Chapter 1: Jurisdiction and Venue 12 in Cyberspace Cyberlaw: The Law of the Internet and Information Technology 1st Edition Brian Craig Class Name Instructor Name Date, Semester LEARNING OBJECTIVES After this lecture, you should: 12 1.1 Explain the history of the Internet. 1.2 Describe the different types of jurisdiction, including subject matter jurisdiction, personal jurisdiction and in rem jurisdiction. 1.3 Discuss how service of process plays a critical role in the commencement of litigation and how service of process can be effectuated via electronic means. Class Name Instructor Name Date, Semester Cont’d LEARNING OBJECTIVES After this lecture, you should: 12 1.4 Explain what activities are considered minimum contacts for a website owner and the sliding scale used by courts for passive and active website. 1.5 Describe the purpose of a choice of law provision and a forum selection clause in an online contract. Class Name Instructor Name Date, Semester Learning Objective After this lecture, you should be able to: 1.1 Explain the history of the Internet. 1.1 History of the Internet • Arpanet: military research network established in 1968 • Arpanet purpose: connect government computers across country during wartime • Arpanet: sponsored by Advanced Research Projects Agency (ARPA) of the U.S. Department of Defense • J.C.R. Licklider: first head of computer research program at ARPA 1.1 • Definition of Cyberlaw Cyberlaw: the field of law dealing with the Internet, encompassing cases, statutes, regulations, and disputes that affect people and businesses interacting through computers 7 Learning Objective After this lecture, you should be able to: 1.2 Describe the different types of jurisdiction, including subject matter jurisdiction, personal jurisdiction, and in rem jurisdiction. 1.2 Jurisdiction •Jurisdiction: a court’s power to decide a particular case •Subject matter jurisdiction: jurisdiction over a particular subject matter (e.g. bankruptcy) •In rem jurisdiction: jurisdiction over a particular thing or property (e.g. probate cases) •Personal jurisdiction: jurisdiction over a particular person 9 1.2 Personal Jurisdiction •International Shoe Co. v. Washington: U.S. Supreme Court established “minimum contacts” test for personal jurisdiction •State can exercise personal jurisdiction over defendant if defendant has minimum contacts with the forum state 10 1.2 Case Study: Boschetto V. Hansing • Court held that private seller who sold vehicle on eBay did not have sufficient “minimum contacts” to support personal jurisdiction • Long arm statue: statute that provides for jurisdiction over nonresident defendant who has had some contact with the forum 11 Learning Objective After this lecture, you should be able to: 1.3 Discuss how service of process plays a critical role in the commencement of litigation and how service of process can be effectuated via electronic means. 1.3 Service of Process • Service of process: the formal delivery of a writ, summons, or other legal process. Also called “service.” • Types of service under FRCP 4 • Service via electronic means? 13 Learning Objective After this lecture, you should be able to: 1.4 Explain what activities are considered minimum contacts for a website owner and the sliding scale used by courts for passive and active website. 14 1.4 Minimum Contacts for Websites • Sliding scale for passive and active websites • Passive website by itself usually not sufficient contact • More interactive website may involve exercise of personal jurisdiction • Decided on a case-by-case basis Learning Objective After this lecture, you should be able to: 1.5 Describe the purpose of a choice of law provision and a forum selection clause in an online contract. 16 1.5 Choice of Law Provision • Choice of law: which jurisdiction’s law should apply in a given case • Choice of law provision: contractual provision where parties designate the jurisdiction whose law will govern any disputes that may arise between the parties • Purpose of choice of law provision: predictability 1.5 Forum Selection Clause • Venue: proper place for a lawsuit; county where trial court has jurisdiction • Forum selection clause: contractual provision where parties establish the place (such as the country, state or type of court) for specific litigation between them • Purpose of forum selection cause: save time and money with litigation 18 Chapter Summary 12 1.1 Explain the history of the Internet. 1.2 Describe the different types of jurisdiction, including subject matter jurisdiction, personal jurisdiction and in rem jurisdiction. 1.3 Discuss how service of process plays a critical role in the commencement of litigation and how service of process can be effectuated via electronic means. Class Name Instructor Name Date, Semester Cont’d Chapter Summary 12 1.4 Explain what activities are considered minimum contacts for a website owner and the sliding scale used by courts for passive and active website. 1.5 Describe the purpose of a choice of law provision and a forum selection clause in an online contract. Class Name Instructor Name Date, Semester F E AT U R E S | L I T I G AT I O N Cyberjurisdiction by Ellen S. Moore T he Internet has evolved over the past few decades into a complex medium that enables its users to disseminate information quickly and inexpensively to half a billion individuals worldwide. These communications are routed throughout the United States and abroad, notwithstanding their origin and destination. Two decades ago, there were less than 300 computers linked to the Internet.1 By the year 2000, there were estimated to be 175 million people accessing the Internet.2 It is now estimated that half a billion people worldwide have access to the Internet from their homes, and that number will swell to 600 million by the end of the year.3 Also, by the end of 2002, Internet users are expected to spend more than $1 trillion in online commerce.4 In short, every Virginia lawyer probably has a client who accesses the Internet to post or receive information and/or to buy or sell goods or services. These clients, because of the global nature of the Web, may become involved in disputes that stretch across the United States, if not the world. Indeed, the Internet explosion has generated many jurisdictional disputes, putting the onus on courts to determine how to apply historic concepts regarding personal jurisdiction to the boundaryless world of the Internet. The courts’ latest, and now most common approach has been to apply basic personal jurisdiction analysis to Internet activities on a “sliding scale” analysis of the 28 April 2002 interactivity of the site. Virginia courts, too, have integrated this sliding scale analysis in their review of Internet-related jurisdiction. Many of these same courts, however, have not diminished their focus on the perceived harm to the plaintiff or what is known as the “effects doctrine.” Indeed, application of the sliding scale analysis itself has been inconsistent from court to court, leaving potential plaintiffs with no certainty that their case will be heard in their local forum. Additionally, potential defendants are unable to judge their risk of being haled into a foreign court. General Bases For Jurisdiction The basic premise of personal jurisdiction analysis utilizes a twopart review under the state’s long-arm statute and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In many states, including Virginia, this analysis is simplified by the courts’ interpreting the long-arm statute5 to be satisfied whenever the constitutional requirements are met.6 Briefly stated, the Due Process Clause requires that no defendant be haled into court unless he has “certain minimum contacts” with the forum state “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice’.”7 The defendant must have “purposely avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”8 Also, the L exercise of jurisdiction must be “fair and reasonable” under the circumstances of the case and the “defendant’s conduct and connection with the forum State [must be] such that he should reasonably anticipate being haled into court there.”9 Personal jurisdiction further may be founded on either of two theories, general or specific jurisdiction. A court exercises general jurisdiction when an action “does not arise out of the defendant’s activities in the forum state, . . . [but] the requisite ‘minimum contacts’ between the defendant and the forum state are ‘fairly extensive.’”10 In such a case, the defendant’s contacts must be “continuous and systematic.”11 A court may exercise specific jurisdiction when the suit arises out of the defendant’s activities in the forum state.12 When exercising specific jurisdiction over the defendant, the courts need not find extensive contacts between the defendant and the forum state, but the “fair warning” requirement of the Due Process Clause requires that the defendant have “purposely directed” its activities at the forum.13 Judicial Analysis of Cyber-jurisdiction The Internet has not altered the courts’ use of traditional jurisdictional concepts; instead, it merely has added a new factor in the analysis of such contacts. Some courts, especially the early reviewers of these issues, compared the Internet with more recognized forms of communication and commerce. For example, courts have analogized the use of electronic mail to that of the regular postal service, or Internet advertising to that of advertising a product via paper communications and thereby inserting that product into the stream of commerce. This analysis often falls short, however, in considering the potential interactivity allowed by the Internet and the fact that the Internet reaches a much broader and more geographically diverse audience than do most paper-based advertisements or publications. Many courts, therefore, have adopted a sliding scale or continuum of characteristics of Internet presence and interactivity to assist in resolving the question of just when and how much Internet presence is enough for jurisdiction in a given forum. As set forth in the seminal case of Zippo Mfg. Co. v. Zippo Dot Com, Inc.,14 three general categories of Internet presence have emerged, creating three general lines of case law addressing personal jurisdiction issues. The first category includes passive Web sites that merely present information without accepting information from the viewer, taking orders, or selling or offering services or products. Generally, no jurisdiction is found with passive sites. The second category concerns Web sites with both passive and active characteristics—those that allow for the exchange of some information between the site and the viewer. Here the court will analyze the level of interactivity with the customer or user in that state to determine jurisdiction. The third category includes those Web sites where the provider actively conducts business over the Internet by allowing the user to enter into contracts or purchase products advertised on the site. Jurisdiction is generally found where the Web site is highly interactive. Jurisdictional determinations, however, are very fact-dependent, and courts have not hesitated to mold the sliding scale analysis or utilize different jurisdictional analyses. What some courts interpret to be a purely passive Web site, other courts hold to be at least partly active—resulting in very different rulings concern- I T I G AT I O N | F E AT U R E S ing very similar Web sites. Still, other courts have set aside the sliding scale analysis—at least on occasion—to utilize “effects doctrine” or other analysis in determining whether to exercise jurisdiction over a nonresident defendant. Thus, it is difficult for Internet users to measure their risk of being haled into court in a foreign jurisdiction. Passive Web Sites Courts generally find insufficient evidence to support personal jurisdiction based solely on a plaintiff’s accessing the passive Web site of a nonresident defendant in the forum state, absent some additional showing that the nonresident defendant purposely attempted to conduct or solicit business in the forum state. The following sections present a survey of cases reviewed concerning passive Web sites. Cases Finding No Jurisdiction15 • In Revell v. Lidov,16 the United States District Court for the Northern District of Texas, Dallas Division adopted the sliding scale analysis, finding no jurisdiction where the individual had posted an allegedly defamatory article on a “passive” Web site. • In Mink v. AAAA Development, LLC,17 the Fifth Circuit followed the sliding scale analysis in determining that a Vermont company was not subject to jurisdiction in Texas for its use of a Web site advertisement that included a printable order form to mail in, the mailing address, electronic mail address and a tollfree telephone number. • In Bensusan Restaurant Corp. v. King,18 the Second Circuit found jurisdiction lacking in a trademark infringement action where the defendant’s home page was passive, and gave the Internet user information without selling or offering to sell services or products. • In Cybersell, Inc. v. Cybersell, Inc.,19 the Ninth Circuit found jurisdiction lacking where the defendant’s site provided the company’s local phone number and electronic mail address, but no services could be provided, no contracts could be consummated and no products could be sold via the Internet.20 Cases Finding Jurisdiction • In Inset Systems, Inc. v. Instruction Set, Inc.,21 the United States District Court for the District of Connecticut held that it had jurisdiction over a defendant based on its continuous advertisement over the Internet, which included at least 10,000 potential access sites in Connecticut, and the use and advertisement of a toll-free number on its Web site. • In an unpublished opinion, In re Martin Gardner Reiffin,22 the United States Court of Appeals for the Federal Circuit denied mandamus reinstating venue in the District of Columbia because the California district court, to which venue was transferred, could exercise personal jurisdiction over the defendant for the publication of allegedly libelous information on a passive Web site where the defendant’s conduct had an effect in California by damaging the California plaintiff’s reputation in his home state. Virginia Lawyer 29 F E AT U R E S | L I T I G AT I O N Most courts, following the Zippo decision, find no jurisdiction based on this passive level of activity. However, a few courts, including some in Virginia, utilize an “effects” analysis to find jurisdiction even when a passive Web site is used.23 Web Sites with Both Passive and Active Characteristics The second type of Web site is the “intermediate” interactive site, where the provider allows for the exchange of certain information between it and users accessing the site. This type of site may provide various services on-line to the user. Most courts hold that these cases require an evaluation of the “level of interactivity and commercial nature of the exchange of information that occurs on the [w]eb site” before a determination of jurisdiction can be made. Cases generally find jurisdiction based on interactive Web sites. Cases Finding Personal Jurisdiction— Not Utilizing the Sliding Scale Analysis24 • In Panavision International L.P. v. Toeppen,25 the Ninth Circuit followed an “effects doctrine” analysis in finding jurisdiction over the nonresident defendant based on his scheme to register the plaintiff’s domain name to extort money from the plaintiff. the United States District Court • In Superguide Corp. v. for the Western District of North Carolina found jurisdiction over a nonresident defendant based on the defendant’s Web site advertisement of products to forum state residents and the court’s assumption that most the those residents had utilized the defendant’s services. Kegan,26 Cases Finding Personal Jurisdiction— Utilizing the Sliding Scale Analysis • In Zippo Manufacturing Co. v. Zippo Dot Com, Inc.,27 the United States District Court for the Western District of Pennsylvania found jurisdiction over the defendant based on its “conducting of electronic commerce with Pennsylvania residents,” which constituted a “purposeful availment of doing business in Pennsylvania.”28 • In Hasbro v. Clue Computing, Inc.,29 Massachusetts found jurisdiction in a trademark infringement claim over a Colorado corporation which utilized a partially-interactive Web site that could be accessed by Massachusetts citizens. • In American Network, Inc. v. Access America/Connect Atlanta, Inc.,30 the Southern District of New York found jurisdiction over a nonresident defendant who was attempting to reach and had signed up subscribers to its business in the forum state. • In Heroes, Inc. v. Heroes Foundation,31 the District of Columbia court found jurisdiction based on a nonresident defendant’s solicitation of donations through its home page. 30 April 2002 Cases Finding No Jurisdiction— Not Utilizing the Sliding Scale Analysis • In Kubik v. Route 252,32 the Pennsylvania Superior Court held that a Delaware restaurant’s on-line advertisements, which included directions, a newsletter and the on-line sale of gift certificates, were not sufficient to elicit jurisdiction in Pennsylvania. • In CD Solutions, Inc. v. Tooker,33 the District Court for the Northern District of Texas found that the plaintiff’s claims did not arise from defendant’s Internet contacts with the forum state and thus declined to exercise jurisdiction over the defendant. Cases Finding No Jurisdiction— Utilizing the Sliding Scale Analysis • In Amazon Tours, Inc. v. Wet-A-Line Tours, L.L.C.,34 a magistrate for the District Court for the Northern District of Texas found that it lacked jurisdiction over a Georgia company whose Internet site provided information about tour packages, a message posting board, a form to request a brochure and links to the company’s electronic mail address, because this did “not constitute the kind of interactivity required to exercise jurisdiction over a nonresident defendant.” • In Butler v. Beer Across America,35 the District Court for the Northern District of Alabama concluded the defendant’s semiinteractive Web site, with a limited order form that could be completed and submitted like a reply card in the mail, was insufficient to satisfy minimum contacts requirements under the Due Process Clause. • In Hearst Corp. v. Goldberger,36 the District Court for the Southern District of New York found no jurisdiction over the nonresident defendant because, although forum state residents accessed the defendant’s Web site, the defendant had neither contracted to sell nor sold any products or services in New York. Active Web Sites The third type of Web site is one in which the provider actively conducts its business over the Internet, by displaying product or service information and allowing the user to enter into contracts and purchase the products or services advertised, most often charged to a credit card number given by the user. Courts generally have no trouble finding personal jurisdiction over providers of such sites. • In Rainy Day Books, Inc. v. Rainy Day Books & Café, L.L.C.,37 the District Court for the District of Kansas found jurisdiction over a Maryland bookstore whose Internet site provided information about the store, upcoming events, permits the user to subscribe to a mailing list, obtain information regarding gift certificates or purchase books on-line by clicking a link to an on-line third-party ordering service (which would give the bookstore a credit for the sale). • In Intercon, Inc. v. Bell Atlantic Internet Solutions, Inc.,38 the Tenth Circuit Court of Appeals found jurisdiction over a L Delaware company that “purposefully availed” itself of the plaintiff for months after receiving notice from the plaintiff that it was mistakenly routing its customers’ electronic mail messages through the plaintiff’s server. • In Compuserve, Inc. v. Patterson,39 the Sixth Circuit found jurisdiction to be appropriate where the defendants contracted with plaintiff, an Ohio corporation, for Internet access and to distribute the defendants’ computer software via the plaintiff’s Internet network. Cyber-jurisdiction in Virginia Courts Virginia court decisions mimic the spread of determinations found throughout the rest of the United States’ courts. Some Virginia courts clearly have adopted the sliding scale analysis, while others utilize an “effects” doctrine analysis. Passive Web Sites— Case Finding No Jurisdiction (Utilizing the Sliding Scale Analysis) In Weinstein v. Todd Marine Enterprises,40 the District Court for the Eastern District of Virginia dismissed the action for lack of jurisdiction over the defendant. The case was for breach of contact and fraud concerning the sale of seven cruisers to a Virginia plaintiff. The court found jurisdiction to be inappropriate because the defendant had not even advertised its own Web page in Virginia. Rather, its information appeared on an on-line classified advertisement site. Passive Web Sites–– Case Finding Personal Jurisdiction (Utilizing the Effects Doctrine) In a not-yet-published, decision by Judge Williams in the District Court in Big Stone Gap, Young v. New Haven Advocate, et al.,41 the court found jurisdiction over a defendant for its use of a passive Web site to make allegedly false statements against a Virginia official, based on the application of the effects doctrine.42 The court, while noting the Zippo “sliding scale” analysis, followed Telco,43 discussed below. Rejecting the defendants’ argument that it would be unfair to subject them to world wide jurisdiction for merely posting information on the Internet, the court noted that the defendants’ actions were not “fortuitous or unintentional” in that they posted their product, the articles, on the Internet, knowing that the information could be viewed by Virginia residents, and that this act gave rise to the litigation.44 Moreover, the court found that Virginia had a “significant interest in deterring the posting of defamatory materials concerning one of its citizens,” especially a public employee. In Krantz v. Air Line Pilots Assoc., Int’l, et al.,45 an early Internetrelated jurisdiction case, the Supreme Court of Virginia found jurisdiction over a pilot and labor union who utilized a computer center electronic switchboard system operated from Virginia to spread defamatory information about the plaintiff, another air line pilot, as part of an effort to interfere with his prospective employment contracts. The court found that the defendant used the Virginia system as a means of furthering his plan to ruin I T I G AT I O N | F E AT U R E S Krantz—to enlist the aid of other pilots in spreading negative information about Krantz. This was a “purposeful activity in Virginia” and constituted the necessary minimum contacts necessary for the maintenance of this action in Virginia.46 Web Sites with Both Passive and Active Characteristics— Case Finding Jurisdiction In Telco Communications v. An Apple A Day,47 the District Court for the Eastern District of Virginia utilized a hybrid sliding scale and effects doctrine analysis in holding that the nonresident defendant was subject to Virginia’s jurisdiction in a suit alleging defamation, tortious interference with contract and business conspiracy related to two press releases placed on the Internet. In conducting its jurisdictional analysis, the court recognized the distinction between a passive Web site “that does little more than make information available to those who are interested in it,” and which does not provide grounds for personal jurisdiction over the provider, and an “active” site, which, in this case, gave readers a phone number to call in order to solicit their business.48 The court found that the defendant’s “posting a Web site advertisement or solicitation constitutes a persistent course of conduct, and that the two or three press releases rise to the level of regularly doing or soliciting business” under subsection (A)(4) of Virginia’s long arm statute; also, the court found jurisdiction under subsection (A)(3) providing for personal jurisdiction over a person who causes “tortious injury by an act or omission in” Virginia.49 The court further found that the service defendants used distributed the information to several Virginia consumer information facilities, including America On-line, which is headquartered in the forum district, and NationsBank. Thus the allegedly defamatory speech was made available in Virginia, plaintiff was a Virginia resident, and its effects were felt in Virginia. The court further found that the defendants should have known that the material would be distributed to Virginia, where the plaintiff was located, and therefore could have reasonably expected to be hailed into court in Virginia, such that no due process concerns arose in the case. Active Web Sites— Cases Finding Jurisdiction In Designs88, Ltd. v. Power Uptik Productions, L.L.C.,50 the District Court for the Western District of Virginia adhered to the sliding scale analysis in holding that jurisdiction was appropriate over defendants involved in a membership-based Web site on day trading. The court noted that “mere access to a passive Web site in the forum state is insufficient to support a finding of personal jurisdiction.” In this case, however, the defendants allegedly solicited and maintained a relationship with the plaintiff to design, implement and maintain the defendants’ Web site, on which the plaintiff worked in Virginia. The court rejected the defendants’ argument that the physical location of the plaintiff was irrelevant to his work, which existed “only in cyberspace,” noting that “[t]here being no District Court of Cyberspace, the defendants’ argument that laboring on the Internet defeats traditional personal jurisdiction is unpersuasive; Defendants will have to settle begrudgingly for the Western District of Virginia.”51 Virginia Lawyer 31 F E AT U R E S | L I T I G AT I O N In Alitalia-Linee Aeree Italiane v. Casinoalitalia.com,52 the District Court for the Eastern District of Virginia applied a hybrid analysis in holding that it could exercise jurisdiction over a nonresident defendant who operated a highly interactive Web site that allowed for the formation of contracts, gambling on-line and the generation of profits from Virginia customers. In this case brought under the Anticybersquatting Consumer Protection Act, the plaintiff, an Italian airline, sued the defendant, a Dominican Republic entity, for using a similar domain name for its on-line gambling business. Analyzing the case first under the “effects doctrine,” the court found that the defendant had caused tortious injury in Virginia by its commission of a tortious act outside of Virginia, by infringing on the plaintiff’s trademark, causing the likelihood of confusion and mistake by Virginia customers and diluting the quality of plaintiff’s mark. The court further found that a defendant who conducts advertising and soliciting over the Internet, which can be accessed by a Virginia resident 24hours-a-day, does so regularly for purposes of Virginia’s longarm statute. Lastly, the Virginia court applied the sliding scale or “continuum” analysis of Internet jurisdiction, looking at the level of interactivity and the commercial nature of the Web site. Here, the defendant had on-line casino gambling that was very interactive in nature, five Virginia customers and had earned money from its interactions with such customers. The court held that the defendant thus had engaged in ongoing business transactions in Virginia and the minimum contacts required by the Due Process Clause were satisfied. In the 1999 case of Coastal Video Communications Corp. v. The Staywell Corp.,53 the District Court for the Eastern District of Virginia raised the possibility that general jurisdiction could be exercised over a defendant where its Internet-based contacts with the forum state were so “continuous and systematic” that the “defendant may be subject to suit for causes of action entirely distinct from the in-state activities.”54 The court found that the defendant, in this case a Web site owner offering the sale of its publication over the Internet, offered an “on-line storefront that is readily accessible to every person in Virginia” who could access the world wide Web, but held that further discovery would be necessary to determine whether there was sufficient activity between Virginia residents and the Web site to justify general jurisdiction.55 It should be noted that the defendant also conducted non-Internet business in Virginia. The court further held that specific jurisdiction was lacking because the there was not evidence that the publication subject to the copyright dispute between the parties was ever sold in Virginia. Conclusion While the sliding scale formula provides some guidance to counsel and their clients, even passive Web sites can expose an Internet user to suit in a foreign jurisdiction. Many courts still utilize the “effects doctrine” in their analysis of Internet-related cases, whether or not they also recognize the sliding scale analysis established in Zippo. Moreover, courts have been somewhat inconsistent in applying the sliding scale analysis when they do utilize that test; for example, what one court deems to be a passive Web site, another court finds to be active in nature. Counsel should keep this in mind when advising individuals and businesses seeking to expand their audience for advertisements or information via the Internet, or those harmed by the activities of 32 April 2002 such individuals and businesses. There are no sure answers for those utilizing the Internet regarding where they may be haled into court.  Ellen S. Moore is an attorney with the law firm of Woods, Rogers & Hazlegrove, P.L.C. She received her degree from the University of Virginia School of Law. Moore is an assistant editor for the VSB Antitrust, Franchise and Trade Regulation Newsletter. Endnotes: 1 American Civil Liberties Union v. Reno, 929 F. Supp. 824, 831 (E.D. Pa. 1996). 2 Jeffrey Pollock and Debra Lightner, Civil Procedure in the Age of the Internet Jurisdiction, New Jersey L.J. (August 14, 2000). 3 Sidney Luk, Surfing Swells to 500m On-line, South China Morning Post, Ltd. (March 8, 2002); Research and Analysis, “Distraction Stations,” Computer Reseller News (March 4, 2002). 4 Research and Analysis, “Distraction Stations,” Computer Reseller News (March 4, 2002). 5 See, e.g., § 8.01-328.1 of the Code of Virginia. 6 See, e.g., Asahi Metal Indus. v. Superior Court, 480 U.S. 102, 106 (1987); Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. Dec. 1997); Ruston Gas Turbines, Inc. v. Donaldson Co., 9 F.3d 415, 418 (5th Cir. 1993); Alitalia-Linee Aeree Italiane v. Casinoalitalia.com, 128 F. Supp. 2d 340, 348 (E.D.Va. 2001); Weinstein v. Todd Marine Enterprises, Inc., 115 F. Supp. 2d 668, 671 (E.D.Va. 2000) (citing Nan-Ya Plastics v. DeSantis, 237 Va. 255, 259, 377 S.E.2d 388 (1989)); SF Hotel Co., L.P. v. Energy Investments, Inc., 985 F. Supp. 1032 (D. Kan. Nov. 19, 1997); Transcraft Corp. v. Doonan Trailer Corp., 1997 WL 733905, 1997 U.S. Dist. LEXIS 18687 (N.D. Ill. Nov. 17, 1997); Pawlucz v. Global Upholstry Co., 854 F. Supp. 364, 366 (E.D. Pa. 1994); MCA Records, Inc. v. Highland Music Inc., 844 F. Supp. 1201, 1203 (M.D. Tenn. 1993). 7 International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). 8 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). 9 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1987). 10 Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1199 (4th Cir. 1993) (citing Ratliff v. Cooper Laboratories, Inc., 444 F.2d 745, 748 (4th Cir.), cert. denied, 404 U.S. 948 (1971)). 11 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984). 12 Federal Ins. Co. v. Lake Shore, Inc., 886 F.2d 654, 660 (4th Cir. 1989). 13 Id. (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984)). 14 952 F. Supp. 1119 (W.D. Pa. 1997); discussed in Daniel A. Ross, “Jurisdictional Issues Raised by Intellectual Property Disputes on the Internet,” The Metropolitan Corporate Counsel (2000). 15 See also, SF Hotel Co., L.P. v. Energy Investments, Inc., 985 F. Supp. 1032 (D. Kan. Nov. 19, 1997) (adopting the test found in Zippo, finding no jurisdiction over a nonresident defendant who maintained a passive Web site providing general information about its hotel with no provision for direct communication between the defendant and the Internet user); Transcraft Corp. v. Doonan Trailer Corp., 1997 WL 733905, 1997 U.S. Dist. LEXIS 18687 (N.D. Ill. Nov. 17, 1997) (finding no jurisdiction over a defendant based on a Web site providing general advertisement about defendant’s business, finding that the defendant had not thereby “entered” into Illinois in a way that contributed to the plaintiff’s injury nor specifically intended its advertisements to reach Illinois customers); Weber v. Jolly Hotels, 977 F. Supp. 327, 333 (D.N.J. Sep. 12, 1997) (finding no jurisdiction over a defendant where general information was placed on defendant’s Web site as an advertisement and “not as a means of conducting business”); Smith v. Hobby Lobby Stores, Inc., 968 F. Supp. 1356 (W.D. Ark. June 25, 1997) (finding no jurisdiction in the forum where the Hong Kong-based defendant’s advertisement in a trade publication merely appeared on the Internet and was not directed at Arkansas residents and the defendant did not contract to supply any goods or services to Arkansas residents over the Internet); McDonough v. Fallon McElligott, Inc., 1996 WL L 753991, 1996 U.S. District LEXIS 15139 (S.D. Cal. Aug. 5, 1996) (finding no jurisdiction over a nonresident defendant whose Internet advertising merely was accessible in the forum state). 16 No. 3:00-CV-1268-R (N.D. Tex., N. Div. Mar. 20, 2001), (cited in “Defamation Suit over Pan Am 103 Article Dismissed,” Computer & On-line Industry Litigation Reporter (April 10, 2001)). 17 190 F.3d 333 (5th Cir. 1999). 18 126 F.3d 25 (2d Cir. 1997), aff’g 937 F. Supp. 295 (S.D.N.Y. 1996). 19 130 F.3d 414 (9th Cir. Dec. 1997). 20 Id. at 418-19. In Cybersell, the Ninth Circuit declined to incorporate an “effects” analysis because a corporation “does not suffer harm in a particular geographic location in the same sense that an individual does.” That court, however, later applied an “effects” analysis in Panavision International L.P. v. Toeppen, 141 F.3d 1316 (9th Cir. 1998), discussed below. 21 937 F. Supp. 161 (D. Conn. Apr. 17, 1996). Compare Mink v. AAAA Development, LLC, 190 F.3d 333 (5th Cir. 1999) (defendant was not subject to jurisdiction in Texas though defendant’s Web site advertisement accessible in Texas provided users a printable order form to mail in, the mailing address, electronic mail address and a toll-free telephone number). I T I G AT I O N | F E AT U R E S 47 977 F. Supp. 404 (E.D. Va. 1997) (Alexandria Div.) (Cacheris, J.). Compare Mink v. AAAA Development, LLC, 190 F.3d 333 (5th Cir. 1999) (finding Web site advertisements with toll free numbers and order forms to be passive Web sites). 48 Id. at 406 (citing Inset Systems, Inc. v. Instruction Set, Inc., 937 F. Supp. 161 (D. Conn. 1996)). Compare Mink v. AAAA Development, LLC, 190 F.3d 333 (5th Cir. 1999) (finding Web site advertisements with toll free numbers and order forms to be passive Web sites). 49 977 F. Supp. at 407. 50 133 F. Supp. 873 (W.D. Va. 2001) (J. Michael) 51 Id. at 877. 52 128 F. Supp. 2d 340 (E.D. Va. 2001) (J. Ellis). 53 59 F. Supp. 2d 562 (E.D. Va. 1999) (J. Smith). 54 Id. at 565. 55 Id. at 568. 22 2000 U.S. App. LEXIS 22469 (Fed. Cir. 2000). 23 See Section IV.A. infra. 24 The partly “active” nature of these cases appear only in the allegedly illicit activities of the defendants and not in the nature of the Web sites, which were not reported as interactive. Under a sliding scale examination of the above Web sites the sites likely would have been viewed as passive sites by other courts. 25 141 F.3d 1316 (9th Cir. 1998). 26 1997 U.S. Dist. LEXIS 19317 (1997), motion to dismiss denied at 987 F. Supp. 481 (W.D.N.C. Oct. 8, 1997). 27 952 F. Supp. 1119 (W.D. Pa. 1997). As stated above, this court was the first to expressly recognize the sliding scale of Internet activity. 28 Id. at 1124-1127. 29 1997 WL 836498, 1997 U.S. Dist. LEXIS 18857 (D. Mass. Sep. 30, 1997). See also Digital Equip. Corp. v. AltaVista Technology, Inc., 960 F. Supp. 456 (D. Mass. Mar. 12, 1997) (Finding jurisdiction over nonresident defendant that solicited business in the forum state through its Web site and had completed sales to forum state residents.). 30 975 F. Supp. 494 (S.D.N.Y. Aug. 14, 1997). 31 1997 U.S. Dist. LEXIS 19317, accepted, mot. denied by, 958 F. Supp. 1 (D.D.C. Dec. 19, 1996). 32 PICS Case No. 00-2252 (Pa. Super. Nov. 17, 2000) (discussed in Lori Litchmanof, “Civil Practice,” Law Weekly (Nov. 27, 2000)); see also Response Reward Systems, LC v. Meijer, Incorporated, 2002 U.S. Dist. LEXIS (M.D. Fla. 2002) (providing coupons on Internet site not enough to confer personal jurisdiction over Michigan defendant, not enough to show “a general course of business within the state” or receipt of a “pecuniary benefit” from the state). 33 965 F. Supp. 17 (N.D. Tex May 9, 1997). 34 2002 U.S. Dist. LEXIS (N.D. Tex. 2002). 35 83 F. Supp. 2d 1261 (N.D. Ala. 2000). See also Mink v. AAAA Development, LLC, 190 F.3d 333 (5th Cir. 1999) (finding Web site advertisements with order forms to be passive Web sites). 36 1997 WL 97097, 1997 U.S. Dist. LEXIS 2065 (S.D.N.Y. Feb. 26, 1997). 37 2002 U.S. Dist. LEXIS 2043 (D. Kan. 2002). 38 205 F.3d 1244 (10th Cir. 2000). 39 89 F.3d 1257 (6th Cir. July 22, 1996), reh’g and suggestion for reh’g en banc denied (Sep. 19, 1996). 40 115 F. Supp. 2d 668 (____ 2000). 41 Civ. 2:00CV00086 (August 9, 2001). 42 O’Donna Ramsey, “Judge rules local court can preside over libel suit,” Coalfield.com (August 14, 2001). 43 See, infra, Telco Communications v. An Apple A Day, 977 F. Supp. 404 (E.D. Va. 1997). 44 Young, Civ. 2:00CV00086 at 26-27. 45 245 Va. 202, 427 S.E.2d 326 (1993). 46 245 Va. at 206-207. Virginia Lawyer 33 Chapter 2: Copyright Law in the Digital Age 12 Cyberlaw: The Law of the Internet and Information Technology 1st Edition Brian Craig Class Name Instructor Name Date, Semester LEARNING OBJECTIVES After this lecture, you should: 12 2.1 Compare and contrast copyright law with other areas of intellectual property law. 2.2 Explain the scope of copyright protection for websites and software 2.3 Describe the benefits of copyright notice and copyright registration Class Name Instructor Name Date, Semester Cont’d LEARNING OBJECTIVES After this lecture, you should: 12 2.4 Discuss the four fair use defense factors and how courts apply these factors in a copyright infringement action. 2.5 Explain the major provisions of the Digital Millennium Copyright Act (DMCA) Class Name Instructor Name Date, Semester Learning Objective After this lecture, you should be able to: 2.1 Compare and contrast copyright law with other areas of intellectual property law 5 2.1 Intellectual Property • Intellectual Property: A category of intangible rights protecting commercially valuable products of the human intellect that comprises primarily copyright, trademark, patent, and trade secret rights. • Copyright: Protection granted to authors of original works of authorship, fixed in a tangible form. • Trademark: A word, name, symbol or devise used to indicate origin, quality, and ownership of a product or service. • Patents: Grant of right to exclude another from making, using, selling, or importing a patented invention or discovery • Trade Secrets: Any valuable business information that if known by a competitor would afford the competitor some advantage. Learning Objective After this lecture, you should be able to: 2.2 Explain the scope of copyright protection for websites and software. 7 2.2 Copyrights for Websites and Software • Web design, text, images, photographs, midi files, clipart, and audio associated with websites: protected • Software: generally protected • Video games: protected 2.2 • Derivative Works Derivative works: work based on a preexisting work (e.g. movie based on novel) 9 2.2 Duration of Copyrights •Duration of copyrights: Generally for works created after January 1, 1978, life of author plus 70 years •Works for hire: Generally life of author plus 95 years •Copyright Term Extension Act (CTEA): Extended copyright protection by 20 years for works copyrighted after January 1, 1923 10 Learning Objective After this lecture, you should be able to: 2.3 Describe the benefits of copyright notice and copyright registration 11 2.3 Copyright Notice • Copyright notice is voluntary • ©, Year, Name • Example: Facebook © 2011 • Advantages: put others on notice that work is protected 2.3 Copyright registration is voluntary •Copyright registration is voluntary •Advantages: pre-requisite to copyright infringement lawsuit, entitlement to statutory damages, legal costs, and attorneys’ fees, establish public record •Registration with U.S. Copyright Office 13 Learning Objective After this lecture, you should be able to: 2.4 Discuss the four fair use defense factors and how courts apply these factors in a copyright infringement action. 14 2.4 Fair Use Defense Factors • Purpose and character of the use • Nature of the copyrighted work • Amount of the work used • Economic impact of the use 2.4 • Fair Use Defense Transformative use: use of copyrighted material in a manner that differs from the original use in such a way that the expression, meaning, or message is essentially new 16 Learning Objective After this lecture, you should be able to: 2.5 Explain the major provisions of the Digital Millennium Copyright Act 17 2.5 Digital Millennium Copyright Act (DMCA) • Purpose: protect copyright owners and respond to the increase in popularity and usage of digital content • Safe harbor provision: allows websites and internet service providers to avoid liability for copyright infringement after receiving DMCA complaint Chapter Summary 12 2.1 Compare and contrast copyright law with other areas of intellectual property law. 2.2 Explain the scope of copyright protection for websites and software 2.3 Describe the benefits of copyright notice and copyright registration Class Name Instructor Name Date, Semester Cont’d Chapter Summary 12 2.4 Discuss the four fair use defense factors and how courts apply these factors in a copyright infringement action. 2.5 Explain the major provisions of the Digital Millennium Copyright Act (DMCA) Class Name Instructor Name Date, Semester ASSIGNMENT #2 In order to complete the below question you must read Chapter 2. For full credit you must provide thorough, detailed and well-supported answers. You must complete the assignment in a Word document and then upload it to the assignment area for grading. Remember, you must cite and reference sources. Your answer must be a minimum of 2 full pages in length. The duration of rights for patents and copyrights are fixed by Congress and expire after a certain number of years. As a general rule, the duration of a copyright is the life of the author plus 70 years, and the duration of a design patent is 20 years from the date of application. Rights in trademarks and trade secrets, in contrast, can be perpetual. Why do you think that intellectual property rights in copyrights and patents expire, while intellectual property rights in trademarks and trade secrets can last indefinitely? Do you think that the duration of intellectual property rights should be extended or reduced? Why or why not? Does your position change if you are the consumer rather than an author or inventor? PDF Version Copyright Term and the Public Domain in the United States 1 January 20121 Never Published, Never Registered Works2 Type of Work Copyright Term What was in the public domain in the U.S. as of 1 January 20123 Unpublished works Life of the author + 70 years Works from authors who died before 1942 Unpublished 120 years from date of creation Works created before 1892 120 years from date of creation5 Works created before 18925 anonymous and pseudonymous works, and works made for hire (corporate authorship) Unpublished works when the death date of the author is not known4 Works Registered or First Published in the U.S. Date of Publication 6 Conditions7 Copyright Term3 Before 1923 None None. In the public domain due to copyright expiration 1923 through 1977 Published without a copyright notice None. In the public domain due to failure to comply with required formalities 1978 to 1 March 1989 Published without notice, and without subsequent registration within 5 years None. In the public domain due to failure to comply with required formalities 1978 to 1 March 1989 Published without notice, but with subsequent registration within 5 years 70 years after the death of author. If a work of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first 1923 through 1963 Published with notice but copyright was not renewed 8 None. In the public domain due to copyright expiration 1923 through 1963 Published with notice and the copyright was renewed 8 95 years after publication date 1964 through 1977 Published with notice 95 years after publication date 1978 to 1 March 1989 Created after 1977 and published with notice 70 years after the death of author. If a work of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first 1978 to 1 March 1989 Created before 1978 and first published with notice in the specified period The greater of the term specified in the previous entry or 31 December 2047 From 1 March 1989 Created after 1977 through 2002 70 years after the death of author. If a work of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first From 1 March 1989 Created before 1978 and first published in this period through 2002 The greater of the term specified in the previous entry or 31 December 2047 After 2002 None 70 years after the death of author. If a work of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first Anytime Works prepared by an officer or employee of the United States Government None. In the public domain in the as part of that person's official duties. 21 United States (17 U.S.C. § 105) Works First Published Outside the U.S. by Foreign Nationals or U.S. Citizens Living Abroad9 Date of Publication Conditions Copyright Term in the United States Before 1923 None In the public domain (But see first special case below) Works Published Abroad Before 1978 10 1923 through 1977 Published without compliance with US formalities, and in the public domain in its In the public domain source country as of 1 January 1996 (but see special cases) 20 1923 through 1977 Published in compliance with all US formalities 95 years after publication date (i.e., notice, renewal) 11 1923 through 1977 Solely published abroad, without compliance with US formalities or 95 years after publication date republication in the US, and not in the public domain in its home country as of 1 January 1996 (but see special cases) 1923 through 1977 Published in the US less than 30 days after publication abroad Use the US publication chart to determine duration 1923 through 1977 Published in the US more than 30 days after publication abroad, without 95 years after publication date compliance with US formalities, and not in the public domain in its home country as of 1 January 1996 (but see special cases) Works Published Abroad After 1 January 1978 1 January 1978 - 1 Published without copyright notice, and in the public domain in its source March 1989 country as of 1 January 1996 (but see special cases) 20 1 January 1978 - 1 Published without copyright notice in a country that is a signatory to the March 1989 Berne Convention and is not in the public domain in its source country as of 1 January 1996 (but see special cases) 20 1 January 1978 - 1 70 years after the death of author, or if work of corporate authorship, 95 years from publication Published with copyright notice by a non-US citizen in a country that was party to the Universal Copyright Convention (UCC) 70 years after the death of author, or if work of corporate authorship, 95 years from publication Published in a country that is a signatory to the Berne Convention 70 years after the death of author, or if work of corporate authorship, 95 years from publication March 1989 After 1 March 1989 In the public domain After 1 March 1989 Published in a country with which the United States does not have copyright In the public domain relations under a treaty Special Cases 1 July 1909 through In Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Treat as an unpublished work 1978 Washington, Guam, and the Northern Mariana Islands ONLY. Published in a until such date as first language other than English, and without subsequent republication with a US-compliant publication copyright notice 12 occurred Prior to 27 May 1973 Published by a national of Turkmenistan or Uzbekistan in either country 19 In the public domain After 26 May 1973 Published by a national of Turkmenistan or Uzbekistan in either country 19 May be protected under the UCC Anytime Created by a resident of Afghanistan, Eritrea, Ethiopia, Iran, Iraq, or San Not protected by US copyright law Marino, and published in one of these countries13 until they become party to bilateral or international copyright agreements Anytime Works whose copyright was once owned or administered by the Alien Not protected by US copyright law Property Custodian, and whose copyright, if restored, would as of January 1, 1996 , be owned by a government 14 Anytime If published in one of the following countries, the 1 January 1996 date given above is replaced by the date of the country's membership in the Berne Convention or the World Trade Organization, whichever is earlier: Andorra, Angola, Armenia, Bhutan, Cambodia, Comoros, Jordan, Democratic People's Republic of Korea, Laos, Micronesia, Montenegro, Nepal, Oman, Papua New Guinea, Qatar, Samoa, Saudi Arabia, Solomon Islands, Sudan, Syria, Tajikistan, Tonga, United Arab Emirates, Uzbekistan, Vanuatu, Vietnam, Yemen Sound Recordings (Note: The following information applies only to the sound recording itself, and not to any copyrights in underlying compositions or texts.) Date of Conditions Fixation/Publication What was in the public domain in the U.S. as of 1 January 20123 Unpublished Sound Recordings, Domestic and Foreign Prior to 15 Feb. 1972 Indeterminate Subject to state common law protection. Enters the public domain on 15 Feb. 2067 After 15 Feb. 1972 Life of the author + 70 years. For unpublished anonymous and Nothing. The soonest anything pseudonymous works and works made for hire (corporate authorship), 120 enters the public domain is 15 Feb. years from the date of fixation 2067 Sound Recordings Published in the United States Date of Conditions Fixation/Publication What was in the public domain in the U.S. as of 1 January 20123 Fixed prior to 15 Feb. Subject to state statutory and/or None 1972 common law protection. Fully enters the public domain on 15 Feb. 2067 15 Feb 1972 to 1978 Published without notice (i.e, , year of publication, and name of copyright In the public domain owner)15 15 Feb. 1972 to 1978 Published with notice 95 years from publication. 2068 at the earliest 1978 to 1 March 1989 Published without notice, and without subsequent registration In the public domain 1978 to 1 March 1989 Published with notice 70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation. 2049 at the earliest After 1 March 1989 None 70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation. 2049 at the earliest Sound Recordings Published Outside the United States Prior to 1923 None Subject to state statutory and/or common law protection. Fully enters the public domain on 15 Feb. 2067 1923 to 1 March 1989 In the public domain in its home country as of 1 Jan. 1996 or there was US Subject to state common law publication within 30 days of the foreign publication (but see special cases) protection. Enters the public domain on 15 Feb. 2067 1923 to 15 Feb. 1972 Not in the public domain in its home country as of 1 Jan. 1996. At least Enters public domain on 15 Feb. one author of the work was not a US citizen or was living abroad, and 2067 there was no US publication within 30 days of the foreign publication (but see special cases) 15 Feb. 1972 to 1978 Not in the public domain in its home country as of 1 Jan. 1996. At least 95 years from date of publication. one author of the work was not a US citizen or was living abroad, and 2068 at the earliest there was no US publication within 30 days of the foreign publication (but see special cases) 1978 to 1 March 1989 After 1 March 1989 Not in the public domain in its home country as of 1 Jan. 1996. At least 70 years after death of author, or if one author of the work was not a US citizen or was living abroad, and work of corporate authorship, the there was no US publication within 30 days of the foreign publication (but shorter of 95 years from publication, see special cases) or 120 years from creation None 70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation Special Cases Fixed at any time Created by a resident of Afghanistan, Eritrea, Ethiopia, Iran, Iraq, or San Not protected by US copyright law Marino, and published in one of these countries13 because they are not party to international copyright agreements Fixed prior to 1996 Works whose copyright was once owned or administered by the Alien Property Custodian, and whose copyright, if restored, would as of 1 January 1996 be owned by a government 14 Fixed at any time If fixed or solely published in one of the following countries, the 1 January 1996 date given above is replaced by the date of the country's membership in the Berne Convention or the World Trade Organization, whichever is earlier : Not protected by US copyright law Andorra, Angola, Armenia, Bhutan, Cambodia, Comoros, Jordan, Democratic People's Republic of Korea, Laos, Micronesia, Montenegro, Nepal, Oman, Papua New Guinea, Qatar, Samoa, Saudi Arabia, Solomon Islands, Sudan, Syria, Tajikistan, Tonga, United Arab Emirates, Uzbekistan, Vietnam, Yemen Architectural Works16 (Note: Architectural plans and drawings may also be protected as textual/graphics works) Date of Design Date of Construction Copyright Status Prior to 1 Not constructed by 31 Dec. Protected only as plans or drawings Dec. 1990 2002 Prior to 1 Constructed by 1 Dec. 1990 Protected only as plans or drawings Prior to 1 Constructed between 30 Nov. Building is protected for 70 years after death of author, or if work of corporate authorship, the Dec. 1990 1990 and 31 Dec. 2002 shorter of 95 years from publication, or 120 years from creation17 From 1 Immaterial Building is protected for 70 years after death of author, or if work of corporate authorship, the Dec. 1990 Dec. 1990 shorter of 95 years from publication, or 120 years from creation17 Notes 1.         This chart was first published in Peter B. Hirtle, "Recent Changes To The Copyright Law: Copyright Term Extension," Archival Outlook, January/February 1999. This version is current as of 1 January 2012. The most recent version is found at http://www.copyright.cornell.edu/resources/publicdomain.cfm. The chart is based in part on Laura N. Gasaway's chart, "When Works Pass Into the Public Domain," at , and similar charts found in Marie C. Malaro, A Legal Primer On Managing Museum Collections (Washington, D.C.: Smithsonian Institution Press, 1998): 155-156. A useful copyright duration chart by Mary Minow, organized by year, is found at . A "flow chart" for copyright duration is found at , and a “tree-view” chart on copyright is at . Several U.S. copyright duration calculators are available online, including the Public Domain Sherpa (http://www.publicdomainsherpa.com/calculator.html) and the Durationator (in beta at http://www.durationator.com/). Europeana’s public domain calculators for 30 different countries outside of the U.S. (at http://www.outofcopyright.eu/). The Open Knowledge Foundation has been encouraging the development of public domain calculators for many countries: see http://publicdomain.okfn.org/calculators/. See also Library of Congress Copyright Office. Circular 15a, Duration of Copyright: Provisions of the Law Dealing with the Length of Copyright Protection (Washington, D.C. : Library of Congress, 2004) . Further information on copyright duration is found in Chapter 3, "Duration and Ownership of Copyright," in Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums, by Peter B. Hirtle, Emily Hudson, and Andrew T. Kenyon (Ithaca, NY: Cornell University Library, 2009) available for purchase at http://bookstore.library.cornell.edu/ and as a free download at http://ecommons.cornell.edu/handle/1813/14142 . 2.         Treat unpublished works registered for copyright prior to 1978 as if they had been published in the US (though note that the only formality that applied was the requirement to renew copyright after 28 years). Unpublished works registered for copyright since 1978 can be considered as if they were an "Unpublished, Unregistered Work." 3.         All terms of copyright run through the end of the calendar year in which they would otherwise expire, so a work enters the public domain on the first of the year following the expiration of its copyright term. For example, a book published on 15 March 1923 will enter the public domain on 1 January 2019, not 16 March 2018 (1923+95=2018). 4.         Unpublished works when the death date of the author is not known may still be copyrighted after 120 years, but certification from the Copyright Office that it has no record to indicate whether the person is living or died less than 70 years before is a complete defense to any action for infringement. See 17 U.S.C. § 302(e). 5.         Presumption as to the author's death requires a certified report from the Copyright Office that its records disclose nothing to indicate that the author of the work is living or died less than seventy years before. 6.         "Publication" was not explicitly defined in the Copyright Law before 1976, but the 1909 Act indirectly indicated that publication was when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority. 7.         Not all published works are copyrighted. Works prepared by an officer or employee of the United States Government as part of that person's official duties receive no copyright protection in the US. For much of the twentieth century, certain formalities had to be followed to secure copyright protection. For example, some books had to be printed in the United States to receive copyright protection, and failure to deposit copies of works with the Register of Copyright could result in the loss of copyright. The requirements that copies include a formal notice of copyright and that the copyright be renewed after twenty eight years were the most common conditions, and are specified in the chart. 8.         A 1961 Copyright Office study found that fewer than 15% of all registered copyrights were renewed. For books, the figure was even lower: 7%. See Barbara Ringer, "Study No. 31: Renewal of Copyright" (1960), reprinted in Library of Congress Copyright Office. Copyright law revision: Studies prepared for the Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary, United States Senate, Eightysixth Congress, first [-second] session. (Washington: U. S. Govt. Print. Off, 1961), p. 220. A good guide to investigating the copyright and renewal status of published work is Samuel Demas and Jennie L. Brogdon, "Determining Copyright Status for Preservation and Access: Defining Reasonable Effort," Library Resources and Technical Services 41:4 (October, 1997): 323-334. See also Library of Congress Copyright Office, How to investigate the copyright status of a work. Circular 22. [Washington, D.C.: Library of Congress, Copyright Office, 2004]. The Online Books Page FAQ, especially "How Can I Tell Whether a Book Can Go Online?" and "How Can I Tell Whether a Copyright Was Renewed?", is also very helpful. 9.         The following section on foreign publications draws extensively on Stephen Fishman, The Public Domain: How to Find Copyright-free Writings, Music, Art & More. (Berkeley: Nolo.com, 2004). It applies to works first published abroad and not subsequently published in the US within 30 days of the original foreign publication. Works that were simultaneously published abroad and in the US are treated as if they are American publications. 10.      Foreign works published after 1923 are likely to be still under copyright in the US because of the Uruguay Round Agreements Act (URAA) modifying the General Agreement on Tariffs and Trade (GATT). The URAA restored copyright in foreign works that as of 1 January 1996 had fallen into the public domain in the US because of a failure to comply with US formalities. One of the authors of the work had to be a non-US citizen or resident, the work could not have been published in the US within 30 days after its publication abroad, and the work needed to still be in copyright in the country of publication. Such works have a copyright term equivalent to that of an American work that had followed all of the formalities. For more information, see Library of Congress Copyright Office, Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA). Circular 38b. [Washington, D.C.: Library of Congress, Copyright Office, 2004]. 11.      US formalities include the requirement that a formal notice of copyright be included in the work; registration, renewal, and deposit of copies in the Copyright Office; and the manufacture of the work in the US. 12.      The differing dates is a product of the question of controversial Twin Books v. Walt Disney Co. decision by the 9th Circuit Court of Appeals in 1996. The question at issue is the copyright status of a work only published in a foreign language outside of the United States and without a copyright notice.   It had long been assumed that failure to comply with US formalities placed these works in the public domain in the US and, as such, were subject to copyright restoration under URAA (see note 10). The court in Twin Books, however, concluded "publication without a copyright notice in a foreign country did not put the work in the public domain in the United States." According to the court, these foreign publications were in effect "unpublished" in the US, and hence have the same copyright term as unpublished works. The decision has been harshly criticized in Nimmer on Copyright, the leading treatise on copyright, as being incompatible with previous decisions and the intent of Congress when it restored foreign copyrights. The Copyright Office as well ignores the Twin Books decision in its circular on restored copyrights. Nevertheless, the decision is currently applicable in all of the 9th Judicial Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, and Guam and the Northern Mariana Islands), and it may apply in the rest of the country. 13.      See Library of Congress Copyright Office, International Copyright Relations of the United States. Circular 38a. [Washington, D.C.: Library of Congress, Copyright Office, 2004]. 14.      See 63 Fed. Reg.19,287 (1998), Library of Congress Copyright Office, Copyright Restoration of Works in Accordance With the Uruguay Round Agreements Act; List Identifying Copyrights Restored Under the Uruguay Round Agreements Act for Which Notices of Intent To Enforce Restored Copyrights Were Filed in the Copyright Office. 15.      Copyright notice requirements for sound recordings are spelled out in the Copyright Office's Circular 3, "Copyright Notice," available at http://www.copyright.gov/circs/circ03.pdf. Here is the exact text: The copyright notice for phonorecords embodying a sound recording is different from that for other works. Sound recordings are defined as "works that result from the fixation of a series of musical, spoken or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work." Copyright in a sound recording protects the particular series of sounds fixed in the recording against unauthorized reproduction, revision, and distribution. This copyright is distinct from copyright of the musical, literary, or dramatic work that may be recorded on the phonorecord. Phonorecords may be records (such as LPs and 45s), audio tapes, cassettes, or disks. The notice should contain the following three elements appearing together on the phonorecord: 1.         The symbol ; and 2.         The year of first publication of the sound recording; and 3.         The name of the owner of copyright in the sound recording, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner. If the producer of the sound recording is named on the phonorecord label or container and if no other name appears in conjunction with the notice, the producer's name shall be considered a part of the notice. 4.         Example: 2004 X.Y.Z. Records, Inc. 16.      Architectural works are defined as "the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features." Architectural works were expressly included in copyright by Title VII of Pub. L. 101-650. 17.      What constitutes "publication" of a building is a very interesting question. As the Copyright Office has noted, "A work is considered published when underlying copies of the building design are distributed or made available public by sale or other transfer of ownership, or by rental. Construction of a building does not itself constitute publication registration, unless multiple copies are constructed." See its Circular 41, "Copyright Claims in Architectural Works," available at http://www.copyright.gov/circs/circ41.pdf. 19.      Turkmenistan and Uzbekistan may have inherited UCC obligations and protections from the USSR , which joined the UCC on 27 May 1973 . See Peter B. Maggs, "Post-Soviet Law: The Case of Intellectual Property Law," The Harriman Institute Forum 5, no. 3 (November 1991). They have not as yet, however, filed a "Notification of Succession" with the UCC. See http://portal.unesco.org/culture/en/ev.phpURL_ID=1814&URL_DO=DO_TOPIC&URL_SECTION=201.html for signatories to the two UCC treaties. 20.      If the source country's first adhered to either the Berne Treaty or the WTO after 1 January 1996, then the relevant date is the earliest date of membership. Date of membership is tracked at http://en.wikipedia.org/wiki/list_of_parties_to_international_copyright_agreements 21.      Contractors and grantees are not considered government empoyees. Generaly they create works with copyright (though the government may own that copyright). See CENDI Frequently asked Questions about Copyright: Issues Affecting the U.S. Government . The public domain status of U.S. government works applies only in the U.S. © 2004-12 Peter B. Hirtle. Last updated 3 January, 2012 . Use of this chart is governed by the Creative Commons Attribution 3.0 License. Cornell Copyright Information Center Does Content ID abuse infringe copyright? Written by Patrick McKay Thursday, 19 July 2012 12:30 - Lately I've been pondering an interesting question. What is the legal effect of a false or fraudulent Content ID match on YouTube, as compared to a false or fraudulent DMCA notice? While the law provides a clear cause of action for filing a misrepresentative DMCA takedown notice, it is completely silent as to the legal status of private copyright enforcement systems like YouTube's Content ID that have the same basic effect as the DMCA notice-and-takedown process but none of its safeguards. I have been developing a theory that the deliberate misuse of such private copyright systems to claim content you do not own may itself constitute copyright infringement. As I have documented extensively here , YouTube's Content ID matching system is now routinely used to falsely claim ownership of videos that the claimant has absolutely no copyright interest in. And because copyright claimants are allowed to decide whether to accept or reject disputes against their own claims, there is no effective way to dispute these claims. Some unscrupulous companies like GoDigital appear to have made a business out of claiming YouTube content they do not own and profiting from the ad revenue. Others like Rumblefish attempt to provide a legal means for YouTube users to use their members' music but appear to have insufficient safeguards to prevent mistakes like Content ID matching birdsongs to their music. What all these groups have in common is that whenever a user disputes a Content ID match on their videos, these companies will blanketly reject all disputes across the board and reinstate their claims regardless of whether they have any merit or not. The major music labels and publishers have been quite open about the fact that their status as Content ID partners gives them the ability to censor any YouTube video they want, and have claimed that because Content ID is different than the DMCA process, they are not subject to any of the DMCA's penalties for deliberately abusing the system. As a result, Universal Music Group was able to censor the famous "Megauload Song" despite owning absolutely no copyright in it whatsoever. More recently, BMG had a campaign commercial by Mitt Romney taken down by a DMCA notice for featuring President Obama singing two lines of a copyrighted song, and then subsequently used the Content ID system to block all other copies of the original video of President Obama singing that song on YouTube--all this despite every instance of that video being clear fair use. While it is clear Content ID is being abused, it is less clear whether such abuse has any legal consequences. In its dispute with Megaupload, UMG notoriously claimed that because the video was blocked by Content ID and not a DMCA notice, it was immune from any remedy 1/4 Does Content ID abuse infringe copyright? Written by Patrick McKay Thursday, 19 July 2012 12:30 - under the misrepresentation clause of the DMCA. This is debatable since in many cases Content ID blocks work very similar to DMCA claims and have the exact same effect. But assuming that Content ID claims are not subject to a suit for misrepresentation under the DMCA, what legal remedy is there? One theory I have been considering for a while is that deliberate abuse of the Content ID system (i.e. reinstating a claim to a video after the claim is disputed by the user) to claim ownership of videos you do not own may itself constitute copyright infringement. Consider this. Section 106 of the Copyright Act (title 17 of the US Code) grants to copyright owners the following exclusive rights: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted digital audio transmission. work publicly by means of a 2/4 Does Content ID abuse infringe copyright? Written by Patrick McKay Thursday, 19 July 2012 12:30 - When a Content ID match is placed on a YouTube video, it gives the copyright claimant the ability to control several key aspects of how the video is distributed on YouTube: 1. Whether the video is viewable on YouTube at all. 2. In what countries the video may be viewed. 3. Whether the video may be embedded on external websites or is only playable on YouTube. 4. Whether the video may viewed on mobile devices and Internet-enabled TVs (called "syndication" in YouTube parlance). 5. Whether the video is "monetized" by showing ads alongside it. If it is monetized, the copyright claimant, not the uploader, gets a share of the ad revenue. In other words, a Content ID match gives the copyright claimant control over most of the key settings which control how your video is viewed and allows them to profit from it by hijacking the ad revenue the uploader would otherwise be entitled to if the video was monetized. I once saw a post in the YouTube help forums by a man who made a hugely popular original viral video and was receiving tens of thousands of dollars annually in ad revenue. One day a company made a false Content ID claim to his video and subsequently reinstated that claim after he disputed it. As a result, that company was now receiving all the ad revenue from his video and he didn't get a penny. The copyright claimant's ability to block the video from being viewed in certain countries or to prevent it from being embedded on other websites or viewed on mobile devices can also substantially harm a video's ability to "go viral" and gain popularity. All of these things seem like they could quite possibly infringe upon the uploader's exclusive right as the copyright holder in their video to distribute copies of their work how they wish. Alternatively, since online streams are considered "public performances" under copyright law, a false Content ID claim which interferes with the uploader's ability to control how their work is publicly performed (streamed) and which allows the false claimant to unjustly profit from the uploader's performance, could infringe their public performance right. In other contexts, if someone hosted an unauthorized public performance of a work (say a screening of a movie) for profit, they would be liable for infringement. So it seems logical that someone who places a false Content ID claim on a YouTube video and thus appropriates the ad revenue that the uploader would otherwise be entitled to, also should be liable for copyright infringement. This means that if the YouTube video's creator registered their copyright with the US Copyright Office and then sued the false claimant for infringement, the claimant could be liable for the full statutory damages for copyright infringement--up to $150,000 3/4 Does Content ID abuse infringe copyright? Written by Patrick McKay Thursday, 19 July 2012 12:30 - . It is also possible that since YouTube seems to have built the Content ID system to deliberately allow this form of abuse, and has thus far refused to do anything to solve the problem despite prominent criticism in the media, YouTube may itself be secondarily liable for inducing copyright infringement. All of this is completely theoretical of course, and is unlikely ever to be tested in court. But it's definitely worth thinking about. Wouldn't it be ironic if the very media companies that have been inciting moral panics over "piracy" for decades suddenly found themselves liable for copyright infringement based on their own overzealous attempts to claim copyrights where they had none? Not to mention the irony in the fact that YouTube's system built to prevent copyright infringement is in fact enabling and encouraging copyright infringement through false copyright claims. It's certainly worth considering. 4/4 Deciding if Video is Fair Use Last Updated Friday, 20 July 2012 00:03 Step 2: Decide if your video is fair use If your video was blocked for copyright reasons, either by an automated content ID or by a DMCA notice, you will have to decide if your video falls under the "fair use" exception to copyright, or if you had some other kind of authorization to use copyright content (such as getting permission from the copyright holder). Fair use law is rather complex, and other sections of this site give a more thorough explanation of fair use, so it will be summarized here. As described on the ChillingEffects website, "when a copyright holder sues a user of the work for infringement, the user may argue in defense that the use was not infringement but 'fair use.' Under the fair use doctrine, it is not an infringement to use the copyrighted works of another in some circumstances, such as for commentary, criticism, n ews reporting , or educational use ." These specific purposes are highlighted in the law as particular types of uses which are strong examples of fair use, but they are by no means the only types of uses which are considered "fair use." Whether something qualifies as fair use typically depends on a case-by-case judgment of the facts. Fair use is codified at Section 107 of the Copyright Act, which gives a non-exclusive set of four factors courts will consider in deciding whether a use is fair or not. These factors are 1. 2. 3. 4. the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use on the potential market for or value of the copyrighted work. ChillingEffects gives a good overview of the four factors , which my summary below is based on ( italics indicate quotes from ChillingEffects). FACTOR 1: THE PURPOSE AND CHARACTER OF THE USE "This factor considers whether the use helps fulfill the intention of copyright law to stimulate 1/7 Deciding if Video is Fair Use Last Updated Friday, 20 July 2012 00:03 creativity for the enrichment of the general public." This and factor four are probably the most important parts of the fair use test. The key to this prong of the test is whether the use is (1) commercial or non-commercial, and (2) transform ative rath er than merely derivative . Non-commercial use of copyrighted material is much more likely to be considered fair use than commercial use, since particularly in video there is an established market for licensing material for commercial use. However, this does not necessarily mean that a commercial use cannot be fair use, but the burden of proof will be higher. The most important part of this prong is whether the new use is transformative, which means that it must somehow alter the original work either quantitatively or qualitatively. "The more transformative the use, the more likely it is to be fair, whereas if defendant merely reproduces plaintiff's work without putting it to a transformative use, the less likely this use will be held to be fair." Even if a use does not necessarily alter the original in substance, if it does something to add a new meaning or message to it, it is still likely to be considered transformative. FACTOR 2: THE NATURE OF THE COPYRIGHTED WORK "The more creative, and less purely factual, the copyrighted work, the stronger its protection. In order to prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are separate from copyright--only their particular expression or fixation merits such protection. Second, if a copyrighted work is unpublished, it will be harder to establish that defendant's use of it was fair." This is probably the least important part of the fair use test, and rarely makes the difference between a use being considered fair or not. Basically if your use of copyrighted material involves facts rather than creative works like movies or music, and if it involves published material rather than unpublished material, it is slightly more likely to be considered fair use. Note: Since the original creation of the Fair Use Doctrine, Congress has amended it to explicitly say, "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." FACTOR 3: THE AMOUNT AND SUBSTANTIALITY OF THE PORTION DEFENDANT 2/7 Deciding if Video is Fair Use Last Updated Friday, 20 July 2012 00:03 USED "In general, the less of the copyrighted work that is used, the more likely the use will be considered fair. If, however, the defendant copied nearly all of, or the heart of, the copyrighted work, his or her use is less likely to be considered fair." This prong is closely related to whether your use is transformative or not, and is also very important. The key here is that in order to be fair use, you must use no more of the original copyrighted work than necessary for your purpose. Incorporating small amounts of copyrighted material into a larger presentation is much more likely to be considered fair use than something that makes use of the entire original. This prong not only looks at how much of the original you used quantitatively, but also qualitatively, and a use is less likely to be fair use if you used "the heart" of the original work. However, even if you do use the entire original work, this prong can be outweighed by the first prong if your use is sufficiently transformative. A good example of this would be anime music videos and film mashups, which in my opinion qualify as fair use for the video portion because q uantitatively they only use brief clips of much larger works, and for the music portion because even though they use entire copyrighted songs, the addition of the video footage qualitatively imparts a new message and is sufficiently transformative to outweigh the fact that the entire song is used. FACTOR 4: THE EFFECT OF DEFENDANT'S USE ON THE POTENTIAL MARKET OF THE COPYRIGHTED WORK "This factor is generally held to be the most important factor. This factor considers the effect that the defendant's use has on the copyright owner's ability to exploit his or her original work. The court will consider whether the use is a direct market substitute for the original work. The court may also consider whether harm to a potential market exists. This factor is key to the whole analysis, and considers whether the new use of copyrighted content directly competes with the original work. To decide this, ask yourself if your use of copyright content would be likely to serve as a substitute for the original. In the context of online video, could someone watch your video instead of buying the original work and still obtain the same value as from the original? If the answer to that question is yes, your video is likely not fair use. If it is no, that weighs significantly in favor of your video being considered fair use. 3/7 Deciding if Video is Fair Use Last Updated Friday, 20 July 2012 00:03 ChillingEffects also notes: The burden of proof here rests on the defendant for commercial uses, but on the copyright owner for noncommercial uses. ... It is important to note that courts recognize that some market harm may come from fair uses such as parodies or negative reviews, but that such market harm does not militate against a finding of fair use." This means that in the context of a lawsuit, the copyright holder would have the burden to prove that your use does harm their market. This market harm must be shown to come from direct competition between your work and the original. It is not enough to say that your use criticizes the original and might make someone not want to buy it. That is still fair use. Deciding if your video is fair use On YouTube, they key things to consider is if your video is transformative (i.e. you modified the source material in some way or did something to give it a different meaning or message), whether it is nonco mmercial (you aren't making money from it), and whether it competes with the market for the original work (i.e. someone could watch your video and get the same benefit as buying it). The Center for Social Media publishes an excellent Code of Best Practices in Fair Use for Online Video , which lists the following six uses as being probable fair use: 1. Commenting on or critiquing of copyrighted material 2. Using copyright material for illustration or example 3. Capturing copyrighted material incidentally or accidentally 4. Reproducing, reposting, or quoting in order to memorialize, preserve, or rescue an experience, an event, or a cultural phenomenon 5. Copying, reposting, and recirculating a work or part of a work for purposes of launching a discussion 6. Quoting in order to recombine elements to make a new work that depends for its meaning on (often unlikely) relationships between the elements In addition to these things, here is a list of common types of videos on YouTube which in my personal opinion would likely be considered fair use (or at least should be under common sense logic and current online practice). Ultimately, though, it would depend on what arguments a court would be willing 4/7 Deciding if Video is Fair Use Last Updated Friday, 20 July 2012 00:03 to accept, and the case for some is stronger than others. 1. Anime music videos and film mashups - The video portion of such videos is very likely fair use as they only use small, highly edited portions of the original video footage. The audio portion is less likely to be fair use as these videos typically use an entire song, yet is still arguably fair use because of the non-commercial, transformative use of the song, low probability of harm to the market for the original song, and the impossibility of the average amateur video creator to license the song. - Parody videos (such as a political parody using satirical lyrics set to a copyrighted song) - Note that courts have drawn a distinction between parody (which comments on the original work) and satire (which comments on an unrelated subject), and have held that parody is more likely to be fair use. However many satires are still likely to be fair use based on their non-commercial, transformative nature, low possibility of harming the market for the original, and impossibility of licensing. Political parodies/satires are also likely to be protected against copyright claims by the higher first-amendment protection traditionally granted to political speech. - Filming yourself singing a copyrighted song (lip-sync videos may be less likely to be fair use) - This is questionably fair use since normally professional recording artists who perform cover recordings would be required to obtain a compulsory license and pay a fee set by statute to a performing rights organization in order to make a cover. However, at least in my opinion, it is doubtful this requirement was meant to apply to amateur performers like teenagers singing copyrighted songs in their bedrooms, and such people arguably could not be expected to navigate the complexities of the compulsory license process, which would be incomprehensible to the average person simply seeking to post a video of themselves singing a song on YouTube. Accordingly, I think a valid case could be made for fair use. - Movie reviews containing clips of copyrighted films - This counts as commentary and criticism of the original film and is very likely fair use. - Video game walkthroughs and tutorials with commentary - Even though video games are copyrighted, it is now a widely accepted practice on YouTube to post walkthroughs and tutorials ("let's plays"). As long as you include your own original commentary about the game and don't just post straight raw footage from the game, it is likely fair use. 5/7 Deciding if Video is Fair Use Last Updated Friday, 20 July 2012 00:03 - Posting short news clips in order to comment on a current event - This also falls under the commentary category of fair use, though there likely would need to be some original comment on the clip rather than just posting the straight unedited clip. - Non-commercial podcasts and V-logs containing brief uses of copyrighted songs (especially for purposes of comment about the song) - This is likely fair use because of the minimal nature of the use and non-commercial aspect. If the podcast or V-log is for profit it is less likely to be fair use. - Home videos or documentary-type videos which capture copyrighted material in the background, such as a TV show playing on a TV or a song playing on the radio - When copyrighted material is incidentally captured in the background of a video (for example, a baby dancing to a Prince song as in the case Lenz v. Universal ) courts have held it to be fair use. Videos that are NOT likely to be fair use include: 1. Posting unedited clips from movies and TV shows 2. Posting professionally produced music videos in their entirety 3. Using copyrighted music in the soundtrack to a commercial or some type of video which you stand to gain financial benefit from, which would likely infringe on the artist's synchronization right. 4. Posting so-called "lyrics videos" - If your video is merely a copyrighted song with the text of the lyrics on the screen and maybe a few pictures of the artist or the album cover, this is likely not transformative enough to be considered fair use, since you are not really adding anything new or changing the message of the original. These are also much more likely to serve as a substitute for the original, defeating a claim of fair use. These things are only examples and are by no means a complete list of types of videos that may or may not be fair use. The most important thing to keep in mind is whether your video is 6/7 Deciding if Video is Fair Use Last Updated Friday, 20 July 2012 00:03 (1) non-commercial, (2) changes or alters the original work in some way , (3) uses no more of the work than necessary for your purpose and (4) does not harm the market for the original work . With the last of these, it is important to keep in mind that even if you used an entire song to make an anime music video or film mashup for example, your video could actually have a positive effect on the market for the original song by serving as free advertising and motivating people to go out and buy the song. Finally note that making money from a video does not necessarily preclude fair use, but it does reduce the changes of a video being found to be fair use. If the copyrighted material is highly factual and you are using it for news reporting or commentary, it may still be fair use to use it commercially, but a mashup that you make money from might not be. YouTube also has stricter rules for videos it allows to be monetized and generally requires you to prove that you have a license for the material, so claiming fair use may not be enough to satisfy YouTube that you have the right to use it. 7/7 
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