Can you violate federal copyright law by merely visiting a Web site? Some would want the answer to be "yes!" I happen to think that "yes" would be an absurd answer, but today, proposals like this, to enhance copyright owners' rights in cyberspace, are floating around the Capitol.
Overreaching proposals aren't unprecedented in copyright law. They're almost common as advancing technology keeps the law in a state of flux. It's this glum and doom thing. Every so often, a new technology comes along that makes it "too easy" to make infringing copies of a copyrighted work. Those who own copyrights panic and demand expansive new legislation to protect their rights.
Not too long ago, copyright law wrestled with how easy it became to infringe copyrights with the invention of photocopy machines and VCRs. In trying to protect copyright owners, some argued that we should ban-or at least strictly regulate-these devices. (Without going into the details of what became of these ideas, suffice it to say that the last time I checked, I had an unregulated photocopier at the office and a very legal VCR at home.)
Today it's computers, digital technology, and the Internet that some think make it too easy to infringe copyrights. While it's true that digital copying is easy and usually perfect, it doesn't follow that copyright owners need broad new rights to protect themselves. Undoubtedly tweaking and clarifications are needed, but copyright protection already exists in the digital world to the surprise of many.
E-mail and the Web
Have you ever sent an e-mail over the Internet? Maybe you have your own Web site. In both cases, federal copyright law already protects your ownership rights in the information that you've sent into cyberspace. (Yes, even e-mail gets copyright protection.)
Despite a popular misconception to the contrary, the Internet is not an intellectual property free-for-all. Copyright and other intellectual property laws, like trademark law, apply to electronic material on the Net.
Registration and Notice
The best part is that you don't have to do anything to acquire a copyright in online or printed materials. Another popular misconception is that you must put a copyright notice on your work and register it with the Copyright Office to have a valid copyright. Although there are good reasons to do these things, they're not required steps.
Copyright registration does provide certain advantages. For example, if you're ever forced to sue to protect your copyright and if you registered your copyright within 90 days of first publication, you can recover significantly more money from the infringer and be eligible for a reimbursement of your attorney's fees. Of course, let's not forget that the advantages from registration put you in a stronger bargaining position for a settlement.
A traditional copyright notice like "Copyright 1997 Mark Grossman" is always a good idea. You take away an infringer's claim of innocent infringement if you give a clear copyright notice. It's only when you have willful infringement that courts get into the big bucks damages awards.
Fair Use Exception
The best way to avoid liability for copyright infringement is to avoid everyone else's work. In real life, that's impossible. It's often called "research."
"Fair use" is the statutory doctrine that often legitimizes the limited use of somebody else's copyrighted work. It's the "fair use doctrine" that makes copyrighted work fair game for criticism, comment, news reporting, teaching, scholarship, and research.
Many people believe that fair use doesn't apply if their goal is profit. That's wrong. "Fair use" can also apply in a pure profit-making context. It's not that profit is a prohibited motive under "fair use," it's just that if profit is the predominant goal, the amount of copying that may be permitted is more limited.
Even a nonprofit Internet site probably cannot assert the fair use exception if it goes too far. Let's say a nonprofit site created a Web site to deliver commentary on music compositions. On the site, they've placed a sample of a composition for their visitors' listening pleasure. This could be a copyright infringement depending on the amount of the composition used. If they've given their visitors two minutes of a three minute song, fair use is probably a loser.
A "fair use" analysis requires you to consider four statutory factors. No single one is dispositive and the answers are rarely clear.
The first factor is the purpose and nature of the use. This is the one that makes education and analysis good and profits bad.
The second is the nature of the copyrighted work. The law tolerates copying facts more than copying a creative writing work.
The third factor is the amount copied in relation to the size of the whole copyrighted work. This is why two minutes of a three minute song may not be fair use even for a nonprofit, educational Web site. Simply, two thirds of the original is probably too much.
Finally, the effect of the use on the potential market for, or value of, the copyrighted work. A "teaser" containing one page of a 500-page book on a Web site reviewing the book is probably not a problem even if you have to pay to access that Web site. The "teaser" arguably won't affect the potential market for the book.
The "fair use doctrine" has been around for a while. As with so many legal doctrines, it's still unclear how we will apply it in cyberspace. Until things are clearer, the safe choice is to get the author's written permission before copying even part of their work. If you prefer not to do that, at least get yourself some good legal advice before you risk a costly copyright infringement lawsuit.