ABSTRACT
Extending copyright law to regulate Internet activity is anathema
to the culture the launched its development. Originally, researchs were
eager for a means of rapid and efficient exchange of information and
ideas. The first mass of public users were primarily computer enthusiasts
attracted by the free-for-all forum; unrestricted and virtually cost-free
expression and communication with colleagues, peers, and unknown users.
Popularization now threatens this culture. The unprecedented growth of
the Internet, and in particular the World Wide Web, has introduced new and
potentially damaging threats to works of intellectual property. Anyone
with access to a personal computer and a modem could reproduce and
distribute any copyrighted work that can be digitally represented. This
threat to the economic markets of intellectual goods is the reason for
copyright law.
The white paper primarily recommends definitional changes in legislation
to recognize digital transmission as a mechanism for distribution and
publication. Critics of the white paper warn that these changes will rob
users of exactly the benefits and rights that have drawn them to the
Internet. This issue is quite complex and has no clear solution. Thus,
there is an urgent need for rational debate. Law professor Pamela
Samuelson has positioned herself as a proponent of users' rights,
diseminating her criticisms of the white paper through the Internet. She
has reached and influenced a tremendous number of users with her
overwhelmingly unjustified interpretation of the white paper. Great need
exists for public debate of the issue. However, a greater need exists for
rational and critical debate unclouded by cynicism. For this reason, we
respond to salient criticisms of Pamela Samuelson. We hope to distinguish
the valid flaws of the white paper from the histrionics.
INTRODUCTION
Copyright law is a highly specialized field. While most people
are aware that copyrights exist, the average person is unaware of the
underlying economic and legal issues. With the development and popularity
of the National Information Infrastructure (NII), copyright law
increasingly effects the daily activities of average people. Previously
copyright legislation and court decisions were mostly the concern of
corporations and organizations with resources invested in reproduction and
distribution processes (e.g., publishers of print, images, and video and
audio recordings). Copyright law established a balance between the rights
of authors and publishers of intellectual materials, and the rights of the
public to access and use the protected materials. Legislation was
designed to provide public access to intellectual goods while protecting
the economic market of these goods. Increasingly, the NII provides all
users with the opportunity to reproduce and distribute intellectual
property at virtually no personal cost. The NII, by facilitating
reproduction and distribution, introduces new threats to the economic
markets of intellectual goods. The stated objective of the white paper
recommendations is "to accommodate and adapt the law to technological
change so that the intended balance is maintained and the Constitutional
purpose is served." (
WP, p. 212) Broad and historical support exists for the needs both to
protect the economic markets for intellectual goods and to maintain the
balance between business opportunities and public interest. However, as
white paper critic, Pamela Samuelson states, "the issue of what is proper
copyright policy in the coming age of digital networked environments is a
subject on which reasonable people can disagree." (Samuelson (2), p.
10)
NEED FOR PUBLIC DEBATE
Due to the need for public debate on the general issue, a call for
public comment accompanied the release of the white paper. The public
comment stage is crucial to the extent that it allows an exchange and
development of pertinent and innovative policy ideas, while also providing
a check on the government's power to impose convoluted regulations on an
unwary public. The later point is particularly salient since room for
skepticism exists regarding the importance of public interest to the
Information Infrastructure Task Force (IITF) Working Group, which produced
the report. First, the chairman of the Working Group is Bruce Lehman, a
former copyright industry lobbyist. Pamela Samuelson points out that
"many influential members of Congress know and trust Lehman, who was a
Congressional staffer before he became a copyright lobbyist." ( Samuelson (1),
p. 2) She warns that Congressmembers will defer to the recommendations of
a trusted colleague rather than individually trudging through the
"250-page, jargon-ridden white paper". ( Samuelson (1),
p. 2) Samuelson further suggests that Congress is biased in favor of the
publishing industries that contribute tens of billions of dollars to the
US balance of trade. These concerns do present a basis for skepticism and
further support the public comment process on the white paper
recommendations. Rational and objective analyses can contribute
constructive and essential perspectives to the debate.
Pamela Samuelson, a law professor with the University of
Pittsburgh, has positioned herself as a spokesperson for the public
interest. Her goal is to "translate the Report and its recommendations
into plain English..." ( Samuelson (2), p. 2) so that the public is able to
make an informed judgment about whether the recommendations adequately
consider public interests. However, the validity of her analysis is
compromised by her determination to convince otherwise uninformed readers
of her extreme interpretation. What Samuelson offers, as a plain English
translation, is overwhelmingly her own unfounded interpretation rather
than a responsible critical analysis of the Working Groups
recommendations. Through current technology, Samuelson reaches an
unprecedented number of people with her articles. The subject of the
debate, the NII, is precisely the instrument that permits her to
disseminate her work under the guise of rational and expert analysis. As
a result, a response in warranted.
CRITICISM OF THE WHITE PAPER
Samuelson presents four primary criticisms of the white paper:
the Working Group's recommendations would (1) give copyright owners
control over every use of copyrighted work in digital form, making
browsing an infringement under copyright law; (2) "give copyright owners
control over every transmission of works in digital form by amending the
copyright statute so that digital transmissions will be regarded as
distributions of copies to the public" ( Samuelson (1) p.
2); (3) eliminate fair-use rights; (4) eliminate first-sale rights.
Samuelson's inflammatory criticisms of the white paper do not provide the
public with information needed to make an informed decision, but merely
obscures the issues with reactionary rhetoric in place of the specious
legalistic terminology that she set out to combat.
Browsing as Infringement of Rights
First, Samuelson warns that "the white paper simply pretends that
under existing law, browsing is an infringement...." ( Samuelson (1) p.
3) In fact, the white paper acknowledges that digital transmission is a
complicated process that is not unambiguously covered by current
regulation. Digital transmission may combine both processes of
distribution and reproduction. Unlike the print, or the audio and video
publishing worlds, or the television and radio broadcasting worlds,
distribution and reproduction are not disjointed processes; to transmit a
digital work over the NII, the work must be copied to the random access
memory of the receiving computer. The white paper also acknowledges that
depending on the circumstances of the transmission, "any exercise of one
of the exclusive rights may be fair use -- including the reproduction and
distribution of copies by transmission." ( WP, p. 216) Samuelson
incorrectly interprets the white paper discussion. The Working Group does
not intend to make browsing an infringement of the exclusive rights of
copyright owners. The group does, however, realize that certain digital
transmissions are more complex than previous means of transmission, and
therefore require distinction in pertinent legislation. The
unfortunately vague recommendations of the white paper allow Samuelson
the necessary room to construct her extreme interprets. The vagueness of
the recommendations is discussed below as a general shortcoming of the
white paper recommendations.
Right of Distribution
Second, Samuelson's accusation that the Working Group regards
every digital transmission as distribution of copies to the public is not
only incorrect but irresponsible. She reveals her extreme bias by
hypothesizing that "Lehman is probably seeking the digital transmission
amendments because his pals among the maximalists want to be able to
control all performances and display of copyrighted works...." ( Samuelson (1),
p. 3) The Working Group is, in fact, quite explicit and rational in its
discussion of distribution. The Copyright Act already provides copyright
owners with the exclusive right to distribute copies of copyrighted work
to the public. The Working Group recommends an amendment to the
Act to recognize that copies or phonorecords of works can now be
distributed to the public by transmission, "and that such
transmissions fall within the exclusive distribution right of the
copyright owner." (WP, p. 213) This does not mean, as Samuelson
asserts, that sharing a section from an electronic journal with a friend
via e-mail will be a criminal act. The white paper does not recommend
giving copyright owners absolute control over every digital transmission
of copyrighted works. The white paper does, in fact, state that "clearly,
not all transmissions of copyrighted works will fall within the copyright
owner's exclusive distribution right." (WP, p. 215);
distribution must be to the public before copyright infringement
becomes an issue. And the courts, not Bruce Lehman or the "copyright
maximalists" who haunt the delusions of Pamela Samuelson, will rely on
case law to interpret what constitutes distribution to the public.
The Working Group recommends extending current legislation in light of
technical developments that introduced transmission as a potential
mechanism of distribution. Without a fundamental change in legislation,
the burden of extending copyright law to the NII will fall entirely on the
judicial system. The Working Group warns of the risks of trying to
regulate a changing and constantly accelerating industry with resource-
and time-intensive litigation. Congress should provide guidance; the
judicial system should resolve the finer issues based on the facts and
circumstances of individual cases.
Fair Use Rights and the NII
Third, Samuelson accuses the Working Group of attempting to
eliminate fair-use rights. As with the majority of her criticisms, she
does not support this statement with any reference to pertinent sections
of the white paper. An objective and informative summary of the white
paper does not legitimize her concern. The white paper reviews a
four-dimensional statutory framework for considering fair-use practice.
The use of a copyrighted work is determined fair (or unfair) based on four
factors: (1) the purpose and character of the use (in particular,
distinguishing between commercial and non-profit use); (2) the nature of
the copyrighted work (e.g., fiction versus non-fiction); (3)
substantiality of the section used; and the most significant factor (4)
the effect of the use upon the market value of the copyrighted work. The
white paper acknowledges that "mere reproduction has faired rather badly
in court under the Copyright Act..." (WP, p. 77), but does
not suggest legislation to eliminate fair-use rights in the context of the
NII. As with clarifying distribution infringement, the "courts will have
to engage in the same type of fact-intensive analysis that typifies fair
use litigation and frustrates those who seek 'bright lines' clearly
separating the lawful from the unlawful." (WP, p. 80) A
legitimate criticism of the Working Group's consideration of fair-use
rights applied to the NII is the vagueness of the recommended legislation.
The Working Group if trying to balance the need for copyright law that is
applicable to the NII with the desire for parsimonious legislation that
will not require continual amendment in response to rapidly evolving
technology. In doing so, the group has, to a large extent, handed the
responsibility of clarifying fair-use doctrine to the less-efficient
judicial system.
First-sale Rights and the NII
Finally, Samuelson maintains that the Working Group would eliminate
first-sale rights for digitally transmitted documents. First-sale rights
limit the copyright owner's control of the distribution of a particular
copy of a work to the first sale of that copy. Thus,
once a copy is purchased, the owner is allowed to lend or lease or sell
that particular copy without infringing on the copyright owner's rights
(note 1). The first-sale doctrine limits a
copyright owner's exclusive rights of distribution beyond the first sale,
but does not limit the owner's exclusive right of reproduction.
Samuelson believes the Working Group recommendations declare that "sharing
your copy of an electronic work with a friend is illegal because, in order
to send that copy to your friend, your computer will have to make a copy
of the document..." (Samuelson (1), p.
4) She believes "the white paper treats electronic forwarding as a
violation of both the reproduction and distribution rights of copyright
law." (Samuelson
(1), p. 2) Such an interpretation is a blatant misrepresentation of
the Working Group's discussion of first-sale rights and digital
transmission. Digital transmission of a copy, unlike lending a hard copy
of a text, graphic or phonorecord, involves both the distribution of that
copy and the reproduction of that copy. The Working Group does not
propose abolishing an existing right, but does point out that the current
first-sale model does not apply to digital transmissions that involve
reproduction of a copyrighted work in addition to distribution. (WP, p. 95) Instead,
the Working Group recognizes that the digital distribution of
reproductions could be lawful under the combined fair-use and first-sale
provisions. As outlined above, certain reproductions are legal under the
fair use provisions. Subsequent distribution of lawfully made copies
would be permitted within the limits of the first-sale doctrine.
TRANSITION
Discussion so far has focused overwhelmingly on legal nuances of
copyright doctrine. But regulating the Internet does not involve purely
legal issues. Therefore, government, industries, and users must
consider means other than legal declaration to dissuade undesireable
use of the technology. The hard-copy mentality of publication and
authorship is not valid in the context of the Internet; the world needs a
new paradigm. Relationships between authors and publishers are changing
fast enough to out-pace any detailed legislation. The government and the
Internet need flexible, enduring legislation, while authors and
publishers need market protection. Legal recourse is only part of a
viable solution that satisfies both sides.
note 1
Owners of copyrights in computer programs and sound recordings have the
right to control post-first-sale rentals of copies of their works;
owners of copyrights in other works do not. See white paper
discussion of multimedia works, pp. 41-45.
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Last updated April 25, 1996