INTERNET
TOP MYTHS *

The Internet is the modern-day version of the wild frontier or the Old West -- no laws apply and it's every man for himself.

If you believe this, you couldn't be more wrong. While the Internet is a relatively new medium that has raised some novel legal issues, it is well-established that the laws governing copyrights and trademarks -- as well as other aspects of business and personal and commercial expression -- apply as much to the virtual world as they do to the "real" one. So, if you're going to publish a web page that contains anything other than entirely original content, that is, text that you wrote, photos you took or graphics you created yourself, you need to familiarize yourself with and abide by the copyright laws, among other things, or risk suffering the sometimes serious consequences if you don't.

 If someone posts something on the Internet -- text, a picture or icon, a sound or video clip -- it's up for grabs or "in the public domain", so I can take it and use it however I want.

Wrong again. In fact, publication on the Web has become almost as common as, and from a legal standpoint is really no different from, publication in the traditional print or broadcast formats. Most newspapers, magazines, television networks and other news and entertainment organizations have Web sites that compliment their more traditional TV, radio or print publishing activities. In fact, some commercial magazines and news sources -- such as Salon and Slate -- are published exclusively on the Web. Other businesses, like record labels, use the Web essentially as a means of interactive advertising, offering such things as exclusive photos and sound or video clips of their artists that the old-fashioned record store display just can't provide. All of these "Web publishers" are just as interested in commercially exploiting their intellectual property, and in preventing its unauthorized or undesired use by others, as are the traditional print and television media. They're also just as entitled to do so under the copyright laws.

If something doesn't have a copyright notice or something containing the © symbol, it must not be copyrighted, so I can take it and use it however I want.

Also not true, at least not anymore. While such a notice used to be required when a work was published, since 1989 a work is deemed immediately and automatically protected by copyright as soon as it is "fixed in any tangible medium of expression," -- that is, as soon as it's committed to paper, film, audiotape, videotape, computer file, etc., and is no longer just an idea in its creator's head. The fact that it is subsequently published or displayed without a copyright notice doesn't change that fact one bit. So, just because you don't see a copyright symbol doesn't mean the graphic or audio file you'd like to copy and use on your Web page isn't protected by copyright; to the contrary, and particularly if it was created within the last 10 years, it almost certainly is.

But my use is "fair use," or so I've been told, so I can't get in trouble, right?

Maybe, but maybe not. Just remember that the use of someone else's copyrighted material on your Web page is not a "fair use" just because you say it is, or because one of your friends told you they thought so. The concept of "fair use" -- which allows use of all or part of a copyrighted work, without its owner's permission, for certain educational and other socially-valuable purposes -- is pretty complicated, as is the legal analysis for determining whether a given use qualifies as "fair" or not. Before you make any assumptions that yours is a "fair use" of a copyrighted photo, essay, poem or song, you should at least take a careful look at the statute and some of the rules of thumb that apply to the issue to see whether it's possible that the copyright owner could make an argument to the contrary.

But I'm not charging people anything to view my Web site, and I'm not selling anything; doesn't that mean I can use anything I want?

Absolutely not. Whether you're using someone else's copyrighted work for a commercial or profit-making purpose is only one of numerous circumstances that are required to be considered in the legal test for determining whether the use is "fair." For example, just because you're not charging visitors to your Web site to download an audio file or view a photograph doesn't mean that you're not depriving the owner of that work of an opportunity to do so, and thus cutting in on his potential profits.

But I gave credit to the original artist and/or copyright owner of the text/picture/audio file!

That's very nice, and certainly recommended, even when you're using a work with the owner's permission. Simply giving credit to the artist or owner, however, doesn't necessarily affect the negative impact that your unauthorized use of the work is having on the owner's ability to exploit the work himself, particularly if you're using the entire work and not just a brief excerpt or clip.

But it's free advertising for the copyright owner!

You're probably right, but again, it doesn't protect you from a claim that you've infringed the owner's copyright. This is the argument that has been used most often by people who want to post fan-friendly Web sites devoted to their favorite movie or TV show, like The X-Files or Star Trek, featuring photos, sound and video clips, fan fiction featuring the show's characters and other such content. Simply put, however, it's up to the copyright owner to decide whether it wants free advertising or not, and thus whether it wants to allow fans to use such copyrighted material freely (and/or for free!). Don't assume that the producers of your favorite TV show, or the label that releases CDs by your favorite band, would appreciate your posting a fan page containing their protected material -- to be entirely safe, ask them first!

What about framing content from another Web site on my own site; that's permitted -- isn't it?

Framing is presumptively illegal. The owners of many Web sites don't want their content to be "framed" on another site for a number of reasons, including the fact that they sometimes have advertisers whose ads aren't visible when their content is framed somewhere else. When you "frame" someone else's site, you also give the impression, at least to the casual viewer, that the other site's content originated with you. Again, the best policy is to ask the proprietor of the other site for permission before framing his content on your page. While he might refuse permission, or place some conditions on your doing so, better to give credit where credit is due than to get a "cease and desist" letter and/or demand for monetary damages from his lawyer.

Well I can at least link to anyone else's web page, can't I? I mean, isn't that what the Web is all about?

Probably yes, but not definitely. It's true that "hyperlinking" between sites is one of the Web's most distinctive and useful characteristics, and that there is a general presumption of open access, by anyone, to any page that someone has posted on the Web. Nonetheless, controversies about some forms of linking are starting to arise. If you link to one of the "internal" pages on another site, for example, you might be bypassing paid advertising that appears on the site's opening or "home" page. The owner of the site (not to mention his advertisers) won't be happy, and may even have the legal right to prevent you from doing that. Some sites also resent being linked to by people or organizations whose political or moral beliefs they find offensive. At the risk of sounding repetitive, the best policy is first to ask the owner of a site whether she has any objection to your providing a link to her on your page. Odds are, she'll be more than happy, and at the same time, you'll have protected yourself. (Remember, too, that some commercial Web sites will even pay you to include a link to their site, or provide you with free goods or services, based on the number of times that one of your viewers clicks on the link. If you'll need to generate some revenue in order to keep your site up and running, look around for some potential "sponsors" like these.)

What about the "metatags" for my site? Are there any limitations on the visible or invisible "hit words" I can use so that my site will turn up when someone does a search on a search engine?

Yes, there are. Again, you must always be careful not to run afoul of the copyright and trademark laws. Although this is a relatively new legal controversy, the trend in the law appears to be that the use of someone else's protected words, terms or phrases as metatags can get you into trouble, especially if you're in competition with the owner of the protected language. The problem usually arises with respect to trademarks, that is, protected business names and slogans. In the most famous case, Playboy Enterprises sued and won an injunction against the owner of a competing adult Web site that included the trademarked terms "playboy" and "playmate" among its metatags. But a metatag dispute could arise in a copyright context as well. The bottom line is that you shouldn't use someone else's protected language as a "metatag" for your site, even if you think it would lead to more hits on your site, and even though the metatag would be invisible to people viewing your site.

So does all this mean I can't put any cool or interesting content on my Web page?

Well of course not! For starters, you can always, always, post material that is entirely original to you, and in any way, shape or form you choose. To the greatest extent you possibly can, use the power of the Web, and its graphic and other capabilities, as an outlet for your creativity. As explained above, you can also use at least some materials created by others, either for educational and/or critical purposes (but remember, the defamation laws apply on the 'Net as well!) or with their owners' express permission. You might be surprised how readily some copyright holders will grant you at least limited permission to post, excerpt or provide links to their works. Who knows, you may even reach a point where your Web site is so sophisticated, and/or is generating enough traffic, advertising or sales revenue, that content providers will be offering great copyrighted content to you free of charge, or in exchange for a license fee that, by then, you'll be willing and able to pay.