Copyright 3

[Steven Weisenburger]

Didn't know I was issuing a "discursive challenge."   Do have some
further comments on the issue of copyright, though.

First, where I'm coming from:  a year's work on a committee at my home
university, a committee charged to review current state of the law, and
university policies and systems, thus to make recommendations about how
to possibly protect the institution from litigation.  I'm the token
humanist; the rest of the group are techies and law school profs.  It's
been an education, though.

So:  grant  that "information wants to be free" and that we're living
through uncertain times, w/r/t these legal questions.  Nevertheless a
consensus of legal opinion exists out there, and recent case law
does set some standards.

Some good recent texts:

the article by C. Wolf and S. Fabrizio in THE NATIONAL LAW JOURNAL
for 31 Oct. 1994:  authors warn that online providers and BBS
operators _can be held liable_ for copyright infringements, and that
U.S. Courts have proven quite unfriendly in recent cases.  Wolf &
Fabrizio grant that providers will ultimately have to look to these
same, so-far-unfriendly courts for standards, and therefore they
caution all institutions to be very tight, at least for now, in
regulating or at least cautioning individual users.  Article is full
of good case law cites.

Among those cites, consider the instance of American Geophysical
Union v. Texaco Inc.  In this case a Texaco scientist copied, and as
I recall scanned into diskfiles a number of geological articles that
were copyrighted by the AGU.  Also, it was proven that he _was not
even using these articles in his current research_ but that he just
wanted to archive them.  On appeal, the judgment was upheld for
AGU; damages were something like 20 thousand dollars . . . a paltry
amount.  But the case is said to have sent a chill through legal
circles because of its remarkably conservative interpretation of
both the fair use clause and copyright law in general.

Check out as well: Edward Cavazos et al, CYBERSPACE AND THE LAW
(sorry, I don't have the full bibliographical stuff right here).
The book dates from 1994, I think, and it's a good summary of the law
up till about early-1994.

Then we've got the Clinton Administration's "Information Infrastruc-
ture Task Force," whose report issued in late-Fall 1994 makes certain
recommendations that are currently being taken up by Congress.  The
news here is that the U.S. will certainly be following the E.C.
nations in _strengthening_ existing, traditional copyright laws, and
depending on existing case law in dealing with Information Superhigh-
way cases that come up in the future.   Again, the message seems to
be:  tread very cautiously through the e-labyrinths.

I'd also like to reply more directly to Brian Stonehill's comments
re:  Fair Use.  He quite accurately refers to the three basic
criteria, which hold that to qualify as fair use a quotation must
not comprise the entirety of a piece, it must not usurp the market
for a piece, and it must not appear w/out permission of the copyright
holder.

Okay.  By these standards the specific instances that originally
prompted my warning about Copyright Infringement would put people in
danger of litigation.  Siegal's "Who is Thomas Pynchon" article, when
quoted in its entirety, w/out Siegal's permission, was in my opinion
a clear infringement.  For, couldn't Siegal, if contacted about it,
simply reply that its publication as an e-text essentially turns the
piece into a public domain text, and usurps any future profits he
might make on it--for example, if someone wanted to pay him to put it
in an anthology of pieces on Pynchon?  That was exactly the point of
the Court's ruling in AGU v. Texaco:  the scientist had usurped the
future market for those pieces.

Take the case of Pynchon's "Nearer My Couch" article for the NYTBR.
This piece was recently reprinted in a little illustrated edition
that included the other six "deadly sin" articles.  The publisher of
that edition could very well charge infringement of its rights to
be the only authorized reprinter of that Pynchon work.

One key is, the courts have held that even in not-for-profit uses of
copyrighted materials, the key is that one _must ask for permission_.
The creator of a copyrighted work must have the right of refusal, if
it involves reproducing the work in its entirety.

Or, interestingly, even parts of it.  We on the committee were
particularly stunned to learn the details of a case involving NEWSDAY
magazine which was sued by a photo archive, FPG International.  The
case involved NEWSDAY's use of a _part_ of a copyrighted image that
they had retrieved out of cyberspace somehow (I forget the details).
Evidently the magazine didn't even know they had a copyrighted work,
and so they had no demonstrable _intent_ to pirate it; they were
simply negligent.  The reason we were knocked out by this was, we
were given a tour through some of the stuff available on the
Internet:  the usual copyrighted Playboy centerfolds, as well as
video outtakes from soft-core porn that was also copyrighted, and
so forth.  One example had been put on a BBS by an undergrad
working out of his dorm room on our campus, blithely using his
Universtiy of Kentucky e-address . . . and making us vulnerable as
hell of course.

Okay I'm gonna lay off, right here.  I've been hip deep in this
stuff since September and I find it all both interesting and rather
tiresome, I guess because the hopeless romantic in me believes that
information wants to be free, and I find the calls for policing the
information superhighway rather reactionary, too.  I wrote
initially, though, because it seems pretty clear to me that
indiscriminate users of the Internet do indeed put other, innocent
people in jeopardy when they scan (or keyboard) works into files
and send them out on the net.

Keep cool, but care, then?   Something like that . . . .