Custom and the Copyright Statute

In addition to antiquity and duration, uniformity and continuiousness, recognition and acquiescence, and reasonableness, the courts will consider whether the custom conflicts with law, codified common law, public policy, good morals, and fair practices.

Since the copyright statute is a codification of common law, the first area of discussion is when the custom of persons taking files from other sources conflicts with common law. “Generally, a local custom or usage which would make the rights or liabilities of individuals other than there are at common law will not be given effect.” Although this would tend to show that when common law is established, a custom cannot have effect, but since the copyright statute is codified, the real conflict is between custom on the internet and copyright law.

The U.C.C., under its rules of construction proposes the underlying purpose and polices of the Act are “to permit the continued expansion of commercial practices through custom, usage and agreement of the parties;” Although the copyright statute does not include such a provision, some courts will consider knowledge or a usage as being binding on the parties” In addition, courts will not consider a custom that is contrary to justice and fair dealing. Perhaps, taking files without compensation would be considered contrary to fair dealing.

The purpose of the copyright statute may be derived from the United States Constitution which reads ” Congress shall have power…to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writing and discoveries.” This constitutional grant of copyright is intended to encourage individuals to produce and disseminate creative works, if a web page developer would not put a graphic on the internet knowing that another person may copy the graphic and use it for his or her own financial gain. However, such infringing use is occurring on the internet, so, perhaps persons are developing a society on the internet of exchanged information, reasoning that what you help with today I may help you with tomorrow. This is not a strict legal theory but rather the way people are conducting themselves on the internet. This author has found no cases of web page developers suing other developers for use of their work. In addition, sites exist on the internet that even allow one to freely download items which are copyrightable. For instance, a service that has background graphics at Texture land allows persons to freely copy any of its graphic texture images for web page development. If a web page developer allows ones to copy his or her work for the growth of this new emerging medium, this would likely be the same as authors all consenting to their works being freely copyrighted. This scenario is not the same as if a web page developer incorporates material that a developer specifically does not allow on the web or has persons pay a fee for the information on their computer as in Playboy and Saga. The query then becomes is the internet society a world where the developer’s themselves do not care about protecting their works. From practice, however, a web page developer can argue: (1)most web pages have a copyright notice; (2) when getting on the internet one of the first E-mail that persons receives is on copyright infringement on the web. Even with such indication of copyright recognition for web page development, one first must recognize whether copyright law acknowledges custom as the U.C.C. does.