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Section 106 sets forth the five traditional rights of copyright owners: reproduction, derivative works, distribution, public performance, and public display. It provides, in pertinent part, that "the owner of copyright under this title has the exclusive rights to do and to authorize any of the following....(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly."
A threshold question that arises under this statute is whether this provision would apply to any material -- including text files -- posted on a web site without permission, or only to graphics. While it can certainly be argued from the plain meaning of the statute that Congress was concerned only with visual displays, cyberspace presents a new and different set of circumstances.
Traditionally, one could easily differentiate between text and graphics. But on the World Wide Web, all web sites and web pages are created in text, using hypertext markup language (html). Viewing html, one sees only coded words and phrases, but web browsers then read these words and phrases in different ways. Some trigger the display of text on the Internet, while others trigger the display of graphics.
It is conceivable, therefore, that arguments based on the technology of web site creation can be made by both a prospective plaintiff and a prospective defendant. A plaintiff might argue that any display on the web violates the public display right, since either text or graphics created by html could constitute "individual images" within the meaning of Section 106. A defendant, however, could argue that either text or graphics would fall outside the meaning of Section 106, since html files are text in their entirety, and text is apparently not covered by this statutory provision.
Beyond the Section 106 issues, an inquiry into the applicability of the public display right to online postings without permission would focus on how the words "display" and "public" might be characterized in case law and in the relevant legal literature.
Under Section 101 of the Copyright Act, "[t]o "display" a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially." 17 U.S.C. Section 101.
It appears from the legislative history of the display right that Congress contemplated a very broad exclusive right for the owner of a copyright in this regard, According to statements documented in the Congressional Record, the concept of "display" covers "the projection of an image on a screen or other surface by any method, the transmission of an image by electronic or other means, and the showing of an image on a cathode ray tube, or similar viewing apparatus connected with any sort of information storage and retrieval system." H.R. Rep. No. 1476, 94th Cong., 2d Sess. 64 (1976).
In addition, the decision in Playboy Enterprises, Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993), would appear to pose a major hurdle for defendants who might argue that the posting of (at least) graphic material on the Internet without permission does not violate Section 106 (5). In Playboy, the court considered whether a bulletin board service (BBS) violated the distribution and display rights by allowing subscribers to upload and download many photographs that had allegedly been copied from Playboy Magazine. Although Frena claimed that he himself did not copy any of the photographs and that he was unaware of their existence on the BBS, the court found him liable for copyright infringement. Not only did the court determine that defendant violated Playboy's right to distribute copies under Section 106 (3) by supplying a product containing unauthorized copies, it also concluded that the BBS display of Playboy's copyrighted photos constituted a public display. "The display right," the court said, "precludes unauthorized transmission of the display from one place to another, for example, by a computer system." 839 F. Supp. at 1557.
It can be argued, however, that Playboy is of limited precedential value because it has only been decided by the federal district court. In addition, the decision has been severely criticized by several commentators. See, e.g., Susan B. Deutsch, Super Liability on the Superhighway: A Telecommunications Industry Perspective, 1 Multimedia L. Rep. 4, 6 (1994); Niva Elkin-Koren, Copyright Law and Social Dialogue on the Information Superhighway: The Case against Copyright Liability of Bulletin Board Operators, 13 Cardozo Arts & Entertainment L.J. 345, 349 (1995).
With regard to the definition of the word "public," additional issues arise. "To perform or display a work publicly means--(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
Professor Niva Elkin-Koren's analysis of the Playboy case is particularly analogous in this regard. Under the first prong of the definition of public, she argues that the Playboy court's reasoning with regard to the nature of a BBS was incorrect. How can a BBS be considered a public place, she argues, under Section 101? The statute specifies that a public display must occur "at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered."
The place of reception, Elkin-Koren contends, would be the relevant place for determining where the performance or display occurs. See, e.g., On Command Video v. Columbia Pictures Indus., 777 F. Supp. 787, 789 (N.D. Cal. 1991). And the display in the Playboy case did not occur in any physical place to which the public has access. Instead, it took place on the individual computer screens of BBS subscribers, in the privacy of their homes or offices, and at different times and places.
Elkin-Koren argues that the second clause of the statutory definition would be much more relevant to a BBS operation. Under this clause, which the Playboy court did not discuss, a public display is defined as the transmission or communication of a work where the public can receive the display in the same place or in separate place, and can receive it at the same time or at different times. 17 U.S.C. ¤ 101. This clause allows the copyright owner to control the display of his or her work to single viewers at different times. As Elkin-Koren explains, "the work becomes public...by allowing members of the public to experience it individually at home at their convenience."
Yet even under this analysis, a BBS -- or, conceivably, a prospective defendant posting material on the Internet without permission -- would not violate this statutory right. The interactive nature of the online world allows Netizens to choose what they wish to see. Users in cyberspace play an active role in the transmission of the items; they retrieve items as opposed to the system transmitting them. Yet liability under Section 106 (5) appears to require active transmission of the copyrighted work. Thus it is questionable whether simply providing access can constitute a violation of the second clause within the meaning of the federal Copyright Act.
In a lively and dynamic piece written over two years ago for the Stanford Journal of Law and Public Policy, Professors Raymond T. Nimmer and Patricia Ann Krauthaus argue that not only is the law concerning public performance and display in a state of flux, but that "the focus of the copyright legal system is poorly fitted to the world of modern electronic information systems." See Copyright on the Information Superhighway: Requiem for a Middleweight, 6 Stanford L. & Policy Rev. 25, 26 (1994). It is clear from the above analysis that their observations are still very much on target today.
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