26 replies to this topic

[jis]

I also thought it was the case that under the Berne Convention, works produced in the last few decades that might fall under copyright law are copyrighted by default.

That is correct. Until a grant of an exclusive copyright license to someone else is made explicitly giving up the original creator's rights the copyright remains the creators. It is more typical to grant non-exclusive copyright licenses thus retaining ones own copyright while allowing someone else to do things with the material as spelled out in the said non-exclusive copyright license. Additional license terms may pertain to right to grant further rights to others, right to do derivative works and publish them etc. etc.

However the work maybe cited and limited reproduction occur based on the "fair use" clause.

Absolutely correct!

[jackal]

In addition to the valid points already made about it being OK to quote news releases in their entirety, I would add that applies particularly to news releases from governmental agencies. In the example given in a previous message, a Missouri Department of Transportation news release was mentioned. Although my experience as a governmental public information director in state government was limited to Wisconsin, I always regarded all material published by any governmental agency for public dissemination as available to the public for quoting.

We sometimes considered copyrighting a few particular publications of ours (we never did copyright, as near as I recall), but that would have been solely to keep another organization, public or private, from reprinting it as their own without any credit to us as the original source or crediting us while changing some of the text or illustrations or implying some sort of an affiliation between them and us that we did not agree existed. The purpose, thus, was public protection by insuring we maintained control over material prepared at cost to the taxpayers.

I thought it was the case that works made by federal government employees while they are doing their job are always public domain. (Works done by contractors the federal govenrment hires, or by state goverments, though, are not necessarily public domain AFAIK.)

True, but the badgermhm's work was done as a state government employee (MODOT), and works of a state government (contrary to popular belief) do not automatically achieve public domain status.

I also thought it was the case that under the Berne Convention, works produced in the last few decades that might fall under copyright law are copyrighted by default.

That is correct. Until a grant of an exclusive copyright license to someone else is made explicitly giving up the original creator's rights the copyright remains the creators. It is more typical to grant non-exclusive copyright licenses thus retaining ones own copyright while allowing someone else to do things with the material as spelled out in the said non-exclusive copyright license. Additional license terms may pertain to right to grant further rights to others, right to do derivative works and publish them etc. etc.

However the work maybe cited and limited reproduction occur based on the "fair use" clause.

There are several (four, IIRC) factors that have to be considered when claiming fair use. One of these involves whether it is for commercial use or nonprofit educational use. The fact that this board is a for-profit corporation complicates things, although it can be argued that the members posting and discussing the items receive no profit, so it is indeed nonprofit educational criticism. (Much of the law is a giant gray area, unfortunately for those who like to see things in black and white concrete terms.) That in and of itself doesn't preclude fair use from being claimed, but it is a factor to consider. My only point here is that one must be careful when claiming fair use, as simply claiming fair use does not automatically serve as an immutable defense for any lawsuit the copyright holder may file against Anthony.

[AlanB]

The fact that this board is a for-profit corporation complicates things, although it can be argued that the members posting and discussing the items receive no profit, so it is indeed nonprofit educational criticism. (Much of the law is a giant gray area, unfortunately for those who like to see things in black and white concrete terms.)

There is no corporation that owns this board. Anthony is the sole owner of this board and he pays for its existance out of his own pocket. The ads help cover a bit of the expense, but Anthony is certainly not making a profit by running this board.

[jackal]

The fact that this board is a for-profit corporation complicates things, although it can be argued that the members posting and discussing the items receive no profit, so it is indeed nonprofit educational criticism. (Much of the law is a giant gray area, unfortunately for those who like to see things in black and white concrete terms.)

There is no corporation that owns this board. Anthony is the sole owner of this board and he pays for its existance out of his own pocket. The ads help cover a bit of the expense, but Anthony is certainly not making a profit by running this board.

Sorry, meant to say "company," not corporation, which applies even if it's a sole proprietorship. I think from a legal perspective, whether a company takes a profit or a loss does not preclude a company from being called a "for profit" company.

IANAL, but I think Anthony would need to take special steps to set up a non-profit corporation for the purposes of running this board for it to fall under that category.

Yes, he may not be making a profit on it, but a sue-happy copyright owner is going to look at the board, see ads, and think that it's a commercial enterprise.

Again, IANAL, but it may be in Anthony's best interests to create a corporation or LLC or something so that if something does happen and he is taken to court, his personal assets are protected.

Edited by jackal, 08 March 2009 - 10:41 PM.

[Joel N. Weber II]

Again, IANAL, but it may be in Anthony's best interests to create a corporation or LLC or something so that if something does happen and he is taken to court, his personal assets are protected.

Officers of corporations can still have substantial personal liability. My understanding is that where a corporation really does provide meaningful liability protection is for investors who are not actively involved in directing the operations of the corporation, but in that case the officers are still held responsible. Even then, the investors can lose everything they invested, but not any more than that. (The Berkshire Hathaway annual report a year or two ago went into some detail of some things that happened with an insurance company which didn't have such liability protection for its investors, and it wasn't pretty.)

I believe there is a federal law that says that Internet providers are not held liable for copyright violations that their users make if they follow certain rules for removing material that violates copyrights when it is brought to their attention, but I'm not sure of the exact details.

But I'm not a lawyer either.

[Anthony]

Luckily, as a full-time college student, my personal assets aren't worth going after! They'd just get a few crates of Amtrak memorabilia and some old computers

When I take a full-time job, I might create a LLC or something similar to "transfer" ownership of the site to, but at the present time the filing fees aren't worth it.

[tp49]

Again, IANAL, but it may be in Anthony's best interests to create a corporation or LLC or something so that if something does happen and he is taken to court, his personal assets are protected.

Officers of corporations can still have substantial personal liability. My understanding is that where a corporation really does provide meaningful liability protection is for investors who are not actively involved in directing the operations of the corporation, but in that case the officers are still held responsible. Even then, the investors can lose everything they invested, but not any more than that. (The Berkshire Hathaway annual report a year or two ago went into some detail of some things that happened with an insurance company which didn't have such liability protection for its investors, and it wasn't pretty.)

I believe there is a federal law that says that Internet providers are not held liable for copyright violations that their users make if they follow certain rules for removing material that violates copyrights when it is brought to their attention, but I'm not sure of the exact details.

But I'm not a lawyer either.

Actually it depends on a lot of things. A company can indemnify it's directors and officers for actions taken under authority of the corporation but it is dependant on the fact situation (there is such a thing as the "Business Judgment Rule.") As such meaningful liability protection can be afforded to officers and directors of a corporation

Investors can be totally different from officers and directors and the terms should not be used interchangeably though there are situations where they can be one and the same.

I could post a lot more on the subject but do not feel that a dissertation is truly necessary here.