Copyright versus Copywrong.

Legal haggling over content, employee bulletin boards and digital copyright laws create new worries for the communicator you barely mastered the copyright basics for print -- knowing your [R] from your TM, sourcing and footnoting -- then came digital and the Internet.

Accompanying those pesky copyright issues were their troublemaker siblings, privacy and security. To cope with the technology explosion and World Wide Web's wild west, the U.S. Congress enacted a series of digital copyright laws. These provisions were often highly technical and dealt with the rights of parties to digital content.

But the harder Congress tries to put a clamp on digital copyrights, the more sticky new problems arise. Unless the copyright infringement is the size of the headline-grabber Napster, enforcement can be elusive. Like the universe, the Internet is constantly expanding, with an estimated 476 million users worldwide and a projected 793 million by 2003. And like the universe, the Internet has plenty of black holes.

"Congress is never going to be entirely successful in regulating the Internet, because it's impossible to control," says William McGrath, a Chicago attorney who also teaches copyright law at John Marshall Law School. "Unauthorized use of sites and content will continue, with hackers trying to penetrate security measures like encryption and access control. Digital copyright laws provide a basis to prevent infringement. But policing is difficult. It will be an ongoing struggle."

A struggle that Napster and its 62 million users are immersed in. Lawsuits are targeted at Internet Service Providers (ISPs) for harboring unlawful content. Chat room Neanderthals are now facing slander and libel suits. Then there's the case of 26-year-old Russian programmer Dmitry Sklyarov, who was arrested by the FBI in July. Working for his company, ElcomSoft, Sklyarov coded a program that reformats Adobe Systems eBooks. He and ElcomSoft are the first to be prosecuted under the DMCA (U.S. Digital Millennium Copyright Act). Effective as of last year, the DMCA calls for penalties of up to five years in prison and a US$500,000 fine on each count.

It's a struggle all right, one with a potentially steep price tag. And it's invading your corporate neighborhood -- with more stunning frequency than you ever imagined.

"Are the Lawyers Writing the Stories Now?" You've just finished the latest issue of the company newsletter. The boss says to run it by Legal. "Can I undergo a root canal instead?" you counter. You hate seeing your copy gutted by the company's legal team. Yes, you are not a journalist. You support business objectives. How do you preserve your credibility as a communicator? You want to report the truth, to employees who want to know -- not acquiesce to the safe, vanilla version that flows through the legal sieve. As you wind through cubicles, toward the Legal Department's door, you remember the dialogue from "The Insider," the 1999 film about CBS-TV's 60 Minutes and Big Tobacco. In the movie, one character asks, "Are lawyers writing the stories now?"

Are lawyers writing our stories, or do they just like to show their clout? Bill McGrath explains: "[Communicators] need to understand that lawyers aren't making restrictions for no reason. We have to make sure the company doesn't subject itself to liability."

Get ready for a rumble when marketers and lawyers spar over a new product launch. Round one starts when marketers choose a product name before consulting the company attorneys. Budgets are pumped into logos and slogans. The excitement intensifies, only to have naysayer lawyers burst the balloon. McGrath describes the boxing match once the bell rings.

"Lawyers do a search report, when we find other similar marks (or names). We tell marketing departments not to use it," says McGrath. Sometimes marketers dig in and argue. Not good. "Marketing departments need to be less fixated on an idea. When we say it won't work, then go back to the drawing board." Otherwise, the company risks the embarrassment of launching a new product, only to have to shelve it when the name conflicts with an existing one.

Establishing a truce, even a collaborative relationship, requires mutual understanding and respect. Communicators can state their position while lawyers explain why they're imposing a restriction. "People are too much in a hurry to explain why," says Jessica Litman, attorney and author of Digital Copyright, "but it helps in both directions, to clarify what you are doing, and why you are doing it. Lawyers have legal reasons for what they do. They aren't expert in the business reasons."

Understanding what can be copyrighted might also help.

Facts, Ideas & Expression of Ideas Facts and ideas are considered public domain and not protected by copyright. An example of a fact is "the U.S. population is 2.81 million people."

Facts are clear. Ideas are much fuzzier. An idea cannot be copyright protected. The expression of an idea can.

Confused? It gets thornier. "There is no formula for this in our courts," says McGrath. "It's analyzed on a case-by-case basis." "Case-by-case" refers to the avalanche of lawsuits over ideas and who owns them, particularly in the creative industries.

Here's an idea: a spectacular vista of mountains. When that same landscape is seen through photographer Ansel Adams's eyes, it becomes an expression of an idea. The expression can be copyrighted, the idea of a mountain scene cannot.

Another idea is "family life," expressed in two different ways. Humor columnist Dave Barry and HBO comedian Dennis Miller have distinctly different interpretations of family life. Neither Miller nor Barry traipses over to the U.S. Patent and Trademark Office to register every column or monologue. They don't need to. Their comic tone, language and personality help secure their individual expression of an idea.

Movies are fertile terrain for ideas -- and litigation. If plot points are identical, or large recognizable sections from a script or story are copied, at some point, you've crossed the line. "It becomes copyright infringement," says Bill McGrath. "Remember, you cannot copyright ideas. You can, however, copyright the expression of an idea -- which even includes things like camera style."

OK, you know a fact from an idea. You wrote an article, your own expression of a subject. Do you own the copyright?

If I Write It, Do I Own It? "If you're an employee, the copyright automatically belongs to the company you work for, unless the company assigns it to you in writing," says Jessica Litman. "If you're a freelancer, you own the copyright."

Litman points out the recent Supreme Court case involving The New York Times. Freelancers for the Times wanted the right to post their articles electronically; the Times wanted the articles on the Times web site. The Supreme Court ruled in favor of the freelance journalists. "Now publishers everywhere are revising their contracts to get more rights," says Litman.

Therefore, the next time you borrow or paraphrase from a Newsweek article, it's best to credit both the writer and the publication (Newsweek), advises Litman. "Because, at that moment, you aren't sure who owns the rights."

Speaking of copyright ownership, what of the following scenario? One writer discovered her articles could be downloaded from a Web site, without her permission or consent. Much like an all-word version of Napster, this mega-site accessed databases of archives. Instead of downloading music via MP3 technology, users downloaded articles -- for a small fee. Yet the writer saw no royalties.

Cases like these verge upon -- or are -- copyright infringement. Authors could pursue legal action. "In the case of Napster," says Bill McGrath, "recording companies owned the copyrights. They had exclusive rights on the material, and infringement over the Internet doesn't give it special privilege. So far, Washington agrees.

That's writing with a byline. What happens when people write anonymously, cloaked behind their e-addresses?

Employee Bulletin Boards: Too Much Flaming? "When people have the feeling of anonymity, it gives them carte blanche to express any thought or feeling," observes Bill McGrath of electronic chat rooms. "An article in The New York Times described how employee messaging systems are out of control, and how nasty people got." It's one thing to insult ('flame') an individual, quite another when a statement borders on sexual harassment. That's when the company's potentially liable, and it rouses the corporate counsel's attention.

Another company can also be found liable: the Internet service provider. Bill McGrath recalls a recent case. "There was a dispute concerning an Internet service provider and a person who owned a bulletin board. Users of this bulletin board were downloading software illegally, or infringing material." Again, as with many copyright issues, identifying who was liable wasn't clear-cur.

"Because of this case, and others like it, a series of complex, difficult laws emerged," says Bill McGrath of the 20-page provisions. "They addressed accountability for the online service provider. The bottom line is: sometimes they're liable, sometimes they're not.

The "sometimes" in those provisions seems to invite further debate. Sure, there are signs that employee chat rooms are rapidly decaying. Conversely, what if they reached their greatest potential as a productivity tool? If employees shared information across their company intranet, wouldn't that mean a boost in efficiency? McGrath concedes that there are benefits, and he offers these tips. "Post very clear rules about your employee bulletin board. Take away a person's privileges if he or she violates rules. Next, hire someone to screen all the messages. Of course, that lessens the spontaneity, but it will avoid a lot of problems."

Copyrighting the Digital Age New copyright laws have polarized opinion and divided people into two camps: for or against.

Supporters insist they have the right to access books, movies and music online. They fear content publishers now have far greater digital rights than anywhere else, including the print world. On the opposite end are software publishers, recording and music studios. The new laws help prevent their copyrighted material from being pirated.

"Two things are going on," says Jessica Litman. "First, there's uncertainty about who owns the rights. People are getting permission from composers to put music up on the Internet, but not from producers or record companies. And that's a very big deal. Lots of companies have been sued for guessing wrong. The cases themselves may not linger long in the court system, but companies have gone into bankruptcy."

The second issue centers on research and development. "A computer science professor at Princeton wanted to present a paper on how record companies had devised this technology to protect their works," explains Litman. "And his paper cited flaws in that technology." In a dramatic turn, the record companies sued to prevent him from making his presentation. The professor also sued. Eventually, he presented the paper. In light of this incident and the arrest of the Russian programmer, those in the computer science community no longer attend computer conferences. Why? "They're afraid they'll be arrested," says Litman.

Meanwhile, multiple "Free Dmitry" web sites have sprung up, with updates on the first-time legal case. What we see today -- the schism of opinion over digital copyrights, the rude flaming by anonymous e-mailers, the issue of accountability and liability -- represent extremes. As the electronic dust settles, we can become more level-headed.

Or as attorney Jessica Litman says, achieve a balance. "There has to be a balance between protecting copyright owners and yet not putting a chill on research and communication."

Cheryl O'Donovan is a marketing/communication consultant and Web developer located near Chicago. She can be reached at [phone] or www.virtuosity3.com

[C] Q&A by attorney Bill McGrath

What is considered 'public domain?' Public domain is a copyright concept. It refers to any material that's not protected by copyright. That includes formerly copyrighted material, such as an article written in 1890. Its copyright wasn't renewed or simply expired. Or it could be materials where the copyright s lost, or people failed to take the necessary steps to protect it.

Do phrases like "intended for internal use only," and other such statements on proprietary reports like proposals protect that information from competitors and outsiders? What has more 'teeth' is a non-disclosure agreement with the potential client, or the party who's receiving the information. This involves trade secrets, which is an entirely different field of law.

What does "royalty free" mean? This means that no payment (or "royalty") i required for the continuing use of the copyrighted work.

If I buy stock photography, say 300 images on a CD-ROM, can I use those freely? On a web site? As a logo for my business? The terms of use are usually set forth on the package or on the CD-ROM itself. Typically, such products allow broad, royalty free usage of the images for individual or commercial use, although there may be restrictions against copying or the entire collection of images.

During photo shoots, photographers have their subjects or models sign a release form. Why is this? A photo release is necessary so that the person's/model's image can be used in an advertisement. Without a release or consent, the use of an individual's picture, name or likeness for advertising or commercial purposes would violate the individual's right of privacy or right of publicity.

[C] Glossary

[C] Copyright -- A copyright protects fixed authorship, and includes movies, coputer programs, books and more.

[R] Federally Registered Trademark -- Not all trademarks are registered with U.S. Patent and Trademark Office. yet there are certain benefits five years, the mark is even stronger, and is seen as "incontestable." of federal registration. There is more comprehensive, national protection. After No one can challenge it.

TM Common Law Trademark -- The initials TM indicate a trade mark and identify the source of the product.

SM Service Mark (a variation of TM) -- A service mark is not a "product" like peanut utter, but identifies services.

Trade Secret -- A trade secret is confidential information that has value to a company. Trade secrets are an entirely different field of law from copyright.

[C] Recommended Reading

Because copyright laws are so complicated, an article like this can only touch the surface. It you need more information, check out these resources:

Digital Copyright -- by Jessica Litman, Prometheus Books, Amherst, New York, published 2001, copyright by Jessica Litman.

www.nolo.com -- The NOLO web site is legal information online, anytime. According to Yahoo, it's "America's leading source of self-help legal information." LOOK FOR THIS BOOK: "Patent, Copyright & Trademark, an Intellectual Property Desk Reference," by attorneys Stephen Elias and Richard Stim. Fourth edition, January 2001, copyright nolo.com and Richard Stim.