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No publications do a better job spelling out the parameters of this controversy than the government's National Information Infrastructure (NII) White Paper and John Perry Barlow's "The Economy of Ideas: A Framework for Rethinking Patents and Copyrights in the Digital Age," Wired Magazine 2.03 (March 1994).** The white paper, released by the Clinton Administration in Late 1995, proposes new federal legislation that would essentially extend hard-line copyright doctrine to cyberspace. Barlow, co-founder of the Electronic Frontier Foundation and a former lyricist for The Grateful Dead, argues that cyberspace represents an "entirely new set of circumstances" that cannot be appropriately addressed by traditional intellectual property law.
As might be expected, the World Wide Web has been at the center of this debate, since current technology not only allows users to effortlessly take possession of anything on the Web, but also enables Netizens to disseminate these same items to hundreds of other people by doing little more than pointing, clicking, and pressing a few buttons.
Although not yet tested in the courts, it is generally accepted in Net culture that anything posted on the Web without some sort of explicit warning to the contrary may be printed, downloaded, and/or linked. The nature of the Web -- indeed, its whole reason for being -- is that everything posted will in fact be "there for the taking."
A more difficult question, and one which goes to the very heart of the current intellectual property dispute, is whether the posting of copyrighted material on the Web without permission would constitute fair use under Section 107 of the Federal Copyright Act. Such "sharing" of information is easily accomplished today. After downloading text or graphics that have been accessed online or after creating electronic files by running certain material through a scanner, web site "owners" simply take the resulting documents and/or images and in a matter of minutes insert them into html files.
Princeton University Press v. Michigan Document Services, Inc., 74 F. 3d 1512 (6th Cir. 1996), a recent photocopying case addressing the parameters of the fair use doctrine with respect to college course anthologies, may provide some interesting insights in this regard. Increasingly, over the past ten years, professors at colleges and universities have created customized course readers to provide students with the most recent and most relevant information available. While some of these readers are prepared on campus by university-run photocopying services that typically contact every publisher, request permission to copy materials, and arrange to pay royalties, many other anthologies are prepared off campus by commercial services that save students money by not contacting the publishers at all.
The Michigan Document Services (MDS) case focused on course readers that had been prepared by University of Michigan professors and had been duplicated by a local off-campus copying service. Although as much as 95 pages of certain books were included in these readers, no permission was sought or received from a variety of major publishers. Defendant argued that its actions fell squarely within the fair use exception.
Long recognized under common law and codified by Congress in 1976, the fair use defense to infringement reflects a recognition by legislators and jurists that excessively broad copyright protection would stifle, rather than advance, intellectual progress. Section 107 sets forth a four-factor test for determining whether a use has been fair under the particular facts of a case: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used, and (4) the effect of the use on the potential market for or value of the copyrighted work.
Employing a traditional factor-by-factor analysis, the Sixth Circuit determined that the photocopying and selling of these materials was indeed a fair use under Section 107. The court recognized that the coursepack was a "new product" tied to advances in technology, that professors did not make any money from this process, that in this way students could have more access to academic materials by paying even less money, that even greater interest would be triggered in the original works, and that original authors themselves would be happy because their work was being disseminated to a larger number of people.
Since all of these points are equally applicable to most web sites, it can be argued that now the posting of journal articles, book excerpts, and relevant newspaper articles on the World Wide Web without permission might very well be considered a fair use under the Sixth Circuit's reasoning. The web is a new development reflecting advances in technology, most web site owners do not make any money from the process, the posting of additional text and graphics undoubtedly provides people across the globe with greater access to information at little or no cost, excerpts will invariably trigger greater interest in the original works, and authors will arguably be thrilled by the fact that their work is being disseminated widely.
Such an analysis would not be applicable, of course, to the commercial web sites that have proliferated over the past 18 months. However, it must be noted that the entire Internet is still dominated by educational institutions and by individual persons and groups who want nothing more than to share information with each other. Thus the analogy of the World Wide Web as a gigantic educational anthology promoting "the progress of science and the useful arts" (as per Article I, Section 8 of the U.S. Constitution) might very well hold up in most cases.
Yet there is another side to this picture. It is true that many authors signed a declaration for the defendants in the MDS case stating that "their primary purpose in writing is not for monetary compensation and that they advocate wide dissemination of excerpts from their works...without imposition of permission fees." But for other authors writing is their primary source of income, and some of these authors are currently pursuing a high-profile lawsuit to protect their rights. The case, Tasini v. New York Times, is expected to be decided by the federal district court by mid-1996.
Jonathan Tasini, himself a freelance author and president of the National Writers Union, heads the list of plaintiffs who are challenging the Times' policy of requiring freelance writers to sign away all rights to work published in the newspaper. The central point of controversy in the case is that all pieces published in major newspapers such as the Times are immediately placed online, and the authors feel they should be compensated in an additional manner for this, particularly when -- in such services as Lexis-Nexis -- customers in fact do pay extra to download these works. Freelance authors are at a particular disadvantage in this regard, since unlike staff writers they receive no salary or benefits. Their only income is from their writing.
Defendants in the Tasini case include the New York Times, Mead Data Central, Atlantic Monthly, and University Microfilms, Inc. They argue that online services (and in fact microfilm services) are nothing more than archives which contain the whole paper as it appeared on the date of publication, and that the use of freelance articles was already paid for in that context. But the plaintiffs contend that each freelance author's article constitutes a secondary use which deserves additional compensation, a position very similar to that of the publishers' in the MDS photocopying case.
Hopefully, after all these issues are sorted out, a reasonable middle ground will be reached. Fair use and the free flow of information can be maximized for the owners of educational web sites and for certain categories of authors whose primary incomes come from other sources, while more restrictions may be placed on owners of commercial web sites and on the use of material by freelance authors.
Princeton University Press v. Michigan Document Services is a good beginning in this process. And as the highest court in the land to have considered these complex issues, it is a decision that is likely to carry a great deal of weight.
** (Register with HotWired to access John Perry Barlow's article).
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