The undead copyright myths

I spend so much time seeing discussions about copyright law (due to lots of work around free software) that I'm constantly surprised at the myths that keep resurfacing in other discussions among people who don't deal with the edges of copyright as much as free software developers do.

Note: Somewhat US-specific, although not entirely so.

1. Trademarks have to be defended or can be lost because the point of a trademark is that it distinguishes your product from your competitors in a marketplace. Trademarks are specific to commercial endeavors and a market, and trademark law is about avoiding confusion (intentional or unintentional). Copyright is not specific to commercial endeavors or related cases of brand identification (service marks, for instance), and does not have to be defended.

   (It may be possible, in specific circumstances, to end up not being able to enforce your rights because you didn't press a claim. See the defense of laches. But this is an affirmative defense related to putting the defending party in a bad situation by waiting to enforce your claim, and is far from the situation with trademark where active enforcement is required. Laches is intended for cases where someone implies you have a right to do something, you invest a million dollars into a business plan based on that belief, and then they show up at the last minute saying "aha!" and sue you. It's a protection against bait and switch, in other words, and therefore is not that applicable to the typical copyright case.)

2. Pre-Berne copyright laws are weird. If whatever special case of copyright you're basing your argument on happened before 1988 when the United States adopted Berne (realistically, more like the 1970s), it probably doesn't apply. If it involves copyright renewal or losing copyright because it wasn't registered properly, it has nothing to do with modern intellectual property law.

3. You don't know what is fair use. That's because no one knows what is fair use. There isn't much case law, the case law is often contradictory, and lawyers err on the side of caution, not on the side of allowing as much as possible. No one really knows the truth of statements like "fanfic is / is not fair use." There's some evidence both ways, and it's not settled. It will probably depend, more than anyone expects, on the specific details of the specific work. Sadly, it will also probably depend somewhat on which judge one gets, at least until something gets appealed all the way to high courts in multiple countries (which is unlikely given the tiny amounts of money normally available to at least one and usually both of the parties).

There's a lot of misinformation about this stuff. See, for example, George R.R. Martin on fan fiction. He's someone with significant experience in both film and writing, including professional writer's organizations. And yet he made all of those errors to varying extents.

I know this stuff because of my involvement in free software, where we deal with edge cases of copyright law all the time in the process of making it do neat tricks for us. Commercial software developers often come across as appallingly ignorant about intellectual property, probably because they stay in the center of it surrounded by conservative lawyers and have never had reason to explore the edges. I suppose the same thing is likely true of fanfic writers and commercial writers: the average fanfic writer probably knows a lot more about the ins and outs of copyright law and fair use, although the average commercial writer knows much more about book contracts and royalty payments.