Christopher Wolf

By pressing the "enter" key on an Internet user's keyboard, the user can read, download, retransmit, "hot link" or "cache" a copyrighted work for others to view. Few "Netizens" -- users of the Internet -- think twice about these activities. But they often fail to consider that simply because a work is available for free on the Internet -- for now -- does not mean that the creator or owner of the work has given up the exclusive rights granted by Sec. 106 of the Copyright Act of the United States.

While there is no question that copyright law applies in the online world, the law has yet to apportion the copyright protection and enforcement burdens clearly among copyright owners, access providers, Web site operators and consumers.

In the digital world of the Internet, as well as in the print world, federal copyright law protects an author's -- or his or her successor's -- bundle of rights: reproduction, preparation of derivative works, distribution, performance and display. Violation of an author's exclusive rights creates infringement liability. While copyright protects an author's rights, the law is not so rigid as to prevent the continued free expression of ideas or the fair use of protected materials.

The "fair use" exception to copyright protection, judicially created and since adopted as a provision of the Copyright Act, provides this flexibility. Fair use shields limited use of works for some purposes, such as certain educational activities, parody and criticism. The following four factors, among others, are used in fair-use analysis: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used and the effect upon the potential market or value of the work.

But technological changes raise new capabilities -- and thus, new fair-use issues. In the past, the law has responded to these technological innovations by applying time-tested copyright analysis.

A computer can copy text and audio and visual content with speed and digital accuracy not previously available in any other device. Computers are capable of making precise copies of text, video and audio with no deterioration of quality as the number of copies multiply. Furthermore, computers create powerful redistribution opportunities, as evidenced by the proliferation of Web sites and bulletin boards, maintained by individuals and organizations.

The Internet is another of many instances of technological change heightening the potential for copyright infringement. There are no clear rules regarding liability in cyberspace. As the 2d U.S. Circuit Court of Appeals noted in rejecting a fair-use defense in the context of corporate copying of scientific journals for research purposes, copyright liability "always depends on consideration of the precise facts at issue."

Online user liability will rest, then, on how one is using copyrighted information from the Internet. Users who view and download information plainly are copying: assuming that what they are copying is copyrighted, their potential infringement liability for a user turns principally on a fair-use analysis.

Browsing the Internet or other online services generally results in exact reproduction of the materials being viewed in the computer's RAM, or random access memory. Such copying is unavoidable. It is what allows a computer to capture and present materials on screen. This reproduction may be authorized in a user's access contract -- for example, with Lexis and Westlaw online -- or access agreement with online service providers such as CompuServe or America Online. There may be a less structured agreement or no agreement at all.

Unauthorized copying of materials to RAM has been held to be infringement in the past, although some argue this should not be so. The Copyright Act definition of "copies" includes the fixation of a work in a tangible medium which is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration." While copying material to RAM admittedly can be temporary -- it is lost when a computer is turned off, or can be lost if another program is running -- it is a fixation that is sufficiently permanent or stable to be considered a copy.

A typical Internet user views text or images, or listens to audio, from sources available online, and does so in "real time." Viewing materials on the Internet involves fixation of materials on a computer's RAM, allowing a claim that there is an infringement of an author's right to reproduction.

It would appear unlikely, given the implication of a license to use the material by the copyright owner placing it on the Internet, and in the absence of compelling evidence of substantial harm to an author's rights under the Copyright Act, that an individual user would be subject to liability for merely reading information on the Internet that's available to any Internet user.

For example, in Religious Technology Center v. Lerma, the Religious Technology Center, or RTC, an arm of the Church of Scientology, successfully enjoined an Internet user who placed church information on the Usenet newsgroup known as alt.religion.scientology, but also attempted to restrain and seek damages from individuals -- reporters for The Washington Post -- who simply had downloaded the materials from the Internet for reportorial use and who had obtained other hard copies of the same materials. The RTC also challenged other acts of news reporting concerning the RTC's materials.

The Lerma court declined to impose copyright infringement or trade-secret liability on the mere users of the Internet With respect to the misappropriation claim, the court observed that "the party who downloads information cannot be liable for misappropriation because there is no misconduct involved in interacting with the Internet."

Capturing materials online and storing them on a disk or on a printout creates a more permanent fixation of a work, thereby potentially creating a greater basis for unauthorized reproduction or use and, therefore, a stronger basis for imposing liability. In principle, such activities are closely analogous to photocopying a book or article and then holding or distributing the copies. What a user may do with the files he or she has downloaded therefore would likely be governed or influenced by law that has evolved for paper copies.

The permissibility of downloading and printing of copyrighted works would implicate a fair-use analysis, putting aside issues of express or implied licenses, or other use-specific provisions of the copyrights. The purposes and character of the use would be the first category of fair-use analysis. Whether the downstream users -- as opposed to the downloaders -- will use the information for educational or other unobjectionable uses does not matter if the distributor makes money from the distribution.

The next aspect is the nature of the copyrighted work. If the data copied is merely factual, the protections arguably are less than for non-factual works containing greater, creative input by an author. The amount and substantiality of the portion used is another factor. The final consideration is the effect on the distribution for the potential market or value for the copyrighted product.

One who maintains a Web page, or who uploads materials to the Internet through newsgroups or FTPs, or file transfer protocols, may be subject to significant copyright liability if the copyrighted works of another are made available, and the fair-use defense does not apply. Whether a user is making information available for profit or some other purpose would be relevant, though not determinative, and the degree of care he or she exercises in operating and maintaining his site will affect the risk of liability he or she may have. Because the Internet, however, is a global computer network that gives millions of users instant access to a work, release of a work on the Internet could devastate the market for an original work.

Analysis of the rules of fair use and liability will depend on the facts of a case, but it is apparent that placing copyrighted works on the Internet could have a strong potential for liability for a Web site operator harboring infringing information. Moreover, the dynamics and economics of copyright enforcement favor the targeting of distributors of information, rather than the individual downloader. Therefore, as a practical matter, the risk of copyright prosecution may increase if a user sets up a Web site providing access to copyrighted materials belonging to another.

The use of hypertext, made possible through HTML programming, permits "hotlinks," which allow a user to jump from one Web page to another. Thus, suppose the Web page created by Company A contains a reference to Time Warner's Pathfinder service on the Internet, and in particular to Time magazine. All a user of Company A's Web site needs to do is click on the Time magazine listing, and he or she is transported to Time magazine, whose contents are then downloaded for viewing. Thus, an Internet user can be linked to copyrighted material belonging to someone other than the person who maintains the original Web page.

A related technology is known as "caching," whereby the contents of the second Web page -- Time magazine in the example -- is stored for immediate access at the site of Company A's Web site, rather than through the sometimes time-consuming process involved with a hotlink, and made available on the Web page simply listing Time magazine. In the copyright community, the use of these technologies raises controversial issues of exactly how far someone maintaining a Web site may go in making available for others copyrighted materials from the Internet. As of now, there are no clearly defined rules, and there are no perfect real-world analogies to draw upon.

Users of the Internet routinely share files of information with other users, uploading the data to a bulletin board or making it available on a Web site. Policing such activity is difficult. Most -- but certainly not all -- enforcement actions have been directed at the service provider.

The recent agreement by CompuServe to obtain licenses from the Harry Fox Agency for the uploading and downloading of copyrighted music by users of its service is an important step in establishing a mechanism for regulating the online distribution of music. Some see the formation of collective licensing societies as one answer to the enforcement of copyright on-line.

Concerns about unauthorized distribution could also arise on the Internet, given the proliferation of Web sites. For example, a biography of the late French President Mitterand that had been banned in France recently appeared on the Internet, including the complete text and graphics. Other works, including "The Hitchhiker's Guide to the Galaxy" and Howard Stern's "Miss America," have also reportedly appeared on Web sites without authorization. A longer-term fear of copyright owners is that as scanning technology improves and computer memory capacity expands, this type of copying, publishing and up or downloading will be even easier.

A federal district court decision in California recently suggested that Internet access providers will not be held strictly liable for subscriber copyright infringement as direct infringement, but must rather have actual knowledge of the copyright violation. In Religious Technology Center v. Netcom On-Line, a former Scientology minister posted certain Scientology documents on a bulletin board system, which gained access to the Internet via Netcom On-Line Communications Inc.

Scientology's publishing arm sued the former minister and the online service provider. The RTC argued that Netcom should be liable directly, contributorily or vicariously for copyright infringement because of its refusal to exclude the allegedly infringing materials from the Internet.

In denying the plaintiff's direct infringement claim against Netcom, the court noted that Netcom did not truly fit in the direct infringer category. Netcom lacked a minimal volitional or causative relationship to the infringement, as opposed to a bulletin board system whose operators sometimes share a common interest with its subscribers.

On the issue of contributory infringement, the court denied Netcom's motion for summary judgment, since Netcom could be liable if it knew or should have known that certain activities of its customers were infringing. Finally, the court dismissed the RTC's vicarious liability claim, because the RTC alleged only that Netcom could control and supervise the conduct of its subscribers but failed to allege sufficiently that Netcom derived a direct financial benefit from alleged subscriber infringement.

Episodic enforcement of copyright law on the Internet will be expensive, tedious and in some cases futile, given the widespread use of the medium and the potential ability to evade prosecution by transmitting materials from abroad. Thus, broad-scale fixes, both legal and technological, hold the most promise.

Technology wizards now are developing encryption and stenographic tools to monitor and protect copyrighted materials appearing on the Internet. In the future, a "cyber-robot" may police Web sites for infringing materials and report back to the owner of the materials. A company called Hyperstamp has devised the first of such services.

The motion picture industry now is working with hardware and software providers, as well as with legislators, to come up with a legally mandated technological protection against the wholesale copying of digitized movies, which soon will be available for distribution online.

Pending in Congress is legislation containing proposed amendments to the Copyright Act that seeks to ensure protection of digital works. The legislative proposals result from the Clinton administration's "White Paper" on the National Information Infrastructure. The legislation, if enacted, would codify and clarify certain aspects of copyright law online.

Senate and House bills, S. 1284 and H.R. 2441, inter alia, propose adding a "transmission" right to the exclusive rights of a copyright owner, prohibiting mechanisms that decode encryption of copyrighted works without authority or otherwise circumvent technological protection and penalizing the tampering with copyright management and identification information.

These legislation proposals, however, still do not address some of the fundamental questions that will arise from the use of the Internet. The courts will still be called upon to establish the rules for copyright in the online world.

Pending new technological or legislative fixes, users of the Internet need to be aware of their potential liability for copyright infringement. While the copyright laws include the flexible "fair use" doctrine as a protection for legitimate and reasonable use of copyrighted works, serious infringements likely will not be excused because of the newness of the medium, or because the act of infringement is simple to perform. Just because the Internet makes copying easy doesn't mean it makes copying legal.