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[QnA]

Copyright law seems to be a source of frustration for me. I don't want to break the law in any way - not just getting caught for it. So, I'd like to have a clear answer on what can and can't be used and in what way.

Some examples (I'll probably provide more later):
On my school debate team we are encouraged (more like must) to "cut cards", which means copy-and-pasting articles and using them in the debate. Is this in any way illegal?
Me and my friend send letters back-and-forth and I was wondering if I would be legal to send maps/information found online.
Does copyright law allow the author to pick-and-choose to permit certain types of use of his work?

Thanks for your help!

P.S. I live in the U.S.

[Zonath]

Well, let's assume a few things to start with.  First, let's assume that the articles you're cutting and pasting onto notecards are protected by copyrights which are still valid, since there can't be copyright infringement without a copyright.

Let's also assume that you do something which could potentially constitute an infringement of one of the exclusive rights copyright holders have in their works.  Since we're talking about cutting and pasting articles (and, if I remember correctly from my friends who were on debate team, this would be cutting and pasting individual sections and quotations from the articles rather than simply taking the entire article and pasting it onto a single card), let's assume that your cutting and pasting would technically constitute a derivative work, since at least one court has held that cutting artwork out of a book and putting it on a laminated ceramic tile would constitute a derivative (Mirage Editions v. Albuquerque A.R.T., 856 F.2d 1341 (1988)), and your use of the articles would appear to be an even more transformative use of the works.  At the same time, another court has held that a similar practice of taking an entire work (rather than pages out of a book) and laminating them onto tiles would not be seen as a derivative work (Lee v. A.R.T. Co., 125 F.3d 580 (1997)), but since you're probably not pasting an entire article onto a note card, we'll assume that the court would take a course which would tend to find a derivative work.

Now, since there's a prima facie case of copyright infringement, since you've possibly both created a derivative work as well as possibly created a copy (unless you're cutting up originals of magazines and newspapers -- my debate team friends did a bit of both, since some of them had subscriptions to Time, Newsweek, etc., and at the same time the school library frowned upon students cutting pages out of the magazine collection), we'd need to go on to figure out whether or not you might have a defense.  Your most likely defense to something like this will be fair use.

Fair use is a statutory limitation on the exclusive rights enjoyed by copyright owners.  So, if there is a valid fair use defense, there is no copyright infringement.  Since this would be your central defense in an infringement lawsuit, let's look at the entirety of 17 USC § 107:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Now unfortunately, the cases which really fully discuss fair use are widely-varied and probably a bit more nuanced than we really want to get into here, but I would tend to think that your use would fit rather comfortably within the explicitly-stated purposes of the fair use exception (scholarship, research, criticism...), so it wouldn't be that difficult to prove a fair use in your case.  After all, you're preparing the cards for a nonprofit, academic use, you're probably not retelling the entire article, and your use is unlikely to have much market impact one way or the other on these works.  If you really want to get a detailed analysis of what fair use really means, just go to Google Scholar and type "fair use" into the search bar, and you'll have enough material to occupy your free time for quite awhile.

(truncated due to character limits and continued in next post)

[Zonath]

As far as sending materials found online in letters, you'd need to follow much of the same analysis in regard to fair use, including identifying the purpose and character of the use, the amount used, and so on.  Since you didn't go very much into the facts (like whether or not the maps are normally only accessible through a subscription service, whether or not the letters are being used for scholarship or research, whether or not you're using the entirety of a work, and so on), there's not much to go on here.  I'd just say that it could potentially be infringement, and that likelihood goes up the further you stray from the stated purposes of fair use in § 107 (criticism, comment, news reporting, etc...).

And copyright law does indeed allow an author to pick and choose to permit certain types of uses of his work, as well as who may or may not use the work in those ways.  There really isn't an argument in copyright law that one user is being permitted to write a translation of the work into Farsi free of charge, so you should be able to do similar for Bantu; the owner of the copyright is the final word on whether or not he will delegate any of the exclusive rights granted to him in 17 USC § 106 (and limited by 17 USC § 107 - § 122). 

[QnA]

So you don't know that you have broken the law until you've been convicted of it in court? I don't want to break the law whether I get caught or not. Copyright law seems a lot more strict than I thought it was. It seems that I won't be able to do much of my homework since it's either copying from the book or from copied material. Unless, of course, the fair use guideline regarding "educational or non-profit use" always applies.

Also, does the author of a product have to sign some kind of legal material to set conditions on what uses are permissible for it to be applicable? I found a website that allows educational and non-profit use as long as there is citations given.

Thanks for the response!

[Zonath]

That's a bit of a cynical view.  While it's true that fair use is a nuanced defense, academic and research use of copyrighted materials is usually well within the boundaries of fair use (so you're not getting out of your homework by telling your teacher that the assignment is prohibited by Title 17 of the US Code).  Obviously, there are even situations where an arguably educational use would not be held to be fair use (such as a professor copying an entire textbook for 199 students), but I tend to think that common sense should be fairly sufficient there in determining what may or may not constitute a fair use, and most academic plagiarism policies tend to be more restrictive than fair use, in any event (copyright, for example, does not require attribution as a condition of finding fair use).

And the default under the copyright law is that the author reserves all right to his or her work, and using that work in contravention of those rights without an explicit grant of permission from the copyright owner is forbidden.  To illustrate this, consider this post that I'm currently writing.  The moment that my words are 'fixed in a tangible medium of expression', they're protected by copyright, and I can legally pursue anyone who copies, distributes, adapts, or displays or performs my post publicly.

Now, obviously, this right of mine to sue you for copying my work is bounded by reason -- since this is a public forum that I'm posting to, it'd be absurd to think that the users of this forum could be sued simply for clicking on the link to open this message.  So, it can probably be safely assumed that I'm giving permission, by posting this here, for the administrators of this forum to retain a copy of this message in their long-term disk storage and to distribute the work through the Internet.  It can also be safely assumed that the regular users who come on here have permission to open up this message and read it, even if without that permission, that same act would be prohibited and would constitute copyright infringement.  These are implied licenses.

But let's say that you take this post and compile it along with several other posts you find online into a book and then sell that book.  In this case, you've gone well-beyond what could reasonably be assumed to be my implied license to you, and you have no explicit license from me to add my post to a book, so without you having one of the defenses to infringement (the most prominent of which is fair use), you'd be liable for copyright infringement.  If you don't have permission from the copyright owner, you simply cannot violate any of the rights given to the copyright owner by 17 USC § 106.  It simply isn't required that I say "no" to your particular use for there to be infringement, or that I write "all rights reserved" on my post next to a copyright notice, or anything like that.  As long as I hold a copyright in my work, any unauthorized use which does not fit within one of the defenses to copyright infringement is an infringement.

So basic rule of thumb here is that material found on the Internet should generally be left where it is and accessed only in ways in which the copyright holder obviously intends for you to access the material.  Once you start saving permanent copies of articles or you start using material you find online on your own website, you start getting into the realm of copyright infringement pretty quickly.

And one point about the website you found which allows educational or non-profit uses with proper citation:  This may be allowed anyhow by copyright law, since fair use would probably apply, so they may not actually have the leverage to force you to cite their website at all, and that 'license' is worth the paper it's printed on.  At the same time, some of those terms and conditions can operate in contract law rather than copyright law, where you can actually bargain away a right you might otherwise have to use that material via fair use.  Of course, that sort of contract isn't what you're asking about, but I'll just leave it out there.

[QnA]

Thanks once again for the response!

So there's no clear-cut way to tell definitively whether something is fair use or not? I often use information for personal and educational (school, debate team, etc.) purposes quite often. I want to be able to know if I'm infringing copyright or not while doing these.

Also, is basing projects, creations, etc. off copyrighted material infringement? For an example, I have a unique hobby: conlanging (I make languages) and I often will find out linguistics information and ideas an put them into my language. Would that be infringement?

Once again, thanks for the help!

[Zonath]

Copyright does not protect ideas, systems, information, inventions, or anything else that isn't expression which has been fixed in a tangible medium.

One well-regarded case which you might read concerning this is Baker v. Selden, 101 U.S. 99 (1880), in which the Supreme Court decided a case between the makers of two ledger books, where it was fairly obvious that the defendant's book copied the bookkeeping system found in the plaintiff's book.  While the Supreme Court explained that the essay outlining the system for bookeeping which prefaced the Plaintiff's book of ledger forms was undoubtedly the protected by copyright, all the Defendant had really copied was the system itself in printing his own ledger forms to be used with that system.  The Court explained that the system itself was not protected by copyright, and as such, the ledger forms which were necessary to the use of that system were also not protected.

Anyhow, it's a good read, and one of the cases taught in law school to explain what we know as the idea-expression dichotomy, which is the principle that copyright law only really protects expression, and not the bare idea or information underlying the expression. 

So, for example, if you're using 'linguistic ideas' or 'linguistics information' in your language, and not any particular expression of that information, then you're almost certainly safe.  For example, if you read a paper on how allative cases are constructed in the Basque language, and you decide that you'd like to include something similar in your own constructed language, you'd be able to do so, since you wouldn't really be using anything expressive.  On the other hand, there might be some argument that a constructed language such as Quenya or Klingon could be said to be expressive enough to qualify for copyright protection (and I honestly don't know the answer to whether or not they would qualify, but I have heard that there's some debate over the issue), and so one might need to exercise some caution in creating something identifiably derivative from either.

Keeping with Tolkien a bit: You can write stories about elves, wizards, dwarves, and such without having to worry about infringing the copyright in J.R.R. Tolkien's works, but if you write a story which actually uses Tolkien's characters and extensively quotes from his works, you could find yourself in some hot water.

And I would say that, aside from the cases in which a court has definitively ruled that there is fair use (such as in recording a copy of a television broadcast so as to be able to view that broadcast later), the fair use doctrine can be somewhat tough to nail down, but it's generally thought to be pretty safe to take examples from those cases and analogize to similar proposed uses.  So, since Betamax VCR recording of broadcast television were deemed legal in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), it's been widely agreed that the same holds true for other recording formats which are to be used for personal or household purposes, such as DVRs.

Finally, I'd say that your uses are most likely fair use, and that's assuming your use is actually copying or creating derivative works based on some copyrightable expression, and not just copying some idea or information.  The fair use exception was carved out of copyright explicitly in order to allow critical, educational, and research uses of copyrighted works, and the courts are in general very deferential to the view that those types of uses are almost certain to be fair use (since they're spelled out right in the statute). 

[QnA]

Thank you once again for your response! I hope I'm not bothering you too much. So ideas, facts, etc. are not protected by law. I could tell my friend these great ideas in a philosophy book I read without infringing copyright or having to give the full citation?

What about cases where there actually is copying? For example, I was given a reading guide for a textbook recently in which I copied the glossary for definitions and some word usage from the book (with quotation marks) and I rather certain that my teacher would be fine with it. Is that legal?

Once again, thanks for the help! You certainly seem well-versed in the topic.

EDIT: Also, what is the difference between the expression of an idea and the idea itself?

[Kaitlin]

So ideas, facts, etc. are not protected by law.

Be careful how you phrase that.  Ideas are not protected by copyright law.  Once an idea for an invention is out of the head and put to use in making an invention, however, that idea--insofar as it is put to practical use--may eligible for patent protection (or, depending on circumstances, trade secret law).  The law won't stop people from thinking the idea, of course, but if the idea is for a new, non-obvious, useful machine and the inventor applies for and gets a patent, s/he gets a monopoly on the right to make, use, sell, or import that invention for about two decades--after which it enters the public domain.

EDIT: Also, what is the difference between the expression of an idea and the idea itself?

Expression of an idea is how you express it, that is, how you put it into words, paint it, sculpt it, sing it, etc.
It's not the content of what you say or write, but the words you choose and how you arrange those words that is protected.

So paraphrasing a short paragraph would usually not be considered to constitute copying, since you're using your own, different words and word order, even if you express the same idea.
By contrast, I believe that if someone were to do a sentence by sentence paraphrase of multiple paragraphs from a copyrighted work, presenting those paraphrased sentences in the same order within paragraphs, and/or the paragraphs in exactly the same order, that might run into copyright problems.  This is because although they might not be copying of each and every word in exactly the same order, they would still be doing a blow by blow copy of the broader structure of how the sentences and paragraphs are woven together to express the idea. 

[Zonath]

What about cases where there actually is copying? For example, I was given a reading guide for a textbook recently in which I copied the glossary for definitions and some word usage from the book (with quotation marks) and I rather certain that my teacher would be fine with it. Is that legal?

I'm fairly sure that most of the examples you've given so far have more or less fallen well within the area of educational usage, and well within the bounds of fair use. I really don't know if there's anything more to be said other than the fact that pretty much everyone just assumes that those types of educational usage are fair use.  Maybe someone else could come up with a court case that would actually explicitly hit one of your examples on-point, but I don't know if you're going to find one for each and every one.

And as far as idea vs. expression goes...  Just think of it like you've got an egg in your hand.  The egg itself is an idea.   In and of itself, it's not at all copyrightable.  But write a 200-word essay describing the egg in intimate detail, or paint a picture of the egg, or take a photograph of the egg, or make a sculpture of an egg, and you've got a work of expression and a copyright.

[QnA]

@Zonath: So you can think about the idea, but that's about it?

So for school purposes it's a-ok?

[Kaitlin]

@Zonath: So you can think about the idea, but that's about it?

@QnA: Not so.
You can write about the idea, you can paint the idea, you can sculpt the idea, you can sing the idea--but however you express the idea, it must be your OWN expression, not the other guy's.  Copyright protects against copying how the idea is expressed, not against copying the idea itself. 
(Sorry I'm not Zonath, but I'm sure he'll agree.)

[QnA]

Can I use copied articles for a debate tournament? Is that fair use?

[Kaitlin]

I don't know if you'll get anyone willing to say it is absolutely and always fair use to photocopy full articles for a debate.

Nevertheless, I have a hard time picturing any one bringing a student to court for copying articles to mark up at home so that he can extract arguments or excerpt salient quotes for use in a debate, nor can I picture a court holding such activity to not be fair use.