Copyright and copy ethics and the public culture that has evolved around copying in the internet era are an enormously complex, overlapping, frequently self-contradictory subject. Very fascinating to me since I have been involved in blogging and similar web stuff (sometimes for myself, sometimes commercially) since about 2002.
Obviously what I'm going to say here conveys my own impressions of the law (in the US where I live, it's NOT the same the world around) and my own ethical guidelines. I hasten to add that if I say anything that contradicts anything Paul said, my words are as air (and
should be ignored) with respect to the use of stuff here on Permies, where Paul's will governs and my own philosophies are irrelevant. Paul has answered the question before the house; I'm just bloviating because the topic fascinates me.
So. First there's the law. All copyright law in the US stems from the US Consitution providing for a copyright law "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors...the exclusive Right to their respective Writings." Over the years Congress has extended "limited times" to mean "
unlimited times" by the craven expedient of extending the statutory "limited" time period by another twenty years every time Disney is about to lose copyright on Mickey
Mouse. (Oversimplification, but surprisingly descriptive for all that.)
The copyright law in the US
has an exception for "fair use" but to determine if reposting something is "fair use" there's a vague balancing that only courts can do that requires evaluating four different factors at once and balancing them all together. Basically it's a rule written to be interpreted only by judges, that allows those judges infinite discretion without providing much hope for normal people to guess how a court would rule in any given case. Necessarily, most people who must rely on "fair use" for their own legal protection end up using a "rule of thumb" that leaves them using quite a bit less than is
actually fair, just to be safe. I interpret much of what Paul wrote above to be his own personal condensation of the fair use rules. IMO it's a pretty
reasonable condensation -- a bit overcautious as people with something to lose necessarily must be -- but my opinion doesn't matter a whit anyway.
So that's the law. You can make certain very limited "fair uses" of copyrighted material, but you can't reasonably expect to guess in advance what a court would consider fair. So people who have to decide use heuristics like Paul's, or the "no more than x words" that many newspapers use, to try to stay safely within the "fair use"
fence without being able to see where the
fence is.
But you know what? Ethically speaking, the law here is an ass. Worse, it's a pre-internet ass.
Not only has Congress abandoned the "limited times" restriction that the Constitution envisioned, but nothing in copyright law comprehends the economy of attention and links that makes the Internet work.
There has been one substantial attempt to update the copyright laws for the internet age. It's called the Digital Millennium Copyright Act, and it does some small good for site owners (people like Paul) by letting them off the hook (sometimes, to an extent, many exceptions may apply) when users like us here at Permies get out of hand and go wild posting copyrighted materials. Basically, a site owner has some (but never
enough) legal protection if a copyright owner complains, because in order to sue for damages, the copyright owner first has to demand that the material be taken down, and if the site owner does that, no damages can be recovered and so (with luck) there will be no suit. However, to get the best protection from this, the site owner has to take a sort of hands-off see-no-evil "I never edit anything, it's all user-generated content" approach. (That's one reason why so many internet sites are cesspools; it's literally
safer if the site owner does no moderation and never deletes anything that seems illegal or gross.) On a well-curated site with good and active moderation that's trying to do the right thing about copyright, ironically the DCMA "notice and take down" protections do the site owner a lot less good than they do on a stolen-porn-tube site where it's all copyright violations, all the time. Because now it's not 100% user-generated content, you nasty website owner; you edited and moderated it so you can't hide behind your thieving users and point the finger at them.
Meanwhile, here on the internet in the 21st century, every time we want to share something nifty, we each of us must grapple with the question of how to do it, while avoiding copyright violations or (better still) by avoiding making the copyright owner unhappy. (A happy content owner doesn't care about your copyright violations; they love your or feel flattered by you or simply like you, but in no case do they hate you so much they begin to feel motivated to spend a hundred thousand bucks hiring a lawyer to blow up your life.)
My own personal strategem for this is to always look at who benefits from something I want to post. If the copyright owner exists and is on the internet and has any sort of economic interest going whatsoever, it's very often the case that they will value an inbound link and some traffic to whatever it is that makes them money. (Versions of this also apply to people with non-profit agendas, whether political or philosophical or environmental or whatever.) If I want to post their stuff, I think very hard about "what do I have to do so that they will be
delighted by the post instead of
angry about the post?"
The first step to delighting the copyright owner is not to post too much. If they've got the thing on a website where they want people to visit, then you should post just enough to (a) satisfy your own purpose in posting, whatever it is (and it should not be to make money in competition with the copyright owner) and (b) entice people to follow your link to the owner's website where they can see the rest. It's important here not to post so much of the whole of the owner's work that they will feel like you "copied" the thing rather than using a nice fair blurb to
compliment the thing.
The second step to delighting the copyright owner is to advance the goals and interests of the copyright owner, when these are discernable. Traffic and positive web attention to their sites and projects is usually enough to do this. Saying nice things about them and their work can help too. Posting from within the context of an allied site that's trying to advance the same or similar goals as the copyright owner tends to be viewed positively by content owners as well.
The third step is to make sure that wherever you use (post) somebody else's stuff, you do so in the context of an added-value situation. Don't be a leach or a parasite; don't post nothing of your own, while spamming other people's stuff into the aether. Add your commentary, make new
art, be sure you are interesting or helpful or enthusiastic. Most people are flattered if a little piece of their stuff gets used to help build another obviously beautiful thing. They aren't flattered if they feel like you're stealing their stuff to be a parasite and make your own money off their stuff while doing nothing beautiful or useful with it.
The fourth step is to know the owner as best as you can. Some people are just irrational about copyright. They are like Daffy Duck screaming
MINE MINE MINE! and they hate to have even one word copied. If they know about fair use, they hate that too. They won't be happy with an inbound link and a nice credit; they typically want to be asked in advance (which nobody on the modern internet does unless they want to make a
major, obviously too-big-to-be-fair, use) and when you ask them, they say will say "No." (And they will be rude about it.)
Avoid these people. They are nuts, or they are really old and don't "get" the internet", or they are both nuts and old. Fortunately if they have web sites at all, they usually have all sorts of dire warnings plastered on their site about not "stealing" their stuff. Humor them. Don't post their stuff. Let them languish in obscurity until they die. Go post
better stuff from somebody nicer who will "get" what you are doing and will appreciate your efforts on their behalf to promote them in this new information economy.
Complicating all of this is "orphan content." This is the stuff that doesn't have a practical, actual, alive, "I made that"-saying owner. A ton of stuff that got published between the 1930s and the 1980s falls into this category. It's not public domain, but the "owner" is some third-generation-heir of the long-dead author. The work was in a
magazine and the author sold all rights to the publisher, who got acquired in 1946 by another publisher, who went bankrupt in 1971, at which time all the assets got sold at auction, but nobody remembered in 1971 that the work even existed so the bankruptcy auction winner didn't know they came to own it, and besides, they then died and the copyright (an asset of the estate that nobody told the trustee about) was inherited by operation of law by their seven-year-old nephew and only surviving heir. That heir may still be alive, but if he knows about the work at all, he probably assumes the copyright expired long ago (they used to expire, if not renewed, back before the 1980s, but it's non-trivial, expensive, and sometimes impossible to check if they got renewed.)
What are the ethics of posting and using orphan content? I personally consider it a mitzvah. There's nothing I love more than surfacing ancient forgotten knowledge or
art by making it findable on the internet and putting it in front of the eyes of someone who will value it. But too often, there's no way to know if you're working with genuinely public domain stuff where all copyrights have expired or if you're working with "dead assets" that are subject to a copyright, but where the copyright owner is unknown, unknowing, and forever undiscoverable. Fortunately there's no difference as a practical matter, but that comes with a terrible risk: if you guess wrong, and there actually is a living knowing owner, you may piss him or her off. And if they are rich and vindictive as well as pissed, well, hello life-destroying lawsuit.
So here, the name of the game is to be right. (Or, as a close second, be judgement-proof. But permies like owning
land, so that can be hard.)
If you're good at all of this, you'll eventually develop an eye for the sorts of content you can "get away with" posting, because nobody owns it or the owner doesn't know they own it, or because you can delight the owner by posting it. And you'll also develop an eye for the sorts of content you shouldn't touch with somebody else's twenty foot pole. Only I don't like the "get away with" framing, because if you're doing this right, you're doing
good stuff. You're helping the owner, you're making the owner happy, or you're using and sharing stuff where the owner can't be found or doesn't exist. You're not "getting away with" something, you're making the world a better place. And if you're doing that? Then for my money, the actual copyright law can go hang. It's old and it's stupid and it's wholly owned by Disney and it's no longer promoting the progress of science and the useful arts, which was its only excuse for existing in the first place.
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