Boeing 747 Aviation Week article NTSB intrigued by forward door popping open.

Monica Warnock

Washington Bureau

Aviation Week & Space Technology

Dear Ms. Monica Warnock, 21 May 1998

You wrote to me:> You must remove these

> articles and any other Aviation Week copyrighted material from your

> website immediately, or we will consider legal action.

I replied>Consider it done. And not because you threatened me, but because you may be right."

Ms. Warnock, I now believe you to be wrong.

I'm putting the 10 March 97 Aviation Week and Space Technology article in dispute back up on my web site at www.corazon.com at one minute after midnight on 1 June 1998.

Here's why: The content is everything and the content of the article is very, very important. I agree with the content. AvWeek agrees with content. The public officials quoted in your article agree with the content. The content quotes a public NTSB official who says that the cause of TWA 800 may have been forward door popping open. It also said the streak seen before TWA 800 crash may have been reflection off the skin of aircraft. I agree with that. It is very important. Let us call it the door pop streak article.

Ms. Warnock, you have done your job well by searching the web for Avweek articles. You found one. You then followed orders and directed it be removed. It was removed. The problem is now above your level of authority. So I direct my comments to your boss: Mary Francis Koerner, the

Manager of Bureaus.

Will you please see that this letter goes to her?

Dear Ms. Koerner, I am told several things:

1. Get the door pop streak article off my web site.

2. I should ask permission to put AvWeek articles on web site.

3. Permission will be denied.

I asked permission. It was denied. You were right.

You have done all you can do. The problem is now above your level of authority. I assume you would refer me to 'The Lawyers.' I direct my statements to the lawyers.

Will you please see that this letter goes to them?

Dear AvWeek lawyers:

Ah, copyright, don't you love it?

My name is John Barry Smith. I have a 1200 page, 100 meg website at www.corazon.com mainly devoted to high time Boeing 747 accidents in which the hull ruptures in flight forward of the wing. It contains mostly government scanned in aviation accident reports, AARs, and occasionally copyrighted material from media, such as yours.

Please note, let us stipulate:

1. My site is non profit. I have not made a penny on anything related to that website. In fact, much of my money has gone out, nothing has come in, a problem as my wife will attest.

2. It is research oriented with airplane crash related comments, investigations, reports, pictures, and text.

3. I give full and clear credit to the sources I quote. AvWeek was clearly stated as the author of the door pop streak 10 Mar 97 article in question. In fact, that is very important, that's why I quote clearly and give credit to Aviation Week by scanning in the entire article instead of paraphrasing, which would be quicker to download but not have the authority of the best aviation magazine on the planet, Aviation Week and Space Technology. And I omitted the advertising on the pages, too.

Now for argument:

1. I stole nothing from you.

2. It's fair use.

3. I can publish that article without your permission if certain conditions are met, and are: Non profit, small parts used, and credit given.

"Fair use and implied licenses.

Fair use is a legal license to use others' work, whether they approve or not. It constitutes one of the most important, and least clear cut, limits to copyright. The basic problem is that words like "fair" or "reasonable" cannot be defined with the precision non-lawyers (or many law students) would like. Until 20 years ago, fair use did not appear in U.S. legislation, but it now occupies about half of the copyright statute. In the U.S., partial or limited reproduction of another's work may be permitted under this doctrine.

On the one hand, fair use offers an especially liberal defense to uses that advance public interests such as education or scholarship. On the other hand, it is unlikely to be available if one fails to credit the original artist or author. It is not apt to be available to those who profit or interfere with original artists' or authors' ability to derive income from their works."

I believe I advance the public interest in aviation safety, I credit the original speaker, the reporter, and the magazine, and I do not profit from it. I have fair use.

Conclusion: It will take a Judge to order me to remove the 10 March 97 AvWeek article from my website after it is put back up on 1 June 1998 or to permit me to continue to post it.

So, Lawyers, the problem is above your level of authority. I turn my attention to the Managing Editor:

Will you please see that this letter goes to him?

Dear Managing Editor,

What's the beef? You and your reporter, David Fulghum, have done a fine piece of work. You have pinpointed the cause of a mystery crash now under current investigation, TWA 800. It was the door popping open in flight. The NTSB official you quoted was correct. The streak was the skin spinning away reflecting evening red orange sunlight to observers below. The official was correct and he was quoted correctly by your aviation reporter. The implications of the truth you printed are profound. The cause now leads to chafed wiring shorting on cargo door unlatch motor and allowing rupture at aft midspan latch of forward cargo door which opened in flight. Exactly as has happened before with UAL 811 as described in NTSB AAR 92/02. The 300 knot slipstream tore the nose off TWA 800 because the explosive decompression shatter zone was much bigger on TWA 800 than on UAL 811, as shown by NTSB reconstruction photo of TWA 800 wreckage.

I encourage you to do a follow up story on the wiring/cargo door explanation as described on the website in question, www.corazon.com. Mr. Fulghum and Mr. McKenna are familiar with the details of TWA 800 and wiring cargo door explanation.

Attached:

1. Correspondence between AvWeek Ms. Warnock and me.

2. Three .jpgs of the images published on website of 10 March door pop streak article.

3. Recent email to Government officials regarding this matter. Please note accurate numbers and sources given.

So, I must publish your copyrighted material, the 10 March 97 article on my website at URL http://www.corazon.com/800avweekintrigue.html on June 1, 1998.

I'm at email barry@corazon.com or 408 659 3552 or 551 Country Club Drive, Carmel Valley, CA 93924.

I encourage discussion regarding this matter. It's a hot story even though almost two years old. Wiring is the main culprit, not the door, not the center tank. NSTB is in the right church but the wrong pew. Wiring is the problem and it's in places other than the fuel tank tubes. It's in the cargo door unlatching motor circuits.

Cheers,

John Barry Smith

From: monica_warnock@mcgraw-hill.com

Date: Thu, 14 May 98 10:24:37 -0500

To: <barry@corazon.com>

Subject: Aviation Week

Mime-Version: 1.0

To: barry@corazon.com

Dear Sir,

Your website "http://www.corazon.com/800avweekintrigue.html" contains

several scanned-in pictures of the Aviation Week & Space Technology

article "ANG Pilot: TWA Hit By Object," March 10, 1997. Our records

do not show that you requested permission to use these articles on

your website.

Aviation Week & Space Technology is covered by copyright law which

states that permission must be granted before our material is used.

Your website is in violation of this law. You must remove these

articles and any other Aviation Week copyrighted material from your

website immediately, or we will consider legal action.

Sincerely,

Monica Warnock

Washington Bureau

Aviation Week & Space Technology

monica_warnock@mcgraw-hill.com

(202)383-2314

To: monica_warnock@mcgraw-hill.com

From: John Barry Smith <barry@corazon.com>

Subject: Request permission to present article on website.

Cc:

Bcc:

X-Attachments:

> To: barry@corazon.com

> Dear Sir,

> Your website "http://www.corazon.com/800avweekintrigue.html" contains

> several scanned-in pictures of the Aviation Week & Space Technology

> article "ANG Pilot: TWA Hit By Object," March 10, 1997. Our records

> do not show that you requested permission to use these articles on

> your website.

Dear Madam, 14 May 1998

A thousand pardons. I immediately request permission to reprint Aviation Week & Space Technology article "ANG Pilot: TWA Hit By Object," March 10, 1997 on my website, www.corazon.com. (Corazon is my wife's name.)

The reason I scanned in exact image instead of paraphrasing text was to be precise and show source, very important for a research paper.

Should my request be denied, I shall of course, immediately comply with your request and remove the article from my web site.

AWST is a fine magazine and one which I have read diligently for over thirty years. I have watched AWST's web site mature as time goes on. http://awgnet.com/awgnews.htm is on my bookmarks list and I check it first thing every morning. I'm in your database of subscribers. Keep up the good work!

Regarding this life and death matter of a sudden night fiery fatal jet plane crash about which I have published a 1200 page website presenting my shorted wiring opening forward cargo door in flight explanation to the general public in a non profit effort:

1. You surely understand I can not alter my website just on an unsolicited email out of the blue from:

> Monica Warnock

> Washington Bureau

> Aviation Week & Space Technology

> monica_warnock@mcgraw-hill.com

> (202)383-2314

The absence of title indicates your request may be personal in nature and not official. Please confirm your official title which corresponds to your request that I delete an article from AWST from my site. You may be spoofing me and my asking for credentials is prudent and an established protocol.

2. Your response indicates an interest in the subject of TWA 800. Could you refer a reporter to me so I can present my wiring/cargo door explanation to him/her? I would appreciate the opinion of an aviation professional regarding my nine years of amateur research into hull ruptures of hour high time Boeing 747s. Your reporter, David Fuhlgum, in the referenced article, was able to elicit important material from NTSB officials regarding TWA 800; the forward door may have popped open in flight, and the streak may have been pieces of the aircraft reflecting evening sun. I am able to amplify those observations by an anonymous NTSB 'second official' using NTSB documents and photographs. It's a good story and one worthy of AWST's interest. FAA, NSTB, and Boeing are all saying wiring in older Boeing airliners is fraying and shorting causing problems, and so am I, long before the officials came to the realization.

3. >or we will consider legal action.

Why, O why did you threaten me? Your first contact, out of the blue, and it contains a threat of 'legal action'. What does that mean? I don't think it means a good thing. It just sets a wrong tone. Is politeness gone from even presentations about a plane crash?

4. >Your website is in violation of this law.

Whoa! You are calling me a criminal? Just like that? I'm breaking the law? I'm a lawbreaker? This is very disturbing. Maybe that's the way AWST works with the big boys who only respond to threats, not to polite requests with explanation attached. I'm not a big boy. I'm a retired military officer working out of a converted garage in California. I don't like anybody telling me I'm breaking the law unless it's a policeman, judge, or jury. And I still don't like it, but I obey. I really can't tell my friends that I changed my cherished web site because of a strange unauthenticated email from some babe named Monica at McGraw-Hill, now can I? I mean, am I a man or a mouse?

See, a threat always turns a pleasant conversation into stressful one. Squeek, squeek.

To review:

1. I respectfully request permission to display scanned in images of Aviation Week & Space Technology article "ANG Pilot: TWA Hit By Object," March 10, 1997 on my personal website, www.corazon.com.

2. Please to show credentials, madam.

4. Refer reporter to me regarding a subject that you feel strongly enough to want to affect with correspondence, TWA 800.

5. Keep up the good work covering aviation subjects around the world.

Cheers,

John Barry Smith

551 Country Club Drive,

Carmel Valley, CA 93924

408 659 3552

barry@corazon.com

www.corazon.com

From: monica_warnock@mcgraw-hill.com

Date: Thu, 14 May 98 13:48:41 -0500

To: <barry@corazon.com>

Subject: Re: Request permission to present article on website.

Mime-Version: 1.0

Dear Mr. Barry,

I am an editorial assistant in the Washington Bureau of Aviation Week

& Space Technology. I work for Mary Francis Koerner. She is the

Manager of Bureaus and she is the official contact for Reprints &

Permission. We will periodically search the web for Aviation Week on

outside websites and that is what brought me to your site.

Unfortunately, at present, Aviation Week & Space Technology does not

allow its material to be reprinted on any websites other than our own.

We appreciate your interest in Aviation Week & Space Technology;

however, we must ask that you remove the article from your website, as

you have indicated you are willing to do.

My interest in this regard is not related to TWA800 but protecting the

magazine in general. Many people are not aware of the rules regarding

and Rights & Permission" on the Contact Us page of Aviation Week if

you have any future requests for permission.

James McKenna would be the best editor to send your correspondence to

regarding TWA 800. He is located in the Washington bureau: 1200 G

Street, NW Suite 922, Washington, DC 20005. (202) 383-2332.

I will mail you a hard copy of this letter on Aviation Week & Space

Technology letterhead to satisfy any concerns you might have about my

identity. Thank you for your understanding.

Monica Warnock

Editorial Assistant, Washington Bureau

Aviation Week & Space Technology

To: monica_warnock@mcgraw-hill.com

From: John Barry Smith <barry@corazon.com>

Subject: Re: Request permission to present article on website.

Cc:

Bcc:

X-Attachments:

> Dear Mr. Barry,

> I am an editorial assistant in the Washington Bureau of Aviation Week

> & Space Technology. I work for Mary Francis Koerner. She is the

> Manager of Bureaus and she is the official contact for Reprints &

> Permission. We will periodically search the web for Aviation Week on

> outside websites and that is what brought me to your site.

Dear Ms. Monica,

Thank you for your prompt reply. I am saddened by the denial to present the AWST article on my web site. I shall search through it and delete it. Do I need permission to post your email in its place to explain why the article was deleted? I should explain why the article was removed to squelch any conspiracy coverup nonsense that pervades this TWA 800 investigation.

> Unfortunately, at present, Aviation Week & Space Technology does not

> allow its material to be reprinted on any websites other than our own.

So sad.

> We appreciate your interest in Aviation Week & Space Technology;

> however, we must ask that you remove the article from your website, as

> you have indicated you are willing to do.

As soon as I am finished with this upcoming TV interview about wiring/cargo door explanation, I will. The TV station is KOMO-TV, Channel 4, ABC, in Seattle Washington and the arrive within the hour. I'm preparing for it so am unable now to find page, delete, change links, upload it to server right now. But how long to I have? Is 48 hours OK?

> My interest in this regard is not related to TWA800 but protecting the

> magazine in general. Many people are not aware of the rules regarding

> copyright on the internet. You may reference the section "Photocopy

> and Rights & Permission" on the Contact Us page of Aviation Week if

> you have any future requests for permission.

Protecting the magazine? Well, OK, if you say so. I feel that quoting AWST in a non profit website about aviation safety helps AWST, but what do I know.

> James McKenna would be the best editor to send your correspondence to

> regarding TWA 800. He is located in the Washington bureau: 1200 G

> Street, NW Suite 922, Washington, DC 20005. (202) 383-2332.

Thank you very much, ma'm, and I shall. I shall say you referred me, is that OK?

> I will mail you a hard copy of this letter on Aviation Week & Space

> Technology letterhead to satisfy any concerns you might have about my

> identity. Thank you for your understanding.

Fine, can I put that on my website?

Let me get back to you on this. I will delete offending article and then send you URL of the new page so you can confirm I have cleansed the dirty deed.

Cheers,

John Barry Smith

> Monica Warnock

> Editorial Assistant, Washington Bureau

> Aviation Week & Space Technology

From: monica_warnock@mcgraw-hill.com

Date: Thu, 14 May 98 14:47:54 -0500

To: <barry@corazon.com>

Subject: Re[2]: Request permission to present article on website.

Mime-Version: 1.0

Mr. Smith,

I will mail your letter today. When it arrives, you are welcome to

place it on your website. We understand that you are busy right now-

as long you are able to delete the pages by next Friday, that's fine

with us. The complete URL is

<http://www.corazon.com/800avweekintrigue.html>

If you do contact Mr. McKenna, you may tell him I referred you. Again,

thank you for your interest in Aviation Week.

Monica Warnock

Editorial Assistant, Washington Bureau

Aviation Week & Space Technology

To: monica_warnock@mcgraw-hill.com

From: John Barry Smith <barry@corazon.com>

Subject: Done

Cc:

Bcc:

X-Attachments:

Dear Ms. Warnock,

> You must remove these

> articles and any other Aviation Week copyrighted material from your

> website immediately, or we will consider legal action.

Consider it done. And not because you threatened me, but because you may be right.

http://www.corazon.com/800avweekintrigue.html

is the URL which now has deleted article. Completed 6:57PM 14 May 97, nine hours after your request. The TV interview went swimmingly. In fact, the interviewer from KOMO TV ABC Seattle, asked that I send him an email of the article in question. He was interested to hear about your request.

I just want you to know that you have made an old man very very sad. I shall have to research the web, as is my wont, to find out for sure if the copyright laws exist to keep non profit websites from fairly using one article of a magazine to support an aviation safety hypothesis. I make no money from this site, on the contrary, it costs me money to keep it up. The site is 1200 pages deep with on one page assigned to article. The goal of the website is aviation safety, a common goal with Aviation Week. The officials quoted on the article are public officials whose comments are public.

It seems to me that permission should not be necessary for me to put your article on my website as long as I give credit to the author and make no money from it.

It seems to me that when permission was requested to put the article on my website, permission should have been granted.

You said 'protect your magazine,' as motive for requesting I delete the article. Protection from whom? Me? Aviation Week needs protection from me? I am a retired guy working out of a converted garage with a computer and a modem. You have nothing to fear from me, we are on the same side, aviation safety.

Regardless, the excellent article by David Fulghum in the March 10, 1997 issue has been deleted at your request. Should it become apparent that I do have the fair right to use your article under conditions which I fulfill, then, pop! up it goes again. I shall let you know in advance so you may attempt to dissuade me if you wish. It just seems that a guy ought to be able to pull out old magazine articles to quote from when he's trying to persuade visitors of an aviation safety point. In case I'm wrong, and I'm never wrong, I have erred on the side of safety and complied with your request.

Cheers,

John Barry Smith

> Mr. Smith,

> I will mail your letter today. When it arrives, you are welcome to

> place it on your website. We understand that you are busy right now-

> as long you are able to delete the pages by next Friday, that's fine

> with us. The complete URL is

> <http://www.corazon.com/800avweekintrigue.html>

> If you do contact Mr. McKenna, you may tell him I referred you. Again,

> thank you for your interest in Aviation Week.

> Monica Warnock

> Editorial Assistant, Washington Bureau

> Aviation Week & Space Technology

Thomas G. Field, Jr.

Contents

* Introduction

* Limits to Copyright

* Notice and Registration

* Whether to Register

* Avoiding Suit

* Links and Frames

* The Bottom Line

Introduction

This discussion focuses on copyright issues of most concern to those who post to or own email lists or have put up web pages -- as well as to those who might want to use another's email posting or to copy material from another web page.

As pointed out in a couple of other discussions at this site, for example, Copyright in Computer Software, copyright encourages the creative efforts of authors, artists and others. It does so by giving such people the right to exclude others from using their works in certain ways.

Copyright arises automatically as soon as some aspect of a protectable work has been fixed in a tangible medium (such as an internet server). Notice is not required; registration is required only if legal action is warranted and the work originates in the U.S. (Apologies to those abroad, but this is hereafter presumed.) However, giving notice (such as at the bottom of this page) and promptly registering works provide legal advantages. Those advantages are explained below, along with basic limits to copyright protection.

Several matters such as the fundamental distinction between works that are and are not "for hire," deposit details and issues to consider in transferring copyright interests are not particularly relevant to that focus and are not revisited here. However, anyone in the business of putting web pages up for others definitely needs to address such matters. Again, see Copyright in Computer Software or the more general discussion, Copyright Basics, at the Copyright Office.

Limits to Copyright

Copyright does not give its owners the right to sell or distribute works. Consider, for example, a libelous email message or web page. While both would be protected by copyright, this is of little importance if their posting would incur liability. Also, of course, rights to post information can be affected by laws governing, e.g., obscenity, or rights of privacy or publicity.

Basic limits to copyright protection.

There are several fundamental limits to copyright protection. For example, expression, not facts or ideas, is protected. Also, a second work that merely happens to be very similar (or even identical) to an earlier work does not infringe, if it is, in fact, independently created. However, because these topics are treated elsewhere, they are not pursued here.

Fair use and implied licenses.

Commercial uses of another's work are particularly frowned upon. But what does this mean? On one end of the scale, for example, anyone who posts an email message in such a way as to suggest that its author endorses some commercial product, without explicit permission, is asking for serious trouble! On the other, lunch is rarely free. Most magazines, newspapers and even many professional journals are operated by for-profit entities. That the latter kind of commercialism does not negate fair use defenses has been made clear by the U.S. Supreme Court.

Licenses may also be implied in fact (as when someone posts a message to a public email list). Both forwarding and archiving email messages seem to be impliedly allowed -- possibly subject to an author's right to revoke implied permission when reasonable. People (including myself) regularly post messages that they wish they had not sent. Is it reasonable to ask someone who automatically archives list content to find and delete messages sent inadvertently? In my opinion, it would often not be. Authors should be careful in what they send; under the best of circumstances, it will be difficult to eradicate inadvertent postings.

Few who post to email lists would object if their messages are forwarded to others who might be interested. However, in doing so, or in using part of a prior message in responding to an earlier message, one should be careful not to change the original author's meaning. No one impliedly authorizes another to attribute to them an embarrassing (or worse) message they did not write!

Likewise, few would object to having their messages archived, perhaps on a web page. Archiving clearly serves the interests of list members who may occasionally want to revisit topics addressed earlier. Indeed, most would prefer having archives to seeing old topics rehashed again and again -- the reason one often sees lists of frequently asked questions (FAQs).

Expressed Licenses -- Put it on the table!

Many email copyright problems could be avoided if list owners would broadcast, at least on initial subscription, a notice such as the one below. [List owners who care to use it are hereby granted permission but should not regard it as legal advice. I certainly do not suggest it as a fool-proof way to avoid copyright (much less any other) problems.]

Those who post to this list retain their copyright. However, subscribers grant a non-exclusive license to the list owner, directly or indirectly, to archive, and to other subscribers to forward, any message posted here.

**All archiving of messages posted to this list is forbidden without express permission of their authors or the list owner!** No site that conditions access on payment of a fee will be approved by the list owner as an archive.

No subscriber, by merely posting to this list, grants implied permission to associate his or her message directly with any commercial product or service. Nevertheless, subscribers should bear in mind that virtually anyone will have access to their messages. If there is *anyone* you would not want to see some message, do not post it here!

I recently encountered a site that confidently asserts that list owners have the right to approve the forwarding of email from one list to another. Barring such a provision in a welcome message (note that none appears in the example set out above), I am unaware of any legal basis for it. Perhaps it is a netiquette rule I have not previously enountered, but those are not ordinarily enforced in the courts.

To avoid some copyright questions, one web author posts this amusing noice:

WARNING: I reserve the right to use any email you send to me as either a testimonial of how great this page is, or as an (rare) example of the stupid things people send to me via email. If you do not want your email to be used in such a manner, mark it confidential....

Special situations.

Email lists are exceedingly diverse. For an extreme example, consider a prostate cancer listserv. Here are excerpts from the welcome message:

Now that you have subscribed, you are encouraged to send a note introducing yourself.... If your concern is about a prostate cancer diagnosis, also include your PSA blood test result, Gleason score, and cancer stage.

...

All messages to the list are archived. If you have deleted or missed messages these can be found by accessing the archives with this message.... [It goes on to list several archives.]

Each subscriber to that list (as well as to a host of similar ones) should weigh his individual risks as well as the substantial benefits to himself and others of having personal medical information made public and archived. Authors who post to such lists should consider the ramifications of doing so. Copyright provides limited abilility to control the access of others to what one has published. Thus, for example, employees' adverse medical information could possibly end up in the hands of employers who would find an incentive to discharge them for spurious reasons. When potential misuse of information poses a serious threat, email users should keep messages private. Licenses to foward or archive private messages will rarely be implied.

Private lists. The possibility of "private" lists also exists -- in the sense that all who sign up expressedly agree, e.g., not to forward list messages or to delete the identity of authors before doing so. Also, if list messages are archived at all, access could be limited, e.g., by use of passwords -- or they could be archived anonymously. Such an approach should be able to avoid even "fair use" of messages.

Notice and Registration

As mentioned above, web pages and email messages are protected by copyright as soon as they are created. Copyright notice and registration are not required -- although the last is needed prior to bringing suit. For example, contrary to what some seem to believe, and consistent with the sample email list notice above, even public messages cannot be used by anyone else as they please.

In the U.S., copyright notice eliminates the potential defense of innocent infringement and increases the chances that willful infringement will be found. The latter is far more serious because statutory damages for willful infringement are much larger -- up to $100,000, compared to $200! Thus, if copyright is a major concern, those who post email messages or serve up web pages should give explicit notice.

More significantly, statutory damages and attorney fees can be obtained only if works are promptly registered after publication -- publication presumably occurs when a message is posted to a public list or a web page is made available to anyone who cares to visit. Although the statute is not a paragon of clarity on this point, it appears that if registration is sought within three months of publication, statutory damages and attorney fees, as well as more common remedies, are available for prior infringement. While it takes several months for a certificate of registration to issue, once that happens (if the initial application was complete), the filing date becomes the registration date.

Whether to Register

Prolific email users or web publishers would find registration prohibitively expensive if every individual item had to be registered, even at $20 each -- particularly if their efforts generate no income. Although prompt registration provides remedies that make suit affordable, it might not appear, on balance, to be "worth it."

The situation is much improved by being able to register multiple works as a collection. For example, the entire contents of a web site should no more require multiple registrations than a book with many chapters and numerous illustrations -- or a CD with text and music, still and animated graphics, and software.

Such registration is a good buy. Simple forms, containing basic instructions, are available from the Copyright Office as well as, e.g.,the BMI web site. To register, send the proper form (TX for most works, but see form GR/CP too) with the $20 fee.

It is also necessary to send materials that identify the work. Email should be very straight forward, but even ordinary web pages present problems. Should one send a printout of the page or the code that generates it? If the content is all that is important, I would send only screen printouts. If the code were also important, I would register it like software; see, e.g., § 202.20 of Title 37 of the Code of Federal Regulations. One problem with treating the content of a large web site like software is: What constitues the first and last 25 pages of code?!

If a web site is particularly ornate with, e.g., embedded java scripts, sounds and video, as well as text and graphics, problems are compounded. A web author could give it his or her best shot and see what happens -- subject to the risk of being unable to rely on the original filing date. If that risk seems serious, a web author should consult an experienced lawyer.

Avoiding Suit

Subject to limitations briefly discussed above, copyright gives its owners the exclusive right to reproduce and otherwise reap, e.g., the goodwill or economic benefits of their work. Sometimes a question arises as to whether a second, similar work was copied or was independently created. If the person creating the second work had access to the original, and the works are very similar, copying is likely to be presumed.

Unless liability is exempted by fair use or an express or implied license, copyright arms its owner with remedies going well beyond those normally afforded to an injured party. Further, while finding infringement of graphics works can be difficult, those who copy text may be easily found with any of several powerful net search engines.

Web artists have asked if it is OK to base a graphic on another's work. The safe answer is "No!" The real question is not whether one is liable but whether one is likely to be sued. Those who use a relatively small amount of another's work -- if it is not copied in detail or is altered to the point that it cannot be recognized -- are not apt to be. Yet, this is a litigious society, and it is much smarter to work from scratch (or, for example, to use clip art sold for that purpose)! Even things posted on web sites as being in the public domain may not be. Commercial products, in contrast, should be accompanied by a warranty.

In no event, echoing what has already been cautioned, should anyone use another's text or graphics for commercial purposes without express permission! Any use that generates income directly or interferes with a copyright holder's potential income dramatically increases the chance of suit. Such use is also more apt to be regarded as willful -- again, increasing potential statutory damages from $200 to as much as $100,000!

As some web authors have failed to appreciate (as one can see from all the pages that say "X used to be here, but..."), using another's copyrighted graphics (particularly commercial cartoons) are almost sure to generate nasty threats -- regardless of how it's done. (See the discussion of links and frames below.)

Links and Frames

Links and frames present problems that may be unique to the internet, and copyright is not the sole basis for suit. Linking to others' web sites is unlikely to cause copyright problems under present law, but see the interesting discussion of image links at the Oppedahl & Larson page. It discusses, for example, the catch-22 of being liable for copying on one hand and being criticized for linking on the other. The tension can be reduced if those who object to links say so on their page. Some of those may also say that they prefer that their graphics be copied to other servers for various reasons. Yet, again, consider the risk that people with such pages do not own copyright in graphics (or whatever) they urge you to copy.

In any case, links to unaffiliated sites should clearly avoid any misrepresentation of authorship or endorsement. Further, commercial sites may well object to their content being framed at another site -- particularly if their content is surrounded by another's paid advertising. At least one such case has already arisen, but it was settled without a decision that could be used as precedent.

Finally, linking or framing aside, one must exercise great caution in referring to others (or their products or services) in a derogatory way.

The Bottom Line

Litigation is expensive; experienced lawyers often say that there are "no winners". That aside, whether particular activities might ultimately be found legal is wholly irrelevant if they don't generate enough income or are not otherwise worth the cost of defending a suit. No one should get so entangled (as lawyers sometimes do) in legal details that they fail to consider this key point.

For more information, see Web Law FAQ, at the Oppedahl & Larson site. See also, William S. Strong, Copyright in the New World of Electronic Publishing. The last goes far toward repudiating conventional "wisdom" that the Internet requires fundamentally reworking copyright law.

Modified 3/29/98

URL: HTTP://WWW.FPLC.EDU/TFIELD/COPYNET.HTM

This page has been visited 4175 times since 2/25/98.

Sam Farr

Member of Congress

17th District, California

House of Representatives

Congress of the United States

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John McCain III

Member of Congress

Chairman, Committee on Commerce, Science, and Transportation

United States Senate

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James Hall

Chairman,