Running Head: DIGITAL COPYRIGHT
Digital Horizons of the Copyright Frontier
Copyright and the Internet
Gates Matthew Stoner
The University of Arizona
Paper to be presented at the Communication and Law interest group Top Student and Debut papers panel at the Western States Communication Association Conference February 19-23, 1999 in Vancouver, B.C.
Author's Note:
Gates Matthew Stoner is a graduate student in the Department of Communication at The University of Arizona (B.S.C., Santa Clara U. 1997, B.A., Santa Clara U. 1998). The author would like to thank Laurie Mason, Ph.D., J.D. for helpful comments on an early version of this paper.
Correspondence concerning this article should be addressed to the author at the Department of Communication, University of Arizona, Communication Building #25, Tucson Arizona 85721-0025. Electronic mail may be sent to GStoner@u.arizona.edu.
Abstract
The horizon of copyright is changing with the introduction of digital technologies which ease the ability to produce and rapidly distribute undistinguishable copies. The Internet and other digital technologies create new questions for copyright doctrine in the next millennium, such as infringement liability, fair use, and enforcement of copyright in a global decentralized network, the Internet. Digital copying could radically undermine traditional copyright markets. This paper examines the historical progression of copyright legislation in an attempt to develop a framework for understanding digital copyright.
Digital reproduction and storage technologies create new questions for copyright doctrine in the next millennium, such as infringement liability, fair use, and enforcement of copyright in a global decentralized network, the Internet. After nearly 300 years of copyright doctrine in England and the United States, the courts and political leaders face a new challenge with the advent of digital technology. Digital technologies ease the ability to infringe upon copyright holder's exclusive rights to their intellectual property. Unlike photocopy and cassette tape infringement of the past decades, digital technologies produce identical and indistinguishable copies from the original. Digital copying could radically undermine traditional copyright markets.[1] Digital technology threatens copyright's balancing of public access with private ownership. At the forefront of digital technologies changing notions of copyright is the World-Wide Web (hereinafter referred to as the Web), which allow users to easily make personal copies of text, images, music and other digital media posted to the Internet. The Supreme Court has held that fair use doctrine accommodates for personal copies for such purposes as time shifting [2], while the Court has made a clear distinction between personal and commercial use of copyrighted materials [3]. The current jurisprudence of Internet law attempts to apply conventions of print and broadcast media to first legal decisions regarding the Internet.[4] Print media established the scope of early copyright doctrine, such as the Statue of Anne. [5] Copyright doctrine arose from the unlicensed reproduction (printers in England republishing others' works) bringing economic harm instead of benefits to their creators. Copyright establishes liabilities for such infringement. Technologies such as the Web blur the distinction between personal and commercial use, especially in respect to the movement towards "digital libraries" [6] and digital archives using the Web. New technological and legislative solutions are needed to address the copyright issues raised by digital technology.
Communication technologies such as the printing press, telegraph, film projection systems, radio and television broadcasting, photocopiers, and cable television have transformed copyright doctrine by propelling revisions to maintain the precarious balance between private ownership and public access. Each new technology challenges previous assumptions and jurisprudence, such as the printing press (mass reproduction), telegraph (speed of news dissemination), film (rights to derivative works), radio/television (protection for non-printed material), and cable television (re-broadcasting). The Internet already has begun to challenge assumptions and jurisprudence regarding fair use and infringement of digital media. A historical review of previous copyright decisions provides a foundation from which to discern copyright in a digital age. Rights regarding intellectual and creative works are not solely the creation of new technologies, such debates in ancient Greece and Rome argued these rights without the printing press or computers.
Ideas regarding copyright and other intellectual property rights predated the Renaissance and Industrial Revolution to ancient Greece and Rome. The predominance of oral culture in ancient civilizations eliminated the need for formal law. The limits of human memory were also limits on replication of a speaker's work. Thus, speakers had a degree of control as to the means of distribution and reproduction for their intellectual works. Plato's Phaedrus illustrates a common case. Phaedrus is walking with Socrates after listening to a speech by Lysias:
Phaedrus: Come, come, my good Socrates. Do you suppose an amateur like me can adequately reproduce what it took Lysias, the best writer living, so much time and study to compose? Of course not. Yet, I'd rather be able to do that than come into a fortune.
Socrates: My dear Phaedrus, I know my Phaedrus as well as I know my own name. And being so I'm convinced that he wasn't content with a single hearing of Lysias speech but made him repeat it a number of times and that Lysias willingly complied. But even that didn't satisfy Phaedrus, and in the end he took the manuscript and went over his favorite passages by himself
Phaedrus: Well, this is what I will do. I didn't learn the speech by heart, Socrates, I assure you, but I will summarize point by point from the beginning the argument of almost all that Lysais said
Socrates: Yes, but before you begin on that, dear heart, just let me see what it is you are holding in your left hand under your cloak; I strong suspect it is the actual speech.
Socrates dialogue illustrates several important points such as difficulties in reproduction, economic incentives and protection for speakers, and early cases of infringement. Lysias' speech was protected somewhat by Phaedrus' memory, but the availability of a printed manuscript aided Phaedrus to recall Lysias' work. Even the introduction of paper did not precipitate any need for statutory law, as reproduction of intellectual property was still rare. The handwritten manuscript also limited the reproduction of Lysias' work. Copying, a task that medieval monks labored over intensively, was extremely time consuming and costly - both factors restricted reproduction enormously. Guttenberg's invention of the printing press in 1453 not only revolutionized Europe from an oral culture to a print culture, but also spurred the need for new laws to regulate reproduction and distribution of printed materials. Lysias was able to control the first distribution of the manuscript and mass reproduction was not an issue without the technology of the printing press.
The printing press, in addition to easing the ability to make copies, also radically changed the power of speakers. Unlike the Forum in ancient Greece where a speaker's words were restricted to the audience present [7], the forum of print vastly expanded the audience of speakers that in turn resulted in the need to protect speech. Speakers, such as Lysias, in an oral culture for the most part controlled the means of distribution of their ideas through their speech and any limited copies of printed works. Without bringing benefit to their creator, a printing press reproduced a speaker's intellectual works. The printing press was revolutionary in that literacy spread throughout Europe and books of knowledge were no longer restricted to the monastery libraries and the elite class. A new public forum was created with movable type and mass production of newspapers and books. The concept of a "public forum" is central to notions of a marketplace of ideas, which in turn is a premise to common law doctrine in England and the United States. Intrinsically tied to the public forum is copyright doctrine, which from its inception has attempted to balance public access with exclusive private ownership for a limited period.
In England before 1710, the Stationers Company controlled a monopoly of book publishing in England by a licensing charter from the monarchy. Copyright supporters, such as John Locke, argued protection of one's intellectual works is a "natural" right. Locke's memorandum to the House of Commons, in 1694 argued against the Stationers Company's monopoly of printed works in England, which lead to the non-renewal of the charter. [8] Afterwards the enactment of the Statue of Anne [9] in 1710 by the English parliament became the first major statutory copyright law introducing protection for printed works. Preambles of early copyright statutory law, such as the Statue of Anne, cite the inherent connection between providing economic incentives and the creations of works that benefit society.
Whereas printers, booksellers, and other persons, have of late frequently taken the liberty of printing, reprinting, and publishing, or causing to be printed, reprinted, and published, books and other writings without the consent of the author or proprietors of such books and writings, to their very great detriment, and too often to the run of them and their families. [10]
Copyright doctrine developed from an equity theory argument that incentives are required for authors to create works, which add societal value to democracy and to reward authors for their contribution. [11] In the case of Lysias, he was well aware that Phaedrus had a copy of his work; if the printing press existed, Lysias could not control the dissemination of his work by third parties reproducing it without his consent. With the printing press and the Statue of Anne, copyright clearinghouses developed to aid in the enforcement and as a registry of copyrights. The Stationers Company in England, having lost its monopoly, converted to such a copyright clearinghouse. [12]
The Statue of Anne and the Copyright Clause of the United States Constitution [13] focus on "the instrumental justification for copyright" by granting power to the legislative branch to promote the production of knowledge and creative works for society. As the Court noted in Mazer v. Stein and quoted in Zacchini v. Scripps Howard
The economics philosophy behind the clause empowering Congress to grant patents and copyright is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in 'Science and useful Arts.' [ 433 U.S. 562, 577]
The Court has held in copyright cases that the promotion of the "sciences and useful arts" and the marketplace of ideas are very important to a democracy. Thus, the Court has protected speech through copyright doctrine. An important aspect of First amendment jurisprudence is the accommodations to ensure speech is protected from chilling affects. Copyright is one instrument, which attempts to protect speech rights. In a democracy, speech plays a crucial role in the maintenance of the marketplace of ideas. Yet, the exclusive right is not absolute, as Justice Brandeis noted in International News Service v. Associated Press. "The plaintiff has no absolute right to the protection of his production; he has merely the qualified right to be protected against the defendant's acts " of infringement. Copyright law ensures only a degree of protection for intellectual property while balancing public access. In such a balancing test, neither overboard nor limited copyright law would bring the most benefit to a democracy. As a result in the United States, copyright law has been continually revised in 1831, 1870, 1909 and 1976 to address the introduction of new communication technologies [14] and maintain a desired balance between public access and private ownership.
In the Globe Newspapers Co. v. Walker [15] case decided a year before the copyright revision of 1909, the Court noted that even though the Act contained no explicit language regarding copyright for maps, the defendant was liable for damages for copyright infringement. In the 1909 revision, Congress extended protection with new categories for all works of authorship. In infringement cases after the Walker case, the inquiry of the court considers three types of infringement - direct, vicarious, and contributory. An entity or individual found to violate a copyright holder's rights as prescribed in Section106 is liable for direct infringement. The courts have established a two-prong test for prima facie cases of direct copyright infringement, that the plaintiff must prove both ownership of a valid copyright of the infringed work and copying by the defendant. Vicarious infringement differs in that the defendant is liable if they have the right and ability to control the infringer's acts, and receives a direct financial benefit from the infringement. Lastly, contributory infringement is found if an individual knowingly participates in or furthers a tortious act is jointly liability with the infringer. Each type of infringement follows an equity principle enforcing the qualified right of protection. The Court in Harper & Row, Publishers, Inc v. Nation Enterprises [16] affirmed that copyright holders had an exclusive right to the first public appearance of a work. "Under ordinary circumstance, the author's right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use."
A solution to the balancing question for the United States democratic model has been to revise the extension period for copyrights from 28 years to life of the creator plus 50 years. [17] First, the copyright revision of 1909 included new provisions to extend the copyright protections to a period of 56 years and new categories to protect all works of authorship. The next major revision of copyright law in 1976 extending a copyright holder's exclusive rights to the life of the author plus 50 years. By extending exclusive rights to life plus 50 years, the United States joined European countries in accordance to the Berne Convention of 1886, which the United States signed in 1988. The passage of the Act also recognized the need to extend copyright protection to works disseminated through new technologies, such as cable and satellite television. New provisions were also included for libraries and scholarship use of copyrighted materials. The Act revised protection to include "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, and otherwise communicated, either directly or with the aid of a machine or device." [18]
In the case of International News Service v. Associated Press [19], the Court considered copyright and infringement in regards to a new technology, the telegraph. Justice Pitney noted that the speed of the telegraph and telephone radically change previous channels for the distribution of breaking news. The International case centered on the news service re-distributing information legally obtained from AP publicly posted bulletins. Justice Pitney noted
But the news element-the information respecting current events contained in the literary production-is not the creation of the writer, but is a report of matters that ordinarily are publici juris, it is the history of the day. It is not to be supposed that the framers of the Constitution, when they empowered Congress 'to promote the science and useful arts intended to confer upon one who might happen to be the first to report a historic event the exclusive right for any period to spread the knowledge of it.
Justice Brandeis echoed the notion that ideas and certain items of public importance, such as the news of the day, are not protected by copyright. "The general rule of law is, that the noblest of human productions - knowledge, truths ascertained, conceptions, and ideas - become, after voluntary communication to others, free as the air to common use." Justice Pitney affirmed the clear distinction between personal and commercial fair use. "The right of a purchaser of a single newspaper to spread knowledge of its contents gratuitously, for any legitimate purpose not unreasonably interfering with the complainant's right to make merchandise of it, may be admitted but to transmit news for commercial use is a very different matter." Redistribution of copyrighted materials would also become an issue with the introduction of broadcast media.
Broadcast media ushered the two significant movements in copyright legislation in the 20th century. First, motion pictures challenged copyright legislation regarding whether authors of printed works also control the rights to later reproductions in film [20], which later included cable and broadcast television. Then, the VCR spurred the second movement in copyright legislation [21] with the notion of fair use [22] and reproduction technologies. Before the VCR, television broadcasts were restricted to the memories of the viewers, much like speeches in the ancient Greece forum. In Zacchini v. Scripps-Howard Broadcasting [23] the Court considered the case of Mr. Zacchini's "human cannonball" act and its broadcast, in entirety, on the local news by the respondent. The Court held that the television broadcast posed a substantial threat to the economic value of the performance and petitioner's right to protection. The Court reversed the lower court's decision recognizing the performer had a right to reap economic benefits from his performance. VCR's not only receives television broadcasts, such Zacchini's performance or the local news, but also offered a means to permanently store such performance for later viewing.
The VCR, similar to the printing press and photocopiers, introduced the ability to reproduce a performance as easy as a book. Film and television production companies, such as Universal and Disney, argued that the VCR would bring economic harm to copyright holders and destroy any incentive for authors to create new works. The Court held in Sony Corp. v. Universal City Studios, Inc. those holders of copyrights for television programs cannot prevent the use of VCRs to tape programs for later viewing. The Court did not find that taping television programs for personal use infringed on the rights of owners by section 106 of the Copyright Act. Justice Stevens noted the District Court's opinion that if affirmed the case would enlarge the scope of the respondents' monopoly beyond what is encompassed by copyright.
The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.
The Court reasoned Sony's sale of VCR equipment did not constitute contributory infringement and that the VCR is capable of substantial non-infringing uses. The Court noted several values in recording television programs, such as parents recording Mr. Roger's Neighbor to show their children at a proper time and television programs being broadcast in the same time-slot for later viewing. Such uses of a VCR the Court determined to be fair use. Fair use is determined on a case-by-case basis by a four prong test: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) value of the copyrighted work. [24] The fair use test derives from the authority of section 106 of the Act which gives the copyright holder the exclusive right to produce copies of the work, prepare derivative works based on the original, distribute copies publicly in any medium from books to the Internet, and to display the work publicly, but the right is limited by a condition of life of the creator plus 50 years. The limiting of holder's right attempts to balance private ownership with public access.
Unlike previous print and broadcast media, digital media can transmit text, audio, graphics, video and anything that can be encoded into digital form. Digital technologies such ad CD players, VideoDisc players, computers, and the Web seamlessly transmit prefect signals, which can be easily stored or reproduced. Any digital media posted to the Web then becomes accessible by anyone with an Internet connection. With millions homepages on the Internet, it is nearly impossible for copyright holders to monitor their works and ensure copyright enforcement. Although in the last 5 years some notable cases of copyright infringement have been argued, such as Religious Technology Center v. Netcom On-Line Communications Services, Inc., Religious Technology Center v. F.A.C.T.NET, Inc .[25], Playboy Enterprises Inc. v. Frena [26], and Sega Enterprises Ltd. V. MAPHIA [27]. The prominence and legal resources of these copyright holders gave them the ability to challenge copyright infringement; smaller web service providers and authors might not be able to bring similar action to protect copyrights. A challenge for new digital copyright legislation will be to balance fair use and the ability of copyright holders to enforce their rights. Electronic copyright clearinghouses could be created with technologies such as the java applets and digital watermarks to monitor copyrights
New technologies are currently being developed such as 'digital watermarks' and Java applets to prevent image copying. The Java applets [28] solution would encode graphics to report infringement to the copyright holder. This solution raises privacy concerns for users of the Internet. If a person were to photocopy or even just read an article out of a magazine, such as Time, the individual would not report the act to Time. Why should the Internet be any different? Such a process would be too cumbersome for Time and the individual, but the technology exists which would make such reporting easy. A second problem is that if an individual really wants to get a copy of an image or text, they will be able to by taking a screen shot of their monitor or just printing the screen. No full-proof technological solution exists to prevent copying of digital media from the Web. A related problem is the easy of copying could bring chilling effects for content on the Internet with authors not producing works for the Web.
Digital watermarks provide another solution to the digital manipulation problem. For example, the Vatican Library Web Site contains digital images from its archives. Each image contains a digital watermark which slightly alters the image increasing, the difficulty to digitally manipulate the image. The watermark is the Vatican Library Logo, which is nearly transparent over the original image; thus, no image manipulation will be able to remove the logo without ruining the original image. Thus, any infringement is deterred and the Vatican Library would be able to detect any infringement on another web site. These new technologies are early technological solutions, other legislative solutions are also being considered.
A question yet to be addressed by the Court is whether the Web is tranformative, that is if after a copyrighted work is encoded into HTML (HyperText Markup Language) whether it is substainally different than the print or broadcast media version. HTML is the programming language for the Web, which instruct web browser clients [29] how to display text, graphics and other digital information. Web browsers save a copy of all browsed graphics and HTML files in a cache folder on the users hard drive. The program based on a user's preference periodically deletes these files. Users can additionally save any graphics or text from the browser to their hard drive for later use or to incorporate into their own html documents. The later ability to save digital data for personal use, rather than by the cache function of a browser, is the center of the debate regarding digital copyright legislation. In addition, many print and broadcast media organizations are establishing a digital or "web presence" with their own homepages on the Internet, thus digital copyright promises to be a major issue for the next century. Before the explosion in the use of the Web in 1993, similar copyright cases focused on bulletin board systems (BBS). The Supreme Court decided a few such cases in the early 1990s. In Playboy Enterprises, Inc v. Frena [30] the court found direct infringement by the BBS operator whose system had digital copies of photographs from Playboy magazine. In a similar case, Sega Enterprises Ltd. V. MAPHIA. [31], the court found both direct and contributory infringement by the BBS operator for "provision of facilities, direction, knowledge, and encouragement, amounts to contributory infringement[32].
The Sony case gives insight to future cases regarding the Internet. Although the case involved a different media, videocassettes, the fundamental questions for copyright doctrine remains the same. How does one balance public access with private ownership? Central to the Universal's position was the economic harm argument of lost profits from individuals recording television broadcasts. The Court held that the public had legitimate reasons, such as time shifting, to make personal copies of programs and that such copies qualified under fair use.
The record and findings of the District Court lead us to two conclusions. First, Sony demonstrated a significant likelihood that substantial numbers of copyright holders who license their works for broadcast on free television would not object to having their broadcast time-shifted by private viewers. And second, the respondents failed to demonstrate that time-shifting would cause any likelihood of nonminimal harm to the potential market for, or value of, their copyrighted works.
A significant determinant of fair use is the second prong regarding profitability. If a person were to videotape an episode of a popular television sitcom, such as Seinfield, and made copies to sell to friends, the action would not meet the fair use test. In regards to the Internet, a similar argument could be made for posting digital copyrighted materials, such as Madonna's latest single [33] to a web page that is public accessible. However, would sending a friend via email the same digital music file (MPEG) be fair use or infringement? Libraries operate under the first-sale doctrine in lending books to patrons. The first-sale doctrine gives the copyright holder privileges to control the first sale, thus the economic benefits from that sale, but excludes the holder from future financial rewards. This doctrine does not endorse for-profit pirating or bootlegging of books and tapes; the courts have decided just the opposite [34]. The doctrine attempts to establish a balancing between public access and private ownership.
The Court held that Sony was not liable for infringement by selling videocassette recorders and media, which aid in the process copyright infringement. As Justice Stevens noted affirming the case would have radical implications, for example every computer maker could be found liable for infringement. In the few digital media cases argued thus far, the courts have divided on infringement by Internet Service Providers (ISPs). The issue undoubtedly will be argued in the Supreme Court in the next few years. The Court held in Religious Technology Center v. NetCom On-line Communication Services, Inc, that an ISP was not liable for direct infringement, which is based on a strict liability standard and does not require knowledge or intent by the infringer. Several pieces of legislation have been introduced in the current session of Congress to address these issues of infringement liability in regards to digital media and ISPs.
The Digital Copyright Clarification and Technology Education Act of 1997 introduced by Senator Ashcroft is currently in committee. Title 1 of the Act amends the Copyright Act to absolve a person of liability for direct, vicarious, or contributory infringement arising out of electronic communication services (ISPs) with respect for infringement by a user. The protection absolves liability with material posted to an online system, such as the Internet, that is controlled by an ISP unless the ISP received notice that particular material is infringing and fails to remove, disable, or block access to the material within ten days or until receiving a court order. Title II expands fair use of copyrighted works to included use by analog or digital transmission in connection with teaching, research, and other specified activities. This protection includes the performance, display, or distribution of copyrighted works in connection with distance education activities or other course work, which is otherwise lawful and does not conflict with the normal exploitation of the work. Lastly, Title III implements the WIPO (World Intellectual Property Organization) treaty that "Prohibits, for purposes of infringement, the knowing removal, deactivation, or circumvention of technological measure used by a copyright owner to precluded or limit reproduction of a work." The Copyright Revision Act in 1976 no longer required a copyright notice or mark for a work to be considered copyrighted. In a digital age with public domain and copyright material co-existing on the web, digital watermarks provide one technological solution. Traditional print and broadcast media organizations have been at the forefront of providing content via the Internet.
Many newspapers in the last five years have begun producing digital versions. Some newspapers such as the Arizona Republic [35]post all newspaper stories to their web site. Other newspapers, such as the San Jose Mercury News, offer some stories to the public and require digital subscriptions for access to all the articles [36]. Newspapers are well positioned to incorporate some of the first digital watermarking and Java applet schemes in development. Such developments undoubtedly would raise public concerns regarding copyright. From the model of Sony v. Universal, an individual having obtained a news story from an online newspaper service, such as the Mercury Center, could re-transmit the story via email to a co-worker regarding the current stock speculation of their employer. Is this a case of fair use? The case is similar to passing around a newspaper by the water cooler or posting the article by the copy machine. Do such practices deprive the copyright holder from the financial benefit of another sale? An earlier mentioned case from the beginning of the 19th century addressed many of these issues with another new technology, the telegraph. In International News Service v. Associated Press, Justice Pitney noted:
"The right of a purchaser of a single newspaper to spread knowledge of its contents gratuitously, for any legitimate purpose not unreasonably interfering with the complainant's right to make merchandise of it, may be admitted but to transmit news for commercial use is a very different matter."
A commercial, for-profit, web site would obviously not qualify under the fair use test. However, would a personal web page on the Internet? What would a fair use test incorporate for personal web pages? What factors would the test need to address? The notion of public access is two-fold, one to provide individual access to information they cannot financially afford and, second, prevent a totally monopoly by content providers, such as book publishers, broadcasters, filmmakers, etc. From a utility argument, a monopoly would not bring the most benefit to the public.
A future issue for digital copyright will be the introduction of digital television in the next five years. Currently the major networks and software companies such as Microsoft are attempting to create technology to bring television to the Internet. Currently, very primitive "video streaming" technology exists and the courts have yet to address copyright in regards to broadcast media on the Internet. Undoubtedly this issue will surface after the technology become common and widespread. Libraries and academic research present challenges digital copyright with the increasing use of digital full text books and journals. Unlike microfiche, photocopiers and videocassette records, digital technologies ease the ability of reproduction of undistinguishable copies. Technological solutions, such as reporting infringement to copyright holders, create other concerns regarding privacy and fair use. How would an electronic book be able to determine fair use? Lastly, the Internet is a decentralized network of computer hosts with no centralized authority enforcing policies. The global nature of the Internet presents another obstacle for digital copyright legislation and jurisdiction.
In Playboy Enterprises Inc. v. Frena, the court held the defendant for direct infringement, but Frena was operating a for-profit adult content BBS. How does Frena differ from Jane Doe's personal homepage? Ms. Doe's web page is for her immediate friends and family, while anyone connected to the Internet can access the page. If Ms. Doe placed an image of the cover of Vogue Spring Issue on her page with a hypertext link to the magazine, would this be a case of infringement? What if Ms. Does' personal web page became very popular for her New England gardening tips? Would higher volume accessing her page change the end result of a fair use test?
The case of Ms. Doe's web page surfaces some important questions for copyright in a digital age, such as fair use, infringement, and liability, which each will be addressed separately below.
Does Ms. Doe's web page bring economic harm to the copyright holder? Clearly, Ms. Doe is not gaining economic rewards from people reading the web page, nor is the magazine losing potential readerships [37]. The link from Ms. Doe's web page actually benefits the magazine with increased online readership, which would bring economic benefits to the magazine rather than harm since readership increases advertising revenue.
Posting of other digital material from Vogue, such as an article might not qualify as fair use. The third prong of the fair use test evaluates the amount of content used. A full article or full issue would not meet this test. A substantial quote from an article or informational sidebar might be a fair use depending on the other prongs of the test. The Court noted in Harper & Row, Publishers, Inc v. Nation Enterprises that substantiality of the portion used does not have to be proportionally significant if the infringement is prominently featured [38]. In the Nation case, the Court disagreed with the Second Circuit opinion that the magazine's use of 13% of the copyrighted was not substantial and found the qualitative value of the material used was the heart of the copyrighted manuscript.
Justice Brandeis in his International v. AP dissent noted that ideas and news events are not copyrightable. Public access to reporting regarding news events of the day and the marketplace of ideas is very important to a democracy. Thus, the balancing decisions by the Court have attempted to maintain equilibrium for public access. Street signs would not be copyrightable. Web links functions much like a street sign or a reference list in a scholarly article by providing directions to other sources of information. Along this line of reasoning, would a link to a copyrighted work be infringement. In the Frena case, the Court found direct and contribution infringement for the digital posting of pictures from Playboy. If Frena had a homepage in which he provided links to pirated copyrighted photographs from Playboy would the case be decided as infringement?
If the Frena case was decided today in regards to links to copyrighted materials on other web servers, the Court might find for contributory infringement, since Frena would be contributing to the infringement of playboy's copyrighted photographs by providing the means to access them while not physically distributing the material as in the original case. Senator Ashcroft's digital copyright bill would remove liability by Frena and ISPs for such infringement, as the condition that once notified the means to the material would be removed within 10 days.
Another question for copyright in a digital era is digital manipulation of images. A recent 2nd Circuit decision, Leibovitz v. Paramount Pictures [39], the court decided if Leibovitz nude pregnant photograph of actress Demi Moore was infringed by Paramount who did parody ad with Leslie Neilsen face imposed on a second pregnant actress body. The court held that the advertisement qualified as a parody determined by an analysis of the fair use test as set forth in Campbell v. Accuff-Rose Music, Inc. While the Leibovitz case involved a parody advertisement, the issue of image manipulation is especially important to digital copyright. Digital images from the Internet can be easily manipulated with graphics programs [40]. A future question for the Court to address is how transformative an image manipulation of a copyrighted work would need to be to no longer qualify as infringement. The Leibovitz opinion partially addresses this question:
The copying of these elements, carried out to an extreme degree by the technique of digital computer enhancement, took more of the Leibovitz photograph than was minimally necessary to conjure it up, but Campbell instructs that a parodist's copying of more of an original than necessary to conjure it up will not necessarily tip the third factor of fair use [41].
Copyright in a digital era challenges copyright law to not only address new technologies, such as the Web, but to completely re-evaluate fair use doctrine, infringement, and legal remedies. While technologies have changed from Guttenburg's printing press to a digital marketplace of ideas, the underlying issues remain the same. How to maintain the delicate balance between private ownership and public access?
As the printing press revolutionized medieval Europe with literacy and higher education, the Web and other digital technologies are at the forefront of another cultural renaissance, a digital renaissance. Copyright will play an important role in the development of this new era, in which digital media radically change society's notions of communication and knowledge. Previous barriers will be removed and new barriers constructed in order to maintain the copyright balance between private and public benefits. Technology will not only create the impetus for this change, but will provide part of the solution through such technologies as digital watermarks and those yet developed. Coinciding with these technological solutions, both statutory and common law will need to address issues created by digital technology. In the next millennium, the Supreme Court will hear many cases on issues of digital rights.
At the drafting of the Constitution, the founding fathers never dreamed of the technological advancement of the last 200 years. Yet, the rights the Constitution prescribes still hold well for life in a digital age. The future will be based upon universal notions of human rights, for the digital age eliminates all national boundaries with the decentralized nature of the Internet. A revision of the Berne agreement could incorporate language for digital copyright and protection for works on the Internet. The future challenge for digital copyright will not be over programming code in software programs, but public access to digital information, especially in libraries for those without access to digital technologies. Licensing and pay-per-use schemes can not adequately balance public access. The marketplace of ideas will spur the need for digital access to copyrighted works to be available for all, while balancing their creators with financial incentives. As book publishers decried libraries for the economic harm, digital libraries will face the same opposition. Yet, in the end digital libraries will operate in much the same fashion.
The next technological innovation is always just around the corner, which again will augur new challenges for copyright doctrine.
[1] Neil Weinstock Netanel, Copyright and a Democratic
Civil Society, 106 Yale L.J. 285 (1996)
[2] Sony v. Universal 464 U.S. 417, 429 (1984)
[3] International News Service v. Associated Press, 248 U.S. 215 (1918) & Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539
[5] Statue of Anne, 1710, 8 Anne, ch. 19 (Eng.)
[6] See Digital Libraries issue, 41,4 Communications of the ACM (1998)
[7] Goldstein v. California, 412 U.S. 546 (1973) (The Court noted the difference between a performance recorded in the memory of those present and an fidelity audio recording.)
[8] Ronald V. Bettig, Copyright Culture: The Political Economy of Intellectual Property..21
[9] Statue of Anne, 1710, 8 Anne, ch. 19 (Eng.)
[10] Statue of Anne, 1710, 8 Anne, ch. 19 (Eng.)
[11] Steward E. Sterk, Rhetoric and Reality in Copyright, 94 Mich. L. Rev. 1197, 1197-1204 (1995)
[12] (discusses Supreme Court incentive and desert justification for copyright). See Sony Corp. v. Universal City Studios, 464 U.S. 417, 429 (1984) and Mazer v. Stein, 347 U.S. 201, 219 (1954) respectively.
[13] Ronald V. Bettig, Copyright Culture: The Political Economy of Intellectual Property.
[14] U.S. Const. Art. I § 8, cl. 8.
[15] Elizabeth Atwood Gailey, Who Owns Digital Rights? Examining the Scope of Copyright Protection for Electronically Distributed Works, 18 Comm. & L. 13, (1996)
[17] Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539
[21] See Kalem Co. v. Harper Bros., 32 S. Ct. 20 (1911) (silent movie rights to a novel)
[22] See e.g. Sony Corp. v. Universal City Studios, 464 U.S. 417, 429 (1984)
[26] 901 F. Supp. 1519 (D. Colo. 1995) (Court held that postings of Church of Scientology documents did constitute fair use using a public debate argument and fulfill the fourth prong test of fair use)
[27] 839 F. Supp. 1552 (M.D. Fla. 1993) (Frena, a bulletin board system (BBS) operator, was found to infringe upon copyrighted photographs of Playboy by altering them with advertisements for his for-profit adult content BBS)
[28] 857 F. Supp. 679 (N.D. Cal. 1994)
[29] Java is a programming language and programs created in Java, applets, run on all major computer platforms, such as IBM, Apple, UNIX, etc.
[30] The most popular web browser clients are Netscape Communicator and Microsoft Internet Explorer.
[31] 839 F. Supp. 1552 (M.D. Fla. 1993)
[32] 857 F. Supp. 679 (N.D. Cal. 1994)
[34] Warner Records reported such as case with Madonna's latest album. A digital track from the album was illegally posted before the album's release on CD's and tapes.
[35] Goldstein v. California, 412 U.S. 546 (1973)
[37] http://www.sjmerucy.com (a monthly digital subscription provides individuals with a user name and password to access blocked material)
[38] This argument is assumes Ms. Doe's homepage is not part of a commercial service and display advertising is not sold.
[39] Meeropol v. Nizer, 560 F. 2d. 1061, 1071 (CA2 1977)
[40] Decided Feb, 19 1998 get citation from WESTLAW
[41] Adobe PhotoShop is the most widely used image manipulation program on the market for PCs and Macintoshes.
[42] Campbell v. Acuff-Rose Music, Inc, 510 U.S. at
588
© 1998 Gates Matthew Stoner. Email: GStoner@u.arizona.edu