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New Wine, Old Bottles: The Case of the Evanescent Copy

© 1996 David G. Post. Permission granted to redistribute freely, in whole or in part,with this notice attached.

David G. Post
American Lawyer, May 1995

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 Betamax case (Sony v. Universal Studios), where 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 a number of Congressmen 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"), one of the participants at that meeting, Senator Charles Mathias, 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 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 -- 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 -- is still with us, perhaps more than ever. With appropriate fine-tuning, copyright will accommodate these new technological developments as it has accommodated earlier innovations, ranging from the invention of 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: 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: Why Everything You Know About Intellectual Property is Wrong" (Wired, March 1994) ("Intellectual property law cannot be patched, retrofitted, or expanded to contain the gasses of digitized expression any more than real estate law might be revised to cover the allocation of 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 increasingly includes some very large and powerful entities in the "information economy." 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.

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 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 with at least some degree of clarity the activities that do, or do not, constitute the "making of a copy." There are plenty of nice questions cropping up here, of course, to keep copyright lawyers busy. But a relatively easy line can, and has, been drawn, requiring that a reproduction of a copyrighted work be tangible before the law will recognize it as a potentially infringing copy; the U.S. copyright statute, 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 Mr. 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, however, proving troublesome 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 Lexis Counsel Connect or Prodigy or any other commercial online service provider, or -- watch those metaphors! -- when you "move" around the Internet to "visit" different sites in order to view the material there on display, what really happens 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 inbox, or a recent comment posted on some discussion forum, or the latest Supreme Court opinion or Microsoft's price list. The file is them transmitted back to your computer, loaded into memory, and displayed.

Have you for legal purposes made a "copy" of the file that was sent back to you? From the average user's perspective, it may seem most analogous to browsing through a hardcopy version of The Firm. The only difference, you might think, is that you are reading on a computer screen instead of on paper. But two courts -- the Ninth Circuit in MAI Sys. Corp., 991 F.2d 511 and the Eastern District of Virginia in Advanced Computer Services, 845 F.Supp. 356 -- have in fact concluded that this transitory "fixation" of a computer file in memory constitutes copying within the meaning of the Copyright Act, and this view has been adopted by the government's intellectual property working group.

If the very act of getting a document to your screen is considered the "making of a copy" within the meaning of the Copyright Act, then a high proportion of the millions of messages travelling over the Internet each day potentially infringes on the right of some file creator -- an "author" in copyright terms -- to control the making of copies. And, if the very act reading such documents on line involves copying, then some form of a license -- permission from the copyright holder -- would, in this view, be required for virtually every one 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 online version of today's Wall Street Journal, Dow Jones won't call me an infringer for readig 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 when I find an article in the Journal that is particularly interesting, and post it to a Usenet discussion group on the Internet? In this view, not only am I infringing by re-transmitting this material, but so too are all of the discussion group participants, none of whom, after all, have 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"?

Under these decisions, 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 decisions cannot merely be dismissed as idiosyncracies, 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 surreptitiously placing a copy of Grisham's novel 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, and 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' "Era of Promiscuous Publication." 


© 1996 David G. Post. Permission granted to redistribute freely, in whole or in part,with this notice attached.

Contact David Post by e-mail at Counsel Connect: david.post@counsel.com