Tuesday, March 07, 2006

Top 5 myths of copyright law

Knitters and copyright. Hardly a match on the order of, say, chocolate and hazlenuts, but for whatever reason, the former love to talk about the latter. Sadly, the former are often wrong or at least misguided about the latter. For your edification, then, I will debunk the following commonly-held myths about copyright law.

Disclaimer (hey, did you think I wasn't gonna issue one?): I am not giving you legal advice about your own particular situation. The law changes all the time, so by the time you read this, it may be out-of-date. If you have any questions about your own personal situation, contact a licensed attorney (but not me), preferably one with extensive experience in copyright law. And most important of all, if you get in trouble for copyright infringment, you can't sue me for malpractice because none of you are my clients. Continue reading only if you agree to all that.

Myth No. 1: Copyright questions have simple, black-and-white answers.

One of the quickest things you learn in law school is how few legal questions have direct, absolute yes-or-no answers. You really can't go wrong on a law school exam by answering "It depends." That's because legal issues tend to be complex, and because the real world tends to be complex.

I'm going to start by giving you a refresher course in Civics 101. What we think of as "The Law" is really a mishmash of things from different sources. The legislature (Congress or a state lawmaking body) passes a law (or statute) and the law sets out standards of conduct. To give a really elementary example, "Anyone who takes the life of another human being is guilty of murder." Sounds simple and clear.

But because life is complicated, all too soon a real-world example arises that doesn't fit neatly into the black-and-white letter of the law. What if you are being attacked by a gun-wielding assailant, there is a violent struggle, and just as your assailant is choking the life out of you, you manage to reach the gun and shoot him? Technically, you've taken the life of another, but everyone agrees that self-defense is different, and you shouldn't be punished under those circumstances.

Sometimes the legislature is very good at anticipating these scenarios, and there may be a second statutory provision that says "Notwithstanding anything else to the contrary, anyone who takes another human being's life in defense of their own shall not be found guilty of murder." But it's impossible for the legislature to think of every possible scenario, and when that happens, it is up the courts to interpret the law. A court will consider the facts before it, will look at the law on the books, and if the law doesn't cover the facts before it, it has to make a decision as to what should happen. And different courts may come to different conclusions about similar facts.

Translate this into copyright. Congress passed a set of written laws governing copyright, and they're long and not easy to read, but even as thorough as they were, they didn't -- they couldn't -- anticipate every scenario. So courts have to step in to fill in the blanks. What that means is that different courts in different jurisdictions may issue decisions that conflict; one judge thinks A is the right answer and another things B is the right answer. Or maybe no court in the U.S. has yet had a chance to opine about what the answer should be. Or maybe your facts are just a bit different from the closest court case, and that little bit of difference is significant. This is why you should be very skeptical when someone (especially an unknown someone on the internet) makes grand, definitive pronouncements about what is or isn't copyright infringment.

Which is all a very long-winded way of saying that while there are certain general principles that are clear (i.e. if you use your cellphone to photocopy a validly copyrighted pattern in a yarn shop expressly to avoid buying it, you are guilty of copyright infringement*), there are even more situations that aren't clear or definitively decided.

Or to put it even more simply, this shit is complicated.

*See how many qualifiers I had to put in that sentence? How narrowly I had to write it to feel comfortable it was a fair statement of the law?

Myth No. 2: Copyright law is all about preventing people from making photocopies.

While copyright law, when taken to its logical application, often does (or should) prevent people from making photocopies, it's important to keep in mind the real purpose. Copyright law is intended "[t]o promote the Progress of Science and useful Arts." U.S. Constitution. We are willing to give an author a temporary monopoly on their work in order to encourage authors to keep producing that work because of the benefits to society of continued innovation and creativity. There's nothing magical about the act of using a photocopier; it's that by copying the work, instead of buying it, you are essentially cheating the author out of a sale. And if authors can't make money off their creations, they won't keep creating.

When considering a copyright situation, it's helpful to think about that: ask yourself "Am I depriving the author out of a rightful sale by what I am doing?" If the answer is yes, if but for the conduct in question, you'd have to buy a copy of the work, then you're probably in violation.

Question 2(a): Can I make a photocopy of a pattern that I've purchased to be a working copy?

Probably. This is probably considered "fair use." You have purchased the pattern, so you aren't cheating the copyright holder out of a sale. Now keep in mind there are some designers who disagree with this; they believe that you can't make copies of their patterns under any circumstances. In fact, I've even read about one designer, sadly I forget who it is, who will supposedly mail you a virgin copy of their pattern by return mail if you send them your original marked up as a working copy, in order to try to avoid having knitters make any photocopies of their patterns. And there are also knitting designers who intentionally do things to their patterns -- like use darker-colored paper, or put some kind of watermark -- to make any photocopies illegible. Personally, though, I think given the nature of a knitting pattern and of knitting itself, making a working copy (one that you and only you use) is fair use, although this is one of those areas about which not everyone agrees.

Myth No. 3: You can copy anything from a library without worrying about copyright.

You aren't gonna like this, but copyright as it applies to libraries is one of those complicated, hazy areas. So can you photocopy anything you find in a library without worrying about copyright infringement? Repeat after me, everyone: It Depends.

There is a doctrine in copyright law called "fair use." It creates exceptions to copyright protection in order to serve broader purposes in our society. For example, one of the most commonly invoked "fair use" exceptions is for comment or criticism. You can quote part of a copyrighted work in order to comment upon it or critique it. That's why book reviewers can reproduce small portions of a book as part of a review; it's considered a "fair use" of the copyrighted material. Our country places a premium on allowing people to speak freely about ideas, to critique them or comment about them.

There's another "fair use" exception for "teaching (including multiple copies for classroom use), scholarship, or research." 17 U.S.C. section 107. This is where libraries and universities and other educational entities find comfort. But it's not enough to say "well, this is a library, so we're okay." If you're being sued for copyright infringement, and you try to defend your case by saying your use qualifies as "fair use," you have to prove it is, in fact, fair use. It's not fair use just because you sat it is. Courts will look at different things to evaluate whether your use is fair, including whether you're using the material to make a profit or for "nonprofit educational purposes"; how much of the work you are quoting (a few pages? a few chapters? the whole damn book?); and other things.

Is this getting too boring?

To make a long story short, libraries can't allow limitless copying of copyrighted works or they'll get into trouble. If you go to a library's public photocopiers, you'll even see legal language, disclaimers, that warn you that you are copying at your own peril. And there is no magical percentage (i.e. ten percent) that gives you safe haven, so don't believe anyone who tells you that if you copy ten percent or less of a work, it's okay because it's a small amount.

Question 3(a): Can I copy a pattern out of a library book for my own personal use?

Probably. It's probably okay to make one copy of a pattern from a library book for your own personal use -- meaning not to distribute to others, or to make money off somehow. Some knitting designers don't agree with this (see the Scottish Lady who Litigates) -- and you certainly can't copy the whole book or large portions thereof -- but I think most courts would consider this fair use. Be advised, however, that this is another one of those hazy areas.

Myth No. 4: If the book is out of print or really hard to find, you don't have to worry about copyright.

Nope. Too bad. The copyright holder still gets protection. Maybe the copyright holder purposely took the book off the market and doesn't want it widely available, but in any event, the usual rules apply. You have to try to contact the publishing company or the author to get permission to make copies. Or you can try to nab the book on Ebay, or some other used bookstore (alibris.com?) or start going to yard sales a lot.

Keep in mind, however, that if you check the book out of the library, the usual "you can probably copy one pattern for your own personal use" rule probably applies, too.

Myth No. 5: If you put it on the internet, it's not protected and I can copy and/or distribute it as I wish.

Wrong. Flat out wrong. Putting something on the internet has no affect on whether it's copyighted or not. If you're trying to rationalize violating someone's copyright by saying "But it's on the internet where anyone can access it for free!" too bad. The author still has the right to control how the copyrighted material is used. (By the same incorrect logic, any book placed in a library would not be protected under the theory that anybody can get a library card and access it for free. And we know that's not the case.)

Myth No. 6 (you see, I like you so much I'm giving you a whole extra one): Only people who are perfect in every other way of their own life should worry about copyright; otherwise, they need to get a life and stop acting so superior.

This is an argument I see repeated time and time again in internet discussions about copyright infringement. "Everyone does something illegal in their life. If you eat a grape at the supermarket, you're stealing. Who doesn't cheat a little on their income taxes? So unless you're perfect, quit acting superior and smug and don't worry about what other people do." I don't understand why this is so frequently brought up in copyright discussions. Of course, no one is perfect, but that doesn't eliminate our obligation to do our best to comply with the law. And remember, when you act in a certain way, you are subject to the consequences. If you eat stuff at the grocery store without paying for it, there's always a chance, however small, that you'll be arrested for shoplifting. [Laugh if you will, but I went to college with a woman who was arrested for eating a handful of something out of a bulk food container at the local grocery store.] Cheat on your taxes (which contrary to popular belief, not everyone does because some of us are terrified of the IRS) and you could get audited and then you're totally hosed. Likewise, if you flout copyright law, you are opening yourself up the possibility, no matter how remote, of civil and/or criminal liability. Informing yourself about what the law is, and what you're obliged to do under the law, is smart, not self-righteous.

And I'm going to go a bit further here and suggest that this is more than just a legal duty that could result (however unlikely) in your being arrested or sued. Pattern designing isn't easy and creating patterns that work, that allow you to make attractive and interesting garments, is something you, as a knitter, should want to encourage. Encourage designers to keep creating cool stuff by respecting their copyright protection -- and by respecting those who try to follow copyright law.

P.S. Happy birthday, Molly! Pisces power!


amy! said...
This comment has been removed by a blog administrator.
Anonymous said...

I fear the IRS as well.
Don't forget, failure to file and pay was how they got Al Capone.
Into the slammer, where he died.
(of syphillis, but still...)

Anonymous said...
This comment has been removed by a blog administrator.
Anonymous said...

I like the way you clarify the purpose of the law at the beginning. I was almost expecting you to repeat that with your last paragraph and maybe emphasise the point that we all (presumabely) agree with this purpose. Comes through to me, anyway.

The thing that goes through most of these discussions is the cheapness of some knitters. Why are folks so loathe to pay for a pattern?

Carol said...

Okay, kids, you're too far ahead of me (and each other). I deleted the sentence that Amy! was referring to. So that's why it didn't make sense to Kathy. Just to keep things nicey-nice, I just got rid of the comments referring to the deletion; otherwise, I'll just have to keep explaining it. Sorry for the confusion.

Valerie said...

Now I'm curious about the controversy, but I missed it!

In the end, I think, it comes down to ethical behavior. It's highly unlikely someone's going to come after you for copying a book from the library (it's not the recording industry, after all). Personally, because I didn't take intellectual property in law school and because I know the law is pretty hazy, I try to err on the side of caution. My main question is, "Is the designer losing a sale on this?" It works pretty well, if my growing knitting library is any indication. But even then, I know it's more complicated.

Rebekkah said...

Great post!

I have a question regarding the library issue. I'm sure the answer is probably "it depends", or something along those lines, but I thought I'd bring it up anyway.

One of the things I've heard about making copies of patterns from library books is that it's only okay to keep the copy for the time period you've checked out the book. I suppose that's along the lines of it being a working copy. I guess the logic behind this argument is that a library book is meant to only be available serially - to one person at a time. So your photocopy is only an okay thing while the book is in your possession, and that it should be destroyed when you return the book.

Have you heard this argument before? Does it have any basis in anything? What you wrote about library books seems to be more lenient than what I've heard elsewhere, but I would not be at all surprised if what I heard elsewhere was just hearsay and fluff.

(I ask this as someone who does not want to step on any copyright toes, ever, but who can only borrow Aran Knitting through Interlibrary Loan for 4 weeks at a time. Maybe some knitters can finish St. Brigid in that amount of time, but I can't. I feel less weird now about photocopying that one pattern, and keeping the photocopy to work from for a few weeks after I return the book. But I'm still curious about this sort of situation.)

Anonymous said...

well done Carol! As a non-practicing attorney in academia, I think your explanations are excellent.
And I would emphasize your last point with a finger pointed at the cross-stitch industry. Once upon a time it was the hottest thing going. Then came the internet, chat groups and copies all over the place. Margins on those charts are next to nil anyways and those shops now are as rare as yarn shops used to be (and could again be).
Maybe another urban myth, but the surest way to dry up new designs is to deprive the current designers of their rightful income. They have to go out and find what my husband calls "a real job" (can you tell I've had to deal with this problem a few times?)

amy! said...

Valerie --

You missed no controversy. There was a sentence that was a little unclear. It's gone.

And Carol, thanks for the post. I figured my first comment would get deleted, so I refrained from adding more.

But my burning question is, what are the issues surrounding adapting a pattern into something else. How much has to be new before it's okay to reuse the techniques, even with heavy amounts of credit being granted toward the original designer? Is it enough that your adaptation doesn't contain enough detail to reproduce the pattern you adapted? It starts to get very fuzzy.

Anonymous said...

Sorry, Carolina, hen.
Too quick on the draw.
And way too crabby.

Anonymous said...

Hi Carol,

See, I finally looked at your blog! Just think, now I'll never need to talk to you again, 'cause I can find out everything I want to know about you right here ...

I like your copyright explanations. I must admit it's one of my favorite topics. (I just re-read that sentence - God, I need a life!)

Carol said...

Kath, you know you can do no wrong as far as I'm concerned.

Welcome, Bridget! I'm glad you found me. But I certainly hope you still talk to me...we have such a good time in the shop on Saturdays, it should be illegal.

MsAmpuTeeHee said...

Day late and a dollar short, as usual...but I'm just now getting "catch up time".

Carol, I'm curious...could you say something about how copywrite law extneds to people selling knitted items derived from patterns they've purchased (or downloaed for "free" on the internet)? I'm confused about this. I walked by a very fancy schmancy store that had in it's window some very distinctive scarves that I'd seen in a recently published book (selling for $140, I might add). I supposed it could have been knitted by the author, but I'm guessing it was not. When is that okay (if ever)? Does just changing the suggested yarn or changing or row or two make it a "different pattern"?

Also, is it okay for a yarn store to sell yarn and suggest it be used to make a "free pattern" from the internet and refer them to (but not give them a copy of) that pattern?

(I'm sure it depends...lol)

Just so you'll know, I always get peeved when a friend sees something I've knit and then asks if they can have the pattern.
I'm very much a supporter of the arts and paying the artist. I even still buy cd's ;-)