The ease of downloading content off the Internet lures many people into thinking they can use anything they find online in any way they choose. But appropriating someone else’s work without permission is illegal — whether in the form of words, music, images or video — unless the use is covered by the section of U.S. copyright law known as the Fair Use Doctrine.
The problem is, fair use is a highly subjective concept to define. If you get sued for copyright infringement, there’s always the risk that a judge or jury will disagree with your interpretation. Taking that chance could cost you tens of thousands of dollars or more in legal judgments and fees.
Here’s what you need to know to stay on the right side of the copyright law.
The American Library Association’s Fair Use Evaluator provides a detailed explanation of the four factors that determine fair use: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used; and effect of the use upon the potential market or value of the copyrighted work.
One of the most common fair-use fallacies is that using a certain portion of the material is always protected.
“Some people think that there’s this magic number — like 250 words of a literary piece, or eight bars of a song, or 10 seconds of a movie — and they’re in this fair-use safe harbor,” says Joy Butler, a Washington, D.C., attorney and author of “The Cyber Citizen’s Guide Through the Legal Jungle.”
“That is, for the most part, completely untrue.”
It is generally true that you’ll have a stronger fair-use argument if you use a very small portion of the whole, but if that snippet turns out to be what copyright experts call “the heart of the work,” size won’t matter, Butler says.
The Copyright Act provides for both civil damages and criminal liability. In order to collect statutory damages and attorneys’ fees in a civil suit, the copyright owner must have registered the copyright in a timely manner, which the courts generally consider to be within three months of the publication date, Butler says.
The law entitles the copyright holder to statutory damages of between $750 and $30,000 per work. For willful infringement — meaning you were aware of committing a copyright violation and continued to do so — the maximum amount for statutory damages soars to $150,000 per infringement .
A losing defendant in a civil copyright suit may also have to pay for lost profits — revenue the copyright holder would have received if the infringer had purchased a copy of the material. But in the case of an individual downloading one or a few copies of a book or movie, the potential statutory damages are likely to be much more significant than the lost profits, says William Schultz, a partner at the Minneapolis intellectual property law firm Merchant & Gould.
The heftiest civil penalties of all could be the attorneys’ fees. In her book, Butler writes, “Legal fees for a complex case that goes to trial can easily cost each party a six-figure amount.”
The legal standard for criminal penalties to apply is “willful appropriation for commercial advantage or private financial gain,” says attorney Charles Luce, who chairs the intellectual property group at the Denver law firm Moye White.
The FBI warning that pops on screen before the start of a movie is referring to criminal copyright infringement, says Schultz, who notes that a first-time offender could face $250,000 in fines and three to five years in jail.
Even though the content on social media is made for sharing, you can get into legal trouble if you take too many liberties.
“Some bloggers are in the habit of taking entire articles and postings from other blogs and posting them,” Butler says. “This is copyright infringement unless you have the permission of the article’s copyright owner.”
Online images are not necessarily free for the taking, either. “Just because you see a picture somewhere on the Internet does not mean you can take that picture and do anything that you want with it, including posting it on your website or another website such as Pinterest,” Butler says.
File sharing is another legal minefield. When you join a file-sharing network, other members can access the content on your computer and potentially download something from it without your knowledge.
“That’s causing a copy and a distribution to occur, which is a copyright infringement,” Schultz says.
Your first notice that someone is accusing you of copyright infringement is likely to come in the form of a cease-and-desist letter from the copyright holder, Schultz says.
Another common scenario, according to Luce, is a letter from an attorney whose client has found his or her copyrighted material on your website or blog. The letter demands payment, and a copyright registration is attached.
Luce recommends contacting the copyright holder directly to work out a settlement. He warns that the rules of professional conduct don’t allow attorneys to contact someone who they know has legal representation.
“A good heartfelt mea culpa … and a fast and prompt takedown, combined with an offer of cash … is fairly effective,” Luce says.