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September 16, 2004

Technological Advances Muddy Rights/Wrongs of Copyright Law

Which of the following activities are illegal under current federal copyright law?

A) You buy a book from a bookstore. You cut out chapter 2 and sell it for more than the cost of the whole book.

B) On your web page you hypertext-link the article you wrote that was published last month in an academic journal.

C) In the restaurant you own, you play a radio to provide music for customers.

D) In preparation for a job interview, you pull the articles you’ve written from a publication’s on-line data base and give them to the interviewer on a CD.

Answer: Only A is not illegal under copyright law. B, C and D may be illegal under certain circumstances.

The Information Age has spawned many murky legal questions for the average citizen who take advantage of technology’s advances, according to Pitt law school professors Michael Madison and Kevin Ashley.

“It’s important to note that copyright is not just a right to prevent unauthorized copying, but it is also a right to prevent unauthorized public display of certain works, or public performance such as a video,” said Ashley, an expert on intellectual property, who teaches a course called Cyberspace and the Law. “Since the web makes possible publicly displaying or performing works, people have to take into account they might be violating that part of copyright law.”

Playing a radio in a public place could be a violation, although U.S. copyright law has carved out an exception based on the size of the public place. This exception makes American law run counter to world copyright law, which prohibits this activity unless the radio owner is paying royalties, said Madison, a Pitt law assistant professor whose courses include Copyright Law and Intellectual Property and E-Commerce. Purchasing services such as Muzak factor royalty payments into their costs.

In the D example above, “If you are literally cutting clips out of a copy of a newspaper, then you are on safe ground as the person who is allowed to make use of that single copy of the newspaper,” Madison said. However, to download an electronic version of the stories, burn them on a CD and give that CD to someone else is a different matter in the eyes of the law.

“Arguably the law would treat that differently because you have made a copy, even though functionally it’s the same thing,” Madison said. “That’s an example of the law’s ambiguity, where copyright law handles the tangible world and the traditional world fairly easily, while it handles the digital world, the Internet world, with some difficulty.”

Ashley added, “If you were to take those clips and put [the whole articles] up on your web site, for instance, as part of an advertisement for your services, now the public can get the articles from your web site, they don’t have to pay for a reprint of the publication, and so that might may be an infringement.”

Both professors laced their opinions with qualifiers – “probably,” “in general,” “likely,” “may be,” “arguably” – a testimony to the law’s openness to interpretation. But, given that caveat, each professor was eager to offer some helpful hints to the unenlightened. They stressed, however, that their opinions should not be taken as legal advice.

“For most of the history of publishing, copyright law wasn’t especially complex,” Madison said. “Authors write books and own copyrights in them. They sell their books to publishers and assign copyrights along with them. Authorized publishers use copyright to stop unauthorized publishers from selling, well, unauthorized copies.”

Then, enter technology: motion pictures, TV, cable TV, photocopiers, VCRs, the Internet – and the details of copyright law become extremely complex.

Over the past 25 years, this has changed the focus of copyright law in two main ways, according to Madison. “First, machines like photocopiers and VCRs gave individuals the ability to copy things relatively cheaply and easily, and often [the copies] are used in ways and places that people think are ‘personal’ or ‘private.’ With the Internet, that problem scales up by several orders of magnitude.”

Second, Madison said, people are creating material in a form that’s ready-made for copying, such as downloading material from the Internet. “How do you stop people from copying stuff that’s designed to be copied, and how do you deal with copying by individuals, when copyright law is really designed to get at publishing problems?”

While courts and Congress and company policy-makers are wrestling with the big picture (and big money) issues, such as mass file-sharing of copyrighted material, the individual is left to fend for him- or herself, Madison said.

“Here are some rules of thumb,” he said:

* “Don’t copy or use any material that you didn’t create yourself, unless you have explicit permission to use it.” That permission may be obtained face-to-face or voice-to-voice, or it might be in a written contract or through a license that comes with the acquired material.

“The phrase ‘any material’ is broad, but copyright applies to anything that people create, whether that’s text, or music, or image, or graphics, or sculpture, or digital files or computer software,” Madison said.

Under changes in the federal copyright law enacted in 1978, all created material is copyrighted automatically regardless of whether it includes a copyright notice (or the circled C symbol) or if the author filed a copyright registration, he noted.

Also, under Section 106 of the law, Ashley pointed out, “The owner of the copyright can withhold what he wants to, and can waive what he wants to [among the protected rights:] the right to prevent someone from distributing a copy; the right to prevent unauthorized copying; the right to prevent unauthorized public display or public performance.”

* Madison said a second rule of thumb is that the creator owns the copyright to material unless the material was created as part of that person’s job, an example of what copyright law calls “works made for hire.”

“If a university department publishes a newsletter, the university owns the copyright to that newsletter. The university also owns the copyright to the articles that staff contributed to the newsletter, and the copyright to the photographs that staff photographers took,” Madison said.

(Thus, the article you are reading belongs to the University of Pittsburgh, not to the writer.)

“However, if the writers or photographers are contractors or freelancers, they own their own copyrights, unless a contract between the parties specifies otherwise.”

* “In some circumstances, the law says that you can make copies of things even without getting explicit permission, under the doctrine of ‘fair use,'” Madison said. An employee of a company can use a fellow employee’s material without violating copyright law, for example. “Or, sometimes the public interest in what the material is used for is more important than any individual’s copyright interest. Journalists can quote from documents. Critics can quote from movies. Scholars can borrow from source material.”

Several myths regarding fair use continue to circulate, Madison said.

“The actual written statute is extremely vague, [causing] some people to interpret fair use as word limitations – like the imaginary rule that quoting up to 100 words is okay – or that copying is okay so long as I’m not collecting money for my copies, or it’s okay so long as I’m not making a profit with my copies. These statements are myths.”

Ashley added that Section 107 of copyright law lists the factors related to fair use that courts are to consider. “One of those factors is the quantity as well as the quality, but the statute doesn’t give any protective limitations. If a very small quantity of the copyrighted work is what you copy but qualitatively that small part represents the heart of the work, that well may be infringement.”

The other factors included under Section 107 are: the purpose and character of use; the nature of the copyrighted work, and the effect of the use upon the potential market for, or value of, the copyrighted work.

Madison said, “Here’s my best version of fair use: If you’re a teacher, or scholar, or journalist or critic, and you’re copying things in the limited way that teachers, scholars, journalists and critics have classically done, then you are unlikely to get into serious trouble under copyright law.

“And, if you’re in the privacy of your own home, and you’re not plugged into the Internet or some other computer network, then making copies of television shows and films by taping them onto your VCR is fine. Under fair use, anything else is a gray area.”

* “The final rule of thumb,” Madison continued, “is that if you own your own copy of a book, or CD, or DVD or video, then you can do whatever you want with it – so long as you don’t make a copy. You can sell it, or give the whole thing away, you can throw it away, or you can cut the pages of the book out and sell them one at a time. People don’t necessarily remember what an important right that is, but it’s the right that makes libraries and used bookstores possible.”


What copyright implications should the casual Internet user be aware of when building links to web sites?

According to Ashley, “Creating web sites and inserting links to other people’s web sites, on which there may be copyrighted information, in general, is not a copyright violation, because what one is inserting on one’s own web page is an address, the URL to the location. The address is a fact, it is not copyrighted in and of itself.”

So, under the law, a browser who clicks on that URL goes to the site of the owner of the material and is subject then to the rules or conditions established there, Ashley said.

But one can push web site-building toward copyright infringement in at least two ways, Ashley said, either by the type of linking that opens documents under the banner of the linker’s web site, or by “deep-linking” where the browser bypasses the top-level page directly into copyrighted material.

In the former case, “If the material obtained on the other web site appears within one’s own web site’s confines, that can be a violation, because it creates confusion as to who the owner is by virtue of that framing,” Ashley said. “It also could raise trade-mark issues,” such as if a logo or registered trademark of the linked site is posted without permission.

Ashley cited the example of deep-linking where a company displays aggregated information about ticket availability.

“They didn’t themselves sell tickets, but they would provide links to sources that would sell the tickets, but deep into that source, rather than the source’s homepage. This caused problems from the sources’ point of view because they had advertising and conditions of use on the site [that were being bypassed],” Ashley said.

“It’s a little less clear whether that is necessarily a copyright violation. But people who do either of those things are risking copyright infringement, when they could easily set things up to avoid it. Why not avoid that possibility?” he suggested.

What about large-scale file-sharing?

According to Madison, the copyright issue of file-sharing has not been fully litigated. “The mainstream news media has come to the conclusion that file-sharing per se is illegal,” Madison said. “But that’s not actually the judgment of the courts that have ruled on the issue. There are only a small number of courts who have ruled on the issue, and none in Pennsylvania.”

Clearinghouses that represent software companies, motion picture companies, recording companies and educational, scholarly publishers, among others, are on the look-out for evidence of widespread copyright infringement, he said, but typically are not after “the small fry.”

“These clearinghouses, or consortiums like the RIAA (Recording Industry Association of America), will contract the surveillance function to private companies that monitor computer networks for traffic in unauthorized file-sharing,” Madison said.

Suppose one of these surveillance groups, acting under the authority of the RIAA, monitors traffic coming in and out of the Pitt network from one of the undergraduate dormitories, and they discover a network account active in downloading and uploading high volumes of a particular song or computer program.

“The RIAA will then generate a written notice that it will mail to the University’s legal counsel that specifies that, at such and such an account, this user was engaged in uploading – usually – unauthorized [files] of the following songs and they will name the songs,” Madison said. “This is not just at Pitt, of course, but all over,” he added.

“Practically speaking, an individual uploading and downloading using a file-sharing network is pretty safe using moderation, that is, if you are uploading and downloading in relatively small volumes relatively infrequently to a relatively small group.”

Madison said he was not condoning such behavior. “My general advice for someone at home wondering whether clipping images off of a web site is legal is that, generally, as long as you’re doing it at home, and doing it in small quantities, then it’s fine,” he said. “But don’t go building big web sites with material that you haven’t gotten permission to use, and don’t distribute or post other people’s work in any forum beyond a small circle of friends. If you’re in an organizational setting, like the University, then you should be more careful. Publish what you and your colleagues create, and what you have specific permission to publish.”


Pitt’s copyright policy (Policy 10-04-01, 1989) is in the process of revision, according to George Klinzing, vice provost for Research. “A modified, updated policy is working its way through the approval process right now,” Klinzing said last week. “It’s been approved by the Council of Deans, but still must go to the Senate Council president (Nicholas Bircher) to look at. He may appoint a task force or group to examine it. Eventually, it will come back to the provost, who has to approve it.”

Both Madison and Ashley helped with the policy revisions, Klinzing added.

-Peter Hart

Filed under: Feature,Volume 37 Issue 2

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