Purpose and scope of this Page
This article attempts to provide a general explanation of the rationale behind Crosswinds' Terms of Service, and how they relate to current international copyright law.  It is intended for reference and educational use only, and is not a statement of law or a legal document.  Its scope does not include issues of file-trading, P2P practices, or use of open-source versus commercial software.  Its scope is limited to copyright issues as they affect website owners who wish to publish and distribute files on their sites.  This article also does not attempt to take sides with the constitutionality of the laws as they stand, but merely to explain them.  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 the copyright of the respective creators, whether or not a copyright notice (©) appears on the web page which displays it.  (Note the distinction between "original creators" who own the material, and "website owners" who are publishing the material.)  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 will, under some circumstances, grant permission to someone to use their materials, but you must first ask before you can assume it's ok.  Anyone who makes his/her living from the sale of any type of media, including graphics, 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 internet and the web are public forums, by definition.  Files put on a website are not defined as "private use", because they can be listened to and seen and copied and downloaded by most anyone with an internet connection, and shared easily with the general public.

A Crosswinds member once asked us why recording television or radio broadcasts and sharing those recordings on the internet is illegal.  The reason is that commercial broadcasters buy and own licenses to broadcast copyrighted material.  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).  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.  The songwriters do eventually get their money from legal broadcasts--either directly, or in the form of royalties.  To be allowed to broadcast copyrighted media on your website, you too must purchase a license for it-- or get written permission to broadcast it from the copyright holder.

If you didn't create it yourself, you need permission to use it on your site.
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.  Read and abise by the specific terms granted to you in each case.  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' Terms of Service do allow for "fair use" of media files.

Legal Liability
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 members who break the law and upload them.  Any webhost has every right to do this; they own the server hardware and choose to let us rent space on it for our webpages. They give full disclosure of these policies in the Terms of Service, 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... the potential for legal damage is enormous for any sizable webhost.  A webhosting company can be put out of business if it is ever audited and found to be storing illegal copyrighted files.  That would of course affect not only the business owners, but all of us who use their server space to host our websites.  This is not a trivial matter.  If a webhost is 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 Terms of Service are strictly enforced.

Conclusion
When a person signs up as a member of Crosswinds (or any reputable webhost), s/he agrees to abide by the Terms of Service.  You don't receive an account until you have pushed the "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 the webhost to keep your websites in compliance with the terms you just agreed to.  If you violate that agreement, you no longer have the right to an account.  Simple and logical.  If you don't agree with the terms presented to you, don't sign up for that account.  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 its members are required to respect and abide by these laws as they currently stand.

For more information about copyright law and websites, read the following:

What is Copyright Protection?
Brad Templeton's 10 Big Myths about copyright explained
FindLaw: Fair Use on the Web

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