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A Collection of Writings by Rich Van Winkle

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Copyright, Intellectual Property and �Fair Use�

(Posted on 14 June, 2010 and valid until supplanted)

There are numerous complexities and vagaries in the laws related to protecting copyrights and intellectual property. It is the purpose of this document to clarify our position on these laws and our policies regarding such.

We own the copyright and/or the intellectual property rights for all content published on our websites unless otherwise specifically noted. We DO NOT authorize the use or reproduction of any of our property, whether �copyrighted� or not, without specific written consent. We will vigorously pursue any and all legal remedies for unauthorized use of our property.

Copyright laws protect the particular way an author has expressed himself. They do not extend to any ideas, systems, or factual information conveyed in the work. Intellectual property laws protect an owner�s ideas, systems, and factual information. �Fair Use� laws may provide affirmative defenses to claims against copyrights and intellectual property protections.  

�One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of �fair use.� The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.� http://www.copyright.gov/fls/fl102.html.

Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

  1. The purpose and character of the use, including whether such use is of 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.
  4. The effect of the use upon the potential market for, or value of, the copyrighted work.

Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The safest course is always to get permission from the copyright owner before using copyrighted material. The legal owner (or lawful agent of the legal owner) of the copyright or the intellectual property can give permission for its use � and NO ONE else can.

We own the copyright and/or the intellectual property rights for all content published on our websites unless we are acting as the authorized agent for others who allow their property to be utilized on our websites. In all cases, unless otherwise specifically noted, we DO NOT authorize the use or reproduction of any material posted to our websites, whether �copyrighted� or not, without specific written consent. You may request such permission as indicated below.

Because we believe in the protection of property rights, including intellectual property, we make reasonable efforts to avoid infringing upon the rights of others. If you believe that we have infringed upon your rights by posting material on our websites, you are requested to follow the notification process identified below. Upon such notification, we will remove the material until such time as we can verify our legal and proper use of the identified material.

�Fair use� is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as for commentary, criticism, news reporting, research, teaching or scholarship. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test. The term �fair use� originated in the United States. A similar principle, �fair dealing�, exists in some other common law jurisdictions. Civil law jurisdictions have other limitations and exceptions to copyright.

Copyright laws are not the only form of legal protection for intellectual property.

The fact that published material is NOT copyrighted does not mean that it is not legally protected. The fact that a work is unpublished does not bar a finding of fair use if such finding is made upon consideration of all the above factors. Again, the safe and proper approach is to ask permission before improperly using someone else�s published material.

U.S. courts have clearly delineated and explained �fair use� law. The case of Folsom v. Marsh, 9 F.Cas. 342 (1841) provides a firm foundation of the legal understanding where the Court  rejected the defendant's fair use defense with the following explanation:


[A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy�

In short, we must often� look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.

These factors were codified in 17 U.S.C.  107, but they were not deemed exclusive. The section was intended by Congress to restate, but not replace, the prior judicially created (common) law. Courts are still entitled to consider other factors as well.



We propose the following as reasonable and established rules of law:

In some countries (such as the United States of America), the mere creation of a work establishes copyright over it, and there is no legal requirement to register or declare copyright ownership.

Published materials are �public domain� materials only if they are clearly and legally identified as such.

Fair use is decided on a case by case basis, on the entirety of circumstances. The same act done by different means or for a different purpose can gain or lose fair use status. Even repeating an identical act at a different time can make a difference due to changing social, technological, or other surrounding circumstances.

In the law, the term fair use has a specific meaning that only partly overlaps the plain-English meaning of the words. While judges have much leeway in deciding how to apply fair use guidelines, not every use that is commonly considered "fair" counts as fair use under the law.

Fair use is only one of many limitations, exceptions, and defenses to copyright infringement.

While plagiarism and copyright violation are related matters, they are not identical. Both can, at times, involve failure to properly credit sources. Plagiarism refers to using someone's words, ideas, images, etc. without acknowledgment and is largely a matter of professional ethics. Copyright is a matter of law, and protects the manner in which an idea is expressed, not the idea itself (which may have other protections, such as a patent). Citing a source generally prevents accusations of plagiarism, but is not a defense against copyright violations.

Noncommercial use is NOT inherently �fair use�! Profit motive (or lack thereof) may enter into a decision � especially the amount of damages awarded � but is NOT a sufficient defense in a fair use case. (Allowing the public to obtain material at no cost that they would otherwise pay for creates a financial loss to the owner).

�Fair use� defenses reduce the ability of author's to protect their interest in their writings. Thus the copyright holder cannot use a non-binding disclaimer, or notification, to revoke the right of fair use on works. However, binding agreements such as contracts or license agreements may take precedence over fair use rights. Thus, under the �Terms of Use� for our websites, you enter an agreement by using our website and accessing our materials that specifically limit application of �fair use� defenses. �Fair use� is ONLY A DEFENSE against an infringement suit and does not restrain anyone from suing. If we disagree that a given use is �fair� under the law or if we believe that you have violated our intellectual property rights, or if you have violated the Terms of Use that are associated with the access to our materials, we can and WILL exercise our right to have the matter decided by a court. Thus, �fair use� is not a deterrent to a Strategic Lawsuit Against Public Participation or any other legitimate lawsuit.



Your Agreement Regarding Copyrights and Intellectual Property:

By accessing or utilizing any of our websites, including RichWritings.com, you agree to the terms, definitions, and protections included in this document and its associated �Terms of Use�. That includes limitiation of use and access and your agreement to not submit, post or otherwise transmit any material for which you do not hold legal copyright.

Every time a new submission is published by RichWritings.Com, it receives an automatic copyright stamp at the bottom, stating ownership of that item. For this reason, submitting work that you know is not your own work is considered a rights violation and the original author or owner can submit your item as a copyright violation (as below). There is a significant difference between citing works within your own creations and posting someone else�s work completely as your own creation. Plagiarism and rights violations will not be tolerated at RichWritings.Com or by most authors.

Where we utilize the materials of others (with their permission) or accept submissions by other for posting, such is done with the presumption that permission is granted for such. Adding text or slightly modifying someone else's copyrighted material does NOT make that item yours. Failure to comply with our copyright rules or copyright laws may result in account termination or denial of the privilege of access. The only circumstance in which you may submit material that is not your own original creation is to cite the exact source that specifically gave you permission to use and publish it.

If RichWritings.Com notices blatant infringement activity without a submitted complaint, we will remove the material immediately. We would only do this if we felt it was absolutely infringing on a copyright. We will not be routinely monitoring the site for such activity.

Digital Millennium Copyright Act:  If you believe that any material contained in this Site infringes your copyright, you should notify RichWritings.com of your copyright infringement claim in accordance with the following procedure.

Step 1 - Be absolutely sure that copyright infringement has occurred. If you knowingly falsely accuse someone of infringement, you could be and probably will be prosecuted for perjury and sued by the accused author and/or RichWritings.com.

Step 2 - Compose an email, which will serve as your Copyright Infringement Notice, with the following necessary information (DMCA, 17 U.S.C. 512(c)(3)):

a. Specific identification of the infringing material (see bottom of page where posted).
b. Username of the author you claim is unlawfully using your copyrighted material
c. A complete copy of the infringing material. If multiple copyrighted works at the website are covered by a single notification, include a representative list of such works at that site, specifically identifying each infringing item.
d. Your name and contact information (your real name and contact information reasonably sufficient to permit us to contact you).
e. State in the email notice: "Under penalty of perjury, I declare that the information in this notice is accurate and that I, the copyright owner and complaining party, have 'good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law.'"
f. State, also under penalty of perjury, that the sender of the email notice is authorized as the copyright owner or a legal representative of such of the material claimed to have been infringed.
g. Sign your Full Name (First and Last)

h. Have a copy Notarized and attached an image of the document with your e-mail. E-mail all of this in one complete e-mail.


RichWritings.com will process notices of alleged infringement which it receives and will take appropriate action as required by the Digital Millennium Copyright Act (DMCA) and other applicable intellectual property laws.  The DMCA requires that notifications of claimed copyright infringement should be sent to this Site's Designated Agent who is:Rich Van Winkle whose e-mail address for this purpose is: copyright@RichWritings.com. The email must have the subject heading:"Copyright Infringement Notice."

Information sent in a Copyright Infringement Notice will be examined carefully to be sure all necessary information has been included. If the required information is not included in this email, we will make a reasonable attempt to contact you to gather the missing information. If contact cannot be made or you fail to provide the required information, the notice will be disregarded.

If all necessary information has been provided, we will temporarily remove the infringing material from the website�s public access pages. This protects RichWritings.Com from all legal liability. As soon as the material is removed from our public access areas, the submitter of the material will be notified promptly of the notice and possible infringement. If the Member believes that the material does not infringe the claimed copyright or has been mistakenly claimed, he/she may send a Counter-notice to RichWritings.com

If you fail to include the necessary information listed above and fail to do so even after initial contact from RichWritings.Com, the complaint will be deemed legally null and void.
Members who have had material removed from public access due to a Copyright Infringement Notice may send a counter-notice to us to challenge the claim. To do so, please follow these steps carefully:



Step 1 - Be absolutely sure that you have not infringed upon someone else's material. If you lie,                                               you could be prosecuted for perjury and sued by the copyright owner.

Step 2 - Compose a document, which will serve as your Counter-notice, with the following                                          necessary information:

a)      Specific identification of the material in question.

b)      State, under penalty of perjury, that the material was removed from the website public access pages by RichWritings.Com as a result of a mistake or misidentification of the material.

c)       State that you consent to the legal jurisdiction in the federal district court where the user's address is located.

d)      State that you agree to accept service of legal process from the copyright owner or person who signed the Copyright Infringement Notice and offer the physical address for such service.

e)      Sign your Full Name (First and Last) and provide your RichWritings.Com Username


Step 3 - Submit this required information via e-mail to copyright@RichWritings.Com with the subject line �Counter-notice�.

Step 4 - We will then contact you and provide either a postal mailing address or FAX number where you must  also print, sign and send/FAX your signed counter-notice to us.

 If you fail to submit this counter-notice via both email and fax, the counter-notice will be deemed legally null and void and the material will remain unavailable from the website�s public access areas.

 If you fail to include any of the necessary information listed above and fail to do so even after initial contact from us, the counter-notice will be deemed legally null and void and the material will remain unavailable from public access.

When we receive a counter-notice with all of the necessary information, the copyright owner or sender of the Copyright Infringement Notice will be sent a copy of the counter-notice and informed that the disputed material will be returned to website public access no later than ten (10) business days. In order to prevent this from happening, the copyright owner or sender of the Copyright Infringement Notice must bring a court action.

The copyright owner or sender of the Copyright Infringement Notice must convince a judge that copyright infringement has occurred. A Copyright Infringement lawsuit will need to be filed in federal court against the accused Member and the court will need to be persuaded that the Member is indeed committing copyright infringement. (See clauses above regarding indemnification).
If the copyright owner or sender of the Copyright Infringement Notice does not properly initiate court action, the material will be replaced for public access.


E-mails sent to copyright@RichWritings.com for purposes other than communication about copyright claims may not be acknowledged or responded to.

There are plenty of good sources for copyright information, including:

                The US Copyright Office

                American Bar Association

                Cornell University Law (U.S. Code)

                University of California Copyright Education Website

                The Ultimate Guide to Copyright

Be informed, use good manners, and obey the law!







Please let me know if you have comments about or corrections for this web site.




This website and its contents are Intellectual Property  - ALL RIGHTS RESERVED! 2010  by Rich Van Winkle