Purpose of this Page
This is intended as a general explanation of the rationale behind Crosswinds' TOS/Guidelines, and how they relate to current international copyright law. This document is intended for reference and educational use only. It not a statement of law or a legal document. It explains and defends the agreement between Crosswinds and its members, for those who are not aware of what constitutes copyright and distribution rights on the internet.
Who Owns the Copyright?
According to international copyright law, published material on a website is considered copyright of the respective creators, whether or not a copyright notice (©) appears on the web page which displays it. Anyone who publishes a web page with their own original material, automatically is granted the assumption of copyright to that material. Appropriating that material in any way and re-publishing it without the copyright holder's permission is considered stealing, and is both illegal and prosecutable as copyright infringement. Many website publishers go by the "honor system" and simply request someone to ask permission before using their materials. But anyone who makes his/her living from the sale of any type of media, including music, video, literature, artwork, etc, depends on the protection of these copyright laws.
The Internet is Public
Uploading a file to a website, any website --personal or business-- whether as background music, or a download link, or as a graphic, a software program, or a piece of literature, etc....is considered, by law, publishing it in a public forum. The Worldwide Web is a public forum, by definition. Files put on a website are not defined as "private use", because they can be listened to and seen and heard and copied and downloaded by most anyone with an internet connection, and shared easily whether it is made obvious with a link, or not.
Someone mentioned recording broadcasts recently on a Crosswinds Help Forum, and why publishing that recording or sharing that file on the internet is illegal. The big difference between putting a music file on a personal website, and playing it over the radio, is that commercial radio stations contract with the copyright owners of the songs they broadcast (often by way of a 3rd party copyright licensor like BMI or ASCAP). But the songwriters do eventually get their money from legal broadcasts--either directly, or in the form of royalties.
If you record a song off the radio or the internet for your own private use, that is generally permissible (falls under "fair use"), but as soon as you copy that tape or file, and give it to a friend, or offer or play the recording in a public forum, you technically are violating copyright law because you are distributing it. You have not contracted with the copyright owners to distribute that music, as the radio station has, and you're breaking the law by doing so. Distributing digital sound files is in violation of the same copyright laws which forbid distributing privately made tapes of copyrighted media. Like radio stations, websites such as "mp3.com" also contract with songwriters and performers to publish their music on the internet, and they have legal license to offer some of that music for download. If you are re-publishing such copyrighted music by including it on a personal website, and you have not also received legal permission from the copyright owners, you are breaking the law, by committing copyright infringement.
If you didn't create it yourself, you need permission to use it.
If you use somebody else's shareware or freeware, or a piece of script or programming code which you offer for download on a website, you must first read the terms of the software's copyright. "Free" does not mean it is in the "public domain". It only means that the copyright holder does not charge a fee to use the software. But it does not automatically give anyone license to distribute that software on another website, unless the terms-of-use agreement specifically grants that permission. If you are told specifically that you may distribute the software on a website, then you may do so (and you must include ALL files which came with the original software, including the copyright and "terms-of-use" agreement), but if the software copyright holder (often also the programmer) retains or limits the distribution rights of the software, then you may not upload the files without specific permission. Often a programmer will allow a link back to his/her own website for downloading software, but will not allow a 3rd party to offer it independently. Or the programmer may require the display of a copyright notice along with a download link. The laws protect the creator and copyright holder, not the distributor.
"Fair Use"
There are circumstances under which one may use samples of copyrighted materials: reviewers and testers may illustrate an opinion with a sampling of the material. Authors and website publishers may enhance an article with media clips or samples. Digital samples would include non-interactive screenshots of software, sound clips of 45 seconds or less (and they must start at the beginning of the file/song), video clips of one minute or less, literary excerpts of a certain number of words or less, etc. "Fair use" implies non-intent to prevent the copyright holder from the normal sale of his/her creations, and can often even promote such sales. Crosswinds' Guidelines specifically allow for "fair use" of media files.
Legal Liability
Uploading copyrighted files to a server which hosts websites is also illegal and against Crosswinds' Guidelines. This is why the Crosswinds Guidelines exist. Since Crosswinds owns the servers on which our sites are stored, any illegal files on our sites are also illegally on their servers. In order to fully comply with international copyright law, Crosswinds regularly deletes not just illegal files, but the accounts of the people who break the law and upload them. Crosswinds has every right to do this; they own the server hardware and choose to let us borrow space on it for our webpages. They give full disclosure of these policies in the Guidelines, and require that we agree to abide by them before we are granted an account.
Many people think that one file on one site will never be noticed or prosecuted. But...Crosswinds has more than 600,000 websites on its servers now, and the potential for legal damage is enormous for them, as well as for any sizable webhost. They can be put out of business if they are ever audited and found to be storing illegal copyrighted files. That would of course affect not only Crosswinds' owners, but all of us who use their server space to host our websites. Therefore Crosswinds routinely carries out file and account deletion of any member who uploads illegal copyrighted files. This is not a trivial matter. If Crosswinds are ever found in a court of law to be liable for copyright infringement because of a member's website, then that member is liable as well, and can be subject to fines or prosecution or both. For this reason, the Guidelines are strictly enforced.
When a person signs up as a member of Crosswinds, s/he agrees to abide by the Terms of Service (TOS). You don't receive an account until you have pushed that "I Agree" button confirming you have read and intend to comply with those Terms. At that point, you have entered into a binding contract with Crosswinds to keep your websites in compliance with the law. If you violate that, you no longer have the right to an account. Simple and logical. Whether or not you "agree" with the legal definitions of copyright is irrelevant. Anyone who believes the laws are wrong may write to their own government officials, and ask for these laws to be changed. In the meantime, Crosswinds and we, as website hosts and publishers, are required to respect and abide by these laws as they currently stand.
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For more information about copyright law and the internet, read the following:
What is Copyright Protection?
Brad Templeton's 10 Big Myths about copyright explained
FindLaw: Fair Use on the Web
ROMEO Music Legal Info