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Make no mistake, we are living in the future. In a matter of moments, we can publish our thoughts, communicate with people on other continents, or start downloading more information than we can ever consume. We are presented with hundreds of great offers every day—each with a thousand caveats. We hear about hackers stealing identities and kids being sued for copyright infringement, and even a New York socialite slap-fight taking place in an anonymous forum can take the national stage. The future is odd, indeed. To help you get some of it straight, we sat down with various lawyers and asked: How do our rights work in the digital age? Can you get in trouble posting messages about someone online? Are there exceptions to copyright? Is it legal to back up your ebooks? Not all of these questions have clear answers, and some answers don’t make much sense. We might be living in the future, but the legal system was designed to deal with the increasingly obsolete present.
Anyone can sue you for anything, anytime, provided they file the paperwork and pay a fee. Whether they have a case is a completely different matter. “Falsely accusing someone of being a prostitute may be defamation, but, depending on the context, a court might read the statement as mere hyperbole, not an actual accusation that [the person] exchanges sexual favors for money,” says Kurt Opsahl, senior staff attorney at the Electronic Frontier Foundation. (DISCLOSURE: Quinn Norton does paid photography for the EFF occasionally.)
The intention of the writer matters. “For example,” says Opsahl, “It was not defamation for ESPN to caption a photo ‘Evel Knievel proves you’re never too old to be a pimp,’ since it was—in context—not intended as a criminal accusation, nor was it reasonably susceptible to such a literal interpretation.” (Besides, with Knievel, it’s so clearly true.)
Even if the plaintiff doesn’t know your identity, you can be sued as a John or Jane Doe, or they can use the pretense of the lawsuit to get access to records that will identify you, as was the case with the New York–based model who subpoenaed records from Google to find out which socialite blogger was dissing her. She dropped the case as soon as she found out who had called her a skank. This is yet another reason to use the anonymous Tor web browser when you’re sophomorically taunting D-list celebrities.
Definitely, but we’ve got to make a few things clear. First off, copyright is automatic and pervasive. “All creative content is automatically copyrighted as soon as it is created—if you scribble on a napkin, that’s copyrighted,” explains Nicholas Reville, cofounder and executive director of the Participatory Culture Foundation.
To “un-copyright” something, the copyright has to expire or be waived, as the U.S. government has done on all content it produces. To legally download something copyrighted—be it over P2P, BitTorrent, or even off an FTP site—you’ll need permission. That second point, authorization, is where the P2P legal action comes from.
“Content that people put online for free download—for example, anything on Legaltorrents.com—is perfectly legal to download and is also copyrighted. The key question is whether the copyright holder has authorized the content to be posted or downloaded,” says Reville.
Probably, but the vendor has to tell you that up front. What software companies sell you isn’t the stuff they’ve made; they sell you a specialized contract called a license that lets you use the stuff they’ve made. That license, generally printed on the plastic the software is wrapped in (hence, “shrink-wrap license”) or on a webpage in a very small font with an “I agree” button at the bottom, actually tells you what you just bought. “What you see in the fine print is what you get,” says Wendy Seltzer, a fellow with the Berkman Center for Internet & Society at Harvard Law School. “Under a license, you might be denied the right to transfer or reverse engineer the software, or the amount of time you may use the software could be limited. Some courts have been saying, however, that if it looks like a sale, it should be treated as a sale, in rulings that limit the effect of some of these unexpected provisions.”
While selling you just about any kind of license is legal, vendors have to be clear about what they’re selling. If it says that it’s reliable forever on the box, and in the small print it says it may knock out your power grid, sour your fruit, shave your cat, and stop working after a week, you probably have a case. “If you’ve been misled about what’s in the package, the Federal Trade Commission might like to hear about unfair or deceptive trade practices,” says Seltzer. “If the box or download page doesn’t clearly say ‘time-limited,’ yet the software goes poof in the middle of a critical project, you’d have a good argument that you didn’t get what you paid for.”
The moral of the story is that when it really counts, always read the fine print.
Comments are closed on this article
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August 07, 2011 at 12:33am
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July 19, 2011 at 5:19am
Don't ever say anything on the net, be it a website or email, that you aren't willing to share with the whole planet.
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April 17, 2010 at 9:24pm
Yes I think so if you knownly download somthing copyrighted and sell or make profit from it.
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jason_mcallister
April 01, 2010 at 12:43pm
Moot point I think. People will do what they think is reasonable like make backup copies.
Funny that the law really works well for the media giants and screws the consumer.
publicimage
March 22, 2010 at 5:14pm
Great article! As a "content producer" myself, I think equally important is knowing your own rights if someone else is sharing or downloading your stuff too. I recently read an article on how YouTube's EULA deals with copyrights/authorization and you'd probably be surprised by how much you're giving up when you upload your own videos to it.
evolution76
March 19, 2010 at 10:56am
The problem is law can not keep up technology.....Technology changes every day....Law changes only when it is need to change...
The Absence of Evidence is not the Evidence of Absence
evolution76
March 19, 2010 at 10:56am
The problem is law can not keep up technology.....Technology changes every day....Law changes only when it is need to change...
The Absence of Evidence is not the Evidence of Absence
fusobotic
March 18, 2010 at 1:43pm
Cool article, answers a few questions I've had, but, if you could, I would like to see a study of who actually gets caught for this type of stuff.
nekollx
March 18, 2010 at 10:12am
So basiclly the fan subs (raw footage from public tellvision in another language mixed with voices or subtitles done for free by a 3rd party) i like to watch are a grey area, their mash ups right?
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Modred189
March 18, 2010 at 11:02am
A mash-up, given recent court rulings, is really to be considered a parody, and the important measure to look at, at least so far as I have been reading, is whether the new product supplants the market for the original. Since the fan-sub fulfills the EXACT same purpose as the original, I think it would probably beheld as infringement.
nekollx
March 18, 2010 at 11:11am
how does it fill the same purpose though? The people in japan arent going to be interested in a english language sub of their public television, nor is said show even headed for english markets.
------------------------------
Coming soon to Lulu.com --Tokusatsu Heroes--
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Thumkus
March 18, 2010 at 11:55am
Regardless of its legality, I doubt that a foreign company would be interested in pursuing you for downloading their television. However, if you get fan-subbed episodes of something that is available in your country, the license holder might be entitled to legal action against you.
nekollx
March 18, 2010 at 1:05pm
that mainly what i watch, fan subed stuff you CAN'T find here. If it was availble here i'd just get the DVD
------------------------------
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Modred189
March 18, 2010 at 6:03am
Thanks for the great article. As a law school student going into Intellectual Property Law, this is exactly what I am studying, and all of it was spot on. Unfortunately, the one that bother me the most, inability to back-up DVDs, looks like it is here to stay, given the recent SC holding in the RealNetworks case.
At this point, it will take an Act of Congress to change the law.
And that's not happening anytime soon.
CloudRider
March 18, 2010 at 3:32am
What are you trying to say about Quinn Norton? She seems like a perfectly pleasant and reasonable person.
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