Cyberspace Law For Non-Lawyers Lessons 1-31

Front 1

What is "Cyberspace Law for Non-Lawyers" about?

Back 1

Cyberspace is a new and exciting frontier, and presents a host of new and difficult legal questions in many areas. The development of legal rules that will govern activity in this new environment is likely to be a complex, and at times a controversial, process. We hope to give you a basic framework that will help you think about some of the questions that have arisen in six areas of the law: copyright, privacy, trademark, libel, free expression, and contracting.

Front 2

What are the three elements that constitute copyright law?

Back 2

Copyright law

1. usually
2. gives a copyright owner the exclusive right to control copying
3. of a writing (or recording or picture or electronic transcription).

Front 3

What are the two basic limitations of the "whatever is written down is copyrighted" premise?

Back 3

1. Extremely short writings - for instance, several words or shorter - or extremely simple drawings are generally not copyrighted.
2. If you simply copy what someone else has done, without adding anything new of your own, your copy is generally not copyrighted

Front 4

When can copying content online be legal?

Back 4

1. Explicitly allowed by copyright owner
2. Fair use
3. Implied license

Front 5

What does "copying" in copyright law mean?

Back 5

1. It covers copies of LESS THAN THE WHOLE thing: If you write an article and I make a copy of five pages, that might violate your copyright.
2. It covers PARAPHRASES, so long as they're close enough: If I translate your article into a foreign language, or make a movie based on your book, that will probably violate your copyright.
3. It covers MANUAL copies as well as mechanical copies: It doesn't matter whether you make an electronic copy of an electronic document, scan in a print document, or hand-enter a document into the computer. All of this is copying.
4. It covers PERSONAL copying as well as BUSINESS copying.

Front 6

When does copying not infringe copyrights?

Back 6

1. Copying the FACTS from someone else's work isn't considered copying -facts are in the public domain.
2. Copying an IDEA from someone else's work isn't considered copying for copyright purposes (though in some situations it might violate rights under the *patent* laws).

Front 7

What is an implied license?

Back 7

When a copyright owner acts in such a way that "reasonable people would assume that he's allowing them to make copies", the law interprets his conduct as creating an "implied license."

Front 8

How does the "Fair Use Doctrine" work?

Back 8

The more YESes you have to these questions, the more legal your copying.
1. Is your use noncommercial?
2. Is your use for purposes of criticism, comment, parody, news reporting, teaching, scholarship, or research?
3. Is the original work mostly fact (as opposed to mostly fiction or opinion)?
4. Has the original work been published (as opposed to sent out only to one or a few people)?
5. Are you copying only a small part of the original work?
6. Are you copying only a relatively insignificant part of the original work (as opposed to the most important part)?
7. Are you adding a lot new to the work (as opposed to just quoting parts of the original)?
8. Does your conduct leave unaffected any profits that the copyright owner can make (as opposed to displacing some potential sales OR potential licenses of reprint rights)?

Front 9

What are a few basic rules to determine whether a use is fair?

Back 9

1. If you're copying only a LITTLE BIT - for text, this generally means no more than a couple of paragraphs here or there, but it could be less if you're copying from a work that's already quite short - your use is probably FAIR.
We wish we could tell you how much is "a little bit," but we can't - there's no bright line. If someone tells you something like "It's OK to copy 20% of a newspaper article or 10% of a scholarly article," that's a COPYRIGHT MYTH.

2. If you're copying more than a little bit, but you're doing it for (a) SYSTEMATIC NEWS REPORTING, (b) CRITICAL COMMENTARY (whether positive or negative), or (c) PARODY, your use is probably FAIR.
Note that it's not enough just to say "I'm reporting the news to the list" or "I'm commenting on this article just by quoting it." A little test: If pretty much any copier can make the same claim of "news reporting" or "commentary" that you're making, your claim is probably too ambitious.

3. If you're copying UNPUBLISHED work - work that the copyright owner has

Front 10

How do you test if noncommercial copying is unfair?

Back 10

If this noncommercial copying became WIDESPREAD, would it *displace some sales* (or some advertising revenues)? If it will, it's unfair.

Front 11

What are some examples of fair use?

Back 11

1. You get a personal message and you pass it along to one other person.
PROBABLY UNFAIR, though you might still have an implied license. (For instance, if the message asks for help on a nonprivate matter, there might be an implied license to pass it along to others who might be able to help.)

2. You download an article from a newspaper's Web site and post it to a news group. The site carries advertising, and says "Do not send any copies of these articles to other people" (thus negating any implied license).
PROBABLY UNFAIR, since if this becomes commonplace, fewer people would access the Web site and see the advertising.

3. You key in an article from a paper magazine that doesn't have a Web site and post it to a news group.
PROBABLY UNFAIR, if the magazine is available on some online service (such as DIALOG or NEXIS), or if the magazine is still on the newsstands for people to buy.

4. You forward someone's message from one publicly accessible news group to another news group.
PROBABLY FAIR, because the m

Front 12

When can a service provider be held liable for copyright infringement done by someone else who posted copyrighted material via their service?

Back 12

A service provider is liable only if it's a "contributory infringer" -

1. if it knew,
2. OR had reason to know of the infringement. This means that
3. if someone complains about an infringing post, the service provider must take reasonable steps to determine whether the post is actually an infringement - whether it actually copies someone else's work, whether it's a fair use, and so on -
4. but until someone complains, the provider generally has no duty to look for potential infringements.

Front 13

What are the two kinds of truths that the law might protect?

Back 13

1. truths about you that have revealed to the public, either by giving some information over to someone else, or by being observed in public; or

2. truths about you that you have kept private.

Front 14

How much control do people have over other people's access to their personal-activity-related information? (American context)

Back 14

Very little, seeing as American law does not generally cover "data protection" as is with European democracies.

Front 15

What is the main problem concerning informational privacy on the internet?

Back 15

American law does not expressly protect people from having websites gather information about them while they are accessed.

Front 16

What is the limitation of the US Constitution when it comes to protecting citizens from invasions from the government?

Back 16

It only protects the citizens from physical invasions, which requires a warrant. Other types of invasions, such as wire-tapping, do not require a warrant.

Front 17

What was the deciding premise that forced lawmakers to rethink how the Fourth Amendment to the US Constitution was supposed to be interpreted?

Back 17

It was the statement, "the constitution protects people, not places."

Front 18

What is the main problem concerning the protection of privacy provided by the US Constitution?

Back 18

It was based on practices and technology that have long been obsolete. Current practices and technologies are, therefore, not accounted for.

Front 19

What statute provides for the protection of privacy regarding digital content?

Back 19

The Electronic Communications Privacy Act which makes it illegal (with important exceptions we discuss below) for an individual or the government to intercept or disclose private electronic communications. To enforce this right, it gives victims the right to sue for damages.

Front 20

What are some exceptions to the ECPA?

Back 20

It is not a violation of ECPA for the service provider to:

(1) keep a log of the messages sent and received, for example, to protect against fraud or abuse;

(2) assist an authorized law enforcement official to intercept a message;

(3) intercept messages when necessary to assure the continuation of service or to protect the rights of the service provider.

Second, consent can be a basis of the interception. If one of the parties to the communication has given consent, prior to the interception, then:

(1) a police officer, or someone acting as if they have the authority of law behind them, can intercept an electronic message;

(2) any private citizen can intercept the message, so long as the purpose of that interception is not to commit some crime, or other wrong protected by the law;

(3) publicity can be the basis of a lawful interception. If you are posting a message to a public bulletin board, or to USENET, then it is not a violation of ECPA for someone to intercept or disclose your message;

(4) fin

Front 21

What constitutes "unauthorized access" according to the ECPA?

Back 21

1. to gain access without permission to a system that is used to provide electronic communication, or

2. to exceed the authorization you have under any permission you have been granted.

Front 22

What is encryption?

Back 22

Encryption is a technique for turning your message into gibberish, readable only by the person intended to read the message -- someone else who has the proper key. The most powerful forms of encryption have two keys: one public, the other private.

Front 23

How does cyberspace differ from the physical world when it comes to anonymity?

Back 23

In the physical world, people choose what parts of themselves they should hide while on cyberspace, people can choose what they can show.

Front 24

What can the US Government do or cannot do when it comes to anonymity?

Back 24

It cannot totally ban anonymity because of the freedom of free speech although it can enact measures to enable traceability of messages in order to pinpoint the person or machine who sent them.

Front 25

Are emails included in the premise of "Private spaces"?

Back 25

No, seeing as the law is inadequate to deal with privacy issues regarding new technologies. Private spaces only generally include homes, postal mail, and others.

Front 26

What is a trademark?

Back 26

1. It must be in actual *use* as an identifier of particular goods or services: you can't get a trademark in some great new name you've come up with for your new product until you actually start using that name to identify that product.

2. It has to be in some way distinctive, not what courts call "ordinary" or "merely descriptive" or "generic": you can't use trademark to protect the common name of your product - say, the name "Modems" for the modems you are selling (because that is a generic term) nor the phrase "Tasty donuts" (which merely describes the donuts).

3. Finally, the mark must not be "confusingly similar" to anyone else's trademark that is already in use.

Front 27

If I use a logo that is unique and is already identifiable with my brand, do I already have a trademark?

Back 27

Yes, certain registrations are only a formality but exist to make claims easier to verify.

Front 28

When can I not use a trademark?

Back 28

Generally speaking, you cannot use another person's trademark if that use would confuse the reasonable consumer about the identity of goods or services associated with that trademark.

Front 29

What's the difference between the ™ and ® symbols?

Back 29

Anyone who uses a trademark may affix the ™ symbol to it to show ownership of said trademark while the ® symbol is reserved for those who have had their trademarks registered with the concerned government agencies.

Front 30

Are domain names on the Internet protected by trademark laws?

Back 30

Probably not, seeing as the law is inadequate when dealing issues regarding new technologies.

Front 31

What does the law say about offering products on the Internet using a trademark that is similar to another person's trademark although that other person is located in another locality and is catering to a wholly different market?

Back 31

Nothing, this hasn't been resolved yet seeing as the law is still not adequate in dealing with issues regarding new technologies.