The internet offers powerful tools for democratic unionism. There are three important sources of union democracy rights online: the “fair use” doctrine that limits copyright and trademark law, the Bill of Rights of Members of Labor Organizations in the Labor Management Reporting and Disclosure Act (LMRDA), and the First Amendment to the US Constitution. This short piece introduces these sources of our rights.
1. Fair Use
Under the Copyright Act of 1976, “the fair use of a copyrighted work… for purposes such as criticism, comment, news reporting, teaching…, scholarship, or research, is not an infringement of copyright.” Courts use four factors to determine whether a use of copyrighted material constitutes fair use:
- the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and,
- the effect of the use upon the potential market for or value of the copyrighted work.
According to Public Citizen’s Paul Levy, “the two most important factors in determining fair use are whether the use is commercial or non-commercial, and whether the use interferes in the copyright owner’s earning a legitimate profit from the work.” This is not the place for a detailed discussion of Fair Use, but one can see at a glance how a typical rank-and-file website stands up against these criteria. The purpose of such websites is to educate members and facilitate their participation in union affairs, not to sell products. Likewise, unions are membership organizations, not manufacturers of products. AUD often urges unionists to provide a link to the union constitution, or, if it is not available, to reproduce the entire text of the union constitution on their websites. This looks like a potential weakness in a fair use claim — using the whole document — but think about it: the union constitution is a public document available from the Labor Department. Anyone can get a copy. And, if the unionist “adds value” to the constitution — by making it easier to use online or adding an index for example — his/her claim is even stronger.
Nor does trademark law bar Fair Use. According to BitLaw, a leading source of information about internet law, “a plaintiff in a trademark case has the burden of proving that the defendant’s use of a mark has created a likelihood-of-confusion about the origin of the defendant’s goods or services.” Would a visitor to a typical rank-and-file website think she had stumbled on the official union website? Is a rank-and-file site that is purely non-commercial somehow cutting into the union’s “market” by using the union name? On its face the idea is ridiculous. Still, it is a good idea to include a disclaimer just to be perfectly clear. Put it on the front page and make it easy to find. Here is a very thorough example:
- The “IBEW® logo” (and any variants of it ) and the letters “IBEW®” are registered trademarks owned by the International Brotherhood of Electrical Workers® and any use of them on this website is not and does not constitute an endorsement by the IBEW® for the content of this website and its associated pages. We have no ties or associations to or with the IBEW® other than by virtue of the fact that most of our members are in fact dues-paying members-in-good-standing or retired from the IBEW® and further; as such we do not claim in any manner to be an agent or ‘official’ representative or by any description, official spokesmen of that organization or its’ local unions. The opinions stated herein and published within our pages are our own and/or those of the individual members and posters and do not necessarily reflect the official opinions and policies of the IBEW®.
2. LMRDA Title One The most important source of free speech for unionists online is the Labor Management Reporting and Disclosure Act (LMRDA), and its Bill of Rights. The LMRDA’s Bill of Rights gives unionists broad protection from union discipline in retaliation for their speech, safeguarding even speech that would be ruled slanderous in another context. The same Bill of Rights makes union constitutions and other information, including financial reports, available to union members and the public. According to Paul Levy, “the LMRDA also shows that free speech is particularly important in a labor context and the Congress recognized that in passing this law. This reinforces both the copyright/trademark defense and the First Amendment protection.” You can find more information about the LMRDA on the AUD website.
3. The First Amendment to the US Constitution Unionists facing retaliation for their speech or activism often turn to the US Constitution, “what about free speech, what about the First Amendment?” But, the US Constitution applies to government action that restricts free speech – not to action by a union or an employer. (This is why the LMRDA’s Bill of Rights is so important.) Still, in internet speech cases, unionists can use the First Amendment. Here’s how: If the union’s officers were to try to restrict a member’s speech by taking legal action their attorneys would have to go to court to get an injunction. If the court issued an injunction or an award, the government would be taking action to restrict speech and the member’s First Amendment rights would kick in. There are decisions of the United States Courts of Appeals, as well as numerous decisions of federal district courts throughout the country that uphold the exercise of First Amendment Rights online.
Share and share alike It is also a good idea to share your work. If your version of the union constitution is easier to use, share it with other union officers and members. You can offer to place a link to the official website or include an XML feed from the union site. Instead of a copyright notice, why not use a Creative Commons, non-commercial, share-alike license?
The struggle goes on AUD has reported on many cases of union officials trying to claim the union constitution, logo, initials and even the union name as their exclusive property. The UFCW has been particularly aggressive, suing the operators of two Canadian websites, but has so far had limited success. (Even in Canada, where copyright and trademark law, and the lack of a statute like the LMRDA, give plaintiffs advantages.) For decades, union officials in the U.S. who want to suppress union members’ free speech have been limited by federal law, the LMRDA, which provides clear protection for union members’ democratic rights, with a solid base of decisions interpreting the statute. With the advent of the internet, however, old problems take on new life. By staking out broad claims to intellectual property, unions like the IBEW are attempting to win back, in a new venue, authoritarian powers which they had lost in another.
Because of the increasing importance of the internet in union life and the need for information, referrals, and support for unionists facing retaliation for exercise of their democratic rights online, AUD has an Internet Union Democracy Project. For more information see www.uniondemocracy.org.
Cyber-democracy: your legal rights online (handout)