Domain Name Disputes

4 July 2002

Why is it that intelligent and well educated people believe that copyright law doesn't apply to the Net? It might be because copying is so easy to do. Maybe it goes back to the almost utopian and non-commercial origins of the Net. Whatever the reason, it's a myth.

The simple fact is that copyright law applies as much to material posted on a website as it does to material printed in a book. It's not necessarily okay to save a picture from somebody's website and reuse it on your website.

Copyright law gives a copyright owner the right to control things like selling, renting, leasing, public performance and display, or lending of copies of copyrighted material. While the law protects a creator's expression of ideas, it doesn't protect the idea itself. Therefore, it's not an infringement to read an idea expressed by an author and then write about it in your own words.

This distinction between the expression of an idea being protected while the idea is an example of how you can effectively and legally work with copyrighted material without infringing on the copyright owner's rights. Another example is the concept of "fair use."

"Fair use" is the way the law tries to balance the "needs of the one against the needs of the many." (You Trekkers know that I borrowed this last phrase, but I think it was a "fair use.") The public interest favors the wide dissemination of information while the copyright owner's interest favors royalties in his pocket if somebody uses his material. The law has to do what it often does; balance two competing interests.

"Fair use" allows copying "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. . ."

The problem with relying on "fair use" as the basis for your use of copyrighted materials is that you can rarely be positive that if tested in a courtroom that your use would ultimately be found to be a fair use. A "fair use" determination requires you to look at four statutorily required factors and then judge how the answers should be determined in your case.

The penalty for an incorrect judgment is that you'll be dubbed an infringer.

The first factor is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes."

In analyzing this first one, you need to look at a few things. You start with the issue of whether it's a commercial use or a nonprofit educational use with educational uses getting more leeway. Still, don't make the mistake of thinking that schools can do whatever they want with copyrighted materials. Schools have limits too or they wouldn't pay for textbooks (and nobody would have the incentive to write them.)

If it's not a nonprofit educational use, you look to see whether the use is for things like criticism, comment, news reporting, or research. These are other examples of uses that a court is more likely to find to be a fair use.

Finally, in analyzing the first factor, you need to look at the degree that you've changed the original. The more different it is than the original, the better.

The second statutory factor is "the nature of the copyrighted work."

This factor acknowledges that not all copyrighted works were created equal. For example, the law views this column differently than a movie script. It tolerates copying facts more than it does copying a creative writing work.

The third factor is "the amount and substantiality of the portion used in relation to the copyrighted work as a whole." So, if you copy a full page from a four-page website, that looks like an infringement. If you take that single page from an online encyclopedia, it's probably "fair use." (Of course, passing it off as your writing might be unethical plagiarism, but that doesn't necessarily make it illegal.)

There is no clear ration test here. It's conceivable that using an entire original work could be fair use, while for something else, under different circumstances, using even a small part of the original might be an infringement.

The fourth and final factor is "the effect of the use upon the potential market value or value of the copyrighted work." So, if you copy an entire article from CNN's Web site, you may be a copyright infringer since you've arguably reduced the market for their site. The recipient of your copy has no need to visit CNN's site. You gave them the article.

If you were to copy the headline and first paragraph, and then told them to go to for the rest, you're more likely to have the protection of "fair use." If anything, you've helped create a potential market by giving a teaser sample of the whole article.

The upshot of this brief foray into "fair use" is that when in doubt, ask the copyright owners permission. "Fair use" is often the answer to why it's okay to quote or copy copyrighted material, but still there is nothing safer than asking permission.

Mark Grossman's "TechLaw" column appears in numerous publications. Mark Grossman has extensive experience as a speaker as well. If you would like him to speak before your group or corporate meeting, please call (305) 443-8180 for information.

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