When it comes to the Web, there are a lot of people out there willing to give you free legal advice. Unfortunately, much of it is outright wrong and it can be very dangerous.
While, fortunately, many of these legal misconceptions have been slowly dying off as the Web has become more and more aware of these issues, some have managed to stick around and get circulated repeatedly.
So, before you fall victim to some bad legal advice you found online, here’s a few of the more common (and more dangerous) pieces you are likely to encounter.
1. Fair Use Will Protect You
A lot of people believe that just about any copying can be justified as a “fair use”, especially when it’s used on a blog or in a YouTube channel.
The truth is that fair use can’t actually protect you from anything. Fair use is not a right, it’s a defense that has to be asserted after you’ve been sued. It’s basically saying that the use was infringing, but that you are not liable for damages because the use was fair.
Asserting a fair use defense and winning it is expensive, time-consuming and risky. The only reason more people aren’t sued over fair use cases is because filing lawsuits, especially ones likely to fail, is also expensive and time-consuming.
Furthermore, fair use is actually a very narrow set of exemptions in the law based on four factors that has to be weighed by a judge and/or jury. Until such a ruling comes down, all one can do is say what is likely a fair use and what is likely not.
In short, fair use is always a gamble. However, this doesn’t mean that it isn’t important for bloggers, just that it isn’t a free pass to copy what you want without a second thought.
2. You Can’t Get in Trouble if It’s the Truth
While honesty is certainly an admirable quality in blogging, it isn’t an absolute guarantee that you won’t run into any legal trouble.
Though truth is a defense in a defamation case, meaning someone can’t win a libel suit if what you said that hurt their reputation is true, there’s a huge difference between what is true and what you can prove is true.
If you attempt to assert a truth defense, the burden of proof is on you. Proving something is true is often difficult even when it clearly is the case. If you don’t have the evidence to back up your claims, a truth defense is almost useless.
But even if you can prove something to be true, if the facts are also private, then you’re looking at a privacy lawsuit, for which truth is not a defense at all. Divulging private facts about others is never a good idea ethically or legally, regardless of the veracity of those facts.
3. Everything on the Web is Public Domain
This myth and piece of bad advice comes from a confusion in terminology. Legally, the term “public domain” means that something is without copyright protection and can be freely copied. However, to a layperson, the term “public domain” means something that is out in the public, meaning everything on the Web.
Unfortunately, it’s very easy for something to be in the public domain in the common sense of the word but not be in the public domain in the legal sense. In fact, with current copyright law, everything enjoys copyright protection from the moment it is created and does so, in cases of individual authorship, for the life of the author plus seventy years (in the U.S.).
What this means is that very little on the Web is actually in the public domain and it’s best to assume that everything you see online is copyrighted until you can prove otherwise.
4. If I’m Being Funny, It’s OK
There’s a mentality among many online that the court jester can do things the serious blogger can not. Basically, many believe that, as long as you’re being humorous about what you’re saying and doing, that there won’t be any legal consequences.
Unfortunately, that’s far from the case.
On matters of copyright, while it is true that parody is heavily protected under fair use (see the caveats to that above) satire is not. Parody means using a copyrighted work to make fun of the work itself where satire is using a work to make fun of something else, usually society at large.
Parody, such as what Weird Al does with most of his music, is generally acceptable under the law but using a song to overlay in a video to make fun of the contents of that video is not as protected, at least not as parody. In short, using copyrighted content to make fun of something other than that content itself is still likely an infringement.
From a defamation standpoint, comedy can protect you in the statements are so outlandish that they are unbelievable but even things said in jest, if they can be believed and harm someone’s reputation, can put you on the wrong end of a lawsuit.
In short, even when joking, be careful what you say or do.
5. I’m Anonymous, No One Will Find Me
Finally, if you want to ignore all sane legal advice and do stupid things on the Web, there seems to be many who believe that there’s a “Get Out of Jail Free” card in simply not putting your name to anything you do. Basically, the idea is that if no one knows who you are, they can’t sue or arrest you.
While that is true in theory, the problem is that complete anonymity is almost impossible online. While not putting your name to your work certainly makes you harder to locate, someone sufficiently motivated, most likely, can still find out.
Your IPSs, email providers, social networks and other services you use can all be compelled to give information against you. Furthermore, as you travel the Web, you are leaving traces everywhere you go data that can be accessed by those eager to build a case against you.
Perfect anonymity online requires not just a great deal of technical knowledge, but, more importantly, that you be flawless with its execution at all times you’re online. In short, it’s probably not worth the trouble unless you’re doing something pretty serious.
In short, while anonymous blogging might keep your boss or spouse from knowing what you’re writing online, don’t expect it to provide too much legal protectin.
In the end, the old adage about not believing everything you read online holds doubly true for legal advice. Take everything you read with a grain of salt (including this column) and check your sources.
When in doubt, ask an attorney or, at the very least, do your own research.
Getting these facts right is important if you want to stay out of court, so its worth taking the time to understand what’s going on.