Until a few years ago, the copyright landscape consisted of several easily identifiable islands--books and articles were different from music, and music was different from software. The advent of the World-Wide Web changed all that. Now media of all sorts can be posted on the Web. The boundaries between articles, music, and software are no longer clear when a single work can contain all three.

What this means is that ethical issues that used to be faced only by professionals are now faced by nearly every computer user. In the old days, only publishing houses had the resources to make enough copies of a document to send it all over the world. Now any ISP subscriber can post a Web page that can be seen from anywhere. One used to need specialized equipment to make color copies of artwork, but now it can be done by home appliances costing only a few hundred dollars.

Not only does digital technology make it easy to copy works; it also makes it easy to disguise the true authorship. With print technology, it is expensive to make it seem like you are the author of a work when you are not. You would have to physically alter a large number of books, or republish them at your own expense. With electronic works, you just need to copy a file and substitute your name for the author's name, or frame the author's document in a Web site bearing your name

Hence, the computer professional needs to know not only the law relating to software copyright, but how the copyright law affects other works as well. The computer field is so new that software copyrights haven't had the chance to expire yet. That's not true of copyrights on other works. The Sonny Bono Copyright Term Extension Act of 1998 provides that the term of a copyright is the life of the author plus 70 years . If the author cannot be clearly identified, the term is 95 years from first publication or 120 years from the date of creation, whichever is shorter. What that means is that anything created during your lifetime is not likely to pass into the public domain during your lifetime. Certain well known works like the Declaration of Independence, 19th-century novels, and the Bible are no longer protected by copyright (although new translations of the Bible definitely are protected). Posting a copyrighted work on the World-Wide Web involves making a copy, and is definitely a violation of copyright.

The 1998 law was the 14th time that Congress had extended the term of a copyright, which was originally 14 years, with the opportunity to renew for 14 more years (a total of 28 years). This law was not controversial when passed, but driven by the controversy over downloading music and other artistic works from the Internet, public awareness of copyright has burgeoned since then. A suit against the law was filed by Eric Eldred, who intended to build a digital library of works that would have passed into the public domain if the law had not been enacted. Eldred charged that repeated extensions of the term of copyright on existing works do not fall under Congress's authority "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (Article I, Section 8 of the U.S. Constitution). The case of Eldred v. Ashcroft went all the way to the Supreme Court, which ruled in a 7-2 decision in January 2003 that the law is constitutional, since the term of copyright is still limited by law.

More works are copyrighted than you might think. Since 1976, a copyrighted work hasn't even had to carry a notice that it is copyrighted. Any creative work--whether it is a play, an advertising jingle, or a piece of e-mail--is implicitly copyrighted. If you copy it, the copyright holder could take action. Whether or not (s)he would take action usually depends on how much harm is done. If your infringement causes fewer copies to be sold, or realistically could damage the market for an item, expect someone to try and seek compensation. If you copy someone else's hastily composed Usenet post, no one is likely to take much notice.

And copyright holders are enforcing their rights. Webmasters frequently receive notices to "cease and desist" from posting some materials, and some are threatened with lawsuits. Try posting song lyrics, and you are likely to hear from the National Music Publishers Association. You can post comic strips on your office door, and no one will bother you. Post them on the Web, and you may hear from the author.

The Jesse Jordan case. Consider the case of Jesse Jordan. As a freshman at Renssalaer Polytechnic Institute in 2002, he wrote a search engine called Chew Plastic, which could be used to search for many types of content, including music. It indexed about 1 million files, of which about 2/3 had something to do with music. It quickly became the second most popular search engine on the RPI campus. On April 3, 2003, he received a subpoena from the RIAA charging him with willful copyright violation. The RIAA demanded that they pay him $15 million. Jesse, who wasn't making any money off of this, said he didn't have it. So the RIAA asked him, "How much money do you have?" He said (according to Larry Lessig), I've saved $12,000 for college. So they said, OK, pay us that $12K and we'll drop charges.

Most legal experts thought that Jordan would have prevailed in court, but it would have cost him $200,000. One complicating factor is that Jordan may have had copyrighted works illegally on his own computer. But some have asked, How is this different from what Google does?

Fair use. Reproduction of a copyrighted work isn't always illegal. There is a "fair use" exemption in Section 107 of the copyright law, which says,

"The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

There are four factors to be considered in deciding whether a use is fair.

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Note that this doesn't say that all educational uses are fair, or that any use of a small part of a work is fair. All it says is that if you are sued for infringement, these factors will be considered by the court in deciding whether or not you have infringed the copyright. For example, if I post an entire textbook to the Web because it is educational, I have definitely infringed the copyright.

A major difficulty with fair use is that the courts have a lot of latitude in applying the tests of fairness. Courts generally favor educational uses over commercial uses, but that is not a wholesale license to copy. Generally a use of a small portion of a work is OK, but that may not be true if the small portion is the "heart" of the work. That is often a problem with excerpts from movies, where the person copying the work is likely to take the most unique, creative, or memorable portions. Similarly, a court will look less favorably upon use of a commercial work intended for the educational market (e.g., a textbook) than a commercial work intended for another market (e.g., a newsmagazine).

Distance education courses like this Web version of CSC 379 raise several issues of fair use. In a traditional classroom, it is normally permissible to recite a play, show a film or video, or display a work of art. When we go beyond the confines of a single classroom, we begin to run into questions. Is it OK to transmit these items beyond a classroom? The 1976 copyright act set rules that applied to closed-circuit television (the predominant mode of distance ed at the time), but left several unanswered questions regarding delivery over the Internet. Many of these questions are addressed by the new Technology, Education and Copyright Harmonization (TEACH) Act signed into law on November 2, 2002. This law explicitly permits the following works to be used in distance education:

• Performances of nondramatic literary works;
• Performances of nondramatic musical works;
• Performances of any other work, including dramatic works and audiovisual works, but only in "reasonable and limited portions"; and
• Displays of any work "in an amount comparable to that which is typically displayed in the course of a live classroom session."

Along with distance education, "electronic reserves" are a way of making educational materials available at a distance. In Week 1 of this course, we used chapters from textbooks made available via electronic reserve. Libraries are allowed to make their collections available to students who visit the reserve room, but what about students who access electronic reserves via their computer?

There aren't any laws that specifically address fair use in electronic reserves , but there are guidelines negotiated by the Conference on Fair Use (CONFU). These guidelines say that electronic reserves should constitute a small part of the reading material for the course, that access should be limited to students taking the course, and that the same materials should not be used over and over in the same course unless permission is received from the copyright holder.

The Digital Millennium Copyright Act. Undeniably, new electronic technologies have tilted the playing field, and left traditional rules increasingly obsolete. Copyright holders worry that their rights will become meaningless when users can make copies with the click of a mouse. They have responded with technological defenses against copying, mainly through encryption of their works. Users worry that these technological defenses will erode their fair-use rights, making it impossible, for example, to copy a DVD to a laptop's hard drive to watch a movie on a plane without taking along a DVD player.

In 1998, Congress passed the Digital Milennium Copyright Act to address these concerns. The act makes it illegal to distribute technologies, products and services used to defeat technological means of controlling access. It has limited exceptions, and applies only to devices whose primary purpose is to defeat protection. However, critics charge that its reach is too broad. Two cases illustrate the point.

In 2000, the recording industry's Secure Digital Music Initiative (SDMI) challenged computer hackers to break six technologies devised to protect digitally recorded music. The "hackers" were offered a prize of $10,000 for each technology they were able to break, and were invited to "show off" their skills. Princeton CS professor Edward Felten and his colleagues broke four of these technologies. But when they attempted to present their results at the Fourth International Information Hiding Workshop in April 2001, they were threatened with legal action by the secretary of the DMI, who is also the head of the litigation department for the Recording Industry Association of American. This case spawned spontaneous expressions of support from across the computer and legal professions, and the SDMI later backed down, allowing Felten to present his work at the Usenix 2001 Security Symposium.

In August 2001, a Russian computer programmer, Dmitry Sklyarov, was arrested and charged with violating the DMCA for circumventing electronic book protections. Sklyarov wrote a program for his employer, Elcomsoft of Moscow, that allowed electronic book users to bypass encryption protection on Adobe's eBook Reader software. One use of Sklyarov's program is to transfer e-books from a personal computer to a handheld device. Sklyarov was arrested when he visited the U.S. to speak at a computer security conference, despite the fact that his software was not illegal in Russia. He was allowed to return to Russia, but still faced charges that could result in five years in prison. Later, he cut a deal with prosecutors to testify against Elcomsoft in exchange for immunity. On December 17, 2002, Elcomsoft was found not guilty of violating the DMCA, but since this was in a trial court and not an appellate court, it did not set a precedent for future cases.

In addition, libraries fear that that the first-sale doctrine may not apply to electronic materials. This doctrine allows the lawful purchaser of intellectual property such as a book, CD, or software program to sell, give away, or donate the item without permission of the copyright holder. Under the DMCA, it is not certain whether this right still applies. Obviously, as more materials are produced in electronic form, libraries would be seriously hampered if it did not.

These cases have led to charges that the DMCA stifles computer security research, especially because the same techniques that break copy protection may also have applications in other fields. However, the act appears to have considerable support in Washington. The U. S. Patent and Trademark Office did recommend that the law be amended to legalize making backup copies, but it said that it could not issue a recommendation on digital first sale at this time.

Alternative intellectual-property models. Attempts at restricting the rights of content holders have run into a political brick wall, given the economic interests of the entertainment industry. Reformers such as Stanford University law professor Larry Lessig have therefore turned to voluntary action, giving content owners a way to grant consumers some--but not all--rights that copyright law gives the owners. This movement has its roots in the free-software movement; Richard Stallman's copyleft lets consumers use a work for free, but requires all modified and extended versions of the work to be free as well. This is too much for some content providers, who may want to use the "free" work without also distributing their work for free. So Creative Commons allows content owners to select from a smorgasbord of rights to grant to consumers (or not), rights such as the right to use it in commercial works or make derivative works.

Linking. What about linking one document to another? At first glance, everything that someone publishes on the Web is put there so that other people can see it. So it should be perfectly OK to link to that material, since that just helps others it, right? Not so fast. While most uses of linking are quite ethical, there are a number of exceptions.

We've already talked about copying a document wholesale, and learned that it would violate copyright. This same copyright protection extends to a list of "cool links." However, it is probably not a copyright violation to select several of the links and incorporate them into your own list.

Another clearly unethical use of linking is to put links on your Web site to works that you know are infringements of copyright. Peter Scheuerman established LyricWeb to let users look for song lyrics that resided on other sites, some of which had not been authorized. But Warner Brothers/Chappell Music threatened him with legal action. Whatever legal sanctions may or may not be imposed, ethics dictates that a Webmaster take reasonable precautions to avoid linking to sites containing pirated material.

Some of the other legal challenges to linking revolve around using links to bypass advertising. Thus, in Scotland, the Shetland Times sued the Shetland News, which was operating its own Web site that contained links to the Times coverage of certain news stories. The Times claimed that the News was linking to their site because they lacked the resources to do their own reporting, and complained that the links bypassed the advertising on the Times ' front page. The suit was settled out of court, with the News agreeing to post "A Shetland Times Story" on each story that it used from the Times, with a link to the Times's Web site.

Probably the most celebrated case involving advertising is the case of Ticketmaster v. Microsoft , where the entertainment giant sued the software behemoth for linking to pages deep within Ticketmaster's Web site, thereby bypassing the advertising on Ticketmaster's homepage. The case was settled out of court in February 1999. Terms of the settlement were not disclosed, but Microsoft removed its "deeplinks" to pages deep within the Ticketmaster Web site.

A twist on bypassed advertising is the TotalNews case. TotalNews used frames to link to content provided by news organizations such as CNN, Time-Warner, and MSNBC. The suits said that by placing the organizations' content in frames on TotalNews's site, TotalNews created confusion about the source of the content. They also objected to TotalNews putting their own advertising in other frames of the browser window. Thus, the issue was added advertising rather than bypassed advertising. TotalNews reached an agreement with the complaining parties by agreeing not to display their content in frames. Now, TotalNews opens a separate window to display the stories from these organizations.

Another way to employ linking unethically would be to use it to levy an implicit charge against the creator of another Web page. An example would be a page containing links to "Shopowners who bribed the board of zoning appeals," where small-business Web sites were linked to without any proof that they were in fact guilty of the alleged crime. In legal terms, this would constitute defamation .

The right to link continues to be in flux. Last year, National Public Radio asserted the right to decide whether any other Web page could link to its site. Commentators suggested that this seriously threatens the usefulness of the Web. A week later, NPR rescinded this policy.

In this week's lecture, we have examined the issues involving copyright of electronic material. We found that to post a copyrighted work on the Web, permission from the copyright holder is usually needed. There is a fair-use exemption, which is applicable in cases of criticism, parody, and for a lot of educational uses. However, this is an area in which the law is evoloving and courts have great latitude, so it is often difficult to decide what is clearly legal. We also examined the ethics of linking, and discovered that, while linking is usually ethical, there are cases in which it is not, e.g., if illegal copies are linked to or if advertising is bypassed.