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Thomas G.
Field, Jr.
Professor of Law, Franklin Pierce Law Center
(Adapted from an article in The [FPLC] Advocate, Fall/Winter 2000, at
10.
Those who publish novels, dictionaries,
music, videos and graphics, for example, have no guarantee of
professional or economic success. Their risks are
similar to those who sink shafts in search of oil. Sometimes they find
a
gusher; more often, a dry hole. In both cases, if enterprises are to
continue,
successful ventures must pay for those that fail. As real property
protects
wildcatters, copyright helps artists, authors and publishers recover
their
investments.
At one time, only works visible to the
naked eye were copyrightable, but that has long since changed. Now,
works capable of perception only by use of VCRs or computers, for
example, enjoy the same protection as books, paintings and
sculpture.
In 1994, William S. Strong reported that
he had "heard Chicken Littles say that the sky is falling in on
copyright owners" in the digital age and
predicted to the contrary.[1] He was
right;
publishers' problems may have changed in degree but not in kind. For at
least
three decades, photocopiers have posed similar risks.
Consider, for example, a 1970s dispute
between a publisher of specialized journals and two federal libraries.[2] Because
the libraries were distributing copies of many articles, the publisher
feared
for its long-term existence. It expected such copying to reduce journal
subscriptions, making them more expensive and feeding a potentially
fatal spiral of fewer subscribers and higher prices. Nevertheless, the
publisher lost
on the basis of a fair use test developed by the courts to balance the
needs of
both publishers and the public. The nonprofit, governmental status of
defendants no doubt played a role but perhaps not as much as the
publisher's
inability to do more than anticipate harm.
Photocopiers have since had little effect
on most publishers. In the case of books and many other works,
photocopies are a poor substitute. In the case of
journal articles, although limited copies can still be distributed by
libraries,[3] it is inconvenient to
receive them
by mail, and ones sent by fax are only marginally readable. Thus
journal sales
continue, often principally to libraries.
Despite arriving more quickly and being
identical to originals, digital copies are unlikely to have a
significantly larger effect. While it is theoretically
possible to distribute further copies within an institution or
elsewhere, it is
impractical without, say, posting borrowed material on the web. If that
were
done, it would be both easily spotted and proven. Moreover, substantial
penalties may be imposed on behalf of those whose works have been
purloined.[4]
Regarding one firm that recently tried to
use a public benefit argument to justify a scheme for unauthorized
distribution of copyrighted music over the
web, a judge said:[5]
Stripped to its essence, defendant's "consumer
protection" argument amounts to nothing more than a bald claim that
defendant should be able to misappropriate plaintiffs' property simply
because there is a consumer demand for it.
In a sequel, the judge also imposed statutory damages of approximately
$118
million, saying:[6]
[T]he potential for huge profits in the rapidly
expanding world of the Internet is the lure that tempted an otherwise
generally responsible company... to break the law, and that will also
tempt others... if too low a level is set for statutory damages....
Yet, recovery options are problematic for
digital works that have weak or no
copyright protection. No copyright exists in works such as those of
Shakespeare
or Degas, for example, so they can be copied by anyone. Instant web
access to
such things accounts for much of the internet's appeal. After someone
puts them
on the web, however, what prevents others from copying the digital
version?
Even if copyright were available, independent effort is a defense.
Copiers may
claim to have digitized the works independently. This is something they
have
every right to do, and it could be difficult to prove otherwise.
Similar problems are faced by many
internet-related works. Databases that
underlie search engines, for example, are very important. If
information on the
web can't be found, it may as well not exist. Those who provide search
services
must recover costs to continue, but how? Copiers may not only claim
independent
origin, but they will also rely on a 1991 Supreme Court case finding
telephone
directories to lack sufficient originality for copyright protection.[7]
Those facing double doubts about
copyright availability and enforceability
often resort to various kinds of self help.[8]
Meanwhile others are hard at work to counter their efforts.[9] In 1998 Congress forbade, e.g., the
distribution and use of
means to circumvent "copyright protection schemes,"[10] but the prohibition did not immediately go into
effect.
Rather, the Librarian of Congress James Billington, with the assistance
of
Copyright Register Mary Beth Peters, was given two years to examine the
need
for possible exemptions. They were also given the power to enact rules
limiting
the reach of the anticircumvention prohibitions.
Two exemptions were granted last October
but did not facilitate access to
works with, at best, weak copyright protection. Although some had
strongly
advocated such exemptions, Mr. Billington found no justification. Now
some
librarians, rather than content providers, claim that the sky is
falling. The
American Library Association (ALA), for example, promptly accused the
Librarian
of ruling "against the American public and library users by negating
fair use
in the digital arena."[11] It also
predicted
that "users of digital information will have fewer rights and
opportunities
than users of print information." Its President went so far as to
accuse Mr.
Billington of "taking away from students, researchers, teachers and
librarians
the long standing basic right of `fair use' to our Nation's digital
resources."
The ALA's position is based in part on an
expectation that a pay-per-view
model will dominate, exacerbating a "digital divide" said to separate
internet
"haves" from "have-nots." Yet, accelerating power and speed, coupled
with the
decelerating cost of internet access, make it hard to believe that the
number
of people excluded from the internet will long exceed the number who
lack
telephones or televisions. Moreover, as Mr. Billington noted, after
indicating
why pay-per-use may actually be best for some users: "The record in
this
proceeding does not reveal that `pay-per-use' business models have,
thus far,
created the adverse impacts on the ability of users... that would
justify any
exemptions...."[12]
Mr. Billington and Ms. Peters should be
applauded for demanding proof rather
than predictions that the sky will fall. The game is far from over
because the
statute provides for another round of rule making every three years.
Should
something change, as the Librarian indicated, adjustments can then be
made.
Yet, aside from some single source works
perhaps, it is hard to imagine what
adjustments could ever be warranted. For important, if not critical,
internet
needs to continue to be met, providers must recoup costs. Anyone who
dislikes
their prices or other conditions for access may compete, with the same
opportunity to recover their costs as they see fit.
[1] Copyright
in the New World of
Electronic Publishing, J. Elec. Publishing.
[2] Williams
& Wilkins Co. v. U.S., 487 F.2d
1345 (Ct. Cls. 1973), aff'd without opinion by an equally
divided court,
420 U.S. 376 (1975).
[3] See,
e.g., 17 U.S.C. § 108(f)
and (g); see also, U.S. Copyright Office, Reproductions of
Copyrighted Works by Educators and Librarians (Circular. 21
June 1998). These appear among many fair use exemptions spanning 17
U.S.C. §§ 107-122.
[4] See
my article Publishers'
Rights
and Wrongs in the Cyberage, 39 Idea 429 (1999).
[5] UMG
Recordings, Inc. v. MP3.Com, Inc., 92
F.Supp.2d 349, 352 (S.D. N.Y. 2000).
[6] 56
U.S.P.Q.2d 1376, 1380.
[7] Feist
Publns., Inc. v. Rural Telephone
Service Co., Inc., 499 U.S. 340 (1991).
[8] See,
e.g., Network Solutions' notice
on the Whois
database. It
states in part: "Compilation, repackaging, dissemination, or other use
of the
WHOIS database in its entirety, or of a substantial portion thereof, is
not
allowed without NSI's prior written permission. By submitting this
query, you
agree to abide by this policy."
[9] Indeed,
Charles Seife, Digital Music
Safeguard May Need Retuning, 290 Science, 917, 918 (2000) quotes
one expert
as saying, "Copy protection can't possibly work. Get over it. Accept
the
inevitable and figure out how to make money anyway."
[10] 17
U.S.C. §§ 1201-05. See
generally, Universal City Studios, Inc. v. Reimerdes, 111 F.Supp. 2d
294 (S.D.
N.Y. 2000) (rebuffing basic constitutional challenges to those
provisions).
[11] ALA
Washington Office Newsline,
Oct. 26,
2000.
[12] 65
Fed. Reg. 64555, 64564 (Oct. 27, 2000).
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