I’ve been following the Legal Lad’s Quick and Dirty Tips for a more lawful life podcast, in part because I want to see how someone deals with trying to offer information about the law without running afoul of creating an attorney / client relationship or engaging in unauthorised practice of law. The Legal Lad is US-based, and most of the podcasts so far have been about principles of law that are either very general or are issues of federal law, and so (for the most part) apply throughout the United States. There have been episodes on what to do if pulled over for drunk driving, and tax extensions.

I was a bit surprised to find one on peer-to-peer file sharing but I wasn’t surprised to find out that the copyright analysis was wrong. Copyright is a difficult area, and as I understand it, the Legal Lad is more of a general practitioner. Many people, including lawyers, have some serious misconceptions about copyright before they ever start researching it or looking into it. I don’t want to go through a full analysis of the show, but I want to concentrate on the correction that he posted (many listeners wrote in about the show):

Many listeners have written regarding the following statement:

“My vacation pictures are fine because they are not copyrighted. I can share them with anybody I want, and anyone can distribute them to anyone else.”

As many listeners have pointed out, this statement is not entirely true. The creator of an artistic work such as a photograph immediately gains some copyright protection simply by taking the photograph. My statement is inaccurate. I apologize to you, loyal listeners, and thank those listeners who wrote to correct me.

The point I intended to make is that I would have little practical legal recourse against you if I posted my own files publicly without indicating that these photographs were intended to have copyright protection. (For example, I could do so by putting a © symbol on the photograph, but such a designation is not necessary.) Should I choose to sue for copyright infringement, I would not be likely to win any significant monetary damages. I used the vacation picture example as a practical contrast to that of my own copyrighted movie or a popular band’s copyrighted music album. In doing so, I oversimplified and misstated the law.

Many people make the mistake of thinking that copyright is something that you must register in order to have — this was once the case but is no longer true. From 17 U.S.C. 102 (emphasis mine):

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

(b) 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.

Registration is, however, still used and is a pre-requisite for US citizens before they can go to court and sue for copyright infringement. It is also required that the work be registered before you can ask for pre-established damages, which make monetary compensation more likely.

But this idea has some problems:

“I would have little practical legal recourse against you if I posted my own files publicly without indicating that these photographs were intended to have copyright protection. (For example, I could do so by putting a © symbol on the photograph, but such a designation is not necessary.)”

I think what the Lad is trying to refer to is the possibility of an “implied license” — this would mean that users could assume by your actions that they had a license to do certain activities with your photos. This is different than having to indicate that you “intend [the work] to have copyright protection”. As mentioned above, copyright either subsists in a work or doesn’t, and you either have permission (such as a license or fair use) to do an act with the copyrighted work or you don’t. The intent of the author doesn’t matter in this case.

It is true however that your average person has little practical recourse against others for sharing or using their work after the person has placed the work into their p2p shared folder. This has more to do with the difficulties of internet enforcement and the costs of litigation more than anything else.

Despite some mis-statements of the law in this case, I do think that the podcast was valuable. His “Quick and Dirty tip” to listeners is “to be very careful with file sharing programs”. I wholeheartedly agree with that point, and I applaud him for referring listeners to the EFF to find out more information.

This entry was posted Friday, April 20th, 2007 at 9:05 am and is filed under copyright. Both comments and pings are currently closed.