Redefining Copyright
Law on the World Wide Web
5/30/01
Fences are finally beginning to be drawn
on the once Wild West of the Internet.
Impeding corporate and private construction is the ambiguity of
copyright law with respect to the World Wide Web (WWW), better known as a Port
80 application in the computer world.
This article is narrowly tailored, focusing on the need for a legal
standard that describes the rights of copyright holders once they publish
freely on the WWW. I argue that
once a publisher places digital information on a WWW site that is available
without subscription or decryption, readers should be allowed unrestricted
copying rights under the fair use doctrine. This act (Freedom of Web Information Act) would not affect
other parts of the Internet, such as FTP sites, P2P, or anything other than
sites opened to Port 80.
During
the past five years, the United States has been home to some of the most
radical changes in the creation and distribution of intellectual property since
Johannes Gutenburg’s invention of the printing press. Use of the Internet, more specifically
the World Wide Web (WWW), has increased exponentially. Some statistically figures show as many
as 7 trillion web pages are currently available for viewing on the
Internet. With audiences for these
web pages growing by the day, companies have realized the profitability of
building corporate enterprises that use the power of the Internet. As more companies begin homesteading on
the WWW, the fences that separate their copyrighted materials are slowly being
built. Problems arise as owners of
copyrighted materials, such as books, software, and art, find their creations
distributed without their permission.
For example, a book author might find chapters of his book placed on the
website of a fan who wishes to allow others to read the author’s
work. A newspaper company places
an article on their website and it is subsequently used in other news organization’s
websites without the newspaper company’s permission. Do these copyright holders stand on
stable legal grounds to sue for the misuse of their creations? So far, the only legislation that at
least indirectly answers this question is the Digital Millennium Copyright Act
(DMCA) of 1997 and the No Electronic Theft Act (NET Act) of 1997, both of which
would side with the copyright holders.
The question that belies copyright issues on the WWW is whether
traditional copyrights can be crafted to protect digital speech as it does
written speech. As futurist Ithiel
de Sola Pool wrote, “Electronic publishing is analogous not so much to
the print shop of the eighteenth century as to word-of-mouth communication, to
which copyright was never applied.”[1]
I
argue that this new area of communication and duplication is far from
clear. The DMCA and NET Act both
took a broad shot to the rights of users of copyright materials, while overly
protecting the rights of copyright holders. The WWW makes duplication of digital materials nearly
costless, and by doing so allow users to easily copy and distribute materials
on the Internet. While many
believe that media publications might find that duplication of their material
on the WWW could be free advertising for their material, I believe the courts
should not try to infer the desire of the copyright holders. Instead, I argue that the media
publications should have the right to determine their work’s own
destiny. If they choose to place
it on the WWW, without a subscription service or encryption, they have
essentially placed their work on a virtual bulletin board. By doing so, they have determined that
possible mass duplication is outweighed by the possible advertising that could
attract eyes to their website for other stories. For instance, a newspaper could publish only top headlines
on their public website in order to lure visitors to read their other articles
on their private site (i.e. through some sort of registration system or other
means).
Present Internet
Related Copyright Laws
It
is important that we first look at the reason why we have copyright laws. The US Constitution says that Congress
shall have 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[.]”[2] Though many have tried to more narrowly
interpret this clause, I will interpret it in a broad sense. Essentially, this allows Congress to
make copyright laws in the interests not only of the authors and inventors, but
also the interests of the public.
This distinction is important in the current online copyright
debates. Many times, corporations
that produce copyrighted works believe that copyright laws are made only to
protect their work. I believe this
to be a misconception and instead argue that the founding fathers placed value
in the public good by granting the users of the copyrighted works in this
fundamental clause.
This
article will not argue the benefits and drawbacks of the spotlighted copyright
laws (DMCA, NET Act, and the US Code) on an individual basis, but rather it
will look at which parts of these laws are in contradiction with the FWIA. The NET Act, signed into law in 1997,
focused solely on Title 17 and 18 of the US Code, both of which deal with
copyright laws. Specifically,
these changes to the USC made it easier for the Department of Justice to make
federal prosecution on the basis of electronic copyright violations. Siding heavily with the rights of the
content producers, the NET Act made it illegal for large-scale digital
duplication or distribution even when a profit motive is not found. Although the law does state that those
who duplicate copyrighted work for non-commercial purposes valued less than $1,000,
the law does not state how the actual value of the copyrighted work should be
ascertained. In general, the
changes made to copyright laws by the NET Act seem to be extensions of
traditional copyright laws by simply clarifying that electronic copyrights
should be upheld. However, it does
chip away at the fair use doctrine by trying to put a specific dollar value on
the copyrighted work duplicated (taking the determined value to the company
over the value to an educational institute or researching individual).
While
the NET Act provided some key changes to copyright law, none of its additions
were as dramatic as the effects of the DMCA. Essentially, the DMCA was created to again protect creators
of works from those who would like to build programs that crack anti-piracy
measures created by the publisher.
Though the act explicitly states, “[n]othing in this section shall
affect rights, remedies, limitation, or defenses to copyright infringement,
including fair use…” it clearly does affect the rights of users to
determine how they wish to use legally obtained products. If it is legal for someone to purchase
a door lock and subsequently teach himself how to pick the lock without the
key, why shouldn’t a software owner be allowed to do the same?
The
NET Act and the DMCA both have been used as first steps in keeping copyright
laws in step with the change of technology. This has occurred many times in the history of new
technologies. When Sony began
producing their Video Cassette Recorders (VCRs), the motion picture industry
feared that this new technology would hail the end of the movie industry by
allowing consumers to record copyrighted material. In the case Sony v. Universal Studios, the US Supreme Court
decided that barriers to building new technologies by threats to copyrights are
tempered by the substantial noninfringing uses of the device.
Adding Internet
Postings to Fair Use
As
technologies in the world begin to change, the American legal system has
normally been able to keep up with the changes not by radical restructuring of
US laws, but rather by learning how to adopt old legal standards to the new
technology. While this has worked
well in the copyright sector during the advent of the photocopying machine and
the home recording devices, the radical shifts we are going through in this
digital society will force us not only to make minor changes to copyright laws,
but completely change the way we think about copyrights in general.
Copyright
and other legal problems often arise in the digital world because of its
seemingly boundless structure.
Though some believe that the government will soon be able to change the
structure of the Internet to better suit its legal needs, I will assume that
most world governments will find such a feat impossible. Instead, what we need is a new set of legal
standards that will set the manner in which the Internet’s structure is
built by imposing laws on the builders and the users themselves. For instance, instead of trying to
regulate the creation of private networks, the government should instead create
Internet copyright legislation that recognizes the difference between
copyrights on physical materials and digital material.
Now
it would be difficult (if not impossible) to create legislation that simply
rewrote copyright law as we know it.
Instead, I propose an act of US Congress that would change the US Code
in the arena of fair use of copyrights.
Since the massive overhaul of copyright laws in 1976, the current areas
of fair use include, “for purposes such as criticism, comment, news
reporting, teaching…scholarship, or research…”[3] Under this section of the U.S.C. could
be placed the following amendment:
“…any and
all non-trademarked or non-patented information taken from an unrestricted
world wide website created by the copyright holder…”
This
small phrase has massive implications.
It essentially tells providers of information on the web that anything
they put up on a website, so long as it is not a registered trademark or
patent, and is not protected by any restrictive device (such as encryption,
registration system, etc), it can be subject to duplication without the
permission of the owner.
The
wording of this addition to 17 U.S.C. §107 has been carefully crafted to
make sure that the WWW continues to be a place where users can freely exchange
ideas and content providers can still protect their copyrights in special
restricted arenas. Let us dissect
the wording of the FWIA to bring out the nuances it holds within.
Areas of Internet
covered
This
amendment to the fair use doctrine only affects those digital documents that
are saved on hard-drives that have Port 80 opened to unrestricted traffic. In order to create standards on the
Internet that would make sure packets of information would flow in and out the
correct programs, the transport control protocol/Internet protocol (TCP/IP) was
created. These standards provide a very basic structure for dividing different
tasks on the Internet. On a
computer server, different services and application are connected to different
TCP/IP ports. For instance, Port
21 is used by File Transfer Protocol (FTP) applications, Port 25 by email
services, and Port 119 for newsgroups.
In our case, Port 80 is used specifically for hypertext transfer
protocol (HTTP) pages, which are web pages. Since the WWW is by far the most accessed part of the
Internet, the FWIA will affect only this specific port, although future
legislation may define other ports in the future.
Types of posted material
The
Freedom of Web Information Act would imply the use of any type of material
posted on a website, including words, source code, pictures, sounds, video,
etc. To avoid future loopholes, it
should be noted that the “any and all” clause should be taken
literally. Essentially, everything
on a web page can be found in the source code. Since the source code is being placed into a local
computer’s Random Access Memory (RAM), and it has been determined by the
courts in Mai Systems Corp. v. Peak Computer, Inc., that placing code in RAM
constitutes copying, then FWIA will contradictorily render anything that can be
stored to a local computer’s RAM via the WWW fair use.[4]
With
respect to hypertext links, the FWIA would also place under fair use the
listing of links. Links need to be
dissected into two parts for clarification. The first half is what I call the
“signpost”. This is
what the link says to the reader through the web browser. The FWIA covers this part of the link
under the fair use doctrine, along with the underlying web address it points
to. The second part of a link is
the “action” part, that when clicked on pulls the user to another
website. It would be a fallacy for
us to allow that action to be brought under fair use, as the hypertext may
bring us to another web page that does not fall under our category of fair use. So in essence, the FWIA covers the
signpost and address of a hyperlink, but not the action associated with
it. Users must make it their
responsibility to know where a hyperlink takes them to before they click on it.
Patents and
trademarks
While
I argue that by placing a created piece on the web, one has given up most of
their work to fair use, patents and trademarks will never be relinquished,
under the FWIA, to fair use.
Although they could fall into other areas of fair use, patents and
trademarks will be kept under the protection of the law. For instance, if the Los Angeles Times
were to place an article on the Internet following these policy outlines, and
that article had on it the newspaper’s trademarked logo, everything
except for the logo could fall under the fair use doctrine. By adding this section, I wish to avoid
a stifling of speech on the Internet by allowing corporations to freely
attribute work to their trademarked items. If not, many companies would fear placing anything on a web
page, and by doing so would drain much of the intellectual and scientific
progress we see taking place on the Internet.
Defining
unrestrictive websites
Of
the over 7 trillion web pages on the Internet today, most remain unseen by the
public. Intranets, which run off
web servers but are kept under a strict internal security structure, often hold
a company’s most vital information, such as e-mail, product plans,
marketing ideas, and other valuable private information. In order to protect such websites, the
FWIA would not allow restricted web pages from be covered by fair use. Obviously, doing so would stifle
progress on the Internet, as was seen by the section on patents and trademarks,
and very likely could be held as unconstitutional. A restrictive web page is one that some sort of protection
stopgap that would keep a web surfer from accessing a web page without some
form of identification. This
security measure can be formulated in any way a copyright holder wishes. A login and password, a registration page,
and encryption could be possible ways of making a web page restrictive. If there exists no such visible (the
web page user can see it in the web browser) restriction system, then the page
shall fall under the fair use doctrine.
Determining
authorship of the web page
It
is possible that a web page that follows all the rules outlined by the FWIA
could still not fall under fair use if the information is posted by someone who
is not the original copyright holder.
To avoid this phenomena, if someone wishes to use another’s
copyrighted material without their permission, and the use of such does not
fall under other categories of fair use, then the copier must cite the original
Uniform Resource Locator (URL) of the copyrighted work as evidence that it is not
their copyright. Currently,
copyright law does not give owners of intellectual property a “right of
attribution”. On the
Internet, often authors would enjoy wide ranging distribution so long as
attribution is given. This law
would apply such an attribution rule, which could help build key publication
business models on the Internet.[5] While much of the FWIA makes it easier
for users of copyrighted information to use copied works, this clause brings
power back to the copyright owner.
By placing the burden of evidence on the copier, this helps the
copyright holder prove to the courts that their materials were copied even when
they were never published on a web page.
For example, if a reader of online magazine copied a whole article onto
their website without permission of the copyright holder, and they did not
provide a hyperlink citation on their web page that showed the material was
unrestricted, they could be held liable for damages. Assuming other areas of fair use were not achieved by the
copier, such use of copyrighted material would not constitute fair use.
Current Legal Support
for the FWIA
Internet copyright
issues have so far been dealt with much like tangible printed works. As I have stated earlier, much like the
enactment of copyright laws during the radical changes created by the printing
press, a reincarnation of that period of legal wrangling will very likely occur
over the next five to ten years with respect to copyrights on the
Internet. In order to keep a
strong line of legal logic, the FWIA should both conform to past copyright laws
as well as cover new grounds in this uncharted area of law.
To
help bridge the gap between current laws and the changes made by the FWIA, I
identify three main areas of copyright law that support this act: fair use doctrine, contributory
copyright infringement, and the exclusive rights of the copyright owner. The fair use doctrine is one of the few
areas of copyright law that protects the users of copyrighted work rather than
the owners. Though I base an whole
argument on the idea that copyright laws are often too strict on the rights of
users, with respect to this policy, I simply need to make a clear relationship
between it and fair use.
Supporting the use of someone else’s copyrighted work for, “purposes
such as criticism, comment, news reporting, teaching (including multiple copies
for classroom use), scholarship, or research,”[6]
promotes exactly what the founding fathers desired, promotion of the sciences
and the arts. The FWIA simply adds
to the increased promotion of the sciences and arts by extending fair use to
the digital world. Nothing in the
FWIA would take a user’s power away from the fair use doctrine. Additionally, the policy would simply
be an addition to the fair use doctrine, by which a defendant could use as part
of a defense for use of a copyrighted work, but not exclusively.
In
the past, new technologies that could be used for copyright infringement have
been scowled upon by copyright holders.
Many times, an argument has been made that the new technological device
could lead to contributory copyright infringement. A case could be made against the WWW as a whole for being a
device that allows people to perfectly duplicate copyrighted materials. Of course, since the WWW is a global
entity of its own, it would be difficult to legislate laws that could enforce
the disuse of such a viral community.
More importantly, businesses have found that the WWW is a wonderful new
marketplace, where additional customers can be attracted and many barriers to
entry crumble. As corporate
America came to grips with the positive and negative values of the Internet, it
decided not to pursue actions against web browser makers (such as Netscape and
Microsoft) for allowing people to possible pursue copyright infringing
actions. Clearly, a case could
have been made similar to Sony v. Universal. In the Sony case, the court found if a device is,
“capable of substantial noninfringing uses,”[7]
stifling of such an invention should not occur. The court went on to say, “…sale of such an
article which though adapted to an infringing use is also adapted to other and
lawful uses, is not enough to make the seller a contributory infringer. Such a rule would block the wheels of
commerce.”[8] Most importantly, such an amendment as
proposed by the FWIA would clear up the issue of what copyright infringement on
the WWW is without needing to worry about the devices used to permit such
copying.
While
the 9th Circuit Federal Appellate Court tries to deal with the legal
wrangling over the Napster v. A & M Records, Inc. et al, such an issue could
have been avoided (if it were to occur on a WWW page) if FWIA was in
effect. In a brief to the court,
the Digital Media Association makes an interesting point. It writes that the lower courts have
created a “primary purpose” test to determine why the material is
being copied and also ignored the word “capable” in the ruling for
the Sony case with respect to non-infringing uses.[9] The purpose of the FWIA is to avoid the
confusion we are seeing the Napster case on the WWW. Instead, by creating a law that both bridges the gap between
the physical and digital mediums, while also protecting the rights of WWW
browser makers to continue their developments, we can uphold the ideals of the
founding fathers while also avoiding contributory copyright infringement.
Finally,
when implementing a law such as the FWIA, we must make sure that the exclusive
rights of the copyright holder are upheld. These include the exclusive rights to reproduction,
modification, distribution, public performance, and public display.[10] In a complete clarification to
copyright law, Congress passed the Copyright Act of 1976, which delineated each
of the above rights of the copyright holder. The spirit of the FWIA upholds all these rights of the
copyright holder while realizing a similar situation that Congress discovered
in 1976: technology forces us to
change the way we think about copyrights.
Arguments will surely arise on the side of copyright holders against the
FWIA with respect to one’s exclusive rights to reproduction and
distribution. Shouldn’t the
copyright holder be the one to determine how their work will be reproduced and
distributed over the WWW? Why
should this be any different than in the physical world? In response, I acknowledge that the
similarities between the WWW and physical world disappeared when the court
found that whenever someone visits a WWW page, they are duplicating and
distributing the information on the web page by holding that information in
their local computer’s RAM.[11] If this is the case, the FWIA places
the burden on the copyright holder to make a decision as to how she wishes to
have her information duplicated and distributed. If she wishes to keep full control of the copyrighted
information, then she must not place her materials on a web page that falls
under the FWIA standards. Users of
the WWW should not be held responsible for copyright infringement if the
authors have made a determination to place their work in an area where
duplication is necessary for reading.
Public Policy
Considerations
Any changes to laws
regarding copyright and the Internet must lead towards an ultimate goal. Our nation’s democratic system
demands full support of the 1st Amendment Rights of all Americans in
order to promote the public good.
Copyright laws protect the inventors, writers, and dreamers of our
country. Without such laws, some
would say that we would see a stifling of creative works in both the arts and
sciences. While the protection of
the creators is important, so are the rights of the readers and users of such
works. As Chief Justice Hughes
said in the Supreme Court ruling of U.S. v. Paramount Pictures, Inc.,
“The copyright law, like the patent statuettes, makes reward to the owner
a secondary consideration…the sole interest of the United States and the
primary object in conferring the [copyright] monopoly lie in the general
benefits derived by the public from the labors of authors.”[12] If copyright protection for publishers
were stricter, would educators and researchers be able to promote advancements
in the arts and sciences as is being done in our nation’s campuses? I simply argue that any policies
regarding the restriction of speech on the WWW should follow the basic
principles of the founding fathers.
The
Internet has forced us to deal with issues on a global level, and while it is
impossible for the US to enforce worldwide laws, Congress can and should take
firm steps forward in promoting the freedom of speech on the Internet. The WWW provides us with a marketplace
of ideas never seen before by mankind.
Early legislation should not be created to restrict this marketplace,
but rather to enhance it. Lines
between the desires of corporations and the public good are currently blurred
in cyberspace.[13] If, as some have argued, we leave the
structure of the Internet in the hands of businesses, does that necessarily
mean the public good will be achieved?
Rather than trying to reenact the homesteading of the American West, the
federal government must take steps to promote the public good in such areas of
education, free speech, and innovation on the WWW.
The
real question is whether or not legislation will happen any time soon. If true copyright changing legislation
like the PWIA occurs, it will most likely need the support of big businesses,
especially the recording industry and the book publishing industry. Copyright issues are normally not a
topic that the public responds with grassroots organizing or civil
revolts. Normally, it is those who
have the most at stake who lead the government in their “right”
direction. Even more generally,
would passing such a statute actually affect anything happening on the Internet
today? As Jessica Litman wrote in
1994, “So long as nobody proposed to sue the nation’s teenagers for
copying music onto audio cassette tapes, or copying computer games onto floppy
disks, what did it matter that some folks argued that if they chose to sue they
could win?”[14] Unless members of Congress can push
aside their many connections with large corporations with strong interests in
copyright protection (campaign contributions), passage of an amendment to
copyright law such as the FWIA will be difficult.
Impact of the FWIA on
the Online World
The
Internet as a whole is currently in a state of anarchy. Each day, thousands of software files,
music, videos, and other creative works pass electronic hands in direct
violation of copyrights. The
effects of the FWIA on this chaotic situation will be minimal out of the blocks. Stronger effects will hit the content
distribution industry, which will have to make a decision on how they wish to
have content distributed on the WWW.
Most importantly, I would expect the transmission of copyrighted work
that could fall under this new area of fair use would continue to be duplicated
on the Web. The goal of the
statute is to promote the creativity and intellectual thought without fear of
being reprimanded. Long-term
impacts of this legislation could provide new business models to help smaller
publication industries leap over typical barriers to entry in the market,
increasing competition and promoting interest in the arts and sciences.
Conclusion
All
this, of course, is hypothetical.
We really lack any previous model to follow from human history. The ability to exactly duplicate
intellectual property quickly and at zero marginal cost is a feat that just
twenty years ago people could not have imagined. Though we may not know the exact direction these new
technologies will lead us, we do know that they are here to stay. Older print models of copyright will be
with us for years to come, but very likely will not last more than five more
years trying to regulate speech on the WWW. Careful, but swift first steps must be taken to protect
intellectual property on the Internet with both the public and private
market’s best interests in mind.
[1] Ithiel de Sola Pool, Technologies of Freedom 214 (1983).
[2] United States Constitution, Article I, Section 8, Clause 8.
[3] 17 U.S.C. §107
[4] MAI Systems Corp. v. Peak Computer, Inc., 991F.2d 511, 519 (9th Cir. 1993), cert. dismissed, 114 S.Ct. 671 (1994)
[5] Schlachter, Eric, The Intellectual Property Renaissance in Cyberspace: Why Copyright Law Could Be Unimportant on the Internet, 12 Berkeley Technology Law Journal 15 (1997)
[6] 17 U.S.C. §107
[7]
Sony v. Universal City Studios, 464 U.S.
at 417 (1984)
[8] Sony v. Universal City Studios, 464 U.S. at 441 (1984)
[9] Brief of Digital Media Association as Neutral Amicus Curiae, Napster v. A&M Records et al (2001): 13, 14.
[10] 17 U.S.C. §106
[11] MAI Systems Corp. v. Peak Computer, Inc., 991F.2d 511, 519 (9th Cir. 1993), cert. dismissed, 114 S.Ct. 671 (1994)
[12] United States v. Paramount Pictures, Inc., 334 U.S. 131, 158 (1948).
[13] see The Digital Dilema, National Academy Press (2000): 107.
[14] Litman, Jessica, The Exclusive Right to Read, 13 Cardozo Arts & Entertainment Law Journal 29 (1994)