bk!

This is in response to a question I received at BarCampBoston2:

At what point should you start worrying about copyrights and trademarks? High school student doodling in her math notebook = no worries: Artist doodling comics for the NYTimes = should be thinking about it, but what about in between?

The short answer is that more and more you do have to be worried. Let me make a bit of an analogy. Everyone has to follow other legal norms, or they get in trouble (don’t drive crazy, don’t hit people, etc.). Knowing the sociolegal norms of copyright and trademark law is pretty much becoming mandatory. Even for kids.

Following these norms is becoming more important in the traditionally private areas of your life. Our private lives are increasingly lived online, in increasingly public ways. Whether it infringes a legitimate copyright interest or not, the average online American is generating (whether it’s “new” or remixed or just plain copied, fair or not) tons of content that can be digitally distributed. Correspondingly, our economy is increasingly dependent – as it has been for years - on the ability to exploit copyrights (and trademarks and patents). IP is one of the US’s top most valuable exports. Both large and small content producers and distributors are staking their claims early, discouraging fair use, and trying to tilt the entire legal system to their favor.

The fallout is that average people get caught up in it too. DMCA takedowns over YouTube clips, c+ds because you hosted a fan site or wrote some fanfiction, getting sued because you shared some music. This is all stuff that you can do offline, without getting sued (usually). Ever tape a show and give it to one of your friends? Drawing pictures of your favorite tv stars on your notebook so all your high school friends can see how cool you are. Make a mix-tape or -cd for your sweetheart? Of course there are abuses both online and off, but for the most part, the average person expects that what she’s safe doing offline, she’s safe doing online.

Not everyone has a massively deep understanding of digital technology. They just want to go online, meet people (that they know or don’t know yet), and share their stuff. Unlike the old days, we don’t have to know the innards of technology to be able to use it.

So, the problem for the average technology user is that they might be doing stuff online that really wouldn’t get them into any trouble offline, and they might get sued. For most people, it doesn’t matter if they’re protected by fair use, or aren’t infringing at all. The problem is that they have a scary letter and/or scary lawsuit and they have the “oh shit!” moment. That’s the moment when you realize that it really doesn’t matter what you do, you don’t have the resources to defend yourself in any meaningful way (most people freak out about paying a couple hundred bucks to the IRS at the end of the year, much less the cost to settle a lawsuit and pay a lawyer to do it).

Here’s the answer that would make my job easier: Know IP law, don’t ever infringe or even use anyone else’s IP ever. Don’t copy music or pictures or text or code. Don’t think about copying music or video or software or anything. Don’t even engage in fair uses of other’s content – ever. As some would say, “The best course of action is simply to seek permission for all copied material you intend to use.” (lots of luck)

Here’s the answer that would make my job more fun: Understand the basics of copyright and trademark law. Understand the risks involve in engaging in fair use and free speech. If you understand the risk and decide that your activity is worth it, push the envelope. Experiment with the edges. Make a stand. Decide that it’s not okay for multi-billion dollar companies to decide what’s in the public good.

<lawyer>

This is not legal advice and if you follow it you might get sued.

If you make any part of your living creating content of any kind (art, music, design, code, text, video, &c &c &c), whether you work for yourself or not, you should sit down with your favorite copyright lawyer and have a good chat on who has rights over what you create. It may be you, your employer, your employee. And writing this is totally not in my best interest, because I make my living off of those who don’t do a wee bit of due diligence to determine this right off the bat.

</lawyer>