* Ease-of-Copying In The Digital Age – Turning A Negative Into A Positive

Rather than worrying about ease-of-copying, owners of copyrighted works should use it to their advantage.

By Erik J. Heels

First published 4/29/1996; Seminar – Commercial Strategies for Intellectual Property, Patent, and Copyright Protection on the Internet; publisher: International Business Communications (IBC)

Outline

• Introduction – The Old Legal Dog Doesn’t Need to Learn New Digital Tricks
• The Letter of the Law
• The Problem – Ease-of-Copying
• One Solution – Controlling Distribution at the Source
• Another Solution – Print-and-Pay Copyright
  • Beneficial Direct Effects
  • Beneficial Side-Effects
• A Future Solution – A Truly Distributed Web
• Conclusion – Burden of Proof

Introduction – The Old Legal Dog Doesn’t Need to Learn New Digital Tricks

The Internet and online services make it easy for the end user to copy and distribute digital information. Owners of copyrighted works are rightly concerned about how to control illegal copying and distribution of their works. Rather than worrying about ease-of-copying, owners of copyrighted works should use it to their advantage. By using novel applications of existing copyright law, such as print-and-pay copyright, owners of copyrighted works can harness the power of the Internet and online services to their advantage.

Many assume that much of the law will have to be changed to deal with new technologies. I agree that some of the law will have to be changed to deal with some of the legal questions, but, for the most part, I believe that the majority of the legal questions can be solved by a straightforward application or extension of existing law. In other words, new laws are not necessary where “old” laws still apply.

It is often stated that since copying digital works is very easy to do, and since illegal copying of copyrighted works is widespread, then the copyright laws must be rewritten to deal with this “problem.” But is it really a problem? Is 100 percent enforcement of civil or criminal copyright laws necessary to achieve the desired result? What is the desired result? Is 100 percent enforcement of any law necessary to achieve it? Where is the evidence to support the proposition that artists are starving because of Internet copying? The Internet is a medium of publication. Rather than worrying about rewriting the copyright laws, we in the legal/Internet community should be fine-tuning what the language of the law means. We should also be implementing novel solutions that take advantage of existing law.

The Letter of the Law

Before we can begin to argue about whether or not new laws are needed for Internet commerce, we must determine if existing law applies. The heart of the Copyright Act (17 USC 106) is reproduced below.

“Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

1. to reproduce the copyrighted work in copies of phonorecords;
2. to prepare derivative works based upon the copyrighted work;
3. to distribute copies of phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and
5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.”

In fact, some people immediately refer to 17 USC 106 to see what rights are owned without 1) determining what the “work” is or 2) determining whether such work is covered by 17 USC 106 at all. For example, in the context of the Copyright Act, it is important to identify whether a digital work is “fixed” (17 USC 101) on a particular computer system before discussing whether or not illegal “copies” have been made. When you look at a computer screen, the image of the screen exists in your eye. When you browse through the World-Wide Web, an image is displayed on your computer screen. Is the former image “fixed”? Is the latter? Are either “copies”?

Another common mistake made by analysts of copyright law is the failure to distinguish between intellectual property and its embodiment. People speak of “owning” files. But, of course, files cannot be owned. Only rights with respect to those files can be owned. There is a world of difference between intellectual property (which are usually statutory rights) and its embodiment (e.g. a book, computer file, or painting). But that issue alone can fill a textbook. For example, see Stevens v. Gladding, 14 How. 528 (1854), where the court held that the purchaser of copper printing plates did not have the right to make maps therefrom.

The Problem – Ease-of-Copying

Digital works on the Internet (and on online services) can be easily copied and distributed without the permission of the author. This much is undeniably. This notion that ease-of-copying is a bad thing appears to have its roots in the writings of John Perry Barlow, one of the founders of the Electronic Frontier Foundation. In the March 1994 issue of Wired, Barlow asked, “If our property can be infinitely reproduced and instantaneously distributed all over the planet without cost, without our knowledge, without is even leaving our possession, how can we protect it?”

I would answer this question by asking more questions. Why do you feel that protection is necessary? What is the goal of protection?

Simply put, many consider ease-of-copying to be the Internet’s biggest liability. I view it as the Internet’s biggest asset. Publishing in paper is alive and well. There were more magazine starts in 1995 than in any previous year. Publishing on the Internet is alive and well. Publishers (such as Time, Internet World, and Wired) are “giving away” portions of their magazines online without hurting — and in many cases helping — sales of the paper-based product.

One Solution – Controlling Distribution at the Source

One way to avoid the problem of illegal copying on the Internet includes controlling the dissemination of digital works at their source. The creator of a digital work who complains to courts about the unauthorized copying of her works is not unlike the patient who twists her body in an awkward manner and then complains of back pain. The answer to both is the same: “Don’t do that.”

Publishers, artists, and composers have solved the “problem” of illegal copying by selling copies of digital works at appropriate (i.e. high enough) prices to identifiable customers. By controlling the distribution of digital works at their source, they remain profitable.

And even if an Internet user is able to copy, for example, The New York Times database from Lexis-Nexis, he/she would not be able to profit from this wrong. First of all, The New York Times is so well-known that any attempt to re-sell its Lexis archives would soon been discovered by the publisher or by others. Second, mere possession of the database is not enough. The value that The New York Times is able to add for its customers is only in part based on intellectual property. A nontrivial portion of the value-added lies in the ability of the Times to implement processes that keep that database current, accessible, and cutting-edge. Today’s Times is most valuable today, less so a day or two later.

Another Solution – Print-and-Pay Copyright

Another way to use existing law involves drafting novel copyright notices. For example, my book, The Legal List (TLL), is published according to a scheme I call print-and-pay copyright (http://www.lcp.com/The-Legal-List/TLL-home.html). It could also be called the honor system. The copyright notice for TLL states that the work may be freely copied from one electronic storage medium to another, but if it is copied to paper, the copier must pay a royalty fee.

Businesses concerned about ease-of-copying on the Internet can use ease-of-copying to their advantage. Print-and-pay copyright (a straightforward application of 17 USC 106, unlike shareware, a concept not firmly rooted in copyright or contract law) is a successful marketing/distribution/legal concept. Like the Times example above, its value-added is partially based on intellectual property, partially based on processes. The Legal List, Law-Related Resource on the Internet and Elsewhere (7th edition 1995) was the first book to implement print-and-pay copyright, and the concept was honored by the US Supreme Court and others. Others are now implementing print-and-pay copyright.

Print-and-pay copyright is consistent with the letter of the law and with the spirit of the law — the Internet spirit of providing free information — while also allowing for a reasonable compensation from those who want a paper copies of copyrighted works. I created The Legal List summer 1992 as a legal research guide for my studies at the University of Maine School of Law. I sent the first version of The Legal List via electronic mail to those who had requested it. The first, second, and third editions were given away . I devised print-and-pay copyright to recover some of my costs, self-publishing the fourth and fifth editions using this concept. Print-and-pay copyright proved to be viable, and in January 1995, Lawyers Cooperative Publishing, one of the nation’s oldest and largest legal publishers, contracted with me to write the sixth and seventh editions, which were both published in 1995. Print-and-pay copyright is a non-intuitive approach to distributing digital works, but the Internet is a non-intuitive medium. Despite (or perhaps, due to) “giving away” the full text of the book on the Internet, The Legal List was a best-seller for Lawyers Cooperative Publishing.

Print-and-pay copyright is a straightforward application of copyright law (unlike shareware, a legal concept not firmly rooted in copyright or contract law, to which print-and-pay copyright is often erroneously equated). The statutory copyright rights (see 17 USC 106) can be divided as the owner of the copyright desires, as long as the division of the rights itself violates no law. Many organizations, including the US Supreme Court, honored the print-and-pay copyright notice in The Legal List.

Print-and-pay copyright, like the World-Wide Web, is easier to demonstrate than to describe. Here is the print-and-pay copyright notice from Lawyers Cooperative Publishing for The Legal List (http://www.lcp.com/The-Legal-List).

“The Legal List is published as a paperback book, as an ASCII text-only file, and as a compilation of HTML files. All rights in the paperback book and in the compilation of HTML files are reserved. All rights in the ASCII text-only file are reserved, except the following:

I. ELECTRONIC COPYING. Permission is granted to copy The Legal List ASCII text-only file (The Legal List ASCII) from one electronic storage or computer system to another provided that 1) The Legal List ASCII is not modified; 2) this copyright notice is included with all such copies; and 3) you subscribe to the legal-list listserv list (via listserv@listserv.lcp.com) to minimize the proliferation of old versions of The Legal List ASCII.

II. OTHER THAN ELECTRONIC COPYING – PRINT-AND-PAY COPYRIGHT. Permission is granted to copy The Legal List ASCII other than as described in Section I of this notice (including, but not limited to, printing The Legal List ASCII or otherwise making paper copies of it) under the following conditions: 1) The Legal List ASCII may not be modified. 2) This copyright notice must be included with all such copies. 3) If The Legal List ASCII is copied other than as described in Section I of this notice (e.g. if The Legal List ASCII is printed or photocopied), the copier must pay $29.95 to Lawyers Cooperative Publishing and must notify Lawyers Cooperative Publishing that The Legal List ASCII has been so copied. Payment must be made in US dollars (check or money order only, payable to Lawyers Cooperative Publishing) and mailed to:

Lawyers Cooperative Publishing
Attn: Order Processing
Aqueduct Building
Rochester, NY 14694
USA”

A mathematical model is helpful here:

A = ALL copyright rights in TLL.

R = All copyright rights RESERVED by EJH
     (the "All Rights Reserved Except..."
     preamble of the Copyright Notice)

G = All copyright rights GRANTED by EJH

T = All copyright rights granted to the TEXT version
     subject to the conditions in Section I of the
     Copyright Notice ("electronic copying")

G - T = All copyright rights granted to the TEXT version
     subject to the conditions in Section II of the
     Copyright Notice ("other than electronic copying")

ALL rights is the sum of those RESERVED and those GRANTED:

A = R + G             (1)


GRANTED rights is the sum of SECTION I rights ("electronic
copying") plus SECTION II rights ("other than electronic
copying"):

G = (T) + (G - T)     (2)

For example, the right to copy the text-only version (T) does not imply the right to copy and modify. The text-only version may be copied to a WWW server as a text-only file only, not as an HTML version. An HTML file is clearly a derivative work, a work that falls within the scope of reserved (R) rights. The fact that TLL may look the same in HTML format on a WWW Server does not change the fact that the underlying HTML file (the bytes on the disk) is a derivative work.

Beneficial Direct Effects

Print-and-pay copyright has many direct benefits.

For businesses, it provides a viable alternative for distributing digital works on the Internet. What is “lost” in sales is gained in publicity and good will. Print-and-pay copyright allows publishers to leverage the Internet’s biggest strength, ease-of-copying, to their advantage. Publication of The Legal List is an example of how print-and-pay copyright works.

For consumers, print-and-pay copyright allows information to be free on the Internet. If a paper copy is desired, users can comply with the print-and-pay copyright notice and not worry about whether they are violation copyright laws since print-and-pay copyright is a straightforward application of copyright law.

In the case of The Legal List, print-and-pay copyright also contributed to the growth of the legal/Internet community:

• “At the Bar,” The New York Times, p. A23, 08/19/94 (“…many on the Net consider The Legal List the most authoritative guide of its kind…”).
• “Law and Order,” Internet World magazine, p. 68, 03/95 (http://pubs.iworld.com/iw-online/Mar95/feat68.htm) (“Anyone serious about legal research and resources need to get a copy of Erik J. Heels’s The Legal List, which has become the de facto source of legal and law-related sites on the Internet.”).
• “Legal Online Eagle,” Wired magazine, p. 196, 12/95 (“…a brilliant resource for the electronically inclined.”).
• “1996 Readers’ Interest Awards,” Law Technology Product News, p. 6, 12/95 (ranked 8 of 20).

Beneficial Side-Effects

Print-and-pay copyright has many indirect benefits as well.

Print-and-pay copyright was originally devised as a cost-recovery method. It has since proven to be a viable alternative for publishers seeking to distribute digital works on the Internet. What is “lost” in sales of the book is gained in goodwill and in marketing. Works published under print-and-pay copyright become their own advertising. Paper is the best medium for some forms of expression, the Web for others. If I want to find something in the paperback version of The Legal List, I look in the index. With the WWW version, I use the search capabilities of the Web site.

A Future Solution – A Truly Distributed Web

The French law journal NEPTUNUS (http://palissy.humana.univ-nantes.fr/CDMO/NEPTUNUS) has adopted print-and-pay copyright, and I will encourage other to do so. I further plan implement distribution of Web sites (including HTML files and CGI scripts) to multiple servers (via Usenet and otherwise), thereby eliminating the client-server bottleneck of the current Web. Popular sites frequently become overloaded, even those with high-speed (T1 and the like) connections. By making the same content available on numerous servers, Web performance will improve. I will try to convince publishers to implement print-and-pay copyright and other novel schemes with the ultimate goal of contributing to the development of a free-to-the-user, profitable-to-the-publisher, distributed Web.

Conclusion – Burden of Proof

The goals of the Copyright Act include encouraging creativity, protecting property interests, and discouraging unauthorized copying. Depending on whom you ask, one goal may seem more important than another. What is clear is that one law cannot be all things to all people. It is also clear that 100 percent enforcement of this or any law is never necessary to achieve the desired result, whatever that result may be.

Ease-of-copying is a reality in this the digital age. The challenge for publishers lies in implementing novel solutions to Internet publishing that take advantage of the power of this new medium. And for those who suggest that the sky will fall because of ease-of-copying, I suggest that the burden of proof on this issue is theirs. That facts suggest that paper publishing and Internet publishing is alive and well.

The first users of coffee cooked the beans and threw away the water. That’s called not knowing what your product is. Similarly, the challenge for publishers in the digital age is to know your product. It is, in part, intellectual property. It is, in part, the embodiment of intellectual property. And it is, in part, the processes that create and embody the intellectual property. The time is now for publishers to leverage the Internet’s biggest asset — ease-of-copying — to their advantage.