U.S. copyright law Hypothetical facts Alice buys a hardback book from the publisher for $70. Alice makes a digital copy of the book and posts it online to an account only Alice can access. For one week, Alice rents exclusive access to the online file for one day each to Melanie, Tanya, Wanda, Tammy, Francis, Sam and Serena for $10/day per person. Question Have any copyright laws been broken? If so, which ones, specifically?
Yes So far so good. This is a copyright violation but it is probably fair use - certainly there is case law permitting a copy of a backup digital asset to be made so I don’t see why a similar argument wouldn’t work with backing up a physical book. Clear copyright violation. Alice can rent out the original under the first sale doctrine but the ‘backup’ is not so protected. It’s not fair use because it’s use is commercial, the work is a type of work the author expects to profit from, the entire work has been copied and the use is deleterious to the market i.e. the renters are less likely to buy an original - it falls foul of all four factors of the fair use test.
Choice 2 is what the writers of the license have in mind. You own the physical media on which the copy is delivered, such as a DVD or floppy disk (if there was physical media). But you do not own the copy of the software, you merely have purchased a license to use it, which may be revocable under specified circumstances. This is different from the law in the case of a book. Why you buy a book, you own a copy of the book, although you do not own the copyright to the book, and may not make additional copies. The license model was adopted by commercial software distributors for several reasons, but largely to avoid the "first sale doctrine". When you buy a copy of a copyrighted work, you have the right (under US law at least) to lend, rent, sell, or give-away that copy. You do not need the permission of the copyright holder to do any of these. Those in the commercial software business did not want customers to be able to do those things legally. By making the software subject to a license, which is a contract, they could write that license to restrict or prohibit those rights. Sellers also wanted to prohibit reverse engineering of the software, and to restrict use of the software. (For example, to limit the user to installing it on a single computer.) There was at first much dispute over the enforcability of such license agreements. But most US courts now accept them as valid and enforceable, and copyright law has been modified to take account of them. Specifically, 17 USC 109 (2)(b)(1)(A) seems to include a legislative acceptance of this rule.
My question is, because I am not making any income from the distribution of the game, would the use of the copyrighted music fall under Personal Use? There are some &quot;private use&quot; exemptions in Australian copyright law but they have some fairly narrow conditions. These exemptions are fairly narrow because the point of copyright law is not to prevent you from making money with someone else's intellectual property but to protect the other person's ability to make money with it. If Alice writes a song and Bob distributes it free of charge, Alice loses revenue. Similarly, it is Alice's right to decide whether that song should be included in a freely available open-source software product, and her right to decide whether to allow that use without charge or in exchange for a license fee.
There is no special exemption where academic work is unprotected by copyright. You can quote from academic sources to the same extent that you can copy from non-academic sources, without getting permission. In fact, it is legally impossible to tell if a source of &quot;academic&quot; versus &quot;non-academic&quot;. Attribution is not particularly relevant for copyright, what matters is permission (when required). It may be that a copyright holder will grant permission for an extensive quote provided you attribute the source, and it may be that academic publishers or authors are more willing to grant permission than other publishers / authors. On the other hand, many academic works are very expensive, so that distributing the text for free may have more &quot;effect on market&quot;, and may result in disinclination to grant permission to quote. On the third hand, such quotes are more likely to be squarely directed at the &quot;commentary&quot; motivation behind fair use law. The point here is that there isn't a special law about just academic sources.
First off, the work is almost certainly not in the public domain in the US. Works are generally copyrighted upon creation or publication, but in this case the work was probably explicitly copyrighted. The fact that a work is out of print generally has no bearing on its copyright status. US copyright law changed several times in the last century. The 1985 copyright year means the board game was probably published then, and it's since it's a Disney copyright it's a corporate work, which would give it a copyright term of 95 years, meaning that it should be covered under copyright until 2080. See this factsheet on copyright from the US Copyright office. Works Created on or after January 1, 1978 For works made for hire and anonymous and pseudonymous works, the duration of copyright is 95 years from first publication or 120 years from creation, whichever is shorter International laws will vary, but many countries adhere to the Berne Convention, which means that international laws will probably be at least similar. Either way, the work isn't very old from an intellectual property perspective. Fair use is an exception to copyright law that allows portions of copyrighted works to be used without permission or compensation in certain circumstances; academic or scholarly use is one of them. Generally, your use of the work has to be the minimum necessary amount to serve your purposes, and cannot harm the commercial value of the work. (The fact that the work is out of print may help with the latter.) The problem with fair use is that it's always determined on a case by case basis. The only way to know for sure if a particular use is fair use is to wait for the copyright holder to sue you and then make a fair use defense in court. I was going to suggest that you discuss this with the editor of your journal, but re-reading your question it looks like you're planning to publish to a personal blog rather than an academic journal. In the end, it's up to you (or your attorney, if you choose to hire one) to analyze the relevant legal concepts and rules and decide if and how much of the work to use.
Counter notices are described in 17 USC 512(g)(3). It starts with the requirement for "A physical or electronic signature of the subscriber" (and a statement under penalty of perjury...). Supposing that you can't get anywhere with finding the contributor even via a subpoena, then you're stopped there: you can't swear on behalf of someone else. Paragraph (f) also says that if a person files a false infringement claim, they become liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it but it's not immediately obvious that you would suffer damage by taking the material down (not immediately obvious doesn't mean obviously not true). A case could be made, but it's risky. In Online Policy Group v. Diebold, Diebold was hit with substantial damages basically for having made up a theory that certain email discussion was infringing when it was clearly fair use. If a person actually lies about being the copyright owner, that would probably be viewed even more dimly by the courts. Your 4th argument gives you no traction: if an infringer posts infringing material and transfers copyright on the web page, but they don't hold copyright, then that transfer mean nothing. As for the other arguments, your attorney will have to suggest an advisable course of action. S/he might advise that your evidence is so strong that you should just ignore the takedown; or that you should take the content down and then sue for damages; or take the content down and lobby your congressman for a change in the law. [Addendum] I will reiterate my recommendation to get a lawyer. I believe that under the law, the risk to you would be the situation where the person prevails in an infringement suit against you. Outside of the "mere conduit" safe harbor, you have to participate in the notice and takedown scheme in order to "stay safe" (also you have to do so quickly). You have identified a potentially huge flaw in the system. Theoretically, criminal charges of perjury and paragraph (f) damages would be enough to deter ordinary wrong-doers, provided that you can really prove that someone else is the copyright holder. But the cost of litigation is not zero and the chances of winning are not 100%. The law does assume that all parties tell the truth, indeed the law requires a "penalty of perjury" statement. Since counter-notice is also part of the legal dance, I would conclude that you do have to write yourself a counter-notice. Then if there is a suit, you have satisfied the requirements of the law.
Can a system include such information? it is surely technically possible. Would it be a violation of copyright? That depends. First of all, any such information can be included if the copyright holder has granted permission, probably in the form of a license. But in that case this question would probably not have been asked. I therefore assume that no permission has been granted. (It doesn't matter if a request was made and the answer was &quot;no&quot;, a request was made but ignored, or no request was ever made. No permission is still no permission.) The names of fictional locations are nor protected by copyright. Including, say, &quot;Rivendell&quot; or &quot;Hobbiton&quot; in the selection list for a timezone setting would not infringe the copyrights held by the Tolkien estate. But a map is a different thing. If the OS includes and can display a map of a fictional region, one that is copied from or based on a map published with the fiction, or by some third party, then that would almost surely be copyright infringement, and the copyright holder could choose to sue for infringement. S/he might choose not to sue, but that is a risky gamble to take. If this is in the US, statutory damages could be awarded, and could intheory go as high as $150,000, although they are not likely to be as high as that, that is just the maximum legal limit (per work infringed, not per copy). The standard is whatever amount the court thinks &quot;just&quot;, up to the maximum. (If proof of willful infringement is not made, the upper limit is $30,000, still a sizable sum.) If the OS designer created the map independently, using names from the fiction, but not otherwise basing it on the fiction, and in particular not imitating any map created by anyone else, then it may well not be infringement, but it would still be wise to consult a copyright lawyer. The question would be more helpful if it made clear just what would be hypothetically included in the OS, and to what extent it would be based on someone else's work. There is also the question of why someone would want to include fictional places, but that really doesn't change the legal issue.
Copyright still exists even if you don't know who owns it In this particular case, however, the copyright has expired - UK copyright lasts for 70 years after the last author passes away. For a death in 1918, copyright expired on 31 December 1998. For other cases where the author was still alive in 1940 (for this year - 2020) but has since passed, the copyright belongs to their heirs and assignees. It's possible that you don't know who that is. It's even possible that they don't know that they own it. Doesn't matter, it's still copyright protected and those people (whoever they are) can enforce their rights if they want to. When you think that everything everyone ever writes, records, photographs, paints, draws etc. will have copyright for 70 years after their death and that most of that stuff has little to no value, is usually not explicitly dealt with in a will, and their heirs will generally not think to deal with it or pass it on in their will it's no wonder the world is full of orphan works. Some copyright legislation deals with this; the UK's does. You can pay the government for a 7-year licence for orphan works. If the right's holder ever comes forward, they get the fees collected.