VIII. COPYRIGHT ISSUES

A. Basics of Copyrights

Text, pictures, sounds, software - all of these can be distributed by computer information systems, and all can be copyrighted. The Constitution guarantees Congress the power to "promote the Progress of Science and Useful Arts, by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries."[336] This power is exercised in the form of the Copyright Act, Title 17 of the U.S. Code.[337] Section 102 of the Copyright Act allows protection of "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."[338] The statute lists several types of works as illustrations of types of works which qualify for copyright protection.[339] Relevant to computer information systems, the list includes literary works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; and sound recordings.[340] The "now known or later developed" language allows expansion of copyright coverage to meet any new means of expression, such as those available over a computer information system.[341] In fact, the notes accompanying this cod e section acknowledge that copyright protection applies to a work "whether embodied in a physical object in written, printed, photographic, sculptural, punched, magnetic, or any other stable form."[342] The element of fixation is important in the copyright statute; a work which is not fixed is not covered by the statute, and any possible protection must come from local common law.[343] This can lead to some strange results. A live concert cannot be copyrighted under this statute, but if the performer records the concert while he or she performs, the concert is then copyrighted.[344] For computer information systems, this implies that conversations occurring over a computer or network which are not stored on a disk [345] are unprotected by the Copyright Ac t, but if any party to the conversation, or the system operator, stores the messages, it is then&127; possible that some elements of the conversation are copyrighted.

Copyright protection extends to works of authorship; it does not extend to ideas, processes, concepts, inventions and the like.[346] Distinguishing between works of authorship and processes can at times result in some subtle distinctions. An example of t his is computer typefaces, or fonts (which can often be found available for downloading on file servers or bulletin board systems). There are two major kinds of type faces, bit-mapped and postscript. Bit-mapped fonts are composed of data describing where points are drawn in order to make out the shape of the letter.[347] Postscript fonts, on the other hand, consist of a computer program which describes the outline of the letter.[348] Digital typefaces are not considered copyrightable, because they are seen as just a copy of the underlying letter design, a process for drawing a representation of a letter, and thus bit-mapped fonts are not copyrightable.[349] Postscript fonts are seen as computer programs-the program is a work of authorship, it just so happens to draw letters, and they have been held to be copyrightable.[350] The Copyright Act gives the copyright holder exclusive rights to his or her works.[351] This allows the author to reproduce, perform, display, or create derivative works as he or she pleases, and to do so to the exclusion of all others.[352] This means a computer information system can distribute only material that is either not copyrighted, or for which the SYSOP has permission to copy. This presents no problem for material the system operator acquires personally, but two&127; problems exist regarding material that users upload to the computer system. First, even if the SYSOP sees that the material a user has uploaded is copyrighted, how is the SYSOP to know that permission has not been granted by the copyright holder? Second, copyright notices can be removed by the person posting copyrighted material, in which case the SYSOP may have no way to know if the data is copyrighted. A SYSOP cannot just ignore a suspicion that a work is copyrighted, because such an act could lead to the conclusion that the SYSOP was a contributor to the copyright infringement by allowing the computer file to be distributed on his or her system.[353] There is no intent or knowledge requirement to find a copyright violation. Copyright infringement is a strict liability crime. Intent is only a factor in calculating damages. When a work is copied, even if the person making the copy does not know or have reason to know, that the work is copyrighted, an infringement may still be found.[354] Even subconscious copying has been held to be an infringement.[355]

One protection the Copyright Act gives to a computer information system is a compilation copyright. A compilation copyright gives the SYSOP a copyright on the data contained in the computer information system as a whole.[356] This does not give the SYSOP a copyright to the individual copyrighted elements carried on the system, but it does allow a copyright for the way the material is organized.[357] An example of this would be the electronic journal composed from articles submitted by users. The compile r of the journal would not own a copyright to the individual articles, but he or she would own a copyright in those elements which are original to the compiler, for example, to the arrangement of the articles which makes up the periodical as a whole.[358] A bulletin board system could presumably also copyright its entire message base.

As mentioned, the Copyright Act gives an author the exclusive rights to make copies of his or her works, as well as create derivative works.[359] This includes copies in computer readable form.[360] Thus, scanned pictures, digitized sounds, machine readable texts, and computer programs are all subject to an author's copyright. Any attempt to turn original material into one of these computer-readable forms without the author's permission (and unless the copy falls under one of the exceptions in sections 1 07-120) is a violation of the author's copyright.

With decreasing costs of data storage, and increasing access to computer networks, comes an increase in the number of computer archives. These computer archives store various types of data which can be searched by the archive user. The archive site can be searched, and the information can be copied by anyone with sufficient access to the archive. This ease with which information can be accessed and duplicated has some profound copyright implications.[361] I will use as an example a "lyric server," an archive that stores lyrics to songs by assorted artists. Other types of information that can be distributed will be discussed shortly.

In my lyric server example, if someone is sitting down with an album jacket and typing the lyrics into the computer for distribution in the archive, the translation of the lyrics from the album jacket to a computer text file constitutes an unauthorized copy. Similarly, if someone else types in the file and a System Operator then puts the file into the archive for distribution, the SYSOP has violated the author's right to make and distribute copies of his or her work.[362]

Once the file is in the archive for distribution, every time the information is copied, there may be a copyright violation. There is a difference here between copying and viewing. As mentioned, the Copyright Act protects against unauthorized copying of a work. The Act defines a copy as a fixation "from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."[363] Thus, if someone connects to the computer information system and just peruses the archive, if the information is not "downloaded," "screen captured," or otherwise recorded on computer disk, tape, or printout, then no fixation is made and thus, no copy. However, while the archive user may not be making a copy, if the archive is publicly accessibld, viewing some types of files may possibly constitute a public performance or display [364] of the copyrighted work, which are also protected rights.[365] To infringe these display and performance rights, it should be necessary that the computer information system makes the copyrighted work available in a manner so that the work is immediately shown, recited, rendered, played or the like directly to the user. To not require this immediate accessibility would be to confuse the right to distribute copies with the right to display or perform a work. By allowing the transmission of raw data, the System Operator is making available a public place in which to copy, not display, the work. Without some activity beyond merely transmitting the work in a raw data form, to hold a SYSOP liable for violating a display right would be analogous to holding a place-such as a library, a newsstand, or a waiting room, or any other place which has copyrighted works available to the public-liable for violating the copyright holder's display or performance rights.[366] Whether the unauthorized archiving of a copyrighted work or whether further copying of a protected work by the archive user constitutes a violation of section 106 of the Copyright Act is also determined by whether the copying falls under one of the Act's exceptions. The two relevant exceptions are the "fair use" provision [367] and the "reproduction by libraries and archives" provision.[368] [F]air use was traditionally a means of promoting educational and critical uses. Fair use, then, is an exception to the general rule that the public's interest in a large body of intellectual products coincides with the author's interest in exclusive control of his work, and it is decided in each case as a matter of equity ... ."[369]

The fair use provision contains a list of uses that are presumed to be acceptable uses of copyrighted works, and a list of four factors that must be taken into account to determine if the use constitutes a fair use of the work. The list includes use for criticism, comment, news reporting, teaching, scholarship, or research.[380] This list may provide some guidance as to what constitutes legal use for the *user* of a computer information system, but not for the *provider* of the archive. The archive user may be safe in copying song lyrics from the lyric server if he or she is using the lyrics for the purpose of commentary, for example, but the SYSOP who provides the service may not have the same defense.

The four factors to be applied in deciding whether the use of a copyrighted work in each case constitutes fair use are:

(1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or the value of the copyrighted work.[371]

Applying these factors to the System Operator's liability for a lyric server, the character of the use depends on whether access to the lyrics is available for free, or as a profit making venture. The nature of the work is song lyrics, likely intended for commercial sale. The amount used, is the entire lyrics to each copyrighted song.[372] A use of the copyrighted work which makes the original obsolete will obviously be more likely to be found an unfair use than a use which brings more notoriety to the original. And finally, placing copyrighted lyrics on a publicly accessible computer information system may have a profound impact on the potential market for the computerized distribution of lyrics, depending upon the potential number of users of the lyric server. The impact on a potential market is potentially substantial. For example, in a case where Playboy sued a BBS for distributing scanned images from Playboy's magazine, the BBS was found to be taking in $3 million a year, which Playboy might be able to make off of its own proposed electronic service.[373]

The other possible exception to the copyright holder's exclusive rights is section 108 which deals with copying by libraries and archives.[374] Unlike the section 107 fair use provision, which in this case is more aimed at the end user, section 108 is aim ed more at the information provider. Section 108 allows the archive itself to reproduce or distribute no more than one copy or phonorecord of a work, and as long as the archive is available to the public or to researchers not affiliated with the library or archive, the archive does not get direct or indirect profit from making or distributing the copy, and the copy contains a notice of copyright.[375] It is reasonable to argue that when the user requests a host computer to send a text file containing the lyrics to a specific song, the archive is making this type of copy. Section 108 allows the user to request copies of "no more than one article or other contribution to a copyrighted collection or periodical issue, or ... a small part of any other copyrighted work"[376] as long as the copy becomes the property of the user, the archive has no notice that the copy is to be used for anything other than study, scholarship, or research, and as long as the archive displays prominently "at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation."[377] This requirement of the posting of copyright notice would clearly apply to the lyric server, just as it does to a library photocopier. Even if a passive computer system is held to be more like a self-serve copier, and the SYSOP plays no part in the copying by the user, if the archive is made available so that copying may occur, the system operator is still subject to a copyright infringement claim if the "reproducing equipment" does not bear a notice that any copies made may be subject to copyright law.[378]

To summarize with the lyric server example, while a system operator may not be liable for the use to which users put any copyrighted text they copy off of the computer information system, the SYSOP still must be wary of some obstacles. Copyright notice must be provided, and, specifically, the notice that is prescribed by the Register of Copyrights may require that each file have its own copyright notice. Access to the archive must be fairly open. The archive must not directly or indirectly profit from distributing the copyrighted works. Potentially the biggest hurdle is that care must be taken in assembling the archive so that any materials that need to be converted into a computer-readable form are converted without violating the author's section 106 rights.[379]

B. Copyrighted Text

Copyrighted text can appear on computer information systems as either files in a file server or database; or it can appear in an E-mail message or post on a BBS; or it can be worked into an E-journal. The most obvious place to find copyrighted text is on information systems such as LEXIS/NEXIS, WESTLAW and Dialog. Textual material, such as electronically stored journals, gets a fairly straightforward copyright analysis; the hardest job for a SYSOP may be discovering what text is copyrighted. Once infringing text is discovered, the SYSOP must remove it, or risk being held as a conspirator in the copyright infringement.[380]

C. Copyrighted Software

Bulletin board systems, network file servers, and main-frame computers that use FTP (File Transfer Protocol) all offer the opportunity to copy software. The Software Publisher's Association (SPA) offers the opportunity to be on the receiving end of a law suit if any of that copied software is copyrighted.[381] The SPA is a group established by a number of software publishers in order to cut down on software piracy.[382] The SPA monitors bulletin board systems for distribution of copyrighted software.[383] They warn SYSOPs that they will be monitored, giving the SYSOP the opportunity to remove any software he or she does not have the right to distribute.[384] The SPA also examines office computers for unlicensed software.[385] Violators are asked to remove illegally held software, purchase legally licensed copies, and pay a fine equal to the amount of the purchase price of the software package.[386] Compliance with the SPA requirements saves the offender the additional cost of a lawsuit.[387] Noncompliance will result in a lawsuit filed by the SPA.[388]

As mentioned, not all copying of copyrighted software is illegal. Two exceptions are worth noting. One is for the making of backup copies. The Copyright Act allows a copy of legally licensed software to be made if such a copy is needed to use the software.[389] The Act also allows a copy to be made for archival purposes, as long as the copy is destroyed "in the event that continued possession of the computer program should cease to be rightful."[390] The other exception is shareware. Shareware is a popular method of software publishing which allows a software programmer to distribute his or her work without all of the marketing costs, often via a computer information system.[391] A user can call up a BBS, download software, and try it out for a while. If the user likes the software, he or she sends the programmer a shareware fee. The difference between shareware and public domain software is that public-domain software is freely distributed with the consent of the copyright owner, while shareware is not distributed without restriction - use of shareware beyond a reasonable trial period (often specified in the documentation distributed with the software) without payment of the shareware fee is a violation of copyright law.[392]

Crackdowns on software pirates are becoming more visible in the recent past, both in the United States and internationally. In May of 1994, the Italian police raided 119 SYSOPs who had computers on the Fidonet network.[393] The SYSOPs were all under suspicion of being software pirates. The prosecutor in charge of the investigation said that "[s]oftware piracy has become a national sport in Italy."[394]

In the U.S., David Lamacchia was indicted in April of 1994 on one felony count of conspiring to commit wire fraud, based on his running two bulletin board systems on a computer at M.I.T. for distributing pirated software.[395] He was not charged with computer fraud or with software piracy. Instead he was charged under a statute used to outlaw interstate fraud schemes via telephone wires.[396] This case will test whether a SYSOP can be held liable for simply running a system which is substantially devoted to illegal activity, namely software theft, even though the SYSOP does not physically do any of the software copying and does not derive a profit from the activity.

One recent cases has held a SYSOP can be held liable for copyright infringement where he played a part in the distribution of copyrighted software via his BBS.[397] At issue in *Sega*, was a members-only bulletin board system used to distribute copyrighted video games.[398] Access was given either in exchange for money, for supplying copyrighted games, or to the defendant's customers who had bought devices used to read the software off of the original game cartridges.[399] The court held that the defendant knew and encouraged the use of his system for the copying of Sega's copyrighted works.[400] The court held that unauthorized copies of the videogames were made every time a game was uploaded to or downloaded from the bulletin board,[401] and that once downloaded, other copies were then made by the BBS users.[402] This additional copying was facilitated and encouraged by the BBS administration, and "[o]ne who, with knowledge of the infringing activity, induces, causes or materially contributes to the in fringing conduct of another,' may be held liable as a contributory infringer."[403] The court dismissed the defendant's fair use argument, by pointing out how each of the fair use factors weighed against the defendant's use being a fair one (and also pointing out that in order to employ the fair use exception, one must possess a legal copy to start with).[404]

Importantly, the *Sega* court found that the distribution of copyrighted video game software also amounted to both a violation of Sega's trademark rights and to unfair competition under the federal trademark law.[405] The court stated that every time a game was downloaded and subsequently played Sega's trademark was used (as well as being used in the file descriptors of the games stored on the BBS).[406] These downloaded games then enter the stream of commerce, potentially causing confusion as to their origin.[407] This deprives Sega of revenue, makes available (in the case of some of the BBS files) confidential pre-release versions of some of the games, and makes available games without proper packaging and instructions.[408] All of which damages Sega's business and reputation in&127; violation of the Trademark Act.[409]

D. Copyrighted Pictures

As mentioned earlier,[410] pictures can be scanned into a computer and stored. Pictures can also be drawn directly on a computer by means of graphics software. A hybrid of the two is also possible - pictures can be scanned, and once scanned, they can be further altered with image processing software.[411] All of these forms are covered by the Copyright Act.[412] Pictures created on the computer using graphics or "paint box" software are in an original copyrightable form.[413] Images that are scanned are in violation of the original copyright holder's rights, unless permission to distribute the scanned image has been obtained.[414] In fact, even the unauthorized initial scan made of a copyrighted work is in violation of the copyright, even without further distribution.[415] As one author said, "[t]he law is quite straightforward; a copy is a copy, period. There is no wording that differentiates among images produced by scanners, by photocopiers, or by crocheting them into toilet seat covers."[416] Images which are scanned that are not copyrighted, such as works on which the copyright has already expired,[417] do not violate the Copyright Act, and, if sufficient creativity is contributed in the scanning process, the images may be eligible for copyright protection in their own right.[418] If a scan of a copyrighted picture is then altered into a new image, the modified version likely still falls under the original copyright.[419] It therefore enjoys no protection on its own, and copyright release must be obtained from the holder of the copyright in&127; order to distribute the image (or to modify it in the first place).[420]

Once again, one of the most difficult tasks for a system operator is determining which images are copyrighted. The Copyright Act provides an author with the right to have his or her name associated with his or her own work, as well as the right to have h is or her name disassociated with a mutilation of his or her work, (along with the right to prevent such mutilations in the first place).[421] Based on these rights, a SYSOP&127; should be especially careful of images which appear to be doctored. Many of the larger computer information services settle the dilemma over establishing copyright status by allowing the images under the assumption that no one will mistake a scanned copy for an original, and that therefore no one is being hurt.[422] This argument has no basis in the law of copyrights. The Copyright Act gives the author the right to make copies of his or her work, and this includes bad copies.[423] Also, the claim that no damage is being done is an unreasonably narrow view. The copyright holder, and not the public, is allowed exclusive control of the channels through which his or her work reaches the market.[424]

Computerized images present a whole new market for an artist's work, and widespread, unauthorized distribution can destroy the potential to disseminate the work in the computer market - a right clearly given to the author of the work. Some computer information services also defend the possibility that some of their stored images are provided on the basis of the "fair use"[425] exception.[426] Relying on fair use is also not a very realistic position to take. One artist found some of his work scanned and available on a BBS, only after he was told of its presence by a friend. The artist's name and copyright notice had been cropped off. By the time the artist protested, 240 people had downloaded his images.[427] Such wide infringement into a potentially new market for the artist is not likely to be found by a court to constitute "fair" use. For a SYSOP to be free from liability, the only thing he or she can do is to make sure the image is either not protected by copyright, or that the use of the image has been approved by the copyright holder.

The above analysis was put to the test in *Playboy Enterprises, Inc. v. Frena*.[428] In this case, a BBS made available scanned images from Playboy magazine. The System Operator claims that he did not place any of these scanned images on his system.[429] The court stated that copying can be inferred where the defendant had access to the copyrighted work, where the alleged infringing work (the scanned pictures) are substantially similar to the copyrighted work, and where one of the statutory rights guaranteed to the copyright owner is impaired by the SYSOP's actions.[430] In the case of scans made directly from a magazine publishing over 3.4 million copies each month in the United States, the first two elements of the test were easily met.[431] Even though Frena stated that he did not put the copies on his system, the court held that the statutory right of exclusive distribution was violated because "Frena supplied a product containing unauthorized copies of a copyrighted work."[432] Frena argued that any copies of Playboy's pictures constituted fair use. Employing the four fair use factors (see supra), the court held that 1. Frena's use was clearly commercial and would likely produce future harm to Playboy's market; 2. the copyrighted works are works of fiction or fantasy-entertainment rather than factual works; 3. the pictures copied from each magazine constituted an essential part of the copyrighted work (the magazine); and 4. the effect of copying the Plaintiff's work would be detrimental to the potential market of the copyrighted work.[433]

As the *Sega* case held in the software context, the *Frena* court found that the System Operator's use of the Plaintiff's trademarked works violated Playboy's trademark rights [434], and constituted unfair competition.[435]

E. Copyrighted Sound

Following a similar analysis to that of copyrighted pictures, copyrighted sounds can also be distributed by computer information system. This may take the form of sounds and music converted into digital form, or it may take the form of MIDI files.[436] The first lawsuit involving the copying and performing of music files from a computer information system has recently been filed by Franklin Music Corp. against CompuServe.[437] In this case, Franklin claims that CompuServe allowed people to download MIDI files of music to which it holds the rights, resulting in nearly 700 instances of copyright infringement.[438] CompuServe claims they only provided access to databases maintained by other companies, and that the other companies should be responsible for any royalties.[439] Once this case is decided, it will help clarify the issue of SYSOP liability for these files, as the Plaintiff is specifically going after the distribution medium, as opposed to the users who are actually downloading the files. Reportedly 140 other music publishers are ready to join in and turn the suit into a class action.[440]

Copyright 1994 - 1995 by P-Law, Inc., and Kenneth M. Perry, Esq. All rights reserved. Reproduction is permitted so long as no charge is made for copies, no copies are placed on any electronic online service or database for which there is a fee other than a flat access charge, there is no alteration and this copyright notice is included.

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