How to Avoid Copyright Infringement

After the CASE Act passed the Senate Judiciary Committee* on Thursday last week, the critics hit “Publish” on the blogs they had written with the intent to scare users—doubling down on the narrative that the Copyright Claims Board (CCB) for small claims will lead to a whirlwind of infringement judgments against ordinary and innocent users.  I and others have explained the many technical reasons why this allegation is unsupportable under the new statutes, but folks out there will still be frightened by blogs like the one from the oxymoronically-named Center for Democracy and Technology.  Stan Adams writes …

“You may be thinking, ‘I won’t infringe copyright, I’ll just make sure not to use any protected works.’ Here’s why that will not be as easy as you might think. First, copyright is automatic. This means that when someone snaps a new photo, they immediately hold the rights to it. If you found a photo or other work that you wanted to use, you would need to get permission from the rightsholder. In some cases, determining who to ask is relatively easy.”

Actually not infringing copyright is easier than Adams wants you to think.  Believe it or not, many of the most prolific authors and users of works since 1978 (when copyright became automatic) have been not infringing copyright rather effectively throughout their careers.  Not just the wealthy stars of the entertainment world, but regular middle-class creators (like the ones the CASE Act is designed to help) have been not infringing one another’s copyrights in the production and reproduction of millions of works.  How they achieve this miracle is really quite simple, and the basic steps are implicit in Adams’s paragraph above.  To avoid infringing copyrights, do the following:

Step 1:  Do not use work that is not yours.

Step 2:  If you want to use work that is not yours, do a little homework and make sure you have a plausible legal basis for using the work; or obtain a license for use of the work.

Step 3:  If you are unable or unwilling to make the effort in Step 2, return to Step 1.  

When the CDT, EFF, et al write posts like the one by Adams, there is a sleight of hand afoot (if you will).  He is purposely, albeit subtly, conflating the unintentional user (e.g. someone reposting a meme) with the intentional user (e.g. a blogger or commercial entity posting editorial or promotional material).  It is neither affordable, nor technically possible, under the CASE provisions for a small claimant to go after myriad unintentional users like re-tweeters et al.  But the intentional users, who will be the subjects of claims brought via the CCB, really can avoid infringing by following the basic guide above. 

Whether you are advertising a business, making a political statement, promoting an event, writing a blog, etc., the moment you consciously decide you want a photograph, illustration, video clip, or music to accompany the message, your responsibility to not infringe copyright is both reasonable and entirely achievable.  There are many low-cost options to avoid infringing copyright, including, in some cases, asking the copyright owner for permission to use the work.  I know.  It’s downright uncivilized.  Permission.

One reason these organizations get away with scaring people about CASE is that we have normalized copyright infringement (to say nothing of permission in other contexts) to the extent that infringement is portrayed as a form of civil disobedience rather than what it usually is—a complete lack of courtesy toward individual people.  Because what happens in real life is that some business owner, perhaps a local insurance broker, builds a web page for his company, and because the refrain grab it off the internet has been playing in his head since middle school, he does not stop to think that the photograph of the family buying a car requires a license for use.  

That is the kind of infringement CASE is designed to address for the independent creator; and frankly, the commercial infringer should be grateful for the small-claim option as well.  As we saw in Brammer v. Violent Hues, a commercial user who really should have known better wound up costing himself a lot of money in federal court defending an indefensible use of one man’s photograph.  That was an archetypal example of an intentional user hastily making use of a photo he “found online,” knowing full-well that he had other options, including lower-cost stock photos or taking his own picture.

Just because the internet makes copyright infringement a bit too easy, this does not mean that not infringing copyright is especially difficult.  And CASE does not change anything about the parameters of copyright law, except that it may perhaps remind certain users that, no, everything online is not there for taking.  If intentional users simply pause to think about what they are doing and to what purpose, making legal and/or fair uses of works is not so mysterious as Adams et al would have you believe.  After all, if you are building a web page, writing a blog, promoting an event, etc. and not thinking about what you’re doing, you may have bigger problems than potential copyright infringement.

The “wild west” is over.  Good riddance.

Beyond copyright matters, I believe the folks at these organizations mean well (mostly), but they should pause and think about their personal moral codes in context to the world view they keep promoting—because it is actually destroying the world.  The romance of the “wild west” internet is over, and good riddance because the Wild West is nothing to aspire to as a society.  Consequently, it is worth asking why the CDT, EFF, et al are still so eager to promote the illusory value of never thinking about what we do online or to whom we do it.

These groups tend to oppose both platform and user liability for almost any kind of conduct; but whose interests are really served by a free-for-all market devoid of human agency, permission, or responsibility?  As we see in daily examples, it is the perfect environment for entrenching the economic and political power of the major web platforms while safeguarding the conduct of predatory actors and trolls, and—I would add—amplifying hateful rhetoric with tangible and dire consequences.  I suppose Stan Adams’s organization could change its name to Center for Tyranny-of-the-Mob and Technology, but that’s a bit of a mouthful and probably not good messaging.  Yet, bizarrely, it is kinda what they are selling.  

*Original publication stated that CASE passed out of the Senate and not just the SJC. Thanks to reader Dave Davis for catching the error.

Photo by conejota.

© 2019, David Newhoff. All rights reserved.

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  • “we have normalized copyright infringement (to say nothing of permission in other contexts) to the extent that infringement is portrayed as a form of civil disobedience rather than what it usually is—a complete lack of courtesy toward individual people.”

    Ever-expanding copyright legislation has extended the ownership rights of music to over a century (life + 70 years). Originally, the copyright term was 14 years plus an optional 14 year extension. Like patent protection (20 years), copyright was originally intended to promote (individual) creativity in a balance with promoting the social (collective) good.

    Current copyright law restricts the creation of derivative musical works, and fair use exclusions continue to be eroded. That is, public expression of creativity has become increasingly subordinated to excessive monopoly ownership rights granted to individual expressions of creativity. While the copyright concept is sound, the excessive term (100+ years) has become oppressive to the needs of derivative creative expression within a society. This is perhaps where the motivation for ‘civil disobedience’ is rooted.

    • David Newhoff

      Just to be clear, welwyn’s response, which I assume is to you, Dolores is correct in spirit if not quite in technical terms, though you seem to be misusing some terms yourself. A “derivative work” is the exclusive right of the author to make, and paying for a mechanical license does not change this fact. The compulsory license allows you to perform or record a song but not to adapt it. Fair use would allow unlicensed parody, but it needs to be a real parody of the song itself.

      Meanwhile, it is not at all clear what your complaint really is. If anything the trend in jurisprudence has been an expansion of fair use to the extent that it occasionally threatens to extinguish the “derivative works” right; but if even if one does not agree with that premise, it certainly is not moving in the other direction. There is no shrinking of the fair use exception whatsoever. Just because there are more uses that certain parties would like to define as fair use, the rejection of that expansionist view is not an “erosion” of the doctrine.

      Re. copyright terms, it is not an argument or even a statement of principle, simply to state that “A used to be this way, but now it’s this way.” Yes copyright terms were 14 + 14 in 1790. So what? Women used to not vote. Children used to work in factories and coal mines. See how those statements do not automatically mean that the way things used to be was better? If one is going to argue against a policy, it is helpful to know how and why it got that way. Regardless, this wasn’t a post about term length; it was a response to CDT’s ridiculous claim that not infringing copyright is hard in context to the CASE Act.

      • Oh I thought that a mechanical license would allow one to rearrange a pop song as a Jazz number, or take a pop song and arrange it for an orchestra, or even take a musical number and transform it into a rock protest number. Apparently Bernstein wasn’t pleased with what Emerson did to America.

      • David Newhoff

        New arrangement is not generally considered a “derivative work” of a composition. You can a pay for a mechanical license and then perform a song on electric guitars that was originally written for violins. The license would not allow substantial revision of lyrics, or to necessarily insert a whole bridge into an instrumental work. When Elton John wrote a second version of “Candle in the Wind” for Princess Diana, that was a “derivative work,” and only he has the right to prepare or allow that work. You can pay for a license and perform “Candle in the Wind” on Pan Flute and ashcans, if you want. As far as copyright is concerned, Bernstein can suck it up. If it were conflict today, which is almost impossible to imagine, any argument against The Nice version should easily be extinguished by fair use because they are so obviously commenting on the original.

      • I think the point here is that a mechanical license would allow them to do a lot, but in reality the complaints here all revolve around Google and YouTube.

        There are a very small number that want to sync some music with video (one or both of which they didn’t create), but mostly there are a slightly larger group that having created their own versions of a song, and obtained a mechanical license, get caught by ContentID, Of course the vast majority of them won’t even have bothered with the mechanical license, and they are simply playing some music as background to a video they’ve made, additionally they are slowing down or speeding up the original music to try to defeat ContentID. But license or not they trigger ContentID and then they have to deal with an automated algorithm claiming the ad revenue, and being millennial rugrats they can’t handle the resulting Google processes.

      • Sorry for the delay in responding. Was finishing a big project. As a technical matter mechanical licenses are different from synch licenses, and the latter is required when one wants to synch music to motion picture. Mechanicals only cover underlying composition. Synch covers the actual recording of a song. So, if you want to use Simon & Garfunkle’s “Hazy Shade of Winter” in your movie, that’s different from using The Bangles’s version of that song under synch license, although mechanical still gets paid to Simon in either case. As for Content ID, I cannot begin to go down that road because it’s a huge mess. I address it a bit in post about YouTube’s Copyright Match system, but you could also search The Trichordist for Content ID related stories or follow Kerry Muzzy on Twitter.

  • OK so if one could make a derivative of a song from 1991 everything would be fine, and people would no longer be making exact copies of the current top tunes?

    You do know that you just have to fill in the forms for a mechanical license and pay a small fee and you can make a derivative of any song, why can’t you do that.

    • Sorry I missed this. “Derivative” is a specific term under Section 106 of the copyright law and would not apply to a cover song. You can pay the fee for a compulsory license to perform or record a song, but that compulsory license does not allow you to change the underlying composition, lyrics, etc. Such changes would, in most cases, produce a “derivative work,” which only the rightsholder may do or authorize.

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