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VOICES FROM THE INDUSTRY: Speed trap on the information highway: copyright law

March 17, 2008

As an intellectual property lawyer, it is often my duty to deliver unexpected answers to questions with seemingly innocent intentions:

It's OK to include a short clip from "Animal House" in our company's annual meeting presentation, right?

As long as we cite our sources, we can send our customers copies of helpful newspaper articles, right?

It's not a problem to embed a nifty video we found on the Internet on our own Web site, right?

Unfortunately, incorrect assumptions like these frequently trigger painful introductions to copyright law.

A wonderful colleague of mine once noted that copyright law is a lot like the law of speed limits-a basic analogy that has become quite helpful in this complex age of digital media, YouTube and the blogosphere. Consider this: most of us successfully navigate the world of speed limits on our highways every day-we understand the risks and consequences for our violations. As simple as it sounds, many of these same principles can serve as guidelines for use of copyrighted works.

Precise and unpredictable

The fundamentals of copyright law are precise; it is enforcement that is unpredictable. For example, we know with precision what the speed limit is on any road because it is posted. If the posted speed limit is 35 mph, then we know traveling at a higher rate of speed-whether 36 mph or 50 mph-is a violation, period. What is less clear to us is which violations will be enforced against us. We reasonably tend to believe that we will get away with traveling at 36 mph, but we know that going 50 mph puts us at a greater risk.

Similarly, copyright law is pretty straightforward. For the vast majority of copyrighted works, the owner has the exclusive right to reproduce, distribute, adapt, publicly perform and publicly display the copyrighted work. Exercising those rights without the consent of the owner is an infringement of those rights.

Sure, there are some types of conduct that are exceptions to infringement, and there some limitations on the copyright owner's rights, but they tend to apply only under narrow circumstances.

Thus, technically, the act of forwarding an e-mail to a third party, photocopying a magazine article, posting a photo of a celebrity that you found on the Internet on your MySpace page or humming your favorite tune at the bus stop can be an infringement of someone's copyrights. These are all examples of unauthorized reproductions, displays and performances. On the whole, the difficulty is not determining whether the law has been violated, but rather predicting when copyright owners are likely to enforce their copyrights against us. In other words, does this conduct constitute going 36 or 50?

As with speeding in a vehicle, you are less likely to have enforcement issues if the conduct is kept to a minimum and at a low profile. But don't kid yourself. You still may be found guilty of infringing.

Intentions don't count

The penalties for copyright violations can be high, and your good intentions will not necessarily help. The fines for speeding can be hefty. Telling the officer that you did not realize you were speeding or that you were going the same speed as everyone else is not likely to get you very far. Likewise, you can be liable for copyright infringement even if you did not intend to infringe or did not profit-even if it appears that "everyone else is doing it, too." Although it is often difficult for copyright owners to show that an infringement has caused them to suffer actual damages, a copyright owner can in some circumstances opt to seek to recover statutory damages-up to $150,000 per infringement-plus attorneys' fees. Thus, copyright infringement is not a trifling matter.

Behavior is misleading

You cannot infer copyright law from behavior, just as we cannot determine the legal speed limit by watching the speed of the traffic that goes by. If that were the case, we would all believe that the speed limit on Interstate 465 is somewhere around 65 mph. Yet this is often the mistake we make when it comes to making use of others' copyrighted works: we think infringing activities are OK because we see it going on around us all the time.

In the ever-changing digital landscape, it may be impossible to avoid infringements altogether. But, it pays to understand the risks we face as we exceed the speed limits on the information highway.

Frisby is a partner in the Indianapolis office of Barnes & Thornburg LLP, practicing in the intellectual property department. Views expressed here are the writer's.
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