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COPYRIGHT IN CYBERSPACE

by
Megan J. Larson

Cyberspace. A consensual hallucination experienced daily by billions of legitimate operators, in every nation, by children being taught mathematical concepts. . .A graphical representation of data abstracted from the banks of every computer in the human system. Unthinkable complexity. Lines of light ranged in the nonspace of the mind, clusters and constellations of data. Like city lights, receding. . .

William Gibson first coined the term "cyberspace" in 1984, the same year that the Pentagon relinquished its control of the ARPANET, the military-research network that was the precursor to the modern Internet. Since then, the Internet has evolved into an incredible international electronic information system providing millions with access to educational, entertainment, and business resources, as well as fostering new forms of personal communication, including e-mail and on-line chatting. Buzzwords like "information superhighway" and "cyber-[fill-in-the-blank]" are common parlance, even while the exact meanings of these words are unknown. Cyberspace is a virtual world, which technically exists only in computer memory, but it is interactive and pulsing with life. In cyberspace one can meet and talk to new people, read, publish, research,[1] hear music, see video, look at art, purchase and sell things, access government documents, send e-mail, download software, and receive technical support. It does not fulfill Gibson's vision yet, but its potential is incredible.

Cyberspace is a living organism, constantly changing, as more information is uploaded, downloaded, as more people join the pioneers of this brave new world. Our laws have yet to catch up with it. This is not necessarily a bad thing; the law tends to lag behind social changes, then resolve itself accordingly. While this new frontier will never stop evolving, perhaps it is still too much in its infancy for us to determine how to regulate it. But as it becomes more integrated into (and integral to) our daily lives, many are becoming concerned with defining acceptable behavior in this new landscape.

One of the biggest issues concerning the internet is the protection of intellectual property -- works of the mind. American copyright protects literary works, pictures, sound recordings and other creative works from being copied without the permission of the copyright holder. It is as yet unclear how copyright law governs or will govern these materials as they appear on the Internet.

Copyright is meant to protect original works of authorship fixed in a tangible medium from being copied without permission. [2] Contrary perhaps to initial assumption, this protection is not designed to compensate authors for their works per se, [3] but "[t]o promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." [4] In this way, the public can benefit from creative works that would not be produced but for compensation of their creators.

Some commentators believe that it is important to strictly apply copyright to original works on the Internet, lest authors have no incentive to create. The Working Group on Intellectual Property Rights, headed by Bruce Lehman, takes this position. [5] President Clinton commissioned the Information Infrastructure Task Force (of which the Working Group is a sub-committee) to "articulate and implement the Administration's vision for the National Information Infrastructure." [6] The Working Group, in publishing its Report, (commonly referred to as the White Paper,) has made a series of recommendations for copyright law on the Internet which abridge the present rights of the public users in favor of giving increased protection to copyright holders.

Others have taken a more libertarian approach to the vast resources of cyberspace. John Perry Barlow, co-founder of the Electronic Frontier Foundation, has likened electronic information to wine, in a world where copyright protects only the bottle. [7] There are no bottles in cyberspace. The ability to convey ideas without ever making them physical has profound effects on what is protectible. Copyright is meant to protect only fixed works, like books, and it is able to do so pretty well.

There is middle ground between these two positions, of course. Many have criticized the NII Report but still see a place for copyright on the Internet. As the Internet grows more and more important to our society -- and becomes a bigger and bigger business -- it becomes more important to lay down some ground rules. Isolated cases [8] finding liability in BBS operators have struck fear in the hearts of those concerned at the nexus of copyright and freedom of speech on the Internet. [9] While cyberspace may still be too young to effectively tame (if that is indeed what we want to do), the ambiguity of rights on the Internet needs to be clarified in some reasonable way, as uncertainty could result in broad censorship of the Internet.

Copyright was originated in the era of the printing press. [10] Not very many people owned printing presses. When people chose to pirate books, there was a good profit, but the pirated books could be traced and were a good measure of infringement. The average person could not copy a book and give it out to friends or sell it on the street. All in all, the system seemed to work pretty well.

But then came the advent of wonderful new technologies in the twentieth century. Photocopiers. Tape decks. VCRs. [11] All of these advances have changed the relationship between copyright owner and potential copier. While originally access to technology served as a barrier to copying by the general public, with new technologies, the average person was suddenly photocopying articles, taping albums, recording their favorite television shows. And what do you know? Copyright is still alive and kicking, and the entertainment industries are as powerful as ever.

Now, on the Internet, copyright faces its greatest challenge yet. Pamela Samuelson has enumerated the qualities of digital media [12] in general that make it problematic for copyright protection. [13] First, there is the ease of replication. If you chose to save this paper, you would have as perfect a copy of it as the one I'm typing right now. Moreover, you could make as many copies of it as your heart would desire. The beauty of digital media is that there is no degradation in successive copying. For some, this is also its curse. When faced with a similar position with the advent of digital audio tapes (DAT), which allowed the possibility of perfect copying of audio recordings, the industry chose (facing extreme pressure from the recording industry) to hobble its technology by not allowing second-generation recordings to be made from its tapes. [14] Also, the DAT manufacturers paid a royalty to the record companies from every tape deck sold, presumably to compensate for lost sales.

Another important factor regarding digital media is the ease of transmission and multiple use. So now that you have a copy of this paper on your hard drive, maybe you want to send it to one of your friends. No problem, you can e-mail it right over to her. Similarly, if you had a book, you could let her borrow it; this is not prohibited by the copyright statute. Once the book is yours, you can do what you want with that copy of it -- this is what is known as the "first sale" doctrine. You can even resell it without infringing on the copyright. It might seem that e-mailing this paper is a clear analog to loaning it to her, however there is one very important difference: you can send it to her without ever relinquishing control of it yourself. In other words, you still have a copy of it on your hard drive and now so does she. There are two copies where once there was one.

This problem is compounded when considering the possibility that she might also like the paper and want other people to read it. Rather than sending it to individuals over e-mail, she chooses to upload it to a network. Now, many people can read it, copy it, etc. Who knows how many copies exist now? While the ramifications may not be as obvious when the work in question is already available for all to see, what if it were a copyrighted software program that sells for $50?

Another aspect of digital media that Samuelson draws attention to is the equivalence of works in digital form. All digital works are nothing more than little bits of information that are read by a machine. Protectible works of authorship are categorized under the copyright statutes as very specific kinds of works, with different rules and exemptions applicable depending on the nature of the work. While there are some fuzzy lines drawn between different subject matter, [15] it is generally not too difficult to distinguish between categories. In the case of digital media, however, although software programs are considered literary works, the actual results of those lines of source code can be perceived as many different types of conventional subject matter..

CD-ROM games, for example, are at the cutting edge of popularly available technology, incorporating audio and video into interactive games. Virtual Reality, albeit in its embryonic form, is available to the public at large, and it is only getting better -- for both entertainment and scientific uses. The World Wide Web, like the prophesy of Gibson's cyberspace, is a showcase for what these little bits of information can do over the Internet. Not only could this paper potentially be accessed by hundreds of thousands of people, but text is only the beginning.

Graphics are an important part of what makes the Web so popular. This flying saucer graphic is a piece of clip art. Clip-art pictures are all in the public domain and available for everyone to use. Of course, one need not travel far on the Web to discover unauthorized use of protected pictures. Audio and video recordings are also available over the Web. The Internet is looking more and more like a world onto itself.

The plasticity of digital media is another problematic aspect of copyright protection. The Internet is by its very nature interactive. You can browse through pages, send and receive mail, fill out forms, download information for your own use, or upload information for others to see. The interactive capacity of the Internet is not limited to exchange of information, however. Once any of this information reaches an individual computer, its integrity is not protected. There is nothing to prevent you from modifying your copy of this paper. Granted, if it were in book form, you could alter your copy at will -- tear out pages, write in it, or even burn it. Digital works can be easily altered and distributed. Due to the transmittability of digital media, if you altered this paper you could put it on-line in its altered form under my name without the public knowing it has been modified.

Adopting an integrity right in on-line works has been suggested. [16] The right of integrity is based in the civil law idea of moral rights for authors, which has not really been accepted here in the United States. Moral rights are meant to protect the author's reputation, not to provide her with economic compensation, as copyright law does. The right of integrity protects against the mutilation or distortion of an author's work. Another option would be to attach a disclaimer to any modified versions of the work, with a citation or hypertext link to the original. [17] For example, any on-line sources cited in this paper are "linked" to the original documents and can be accessed in their entirety by double-clicking on the blue, underlined text -- which brings us to another element of digital media -- nonlinearity.

Nonlinearity is one of the greatest advantages of communication over the World Wide Web. Most books and movies are designed to move in one direction. Pages on the Web are different. They can be linked to one another in dynamic ways. For example, if I were discussing the national debt, I could connect my page to a relevant page somewhere else in cyberspace by making it a link: u.s. debt. In this way, one can use the multitude of resources available on the Internet and mitigate senseless duplication. [18]

In a sense, hypertext links create a new form of authorship. To what extent do the links that I have incorporated into this paper enrich its meaning and become part of my own expression? Are they fixed, original works, worthy of copyright expression? As in the area of CD-ROMs, where we have the ability to place whole libraries of information on a single disc, it is clear that our traditional idea of a copyrightable "book," a relatively easily attributable work of authorship, is stretched to the limit when attempting to deal with new technology.

Given this backdrop, no one quite agrees on what copyright does or should look like on the Internet. The interested parties are many: publishers & the major media, writers, cyber-libertarians, libraries, educators, technology creators, and of course, the public. It cannot be overlooked that there is overlap between categories. Nor can it be ignored that no one creates in a vacuum; they are inspired by the culture around them, which in a very real sense is an author in all works. [19] This may be even more obvious on the Internet, where there is considerable aggregation of information value by the efforts of many. For instance, by linking my page to others, I am adding to the value of my own by making it a more complete resource. Similarly, someone could create a link to my page, enriching their own through my work and that of all the other people I have linked to, and so on.

In this respect, the Internet resembles a research community, where sharing is essential and promotes creativity. Creativity is what intellectual property is meant to promote. The Internet has certainly not stagnated without the support of a strict copyright system; on the contrary, the volume of activity on the Internet is incredible. People are more than willing to put material up on the Internet in exchange for information from other people. These people are "paid," but their compensation comes in the form of a healthy, vital intellectual discourse.

What about those who depend on creating works to make their living? Essentially, these are the people that the intellectual property system is designed to protect, so that they will be encouraged to create more. This group includes the writers, software designers, and artists whose works we like enough to buy. The NII White Paper concludes that the best way to ensure creativity is to impose strict intellectual property rules on the Internet. The most critical of their recommendations include: a transmission right which would make accessing a page at your terminal an infringement, a ban on copy-protection bypass technology, a limitation of the "first sale" doctrine to apply only to non-digital works, and potential liability for service providers. [20]

What would these provisions mean for the future of the Internet? [21] The White Paper asserts that the distribution right encompasses the right to exclusive digital transmission. For example, this page has been digitally transmitted to your computer and therefore it would be infringement for you to view this page without authorization. Authorization in the intellectual property world generally means paying for it. The White Paper envisions a payment system wherein each transmission of a page would be charged, regardless of whether it was permanently saved or just browsed. For every person who looked at my page, I would receive a royalty.

The Working Group claims that there is no reason to treat digital works any differently than other works traditionally covered by copyright, but in a very real sense, that is just what they are doing. One of the exclusive rights granted to conventional copyright holders is the right of distribution: if you sell the distribution rights to your book, the buyer can publish and distribute it. As I have noted earlier, however, digital works differ from conventional works in very significant ways. Before you buy a book at the store, you can pick it up and look at it. With digital works, the very act of looking at the work requires that a copy be made on your computer. The Working Group uses this technical fact to support its argument that the merely looking at a Web page is an infringement of copyright.

Essentially, the Working Group is calling for a broad expansion of the rights of copyright holders, while claiming that it is merely clarifying the law as it now stands. The abolition of the first sale doctrine serves the same purpose. The first sale doctrine allows the owner of a copy of a work to distribute that copy as she sees fit. For a digital work, the first sale doctrine would presumably allow you to send a copy of this paper to a friend if you deleted your own copy. In so doing, the net number of copies remains the same. However, the White Paper asserts that the first sale doctrine should not apply to digital works because a new copy of the work is actually being made in your friend's hard drive. Again, the White Paper relies on a technicality which was not envisioned in creating our copyright statute.

The White Paper solution to the copyright question is heavy on rigid laws and the possibilities of technological solutions to the copyright dilemma such as encryption, and light on concern for the public user. It is aimed at strict regulation of the Internet in an attempt to give copyright holders the most extensive rights possible. The Working Group asserts that this is the best protection for the creator against pirates in cyberspace, and therefore best for us all because it will promote greater creativity. However, piracy is not the primary concern of creators. In failing to make the distinction between creators and copyright holders, the NII Report glazes over the fact that the real threat to writers is "the usurpation, exploitation, and hijacking of [their] work without compensation by increasingly large and powerful publishers and distributors." [22] The White Paper, by attempting to create a strong intellectual property system in cyberspace, is favoring the already powerful interests by maintaining the status quo. If, in that system, the authors themselves are not reaping the benefits, then it begs the question of whether such a system is truly serving its objective: to promote science and the useful arts. Copyright is meant to protect expression only, not ideas. [23] Does the public have an interest in access to those ideas contained in copyrighted works? [24]

There are other alternatives which may better balance the interests of all of the concerned parties. Jessica Litman suggests giving copyright owners on the In ternet the sole right to commercially exploit their works. [25] This comports with our commonly held views of fair use. Fair use is an exception to the copyright monopoly. [26] The factors to consider when deciding if a particular use is "fair" are: (1) purpose and character of the use, (2) the nature of the copyrighted work, (3) amount and substantiality of the portion used in relation to the whole, and (4) the effect of the use on the potential market for or value of the copyrighted work. [27]

Sony Corp. of America v. Universal City Studios, Inc., a Supreme Court fair use case, held that "a challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work." [28] Absent a showing of a preponderance of the evidence that some meaningful likelihood of future harm exists, a noncommercial use is deemed fair. Fair use could exempt temporary copying (such as browsing) and noncommercial uses absent market harm. The White Paper did not incorporate Sony Corp.'s distinction between commercial uses where the likelihood of harm is presumed, and noncommercial uses which often fall under the fair use provision.

This exemption for non-commercial uses is also in line with the common understanding of copyright law: that it affects only people wishing to profit from it. Legal or not, over half of the software in use today has been pirated; most people do not have a problem with infringing on the copyright of big companies like Microsoft, which many believe have more than enough money already. As John Perry Barlow has pointed out, "[w]henever there is such a profound divergence between law and social practice, it is not society that adapts." [29] It is clear that piracy has not occasioned the collapse of the software industry. On the contrary, business is booming -- in part because the industry is adapting in response to the shifting needs of its customers. Many companies have realized that they can give away their original intellectual work -- software -- and still make money on upgrades, support, the manuals, privileges, etc.

Esther Dyson has stated it succinctly: "the trick is to control not the copies of your work but instead a relationship with the customers." [30] This relationship is necessary in a world of information. In the age of the printing press, access to technology served as a filter to widespread authorship. Today, while computer access is by no means universal, [31] anyone with access to the WWW has the capacity to publish their own Web pages. The only guarantee in quality, however, comes from the establishment of a relationship. As a simple example, cool site of the day is one of the most popular sites on the Web. People trust that the link will be cool because the site has a reputation for providing a relatively consistently cool site. By the same token, if this paper were written for hotwired, many more people would find it and read it, because they expect to find a certain degree of quality in hotwired articles.

Wide distribution is the key to establishing this relationship -- getting people "hooked" and willing to pay for your subsequent services, whether in the form of technical support or the upgrade for their free software, or a "live" performance, or a new creative work. People will pay for personal services over the Internet, just as they do in the "real" world. They will also be willing to pay for things to have them first. [32] If we accept that works will inevitably become available to anyone who wants them, our common experience tells us that there will be people willing to pay to have them earlier. Not everyone waits for their neighbor to buy Windows 95, otherwise there would be no one from which to copy it. People who want the full privileges of ownership will pay the price.

There is also another method of compensation which is widely used already on the Web, and that is advertising. For example, every time a search is run on webcrawler, an advertisement is plastered across the top of the page. The most familiar form of this model is network television. We consume the copyrighted intellectual work for free and the networks profit from advertising. The same idea drives many free local newspapers which pay their contributors entirely through advertising money. The problems with this model are the same that plague the conventional media today -- how to assure freedom of the press when the press is owned by big interests, and whether it is even worth it to sit through the advertising drivel to get at the good stuff.

There is no right answer to the question of the future of copyright because the future of the Internet is still so uncertain. Obviously, the choices we make now will affect the course it will follow. The White Paper proposals seem to favor copyright holders to an unreasonable extent. Copyright is not meant to grant to its holders exclusive control of their works; rather, it is a very specific bundle of rights designed to foster creativity for the public interest. This interest is not served by regulating cyberspace to the degree proposed by the Working Group. A more palatable alternative would be to interpret fair use broadly to preclude infringement by unharmful, noncommercial uses.

Regardless of how copyright issues are resolved, it is clear that other systems of compensation to authors can co-exist on the Internet. Service providers such as America Online offer "live" performances, where well-known people visit chat rooms and interact with the customers. Software companies provide technical support. Free intellectual works abound on the Internet, with express indications of the conditions under which they can be copied or used. For example, this paper can be published in any form if properly credited and not sold for profit. Eventually, new forms of compensation might dethrone copyright. Perhaps in the end the future of copyright on the Internet may depend more on popular perceptions than it will on restrictive regulations. Laws are presumably meant to reflect public opinion, not control it. People follow rules that they believe are reasonable. As John Perry Barlow noted in reference to encryption, "a social overreliance on protection by barricades rather than conscience will eventually wither the latter by turning intrusion and theft into a sport, rather than a crime." [33] People's basic concept of what is fair and equitable might best determine the future of copyright in cyberspace.

FOOTNOTES: