One way to keep your webbots out of trouble is to obey copyright, the set of laws that protect intellectual property owners. Copyright allows people and organizations to claim the exclusive right to use specific text, images, media, and control the manner in which they are published. All webbot developers need an awareness of copyright. Ignoring copyright can result in banishment from websites and even lawsuits.
Before you venture off on your own (or assume that what you’re reading here applies to your situation), you should check out a few other resources. For basic copyright information, start with the website of the United States Copyright Office, http://www.copyright.gov. Another resource, which you might find more readable, is http://www.bitlaw.com/copyright, maintained by Daniel A. Tysver of Beck & Tysver, a firm specializing in intellectual property law. Of course, these websites only apply to US laws. If you’re outside the United States, you’ll need to consult other resources.
Mitigating factors and varying interpretations affect copyright law enforcement. There seems to be an exception to every rule. If you have specific questions about copyright law, the smartest thing to do is to consult an attorney. Since the Internet is relatively new, intellectual property law—as it applies to the Internet—is somewhat fluid and open to interpretation. Ultimately, courts interpret the law. While it is not within the scope of this book to cover copyright in its entirety, the following sections identify common copyright issues that webbot developers may find interesting.
In the United States, you do not have to officially register a copyright with the Copyright Office to have the protection of copyright laws. The US Copyright office states that copyrights are granted automatically, as soon as an original work is created. As the Copyright Office describes on its website:
Copyright is secured automatically when the work is created, and a work is “created” when it is fixed in a copy or phonorecord for the first time. “Copies” are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm. “Phonorecords” are material objects embodying fixations of sounds (excluding, by statutory definition, motion picture soundtracks), such as cassette tapes, CDs, or LPs. Thus, for example, a song (the “work”) can be fixed in sheet music (“copies”) or in phonograph disks (“phonorecords”), or both. If a work is prepared over a period of time, the part of the work that is fixed on a particular date constitutes the created work as of that date.[90]
Notice that online content isn’t specifically mentioned in the above paragraph, while there are specific references to original works “fixed in copy” through books, sheet music, videotape, CDs, and LPs. While there is no specific mention of websites, one may assume that references to works that may be “perceived either directly or through the aid of a machine or device” also covers content on webservers.
It is interesting to note that the quoted text has not changed since I originally referenced it in 2007 for the first edition of this book. There are still no direct references to online content. The important thing for webbot developers to remember is that it is dangerous to assume that something is free to use if it is not expressly copyrighted.
If you don’t need to register a copyright, why do people still do it? People file for specific copyrights to strengthen their ability to defend their rights in court. If you are interested in registering a copyright for a website, the US Copyright Office has a special publication for you.[91]
If you hold (or claim to hold) a copyright, you don’t need to explicitly add the phrase all rights reserved to the copyright notice. For example, if a movie script does not indicate that all rights are reserved, you are not free to assume that you can legally produce an online cartoon based on the movie. Similarly, if a web page doesn’t explicitly state that the site owner reserves all rights, don’t assume that a webbot can legally use the site’s images in an unrelated project. The habit of stating all rights reserved in a copyright notice stems from old intellectual property treaties that required it. If a work is unmarked, assume that all rights are reserved.
The US Copyright Office website explains that copyright protects the way one expresses oneself and that no one has exclusive rights to facts, as stated below:
Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work.[92]
How would you interpret this? You might conclude that someone cannot copy the manner or style in which someone else publishes facts, but that the facts themselves are not copyrightable. What happens if a business announces on its website that it has 83 employees? Does the head count for that company become a fact that is not protected by copyright laws? What if the website also lists prices, phone numbers, addresses, or historic dates?
You might be safe if you write a webbot that only collects pure facts.[93] But that doesn’t prevent someone else from having a differing opinion and challenging you in court.
In the previous excerpt from the US Copyright Office website, we learned that copyright law protects the “particular way” in which someone expresses him or herself and that facts themselves are not protected by copyright. One way to think of this is that while you cannot copyright a fact, you might be able to copyright a collection of facts—if they are presented creatively. For example, a phone company cannot copyright a phone number, but it can copyright an entire phone directory website, if the phone numbers are presented in an original and creative way.
It appears that courts are serious when they say copyright only applies to collections of facts when they are presented in new and creative ways. For example, in one case a phone company republished the names and phone numbers (subscriber information) from another phone company’s directory.[94] A dispute over intellectual property rights erupted between the two companies, and the case went to court. The fact that the original phone book contained phone numbers from a selected area and listed them in alphabetical order was not enough creativity to secure copyright protection. The judge ruled that the original phone directory lacked originality and was not protected by copyright law—even though the publication had a registered copyright. If nothing else, this indicates that intellectual property law is open to interpretation and that individuals’ interpretations of the law are less important than court decisions.
United States copyright law also allows for fair use, a set of exclusions from copyright for material used within certain limits. The scope of what falls into the fair use category is largely dependent on the following:
Nature of the copyrighted material
Amount of material used
Purpose for which the material is used
Market effect of the new work upon the original
Copyrighted material commonly falls under fair use if a limited amount of the material is used for scholastic or archival purposes. Fair use also protects the right to use selections of copyrighted material for parody, in short quotations, or in reviews. Generally speaking, you can quote a small amount of copyrighted material if you include a reference to the original source. However, you may become a target for a lawsuit if you profit from selling shirts featuring a catchphrase from a movie, even though you are only quoting a small part of a larger work, as it will likely interfere with the market for legitimate T-shirts.
The US Copyright Office says the following regarding fair use:
Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances.[95]
As you may guess, fair use exclusions are often abused and frequently litigated. A famous case surrounding fair use was Kelly v. Arriba Soft.[96] In this case, Leslie A. Kelly conducted an online business of licensing copyrighted images. The Arriba Soft Corporation, in contrast, created an image-management program that used webbots and spiders to search the Internet for new images to add to its library. Arriba Soft failed to identify the sources of the images it found and gave the general impression that the images it found were available under fair use statutes. While Kelly eventually won her case against Arriba Soft, it took five years of charges, countercharges, rulings, and appeals. Much of the confusion in settling the suit was caused by applying pre-Internet laws to determine what constituted fair use of intellectual property published online.
[90] US Copyright Office, “Copyright Office Basics (Circular 1),” July 2008 (http://www.copyright.gov/circs/circ1.pdf).
[91] US Copyright Office, “Copyright Registration for Online Works (Circular 66),” July 2009 (http://www.copyright.gov/circs/circ66.pdf).
[92] US Copyright Office, “Fair Use,” July 2006 (http://www.copyright.gov/fls/fl102.html).
[93] Consult your attorney for clarification on your legal rights to collect specific information.
[94] Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 1991.
[95] US Copyright Office, “Can I Use Someone Else’s Work? Can Someone Else Use Mine? (FAQ),” October 6, 2009 (http://www.copyright.gov/help/faq/faq-fairuse.html#howmuch).
[96] If you Google Kelly v. Arriba, you’ll find a wealth of commentary and court rulings for this saga.