IP: Re: Copyright and Fair Use

[Dave Farber <farber () central cis upenn edu>]

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