Owning the Past? The Digital Historian’s Guide to Copyright and Intellectual Property

Will You Get Sued?

ot surprisingly, then, most of the active policing of the use of materials on the web focuses on materials that large corporations view as having great value. Most often, those efforts center on trademarks rather than copyrights. Firms like NameProtect, Cyveillance, and TrademarkBots troll the web looking for sites that violate their clients’ trademarks. And “cease and desist” letters from lawyers about trademarks or other alleged infringements often have a very nasty, threatening tone. The website ChillingEffects.org calls this “Gorilla Chest Thumping” on the part of people who believe “that aggression is the best defense.” Their advice is “take a deep breath” and “do not take it personally.” In the case of trademarks, historians should know that scholarly and historical discussions involving trademarks will generally be considered “noncommercial” use and are fully protected by the First Amendment, although that will not stop a trademark attorney from sending you a threatening letter.62

The noncommercial nature of most historical projects generally protects you from several noncopyright legal hazards that other websites face. For example, in some states the “right of publicity” gives public figures, especially celebrities, the right to commercial gain in their own likeness, persona, and voice. Thus you can’t create an advertisement incorporating Britney Spears without her permission. But because this right involves commercial gain, it is unlikely to concern most historians. Similarly, some websites have sued others for the practice of “deep linking,” linking to interior information in their site in a way that bypasses home pages and other conventional entry pages that sites regard as important because they provide advertising revenue and establish their “brand.” But this seems unlikely to apply to noncommercial history sites. We often receive requests for permission to link to portions of our site. We always say “yes,” but in our view you don’t need permission to link any more than you need permission to list a book in a bibliography. Two other areas of litigation—defamation and invasion of privacy—generally apply only to living people and are not of concern to historians who focus their attention on the dead past and dead people. But contemporary historians may need to consider whether they are portraying living people in a negative light. If you digitized a cache of letters from the 1960s that talked about contemporaries as “drunks” and “thieves,” you could be liable for invasion of privacy or defamation—both of them likely to be more serious concerns than copyright infringement.63

The other particularly active area of policing of the web involves—as everyone knows since the advent of Napster—music. Major music companies have devoted large resources to tracking and prosecuting the trading of digital music files. Though such activity clearly exceeds fair use (if the music is not in the public domain), the fallout from the music company hysteria has spilled over to affect more legitimate uses of music online. For example, OLGA, the On-Line Guitar Archive, which allows guitar enthusiasts to share files that show how to play songs, has faced threatened lawsuits from recording industry giant EMI and the Harry Fox Agency, which represents more than 27,000 music publishers.64 Its travails indicate the kinds of problems that a nonprofit history site would encounter if it ran afoul of a large corporation. We may be right in our public domain and fair use claims, but do we have the money to fight multinational bullies? A two-minute clip from Disney’s 1995 film Pocahontas might both nicely teach something about popular understandings of the colonial period and be permissible under “fair use.” But we would not advise going up against Disney’s lawyers unless you have some top-notch pro-bono legal talent in your camp.65

Nevertheless, even the most rapacious corporations have better things to do than to prosecute nonprofit history websites—surely not the most popular stance to take. And though their pockets are considerably deeper than yours, they still have to weigh the costs of a suit, especially because your lack of deep pockets means that they are unlikely to recover much money. “You have to prioritize,” says one attorney who enforces the online intellectual property rights of large corporations. The web-based publication Education World, which takes a generally cautious stance on the use of materials online, acknowledges that you have only a “slim” chance of winding up in court, especially if you promptly remove offending material upon notification by the copyright holder that your use is objectionable. Library law consultant Minow reassuringly points out that a court can eliminate any damage award for copyright infringement if you “work for a nonprofit educational institution, library, or archives and are acting within the scope of your employment” and if you “believed and had reasonable grounds for believing that your use was Fair Use.”66


he courts, alas, are a long way from the commons where we began—and where we would prefer to stay. And we believe that you will stay out of the courts. In our wide acquaintance, we know of no digital historians who have wound up in court. We can only think of a few who have received so much as a threatening letter from a lawyer. Your best defenses against finding yourself in court are, first, the promotion of learning, which has been the larger goal of copyright since the days of the Founding Fathers, and, second, your own efforts to nurture the creative commons—sharing generously in building a public “space” that is vital to our past and future.

Of course, if that virtual public space and creative contributions to it are to last into the future, you had better take steps to preserve it. That is the subject of our final chapter.

62 Carlyn Kolker, “Employing Trademark Violation Detectives,” Internet Newsletter including legal.online 7.3 (June 2002). See also Steven Anderson, “Law Departments Wrestle with Internet Infringement Issues,” Corporate Legal Times (December 2000). Robert G. Gibbons and Lisa M. Ferri, “IP Policing a Priority Amid Profusion of Online Piracy,” National Law Journal (4 October 1999), IN FOCUS; Legal Tech; B7; Chilling Effects Clearinghouse, Chilling Effects,↪link 7.62. Companies like Coca-Cola, which values its brand name at $34 billion, take a very dim view of trademark infringement. American Memory’s website on Coca-Cola ads carries the warning: “Unlike most of the materials presented on the Internet as part of American Memory, materials in Fifty Years of Coca-Cola Television Advertisements: Highlights from the Motion Picture Archives at the Library of Congress are subject to copyright and other legal concerns such as publicity rights. These materials are presented here with the permission of The Coca-Cola Company for private educational, scholarly, and research uses.”

63 Privacy and defamation are complex and vast topics, and you should consult more detailed sources if your work touches on these issues. For a brief summary, see Levine, “Overview of Legal Issues for Digitization,” 83–86. For a summary of legal cases on linking (many of which involve trademark issues of no concern to historians), see “The Link to Liability,” Mondaq Business Briefing (20 January 2004). See also Richard Poynter, “Reasons to Think Before You Link,” Financial Times, 24 June 2002.

64 The On-Line Guitar Archive, ↪link 7.64.

65 If you do find yourself looking for legal help, American University, Harvard, and Stanford all have student law projects focusing on intellectual property.

66 Attorney quoted in Anderson, “Law Departments Wrestle with Internet Infringement Issues”; Starr, “Part 2: Is Fair Use a License to Steal?”; Minow, “How I Learned to Love FAIR USE.”