3 Copyright Questions

[Thing 1]

Hi All.

I have 3 questions about copyright protection and violation of that protection. I did a cursory search of the SD and did not find the answers. I apologize if they have already been discussed. Here they are in no particular order:

Are out of print books still protected? Since I cannot just go buy a copy of the book, is it legal to go to the library and photocopy all of the pages for personal use?

Is it legal to make copies of software originally sold by a company that is no longer in business? Even if you sold them, the company is not losing anything as they no longer exist.

Is it legal to sell books at a garage sale? If someone buys my old copy of The Stand then they will not be buying it from a bookstore which is costing the publisher money.

Thanks for any input,

John

[BobT]

Without getting too detailed I would answer your questions

1) Yes
2) No
3) Yes

[RealityChuck]

Bob has it right, but here are the issues involved.

1. Out of print does not mean out of copyright. You need permission to make a copy (since copyright is the right to make copies and you don't have permission. Some out-of-print books are in public domain (the cutoff date is around 1923), but you'd have to check to be sure.

2. Financial gain or loss has nothing to do with copyright protection. You need permission to make copies. It doesn't matter if the company is out of business (other than making it harder to determine who to ask for permission).

3. Copyright is the right to make copies. Since you're not making a copy of a book you're selling at the garage sale, you can dispose of it any way you wish. You just can't reproduce it.

[AWB]

A copyright story:

One company I worked for designs ships. One of their pride and joys was the SS Savannah, the one and only nuclear powered commercial vessel. (It's now rusting away near Norfolk, VA, because it wasn't economical to keep operational.)

Anyway, my boss wanted a computer image of the Savannah. We had a glossy overhead picture of it, so I took it to Kinko's to have scanned. They told me no way. They pointed to the back, where the photographic firm's name and address were stamped, indicating that it was their copyrighted material. (This address was so old that it didn't have a ZIP code.)

So I call NYC looking for this firm to get permission to scan the photo. They must've gone out of business. Even so, I couldn't get it scanned. I ended up skirting the issue by photocopying it and having that scanned. (This relieved Kinko's of responsibility for copying a copyrighted photo.)

So copyrights protect the material, even if the author/photographer/etc. isn't around to need protecting.

[Thing 1]

BobT- thanks

Reality Chuck- This clears things up a bit. Thanks for the information.

John

[handy]

Kinkos is really picky. If you put a dollar on their copier, itll print as pure black. But we have many other stores that would be happy to copy that ship pick & copy money too. I know, cause I asked them, not that I wanted a copy of money that is.

[Fillet]

Actually, if you are making a copy of an out-of-print (and therefore hard-to-obtain) item, for personal use or for limited distribution in a classroom setting, you don't need to request permission. What you can't do is make 500 copies and sell them, or use without permission an excerpt (illustration or extensive text) in another book or article that will be sold (to journal subscribers or book purchasers, for example).

Title 17, U.S. Code, Section 107(a) reads as follows:

...[T]he 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.

By refusing to photocopy any copyrighted material, Kinko's is merely covering its corporate derriere, since it can't expect its employees to make the distinction between commonly available (if obscure) material and material that is out of print (and difficult to obtain).

2. Financial gain or loss has nothing to do with copyright protection. You need permission to make copies. It doesn't matter if the company is out of business (other than making it harder to determine who to ask for permission).

Finances have EVERYTHING to do with copyright - the copyright holder has the sole right to financial gain from the sale/distribution of the work, and if you are profiting from the unauthorized sale or re-distribution of copyrighted material you are depriving the copyright holder of their due. AUTHORIZED sale or re-distribution (i.e., you have permission) is a different beast, and has to be arrived at through negotiation with the copyright holder.

3. Copyright is the right to make copies. Since you're not making a copy of a book you're selling at the garage sale, you can dispose of it any way you wish. You just can't reproduce it.

As noted above, copyright is not simply about the right to make copies. But you can sell your old books at a garage sale with impunity.

Title 17, U.S. Code, Section 109(a) states:

Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

However, software is a different matter. 17 U.S.C. Section 109(b) states:

...unless authorized by ... the owner of copyright in a computer program (including any tape, disk, or other medium embodying such program), and in the case of a sound recording in the musical works embodied therein, neither the owner of a particular phonorecord nor any person in possession of a particular copy of a computer program (including any tape, disk, or other medium embodying such program), may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord or computer program (including any tape, disk, or other medium embodying such program) by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending.

[RealityChuck]

Finances have EVERYTHING to do with copyright - the copyright holder has the sole right to financial gain from the sale/distribution of the work, and if you are profiting from the unauthorized sale or re-distribution of copyrighted material you are depriving the copyright holder of their due. AUTHORIZED sale or re-distribution (i.e., you have permission) is a different beast, and has to be arrived at through negotiation with the copyright holder.

Ah, but copyright law makes no mention of whether someone profits from the copies or not. So you can't argue that "I'm not making any money from the copies" or even "I'm not distributing the work." Whether you are profiting, or the fact that the copyright holder is out of business and thus unable to profit is irrelevant.

copyright is not simply about the right to make copies.

The basis of copyright is determining who has the right to make copies. That can be a complex matter, of course.

[HorseloverFat]

It could completely within 'fair use' to copy an entire book for reference purposes. Luckily, or unluckily depending on the outcome fair use of copyright has no fast or hard rules, so you could concievably copy the entire thing. Stanford has a decent page on copyrights and lists these as important criteria for determining copytight violations

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  
• the nature of the copyrighted work;
  
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and
  
• the effect of the use upon the potential market for or value of the copyrighted work.

As to selling or redistributing software that isn't for sale anymore, well unless you're doing it for research or educational purposes its probably illegal. As others have pointed out, out of business does not equal public domain. Though that could help your defense in court.

As to selling a book, sure its legal because you're selling your copy. Now software manufacturers are most happy when they're trying to take away consumer rights by not allowing the sale of the software you paid for. In fact Microsoft is pulling MS products from Ebay.

Software companies would rather have you believe that you didn't actually buy a product at all with you money but bought a licensing agreement. Laws like UCITA when passed, will give software companies all sorts of ridiculous rights like remote shut off of your software without warning if they suspect you violated some agreement or law. Scary.

The stanford copyright homepage is [url="http://fairuse.stanford.edu/"]here.[url]

[Fillet]

Ah, but copyright law makes no mention of whether someone profits from the copies or not.

Hmm, I think it's implicit in the definition of the scope of copyright. 17 USC Sec. 106 states:

Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. [emphasis mine]

If the copyright holder has sole right to distribute copies for sale, etc., doesn't that suggest that they have the sole right to profit? Unless of course they have negotiated an agreement with a distributor of some sort, in which case the copyright owner is entitled to royalties. Title 37 of the Code of Federal Regulations discusses various royalty-related regulations. [Side note: The General Printing Office has all this stuff and more on line, accessible for free: http://www.access.gpo.gov/su_docs/alphabet.html ]

Ownership of a copyright is a complex affair, as you pointed out. In the case of a company that's gone out of business while a copyright was still in effect, the copyright was probably passed on to someone or some other entity; finding out who/what that is could be a royal pain.