Copycats On the Superhighway: The Internet has sparked online copyright debates that Gutenberg never imagined when he began the communications revolution: Definitions of ‘use,’ ownership and the protected ‘essence’ of a work are all in jeopardy. Originally published in the ABA Journal, July, 1995
81 A.B.A.J. 68

By Ronald D. Coleman

Floating on the Internet, the material was like a gift from the electronic heavens to the small Utah-based publisher — hundreds of literary works by some of civilization’s greatest writers.

There was no copyright notice on the electronic collection, and the works themselves were all in the public domain and could not be copyrighted anyway.

All the publisher had to do was download the information, transfer it to a compact disc with read-only memory (a CD-ROM), and its marketing and sales departments could take over. The formatting, page breaks (even some unnoticed typographical errors) were all there. For $ 49, literate computer users would be able to curl up with Pacific Hitech’s “Masterpiece Library” and read in the soft glow of a computer screen.

But the “no-strings-attached” gift turned out to be a high-tech copyright violation that Pacific Hitech never suspected. Someone had transferred more than 800 works from a CD-ROM published by World Library on its “Library of the Future,” removed the copyright notice to that electronic version, and launched it into the Internet.

According to Michael Grow, who was the World Library attorney in the Pacific Hitech breach, “There are books and works of art that are in the public domain because copyrights don’t last forever. However, a compilation, translation or annotation may have enough original content to have its own copyright.

“Uploading or taking material off of the Internet might be an infringement of that copyright, even though the underlying work may be in the public domain. Unlike trade- mark law, copyright law has no exemption for innocent infringement,” points out Grow, of Vorys, Sater, Seymour & Pease in Washington, D.C.

Pacific Hitech agreed in U.S. District Court for the Northern District of California at San Jose in 1993 to stop selling its version of the works, to destroy its master copies and to give all unsold CD-ROMs to World Library for recycling or destruction. For its part, World Library acknowledged that Pacific Hitech had not acted in legally bad faith by copying the works from the Internet.

But in the unseen electronic world of information, faith can sometimes be all that users can rely on when they venture into the legal unknowns of publishing, reading, copying and gleaning from the bulletin boards and networks linked on the Internet. The copyright laws and justifications first printed centuries ago with hand-set type no longer seem appropriate for numeric codes and hypertext links.

The confusion is so great that lawyers, librarians, academics and publishers have turned, appropriately, to the Internet itself to seek answers. They log in daily to CNI-Copyright, an Internet interest group, to trade inquiries and answers about whether copying in one particular context or adapting information for another crosses into copyright violation.

But the larger questions being debated by scholars and lawmakers are how far copyright principles can be stretched to accommodate the new technology and what kind of legal structure is necessary to ensure maximum use and innovation of information and thought.

The gist of recommendations made recently by Bruce A. Lehman, commissioner of the U.S. Office of Patents and Trademarks, is that the law of royalties and infringements needs only to be updated and improved.

Others, however, contend that fundamental restructuring is in order, because a ride on the information superhighway out to be toll-free.

These advocates point out that copyright law was crafted for a print medium. It applies the same standard of “original work in a tangible medium of expression” to a hardcover book passed from reader to reader as it does to a commentary accessed over computer bulletin boards by thousands of readers.

The result is that some intellectual somersaults are necessary to apply the legal concepts to the burgeoning electronic media.

For example, what does it mean to “use” a work? The answer is fairly simple when the work is reproduced on paper or recorded on video- or audiotape: It is when a publisher obtains reproduction rights and someone buys a copy of the newspaper, magazine, book or cassette.

But the answer is more elusive when a computer delivers the material: Is reading on a display screen a use? Do downloading to a hard drive or a floppy disk, or printing out constitute separate uses? Does scrolling back a screen to reread a page of a document constitute yet another use?

Even concepts of ownership and the protected “essence” of a work — the very words or pictures that give it its character — are unclear. Does a publisher’s right to printed or recorded material extend to electronic versions that computer users can access repeatedly? Does protection go beyond the words or pictures in a work to include a huge numeric string of 1s and 0s, the digital code that only a computer can read for electronic transmission or copying? These are just some of the issues around which battle lines are drawn.

Publishers, writers and artists typically favor maintaining tight controls to protect their returns on the dissemination of their material by any means. Opponents of regulation on the information highway, however, argue that a hands-off approach will be more profitable in the long run, because it will attract more writers and artists to enter the electronic marketplace with the lure of more users eager to access material that is unhampered by usage restrictions.

“The technology could make everybody rich if no one gets too greedy,” says Jessica Litman, a law professor at Wayne State University in Detroit who has written on emerging copyright issues.

Those arguing for keeping copyright law intact suggest that the problem of the law changing with the times is nothing new.

As Jeffrey Lewis, a New York City intellectual property lawyer with Patterson, Belknap, Webb & Tyler, puts it, “Every couple of decades something shakes copyright law to its core,” but the basic regime continues to work.

Copyright law was devised roughly a hundred years after Johannes Gutenberg invented the printing press in the mid-15th century.

Notes Linda Pickering, an intellectual property specialist and partner with the firm of Lowenstein, Sandler, Kohl, Fisher & Boylan in Roseland, N.J., when Gutenberg’s printing press went “online,” it represented a sea change in copying technology. “Now you could make multiple copies of a work in the blink of an eye — a lot faster than a monastery full of monks could do it,” she says.

Thus, a need developed for a legal doctrine that could protect writers from easy copying of their works by people who had made no investment in it. Without that protection, writers, artists, and eventually cinematographers and recording artists, would no longer be willing to invest the talent and time it would take to produce more works. “The idea,” says Pickering, “was to provide just enough motivation for a limited period of time to reward their effort.”

In Gutenberg’s days of handsetting type letter by letter, by the time another printer could finish the laborious task of setting type and begin making copies, that motivational amount of protection had theoretically been earned. But as technology reduced that lead time, the law extended it artificially by enforcing copyright protection over a fixed period of time.

Building on a tradition of British and colonial copyright statutes, says Pickering, the U.S. Constitution granted Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Litman argues that the constitutional mandate, as well as public policy, requires a bare minimum level of incentive — just enough to bring creative works to the market, and little more. In fact, she questions the premise that much incentive is needed at all.

Litman points out in a 1994 article in the Cardozo Arts and Entertainment Law Journal, Vol. 13, that unprotected creativity flourishes quite well. ” [W]e don’t give copyright protection to fashions or food,” she writes, adding that, notwithstanding the lack of copyright protection, the Internet “is experiencing no death of material.”

Litman would like to see the copyright regime give up its futile attempts to control nonprofit, private use of copyrighted materials and focus instead on commercial exploitation of works. Her lament is that greed is driving the debate.

Congress, says Litman, never meant to regulate infringing “use” — including any appearance, however fleeting, of a protected work in a computer, or any transfer of the work to, from or through another computer — as closely as publishers and creators want.

“You want to have as much control as is appropriate over your own work,” she says, “but how many writers want the right to control whether the reader can go back [electronically] and read page 12 again?”

Pickering agrees that, in keeping with the Constitution’s goal of stimulating creative work, the law should provide just enough incentive. She says that copyright should respond to instantaneous digital copying by recognizing the ease of copying and instituting for every work a system of compulsory licensing of limited duration.

Under a mandatory license, producers must permit copying but are entitled to royalties. Such a system has long been in place for recorded music, explains Paul Goldstein, a professor at Stanford Law School and author of Copyright’s Highway (Hill and Wang, 1994). Goldstein says anyone is entitled, by paying a statutorily fixed 6.25 cents-per-copy royalty, to make a copy of a legitimately recorded song — without the composer’s permission.

Pickering says she believes this approach would work best when protecting copyrighted materials such as computer software, which is often obsolete at the end of three years anyway.

Compulsory licensing lowers the price of copyrighted materials because it tends to be fixed at a level to attract the greatest number of consumers. Such an approach is consistent with the view that a primary goal of copyright law is providing the “marginal” amount of incentive to creators necessary to bring products to the market. Keeping the price low, according to this view, allows more people to afford it. “What’s wrong,” asks Pickering, “with getting more information to more people?”

Yet compulsory licensing is regarded by many as an unwarranted form of government price control. One such observer is the government’s man himself, Patents and Trademarks commissioner Lehman. ” Hardware manufacturers like the idea of a mandatory software license, which they can integrate into their own products,” he says. “But they are not so big on the concept as applied to their own products. There’s a strong consensus that government price-setting, such as a compulsory license, is the wrong way to go in a free-market system.”

Tom Polga, vice president for government affairs for Viacom, the media and entertainment colossus, agrees. “The government should not get involved in setting prices,” he argues. The government’s role in copyrights is fundamental and constitutional, he says, but that role should be registration and enforcement, not micromanagement.

“We tend to view intellectual property and other intangible property the same way as tangible property. The government has a law preventing theft in either case, but no mandatory license,” Polga says.

Goldstein and others see the future of online copyright evolving into a pay-as-you-go system. “When a copyright owner deposits its works into some future electronic retrieval system,” he writes, “it will be able to attach a price tag to each work. . . . If the user decides to make a copy at the posted rate, the system will print it out and electronically charge his account.”

Goldstein rejects Litman’s approach of free access and use, and argues that creators can only satisfy consumer preferences that are measured by price.

Ideally, he says, “copyright generally facilitates perfect price discrimination,” because, in theory, the copyright user pays only what the material is worth to him or her and buys only as many uses of it as he or she needs.

However, periodical articles are usually sold on the basis of “first-use,” North American publication rights only. Once the material is printed or distributed electronically, the first-use expires. Advocates of stringent controls along the information highway contend that any subsequent electronic downloading and retrieval is a subsequent use.

To buttress that point, eight members of the National Writers Union, a coalition of about 4,000 free-lance writers, are suing several publishers over their offering of magazine articles via facsimile or online without getting authors’ permission and paying for what the writers consider a subsequent use. Tasini v. The New York Times Co., No. 93-CIV8678 (S.D. NY).

The writers suspect that they may have a legal point, says Irvin Muchnick, assistant director of the NWU, because in the past year, some publishers have developed contracts that require writers, who are seldom in a position to bargain, to permit re-use of their material in any subsequent medium. “But second uses are how we make a living,” says Muchnick.

Ultimately, says Litman, “We have to come up with a control and compensation system for publishers, authors and intermediaries.” She expresses the concern, however, that in their zeal to maximize control over their work, creators forget that they are users of the works of others, too.

Even under a system that would set up a pay-as-you-go toll booth, a buyer legally could pay for a copy, then sell cut-rate copies of the copy or make a “statement” by making protected material available to the world for free.

But the technology that would charge users’ accounts for every access of a protected work on the information highway also could provide an electronic police officer to make certain that no one subsequently handed out anything free.

One of the most significant, and controversial, of the proposed changes by the Patents and Trademarks office is to make it illegal to use devices or services that allow users to break a protective code that would prevent unauthorized copying.

Viacom’s Polga supports this proposal, pointing to the success of the cable industry in preventing or minimizing the unscrambling of encrypted signals. “We want to stop the organized pirates, not the Tom, Dick and Harrys who have some technical skill.”

Wayne State’s Litman, though, opposes the government’s anti-decryption proposal. Electronic anticopy protection could be used just as effectively on noncopyrightable materials, she says. Thus a decryption prohibition would give de facto protection to otherwise unprotected material and create electronically, if not legally, sanctioned monopolies.

Lehman stands behind the proposal. He bristles at one published report that suggested the decryption penalty could run afoul of U.S. Supreme Court precedent permitting “reverse engineering” of technology, noting that reverse engineering is irrelevant to copyright.

“From the point of view of national policy,” Lehman says, “we want people to have to write software themselves.”

The issues, obviously, are complicated. Is the Internet just a 20th-century Gutenberg Bible? Litman says no. “The analogy to the printing press is very legalistic but it doesn’t register with computer people,” she says.

Other commentators are more drastic. John P. Barlow, a co-founder and chairman of the Electronic Frontier Foundation, writing in a recent issue of Wired magazine, argues that “intellectual property law cannot be patched, retrofitted, or expanded to contain digitized expression anymore than real estate law might be revised to cover the allocation of broadcasting spectrum.”

All that is certain for the future is that the legal debates will continue — in law offices and academia, on Capitol Hill and, of course, over the ‘Net.

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