Interesting People mailing list archives
IP: Re: Copyright and Fair Use
From: Dave Farber <farber () central cis upenn edu>
Date: Sat, 13 Apr 1996 16:36:19 -0400
Posted-Date: Sat, 13 Apr 1996 14:40:33 -0400 Date: 13 Apr 96 14:38:33 EDT From: "Susan M. Kornfield" <75027.1120 () CompuServe COM> To: Lorrie Faith Cranor <lorracks () dworkin wustl edu> Cc: David Farber <farber () central cis upenn edu>, "Bernard A. Galler" <galler () umich edu>, Laura Gasaway <unclng () email unc edu>, Lydia Pallas Loren <102720.465 () CompuServe COM> Subject: Copyright and Fair Use Dear Ms. Cranor: I read with interest your message to David Farber regarding actions by an attorney for the Washington Post, advising your department that it was in violation of the U.S. copyright laws by virtue of your department's posting on its Web page of a three year old article from the Post. The Post attorney is wrong. Your use is clearly supported by the U.S. Copyright Act and Supreme Court case law. I received a copy of your message from Bernard Galler. In Bernie's role as a computer scientist, professor, expert witness in software and copyright, and scholar of contemporary intellectual property issues; and in my role as a copyright attorney (with a recent victory in a copyright fair use case against the publishing industry which is going to be reheard by the U.S. Court of Appeals for the Sixth Circuit), Bernie and I share information and opinions about copyright, fair use, the Internet, and the like. I am writing because of two statements in your message. Although you thought the use of the Post article was a fair use, you thought that by posting it publicly you were "authorizing unlimited reproduction" and the Post was "justified in asking that the article be removed." You have unwittingly legitimized the unlawful position taken by the Post and other copyright owners. While posting an article may make it viewable by many people, and while posting an article may facilitate copying of the article, it does not follow that the posting ITSELF is the "authorization" of "unlimited" reproductions. What is actually done with the article (by those who post it and by those who access it) is the conduct that is scrutinized for appropriateness, not necessarily the making available of the information. (While certain forms of liability may attach to making information available if it is ultimately used in a manner that violates third party rights, it is not, under these circumstances, authorization for others to violate those rights). Secondly, with regard to your comment that the Post attorney was "justified" in asking that the article be removed, there is no doubt in my legal mind that there is NO justification for having the article removed. The publishers hope that people such as yourself, your department head, other users, and creators of copyrightable works will do whatever the publishers demand. Then the publishers will use behavior that conforms to their demands as legal evidence that the copyright law is what the publishers say it is, and not what the law actually says. Indeed, in my current copyright case, the publishers argue that certain statements of committees are a substitute for the actual language of the fair use provision of the U.S. Copyright Act -- that is, that courts should give greater weight to what committees think than what Congress does. Such rhetoric is dangerous, wrong, and a direct threat to your and my rights as users of copyrighted works. If the educational community accepts the publishers demands as a substitute for their rights, it will, indeed, lose its academic fair use rights. I have spent many years as an intellectual property lawyer. I have spent the past four years on a fair use case examining whether professors and students lose their rights of fair use if their course excerpts are copied by a copyshop.. In that capacity, I have worked with one of the country's leading copyright scholars, Professor L. Ray Patterson, who in turn has worked with ten other copyright scholars and professors to submit a scholarly brief to the U.S. Court of Appeals in support of my client's position. We have submitted hundreds of affidavits from authors and professors and students in support of our position. We have submitted the affidavit of an individual who negotiated on behalf of educators during revisions to the current U.S. Copyright Act. My views reflect the considered judgment of that portion of the copyright community who create the new works of scholarly authorship in this country, and who use them. We hope that people will not give in to the tactics of the publishers. Please contact me if you have any questions. And good luck. Susan M. Kornfield (313) 930-2488 (voice) Bodman, Longley & Dahling LLP (313) 930-2494 (fax) 110 Miller, Suite 300 Ann Arbor, Michigan 48104 . To: farber () central cis upenn edu
FYI, The Washington Post has its lawyers on the offensive, trolling the Web for copyright violations. Yesterday my department chair received a faxed lawyer letter from the staff attorney of the Washington Post complaining that our cec.wustl.edu web site "currently has posted at least one Washington Post article." The letter asked that we immediately "cease and desist from further use of this or other Post articles without The Post's permission." After some research it was determined that said article was an article in the "Computers and Society Articles Collection" which I maintain for a course I teach. The article in question was from May 26, 1993 and described what happened after Mike Godwin lost most of his possessions in a moving van fire. At this point I do not remember where I got the article, but it was likely off of a newsgroup or mailing list, perhaps your IP list. While I respect the Post's desire to enforce their copyrights, it struck me as rather strange that they went to the trouble of tracking down my department chair's name, address, and fax number before making any attempts to contact me (or my class computer account) via email. It seems obvious to me that if one is concerned about an article at http://cec.wustl.edu/~cs142/articles/.... one might try contacting cs142 () cec wustl edu or webmaster () cec wustl edu to ask them to remove the article. In this case it appears they must have poked around a bit to determine what department I was in before sending the letter, which means they must have read other web pages in the class account and could easily have come up with my name and personal email address. BTW, back when I put this article in my class web, I believe it was probably legal to do so under fair use, as the only people who would have access to it were those who could find the URL, which was just my class. And photocopying a newspaper article for one's class is generally considered fair use. Three years later everyone and their mother is on the web and catalogs like Altavista make it possible for people to find the URLs for my class web pages. Thus, by putting the article on my class web page I am essentially posting it publically and authorizing unlimited reproduction. Thus, I believe the Post is justified in asking that the article be removed (and I have removed it) -- although I'm not sure why they cared enough about one three-year-old article to go to such trouble. It's their method I criticize. Lorrie Cranor
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