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Copyright Issues and Considerations

  Preliminaries  

There is a prime market in Christian book publishers for Bibles, but in order to "corner the market" and charge whatever price you want, book publishers must have a copyright over a translation or version. This has caused a lot of book publishing resources to be spent in producing new (not necessarily needed) Bible versions that can have a copyright on them. Because of this, we have an abundance of Bible versions. The primary problem here is that of copyright. This issue is a difficult one, because on the one side, if a company or individual has a copyright on a work (Bible version) then others cannot duplicate that work and put it out into the market. From that simple interpretation of the copyright situation, only older versions and translations out of copyright, or works specifically released in some way for reproduction should be allowed in e-Sword modules.

  Paper Copy = Right to Electronic Copy?   

But on the other hand, there is an interpretation of the law that says that once you purchase a book or literary work (in any format) that with that purchase, you also have the right to photocopy, rerecord it, make audio copies of it, or even scan it and burn digital copies of it. So if you own a legitimate copy of a Bible (like a hard bound paper copy), then you have the right to have it in other formats. The argument goes that if you go to a used book store and buy an old beat up hard copy of the NIV, then you have the right to own it in a digital format. Under this thinking, it is right or wrong on an individual basis, whether the person downloading already owns a paper copy or not.

I would comment here that technically I think this owning any version of a book gives you right to change formats has some value, but the problem is not in owning it but in how you got it, i.e. somebody else put a copy up on the Internet where others can download it, which is probably illegal if the work is under copyright and no permission is given by the copyright owners. In other words, while you personally reformat the work, that may be acceptable, but to download from some third party the work that you legally own in another format, this would seem to me as being illegal or at least very questionable.

Hollywood and book publishing companies want that part of the copyright law changed so that just about every time you open a book you will have to pay (like paying even time you go to a movie theater or hear a song). If they succeed, common concepts like songs on the radio, or movies and shows on TV (public mediums anyone can watch without paying) would be dinosaurs that have to cease to exist as copyright infringements. I note that TV and radio is legal, although they too are being jerked around by the DMCA. We are not there yet, but that is where all things are headed. As Christians we must abide by the law except where our God directly commands us to do otherwise, and I see NO biblical command involved in this issue that would grant us "divine right" to allow us to ignore or violate copyright laws. If there is an argument, I would like someone to present it to me.

   Our Attitude and Position in this Mess  

It is my recommendation to be very careful about what you do in regard to Bibles (and other religious literary works). On the one hand, these links may disappear tomorrow as the law changes, so burn a disk copy of all you can get your hands on. On the other hand, there is the thought that what can you do with a stolen copy of a Bible that will really please God? Nothing. Everything is cursed that touches a stolen (illegal) resource. Another thought here is before the just Judge of all men, how can somebody "own" a Bible version to block others from using? Confusing but the user needs to think through these arguments.

In the area of Bibles, I have a hard time believing that people can justly hold a copyright over God's word. Maybe legally, but justly before God no. I tend to interpret things that legally, we need to own paper copies, and that would allow us the right to own the work in a different format (digital). I am not a lawyer nor a police officer, and as such, some websites actually or apparently do get some kind of permission from the copyright owners to post Bibles on the Internet (Crosswalk.com for example).

   My Policy in Hosting and Linking Modules  

It is not my business to be the Internet Copyright Police, so until somebody squawks, I will post what I believe is free, and the rest I will link to. The linking is upheld in court cases as I understand it, as not being legally obligating on those who link to something.

My position is the following. I only host what I think and believe to be free of copyright restrictions, but I will link to other sites that have works available.

  Internet Copyright Police 

To those who will throw the accusation of me contributing to others breaking the law, I have not been granted the right nor authority to be a copyright police of the world. I would for reflection on the position of some to "become copyright police" of the Internet.

If you take this position, policing the Internet in name of "defending" e-Sword, then I ask you, in the name of what authority are you acting? It is just as illegal to become a person's agent and perform legal work for them (which is what you are doing) and seek for copyright violations and pressure for censure or rebuke people without official and legal permission from the copyright author. The copyright author has to grant you permission on a specific and legal level, or the government must grant you permission (as in a police officer). What we are seeing are some "do gooders" which are in reality vigilantes, taking up the law in their own hands and interpreting the law and acting where they have no right before the law, nor have the official copyright owners have granted them legal agency to act in their behalf.

The bottom line here is that unless you are (1) an official police officer acting on behalf of some civil entity (federal, state, municipal) or (2) you have been granted official representation by the copyright owner to act in his behalf, you are practicing law outside of what is accepted. In either case, a law degree in copyright law is a minimum starting place. I would remind you that even law enforcement officers get afoul of the law by thinking and pressuring before the courts things that they interpret as wrong and a judge goes against their discernment in some cases. The Miranda Rights are a quite important representation of this. Lawyers also taken cases before a judge or court and lose completely and unilaterally sometimes, and end up occurring damage payments from their clients because they did not have the law on their side despise their strongly held convictions. So even being either of these entities or situations, you still are not necessarily "right" nor "legal" in a particular action. A judge and a court will have to be invoked to decide what is "legal", and all "armchair legal theorists" simply don't count, and it doesn't matter what your or my opinion is, but what is upheld in a court of law. Remember that both abortion and liquor production and selling were at one time illegal, and the courts overturned their own judgments on these matters. With the copyright law, where are we on the roller coaster ride? Things are not so clear as some would like to make them out to be.

The DMCA does not open the door to anybody and everybody sending take down notices. That in itself is challenged in the law in some points today, and in itself it is scary, but some are challenging it as not legal in itself.

Copyright law is complex, and what is an issue has to be decided by a court of law and a judge, not by armchair legal theorists with no expertise in the law. Even so, I will venture an unofficial opinion about copyright law and e-Sword modules.

Very simply, the law in this case is what reigns over us, and according to the law and legal precedent, third parties are not to be involved with copyright issues. That means (to me) that if somebody breaks the copyright of somebody else by posting their work, the original copyright owner MUST be the person who starts a legal movement to remove or seek damages from the person who infringes on copyright. Any third parties (self appointed copyright police) are simply frustrating the entire situation, and they are completely illegal!!!! Let me clarify that ambulance chasing lawyers (in the USA) have been identified by the courts as performing an illegal action by seeking people who are damaged by in some way, and "offering their services". Judges fine lawyers who do this, and in fact, until very recently, ALL LAWYERS were prohibited from even advertising at all in any way. Today they can offer generic offers, but the injured still has to seek the lawyer, and not the other way around.

My point here is simple. You cannot judge the copyright situation of any work without being or being informed by the copyright holder about that particular work, what is or what is not copyright infringement. Some modern day authors have given permission for somebody to put one of their works written in the last few years into an e-Sword Topic file. If that is so, then I probably will not be privy to that agreement, nor is there any reason why that agreement has to be made public. It is not the public's "right" to know about these legal agreements. Therefore if I post a link to such a work, I am legal. If I host that work on my website (without permission) then I am in problems. If I convert a paper book, or copy the work from a CD I bought commercially to an e-Sword module, then I am a common thief.

The point here is that it is next to impossible to judge others modules as "being illegal". There may be agreements that are not public, and they may never become public. So only the original copyright holder can police his own works. The best somebody else (a third party) can do is to write the original copyright holder and inform them of what you think is a violation of their work. I would note that in personally trying to get permission for modern works into e-Sword module format, that in most cases, these authors (1) have no internet presence, (2) could care less, and (3) are simply impossible to tract down short of hiring a private detective. This does not give permission for a person to steal their work, but it also shows a lax position on the original copyright owners' part towards defending legally their copyrights. This should guide the self-appointed "copyright police" to back down from their holy crusade. It is not in the interests and attitude of the original owner, why are you stirring the pot then?

  The Right to Use Copyrighted Material for Educational Purposes 

As I understand the copyright law, from the very beginning, the courts have granted certain inalienable rights to users of a work (those who legally have purchased a copyrighted book, etc. that go with that purchase,) as well as the entire world which has limited rights over other people's copyrighted works. This has been a legal denial of rights of the copyright owner, in favor of others who use his work.

As I understand it, the right to review and comment on a work, as well as limited rights for educational purposes, teaching, scholarship, research, and nonprofit educational purposes are not infringements of copyright. In other words the rights of the original copyright owner are limited no matter how much he disagrees with how others use his work. This is where courts to deal with what one or the other feel is a violation are necessary. As I understand it, the key elements in these cases are as following:

(1) intent of the supposed copyright "infringer" - he makes money or seeks to deny the owner from making money.

Here it is extremely important to ask if the copyright holder is using his work to make money. In other words, has he put it up on the Internet, or has it in paper form. The lack of doing this does not necessarily grant others the right to publish it, but it reduces the liability of infringers, and in many cases results in a simple "take down" or "cease and desist" order and nothing more.

Let's be absolutely clear here. If you take something under copyright by someone else, and you make economic gain from it, you are stealing their income.

Having said that, let's go a step further. If the original copyright owner publishes his work in a "free" medium (TV, radio, or Internet), then it is very questionable if he can further restrict other's use of this "free" content he has released "into the wild". Legally a court has to decide, but from what I understand of this (I am not a lawyer), this issue of protecting something that you have published publicly (aka posted on the Internet) makes it a hard case to win in court if you seek damages from others. As I understand it, the courts have generally allowed a cease and desist order, but refuse to order a removal of linking to the original source.

Considering this, I have very difficult time seeing how a preacher can copyright a sermon. Since the original "publication" of the work is in a public and free forum, having done that would necessary make that work "public". If he charged for admission (like a movie theater) without allowing it to ever be "in the wild", that is another matter totally different. But in my understanding, once a copyright owner starts down the road of offering in any public forum his work for free, he will have a very difficult time taking that "freedom" back.

To me, the judge will ask if he preaches or teaches openly to the general public that will come hear him, and this works against him completely in trying to seek damages for somebody who takes his work and uses it in a non-profit way. He may not particularly like what others do with his work, but he is a public figure speaking publicly. Does a presidential candidate have copyrights over a public speak he makes? Absolutely not. They may try the courts to keep the other party from quoting it, but in the end, it breaks down to a matter of original intent the copyright author. If he released his speech in a public forum, he has lost forever his copyrights over that content, and this would apply even if the political candidate did it in a party meeting of just his party. It is still considered open to anyone of that party, and it is still the same problem of being "public".

My conclusion here is study whether the original copyright owner sells his content always keeping it out of the public forum or has he deliberated published it in public forums. Once he has done that, then his copyrights are even more limited. Here I would understand that others cannot sell what he has put out publicly, but by the same token, he cannot force seeks damages from anybody who simply extends his public publishing of his own material. We must be careful here that it is the original copyright owner who puts it out publicly. Pastors preaching simply should be considered public. It is always correct to ask permission and respect the wishes of the material we republish.

(2) the amount of the work quoted.

Generally in educational circles, a great deal of latitude has been allowed for people to quote a copyrighted source AS LONG AS THEY CORRECTLY FOOTNOTE IT. The lack of footnoting of the source is considered an illicit scholarly practice, and is not really a legal matter.

Here the courts have always permitted quoting large parts of other people's works even against their protest in matters such as book reviews, and any kind of review type of thing. Educational purposes allow the photocopying of works and other things without seeking copyright permission. Again the economic element is very important. If a person photocopies a book in a library instead of buying one in the bookstore around the corner, then that is illegal. If the book is out of print (still under copyright though), then the situation seems to not be a depriving of income to copyright owner, and the courts take a different attitude towards this usage. Again if YOU photocopy an out of print book and sell it to others, you are clearly in violation of the law.

Usually the idea in the courts is that of a less than the majority of the work is the idea. Read carefully the usage rights of for example the NIV Bible. They grant you rights to copy up to so many verses (500) in one single work you produce. This is not generosity on their part usually, but rather a public acknowledge by them that they have to let things go because the courts will not allow them otherwise. They insist on including a footnote to them (which is essentially a commercial for their business) but it is not necessary as I understand it. I do not see them pushing that issue either.

(3) the clarity of the original copyright owner's ownership.

Here is the sticking part. Many people who represent themselves as "Original Copyright Owner" really are not. It is a very common practice of book publishers to take a book written by somebody so far back that it is now out of copyright, and they reprint the book, and with the reprint, they slap a copyright date of today on it. Likewise in other cases, when they print books that will shortly be out of copyright, they put no copyright date on it. The other thing I have seen is that under the old copyright law, a copyright owner had to renew his copyright after so many years for the second half of his rights. The courts have removed that necessity, but many book published put the renewal date as the copyright date, thus extending their copyright more time than is legal.

Let's be clear here. When you copy an out of copyright book and reprint it and put your name as copyright owner and today's date, it is that physical presentation that they are copyrighting. The original material remains free of copyright. Technically you cannot just photocopy it and sell it yourself. You can reformat it and then you are the official copyright owner of a new format of the out of copyright material. This being the principle, I cannot photocopy a book of out copyright but reprinted from the bookstore and sell it. Likewise I see the wholesale "robbing" of Ages Software packs or Libronix as illegal. The format must change in order for it to be a new copyrighted work.

This is technical, but the format does change because it is not in an e-Sword module format (or PDF or MSWord DOC, RTF, ebook, etc), but if the identifying format of the original work is still there, then there is a case for copyright infringement. In other words, you copy and paste from some source, and they have line breaks at the end of each line, that would identify it as belonging to that original source.

Let's mention for a minute the fact that there is nothing new under the sun. In general, all modern copyrighted works are studies of other people's works that are later combined and presented as a new work with commentary. Any Christian book you pick up is like this. To quote the original source where the author got his material usually takes us out of copyright considerations because modern authors are always citing older authors as a general rule. By this I do not mean to justify somebody copying a copyrighted modern work, just to point out that very little modern copyrighted works are original. They understand the system and use it, and in general this is why authors of books seldom are pushing these copyright issues, and usually book publishers and movie studios are the ones who are going crazy over copyright issues. But if book authors don't care so much, why is everything crazy in this area. Because money is lost. I mention also that most book authors get very little in royalties, and so the "middle men" are who make all the money and who are causing all the problems. Without original content authors, the middle men are left high and dry. Yet they return a very low percentage of a book's price back to the original publisher (sometimes below a single percentage point). That is why the book publishers buy the copyright from the owner and usually pay them a single payout. The book publisher makes even more money by not giving them even a percentage.

I write books. Check the book publishers asking them to print your book and what they will give you. It is very depressing. Many original content makers are self-publishing for this reason.

This gives us a clear picture of what a copyright judge takes into consideration when deciding a case.

(4) the purpose or use the "infringer" makes of the work (educational, informative, etc.)

The copyright courts also make a lot of the use a supposed "infringer" makes of a copyrighted work. In other words, the intent and use of the supposed infringer makes a lot of difference in these cases. The cases that are decided strongly in side of the copyright holder is where he was making money and somebody else cut his sales (very difficult to prove), or where he made no money, but the infringer did make a lot of money from selling what is not his to sell.

Having planted that idea, many cases result in "cease and desist" orders, and each has to pay their own legal expenses. Only a lawyer and judge can decide what is what here, but it is important to grasp the idea that the courts have permitted use of copyrighted works for educational purposes (teaching scholarship, research, etc). That means that it is not infringement when it is for informative or educational purposes.

This may be a difficult point to understand, but everything in the teaching aspect of a church is basically non-profit educational purpose. The issue is difficult to pressure that this is copyright infringement then. I would not go out making e-Sword modules of all the popular books in my corner Christian bookstore, but by the same token, people have gone crazy in Christian circles when perhaps they should remain more reserved with the copyright stuff.

In the end analysis, it is the attitude and desires of the copyright holder, and generally in Christianity, we need to understand that ALL MINISTERS seek to serve God (whatever faith they may represent). They are publicly seeking to convince people or inform people of what they personally understand, and this is a public forum where we labor, and copyright things are a legality that touches on others not making a profit off of my personal work, or others not causing me to lose income from the selling of my books and stuff.

Having said that, EVERY SINGLE THING MADE INTO AN E-SWORD MODULE WILL UNDERCUT BOOK PUBLISHER'S PROFITS! We need to understand that the people who "rattle our cage" are book publishers, and they are defending their business interests, and this is purely a secular thing, and has nothing to do with "ministry". A true "minister of God" desires that people all over the world understand, be informed, and serve God the best the can whether that particular minister is involved in that education or not. Book publisher's only desire their particular titles to be sold and go out, and they desire competition to be eliminated. They have the legal courts on their side only in a very limited and restricted way. Monopolies and unfair business practices such have come about of this protection of one's own business, and the courts run against that kind of thing granting liberty for everybody to compete.

  Technically every e-Sword module is under copyright 

There is a point here that is missed by many in the e-Sword community that needs to be clearly addressed. "Technically" if we want to be nit-picky, the copyright law makes it such that an author has power over his work almost regardless of what he says to "put it into the public domain", so even so he still has rights over that work. Considering that e-Sword has only been around for a few years, and since every single work that is a public domain or privately created content work, both are considered to be a "new" product when placed in the e-Sword format, and therefore everything made into an e-Sword module is under the copyright of who formatted that module starting when it was edited or reformatted, so nothing is really out of copyright problems.

When Zondervan publishing company takes a copy of Spurgeon's sermons and prints it, that particular package is under copyright although the actual content of Spurgeon's sermons is not. So where do that leave us? It is best to not let any module "out into the wild" if you are not willing to grant copyright (usage by others). There is a consideration in all of this that we are in the ministry of helping people, and Christianity is given to us as a pay for what you use, but is based on grace (somebody else sacrifices or pays for your benefit).

Practically, it is safest to only link to modules, and to only post modules that you personally produce. It is also important that if you produce an e-Sword module, that you put somewhere you name as the person who formatted it for e-Sword. This causes a legal problem for you if you make a module from something under copyright, so we need to be suspicious of modules with no identifying owner.

  My Recommendations 

1. I would recommend that you do not create e-Sword modules if you are not sure of their copyright status.

2. I would recommend that you either get permission or not make the module if you cannot ascertain the copyright date, the author's death date being out of copyright considerations, or if the author does not grant you permission.

3. I highly recommend that you make original content modules, and release them freely. Please put in the module in an obvious place permission to repost your module.

4. Be very strict in using, posting or linking to things that would appear obviously under copyright, but not in the copyright holder's home webpage.

5. Link and don't host yourself.