Margaret Chon [FNa]
Copyright (c) 1996 University of Oregon; Margaret Chon
IN a New Yorker cartoon somewhat less famous than the one captioned "On
the Internet, no one knows you're a dog," three men are standing at
the end of a very long pipe. Instead of being circular, it is C-shaped.
One of the men says, "I'm afraid, Inspector, this means that everybody
and everything in the country has been copyrighted." (on file with
author)
If the Information Infrastructure Task Force recommendations are adopted
by Congress, [FN1]
copyright law will over-privatize digital works at the expense of access
by individuals to our cultural information commons. [FN2]
Nonetheless, I want to suggest and explore here a converse proposition:
as the old "bottle" of print-based copyright law expands to cover
new media and new uses, the transformative possibilities of these new uses
in new media will occasionally pop the cork of existing legal categories.
Typical authorship practices in networked computer environments result in
works that disrupt the distinction between author and infringer and that
create a type of access to works (the access of a joint author to a joint
work) that is underdeveloped in current copyright doctrine. [FN3]
In Part I, I review the two major print-based principles of American copyright
law: "work" and "author." The dual effects of digitization
and networking of computers have exposed the limits of these two principles.
I buttress doctrinal observations with some theoretical background: copyright
theory influenced by the post-structuralist turn has already forecast the
indeterminacy of the text (work) and the death of the subject (author),
at least where the latter is based on the ideal type of a solitary genius
and the former on the static, reified end-result of the genius' efforts.
In Part II, I focus on a specific example of collaboration in a particular
superset of networked environments: a work of visual art created on the
Internet. I discuss how this project would be treated under recent judicial
glosses on the doctrinal category of "joint work"; describe the
awkwardness of shoehorning the project into this doctrinal category; and
thus highlight the need for copyright principles that recognize and encourage
the unique attributes of creativity within a digital networked computer
environment. I also show how copyright theory points to a way out of the
doctrinal "problem" created by collaborative work on the Internet.
Finally, in Part III, I muse on the implications of an expanded "joint
work" category on entrepreneurship in a digital networked environment.
In this section I examine two of the more important principles underlying
a print-based copyright regime: the "work" principle and the "author"
principle. The common theme in this abbreviated survey is that digital works,
particularly networked digital works, have fundamentally and repeatedly
stretched these principles, perhaps beyond the point of usefulness. Moreover,
literary theory imported into copyright theory has already corroded these
principles as applied to print-based media.
A. The "Work" Principle
Even as the 1976 Copyright Act was being enacted into law, basic statutory
terms were contested. The 1976 Copyright Act defined the protectible subject
matter of copyright ("works of authorship") [FN4]
as having to be "fixed in any tangible medium of expression";
[FN5] yet its drafters
recognized that the concept of "fixation" was already challenged
by computer technology. [FN6]
In 1974, after early hearings on what ultimately became the 1976 Copyright
Act disclosed probable controversy over copyright protection in computer
technology, Congress created the National Commission on New Technological
Uses of Copyrighted Works ("CONTU"). [FN7]
The CONTU Report ultimately endorsed the idea of copyrightability of computer
programs and recommended revisions to the 1976 Act to address explicitly
computer programs. [FN8]
The dissenting commissioners noted unique problems caused by trying to impose
the concept of fixation on a non-human-readable literary work. [FN9]
A work can be "fixed" so long as it is "sufficiently permanent
or stable to permit it to be perceived, reproduced, or otherwise communicated
for a period of more than transitory duration." [FN10]
But with digital works, which are inherently transient and temporary, this
definition of fixation may include fleetingly fixed works within the subject
matter of copyright and thus over- extend copyright to works that have no
stable form. [FN11]
As others have already noted, only in the last three years have courts actually
extended the doctrinal category of "copies" [FN12]
with the fixation it requires [FN13]
to transient computer programs specifically designed to be temporarily stored
in random-access memory. [FN14]
Networked computers pose additional challenges to the concept of fixation,
challenges which stem from the radical reorganization of time and space
on the Internet, as well as its vastly enhanced methods of dissemination.
[FN15] Significantly,
fixation no longer serves as a proxy for possible use, but rather is highly
disconnected from the actual use of a work. A digitized copy of a computer
program in the memory of a stand-alone computer is unlikely to be there
unless the computer owner has used, is using, or is planning to use that
copy. By contrast, the Internet is composed of vast stores of digitized
information, and any particular use is severed from the fixation of digital
information within a specific computer's hard drive or memory.
Digitized information may be transferred from one networked computer to
another without ever being read or otherwise used by the owner of any particular
computer. If someone sends me an e-mail message, for example, that is sufficiently
"fixed" so that I could reproduce it or re-transmit it, I may
choose to delete it without reading it. Yet, since it was transmitted to
me, the person who sent it made a copy on my network server computer's hard
drive. By deleting it, I may also be making a copy on the server computer's
hard drive, since a "delete" command typically instructs the computer
to place the message in a different file rather than to expunge it entirely.
If I choose to open the e-mail but not read it, a copy may be made in my
computer's memory and not deleted until I "exit" my e-mail application
and/or shut my computer down.
Similarly, it is unlikely and perhaps even illegal for anyone who operates
the intermediate computers on which the original post may have been stored
on its way to my computer to read or otherwise use that message. Thus that
message will simply be transmitted over that computer without being used.
Yet that message may reside on the transmitting machine's storage units
and thus may be sufficiently "fixed" to be a copy. Under the White
Paper's theory of infringement, even the passive act of storage could cause
the intermediate computer operator to be liable for infringement. [FN16] In the recent order
denying summary judgment in Religious Technology Center v. Netcom On-Line
Communication Services, Inc., Judge Whyte recognized this difficulty: "Plaintiffs
point out that the infringing copies resided for eleven days on Netcom's
computer and were sent out from it onto the 'Information Superhighway.'
However, under plaintiffs' theory, any storage of a copy that occurs in
the process of sending a message to the Usenet is an infringement."
[FN17]
If in the networked environment all digitized information is presumed capable
of being "fixed," then any use of the work is necessarily an infringement
(assuming the originality requirement is met). [FN18]
Ironically, however, there is a greater disjuncture between fixation of
copies and actual hands-on use in a networked computer environment than
in any other technological environment to date. Moreover, the culture that
has evolved in the Internet is one in which information is highly promiscuous;
even one-to-one private e-mail messages are often redistributed widely and
publicly. [FN19]
Treating each transmission and retransmission of digitized information as
"fixed" and therefore possibly infringing copies of a work does
not mirror the reality of social practices on the Internet, and may result
in a drastic reduction in the stock of publicly accessible symbols necessary
for a healthy creative environment. [FN20]
Furthermore, given the low threshold of fixation endorsed by the White Paper,
whereby even the most transient digital works are considered to be fixed,
the question naturally arises as to what version of a constantly evolving
digitized work is "the" work. The fixation principle ignores the
ready morphing of digitized information that so commonly occurs in networked
environments. Many works in a networked environment are profoundly rather
than marginally interactive. [FN21]
B. The "Author" Principle
The models of authorship that frequently appear in the networked environment
are at odds with the idea of the solitary genius. They are often, perhaps
mostly, collaborative or interactive. Although the trend toward interactive
programming is increasing, early stand-alone computer programs relied primarily
on a division between creator (author) and user (reader). [FN22]
The person who wrote the computer software could be easily analogized to
the "author" of a literary work. By contrast, in the digital world
created by networked computers, each user of a work is also easily transformed
into a creator of that same work. In my previous e-mail example, I can reply
to the original message at length, retaining some or all of the original
message itself within my reply. Many works available through networked computers
invite response or are otherwise designed to be interactive. This attribute
is one of the biggest advantages of using a networked system of computers.
In a networked environment, authorial identity and intent are profoundly
malleable and interactive.
Much recent theoretical work on the idea of authorship has challenged the
assumption underlying copyright law of a single authorial genius. [FN23] The creative process
is complex and depends on a multiplicity of different types of production,
as well as on a healthy stock of publicly accessible symbols. [FN24]
For example, the concept of "recoding" brought into copyright
theory by Rosemary Coombe [FN25]
is a concept that makes the reader into an author and thus creates a powerful
argument in favor of expanding the public domain of information. In the
recoding view of authorship, "expression" is a process rather
than a status, something that proliferates rather than is controlled. [FN26] The production
of a "work" that is subject to protection by copyright is an activity
undertaken by both author and audience. Authorial intent, based as it is
on a combination of the political construct of possessive liberal individualism
and the social construct of the solitary romantic genius, is rejected in
favor of a more complex, contradictory meaning- making process.
The post-structuralist term "intertext," introduced into copyright
theory by Richard Rotstein and Keith Aoki, denotes that ambiguous space
between author and audience where authorial intent and audience interpretation
intersect in a contrapuntal dynamic of coded and recoded meanings. [FN27] The copyright concept
of "intertext," used to critique the notion of a user passively
reading a print-based work, applies with even more force to digital networked
works that take place in what is commonly termed "cyberspace."
[FN28] In the intertext,
each author is both creator and user; each work is deliberately created
by a highly interactive process. The reader (or user) in a digitized networked
environment often in turn becomes an "author" even as to works
that are not intended to be collaborative.
The binary structure of copyright law, dependent as it is upon a strict
division between author and reader, or original artist and copyist, is being
corroded by networked digital information. The implications of the collapse
of this binary structure are too enormous to be explored at length here.
It is important to note, however, that the proliferation of copies in the
age of digital reproduction reverses the presumptive valence of "original=good,
copy=bad." Many examples of artistic and other sorts of creation on
the Internet depend heavily upon the free availability of copies. [FN29]
The fixed work and individual author principles, among others, construct
copyright law upon the assumptions of traditional print-based technology,
which is increasingly displaced if not made utterly obsolete by digital-based
technologies. They are suspect even in this macro-examination. The following
section examines their application to one micro-example of collaborative
Internet work.
In this section, I examine an Internet-based visual art piece. [FN30] I first describe
the piece and the creator's articulation of it. I then examine how and why
this work does not fit into the "joint work" category, a primary
doctrinal category through which copyright law recognizes collaborative
work. In examining a frankly collaborationist type of visual digital art
housed on an Internet World Wide Web site, the very design and execution
of which depended on the deliberate changing by many authors of a single
author's original image, we may begin to realize the limits of existing
legal doctrines that are based on print-based works. Furthermore, we can
begin to imagine a copyright structure that responds to practices in the
networked digitized environments.
A. Is the Chain Art Project a "Joint Work"?
An artist, Bonnie Mitchell, recently solicited art students, other artists,
and anyone else on the Internet to engage in an artistic project that deliberately
reworked the boundaries of individual and self. [FN31]
The Chain Art project was collaborative and took place in a networked digital
environment. Technically, each visual image began when a University of Oregon
art student uploaded a digitized image onto an FTP [FN32]
site. The person "next in line" in that student's group (typically
someone from another state or country) downloaded that image, manipulated
it, and uploaded the changed image onto the FTP site. There were twenty-three
groups of images, and ultimately 136 participants from ten countries. The
final piece is flamboyantly collaborative: each image is attributed to an
author and all images are housed together.
Despite the communality in creative effort, questions of individual ownership
and commercialization have arisen. Bonnie Mitchell writes: "because
I developed the project and coordinated it, am I considered the primary
author or editor? What if a gallery wanted to display and sell the work?
Who should get the royalties?" [FN33]
Bonnie Mitchell asks how copyright law can honor the artists' need to borrow
from existing idioms and at the same time accomodate their need to guard
the integrity and uses of their expression?
The Chain Art project is partially about letting go of artistic control.
As Bonnie Mitchell stated,
Interesting thing about this project is that while I was developing the concept, I envisioned the end product, the image that was created by numerous individuals, as the most important element. Before the project began, a few participants suggested saving all the in-between images. Although I had planned to save them for archival purposes, I did not realize at the time that the progression, as the image passed from hand to hand, would be much more interesting than the final image alone. [FN34]In the end, however, Bonnie felt that "it is not possible to look at the pieces as individual works totally separate from the rest of the work. Because each piece built on to the existing piece, it is easier to look at the series of images in the group as a single work with multiple authors." [FN35]
One major "policy" principle behind the CONTU Report was to
create incentives for the development of computer programs. That principle
is based on a fear of ease of reproducibility: digitized works are easy
to reproduce, and such reproduction is hard to detect. [FN48]
Thus creators of computer programs may lack incentive to write programs.
According to the CONTU Report, that incentive comes in the form of copyright
protection. [FN49]
The ghost that haunts the White Paper seems to be the same fear that animated
the CONTU Report: without copyright as an incentive, no works will be produced
because those that are produced could easily be reproduced. [FN50]
However, many of those positioned in the digital world [FN51]
as well as the legal world [FN52]
question that assumption. Among the digerati, [FN53]
Esther Dyson argues that content itself should not be protected by copyright
law; Internet providers presumably would recoup their investment through
services such as support, customization, search engines or other content
free activities. [FN54]
John Perry Barlow and Richard Stallman made similar arguments at The Innovation
and Information Environment Conference.
The incentive principle upon which the CONTU Report and the White Paper
is based does not work easily in a digitized world where much of the "value"
of information comes from the flexible uses to which it can be put. Moreover,
this principle seems to be undermined empirically by the proliferation of
new works already available on networked computers. [FN55]
No incentive, at least in the form of formal copyright protection, seems
to be necessary for many authors who already "publish" on the
Internet. In a networked computer environment, many creators of works are
not highly capitalized, do not expect to receive protection for their works,
and even expect and welcome changes and interactive suggestions made by
others. In many significant ways, the Internet has flourished in the absence
of copyright protection. [FN56]
However, even in intensely collaborative environments, individual feelings
of ownership (or perhaps possessiveness) emerge. An incentive question,
for example, precipitated my examination of the protectability of the Chain
Art project. It was one based on an artist's urge to "commercialize"
the work by licensing it to an art gallery. [FN57]
Another artist, Vibeke Sorenson, expressed related concerns of attribution
and integrity when she wrote that the public nature of Internet art "does
not mean that advertising agencies, for example, should be able to take
that work and exploit it without permission and proper credit." [FN58] Perhaps not
surprisingly, artists themselves (even some who are flamboyantly appropriationist
or who engage in deliberately collaborative work) retain some core notion
of artistic integrity that is tied to a "self," albeit a slightly
modified Romantic definition of self. [FN59]
Whatever the futurologists predict, the Internet has not yet erased the
vestiges of earlier historical views of authorship and works--views reinforced
by cultural practices that persist despite successive waves of different
kinds of "mechanical reproduction," appropriation art, post-structuralist
theory and critical thinking in the law. Moreover, even a view of information
that privileges individual right of access over individual proprietary rights
must address the interests in attribution and integrity that relate to accuracy
if not ownership of information. [FN60]
How would an expanded "joint work" category affect incentive to
create? To the extent that one believes in a rough positive correlation
between copyright and innovation, the more joint works, the better. Because
of the tenancy in common shared by joint authors, any one of them could
license the use of the work (provided that the license was non-exclusive),
subject only to a duty to account. The effect would be to encourage rather
than discourage the broad dissemination of the work: the more authors, the
more opportunities and potential for use and licensing of the joint work.
Assuming that copyright protection enhances incentive to create works by
enhancing the commercialization potential of a work, the recognition of
a joint work category would further that end.
Broad dissemination by several joint authors of "privately" owned
works might ironically simultaneously enhance access to any particular work.
In fact, the "joint work" category is often raised as a defense
to a claim of copyright infringement, in an attempt by the defendant to
defeat the exclusive control of a work by a single author. The "joint
work" defense, like the fair use defense, shows how individual rights
can themselves be used as tactics against the tendency to centralize and
control information that inevitably accompanies an increase in proprietary
rights. This would increase the domain of accessible works essential to
the progress project underlying the patent and copyright clause of the Constitution.
[FN61]
It is probably true, as one Conference participant noted privately, that
the term "new wine in old bottles" is a hackneyed metaphor among
the legal digerati by now. Yet it is still useful. This paper begins to
explore how the new wine of digital networked information spills out of
the old bottle of the 1976 Copyright Act.
Of course, reality always spills out of the categories we impose upon it.
Awkwardness of a doctrinal fit, in and of itself, is not enough to create
new principles to animate existing caselaw. The most pertinent question
that I have attempted to answer here is whether the print-based copyright
principles unduly distort the creative process in networked computer environments.
My brief examination of one Internet art project and one doctrinal copyright
category yields a tentative answer of "yes." In order to accomodate
and indeed capitalize on the flexibility and flux inherent in the medium
of networked computer environments, copyright principles should more accurately
reflect actual practice of creation in these environments.
FNa. Associate
Professor, Syracuse University College of Law. Thanks to Professor Bonnie
Mitchell of the Syracuse University College of Visual and Performing Arts,
whose Internet art projects triggered these thoughts, and to Professor Keith
Aoki, whose tireless energy encouraged the translation of these thoughts
into fixed form. I gratefully acknowledge the research support provided
by my research assistants Rika Suzuki and Scott Mulligan. I also thank Dean
Charles R. O'Kelley of the University of Oregon Law School for hosting the
Innovation and Information Environment Conference, and Dean Daan Braveman
of Syracuse College of Law for research support as well as for the New Yorker
cartoon. I dedicate this to my father, Wan Yong Chon, who refuses to bifurcate
art from science.
FN1. Information
Infrastructure Task Force, Intellectual Property and the National Information
Infrastructure: The Report of the Working Group on Intellectual Property
Rights, App. 1 (September 1995) [hereinafter White Paper]; H.R. 2441, 104th
Cong., 1st Sess. (1996).
FN2. Anne Wells
Branscomb, Who Owns Information? From Privacy to Public Access (1994); Peter
Jaszi, Caught in the Net of Copyright, 75 Or. L. Rev. (1995); Jessica Litman,
Revising Copyright Law for the Information Age, 75 Or. L. Rev. (1995); Pamela
Samuelson, The Copyright Grab, Wired, Jan. 1996, at 135.
FN3. Peter Jaszi,
On the Author Effect: Contemporary Copyright and Collective Creativity,
10 Cardozo Arts & Ent. L.J. 293 (1992). Although copyright law has a
category for works created by several writers working together on a preconcerted
basis, the consequences that flow from the categorization of a work as one
of "joint authorship" reflect the individualistic bias of American
copyright doctrine.... Far from acknowledging the extent to which participation
in a corporate, creative enterprise entails the surrender of individual
prerogative, copyright law implicitly assumes the continued relevance of
the Romantic vision of "authorship" to this domain. Id. at 314-15.
FN4. 17 U.S.C.
s 102(a) (1994).
FN5. Id.
FN6. The legislative
history of the 1976 Act states: "Section 102(b) is intended, among
other things, to make clear that the expression adopted by the programmer
is the copyrightable element in a computer program, and that the actual
processes or methods embodied in the program are not within the scope of
the copyright law." H.R. Rep. No. 1476, 94th Cong., 2d Sess. 57 (1976),
reprinted in 1976 U.S.C.C.A.N. 5659, 5670.
FN7. CONTU was
charged with making recommendations about "the reproduction and use
of copyrighted works of authorship (1) in automatic systems capable of storing,
processing, retrieving, and transferring information, and (2) by various
forms of machine reproduction." National Commission on New Technological
Uses of Copyrighted Works, Final Report 4 (1979) [hereinafter CONTU Report].
This quaint enabling language resulted in a 154-page Final Report--colloquially
called the CONTU Report--which took three years to draft (compared to the
NII Working Group's one-and-a-half year sojourn on the 278- page White Paper,
supra note 1).
FN8. The question
of whether fixed "copies" of computer programs could exist was
answered affirmatively, on the reasoning that computer programs could be
stored and therefore reproduced. Among other things, the CONTU Report suggested
that the placement of a copyrighted work into a computer--or, in the jargon
of the trade, the "inputting" of it--is the preparation of a copy.
This may be ascertained by reading together the definitions of copies and
fixed found in section 101.... Because works in computer storage may be
repeatedly reproduced, they are fixed and, therefore, are copies. CONTU
Report, supra note 7, at 22.
FN9. A strong dissent
by Commissioner Hersey argued that [t]he mechanical phases of programs were
now described as copies. On several grounds this euphemism proves as unserviceable
as the previous ones.... [A] program, when keyed or run into a computer,
is transformed by a compiler program into a purely machine state. The term
copy is meaningless for the reason that in this transformation the means
of expression of the original work become totally irrelevant. All that matters
is the program's functional use. Id. at 32. This reasoning applies also
to the question of whether intermediate digitized versions of literary,
visual, or auditory works can be considered copies of those works as they
are expressed in human-readable form.
FN10. 17 U.S.C.
s 101 (1994).
FN11. Jessica Litman,
The Exclusive Right to Read, 13 Cardozo Arts & Ent. L.J. 29, 41 (1994).
A slew of computer copyright cases shows the difficulty of determining the
proper subject matter of copyright even in software that is fixed for more
than a temporary period. See Lotus Dev. Corp. v. Borland, Int'l., Inc.,
49 F.3d 807 (1st Cir. 1995), aff'd, 116 S. Ct. 804 (1995) (copyrightability
of menu command hierarchy); Computer Assoc. Int'l, Inc. v. Altai, Inc.,
982 F.2d 693 (2d Cir. 1992) (copyrightability of program structure); Whelan
Assoc., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222 (3d Cir. 1986) (copyrightability
of program structure); Apple Computer, Inc. v. Franklin Computer Corp.,
714 F.2d 1240 (3d Cir. 1983) (copyrightability of object code); NEC Corp.
v. Intel Corp., 1989 WL 67434 (N.D. Cal. 1989) (copyrightability of microcode).
FN12. " 'Copies'
are material objects ... in which a work is fixed by any method now known
or later developed, and from which the work can be perceived, reproduced,
or otherwise communicated, either directly or with the aid of a machine
or device." 17 U.S.C. s 101 (1994).
FN13. Id.
FN14. MAI Systems
Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993); Triad Systems
Corp. v. Southeastern Express Co., 1994 U.S. Dist. LEXIS 5390 (N.D. Cal.
Mar. 18, 1994) aff'd, 64 F.3d 1330 (9th Cir. 1995); Advanced Computer Services
of Michigan, Inc. v. MAI Systems Corp., 845 F. Supp. 356 (E.D. Va. 1994).
Not only are these decisions questionable from a copyright doctrinal perspective
but they also give the plaintiff a virtual monopoly on activities ancillary
to the software product, such as service and maintenance. This would be
considered a form of "tying" in a patent context, and thus raises
significant antitrust concerns. See Advanced Computer Services, 845 F. Supp.
at 367-69.
FN15. M. Ethan
Katsh, Cybertime, Cyberspace and Cyberlaw, 1995 J. Online L. art. 1, available
online URL: http://www.wm.edu/law/publications/jol/.
FN16. White Paper
App. 1 at 2 ("Section 101 of the Title 17, United States Code, is amended--in
the definition of 'transmit' by inserting at the end thereof the following:
'To transmit' a reproduction is to distribute it by any device or process
whereby a copy ... of the work is fixed beyond the place from which it was
sent.") Sega Enter. Ltd. v. Maphia, 857 F. Supp. 679 (N.D. Cal. 1994)
(direct liability of a computer bulletin board operator who knew and encouraged
infringing activities); Playboy Enter., Inc. v. Frena, 839 F. Supp. 1552
(M.D. Fla. 1993) (contributory liability for copyright infringement by a
"passive" computer bulletin board operator); see generally Niva
Elkin- Koren, Copyright Law and Social Dialogue on the Information Superhighway:
The Case Against Copyright Liability of Computer Bulletin Board Operators,
13 Cardozo Arts & Ent. L.J. 345 (1995).
FN17. Religious
Technology Ctr. v. Netcom On-Line Communication Servs., Inc., 907 F. Supp.
1361, 1370 (N.D. Cal. 1995).
FN18. This extreme
result has led some to argue that the White Paper's recommendations eliminate
browsing and other currently legal uses of copies of works. See Litman,
supra note 11, at 31-32.
FN19. Posting Private
Mail--Comments to Matt Elkin, Dec. 5, 1995, available at cyberia-l@warthog.cc.wm.edu.
A discussion of the default assumption for posts to a computer discussion
group can be found at Copyright Permissions Proposal, Dec. 21, 1995, available
at cyberia-l@warthog.cc.wm.edu.
FN20. Sega Enterp.
Ltd. v. Accolade, Inc., 977 F.2d 1510, 1527 (9th Cir. 1992) (finding fair
use in intermediate copy of computer program where "computer programs
... distributed for public use in object code form often precludes public
access to the ideas and functional concepts contained in those programs,
and thus confers on the copyright owner a de facto monopoly over those ideas
and functional concepts."); Lewis Galoob Toys, Inc. v. Nintendo of
America, Inc., 964 F.2d 965 (9th Cir. 1992); see generally Jessica Litman,
The Public Domain, 39 Emory L.J. 965 (1990) (arguing that a large public
domain is a prerequisite to innovation).
FN21. Networked
computer environments do not necessarily differ in kind from stand-alone
computers or even other literary works in that regard, but they differ vastly
in amount of interactivity. The CONTU Report recognized that many transactions
involving copies of programs are entered into with full awareness that users
will modify their copies to suit their own needs, and this should be reflected
in the law. The comparison of this practice to extensive marginal note-taking
in a book is appropriate: note-taking is arguably the creation of a derivative
work, but unless the note-taker tries to copy and vend that work, the copyright
owner is unlikely to be very concerned. Should proprietors feel strongly
that they do not want rightful possessors of their copies of their programs
to prepare such adaptations, they could, of course, make such desires a
contractual matter. CONTU Report, supra note 7, at 13-14.
FN22. Software
vendors have attempted to place restrictions on software through shrink-wrap
and other kinds of licenses, such as the rigid use licenses at issue in
the MAI trilogy of cases. See supra note 14; see also David A. Rice, Licensing
the Use of Computer Program Copies and the Copyright Act First Sale Doctrine,
30 Jurimetrics J. 157 (1990). The reported fair use cases involving computer
programming competitors demonstrate a reliance on the creator/user divide.
See Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F.2d 965 (1992),
Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (1992).
FN23. See, e.g.,
Jessica Litman, Copyright as Myth, 53 U. Pitt. L. Rev. 235 (1991); Peter
A. Jaszi, Toward a Theory of Copyright: The Metamorphoses of "Authorship",
1991 Duke L.J. 455 (1991); Rosemary J. Coombe, Objects of Property and Subjects
of Politics: Intellectual Property Laws and Democratic Dialogue, 69 Tex.
L. Rev. 1853 (1991); Keith Aoki, Authors, Inventors and Trademark Owners:
Private Intellectual Property and the Public Domain Part II, 18 Colum.-VLA
J.L. & Arts 191 (1994).
FN24. See generally
supra note 20.
FN25. Coombe, supra
note 23, at 1863-64 (definition of recoding).
FN26 As Vibeke
Sorenson stated to me, "the original of a work is the experience of
that work by the audience." Vibeke Sorenson, Remarks at The Innovation
and Information Environment Conference (Nov. 1995).
FN27. Robert H.
Rotstein, Beyond Metaphor: Copyright Infringement and the Fiction of the
Work, 68 Chi.-Kent L. Rev. 725, (1993); Keith Aoki, Adrift in the Intertext:
Authorship and Audience 'Recoding' Rights--Comment on Robert H. Rotstein,
"Beyond Metaphor: Copyright Infringement and the Fiction of the Work",
68 Chi.-Kent L. Rev. 805, 810 (1993) (linking intertextuality to recoding).
Rotstein pointed out that much post-structuralist criticism ... emphasizes
the inevitable interrelationship--termed 'intertextuality'--among all texts.
Post- structuralist thought posits that intertextuality arises out of both
the reading and the writing process. Texts do not exist independently of
someone reading them, and the text is never a separate 'work,' but is always
permeated by other texts that the reader brings to the process of reading.
Rotstein, supra at 737.
FN28. "Cyberspace"
is derived from William Gibson's cyberpunk novel. See William Gibson, Neuromancer
52-53 (1984). Alternative terms include: "infobahn" (attributed
to John Perry Barlow, Jackboots on the Infobahn, Wired (Apr. 1994)), "information
superhighway," "metaverse," "datasphere," "the
Web," "the Net." See Timothy C. May, What's the opposite
of cyberspace (Jan. 5, 1996) archived at http://www.law.cornell.edu/listservs/cyber/.
I use the term "intertext" to refer to the process of textual
or informational meaning- making that occurs in cyberspace.
FN29. Jeremy Waldron,
From Authors to Copiers: Individual Rights and Social Values in Intellectual
Property, 68 Chi.-Kent L. Rev. 841, 842 (1993) (shifting focus of moral
justification in intellectual property law from authors to copiers).
FN30. I am not
making the claim that this one piece represents all of the activity that
goes on in a digitized networked environment, or even all of different types
of digitized networked art.
FN31. Professor
Bonnie Mitchell's first Internet art piece, Chain Art, is the subject of
this analysis. It can be reached at http://ziris.syr.edu. Housed on the
same Web site are examples of Professor Mitchell's more recent work, which
is not analyzed here.
FN32. FTP is named
after the application protocol it uses: the "File Transfer Protocol"
(FTP). As the name implies, the protocol's job is to move files from one
computer to another. It doesn't matter where the two computers are located,
how they are connected, or even whether or not they use the same operating
system. Provided that both computers can "talk" the FTP protocol
and have access to the Internet, you can use the FTP command to transfer
files. Ed Krol, The Whole Internet: User's Guide & Catalog 59 (1992)
(emphasis in original).
FN33. Bonnie Mitchell,
Creative Connections--International Networked Collaborative Art, paper presented
to the College Art Association 83rd Annual Conference (Jan. 1995) (on file
with author).
FN34. Id.
FN35. Id.
FN36. Alternatively,
the work could be treated as a compilation, a work-for- hire, or a derivative
work. These possibilities are not explored here.
FN37. 17 U.S.C.
s 101 (1994).
FN38. Of course,
if there is an express agreement, then a party probably will not raise a
joint work defense.
FN39. H.R. Rep.
No. 1476, 94th Cong., 2d Sess. 120 (1976), reprinted in 1976 U.S.C.C.A.N.
5659, 5736. See generally Scott C. Brophy, Joint Authorship Under the Copyright
Law, 16 Hastings Comm. & Ent. L.J. 451 (1994); Nancy Perkins Spyke,
The Joint Work Dilemma: The Separately Copyrightable Contribution Requirement
and Co-Ownership Principles, 40 J. Copyright Soc'y U.S.A. 463 (1993).
FN40. Childress
v. Taylor, 945 F.2d 500, 505-07 (2d Cir. 1991) (requiring two-part showing:
(1) the contribution of each joint author must be copyrightable; and (2)
the parties must have intended to be joint authors such "that their
contributions be merged into a unitary whole"). See also Erickson v.
Trinity Theatre, Inc., 13 F.3d 1061, 1068-69 (7th Cir. 1994); Weissman v.
Freeman, 868 F.2d 1313, 1318 (2d Cir. 1989).
FN41. For those
courts demanding independent copyrightability of each author's contribution,
a putative joint author such as Mitchell "must supply more than mere
direction or ideas. An author is 'the party who actually creates the work,
that is, the person who translates an idea into a fixed, tangible expression
entitled to copyright protection."' Erickson, 13 F.3d at 1071 (quoting
Community for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989)).
This one-size-fits-all definition does not allow courts to take into account
the custom of each copyright industry in treatment of authorship. See Brophy,
supra note 39, at 488. For example, in the screen-writing area, the "idea"
person may not be considered typically the author of a work. However, in
the conceptual or visual art area, the "idea" person is often
the person who is regarded as the primary author.
FN42. See Anthony
Giddens, The Consequences of Modernity 39 (1990) ("We are abroad in
a world which is thoroughly constituted through reflexively applied knowledge,
but where at the same time we can never be sure that any given element of
that knowledge will not be revised.").
FN43. See generally
Katsh, supra note 15.
FN44. This is reminiscent
of the Sega decision, in which the Ninth Circuit found fair use in the intermediate
copying of a computer video game program. Sega Enterprises Ltd. v. Accolade,
Inc., 977 F.2d 1510 (9th Cir. 1993). The court's inquiry focused less on
the final product (the competing video game software) than on the intermediate
copying. Id. at 1518-19. The court was forced to consider the process of
producing a work, rather than the final work itself, in reaching its fair
use decision. By shifting its perspective from end result to intermediate
process, the Sega court was able to discern reasons for keeping the computer
code in the public domain. Id. at 1520-28.
FN45 See Mark Rose,
Authors and Owners: The Invention of Copyright 122-24 (1993) (arguing that
Shakespeare engaged in collaborationist cultural production, but that his
image was refashioned as the quintessential Romantic genius); Rosemary J.
Coombe, Challenging Paternity: Histories of Copyright, 6 Yale J.L. &
Human. 397 (Summer 1994) (reviewing Rose, supra; Martha Woodmansee, The
Author, Art, and the Market: Rereading the History of Aesthetics (1994);
David Saunders, Authorship and Copyright (1992)); James D.A. Boyle, The
Search for An Author: Shakespeare and the Framers, 37 Am. U. L. Rev. 625
(1988) (arguing that Shakespeare illustrates the indefinite contours of
"authorship"); Jaszi, supra note 23, at 468 (arguing that lobbying
around the Statute of Anne and subsequent copyright statutes required the
invention of an "author").
FN46. This focus
partially accounts for the failure of the Second Circuit in both Childress
and Weissmann to recognize a "joint work." See Childress v. Taylor,
945 F.2d 500 (2d Cir. 1991); Weissmann v. Freeman, 868 F.2d 1313 (2d Cir.
1989). The sole author is the one who gets the legal presumption of validity,
to be rebutted by contrary evidence.
FN47. It is hard
nowadays to conceptualize a distinct Internet culture, but certainly it
is (or at least was) characterized in part by a public domain rather than
proprietary ethic. This is exemplified by, among other things, John Perry
Barlow's slogan "information wants to be free," Richard Stallman's
shareware ethic, and Eric Hughes' cypherpunk spirit. John Perry Barlow,
Richard Stallman & Eric Hughes, Remarks at The Innovation and the Information
Environment Conference (Nov. 1995). In other words, the cultural norm on
the Internet is to maximize freedom of expression through a narrow construction
of proprietary rights, and from that norm an intent to create a joint work
can be inferred. In other areas of the law, intent is often measured by
something other than Vulcan mind-meld of possessive liberal individualists.
For example, the intent in the tort of intentional infliction of emotional
distress can be inferred from recklessness.
FN48. For example,
the following proposition seems sound: if the cost of duplicating information
is small, then it is simple for a less than scrupulous person to duplicate
it. This means that legal as well as physical protection for the information
is a necessary incentive if such information is to be created and disseminated.
CONTU Report, supra note 7, at 10.
FN49 Id. at 11.
FN50. See White
Paper, supra note 2, at 10 (stating that "[a]uthors are wary of entering
this market because doing so exposes their works to a higher risk of piracy
and other unauthorized uses than any of the traditional, current modes of
dissemination").
FN51. Esther Dyson,
Intellectual Value, Wired, July 1995, at 136; John Perry Barlow, The Economy
of Ideas: A Framework for Rethinking Patents and Copyrights in the Digital
Age (Everything You Know About Intellectual Property is Wrong), Wired, Mar.
1994, at 84.
FN52. Samuelson,
supra note 2; Litman, supra note 11.
FN53. "Digerati,"
a play on "literati," is described in Paul Keegan, The Digerati!,
The New York Times Magazine, May 21, 1995, at 38.
FN54. As Esther
Dyson comments: So, what happens in a world where software is basically
free? Successful companies are adopting business models in which they are
rewarded for services rather than for code. Developers who create software
are rewarded for showing users how to use it, for installing systems, for
developing customer-specific applications. The real value created by most
software companies lies in their distribution networks, trained user bases,
and brand names--not in their code. Dyson, supra note 51, at 141. See also
David J. Teece, Profiting from Technological Innovation: Implications for
Integration, Collaboration, Licensing and Public Policy, 15 Research Policy
285 (1986) (arguing that "complementary assets" such as distribution
and service mechanisms are necessary for innovators to benefit from newly
developed product protected by law).
FN55. Alfred C.
Yen, Home Pages, 75 Or. L. Rev. 331 (1996).
FN56. Moreover,
the West page-numbering debate illustrates the danger of overextending copyright
protection to digitized works where a market exists for different digital
versions of the same content. Gary Wolf, Who Owns the Law?, Wired, May 1994,
at 98; James Love, Note on West Copyright of Page Numbers of Published Judicial
Decisions, TAP-INFO Internet Distribution List, Nov. 1, 1993, available
in CNI-copyright mailing list.
FN57. The existence
of the Chain Art project does not necessarily refute this concern, as Bonnie
Mitchell is an academic and thus does not need incentive purely through
commercialization of her works.
FN58. Vibeke Sorenson,
Thoughts of a Computer Artist, 75 Or. L. Rev. 309 (1996). Sorenson recognizes
the impulse toward public access, however, stating that "[s]ome artists
feel that the Internet is a public space and that art on the network should
be considered public art.... In this electronic town square environment,
I would have a dilemma in asking people to pay for my art, especially if
they are just looking." Id. at 315. See also Jane C. Ginsburg, Exploiting
the Artist's Commercial Identity: The Merchandizing of Art Images, 19 Colum.-VLA
J.L. & Arts 1 (fall 1994/winter 1995). J.S.G. Boggs remarks: If another
artist drew on top of a print of my drawing, ... I could accept that as
a creative act. The original would remain, after all, unaltered. This is
difficult for me. I might not like ... the additional drawing, but I could
accept the addition as valid where my creative contribution was significant
under three conditions: 1. My original work must be acknowledged. 2. The
new work must be properly identified as an additive work. 3. I must receive
my fair share of the proceeds. J.S.G. Boggs, Who Owns This?, 68 Chi.-Kent
L. Rev. 889, 892 (1993) (emphasis in original).
FN59. For example,
Bonnie Mitchell states, It was very interesting to watch the students [sic]
reactions as they received the new images each week. They felt very attached
to the image that the [sic] had started and were very upset when someone
changed the image in a way they were unhappy with.... They often referred
to the image as belonging to them, but did it really? Mitchell, supra note
33. Moreover, even in the absence of a commercial incentive, there might
be a moral-rights basis for ensuring the inviolability of a work through
copyright. The articulation of an inviolable artistic self is perhaps rooted
in modernist impulses that are outdated in the context of the networked
communications and the reality of any particular collaborative digitized
work. It certainly seems at odds with the basic premises of the Chain Art
project. Despite the seeming contradiction, however, I simply want to note
and honor it for purposes of this paper.
FN60. See Mark
Lemley, Rights of Attribution and Integrity in Online Communications, 1995
J. Online L. art. 2.
FN61. U.S. Const.
art. I, s 8, cl. 8; see also Margaret Chon, Postmodern "Progress":
Reconsidering the Copyright and Patent Power, 43 DePaul L. Rev. 97, 102-03
(1993) (arguing for the existence of a constitutional right of access to
information).