As a person who is interested in copyright law and how it impacts creators of all size, I read a lost of mainstream media reports on the subject.
While much of the reporting I see is at least reasonably good, many articles that simply make me want to scream in frustration as they simply get the facts about copyright completely wrong.
Though there are literally too many mistakes to count, I keep seeing the same few mistakes made over and over. So, as a service to my friends in the mainstream media, here is my top 4 mistakes that the MSM makes regarding copyright law when they are covering it.
4. A Takedown or Cease and Desist is Not a Lawsuit
Whenever there is a newsworthy copyright dispute that involves a DMCA takedown or a cease and desist letter being sent out, especially if it is controversial, at least one reporter takes it too far and says that the person was “sued” and not merely having the work removed or requesting it to be removed.
A DMCA notice and cease and desist letter involves little more than filing a notice, it does not require filing paperwork with a court or going through the motions of a lawsuit. Also, one does not receive damages from a mere notice.
Granted, many notices and cease and desist letters heavily threaten lawsuits, but one is not “sued” until the case is filed in a court, an important distinction, especially considering the majority of such notices never make it that far.
3. Copyright is, Usually, Not a Criminal Matter
Though it might seem to be a minor difference, it is a pretty important one in terms of the results to the defendant. Though there is a such thing as criminal copyright infirngement, it is rarely applied and nearly all copyright cases are civil matters. This means copyright infringers are usually not “convicted”, “sentenced”, etc. They are instead, “found liable” or “found to be infringing”. Likewise, damages are not the same as fines.
This one could actually be a serious mistake as saying (or at least implying) someone was convicted of a crime when they were not can have serious libel implications if someone wished to pursue it. Still, it is a subtle mistake that few others will notice, but it certainly is one that can and should be avoided.
2. Fair Use is Not a Right
This one is often just a difference in language but it is worth noting that fair use is not a right, it is a defense against a copyright infringement suit. Whenever reporters talk about someone asserting their right to fair use, it is somewhat misleading.
I don’t usually get too upset about this one as it is a language difference and there are many misnomers in copyright law that are well-tolerated, but it is a somewhat risky one as it gives people an impression that fair use is far more protective and expansive than it really is.
1. Trademarks and Patents are Not Copyright
This is one of the most common mistakes made and it is one of the most frustrating for me personally as it ruins my alerts and newsfeeds. Copyright, trademark and patent are three different, though at times overlapping, areas of IP law.
Yet, every time two companies get into a dispute over their names, such as the recent IHOP v. IHOP story, at least some of the reporters are inclined to say it is a copyright issue when the issue is clearly a trademark one. Copyright does not protect names, slogans, titles or similar works though they can be protected under trademark law if applicable.
Sometimes this is caused by lawsuits that sue for copyright infringement even when it doesn’t apply, usually though it is a reporter not understanding the difference between the three areas of the law and not reading the complaint thoroughly.
In the end, most of these mistakes are fairly minor, other than potential libel issues in some cases, but they are annoying and they do feed a great deal of the misunderstandings and misinformation that exist around copyright law.
As journalists, one would expect them to be very familiar with the law and have a firm grasp of how it works, both as content creators and as people who use copyrighted works in their reporting. However, it is very clear that many do not.
So to the reporters doing good work in this area, and that includes many blogs and non-MSM sites, keep up the good work and to the reporters getting it wrong, it may be time for quick refresher in media law.