Intention Expressed Licenses

Many people experience copyright problems when they do not fully disclose how they are going to use information that is submitted to their site. This problem can be avoided by simply posting a statement that announces your intentions outright. Such a statement is called an expressed license. The Slide Show below contains examples of expressed licenses.
Even where there is a direct volitional act on the part of a website operator in copying copyrighted material onto its site, difficult questions relating to First Amendment and fair use rights may arise, particularly where the Web is used to facilitate free ranging discussion among participants. For example, in 1998, the Los Angeles Times and The Washington Post filed a copyright infringement lawsuit against the operator of a website called the Free Republic. The site contained news stories from dozens of sources (including the plaintiffs), posted both by the operator of the site and its users, and users were allowed to attach comments to the stories. The plaintiffs argued that, because verbatim complete copies of their news stories were often posted on the website, it was reducing traffic to their own websites on which the articles were posted, and was harming their ability to license their articles and to sell online copies of archived articles. The defendants raised defenses under the fair use doctrine and under the First Amendment. The defendants moved for summary judgment on all claims and the plaintiffs cross moved for summary judgment on the defendants' defense of fair use.

Copyright is only one piece of intellectual property historically comprising four pillars:

1. copyrights,
2. trademarks,
3. patents, and
4. trade secrets.

The first English copyright act, the 1710 Statute of Anne was the origin of U.S. copyright law. The U.S. Constitution provides the foundation for copyrights found in Article I, Sec. 8, clause 8, that states in part "Congress shall have the Power to promote the Progress of Science anduseful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respectiveWritings and Discoveries." Hence, the authors of original works of authorship have the right to preclude others from the use of those works during the limited time determined by Congress. In a significant case, Computer Assoc. Intternational versusAltai, Inc., 982 F.2d 693, 696 (2d Cir. 1992), the court stated that
the copyright law seeks to establish a delicate equilibrium. On the one hand, it affords protection to authors as an incentive to create, and, on the other, it must appropriately limit the extent of that protection so as to avoid the effects of monopolistic stagnation. In applying the federal act to new types of cases, courts must always keep this symmetry in mind.
Copyright law provides a balance between the public’s use of the work and the granting of exclusive rights to the author. In Suntrust Bank v. Houghton Mifflin Co. (2001) the court stated, "the Copyright Act promotes public access to knowledge because it provides an economic incentive for authors to publish books and disseminate ideas to the public." The exclusive rights granted to copyright owners is limited for a fixed duration, however.

This word of caution most frequently applies to affiliate sites whose republishing of product descriptions, images has come under search engine fire numerous times. In fact, it is best to anticipate manual evaluations here even if you have dodged the algorithmic sweep. The basic tenets are:

1. Do not simply republish something that is found elsewhere on the Web unless your site adds substantive value to users, and do not infringe on the copyrights or trademarks of others.
2. If you are hosting affiliate content, expect to be judged more harshly than others, as affiliates in the SERPs are one of users' top complaints about search engines.
3. Small changes such as a few comments, a clever sorting algorithm or automated tags, filtering, a line or two of text, simple mashups, or advertising do not constitute substantive value.

1. This example shows a typical expressed license. Members who post to this site retain their copyrights but give others a non-exclusive license to forward any message they post. They also give the site owner the right to archive messages.
2. A tongue-in-cheek variation on the expressed license. I reserve the right to use any email you send me that says good things about this site. If you don't want your email used this way, mark it "private and confidential."
3. Special sites require special considerations. Here are excerpts from the welcome message of a prostrate cancer site. In a case like this, the subscriber should weigh the benefits to himself and others of having personal medical information made public and archived. Adverse medical information could potentially end up in the hands of employers who might discharge employees for spurious reason, or of insurance companies who might deny coverage based on this information.

If potential misuse of information poses a serious threat, you should keep the messages you post to a Web site private. There are several private email groups. These sites are typically kept private by the mutual consent of its members. An example of a private site is eGroups.com. eGroups.com and other similar sites offer a service that allow users to set up a members-only forum for discussion. Also, when you sign up for a private site, you expressly agree not to forward or archive private messages that others might post; or, you agree to delete the identity of the author before forwarding a message.
In the next lesson, trademarks and service marks will be discussed.