Copyright Infringement, Law and Borders on the Internet

By Pedro Remoaldo

Mestrado em Gestão de Informação
Faculdade de Engenharia da Universidade do Porto
Portugal
June 1998

Abstract

The problem of copyright infringement has always been one of the more difficult issues to solve on our society. The copyright law has been evolving throughout the years and has successfully adapted to the new technologies that have appeared.

But with the Internet the battle seems to be lost, since it allows the access to an enormous quantity of information any time, anyplace without any constraints. The Internet has often been referred to as one large copy machine that can make and distribute an unlimited number of copies of content worldwide.

The anonymous characteristic of the Internet does not contribute to law enforcing, and many predict that intellectual property creators will be reluctant to create works for the Internet environment since creators will be unable to protect their copyright interests. But the idea of open access to these materials hasn't slowed down the onslaught of new information flowing into the Internet.

New copyright problems brought up by the Internet can force a revision of current copyright laws, but the majority of netizens think that the Internet should be left alone. This is not the opinion of the copyright owners who want governments to take action and apply the existing copyright laws to the Internet.

The main problem comes from the international nature of the Internet, which creates questions of which laws should be applied. Although countries have signed treaties of copyright protection, some people think that cyberspace should be considered a separate entity, and different laws should be created.

What is copyright?

Copyright is a form of protection provided by the laws of a country to the authors of "original works of authorship" whereby authors obtain certain exclusive rights to their works. The items of expression can include literary, dramatic, and musical works; pantomimes and choreography; pictorial, graphic and sculptural works; audio-visual works; sound recordings; and architectural works.

The law requires that the creative work exists in some tangible form (disk, paper, ...) and it has to be creative, meaning it can't just be factual data. Facts and ideas can't be copyrighted, only expressions of creative effort. An original expression is eligible for copyright protection as soon as it is fixed in a tangible form.

Copyright law secures for the creator of a creative effort the exclusive right to control who can make copies, or make works derived from the original work. The owner of copyright may generally transfer or sell his right or may license certain uses of his work. An author can abandon all rights to a particular work, putting it into the public domain. (Templeton)

You can't copy something somebody else did without their permission, or derive your work from their work. Also, a second work that merely happens to be very similar (or even identical) to an earlier work does not infringe, if it is, in fact, independently created. If the person creating the second work had access to the original, and the works are very similar, copying is likely to be presumed. (Field, 1998)

Copyright law is quite explicit that the making of what are called "derivative works" works based or derived from another copyrighted work is the exclusive province of the owner of the original work. This is true even though the making of these new works is a highly creative process. If you write a story using settings or characters from somebody else's work, you need that author's permission. (Templeton)

Authors also enjoy "moral rights" on the basis of which authors have the right to claim their authorship and require that their names be indicated on the copies of the work, and they have the right to oppose the mutilation or deformation of their works.

Restrictions to copyright

These exclusive rights are subject to numerous restrictions. First, these rights cease 50 years after the death of the author. Other exceptions include the doctrines of fair use, the first sale doctrine, library exemptions, and educational use exemptions. The educational exemption allows the performance or display of a copyrighted work in the course of face-to-face teaching activities by a non-profit educational institution in a classroom type setting. The library exemption provides that in certain circumstances and under certain conditions, libraries can make copies for archives, replacement, and distribution if there is no direct or indirect commercial advantage. (Beberman, 1996)

The first sale implies that the copyright owner cannot control subsequent transfers of the copy of the work. This allows people to loan or sell a secondhand book. (Beberman, 1996)

The "fair use" doctrine means that if you are doing things like comment on a copyrighted work, making fun of it, teaching about it or researching it, or news reporting, you can make some limited use of the work without permission. (Templeton)

Fair use is almost always a short excerpt and almost always attributed. It doesn't harm the commercial value of the work in the sense of people no longer needing to buy it.

Copyright on the Internet

The Internet and the on-line services (CompuServe, America OnLine,...) provide a vast array of information, immediately accessed, available almost everywhere and at low cost. This information is constantly changing and expanding.

Most of the items that you are likely to encounter on the Internet are eligible for copyright protection, including the text of web pages, ASCII text documents, contents of email and Usenet messages, sound files, graphics files, executable computer programs and computer program listings. Web pages, email messages and even public messages are protected by copyright as soon as they are created. (Field, 1998)

There are several threats to enforcing copyright rights on the Internet (Goldman, 1997): no loss of quality in reproduction; no meaningful marginal costs of reproduction or distribution; ability to act anonymously; and uneducated users that do not understand the existing copyright legal framework. The ease by which copyrightable works can be copied and distributed over the Internet, and the fact that cyberspace doesn't exist in any time or place does not help much.

The main problem is the attitude of the majority of Internet users: "if it is on the Internet, it's free". Historically the Internet has been populated by academics and technologists who defend the "Information Wants to be Free" argument and claim the Internet is a shared public resource. This opinion collides with the "intellectual property should be highly protected" argument of the lawyers and of the "real world".

Many believe that any law regarding the Internet will have to take the unique characteristics of cyberspace into consideration (Whittington, 1997). Others think that it is not necessary to view the world of the Net as different from the rest of the world (Mason, 1996). Still others think that electronic publishing is analogous to word-of-mouth communication, to which copyright was never applied (Goldman, 1997).

Software piracy issues

The Internet has begun to be used by software developers, resellers and licensors as an advertising medium and a distribution channel for their software. However, placing or allowing others to place software on the Internet dramatically increases the risk of infringement. It is even more problematic to vendors that choose not to distribute software products through the Internet.

Recently, the head of a software piracy invited a Los Angeles reporter to watch the theft of a computer game from LucasArts Entertainment Company. With help from a paid inside saboteur, and a programmer in Moscow who cracked the code, the game was obtained, cracked and posted on a Seattle-based bulletin board through the Internet, days before its official release, free for anyone to copy. (Mason, 1996b)

The groups dedicated to software piracy on the Internet use host computers to secretly set up stores of stolen software. The pirates then pass messages around the world so that other pirates can download the software. The hosts' administrators are normally unaware of this criminal use of their hosts. And since the entire operation may take no more than 24 hours, it is virtually impossible for law-enforcement officials to take steps to shut it down. Even where they are able to do so, it is virtually impossible to know where the next site will emerge. (Savage, 1997)

To punish these actions, Bill Clinton signed into law the No Electronic Theft (NET) Act, on 1997. It criminalises the computer theft of copyrighted works (distribution or possession), whether or not the defendant derives a financial gain from the illicit activity.

The case United States of America v. David LaMacchia (1994) inspired this legislation. A student of the Massachusetts Institute of Technology was charged with allowing the piracy of more than $1 million in business and entertainment software from an electronic bulletin board he ran on M.I.T.'s system. His attorneys successfully argued that LaMacchia did not profit from the site and that he himself did not upload, download or use the software available.

But some detractors of this legislation point to the common practice of professors selling all rights to an article to a research journal but nevertheless posting the article on the university Web page for students or other interested parties to view and potentially download. But if a copyright author sells all of his rights in the work, that author may not post the work on a Web site absent the new owner's permission. (Lawrence, 1998)

The SPA (Software Publishers Association) which represents the interests of its members from the software industry has been very active in the software piracy issue in the Internet. It has organized, in 1996, an Internet Anti-Piracy Campaign and has filed several suits against individuals who operate Web sites that offer copyrighted material. The SPA and is present in more than 60 countries.

Copyright infringements problems created by the Internet

The Internet and the World Wide Web have brought their own copyright problems to the table. One off the more discussed is the linking right. Can it be a copyright violation to link to a web page against the explicit wishes of the owner of that web page?

Most copyright experts generally believe that linking should not lead to copyright liability, because the mechanical operation of the hypertext link does not implicate one of the exclusive rights of copyright owners (Goldman, 1997).

Others have argued that uploading intellectual property to the Internet grants an "implied license" to link, that linking might be considered fair use, and that if an Internet site does desire to keep others from linking to some or all of its pages, a number of technologies are available to inhibit linking (Goldman, 1997).

A United Kingdom court forbid the Shetland News, an Internet based newspaper, from offering links from its WWW pages to those of its rival Internet newspaper, the Shetland Times. (Oppenheim, 1996)

Commercial sites may well object to their content being framed at another site - particularly if their content is surrounded by another's paid advertising. This can also confuse the user about the authorship of the site. The Washington Post recently found that the content of its Web site, including current news and information, was linked without its knowledge or permission to a Web site run by a small Arizona company, Total News Inc. More troubling was the fact that Total News surrounded The Washington Post's content with a "frame", which contained paid advertising. (Raysman, 1997)

Caching of files can occur both locally on the user's client computer and at the server level. When a user requests a file that has been cached, the browser will deliver the file from the cache rather than retrieving a fresh copy over the Internet. But transferring from a permanent storage device to a computer's random access memory constitutes copying for the purposes of copyright law (Beberman, 1996).

Offline browsers, software that automatically downloads some or all of an Internet site to the user's computer, allowing the user to browse without having to wait for the delivery of each page, can be considered to infringe copyright law.

The use of copyright images is one of the more usual copyright infringements in the Internet. First, one can not scan pictures from magazines and post them to the Internet, neither can the images of one site be used on another site without authorization.

The operator of the National Association of Fire Equipment Distributors was offered some clip-art and placed the images on the companie's web page for anyone to download as a courtesy provided by NAFED, and advertised their presence. The images, however, were copyrighted property of plaintiff Marobie-FL, doing Business as Galactic Software, and they sued NAFED for providing the images for free. (Loundy, 1997)

Music has also become the object of copyright infringement on the Internet. In the US case of Frank Music v CompuServe, publishers of copyrighted music material sued the provider of a bulletin board service accessible via the Internet for providing a facility where users copied such music. (Freeman, 1995)

The Role of On-Line Service Providers

The law as it applies to service providers is often not nearly so clear. On-line service providers argue that they cannot be held liable for infringement. But a strong argument can be made that if on-line service providers want the Internet to remain an essentially unregulated environment, they should be willing to assume greater responsibility for preventing copyright infringement. After all, on-line service providers are uniquely suited to help find, control, and prevent on-line infringement because they have direct contractual relationships with both subscribers and content providers. (Savage, 1997). But the use of technologies like PICS (Platform for Internet Content Selection) to prevent or deny access to sites that are known to infringe third-party intellectual property rights can raise the spectre of censorship.

The case Religious Technology Center v. Netcom On-Line Communications Services, Inc was the first one were service provider liability was discussed in court. Netcom provides Internet newsgroups to their clients. One of them, anonymously posted documents that the Church of Scientology (represented by the Religious Technology Center) thinks are secrets and protected by copyright. Netcom was sued for not having stopped the post of such documents and for not having cancelled the user's account.

The court decided that Netcom was not liable for direct infringement because it was "practically impossible" for Internet access providers to screen for infringement before information went through the system. (Whittington, 1997)

Technologies and methods for controlling intellectual property on the Internet

Technology is available that will allow authors to mark and track their works on the Internet, protecting their property. Some techonolgies can be used before distributing the intellectual property to control or inhibit infringement of the works (pre-infringement); others to ensure payment prior to or at the time of a consumer's use of the intellectual property (metering); and finally to identify infringements and thus enhance enforcement of intellectual property rights (post-infringement). (Goldman, 1997)

One of the most promising technologies is digital watermarking using a cryptographic technique called steganography to hide ownership and copyright information in a picture or text file. Rather than ensuring the authenticity or integrity of documents, as a digital signature or a digital seal does, a digital watermark aims to identify the origin, author, owner, usage rights, distributor, or authorized user of an image, video clip, or audio clip, even if the image or clip has been processed and distorted. (Zhao, 1997)

Regarding the prevention of software piracy, the use of clearinghouses that implement ESD-based (Electronic Software Distribution) sales on behalf of vendors, is perhaps the most promising. (Lawrence, 1998)

National Politics

National governments have been concerned with the problem of copyright infringement on the Internet. In 1995, the Information Infrastructure Task Force (USA) issued a white paper on "Intellectual Property and the National Information Infrastructure," from which certain Internet circles concluded that it was claiming that digital technology was so threatening to the future of the publishing industry that the public must be stripped of all the rights copyright law has long recognized including the rights of privacy. Then they reacted arguing that the information superhighway can not be transformed into a publisher-dominated medium and that existing law handles the problems raised by the Internet satisfactorily. (Samuelson, 1996)

At almost the same time, the European Union issued a Europe Commission Green Paper on Copyright and Related Rights in the Information Society. It identified the difficulty to ensure, on the Internet, that a work or other protected matter will not be copied, transformed or exploited without the knowledge of the rightholders and contrary to their interests.

A recommendation was proposed to harmonize and align the national laws of each country, in order to respond to the new and varied requirements which may appear, and to protect copyright on the Internet.

International Issues

The laws of a country relating to copyright are generally concerned only with acts accomplished or committed in the country itself. Consequently, they cannot provide for the protection of the country's citizens in another country.

It was in order to guarantee protection in foreign countries for their own citizens that, in 1886, 10 countries established the International Union for the Protection of Literary and Artistic Works by signing the Berne Convention for the Protection of Literary and Artistic Works.

Later the United Nations created a specialized agency called World Intellectual Property Organization (WIPO), which is an intergovernmental organization. It is responsible for the promotion of the protection of intellectual property throughout the world through cooperation among countries, and for the administration of various multilateral treaties dealing with the legal and administrative aspects of intellectual property. Two international treaties have been adopted in 1996 by the World Intellectual Property Organization to protect everything from software to movies and music available online.

But there isn't an international copyright law, only these treaties and agreements who provide the form and measure of protection available in foreign countries. These treaties establish minimum required standards, require protection for foreign copyright owners and provide for enforcement under local national law. (Beberman, 1996)

But some authors think that copyright law has no place in cyberspace. In his famous book "Being Digital", Nicholas Negroponte declares: "National law has no place in cyberlaw. Where is cyberspace? ... Don't like the copyright laws in the United States? Set up your machine in China. Cyberlaw is global law, ..." (Negroponte, 1995)

Also, some netizens argue that the governments have no right to regulate the Internet at all. They contend that the intellectual property laws of any single country are inapplicable to works on the Internet, which is international in scope, and that the Net culture itself will impose and enforce its own values. Often cited is John Gilmore's quote, "The Net interprets censorship as damage and routes around it." (Savage, 1997)

Complex jurisdictional issues that result from the international scope of the Internet further complicate the issues of piracy on the Internet. "What country's law will prevail when the pirated software belongs to a company in one country, the host computer is located in a second country, the pirate is located in a third country, and the software is copied and downloaded to an entity in a fourth country?" (Savage, 1997)

In the "real world" geographical borders are of primary importance in determining legal rights and responsibilities. But cyberspace radically undermines the relationship between legally significant (online) phenomena and physical location.

The Internet enables transactions between people who do not know, and in many cases cannot know, the physical location of the other party. And efforts to control the flow of electronic information across physical borders are likely to prove futile, at least in countries that hope to participate in global commerce. (Johnson, 1996)

Faced with their inability to control the flow of electrons across physical borders, some authorities strive to inject their boundaries into the new electronic medium through filtering mechanisms and the establishment of electronic barriers. German authorities, seeking to prevent violations of that country's laws against distribution of pornographic material, ordered CompuServe to disable access by German residents to certain global Usenet newsgroups that would otherwise be accessible through that commercial service.

Others have been quick to assert the right to regulate all online trade since it might adversely impact local citizens. The Attorney General of Minnesota, for example, has asserted the right to regulate gambling that occurs on a foreign web page that was accessed and "brought into" the state by a local resident.

"By asserting a right to regulate whatever its citizens may access on the Net, these local authorities are laying the predicate for an argument that Singapore or Iraq or any other sovereign can regulate the activities of U.S. companies operating in cyberspace from a location physically within the United States". (Johnson, 1996)

The problem of border-crossing electronic communications could be resolved by conceiving of Cyberspace as a distinct "place" for purposes of legal analysis by recognizing a legally significant border between Cyberspace and the "real world." (Johnson, 1996)

Several cases of cross-countries infringement have been judged in the USA. In the Playboy Enterprises versus Tattilo Editrice, S.p.A. case, an American court ordered the Italian company to stop accepting new subscriptions from customers residing in the United States, and to invalidate the current ones since it was violating a judgment dated June 26, 1981 forbidding it from publishing, printing, distributing or selling in the United States an English language male sophisticate magazine under the name "PLAYMEN". As the magazine is legal in Italy and is available on the Internet, american netizens are now able to read that material.

In another case related to the Church of Scientology, Karin Spaink published on his web site information considered by the Church of Scientology to be trade secret and copyright work. Karin Spaink, a Dutch citizen, succeeded in convincing a Dutch court that the information was in the public domain so she and her Internet Service Provider, XS4ALL, could not be sued by the Church of Scientology. (Whittington, 1997)

One can argue that when a copyright infringement occurs on the Internet, the author, under the national treatment doctrine of the international agreements, can always sue in the countries where the violations occurred. This is obviously a long and expensive process, which is beyond the fiscal capacity of most authors, but it works, based only on the existing copyright laws.

Conclusion

One of the problems with copyright protection is the fact that people do not understand the existing copyright legal framework. This problem has been aggravated by the easy access to the information on the Internet, which most netizens consider to be free. Also, users are becoming increasingly unwilling to pay for intellectual property since so much "free" information is available on the Internet.

The Internet also creates new types of copyright infringements that have not been solved. Linking rights is one of the problems still unsolved, but good sense should prevail, allowing people to use links at will. But software piracy on the Internet is another problem. Although software companies are always complaining about the money they loose to piracy, the fact is they have huge profits: Microsoft, although having the more pirated programs of all software companies has the better profits. But one should not be so naive to assume that if the price of software should fall, the piracy would go away. Some of the pirates do it for fun or for recognition, others do it for profit. This problem could be attenuated if the users were educated on the damage they cause to the authors and on the brake they put on the productions of new works.

New technologies are becoming available for controlling and fighting copyright infringement. This technologies (specially metering) also allow new methods of "selling" works and can put the authors in direct contact with their customers.

The problem of liability of the service providers is completely out of hands. How can a service provider be held liable for the infringement of one of its subscribers, if it is almost impossible to control what information is posted on newsgroups and on web pages. Censorship in this case could be a way of controlling privacy. What service providers should do is investigate the complaints of copyright infringement and remove or deny access to the infringing material while they investigate. If condemned, the user or company accounts should be immediately cancelled and all the other service providers should be informed about the issue.

The United Nations, through the World Intellectual Property Organization, together with all the countries, should create an international law regarding copyright that would allow transgressors to be prosecuted independently of their physical location.

Regarding the creation of new laws specific for the cyberspace, the current national copyright laws are sufficient, but could perhaps be extended to cover the particular copyright problems brought by the Internet.


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Freedom Magazine (Church of Scientology International) (www.freedommag.org)

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World Intellectual Property Organization (http://www.wipo.org/)

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Berne Convention for the Protection of Literary and Artistic Works (http://www.law.cornell.edu/treaties/berne/6bis.html)

Basic Principles For Managing Intellectual Property In The Digital Environment (http://www-ninch.cni.org/ISSUES/COPYRIGHT/PRINCIPLES/NHA_Complete.html)

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Commission Green Paper on Copyright and Related Rights in the Information Society - summary (http://www.ispo.cec.be/infosoc/legreg/sum382.html)

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Legal Cases

Frank Music v CompuServe (http://www.dorsai.org/p-law/wong_dir/docs/wongpap4.html)

Marobie-FL v. National Association of Fire Equipment Distributors (http://www.loundy.com/CASES/Marobie_v_NAFED.html)

Playboy Enterprises, Inc. v. Webbworld (http://www.loundy.com/CASES/PEI_v_Webbworld.html)

Playboy Enterprises versus Tattilo Editrice, S.p.A. (http://www.bna.com/e-law/cases/playmen.html)

Religious Technology Center v. Netcom On-Line Communications Services, Inc (http://www.loundy.com/CASES/RTC_v_Netcom.html)

The Shetland Times Ltd v. Wills (http://www.shetland-news.co.uk/opinion.html)

The Washington Post Company v. Total News (http://www.ljx.com/internet/totalse.html)

United States of America v. David Lamacchia (http://www.loundy.com/CASES/US_v_LaMacchia.html)