Recently, major file hosting website megaupload.com was raided and shutdown by the FBI. Its founders and some of its principals are facing up to 30 years behind bars. Make no mistake about it-Intellectual property theft or copyright infringement packs serious legal liabilities. Not only are you at risk of being fined substantial amounts of money, you are also running the risk of losing your freedom. Copyright violation is no joke. Many internet users are under the mistaken assumption that since they are just downloading digital materials instead of tangible items, what they are doing is not that bad. The hard truth is, in the eyes of the law, there is very little difference between downloading or copying somebody’s work without their permission and stealing their computer, money or any other tangible item. Under the law, intellectual property is exactly that- property.
Given the high stakes involved and the fast evolution of file sharing and social media technology online, there is understandably much confusion and some people think there is a great amount of gray area. This article seeks to help you avoid the legal pitfalls that involve intellectual property. Know the boundaries of copyright law if you do not want to incur the unnecessary loss of money due to fines, or go to jail.
Copyright Law in a Nutshell
Regardless of whether a person registers his work with the appropriate intellectual property agency, most jurisdictions afford content creators substantive rights over the materials they created. This protection applies to any intellectual property product regardless of whether they burned it on to a disc or placed it into a material medium like a USB drive. The bottom line is the intellectual property can be in pure digital form and it will still be protected. Several decades back, there used to be extra legal protection if people register or put a copyright label (a circle with a c inside it) on their work. The current law does not require such official markings. As long as you can prove that the creative work is your creation and you have full legal rights to it, there is really no need to register it or to have a copyright label attached to it for your rights to be protected. Of course, registering your work will make documentation easier.
The Digital Millennium Copyright Act and Your Rights
The Digital Millennium Copyright Act (DMCA) was enacted to protect owners of website portals, message boards, and other areas where people congregate online from lawsuits arising from user activities on such sites. The DMCA was drafted during a time when the internet has not fully reached its current form. In a sense, it was designed to protect the upcoming internet industry from too much litigation that might hinder its growth. However, the critics of the DMCA point out that it has been used by unscrupulous or shady operators to get around copyright law.
DMCA’s Safe Harbor provision – protection or Achilles heel?
The DMCA has a “safe harbor” provision for owners of forums, operators of websites that have user-generated content and other website properties where users can post materials. The safe harbor provision works like this: If you are the rights owner to a specific intellectual property, and you see download links or the actual copy of your work posted on a website, you are protected by law by just sending a DMCA notice to the owner of the website and they are required by law to take down the infringing material. Alternatively, you can send an e-mail correspondence to the hosting company that hosts the forum or website and they would take down the materials. No matter how straightforward this operation may seem, there are many critics of the DMCA saying that its protections are too little too late.
Indeed, there are many seemingly innocent services available online called data lockers where people would store chunks of huge files to share with their friends. Some of these people, although not all, store content that they do not own and share it with others. Regardless of whether DMCA exists, due to the huge proliferation of these links, many rights owners are not fully protected because many data locker sites have share links of pirate content.
Megaupload and Data Lockers
Just as when somebody buys a DVD player, you cannot ban the sale of DVD players because somebody down the road might play pirated DVDs on that DVD player. The DVD player in of itself is quite a legally neutral device. The illegal action arises strictly from what the user of the DVD player does. The same argument can be made with file hosts and data locker services since these companies offer to store the files of the general public on their servers. There are many legitimate uses for file lockers and data lockers. Bands, for example, record a lot of music and these are huge files which cannot be transmitted in whole via e-mail. File lockers and data lockers help bands out and other similar music creators by giving them a means to distribute their work. The same goes with artists and software developers. The problem starts when somebody shares materials at data lockers for items that they do not own. Pirated movies, pirated music, and bootleg video games are the first examples that come to mind. In this situation, DMCA may or may not help.
File Hosts, Data Lockers, and The DMCA
While some file hosts are very vigilant about DMCA requests and automatically knock out both the share link as well as the underlying data stored in their server, others are not as vigilant. The recent closure of megaupload.com was the result of several years of investigation regarding their particular business practices. Apparently, the FBI found that this particular operation was not diligently erasing materials based on DMCA complaints. In particular, they are not knocking out the actual copy on the server, just the distribution links.
How to avoid legal headaches down the road
Regardless of the specific details of the unfolding Megaupload case, it does give consumers a lot of lessons on how to avoid legal issues regarding copyrighted materials online. Follow these following tips for you to avoid legal hassles down the road. Here are some basic tips and issues to keep in mind:
1. Avoid using copyrighted materials for commercial or personal use
This is a no brainer. If you do not have the rights to something, do not use it. That is black and white. The problem begins when you only have a limited permission. For example, if you have a limited use software that the publishers allow you to access, if you use a crack or some other technology or code to defeat the limitations of the software, you have moved over to illegal use. The bottom line is to stay within the scope of the permission that you were given for the copyrighted material.
2. Derivative versions of copyrighted material do not protect you
If you have a piece of music that you do not own the rights to and you played it over your wedding pictures or you dubbed your wedding video with that music, you are violating the law. This is called “derivative works” and copyright protection still follows derivative works. Even if you are an artist and you do original non-parody art based on existing trademark images, (for example, comic book heroes) technically speaking the material that you produce based on these trademark materials is still copyrighted and they can sue you.
3. Do not store illegal materials on file hosts that pay people to upload
The problem with Megaupload and similar file sharing sites is that they were paying people to upload materials and the payment would start if the uploaded materials reached a certain number of downloads. Because of this arrangement, many people were tempted (or just shady individuals took advantage of this inceptive program) to upload illegal materials that they know there is a lot of demand for. For example, cracked video games or pornography were uploaded since these types of files have a huge demand. The affiliates would then go to forums and other high-traffic areas of the internet and post these links. Some who know SEO would create specialty blogs that are just comprised fully of download links. Even others would exploit social network websites and recruit a lot of friends where they would then distribute these download links. The end result is the same. The more people download the material through those links, the more the uploader gets paid. Since this arrangement willingly or unwillingly trigger the greed on shady individuals online, these hosting websites started to go down. Learn from their lesson.
Look at your file host’s Terms of Service
If you are going to share your legal materials (materials that you own the rights to or materials that you created), make sure that you use file hosts that do not have this type of incentive program. While not all file hosts have illegal materials on their servers, the existence of these programs increases the likelihood that they might because it acts as, whether intentionally or not, incentives for shady individuals to upload illegal materials to these data locker sites so that they can then share the links for money.
4. Know your fair use exemptions
In U.S. copyright law, there is a body of case law and expressed exemptions to copyright protection. If your materials fall within these exemptions, you are not infringing the original right owners or the original creator’s copyright protections. The most common fair use exemption is commentary or reviews. It is okay to publish or distribute part of an otherwise protected work if the intention is that you are going to review it or comment on it. There are certain cases that describe the considerations regarding whether something is a legitimate commentary or review.
It helps if you DO NOT use the complete content
Although they vary, one thing you can take away is that if you are using the whole protected work, then that is not protected because you are using it in its entirety. It is okay to use it in snippets. It is okay to use blocks or just portions or screen shots. It is not okay to use the whole work. This is very easy to understand. Just go to any game review or movie review website or the movie review portion of certain TV shows or news programs and you will see this in action. They will take just a snippet of the work that they are reviewing and then the rest of the content is the review itself, very straightforward. This rule applies to both reviews and also to commentaries. You cannot just go duplicate the whole work and then just leave like three sentences of commentary. If anything, it has to be the reversed. Most of it should be commentary and then just two snippets of content.
5. Protected parodies
Parodies are protected by law. Parodies are related to political satire. The courts in their effort to strike a balance between intellectual property rights and free speech rights ruled that parody is a protected form of intellectual property use. If you are going to use somebody else’s intellectual property and create a parody out of it, they cannot sue you. They cannot sue you because you used their trademark characters. They cannot sue you because you used certain elements from their work.
Why parodies are protected
The reason is very simple: If they can sue you for using trademarks or anything that distinguishes their work, it guts the essence of parody. The essence of parody is that you are making fun of the trademark or you are using the trademark or copyrighted material to poke fun out of political issue, to poke fun in an absurd situation. In essence, you are exercising your free speech rights. There are many streams of case regarding what is an allowable parody or not. What is clear, however, is it is not a parody if you are using unmodified full copy of the original work. It is not a parody if you just put a little something in the beginning of a movie and a little something at the end, and then the whole movie placed in the middle. That is not a parody.
Determining what a pure parody is
A pure parody strips the essence of copyrighted work and makes it your own because you used it to voice your commentary and to voice your point of view and sense of humor when making fun of either the work that you drew material from or a political situation or a social situation. Also some courts are stating that parodies to be protected must be noncommercial. However, there are still many gray areas here because there are actual Hollywood movies that are just pure parodies and that they would just rip certain elements from other genre movies to make fun of the genre as a whole. The whole noncommercial requirement really might not be that big of a factor if depending on how you craft your parody. If your parody is a pure parody, in the sense that it just took the essence of the copyrighted work and left out as much as possible the actual material or the copyrighted work, it has a higher chance of passing the parody test.
6. News is protected fair use
If you are related to reviews and commentaries, if you are going to use somebody else’s work to highlight news regarding that work. For example, if you are going to discuss news about a video game and you showed official trailers or official game play segments of that game, this is allowed as long as the amount that you show is not the whole work or a substantial amount of the work. The key is to use the minimum amount of the content to highlight the news. There is a limit to this exemption. You cannot just use the whole work and then at the end blurred out some news. That will not fly. If anything, just the bare minimum to familiarize the reader or the viewer so that they can tie in your news to the work it is referring to. The main content that you should be focusing on is really the original news that you are writing instead of the snippets of the original work that is aimed at highlighting the news value of your whole work.
7. Archives of legal copy
Under copyright law, if you own a copy of the original protected work, whether it is a book, a video, a DVD, a game or any other protected work, you are entitled to an archived version just in case the original gets destroyed. You paid for a copy so you have a right to make a copy that is safe should the original be destroyed. However, you do not have the right to sell the copy. You do not have the right to share the copy. The archival exemption is very narrow, so be very careful. When a software publisher gives you a license for their work, it is a limited license and end-user license agreement usually lists out all the situations that are covered by the license and most of the time this does not cover sharing the work. There is a shareware software and the limitations there are less restricted. Also there is open source software and the limitations there are very lax. However, for the regular commercial intellectual property, whether it is a video game, a movie or a software, you are limited to just one archived copy normally.
8. The key factor is normally commercial use
When it comes to looking for exemptions to copyright law, the key issue really is commercial use. If you are going to distribute it for some sort of material gain or some sort of gain to yourself, a red flag should come up in your mind. You should take a hard look at what you are doing because if there is commercial use involved, more likely than not you are probably infringing. Why commercial use? Because normally for this to be triggered, it means the work itself must be large enough or preserving it in its original enough form for it to have a commercial value. That is when you can land into many legal troubles. Be very careful regarding commercial use. Also if there is a commercial incentive like what happened with Megaupload, be careful of that situation as well.
The Bottom Line
Digital content has flooded the internet and digital pipes, which in the original dot com bubble, many commentators thought would never be filled have been filled to the brim with people downloading videos, sharing video games and joint use it. However, make sure that all your activities are legal because the sanctions are quite stiff. Use the tips above to stay clear of the gray areas and stay well within the legal bounds of digital content use. The law is still evolving in regard to this body of law, but you do not want to be the test case. If it feels that you are breaking the law, you probably are. Read the tips above very closely and keep yourself out of trouble.