Cyberspace Law..

As with a "real" course in the "real world," let's begin with a few logistical details.

Copyright law can be maddeningly vague, and copyright law online is doubly vague. We´ll often say something "might"be legal, and you might often be frustrated by it. But we have to be honest here - though copyright law is certain in some areas, it´s uncertain in others.

To get a copyright for something you´ve written, you need to do *absolutely nothing* except for writing it down.

So the e-mail you send to a friend? It´s copyrighted. (Copyright law applies to things you write electronically, even if they never end up actually "written" on a piece of paper.)

The personal Web page you´ve put up? It´s copyrighted.

At the moment, it looks like the basic rules of copyright law are pretty much the same in cyberspace as they are in the "real world." Some people have argued that this can't work -- that online copyright rules have to be very different (or perhaps shouldn't exist at all). But for now, there's no indication that either Congress or the courts are about to accept this argument.

Copyright, as we saw, generally gives the copyright owner the exclusive right to make copies of a work. Copies include electronic copies, and copyrighted works include electronic works.

But what does "copy" mean?

Copying the FACTS from someone else's work isn't considered copying. If a physicist discovers a law of nature, or a historian uncovers some facts about the past, everyone will be free to copy this information. And this is true even if they've invested years of effort into their discoveries - facts are in the public domain. But copying the *words* someone uses to express the facts, and often the *selection* and *arrangement*;of the facts, still isn't allowed.

Probably not, though your message is copyrighted, and I copied it. Your posting the message to a discussion list almost certainly gives others an "implied license" to quote it. When a copyright owner acts in such a way that *reasonable people would assume that he's allowing them to make copies*, the law interprets his conduct as creating an "implied license."

The trouble is that you can't just count the answers. Sometimes even a few YESes will lead to a finding of fair use; sometimes even a few NOes will lead to a finding of no fair use. Often even the sharpest lawyers won't be able to predict the result.

If you're copying only a LITTLE BIT - for text, this generally means no more than a couple of paragraphs here or there, but it could be less if you're copying from a work that's already quite short - your use is probably FAIR.

We wish we could tell you how much is "a little bit," but we can't - there's no bright line. If someone tells you something like "It's OK to copy 20% of a newspaper article or 10% of a scholarly article," that's a COPYRIGHT MYTH.

It doesn't much matter (A) whether you're making money from subscribers or advertisers, (B) whether you're a for-profit organization or a non-profit-one, and (C) whether your ultimate goal is the betterment of mankind or just making a quick buck. If you're making money from the copying, you should probably ask the copyright owner for a license (which might mean having to pay him for it).

NONCOMMERCIAL copying is generally fair UNLESS the text you're copying is available for money (or for free in a place that carries advertising) either online or offline.

PROBABLY UNFAIR, though you might still have an implied license. (For instance, if the message asks for help on a nonprivate matter, there might be an implied license to pass it along to others who might be able to help.)

But say the WordPerfect people sue not only you but also America Online. AOL, after all, probably has more money, and it's easier to track down (you might have, for instance, been acting anonymously). Is AOL liable?

Traditionally, copyright infringement has been a "strict liability" offense -- a copier may be liable for an infringement even if he neither knew nor had reason to know that he was acting unlawfully.

In this section, we discuss the law of privacy. By "privacy," we do not mean the constitutional "right of privacy" that the Supreme Court has held protects the right to abortion, or the right to use contraceptives We are interested in a more narrow, and traditional sense of the term. The sense that we mean is this: Privacy is the power to control what other people know about you. Better - it is the power to control the truths about you that other people know. Falsehoods are controlled through the law of defamation; privacy is concerned with your ability to hide the truth.

Your local supermarket offers a "No-coupon discount card" for customers who fill out an application. On the application, you list your name, your sex, your income, your employment, and the company gives you a card. Using the card, you then make purchases for the next year. The supermarket then compiles the data about your purchases, and sells it to marketers. You have not been notified that they intend to use the information like this; nor have you explicitly consented to this use.

On a local university network, users can read USENET news stories - stories posted on the USENET bulletin boards by users from across the world. The stories range from discussions of technical material about computer operating systems, to highly controversial political discussions, or to discussions about sexuality. Imagine now that network users can use a simple command to list all other users logged onto the system at that time, as well as what those users are doing. If the users are reading news stories from the USENET new server, then the command will report to the users what news stories they are reading.

So far we have discussed privacy protections against invasions by private actors. We turn now to invasions by the government. When the government is the snoop, then the protections of the Fourth Amendment kick in.

As we saw in the previous post, Justice Brandeis argued in a famous dissenting opinion that in order to preserve the protections of privacy embodied in the Fourth Amendment, the constitution must be viewed - =ECupdated=EE - to account for changing technology.

The government can't tap my phone without a warrant, which means the police must get the permission of a judge - showing that they have probably cause to believe a crime is being committed -- before they can invade my privacy. But do the police have to get permission from a judge before they start recording all the telephone numbers that I dial? In a case called Smith v. Maryland, the Supreme Court said no. Pen registers, as they were then called, recording the numbers dialed on a telephone, recorded information the user had "voluntarily made public." Because the individual had given up this number to the telephone company, she could not complain when the telephone company gave it up to the police. What the individual voluntarily makes public he has no right to control.

Can the government read my email? Can my employer? Can the government, through the internet, try to get access to my computer and scan the contents of my disk? Can my neighbor?

In our last message we described 4 Sysop-specific exceptions to the protections against the "interception" of electronic communications that the Electronic Communication Privacy Act (ECPA) provides. In this message, we describe some more general exceptions, that in operation, might sweep quite broadly.

We all have heard about hackers - computer experts who have used their power to gain access to systems that they were not authorized to access. Most hackers are quite harmless. But harmlessness aside, hacking is a crime. ECPA, as well as other federal statutes (the Computer Fraud and Abuse Act in particular) make it a crime. Our focus here is ECPA: Under chapter 121 of ECPA, it is a crime to gain "unauthorized access" to a stored communications on a computer system.

The most significant invasions of our privacy probably don't come from the government; they come from ordinary people (or not so ordinary people) trying to snoop into our lives. Whether businesses, or former lovers, these are people who are trying to find out something that we may not want them to know.

When you enter a store to buy a magazine, who you are, as well as the attributes of who you are, are public. The cashier can see what you look like, maybe a video has recorded your purchase. The cashier may not know your name, but it is the nature of real world transactions that they are public like this. If you entered the store wearing a mask, you would be treated very differently. Or if you tried to hide your face from the video, people would be suspicious.

The critical question with both pseudonymity and anonymity is traceability. Can one find out who sent the message? On a service like AOL, the answer is yes. Whatever screen name you may have chosen, a message can be traced back to the account owner. Users of the system may not be able to trace back to the original owner - on AOL, again, you get to choose whether others know to whom a screen name is attached - but the system operators can trace the message sent from an AOL account back to the account owner.

What's the difference? In one sense, there is no difference at all. People no less expect their letters to be private than their email. They no less feel a violation if their telephone conversations are recorded than if their personal email is perused. But from a legal perspective, the difference is clear: As we have said a number of times so far, the law has not caught up with the technology, nor with our sense of privacy in the technology.

We have seen that copyright law does not, generally speaking, cover individual words or short phrases. So, for example, the Kraft Corporation cannot protect, under *copyright* law, the word "velveeta"; it can't, that is, claim that you are infringing its copyright in the word "velveeta" if you use the word any way that you'd like - you can call your next novel (or your Web page) "The Velveeta Connection," if you'd like, or put "Better than Velveeta" in you .sig file, or even call the cheese that you sell "velveeta," and there's nothing that Kraft can do *under copyright law* to stop you.

The answer is - probably yes, at least once you start using it in connection with goods or services - that is, once you start putting it on copies of the newsletter that you distribute. Your design, in other words, *becomes* a trademark (if it really is distinctive and has not been used in a confusingly similar way by someone else) when - but only when - you start to *use* it as a trademark.

Well, as we lawyers are fond of saying, that depends. It depends mostly on what kind of use you are making of the other person's trademark. Generally speaking, you cannot use another person's trademark if that use would confuse the reasonable consumer about the identity of goods or services associated with that trademark. So, for example, you are *not* infringing anyone's trademark when you:

But what about your use of someone else's mark? If you refer to a trademark that is owned by someone else, do you have to put the "tm" designation next to the trademark? If you are advertising your product as being "better than Lotus 1-2-3," do you have to write "better than Lotus 1-2-3 [tm]"? Or do you at least have to put a little notice that says "Lotus 1- 2-3 is a trademark belonging to Lotus Development Inc."?

Only one case has been decided thus far, in which a court ordered the Internet Engineering Group to give up the "www.candyland.com" address (which they were using for something called "Club Love") after a complaint by Hasbro, Inc. (manufacturers of the children's game "Candyland")