did contact Hart and ask for his permission and a copy of his exact notice. Hart agreed, and sent Dropline.biz a copy of his notice, on the condition that it was published in its entirety. Dropline.biz did not request permission because of any legal obligation; the request was made purely based out of respect for the hard work and dedication of this trade unionist. Moreover, as far as publishing the notice in its entirety, Dropline.biz could have published only excerpts, but the notice was extremely well-written and the facts contained therein were so beneficial to all the members of the I.A.T.S.E.’s 18 West Coast Locals; why deprive the individuals of this important information?

The most important question that should be on a person’s mind before copying, using, or republishing material created by another person, is “What am I using this material for?”  Then, several other questions, for example, “Is my use of this material going to in anyway infringe on the commercial value? — Do I have a fair use? — Would permission be all that difficult to obtain?”

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