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Copyright myths. 
 

1) "If it doesn't have a copyright notice, it's not copyrighted." 
This was true in the past, but today almost all major nations follow the 
Berne copyright convention. For example, in the USA, almost everything 
created privately and originally after April 1, 1989 is copyrighted and 
protected whether it has a notice or not. The default you should assume 
for other people's works is that they are copyrighted and may not be 
copied unless you know otherwise. There are some old works that lost 
protection without notice, but frankly you should not risk it unless you 
know for sure. 

It is true that a notice strengthens the protection, by warning people, 
and by allowing one to get more and different damages, but it is not 
necessary. If it looks copyrighted, you should assume it is. This 
applies to pictures, too. You may not scan pictures from magazines and 
post them to the net, and if you come upon something unknown, you 
shouldn't post that either. 

The correct form for a notice is: 



   "Copyright [dates] by [author/owner]"

You can use C in a circle © instead of "Copyright" but
"(C)" has never 
been given legal force. The phrase "All Rights Reserved" used to be 
required in some nations but is now not legally needed most places. In 
some countries it may help preserve some of the "moral rights." 

2) "If I don't charge for it, it's not a violation." 
False. Whether you charge can affect the damages awarded in court, but 
that's main difference under the law. It's still a violation if you give 
it away -- and there can still be serious damages if you hurt the 
commercial value of the property. There is an exception for personal 
copying of music, which is not a violation, though courts seem to have 
said that doesn't include widescale anonymous personal copying as 
Napster. If the work has no commercial value, the violation is mostly 
technical and is unlikely to result in legal action. Fair use 
determinations (see below) do sometimes depend on the involvement of 
money. 
3) "If it's posted to Usenet it's in the public domain." 
False. Nothing modern is in the public domain anymore unless the owner 
explicitly puts it in the public domain(*). Explicitly, as in you have a 
note from the author/owner saying, "I grant this to the public domain." 
Those exact words or words very much like them. 

Some argue that posting to Usenet implicitly grants permission to 
everybody to copy the posting within fairly wide bounds, and others feel 
that Usenet is an automatic store and forward network where all the 
thousands of copies made are done at the command (rather than the 
consent) of the poster. This is a matter of some debate, but even if the 
former is true (and in this writer's opinion we should all pray it isn't 
true) it simply would suggest posters are implicitly granting 
permissions "for the sort of copying one might expect when one posts to 
Usenet" and in no case is this a placement of material into the public 
domain. It is important to remember that when it comes to the law, 
computers never make copies, only human beings make copies. Computers 
are given commands, not permission. Only people can be given permission. 
Furthermore it is very difficult for an implicit licence to supersede an 
explicitly stated licence that the copier was aware of. 

Note that all this assumes the poster had the right to post the item in 
the first place. If the poster didn't, then all the copies are pirated, 
and no implied licence or theoretical reduction of the copyright can 
take place. 

(*) Copyrights can expire after a long time, putting something into the 
public domain, and there are some fine points on this issue regarding 
older copyright law versions. However, none of this applies to an 
original article posted to USENET. 

Note that granting something to the public domain is a complete 
abandonment of all rights. You can't make something "PD for 
non-commercial use." If your work is PD, other people can even modify 
one byte and put their name on it. 

4) "My posting was just fair use!" 
See other notes on fair use for a detailed answer, but bear the 
following in mind: 

The "fair use" exemption to (U.S.) copyright law was created to allow 
things such as commentary, parody, news reporting, research and 
education about copyrighted works without the permission of the author. 
That's important so that copyright law doesn't block your freedom to 
express your own works -- only the ability to express other people's. 
Intent, and damage to the commercial value of the work are important 
considerations. Are you reproducing an article from the New York Times 
because you needed to in order to criticise the quality of the New York 
Times, or because you couldn't find time to write your own story, or 
didn't want your readers to have to register at the New York Times web 
site? The first is probably fair use, the others probably aren't. 

Fair use is usually a short excerpt and almost always attributed. (One 
should not use more of the work than is necessary to make the 
commentary.) It should not harm the commercial value of the work -- in 
the sense of people no longer needing to buy it (which is another reason 
why reproduction of the entire work is a problem.) 

Note that most inclusion of text in Usenet followups is for commentary 
and reply, and it doesn't damage the commercial value of the original 
posting (if it has any) and as such it is fair use. Fair use isn't an 
exact doctrine, either. The court decides if the right to comment 
overrides the copyright on an individual basis in each case. There have 
been cases that go beyond the bounds of what I say above, but in general 
they don't apply to the typical net misclaim of fair use. 

The "fair use" concept varies from country to country, and has different 
names (such as "fair dealing" in Canada) and other limitations outside 
the USA. 

Facts and ideas can't be copyrighted, but their expression and structure 
can. You can always write the facts in your own words. 

See the DMCA alert for recent changes in the law. 

5) "If you don't defend your copyright you lose it." -- "Somebody has 
that name copyrighted!" 
False. Copyright is effectively never lost these days, unless explicitly 
given away. You also can't "copyright a name" or anything short like 
that, such as almost all titles. You may be thinking of trade marks, 
which apply to names, and can be weakened or lost if not defended. 

You generally trademark terms by using them to refer to your brand of a 
generic type of product or service. Like an "Apple" computer. Apple 
Computer "owns" that word applied to computers, even though it is also 
an ordinary word. Apple Records owns it when applied to music. Neither 
owns the word on its own, only in context, and owning a mark doesn't 
mean complete control -- see a more detailed treatise on this law for 
details. 

You can't use somebody else's trademark in a way that would steal the 
value of the mark, or in a way that might make people confuse you with 
the real owner of the mark, or which might allow you to profit from the 
mark's good name. For example, if I were giving advice on music videos, 
I would be very wary of trying to label my works with a name like "mtv." 
:-) You can use marks to critcise or parody the holder, as long as it's 
clear you aren't the holder. 

6) "If I make up my own stories, but base them on another work, my new 
work belongs to me." 
False. U.S. Copyright law is quite explicit that the making of what are 
called "derivative works" -- works based or derived from another 
copyrighted work -- is the exclusive province of the owner of the 
original work. This is true even though the making of these new works is 
a highly creative process. If you write a story using settings or 
characters from somebody else's work, you need that author's permission. 

Yes, that means almost all "fan fiction" is arguably a copyright 
violation. If you want to write a story about Jim Kirk and Mr. Spock, 
you need Paramount's permission, plain and simple. Now, as it turns out, 
many, but not all holders of popular copyrights turn a blind eye to "fan 
fiction" or even subtly encourage it because it helps them. Make no 
mistake, however, that it is entirely up to them whether to do that. 

There is a major exception -- criticism and parody. The fair use 
provision says that if you want to make fun of something like Star Trek, 
you don't need their permission to include Mr. Spock. This is not a 
loophole; you can't just take a non-parody and claim it is one on a 
technicality. The way "fair use" works is you get sued for copyright 
infringement, and you admit you did copy, but that your copying was a 
fair use. A subjective judgment on, among other things, your goals, is 
then made. 

However, it's also worth noting that a court has never ruled on this 
issue, because fan fiction cases always get settled quickly when the 
defendant is a fan of limited means sued by a powerful publishing 
company. Some argue that completely non-commercial fan fiction might be 
declared a fair use if courts get to decide. You can read more 

7) "They can't get me, defendants in court have powerful rights!" 
Copyright law is mostly civil law. If you violate copyright you would 
usually get sued, not be charged with a crime. "Innocent until proven 
guilty" is a principle of criminal law, as is "proof beyond a reasonable 
doubt." Sorry, but in copyright suits, these don't apply the same way or 
at all. It's mostly which side and set of evidence the judge or jury 
accepts or believes more, though the rules vary basedon the type of 
infringement. In civil cases you can even be made to testify against 
your own interests. 
8) "Oh, so copyright violation isn't a crime or anything?" 
Actually, recently in the USA commercial copyright violation involving 
more than 10 copies and value over $2500 was made a felony. So watch 
out. (At least you get the protections of criminal law.) On the other 
hand, don't think you're going to get people thrown in jail for posting 
your E-mail. The courts have much better things to do. This is a fairly 
new, untested statute. In one case an operator of a pirate BBS that 
didn't charge was acquited because he didn't charge, but congress 
amended the law to cover that. 
9) "It doesn't hurt anybody -- in fact it's free advertising." 
It's up to the owner to decide if they want the free ads or not. If they 
want them, they will be sure to contact you. Don't rationalize whether 
it hurts the owner or not, ask them. Usually that's not too hard to do. 
Time past, ClariNet published the very funny Dave Barry column to a 
large and appreciative Usenet audience for a fee, but some person didn't 
ask, and forwarded it to a mailing list, got caught, and the newspaper 
chain that employs Dave Barry pulled the column from the net, pissing 
off everybody who enjoyed it. Even if you can't think of how the author 
or owner gets hurt, think about the fact that piracy on the net hurts 
everybody who wants a chance to use this wonderful new technology to do 
more than read other people's flamewars. 

10) "They e-mailed me a copy, so I can post it." 
To have a copy is not to have the copyright. All the E-mail you write is 
copyrighted. However, E-mail is not, unless previously agreed, secret. 
So you can certainly report on what E-mail you are sent, and reveal what 
it says. You can even quote parts of it to demonstrate. Frankly, 
somebody who sues over an ordinary message would almost surely get no 
damages, because the message has no commercial value, but if you want to 
stay strictly in the law, you should ask first. On the other hand, don't 
go nuts if somebody posts E-mail you sent them. If it was an ordinary 
non-secret personal letter of minimal commercial value with no copyright 
notice (like 99.9% of all E-mail), you probably won't get any damages if 
you sue them. Note as well that, the law aside, keeping private 
correspondence private is a courtesy one should usually honour. 

11)"So I can't ever reproduce anything?" 
Myth #11 (I didn't want to change the now-famous title of this article) 
is actually one sometimes generated in response to this list of 10 
myths. No, copyright isn't an iron-clad lock on what can be published. 
Indeed, by many arguments, by providing reward to authors, it encourages 
them to not just allow, but fund the publication and distribution of 
works so that they reach far more people than they would if they were 
free or unprotected -- and unpromoted. However, it must be remembered 
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. 

The author's right to control what is done with a work, however, has 
some validity, even if it has no commercial value. If you feel you need 
to violate a copyright "because you can get away with it because the 
work has no value" you should ask yourself why you're doing it. In 
general, respecting the rights of creators to control their creations is 
a principle many advocate adhering to. 

In addition, while more often than not people claim a "fair use" copying 
incorrectly, fair use is a valid concept necessary to allow the 
criticism of copyrighted works and their creators through examples. But 
please read more about it before you do it. 
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In Summary

*  These days, almost all things are copyrighted the moment they are 
written, and no copyright notice is required. 
*  Copyright is still violated whether you charged money or not, only 
damages are affected by that. 
*  Postings to the net are not granted to the public domain, and don't 
grant you any permission to do further copying except perhaps the sort 
of copying the poster might have expected in the ordinary flow of the 
net. 
*  Fair use is a complex doctrine meant to allow certain valuable social 
purposes. Ask yourself why you are republishing what you are posting and 
why you couldn't have just rewritten it in your own words. 
*  Copyright is not lost because you don't defend it; that's a concept 
from trademark law. The ownership of names is also from trademark law, 
so don't say somebody has a name copyrighted. 
*  Fan fiction and other work derived from copyrighted works is a 
copyright violation. 
*  Copyright law is mostly civil law where the special rights of 
criminal defendants you hear so much about don't apply. Watch out, 
however, as new laws are moving copyright violation into the criminal 
realm. 
*  Don't rationalize that you are helping the copyright holder; often 
it's not that hard to ask permission. 
*  Posting E-mail is technically a violation, but revealing facts from 
E-mail you got isn't, and for almost all typical E-mail, nobody could 
wring any damages from you for posting it. The law doesn't do much to 
protect works with no commercial value.
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