Comments about copyright
use rules (II)
people confuse the copyright with the fair use. As its name
suggests, the fair use is a general right granting the use of
material in the framework of a non-commercial work (in a book which
illustrations or quotations are related to their subject, on the Internet and web
amateurs and even some professionals take advantage of documents
published by others to copy, extract, translate of modify them on their own
website or to publish them in books, articles or newsgroups. If the original work is protected by a copyright
(for example when there was a translation), sometimes you
could be in trouble.
Indeed, such an appropriation could affect the
original copyright of the proprietary. It is very important
for both parties to determine with accuracy infringement and
effect(s) of this use in the marketplace for the original work,
specially for any commercial use.
short, the law states that analysis and short quotations are allowed
if the work in which they are included displays a critical,
educative, scientific or informative character.
For quotations or extracts of books, if the
fair use rule applies, the author or the proprietary of rights has not to grant permission by
default, and he is not at all involved with the case.
if fair use rules state for example that illustrations must be
related to their subject, this usage has also to satisfy to the the
other criteria edicted by the law. It means that the reader
extracting an image, even in reduced size, publishes it on a
newsgroup or on a website, he has to list all legal mentions
(complete URL or book title, date, editor, author, etc).
people infringe copyright because they don't satisfy to these
conditions by simple laziness or ignorance. Indeed,
if they list well the source of the document (the website URL or the
book title), most don't list the name of the author having signed
the text or the illustration. But the writer or the webmaster and
the illustrator can be (and are usually) different persons. So be
aware about this problem to prevent any possible dispute with
authors or publishing houses.
read : Fair
Use of Copyrighted Materials
texts, the law states that the quotation must be short,
both in regards to the work from which it has been extracted, and to the new document in which it
is included. But what exactly means "short" ?
Some authors mention "up to 10 % of the new publication", others stress that no entire work (letter,
poem, article) is allowed. Usually when it concerns a book or a
magazine, editors accept the use of an A5-size page of quotations
or about 1500 characters but there are exceptions. In my case for
example, an editor granted me the permission of reproducing about
9000 characters in my book about the history of quantum physics,
Histoire de la Physique : 1 - La Physique Quantique.
As for biographies (e.g. works of Einstein, Newton, Hawking, etc),
it goes without saying that the permission concerns much more material
and is subject to a peculiar commercial agreement. On Internet the extract
is usually much shorter.
are more reluctant when their publication is released on newsgroups.
Usually the quotation is limited to one paragraph or a few hundreds
of characters maximum, and the credit line must be complete, with
mention of copyright, to prevent a copyright infringement.
At the end the evaluation
is a rather arbitrary. In case of any doubt, I suggest you to contact the
concerned people (author or editor) to prevent in the future to be
in their firing line.
the Internet, the insertion of an hyperlink in a web page to another website
to direct the reader to additional information or the hyperlink to
an image in small size (with all required mentions of copyright) is usually considered
as included in fair use rules. Legal
precedents seem to go in that way without replacing the doctrine.
This use is different from inserting
a direct link or hot link to an original image published in full
size, which copy will be displayed on
your site, even virtually. This use can require a permission, all
the more when it concerns a commercial work protected by copyright.
In this special case, we are outside Fair use rules, and if there
abuse, the author can rightfully asserts a harm, moral or financial.
that if you ask someone to include a link to his home page or to specifications
or to the image of a product, do never forget that a non response from
the author is never worth for a permission (in practice
infringements are rarely checked as the fair use usually should apply but
this publicity could be not appreciated and represent a harm).
last, remember that the fair use doesn't mean that everything is
permitted. Modifications to a public domain work for example may be
protected by copyright and cannot be used without permission. Stanford
University Libraries recall a famous case : an artist painted an
elaborate hat and mustache on the Mona Lisa. Even though anyone is
free to copy this painting, the modified image bringing mustache
and hat is protected under the artist's copyright and requires the
paiment of a fee.
to find out an Internet user ?
on the web
are several ways to identify an individual on the Internet,
at least his or her computer, that it is a company or a
private people whose server is reachable from the Internet.
We can use online searching engines (e.g. DNSStuff,
) or small programs that you can sometimes download
and that take advantage of DNS systems, whois directories and commands
like ping, lookup, trace, and some others. The search is
transparent for the user and the answer immediate. From the
domain name for example you can get the mail address and the
email of the provider or references of the PTT office to which
the user is connected.
use rules and DMCA
DMCA is an authentic act that the author has to sign. In signing this
document, the author liability is engaged. Therefore, pursuing
that Act the author may be liable to the alleged infringer for
damages (including costs and attorneys' fees) if he materially
misrepresents that he owns an item, when he in fact does not.
Indeed, in a case
judged in 2004, a company that sent an infringement notification by
DMCA to a user that used their images and create links without their
permission, and seeking removal of online materials was judged for
abuse of copyright and no respect of Fair use rules. It was ordered
to pay over $125,000 to the defender, including charges and attorney
fees ! Accordingly, if you are not sure whether material available
online infringes your copyright, do first contact an attorney.
to comply with the DMCA ?
that this document is only require by some US companies. But not all
companies request a DMCA, and AOL
to name one, requests only to complete a standard form, as does Yahoo!
doesn't use such a document either, although EDRi works on a similar
project of law.
an author is victim of an infringement of his copyright and cannot
find rapidly an arrangement with the offender, the author can fill
in a DMCA that he will address to the provider of the user so that
he can make action against the offender, e.g. in removing or disabling
the public access to the material claimed to be the subject of infringing
activity. Here is a sample of such a DMCA that I
prepared (Word document of 23 KB).
a first step, it is suggested to send an email to the provider Abuse
service. He usually has an email address in the format
"email@example.com" (see network tools above).
intend to comply with the DMCA and other applicable intellectual
property laws, from now, most US providers (Blogger, Google, Lycos, etc) require that the author provides a written communication that
sets forth the items specified in the DMCA. His signature is
required on the complaint before the provider can process it. The action from the provider will be immediate. Why
? Because in this way his responsability will be excluded in case of
the author needs to sign the document, he cannot send the DMCA by
email. Some companies refuse a DMCA sent as a scanned and signed
image, even included in a Word document. In this particular case,
the author has either to send the signed DMCA by fax,
ordinary mail or to place it at the provider disposal on a website
from which it could be downloaded. In practice, if the author has no fax
but a printer and scanner, he can complete the document, sign it and print
it. Then he can scan the document at 100 dpi in grayscale. At last,
the scanned image will be put on a website and the URL given to the provider
so that he can download it.
way to process the DMCA remains at the appreciation of providers.
Some companies require the author postal address and phone number
and accept that the document is sent by email. Others accept a
simple email address of contact but the document has to be put on a
website or sent by fax or postal mail.
fact, usually the address and phone number are not mandatory to
initiate a claim. These private information will be only required if
the offender initiates a counter notification or when the author will
initiate a legal
will find other commentaries on how to complete a DMCA on the
website of Google (that
also represents Blogger), Scribd
Daddy. Note that if the first provider accepts to download a
signed DMCA from a website, it doesn't request the address and phone
number of the author but only an email, while the other providers
request these private and optional information. In this case it
is a free interpretation of the law. So, either you discuss the policies
with the Abuse team of the company or you escalate the question, or you accept this
abuse of authority if you want a fast resolution of your problem.
see now the special case of non-moderated newsgroups, these forums
where each people can discuss with correspondents about various
subjects. It is became the pastime of many amateurs, and of young
people in particular.
read : How
do you send a DMCA ? (Seologic)
infringement on non-moderated newsgroups (forums)
could happen that a person infringes voluntarily a copyright in
posting an image or copying an extract of book or article from a
website or another media under copyright on a non-moderated newsgroup.
"Non moderated" means that threads (messages) are subject
to no control from a webmaster, named in this case a moderator who has
all control on the information released on his server (note that he can
stop or delete a message but cannot modify it or change its destination
for fear of legal prosecution as well).
read : 10 Big Myths about copyright explained
copied materiel looks sometime like complete articles representing
thousands of characters and several A4 pages. Images are also
sometimes displayed at their maximum size. If the sender took always
the care of requesting prior publishing the permission to the author
or to extract a paragraph or publishing a reduced version of the
image with the mention of the copyright and the source, all would be
very well in the best of worlds. But usually the author is not
informed and the copy spreads on several screen pages showing all
characteristics of a plagiarism or an infringement of copyright.
amateurs consider that acting like this way "they do
publicity" for the referenced website. But it is ignoring that
first the author doesn't maybe appreciate a publicity in this kind,
Between fair use rules and a complete copy with or without credit,
let's recognize that there is for the least more than a shade and
surely an infringement.
there are harm for the author if a dishonest person put a text which
size exceeds admitted fair use rules or a copyrighted material on
such non-moderated forums.
special kind of non-moderated newsgroups are like "free
electrons" : their host servers are autonomous, sometimes
managed by companies established across the world which activities
are almost unverifiable on site, excepted of course in a bordering
news servers are interconnected across the world and use sometimes
mirror sites. Their fonction is to assure that the information....
is well transmitted !
assembling of a fragment of the new servers network. They are
all interconnected through Internet, the circulation is
optimized but out of control because all servers are managed
independently each from another.
An information released on one of these servers
is automatically duplicated on all connected servers across the planet
in a cascade effect. The publicity offered by this "domino
effect" is thus almost instantaneous (excepted on
Google groups and some other systems that show a latence time from several
hours to over one day before publishing), and the information can
remain online for years (over 10 years thanks to search engines).
tens or hundreds of peer servers are participating in these networks over
the world. If you can require the removing of the litigious information on
one of these servers if you can identify the host and the administrator
(but not all providers, and mainly those located abroad, will respond
to your request, even after an legal decision), you have no mean and thus
no chance to remove the message released on all servers across the world.
charts published regularly (each 2 months or so) by the inventor of
a newsgroup (who in fact suggests a new newsgroup to a managing
association but the inventor doesn't manage it) are sent by robots,
and the update of their content is not assured. That means that
after some years the name of the responsible and the contact address
can be invalid. The identification of the forum manager can thus
require an investigation duty (that can be executed without charge
and quite easily via Internet thanks to searching engines and
network management tools).
This is here that
lies in the real power of Internet which is very resistant to any
control. But in spite of everything, it still offers some
"information points", entry doors that skilled users
or experts in computing (network administrators, IT
security officers or programmers) can exploit to find providers and
the dishonest people. Of course you can also request
the collaboration of a local investigator or lawyer in each location but at the
expensive of an excessive slowness, many charges, and the result is
case of repeated abuse, you can report coordinates of the subscriber
to the Abuse department of the concerned newsgroup and the account
can be blocked. Thanks to network management tools, it became quite
easy to identify a people from his IP address, an email address or
messages he left behind him, the header containing a lot of useful
only advice that I could give you to quickly inform the offender and
stop the thread, is sending just after the litigious message a warning
to this newsgroup in the form of a corrective mail (but see comments
about viruses and spams on page 3), and of course to contact as
soon as possible the dishonest sender and, if you have time, as many hosters as
possible to require the removal of the litigious post.
Usually the sole warning published on the newsgroup will
exhaust the thread as readers will understand that they would be well
to not answer to it for fear of participating in this violation as well.
But even if your warning is clear and signed by a lawyer desk, expect
you to read some negative answers from little informed people misinterpretating
your rights, messages emitted either by the original sender or other readers.
Indeed, Internet can remain sufficiently anonymous for permitting some
people this kind of freedom. That said, as soon as your warning is released
or published, legal proceedings can be initiated if needed.
Berne Convention has eliminated the requirement to register the creative
work or that a published work contains a copyright notice. This is true for any work
created in any of the member nations. The copyright is automatically assumed in exclusivity.
However, according to lawyers' opinion, it is suggested to mention it
because in this way any violator could not claim have
committed an "infringement in good faith" as they
often tell when they are caught in the act.
the frame of Berne Copyright Convention, creators from member nations can initiate
litigation with any other country without having registered the
However, national creators must attempt registration before
commencing litigation. In the U.S.A for example, there is an
incentive for national creators to register, which is that Congress
doubled the level of statutory damages which the copyright owner may
recover for registered works.
non respect of this convention exposes you to legal proceedings. The
offence can be associated to a criminal act when concerning forgery,
and the pursuer to claim damages as the defender (accused person) intentionally infringed the
copyright. It is a severe infringement of the regulation.
right opposable to all
ensues from the Berne Convention on copyrights that the creator does not need to prove
that the violator made profits or that he suffered of economic or
morale injury. Neither that the creator has to prove to be the author
of a work. It is to the defender trying to to prove the contrary. So
arguing like do some dishonest people that "we don't know if you are
really the author" or "I don't know if you say the truth
about that work" is simply futile and childish, and is
equivalent to confess a total ignorance and a contempt of laws.
This does only reinforce the accusation, and the amount of claimed damages.
In this case, if no other solution is considered, the plaintiff has
no other alternative than bringing the act to Justice to protect his
the offender is really not in good faith, he will learn to his
expense that the verdict can lead to the shut down of the
concerned server and to the paiment of statutory damages that were increased from $50,000 to
In most cases, U.S. plaintiffs will not be awarded these
damages or lawyer's fees unless the work was registered before the
infringement was committed.
Similar rules apply in most countries.
In Europe for example, statutory damages can reach 75000 €,
completed with a sentence of one year of imprisonment for the defender.
good behaviour code
this, any reasonable person will understand that it is preferable to
negociate a gentleman agreement with the plaintiff author or editor
before to end up with a PV or a lawyer's mail. As one says, better
to get a good agreement than a long and bad trial. It is not an
outmoded expression because in losing a trial, the offender loses
not only much money at the benefit of the author but consequences
can affect the occupation of the offender, his private life, his
relations, his health, etc. Nobody never got out cheerful in losing
a trial and prides on it because the fall is often painful. But be
to preserve not only their public image but to prevent any dispute
and a trial always expensive, tedious, stressing, harassing and
exhausting - negative adjectives don't miss -,
usually most if not all webmasters do respect scrupulously legal
notice and conditions of use that are part of the "good behaviour code"
on Internet. It is usually more litigious with some responsibles not too
scrupulous and misinformed of moderated newsgroups, blogs and RSS(1). But after
some epidermic reactions, the lesson is usually well understood from
the first warning.
is obvious that everybody can commit errors in good faith by lack of
information, or on the contrary trying to bypass copyrights by
challenge. Up to you to see if your naïvety or your pride is worth
an official request to the author or a bad trial.
for a DMCA violation
civil penalties for a DMCA violation are related to injunctions
forbidding the distribution of the tools, products or material
involved in the violation. The court may also order the destruction
of the tools or products involved in the violation, award actual
damages, profits gained through infringement, and attorney's fees.
In the worst circumstances, if an individual held in violation of
the DMCA commits another such violation within the three-year period
following the judgment, the court may increase the damages up to
triple the amount that would otherwise be awarded. In the case of
nonprofit library, archives or educational institutions, the court
must remit damages if it finds that the institution did not know of
penalties for a DCMCA violation are much more severe. if the
defender is gulty of commercial or private financial gains at the
detriment of the author, first time offenders may be fined up to $500,000,
imprisoned for five years, or both. For repeat offenders, the
maximum penalty increases to a fine of $1,000,000, imprisonment for
up to ten years, or both. Criminal penalties are not applicable to
nonprofit libraries, archives, and educational institutions.
see now some concrete examples.
studies : copyright and commercial right