The Digital Age of File Management: Navigating the Murky Copyright Waters of the Internet

The online world is full of information and creative content unique to artists, programmers, researchers, and others. Most websites, and copyright holders, put their intellectual property out there without any chains or copyright-theft protection other than the U.S. copyright laws. Implementing brute-force protection isn’t the most difficult thing in the world, but it does sometimes make the web less usable. Plus, let’s not forget that stealing is wrong – even if it is stealing someone else’s ideas.

What Does Public Domain Really Mean?

What’s in the public domain? Not much – at least not a lot of popular works. The public domain is one of the few places where you can copy, distribute, and pretty much do whatever you want to an author’s intellectual work without any legal repercussions. In fact, sites like Vuze encourage users to make use of the public domain, while discouraging copyright infringement, by providing a bittorrent platform that’s perfect for downloading and sharing public domain copyright-free material.

However, while the Internet certainly is open to the public, it’s not the “public domain,” and here is where many individuals run afoul of the law. The error in thinking here is that the Internet itself is in the public domain, or anything that is publicly available is in the public domain. It’s not. Cable and telecom companies rightfully own and control access to the net through their own servers. You pay a service fee to connect through them.

Of course you could buy your own T1 line or set up some other service to connect to the net directly, but it’s expensive, so you effectively “lease” connection to the net from another established company. Even if you did connect directly through your own home-brew service, companies on the web own and control their own domain name and all of the content on the site.

You can’t just copy and paste anything from the web. Think about it this way. If your car isn’t in your garage, does that give someone the right to take it out for a spin? No, of course not.

Yet, many people mistakenly believe that anything on the Internet is up for grabs. If their browser allows them to “save file as,” they believe that they can download and save the file. If their browser contains a cache of a website, they believe it’s theirs to use as they see fit because it’s on their computer. But this is like walking into someone else’s house with your iPhone and having that person lay claim to your personal banking information on your phone because “it’s in their home.” It’s ridiculous, right?

The only things on the web that may be freely copied include information that is created by the federal government, anything where the copyright has legally expired, any content where the copyright has been legally abandoned by the holder, content that is authorized or licensed by the copyright holders for free sharing, and uses that fall under the “fair use” exception to copyright law.

What About Web Graphics, Sound Files, and Other Content?

Almost all creatively original works of authorship, including web graphics, are copyright protected when the developer or content creator publishes them, whether or not they make it clear that there is copyright protection on the graphic or sound. Even some images that are provided for free through projects like the Creative Commons, are not in the public domain. You must abide by the copyright holder’s terms of use, which may or may not exclude commercial use or distribution using certain methods.

What about linking to images? You’re not always in the clear even then. Unless you are a search engine like Google sometimes, copyright holders place special conditions on the linking to an image. If the author states that you must link to the image if it’s placed on a commercial site, you must link to the image if it goes on your site.

Hot-linking and Spider Harvesting

Hot-linking or spider harvesting refers to the direct linking to images on your website, without hosting them on your site. So, for example, let’s say you find an image on the web. Rather than copying the image and uploading it to your site (which would be bad enough), you decide to link to it directly so that it displays on your website, but the image itself is downloaded to a user’s browser from the originating website.

This can be considered bandwidth theft as well as copyright infringement since you are reproducing content without the copyright owner’s permission and you are forcing the website owner to use his bandwidth to download images to your site so your visitors can see the image. It would be like running an extension cord from your neighbor’s home to your house so you could run all of your electronics. You’re stealing his electricity – same idea.

Fair Use

The concept of Fair use refers to using part of the copyright holder’s content for a variety of uses, such as for purposes of parody, news reporting, research and education about the copyrighted work, or creating a transformative work. This is done without the copyright-holder’s permission. Amazingly, this is actually legal, and it’s moral. Why? Well, it is complex, but think of it this way: if the copied work doesn’t deprive the copyright holder of money he would have earned but for your use of the work, it might be fair. Whether a use falls under the legal concept called fair use is sometimes easy and other times very difficult to determine.

You may still have to credit your source when you do this, however, and there are limitations, even when you use copyright-protected work for “education purposes.” Unfortunately, there are no hard and fast rules as to what constitutes “fair use,” and the rules can change depending on the circumstances. It’s always best practice and a professional courtesy to contact a copyright lawyer before using any copyright-protected material under “fair use” laws.

International Copyrights

International copyright laws do and don’t exist. In one sense, they do exist because the Berne Convention and the Universal Copyright Convention (UCC) do protect your rights. However, there are no copyright laws that protect your work universally in all countries. That’s because your rights can only be protected in countries that respect the rule of law and have signed the treaties providing for international copyright protection.

It’s entirely possible for a work to be protected by copyright in one country and yet not enforced in another. So, U.S. copyrights are valid in the U.S. and, morally, they’re enforceable everywhere. However, in a third-world dictatorship, they may not be enforced at all because the government does not recognize the laws of the U.S.

Nancy Owen is an enthusiastic law professor concentrating on intellectual property. After years of lectures and mentoring students, she also enjoys blogging about common legal questions in today’s tech-heavy world.

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