Part II Custom

What is Custom?

Custom has generally been defined as “a practice which by reason of a general long-established and uniform usage has acquired the forces and effect of law” For a custom to have the effect of law and be recognized by a court it must have certain characteristics. Courts may differ on exactly what they consider when analyzing a custom, but generally, courts consider in making a custom analysis: (1) antiquity and duration of the custom, (2) uniformity and continuiousness of the custom, (3) recognition or acquiescence to the existence of the custom, and (4) reasonableness of the custom.

(1) antiquity and duration-

Although some courts have held that a custom must be ancient, the “true test of a valid usage or custom is that it shall have existed a sufficient length of time to have become generally known…”. However, the factor of antiquity must be looked at carefully in the internet scenario because although the internet has existed since 1969, its commercial value did not expand until 1993. Thus, one wonders whether an activity which, occurred only since 1993 can be considered ancient. Some courts have suggested that “the fact that a usage appears to have been recently established, or but few instances or its recognition can be adduced, has been held sufficient to deny it the status of a valid and enforceable custom. However, this is not disposititve as a judge may apply other law such as the UCC and the standards of custom to that body of law. A court applying the UCC can establish a trade or usage “by evidence of recognition and acceptance by members of a particular industry.” Thus, even if the Internet is not ancient (in years), courts can infer antiquity by applying proof of the length of time and pervasiveness of the custom.

(2) Uniformity and Continuousness

When establishing custom, The plaintiff must also prove uniformity and continuousness of the custom by showing that a significant number of people uniformly and continuously infringe the copyright. This author has put a message out on various news groups to see how uniform and continuous the activity is, at the time or the printing of this paper the statistical information was not sufficient. However, the great concern in the last few years over infringement on the internet could be used to allow a court to recognize the uniformity and continuousness of a developing custom of infringement on the internet.

(3) Whether persons recognize or acquiesce to the existence of the custom

Although this is not a definitive proof of custom, the following is a discussion from a news group that can help one recognize that people do acquiesce to the existence of copyright custom on the internet.

“I have received a message from another individual who has linked to my page. However he has by passed my “index page” (page that gives the notice of the owner of the copyright) and linked directly to the texts that I prepared without any indication or credit.” Naturally – perhaps naively – I am ticked. I have seen this type of “by pass” link before. My impression has been that links are to “index” (giving the owner of the copyright some credit) My question then is there anything I can do to require either acknowledgment or linkage only to my index page?

In an answer by a patent attorney in New York, the lawyer comments

“a) cross connectedness, generally speaking, is a shared value of the Web and was designed in from the beginning. “I am unaware of any law that would compel people to link only to a top legal page and, given that linking to pages is a very common activity in the Web., I have to say I don’t know that standards of courtesy have evolved in this way. “Everybody does it” is not of course a way to know that the law…” But in the case of the web, I do not think that its values in favor of cross linkage present in its design from day one are a strong indicator that it is okay to link places that are not in the index page.

In addition the lawyer notes, “it seems to me that anyone who puts a web site out there, with multiple entry points rather than just one, is necessarily consenting to people having their sites point to any of the entry points they may wish.

This attorney is leading one to reach three conclusions from this internet discussion: (1) some sort of netiquitte or rules exist that have developed on the internet even applying to issues such as copyright; (2) some sort of consent exists in the on-line world which allows persons to use information from others; and (3) internet users should not file lawsuits on the issue but rather each developer should program on every page a notice that this page is linked to another site. This is an example of a recognition or acquiescence of custom.

(4) Reasonableness

Finally, one must prove that the custom is reasonable. The issue is whether the fact that one takes a graphic or text from a source and uses it in direct violation of copyright law is this custom reasonable to permit such actions. No direct standards have developed which the courts will use to determine whether a custom is reasonable. However, at least one court has held that “custom cases cease to be reasonable, although legitimate and reasonable in the first instance, when it threatens the safety of the people or the destruction of public or private rights.” However, the U.C.C. proposes that if the commercial activity is accepted then usage is presumed to be reasonable. Thus when applying the U.C.C. rationale, if persons on the internet accept this infringing activity a presumption in copyright law may exist. Even if one can use the U.C.C., custom to be reasonable is often a question of fact for the jury to decide although it may become a question of law.