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The Law and You - Part 1
Understanding the Law can be a difficult situation. This thread will give you my interpretation of the law as I think you need to know it. This is not legal advice. This should not be in lieu of consulting an attorney; and neither myself nor Blackhatworld.com or any of its staff are responsible for any knowledge used here in any action either illegal, damaging, defamatory or negligent in nature. The goal of this thread is not to enable illegal actions, but rather simplify complicated law as it pertains to the internet.
These interpretations in general will deal with laws applicable to the UK, US, Canada, Sweden, Australia and the EU; however be aware that they can easily be applied to other countries and international cases.
Copyright Claims:
This section is based strictly on American Copyright Law; as most domain names and servers are owned by the US government and can be seized in a copyright complaint
Title 17 of the United States Code Circular 92 deals with Copyright claims and violations. It states that any work of:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
Are naturally protected by copyright claims even if unpublished, once published an author/creator can hold that copyright under the claim nationally by filing for copyright.
Any such content can not be used unless:
-It falls under the America "Fair Use" policy (Title 17, Circular 92, Section 107) which means it is being used for:
- Non-profit/Educational Purposes
- News Reporting
- Critisim and Critique
- Research Purposes
Even in such cases it must be taken into account:
- The amount of the original used
- The "Character" of the works used purposes (i.e. was it for commercial gain?)
- The effect on potential market value of the original piece (i.e. are you causing the creator an avid financial loss)
Case Study 1: Limewire
It is due to a violation of Title 17, Circular 92, Section 107 that the company Limewire had to pay out and was forced to shut down. Limewire had many copyright claims brought against it from the music industry. The nature of the Limewire business was electronic transfer and sharing through Section 109 of the Title 17 copyright act in which it claimed it was not responsible for the content its users used. The nature of the Limewire business was also a commercial for profit. The courts examining the case decided that while Limewire was not responsible for the content their users shared, the amount of original work shared and effect on the market value of this content was so drastic that it became Limewire's responsibility to crack down on the enabling of such sharing. When Limewire didn't do so they directly breached the copyright act for themselves. Limewire was charged with $75 trillion in copyright violations (greater than the global GDP) but only forced to pay out $105 million, after this the service was put under a court injunction and their website seized and blocked.
In Theory: How could Limewire have prevented this?
Had Limewire taken steps to block copyrighted content to a level that one could deem "to the best of their ability without entirely ruining their own service" then they would have been effectively complaint and probably been allowed to continue operations - the lawsuits may have also never have been put forward
Case Study 2: ***** Video - The Dangers of "Conspiracy to Commit"
***** Video was a video sharing site that was seized by the US ICE (via at first a domain seizure and then search warrants to their servers in the Netherlands [a place often considered "offshore hosting"]). ***** Video had a team of uploaders who uploaded (to third party servers) and would share their video links on the *****video site. Hana Beshara, the admin and programmer of *****video was not involved in any of the uploading and was still charged with conspiracy and criminal copyright infringement and forced to surrender all assets, and could face up to 10 years in a federal prison. 6 other members of the staff including an uploader plead guilty to their crimes and face federal indictment. Warrants of arrest have also been created for up-loaders in Greece, Turkey and a few other countries.
The Lesson Here:
The lesson in this case is multi-tiered, first the by working with a team of uploaders they were committing "conspiracy to commit copyright infringement" as "conspiracy to commit" can be as simple as you enabling someone else to commit a crime (on purpose there has to be "Mens Rea" the criminal intention to commit this crime); and buy paying those uploaders and directly profiting from their actions everyone in the group was in technically committing "criminal copyright violations".
There are of course two common debates here:
1) They might have been better off with a degree of separation between them and the up-loaders, if the uploaders only profited from third-party ads and the site owners only profited from the site. Which is untrue as the site would still need to be user driven content for this to be safe
2) Had they been reviewing the pieces and saying this is where you could see it they would be fine. This is actually a rather debatable grey area, as there is minimal legislation on it, and no past cases. It's really hard to say.
Case Study 3: Sidereel
Many people accuse Sidereel.com of copyright violation, however the site, american owned and operated still flourishes and has not been taken down, Why is this?
The answer is simple, sidereel staff have the primary position of reviewers, they write review content, post review videos and make editors clips, the staff also put up affiliate links where you can pay to watch the shows/movies. The rest of the content is all user driven and the staff WILL respond to any DCMA policy claim. Under the DCMA policy, all past cases have been won in favor of sites that have user driven content linking to third party copyright media so long as the website is compliant with any copyright claim and takes it down immediately. Sidereel does not post the content, does not find or upload the content and does (in theory) not profit from the content and will take down the content at an owners request.
Other Copyright Claims:
There are other times when copy right comes into play rather than just content - such as use of a name or trademark. Other than the "Fair Use" policy there is no other acceptable time to use a companies name. In these cases individuals often are unaware that their content is copyright and thus receive a "cease and desist" (C&D) letter from a lawyer informing them the action is illegal and they should stop their illegal action right away. In such a case it always seems to work out better if they do stop right that instant and undo their violations.
Case Study 4: - Facebook Tools
In 2010 a number of tools had surfaced allowing users to use facebook accounts for advertising en masse, while the users themselves could be banned and charged for violating the Facebook ToS, far to many users were hidden beyond Facebooks reach, and there were just too many cases popping up. Facebook realized the only way to go after these people was to go after the tools. Since the tools did not directly violate their ToS and were not advertising that they can be used as spam tools (which is very important because it is illegal to enable a crime such as the lady who sold "suicide kits") then Facebook could only go after them for violations of copyright. Many of the tools were named "Facebook X X" or "FaceX" and used blue as their primary color. Facebook made a direct copyright violation claim against any software called Facebook X and indirect copyright claims "consumer confusion claims" against anything named FaceX that also had blue coloring stating that this was easily confused with official Facebook products and clearly a misrepresentation. They won ever single case, except for those programmers who quickly changed the names of the software at the first C&D and agreed to pay out restitution for use of the Facebook name.
Using names and discussing competition:
Using someone or something's name or discussing one's competition is technically a matter of copyright, however since such expression is covered under Section 107 Fair Use policy then it's not able to be taken as a direct copyright claim. For this reason the claims against name usage are nearly always "Slander/Libel/Defamation" or "Misrepresentation"
Slander/Libel/Defamation:
Slander and Libel are the two primary classifications for "defamation" literly defaming someone or something, stripping away its reputation, or monetary value by expression either in print or in speech.
Slander deals with defamation via speech, and does include video, podcast, and audio recordings.
Libel deals with defamation in-print including websites, emails, blog posts, and e-articles.
Defamation falls under the category of common laws of "tort" which means it is not a black and white criminal act, but rather an act of wrongful miss-doing to another person. Where there is a grey area to what is and what is not defamation.
In general:
"Any expression, either written or spoken, that causes damage to reputation of character, fame, success, or viability of a person, product, service or entity; that is un-grounded in fact, is a case of defamation"
Now that is generally how I would define it, essentially anything negative you say about a person can be considered defamation except for certain criteria:
1) The statement can be proven as a fact (it is readily debated what counts as reliable proof of FACT)
2) The accused can prove the statement caused no harm
3) The accused holds "qualified" or "absolute" privilege (the accused's testimony is based on the fact you are an expert in a certain field, or is given before a government legislature)
4) It is the accused's commentary on a mater of public interest and is fair
5) It is accussed's sole opinion, backed by fact, and clearly stated as opinion rather than anything you are trying to pass off as fact.
6) Claimant is incapable of further defamation - I.e. their reputation is so terrible it no longer matters
In most cases an individual is not responsible for defamation if they meet the above criteria, unless the accuser can of course prove that you were attempting to indirectly and purposefully cause damage to their reputation.
Claims about competition/Claims about one's product:
Another grey area of common law tort is "unfounded claims" either claims about ones self/one's product/one's service or one's competition that can not be backed up.
For example an unfounded claim could be:
OrTry Larry's Ice Cream, and loose weight!
To back up either of these quotes Larry would have to have research and results backing them up as quantifiable fact. It is not illegal to claim you are better, faster, etc than someone else as long as you can prove it.Try Larry's Ice Cream - It's better than Jane's
Same with some education system who claim your grades will go up - they would need to back it with a researched claim.
--End of Part 1:
--Part 2 will deal with ToS, JV/Contracts, Patents, and General Business Law
Post Script: It is important to remember when discussing the law you legally may only discuss your opinion, never advice, as that is a practice legally reserved for those formally certified by the BAR.
You can of course give your opinion, say what you understand of the law, or say what you would do in a hypothetical situation
Cheers,
Winchester
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Originally Posted by SuperLinks
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