Copyright Definition

I wanted to write about a situation that has actually happened to my company as I believe the situation holds some important lessons for businesses that sell print content online as well as those who may be tempted to use the material created by others either without authorization or beyond the scope of a license.

My company has been in the business of selling high end legal documents for around 9 years. Each and every document that we well was originally created by me while I was practicing law. I spent hundreds of hours creating these documents to make them both unique and of the highest quality. I took great pains to make the documents original works of authorship. I went through a long process of study for each document. I did a lot of reading and study. I would read numerous agreements on the topic, create an outline, and then sit down independent of any other document and started typing as if I was creating an agreement, from scratch, without the benefit of a form to start with.

I did this for over 250 high quality, full length, technology documents for web developers, software programmers and others in the IT industry.

I then went to work packaging the documents that I created and have had a very successful business marketing these document packages. My marketing niche was to sell entire packages of 80-250 documents for the price that someone would pay for about a quarter hour of attorney time.

I later expanded into incorporation, bylaws, corporate kits, real estate leasing, trusts and wills, confidentiality forms, and corporate resolutions and continue to work on new product lines. All of my documents are originally created and represent hours and hours of study and work.

Of course the next step was to market these packages in the most cost effective manner. This has changed over time as the Internet environment has changed significantly in the 9 years that has passed since I originated this business. One of the marketing methods that I continue to use is maintaining exposure in what remains of the spider search engines. Those of you who use this marketing tool are familiar with the process of SEO; optimizing the contents of your pages, comparing keyword prominence to other pages that rank well under that keyword, etc.

As I was optimizing for one of my more obscure agreements for Google, I ran across some material that looked suspiciously similar to my packaged products. In fact, even the name of the package was the same. The only difference was that they had provided the opportunity to purchase individual documents as well as the entire package. On closer examination, I discovered that the documents in the package were my documents, being sold without modification; including some minor typos and unique wording that I use in my documents. The documents are being sold by a company that holds themselves out as being The Internet Leader In Downloadable Legal Documents.

Clearly, this type of direct copying is the most egregious of copyright violations. Even the hidden information in the documents were intact, just how I created them in the first place. The only thing that was missing from these documents was my copyright notice that was contained in a a footer in each of these documents. In total, there appears to be approximately 100 of my documents for sale on this web site.

This company is in a heap of trouble and the consequences of it will likely take down their business. As a retired lawyer, I knew exactly the steps to take which may be instructive to others faced with similar situations. I will get to that in a later article, but first let me describe a little bit about what this company may be facing.

I am clearly the owner of the copyright on these originally created documents. As a side note, there is a common misconception that you need to registered your copyright in order to maintain protection. In reality, all original works of authorship are protected from the time of creation. There are clear benefit to registering your copyrighted material that I cover in other articles. But the bottom line is that registration is not a prerequisite to receiving the protection of the Copyright laws.

Additionally, the other company has clearly violated my rights as the copyright owner. This would all need to be proved in court of course, but it is a fairly easy case.

As for penalties, this company would be liable to me for all profits attributable to these documents. I could also elect to take statutory damages instead of having to put on proof of actual damages. These statutory damages would apply even if they greatly exceeds their actual sales revenues from selling my documents. Even for a non intentional violation, the Copyright Act sets damages as $750-$15,000 per item. If the violation was intentional, statutory damages can be as high as $150,000 per item.

I am assuming there were 100 documents involved to keep it simple. This means that the range of damages would be $75,000 to $1,500,000; even if the infringement was not intentional. Direct copying is fairly strong evidence that the violation was intentional. For an intentional violation, the statutory damages for this violation would be $15,000,000.

In additions to statutory damages, the Copyright Act also permits me to collect attorney fees for pursuing the case.

As you can see, the Copyright Act penalties create a very strong incentive to avoid stealing the work of someone else online. These penalties could be applicable even if there is a valid license is in place permitting the party to use the documents with certain limitations but those limitations are exceeded. A good example would be the Articles that are submitted to Article Publishing Sites. Many of the reprint licenses state that the material can be freely reprinted provided that the author box is included. If the article is republished without the author box, the use would exceed the license that was granted to use the documents. This would be as much of a Copyright Infringement as the situation I described above and could expose the violator to similar damages.

So the lesson here is:

For the user of online material, when doing business online, abide by the Copyright Laws. The potential penalties are great and could completely destroy the business you have created. Realize that material is protected even if you obtain it for free online and even if it does not bear a copyright notice.

For the creator of online content, be vigilant. Actively look for people violating your copyright. Search for your unique content. When you find someone infringing your copyright, don’t let it slide. That is your hard work and it is stealing.

Look for my next article covering the steps to take when you find someone has violated your copyright.

Arguably the most important copyright case in digital era is a United States Supreme Court verdict in which the Court collectively held that defendant P2P file sharing companies Grokster and Streamcast could be sued for inducing copyright infringement for marketing file sharing software.

The SCOTUS Justices were convinced by the media industry and provided the industry with the copyright inducement standard. There really wasn’t even a variance between the 7th court ruling on Aimster and the 9th that Streamcast’s software was legal under Sony Beta Max, but they didn’t seem to understand the architectural differences of one being a software product (Morpheus) and the other being a central service (Aimster) and granted cert.

After the ruling they fundamentally legislated what Senator Orin Hatch had failed to accomplish with his much derided and tabled inducement bill. There were many great technology companies such as Intel and Verizon, and freedom of information oriented entities like the ALA that provided amicus briefs in support of the defendants.

The result is that the bright line test of Sony Beta Max which Sony won after three trips to the Supreme Court has been blurred. That test basically said that a staple article of commerce had to have the potential of substantial non-infringing use and if it did, then it was legal even if many uses could be infringing (consider the computer itself for instance). Now any company can be sued by a copyright holder if one email from one employee appears to have induced anybody to infringe copyright, years after the fact, making it a lingering tertiary liability risk for the company.

If this law had existed in Sony’s VCR era we likely would not have the VCR or many consumer electronic products. That bright line was critical to innovation. This is not a good situation for Internet innovation or citizens who are also being sued for sharing content with fellow citizens. The same basic P2P networking approach that came out of file sharing (Kazaa) went on to power Skype for instance which is obviously an important innovation.

Computers are meant to save, copy, network and process files so impeding that process is similar to arguing that computers should be hobbled. In theory does the computer itself induce infringement? Does the Internet itself induce us to be bad actors with respect to copyright? How about our desktop printers and our DVD burners?

Copyright law is covered by the Copyright Act of 1976, codified at 17 USC s 101 et seq. Some pertinent sections include, Sections 101, 102 and 103. Section 101 defines “compilation” as: “A work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship”. Section 102(b) provides: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” Section 103 limits the protection of a compilation to the author’s original contributions and not the facts or information conveyed.

Databases are collections of facts. Facts themselves are not granted copyright protection, but if they are compiled in an original manner, the compilation is protected. A minimal degree of creativity in putting together the facts in the compilation, is required. This creativity can be represented by the facts chosen, the order in which they are placed and the arrangement chosen to serve a particular purpose (allowing the reader to effectively use the facts). Even if there is a valid copyright of the compilation of the facts (which themselves cannot be copyrighted), a subsequent compiler can use the facts contained in another’s compilation to use in a competing work, as long as the selection and arrangement of the competing work is not the same. The reason is that the facts do not become original through association (by being included in the compilation) and therefore, the copyright is limited to the particular selection and arrangement (the author’s contribution). To allow the facts such protection would grant a monopoly in public domain materials.

In order for a database / compilation to have copyright protection, there must be a collection and assembly of pre-existing material, facts, or data; the selection, coordination, or arrangement of those materials; and the creation by virtue of the particular selection, coordination, or arrangement, of an “original” work of authorship. Feist Publications, Inc. v Rural Telephone Service Co. 499 US 340 (1991). The principle focus should be on whether the selection, coordination, and arrangement are sufficiently original to merit protection. It has to be made independently without copying and it has to show a minimal level of creativity. Copyright rewards originality, not effort.

Bottom line: A database copyright at most will only protect the author’s original contributions and not the facts or information conveyed even if the facts or information were arrived at only through the industriousness of someone else. See Miller v. Universal City Studios, Inc., 650 F2d, at 1369-1370.

This has been long enough. There are a LOT, and I mean a LOT, of ‘ethics’ debate that have been raging for a long time between anime fans, and this debate will continue on and on for a long, long time.

Is it ethical for us anime fans to download anime free, such as fansubs, on the internet?

Obviously, it is deemed as non-ethical because what the “free downloaders” are doing is basically using the pirated products of the author’s and workers’ work. They are denying the authors and the people who made the royalties that they deserve.

I mean, what’s $20 compared to the hard work done by the people behind the animes, which could have taken months, even years, to produce the lovely animes that we all enjoy?

But, the free downloaders have a different view.

1. Most Popular: Well, it’s FREE. Why shouldn’t I? Saves myself lots of money too.
-Well, these are the freebies hunters. Couldn’t say much about them.

2. Even if I buy, the authors only get a minuscule amount of money. I’d buy IF ALL of the money goes to the author which is, of course, usually not the case.
-Well, there are production costs too, which is unfortunately is NOT cheap. The companies that distribute and dubs the anime deserves their money too.