Vol. XVII, No. 4
Copyright 1995 by American Lawyer Media, ALM LLC
May 1995
Plugging In
NEW WINE, OLD BOTTLES: THE EVANESCENT COPY
David Post
There may be no more significant legal question surrounding the
emerging computer and communication technologies than this: How do copyright
and other intellectual property rules apply in the age of the Internet-where
unimaginably vast amounts of information are stored in digital form and
can be copied and transmitted, instantaneously and for little more than
the price of a local phone call, to virtually any other computer on the
globe?
Shortly after the Supreme Court held that the use of VCRs for home
taping of television broadcasts does not constitute copyright infringement,
representatives of the Motion Picture Association of America met with members
of Congress to discuss possible legislative responses to what the industry
saw as a serious threat to its continued profitability. According to James
Lardner (in Fast Forward: Hollywood, the Japanese, and the Onslaught of
the VCR), Senator Charles Mathias of Maryland scribbled the following on
a piece of paper as the discussion proceeded:
Era of Monastic Manuscript: Copyright unnecessary to authors or
publishers
Era of Gutenberg Press: Copyright necessary to authors and publishers
Era of Promiscuous Publication: Copyright enforcement doubtful
This is the law's version of the Laffer Curve: Just as tax revenues
supposedly increase and then drop off as tax rates rise, so too, as copying
becomes easier and easier, laws to protect an author's right to prevent
unauthorized copying become more and more valuable-until, perhaps, a point
is reached at which copying has become so simple, so costless, that regulation
becomes virtually impossible.
Not surprisingly, this issue is currently the subject of vigorous
debate. In one corner are the Incrementalists. In their eyes, the basic
foundations of copyright law will survive intact because the fundamental
need to which it responds is still with us, perhaps more than ever-the
need to provide protection to authors so as to give them an incentive to
invest the time and effort required to produce creative works. With appropriate
fine-tuning, the Incrementalists say, copyright law will accommodate these
new technological developments, just as it has accommodated earlier innovations,
ranging from the pianola (the subject of much copyright-related wrangling
at the turn of the century) to the VCR and the digital tape machine.
Thus, the federal government's National Information Infrastructure
Working Group on Intellectual Property, considering possible revisions
to the Copyright Act, concluded: "The [copyright] coat is getting a little
tight. There is no need for a new one, but the old one needs a few alterations."
In the other corner are the Radical Revisionists. They claim that
copyright law, based as it is on the notion that the creator of an original
work should be allowed to exercise exclusive control over the reproduction
of his or her creative output, is an anachronism in the face of technologies
that make the act of copying so easy-technologies whose very essence, one
might say, is to copy information and move it from one place to another.
Canonical texts for the Revisionists are Ithiel de la Sola Pool's
Technologies of Freedom ("Established notions about copyright become obsolete,
rooted as they are in the technology of print ... with the arrival of electronic
reproduction, the recognition of a copyright and the practice of paying
royalties become unworkable") and John Perry Barlow's "The Economy of Ideas:
Everything You Know About Intellectual Property Is Wrong" [Wired magazine,
March 1994] ("Intellectual property law cannot be patched, retrofitted,
or expanded to contain the gases of digitized expression any more than
real estate law might be revised to cover the allocation of the broadcasting
spectrum").
Who will prevail in this contest? That's the multibillion-dollar
question for those who own valuable intellectual property and rely on copyright
protection to realize a return on that property-a category that in the
"information economy" includes some very large and powerful entities. But
whatever the outcome, the copyright battle well illustrates some of the
difficult issues that arise when we try to apply venerable legal doctrine
to new technologies.
Not Just Harder To Enforce
Senator Mathias was surely at least partially right; copyright enforcement
is going to prove difficult and costly in this new environment. But it
is not simply the fact that copyrights can be so easily violated in cyberspace
that is putting increasing strain on our current copyright regime. After
all, the photocopier constituted an enormous assault on the notion of copyright,
making it easy and cheap for anyone to duplicate copyrighted works on paper.
The Internet and other electronic means of publishing and communication
not only surpass the photocopier as vehicles for copying and distributing
information, they threaten more fundamental concepts, integral to the very
notion of copyright.
Consider, for instance, the basic building block of any copyright
system: the concept of copying itself. Copyright law is, fundamentally,
about granting authors exclusive control over the production of copies
of their works. The basic principle is that, for example, John Grisham,
and only John Grisham, can make (or authorize the making of) copies of
The Firm, and I infringe his copyright if I make copies without his permission.
Copyright law must therefore delineate what does and doesn't constitute
the "making of a copy." Plenty of nice questions crop up here, of course,
to keep copyright lawyers busy. But a relatively easy line can, and has,
been drawn. The law has required that a reproduction of a copyrighted work
be tangible before it can be treated as a potential infringement. The Copyright
Act, for example, defines a copy as a "material object ... in which a work
is fixed ... and from which the work can be perceived....''
This means that I do not need Grisham's authorization to enter
my local bookstore and flip through the pages of his novel, or to memorize
a passage or two, or to imagine alternative endings to his book. The law,
wisely, does not consider reading (and whatever that entails in the left
temporal lobe of my brain) to constitute the activity-the making of a tangible
copy of the work- over which Grisham is permitted to exercise control.
Phrased differently, the right to produce tangible copies of The Firm belongs
to Grisham; the right to read it, to use and manipulate the information
that he has placed into the stream of commerce for the production of new
creative works, belongs to the public. By this allocation will copyright,
in the Constitution's words, "promote the progress of science and useful
arts."
This simple but fundamental concept is proving troublesome, however,
when translated into cyberspace because the fundamental notion of "making
a copy" slides too easily in and out of focus. When you log into your firm's
e- mail system, or onto an on-line service such as Prodigy or America On-line,
or when you "move" around the Internet to "visit" different sites (watch
those spatial metaphors!) in order to view the material there on display,
what is really happening is that you are sending a message to a remote
computer requesting the transfer of a file-a file containing the list of
all messages in your in-box, or a recent comment posted in some discussion
forum, or the latest Supreme Court opinion, or Microsoft's price list.
In normal computer parlance, a "copy" of the file is then transmitted back
to your computer, loaded into your computer memory, and displayed.
Have you for copyright law purposes made a "copy" of the file that
was sent back to you? From the average user's perspective, calling up a
document on- line may seem most analogous to browsing through a hard copy
version of The Firm. The only difference, you might think, is that you
are reading on a computer screen instead of on paper.
The Courts Weigh In
But two courts-the Ninth Circuit in MAI Systems Corp. v. Peak Computer,
Inc., 991 F.2d 511 (1993) and a federal district court judge in Virginia
in Advanced Computer Services. v. MAI Systems Corp., 845 F. Supp. 356 (1994)-
have in fact concluded that the transitory "fixation" of a computer file
in memory constitutes copying within the meaning of the Copyright Act.
The government's working group on intellectual property (the panel cited
above as a member of the Incrementalist camp) also has taken this view.
If the very act of getting a document to your screen is considered
the "making of a copy" under the Copyright Act, then a high proportion
of the millions of messages traveling over the Internet each day potentially
infringe on the right of some file creator-an "author" in copyright terms-to
control the making of copies. And, if the very act of reading documents
on-line involves copying, then some form of a license-permission from the
copyright holder-would, in this view, be required for many, many of those
message transmissions.
Of course, if I send an e-mail message that I have authored to
a friend, I have impliedly authorized my friend to copy the file into his
computer. Likewise, if I pay whatever subscription fee is required to view
an on-line version of today's Wall Street Journal, Dow Jones won't call
me an infringer for reading its dispatches. But a legal regime that requires
you to prove that you have received specific authorization for each of
these commonplace acts lest you be deemed an infringer is surely going
to bog down in uncertainty (and therefore endless litigation).
What happens, for example, when I find an article in the Journal
that is particularly interesting and I post it to a Usenet discussion group
on the Internet? In this view, not only am I infringing by retransmitting
this material, but so too are all of the discussion group participants
who read the article I posted-none of whom, after all, has received a license
from Dow Jones authorizing their "copying." Are these people really subject
to the Copyright Act's statutory damage provisions? Can we possibly keep
track of this endlessly complex trail of "authorizations"?
Forced To Choose
If we adopt the view of the MAI Systems and Advance Computer courts,
cyberspace is not merely an environment where widespread copyright infringement
is possible: The medium itself looks like little more than a colossal worldwide
copying engine. These rulings cannot merely be dismissed as idiosyncrasies,
however, because-and herein lies our problem-this file transfer does look
a great deal like the kind of activity that falls squarely within the copyright
law's sights. After all, once the transfer is completed, where there was
once one file, now there are two, each indistinguishable from the other.
How different is that from making a photocopy?
The question copyright law will have to settle is whether browsing
on the Internet is more akin to browsing at your local bookstore, or is
more analogous to placing Grisham's novel surreptitiously on my Xerox machine
or scanning its pages into my computer's memory.
These two views of this most rudimentary question are incompatible
with one another, though each is perfectly logical-a sure sign that a paradigm
shift may be in order. Copying remains a means by which free-riders can
appropriate the creative output of others. To that extent the law will
seek to discourage it. But it is also an indispensable component of a new
form of communication in a digital world-communication that can be smothered
under a mountain of ruinous and wasteful litigation if we are unable to
redesign our old bottles to fit the challenges of Senator Mathias's "Era
of Promiscuous Publication."
David Post is a visiting associate professor at Georgetown Law Center.
He can be reached by e-mail through LEXIS COUNSEL CONNECT or over the Internet
at dpostn00@counsel.com.