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Question: What defenses may be available to someone who is sued for defamation?
Answer: There are ordinarily 6 possible defenses available to a defendant who is sued for libel (published defamatory communication.)
1. Truth. This is a complete defense, but may be difficult to prove.
2. Fair comment on a matter of public interest. This defense applies to "opinion" only, as compared to a statement of fact. The defendant usually needs to prove that the opinion is honestly held and the comments were not motivated by actual "malice." ( Malice means knowledge of falsity or reckless disregard for the truth of falsity of the defamatory statement.)
3. Privilege. The privilege may be absolute or qualified. Privilege generally exists where the speaker or writer has a duty to communicate to a specific person or persons on a given occasion. In some cases the privilege is qualified and may be lost if the publication is unnecessarily wide or made with malice.
4. Consent. This is rarely available, as plaintiffs will not ordinarily agree to the publication of statements that they find offensive.
5. Innocent dissemination. In some caes a party who has no knowledge of the content of a defamatory statement may use this defense. For example, a mailman who delivers a sealed envelope containing a defamatory statement, is not legally liable for any damages that come about from the statement.
6. Plaintiff's poor reputation. Defendant can mitigate (lessen) damages for a defamatory statement by proving that the plaintiff did not have a good reputation to begin with. Defendant ordinarily can prove plaintiff's poor reputation by calling witnesses with knowledge of the plaintiff's prior reputation relating to the defamatory content.
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Question: What is copyright infringement? Are there any defenses?
Answer: Infringement occurs whenever someone who is not the copyright holder (or a licensee of the copyright holder) exercises one of the exclusive rights listed above. The most common defense to an infringement claim is "fair use," a doctrine that allows people to use copyrighted material without permission in certain situations, such as quotations in a book review. To evaluate fair use of copyrighted material, the courts consider four factors:
- the purpose and character of the use
- the nature of the copyrighted work
- the amount and substantiality of copying, and
- the market effect.
(17 U.S.C. 107) The most significant factor in this analysis is the fourth, effect on the market. If a copier's use supplants demand for the original work, then it will be very difficult for him or her to claim fair use. On the other hand, if the use does not compete with the original, for example because it is a parody, criticism, or news report, it is more likely to be permitted as "fair use." Trademarks are generally subject to fair use in two situations: First, advertisers and other speakers are allowed to use a competitor's trademark when referring to that competitor's product ("nominative use"). Second, the law protects "fair comment," for instance, in parody.
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Question: What is the difference between plagiarism and copyright infringement?
Answer: Many people confuse the two, but copyright infringement and plagiarism are different concepts. Plagiarism occurs when a dishonest writer, or some other person, copies another's words or ideas without attributing them to the true author. Black's Law Dictionary 1170 (7th ed.1999). With plagiarism, it does not matter whether the words are copyrighted ? you still can get into plagiarism trouble by stealing from the public domain. Also, plagiarism is an ethical offense, as opposed to a legal transgression, and the person guilty of plagiarism ?only? suffers the rebuke of the community, whether it be academic or otherwise. Kindergartners Count, Inc. v. DeMoulin, 249 F.Supp.2d 1233, 1251 -1252 (D. Kan., 2003). Still, the lack of judicial remedy does not make plagiarism any less serious of an offense. Copyright infringement is a legal offense, subject to monetary damages and injunctions imposed by a court of law. It occurs when a person, knowingly or unknowingly, violates the exclusive right of the copyright holder to reproduce, display, perform, distribute, or make a derivative version of a certain work. 17 U.S.C. ? 106. The holder of the legal copyright isn?t necessarily the author of the work and, moreover, the infringer cannot save him/herself from a lawsuit by correctly attributing the work. Finally, the Copyright Act applies only to expression, and not ideas. 17 U.S.C. ? 102(b). One therefore cannot commit copyright infringement by copying a plot twist or abstract theory, whereas one can plagiarize any of the above.
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Question: What are the DMCA's anti-circumvention provisions?
Answer: The Digital Millennium Copyright Act (DMCA) is the latest amendment to copyright law, which introduced a new category of copyright violations that prohibit the "circumvention" of technical locks and controls on the use of digital content and products. These anti-circumvention provisions put the force of law behind any technological systems used by copyright owners to control access to and copying of their digital works. The DMCA contains four main provisions:
- a prohibition on circumventing access controls [1201(a)(1)(A)];
- an access control circumvention device ban (sometimes called the "trafficking" ban) [1201(a)(2)];
- a copyright protection circumvention device ban [1201(b)]; and,
- a prohibition on the removal of copyright management information (CMI) [1202(b)].
The first provision prohibits the act of circumventing technological protection systems, the second and third ban technological devices that facilitate the circumvention of access control or copy controls, and the fourth prohibits individuals from removing information about access and use devices and rules. The first three provisions are also distinguishable in that the first two provisions focus on technological protection systems that provide access control to the copyright owner, while the third provision prohibits circumvention of technological protections against unauthorized duplication and other potentially copyright infringing activities.
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Question: What rights are protected by copyright law?
Answer: The purpose of copyright law is to encourage creative work by granting a temporary monopoly in an author's original creations. This monopoly takes the form of six rights in areas where the author retains exclusive control. These rights are: (1) the right of reproduction (i.e., copying),
(2) the right to create derivative works,
(3) the right to distribution,
(4) the right to performance,
(5) the right to display, and
(6) the digital transmission performance right. The law of copyright protects the first two rights in both private and public contexts, whereas an author can only restrict the last four rights in the public sphere. Claims of infringement must show that the defendant exercised one of these rights. For example, if I create unauthorized videotape copies of Star Trek II: The Wrath of Khan and distribute them to strangers on the street, then I have infringed both the copyright holder's rights of reproduction and distribution. If I merely re-enact The Wrath of Khan for my family in my home, then I have not infringed on the copyright. Names, ideas and facts are not protected by copyright. Trademark law, in contrast, is designed to protect consumers from confusion as to the source of goods (as well as to protect the trademark owner's market). To this end, the law gives the owner of a registered trademark the right to use the mark in commerce without confusion. If someone introduces a trademark into the market that is likely to cause confusion, then the newer mark infringes on the older one. The laws of trademark infringement and dilution protect against this likelihood of confusion. Trademark protects names, images and short phrases. Infringement protects against confusion about the origin of goods. The plaintiff in an infringement suit must show that defendant's use of the mark is likely to cause such a confusion. For instance, if I were an unscrupulous manufacturer, I might attempt to capitalize on the fame of Star Trek by creating a line of 'Spock Activewear.' If consumers could reasonably believe that my activewear was produced or endorsed by the owners of the Spock trademark, then I would be liable for infringement. The law of trademark dilution protects against confusion concerning the character of a registered trademark. Suppose I created a semi-automatic assault rifle and marketed it as 'The Lt. Uhura 5000.' Even if consumers could not reasonably believe that the Star Trek trademark holders produced this firearm, the trademark holders could claim that my use of their mark harmed the family-oriented character of their mark. I would be liable for dilution.
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Question: How can I find out whether a work has a registered copyright?
Answer: Works are copyrighted as soon as they are "fixed in a tangible medium of expression," but some legal rights and remedies are available only if the work's copyright is registered. To find a copyright registration, you may search copyright records at the Copyright Office website, but be aware that not finding a match does not mean the work is uncopyrighted.
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Question: What defenses are there to copyright infringement?
Answer:
The primary defense to copyright infringement is "fair use." 17
U.S.C. ?107. The fair use doctrine allows the reproduction and
use of work, notwithstanding the rightsof the author (17
U.S.C. ?? 106 and 106A),
for limited purposes such as criticism, comment, news reporting, teaching,
scholarship, and research. Fair use may be described as the privilege to
use the copyrighted material in a reasonable manner without the owner's
consent. In deciding whether a copier's actions were fair, judges will consider
1. the purpose and character of the copying (certain types of educational
copying is allowed)
2. the nature of the original (originals made for commercial reasons are
less protected from copying than their purely artistic counterparts)
3. the amount and substantiality of the portion copied (one may not copy
the "heart" of a work without the author's permission); and
4. the effect that such copying may have on the market for the original
(copying may be permitted if it is unlikely to cause economic harm the original
author).
Examples of activities that may be excused as fair use include: distributing
copies of a section of an article in class for educational purposes; providing
a quotation in a book review; and imitating a work for the purpose of parody
or social commentary.
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Question: What are the possible penalties for copyright infringement?
Answer: Under the Copyright Act, penalties for copyright infringement can include:
- an injunction against further infringement -- such as an order preventing the infringer from future copying or distribution of the copyrighted works
- impounding or destruction of infringing copies
- damages -- either actual damages and the infringer's profits, or statutory damages
- costs and attorney's fees
A copyright owner can only sue for infringement on a work whose copyright was registered with the Copyright Office, and can get statutory damages and attorney's fees only if the copyright registration was filed before infringement or within three months of first publication. (17 U.S.C. 411 and 412)
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Question: What is the Digital Millennium Copyright Act?
Answer: The DMCA, as it is known, has a number of different parts. One part is the anticircumvention provisions, which make it illegal to "circumvent" a technological measure protecting access to or copying of a copyrighted work (see Anticircumvention (DMCA)). Another part gives web hosts and Internet service providers a "safe harbor" from copyright infringement claims if they implement certain notice and takedown procedures (see DMCA Safe Harbor).
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Question: What is a civil lawsuit?
Answer: In a civil lawsuit, the victim brings a case for money damages against the offender or a third party for causing physical or emotional injuries. Regardless of the outcome of any criminal prosecution, or even if there was no prosecution, crime victims can file civil lawsuits against offenders and other responsible parties. The person who starts the lawsuit is called the plaintiff,and the person or entity against whom the case is brought is called the defendant. Unlike a criminal case, in which the central question is whether the offender is guilty of the crime, in a civil lawsuit, the question is whether an offender or a third party is responsible for the injuries suffered In a civil suit, unlike a criminal prosecution, the plaintiff is responsible for the cost of litigation. Most attorneys handle victim cases on a contingency basis, which means that the attorney fee is deducted from the final award. This allows individuals to have access to the civil justice system without the need to finance the case themselves. If the case is not successful, the victim usually pays nothing. In a civil suit, the attorney directly represents the victim?s interests and the victim has greater control in case decision-making than in a criminal prosecution. A civil lawsuit is different from the compensation available from the Attorney General's Victim Compensation Division.
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Question: What is libel?
Answer: Libel is a false statement of fact expressed in a fixed medium, usually writing but also a picture, sign, or electronic broadcast. See What are the elements of a defamation claim?
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