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Earlier, I wrote about some of the common copyright mistakes students make while doing their copyright assignments. In those situations, students often assume that they have rights that they don’t have or (more importantly from the teaching perspective) haven’t really thought about the subject. I said I’d also write about some other situations. Here they are, reproduced from a page in the copyright module.

Brad Templeton is a software engineer currently on the board of the Electronic Frontier Foundation. He was an early Usenet and World Wide Web guru, and his article about 10 Big Myths About Copyright Explained was (and still is) widely circulated. The article was meant to address many of the misconceptions regarding copyright and the Internet, originally written in the mid/late 90s. I can quibble with a few things in the article (most of which can probably be attributed to the short length), but it’s still a great resource. I thought I would mention a few currently popular copyright myths, some of which I touched on in other places in the module.

1. Copyright is all about protecting the creator.
   This one is incorrect for a few reasons. First, the creator isn’t necessarily the copyright holder. More importantly, protecting the creator is a means to an end, and that end involves providing benefits to the public. Protecting the creator is important, but it is not the sole purpose of copyright law.

2. Unauthorized=illegal/You should always seek permission before using copyrighted material.
   You can’t always seek permission before using something copyrighted. This doesn’t necessarily mean that you shouldn’t use it, and it doesn’t always mean that you’re breaking the law when you do. There are exemptions to copyright law for a reason. In some situations, you can use copyrighted material even against the wishes of the creator – for example, when you are critical of a particular work. Seeking permission isn’t a bad thing, but you don’t always need permission, and you shouldn’t always look for permission. There are definitely times when it is appropriate, and there are times when it might not be. Take the time to learn about copyright exemptions.

3. Fair Use is only a defense to infringement/Fair Use is not a right.
   Saying that fair use is only a defense understates the situation. For example, we can also say that freedom of speech is only a defense using the same argument. Fair use (and freedom of speech) are usually affirmative defenses, which is a term describing procedural events in litigation. Fair use is a defense that the accused makes to defend against accusations of infringement. Being a defense does not preclude something being a right, however. In general, fair use represents first amendment rights in copyright law.

4. If you put a lot of work into something, it deserves copyright protection.
   Copyright (in the US!) is based on originality. Just because someone puts a great deal of effort into something doesn’t mean that it should be protected. The “sweat of the brow” argument was rejected by the courts in Feist Publications v. Rural Telephone Service. Copyright is intended to encourage creativity. In other countries, however, the law does offer protection based on this concept.

5. P2P technologies are illegal.
   Technologies generally aren’t illegal themselves. If a given technology is capable of “substantial noninfringing uses” (from the Betamax case), then the creators of that technology aren’t liable for infringement. It’s the intent of the creators of the technology (from the Grokster case), that determines whether or not creators might be liable for infringement. In general, however, it’s the users of the technology that can commit infringing acts, and not the technology itself. BitTorrent is not infringing, but some uses of BitTorrent are infringing.

6. Infringement is piracy is stealing.
   While I don’t really mind people making arguments that copyright infringement is like X because of Y, saying that it IS something is generally used as a direct appeal to emotion, without any of the argument actually expressed. We all agree that theft is bad, so calling infringement theft shortcuts any arguments to the contrary. COPYRIGHT INFRINGEMENT IS A CRIME. You don’t need to call it piracy, stealing, or theft to say that it is a crime. Those are all crimes in and of themselves with distinct legal meanings. This language is usually used to create a sense of panic and urgency, as described well in William Patry’s book, Moral Panics and the Copyright Wars.

7. The industry is losing Y dollars or X jobs because of Z (piracy, file-sharing, etc.)
   As described earlier in this module, these numbers are often made up or otherwise the results of poor research. There is very little empirical research about the effects of infringement. This is partly because this type of research is difficult. When you hear or read about these numbers, you should try to determine their source before making decisions based on those numbers.

8. If we don’t have stronger copyright laws, no one will create anything.
   William Patry answers this best.

   “Regrettably, policymakers (and even many copyright owners) have been taken in by the slogan that stronger rights are somehow not only inherently better but inherently necessary. There is no empirical support for this view, and much evidence to the contrary. If stronger protection is always better, why not make the term of patent protection life of the inventor plus 70 years too? If stronger criminal laws are necessary to deter infringers, why not impose the death penalty, as China has done? The only type of laws we need are effective laws, laws that are effective for their purpose, in the case of copyright, to promote the progress of science, in the words of the US Constitution.” (p. 39)
   -William Patry (2009), Moral Panics and the Copyright Wars, Oxford University Press.

   There is little to no evidence that stronger copyright laws will decrease creativity- and there’s actually some evidence to the contrary. Stronger copyright laws can act as a deterrent to creation.

9. Copyright Warnings are the Law.
   As mentioned earlier in the module, the NFL and the MLB are fairly notorious for making copyright claims that are essentially not true. This is true of other warnings as well. Notices that claim things like “no part of this may be reproduced without the written consent of…” or “any accounts of this broadcast are prohibited” are probably overreaching and probably ignore copyright exemptions. View such notices with some skepticism, and look into the specific situation if you would like to use such material.

10. Copyright is black and white.
    In my experience, the answer to almost any reasonable copyright question is “It depends.” Is file-sharing legal? It depends on what you’re sharing, who you’re sharing it with, and why you’re sharing it. A great deal of gray area exists in copyright law. That doesn’t make dealing with copyright easy, but it does allow some leeway in using copyrighted material.