Intellectual property law has a history of clashing with new technologies. In the early 1900s, for example, when player pianos were all the rage, the U.S. Supreme Court decided that the perforated music rolls fed into player pianos were not music—essentially because they didn’t look like sheet music and performed a mechanical function. The ruling meant that sellers of the music rolls did not infringe the copyrights of the composers whose music was played by means of the rolls. The copyright law was eventually changed to address that unfair situation, but the copyright/technology clash has continued with the advent of video players, Napster, and CD burners.
The result is an unsatisfying patchwork of legislative action, court decisions, and lobbying on the part of writers, artists, photographers, publishers, and musicians who sometimes embrace and other times feel threatened by technological advances. Unfortunately, that means there is often no clear-cut answer to the question of what you can legally take from the Web: it depends on what you take, why you take it, who you are, and what technology you use. Among other factors, the fair-use defense of copyright infringement depends on whether or not the copying is commercial in nature or for nonprofit educational purposes, the amount and substantiality of the portion used, and the nature of the copyrighted work.
Consider the Perfect 10 case decided (but only in part) by the U.S. Court of Appeals for the Ninth Circuit in San Francisco last spring. Perfect 10 operates a Web site where subscribers pay a monthly fee to view pictures of nude models. When unauthorized full-size copies of Perfect 10’s pictures made it onto various other Web sites, the Google image search function returned thumbnail versions of the copies. Clicking on the thumbnail image then directed you to the Web site that featured the unauthorized copies of the pictures. Perfect 10 sued Google (and Amazon) in a case closely monitored by libraries, various artists guilds and societies, the Motion Picture Association of America, and various Internet coalitions.
In the decision, the court allowed as fair use Google’s display of the thumbnail images because of what was copied, why it was copied, and what Google is. Google’s actions of linking to the full-size images, however, may or may not constitute contributory infringement depending upon whether Google possesses the technological ability to, in the words of the court, ”take simple measures to prevent further damages to Perfect 10’s copyrighted works and failed to take such steps.” And even if Google loses that fight, another law, the Digital Millennium Copyright Act, may help Google at the retrial of the case.
Intellectual property lawyers will continue to follow this ongoing case closely, but don’t expect any firm rules to flow from its outcome. Even so, what you take, why you take it, who you are, and what technology you use are at least good starting points for ascertaining what you can and cannot legally take from the Web.
What You Take
If you copy anything that is not yours, a potential copyright-infringement problem should raise a red flag. You already know you cannot copy songs, but what about text, pictures, and drawings? Copying these works and just crediting the author will not cut it. Copying only a little of the text matters in a fair-use defense, but that does not mean that copying only one picture or a single drawing from a Web site is fair use, since each picture or drawing is itself copyrighted. That’s not the end of the line, however, since fair use also requires an analysis of several other factors, including�
Why You Take It
The main reason Google got away with uploading the Perfect 10 thumbnail pictures was because search engines like Google provide a social benefit. Fair use also favors criticism, news reporting, teaching, scholarship, research, and other activities of benefit to society.
Don’t take this too far, however. Texaco got into trouble in the early 1990s when it subscribed to various technical journals and copied articles from those journals for distribution to Texaco’s scientists instead of buying subscriptions for all the scientists. A court held that this was not fair use, even though the copies were made for research purposes. Teachers and the press have a better shot at a viable fair-use defense than academics employed in industry, which leads us to the third factor�
Who You Are
If you are employed in a for-profit enterprise, be careful of touting fair use as a knee-jerk defense, because fair use is typically not for you. If your use of a copyrighted work is commercial in nature, that is going to count against you. And the jury is still out on whether bloggers are a viable species of the press and enjoy the same fair use and First Amendment rights. Note, too, that even the press cannot generally include someone’s copyrighted material in their publications unless they pay for it or some kind of First Amendment right is relevant.
What Technology You Use
In the Perfect 10 case, it seemed to matter to the court that Google only linked to other Web sites that displayed the full-size photos, even though a non-tech-savvy consumer might think he was looking at the pictures on Google’s Web site. The court opined: ”While in-line linking and framing may cause some computer users to believe that they are viewing a single Google Web page, the Copyright Act, unlike the Trademark Act, does not protect a copyright holder against acts that cause consumer confusion.” It is still possible, however, that Google might be held liable as a contributory infringer—that’s how Napster got into trouble when the court found Napster facilitated copyright infringement by users of Napster.
If a copy of something is made the old-fashioned way by a photocopy machine or via digital technology, the copyright-infringement flag is raised. But even linking to an unauthorized copy can be problematic.
Other Factors
To determine fair use, the effect on the market for or the value of the copied work are also considered. This means that if what you copy is something that is sold (for instance, online journal articles of the IEEE), a fair-use defense is probably not available. Finally, it is okay to use digital images and text with permission, assuming the party giving the permission has the right to do so. A lot of stuff on the Web can easily be copied, but note that even a typical news story and its pictures, for example, cannot legally be used at all. The standard Associated Press ”all rights reserved clause” says, ”This material may not be published, broadcast, rewritten, or redistributed.” Other Web sources of images and data, however, may freely allow copying via their Web site user agreements.
Finally, do not confuse copyright infringement with plagiarism. Repeating someone’s words and ideas without credit is plagiarism, but plagiarism is not generally actionable in court. Conversely, individual phrases, slogans, formulas, ideas, and raw data are generally not copyrightable. Also, it’s a mistake to think something can be copied just because there’s no copyright notice. Copyright protection attaches to a work when it is created, and a copyright notice is not needed.
In the end, fair use is not a pretty picture, because there are no absolutes: fair use involves a balancing test instead of a rigid set of rules. What people think is fair use often is not, and new technologies only muddy the waters further.
About the Author
KIRK TESKA is an adjunct law professor at Suffolk University Law School and is the managing partner of Iandiorio & Teska, an intellectual property law firm in Waltham, Mass. His book, Patent Savvy for Managers , is now available online and at most major bookstores.
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