On Line Copying Is Not Fair Use

Joshua Kaufman © 2000

A copy is a copy is a copy! It does not matter what the format, you need permission to make a copy. Copies take many forms such as photographic, mechanical reproduction, photocopies and electronic copies. When you make a copy and save it on your hard disk that is no different than making a copy in a photocopier. You’re making a copy when you attach an attachment to your e-mail. You are also making a copy when you upload or download a file. Courts have held that when anything is loaded into your computer's memory (RAM) without permission it is a copyright infringement. One court has gone so far as to hold that merely viewing an image on your computer is making a copy. That court held that if you were viewing someone else’s web site without authorization you are committing a copyright infringement.

Many associations, as a service to their members, copy articles and materials which they find online and post them to their own web sites. Most of the time the question as to whether such a posting is permissible is not even entertained. Associations simply assume that anything found on the web may be copied or since they are nonprofits and are not charging for the copied articles their activities must be some type of "fair use". "Fair use", is an exception to the exclusive rights granted to a copyright owner under copyright law. There are certain uses which as a matter of public policy will tromp the copyright owner's monopoly. Fair use is one of the most misunderstood concepts in copyright law and is the defense of last resort of every infringer.

It is safe to say that if an association copies an article in its entirety and posts it to their web site it is a copyright infringement. Such action is generally not going to be found to be a permissible fair use. This is true if the association is a tax-exempt organization, if there is no fee charged to any individual viewing the web site and even if the association does not making money by posting the article. It is also true when if the association couches its efforts in educational terms.

If an association wants to provide the information contained in an article to its members it may summarize the article and provide a hyperlink to the actual article. In that manner it can inform its members of all important information and news and yet did not violate anybody’s copyright. Courts have held in a fairly consistent matter that hyperlinks do not require permission and are not violative of anyone’s rights.

A recent case illustrates these points far better than a hypothetical. An Internet bulletin board operator posted articles from the L.A. Times and the Washington Post on its site. The defendant in this case was an entity called, Free Republic, which operated the www.freerepublic.com, web site on which members posted news articles with their comments for other visitors to read and further comment upon. The Federal court, in this instance, found that this was not a fair use. The court analyzed the case using the statutory factors that a court must look to in order to decide whether or not to any specific use is a fair use. On aspect the court looks to is the purpose and character of the use. This factor assesses whether the use is commercial or is for nonprofit educational purposes. The court also looks and determines whether the new work merely supersedes the original work or adds something new to it. When something new is added it is considered transformative. In discussing the case the court observed that both the Washington Post and L.A. Times had their own on- line publications. After reviewing the various web sites that court concluded that there was nothing transformative about copying the entire work verbatim. Free Republic’s argument that the visitors comments were transformative was rejected by the court. The court also rejected the argument that copying the articles was necessary to facilitate discussion, criticism and comment. The argument was made that since Internet links often expire after week or two copying and the entire articles was therefore necessary. In rebutting this argument the court pointed out that the links expire because the newspapers charge for reviewing the articles after the first two-week period of free viewing lapses.

The court went on to dismiss Free Republic’s claims that because it is a nonprofit organization and made no money from operating its web site it should be allowed to reproduce the articles. The court stated that the inquiry which should be made is not whether the sole motive of the user is monetary gain but whether the user stands to profit from exploitation of the copyrighted materials without paying the customary price. The court found that the posting of the articles assisted the web site in attracting visitors to the site. This conduct was beneficial to the organization since it used the site for the commercial purpose of promoting the association whose members pay dues and also generated advertising revenues.

The court in this case referred back to the now famous Texaco case. In the Texaco case researchers at Texaco made just a few photocopies of a newsletter and circulated them in the research department. The court found that even in making a just a few copies of a newsletter for research purposes was an infringement. It was held to be an infringement even if the copier , Texaco, derived no direct revenue from its photocopies of articles. Texaco reaped indirect benefits from its photocopies in its not having to buy additional subscriptions. Indirect economic benefit weighs against a finding unfair use. Similarly in this case posting articles on its web site after the free two-week period allowed visitors to the site to avoid paying customary price charged by copyright owners for the works.

The court also looked to the nature the copyrighted work. The more factual and functional a work is the less protection it receives under copyright law. The newspapers' articles were news articles and predominantly factual and as such would enjoy less protection than other types of work. However, since the entire articles were copied, more than the unprotected facts were extracted from them. Therefore this factor also weighed in favor of the copyright owner.

Finally the court looked at the effect of the use upon a potential market for value the copyrighted work. Here the court concluded that an adverse effect on a potential market for the articles have been demonstrated. If people could view them for free on Free Republic’s site they would not then purchase them from the L.A. Times or Washington Post's archive. Nor would they purchase the hard copy of the newspapers.

The new Republic also raised First Amendment protection arguments which the court dismissed.

Individuals and entities often mistakenly believe the copyright laws have been suspended or relaxed on the Internet. This is not true. Courts have been particular supportive of intellectual property owners when it comes to online infringements. The courts realize the vast potential for copyright abuse through the Internet and are reacting by providing assistance to copyright owners in their never-ending quest to prevent unauthorized copying of their works.

Much of the online copying is not done with intent of violating anyone’s rights but simply out of ignorance of the law. Copyright infringement is a strict liability violation. What that means is even if you infringe on someone’s works innocently it is irrelevant. The often quoted statement, "Ignorance of the laws no excuse" may be a cliché but it is very true when it comes to copyright infringements.

The best advice one can give is – Ask before you post!

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Joshua Kaufman, esq. is a partner in the DC office of Venable, Baetjer, Howard & Civiletti. He has a national practice focusing on copyright, intellectual properties, e-commerce, the internet , art, literary and entertainment law..