Wild, Wild Web

In cyberspace, copyright infringement is only a click away. Commonsense guidelines to intelectual property in unsettled territory.

Mike Godwin from the June 1998 issue

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If you do happen to receive a request from the copyright holder of the page asking you to "unlink" from the site, it is generally good "netiquette" to respect that request, whatever the reason for it, and remove any link. But this needn't be a hard-
and-fast rule. For example, your link to a political opponent's page may be used to illustrate a particular criticism: If you are pro-choice, you might want to link to an anti-abortion page (or vice versa) in order to make your point. Such criticisms, even with the attendant links, and absent any defamatory or libelous remarks, are generally OK.

2) Don't try to pass off someone else's material as your own. It doesn't matter whether you're linking or just plain copying--copyright law is all about making sure the person who holds the copyright for a particular work has the primary control over it and gets the primary benefit from it.

3) When in doubt, ask permission. If you would like to use someone's material, the most logical step is to ask--but be sure that the person from whom you are obtaining permission is authorized to give it.

4) Don't just assume that reusing material is OK. It is rarely a bad idea to ask permission to use material in order to avoid any potential problems down the road, especially if the material you are copying to your hard drive, floppy disk, Web page, off-line publication, etc., is something that the copyright holder might not want you to use. There is a great amount of leeway in copyright law that allows for use of material without permission, provided you stay within the rules. Sometimes it is not necessary to ask for permission in using copyrighted material, but you might want to ask anyway. And in copyright law, it often does matter if you can show you tried to find the copyright holder.

5) Use of ideas or information that you may have learned from a copyrighted work is also generally OK. Copyright law doesn't protect ideas or information--it just protects the particular expression of ideas or information once they've been "fixed" in a tangible medium (like paper or a hard disk). So if you see the movie Love Story and you write your own story about Preppy finds Girl, Preppy loses Girl, Preppy really loses Girl, you probably haven't violated anyone's copyright. But the minute you start posting actual dialogue from the book to your Web site, you can be sure you'll be hearing from Erich Segal's (or his publisher's) lawyers.

6) The mere possession of material does not make you the copyright owner. Say a guy sent you e-mail out of the blue, and it's something you feel like publishing. The copyright to the material you are using may belong to the author or someone else who has acquired it. Use of the material may still require permission.

7) Look at the purpose and character of your intended use. If you are using the material for educational purposes, limited use of the material may be acceptable, even without permission. However, if the use of copyrighted material is for a commercial purpose or is intended to derive some economic benefit, you will likely have to gain permission from the copyright holder and comply with certain conditions for use.

8) Compare the proportion of the work you are using to the work as a whole. It is one thing to quote a few paragraphs of a 20-page essay. It is quite another matter to take 800 words of a 1,000-word newspaper story. The amount and substantiality of the work you can use without permission is not carved in stone (or even set out in the law books), so be aware of how much of the "meat" of the work you are taking. This is a gray area, but if you're embarrassed by how much of the work you're "re-purposing" for your own use, it's probably something you should ask the copyright holder about.

9) In general, try to make sure that your unlicensed use of any copyrighted work does not significantly affect the potential economic market of the original work. OK, you can break this rule--maybe--if you've got a copy of the latest equivalent of the Pentagon Papers and you think the world has a right to know. But in general copyright holders have an exclusive right to use their material for economic gain. That's the assumption you have to begin with. So unless they give you permission to use their work, usually done in the form of a license, the impact you have on their market by your use of the work could expose you to an infringement lawsuit. And who needs that? (It's true that sometimes a court will rule in your favor anyway, as when factors such as educational or journalistic uses are important enough to outweigh the economic impact on the copyright holder.)

10) Don't assume that your use of copyrighted material on your company's internal network--e.g., a Web page on your Intranet--is not an infringement or will not be seen outside the company. Intranet Web pages may be limited in circulation, but they're not exempt from the copyright laws. And don't circulate infringing material within your Intranet on the assumption you won't get caught.

Don't treat other people's copyright interests as if they were necessarily opposed to your interests. Presume a collegial relationship instead. Often the owner of a copyright will discover his work being used without permission and simply request that it be removed from the publication, Web site, etc. And since you're a nice guy or gal, you'll want to comply. But you can't count on every copyright holder to be so understanding. Don't risk a lawsuit for copyright infringement by assuming you will not get caught.

If you have real legal problems, you need to talk to your own lawyer, and cribbing from our (copyrighted!) guidelines here won't suffice. But our experience is that if you basically do your best to be a nice gal or guy when it comes to someone else's copyrights, you're less likely to have serious legal problems in the first place. And since part of using the Net is finding new ways to connect with people and to work cooperatively with them, it's better if everybody acts nicely enough so that no one even thinks about going to the courthouse. Or at least not before it's absolutely necessary.