InformationWeek

Copyrights: What's Left?

The World Wide Web makes everyone a desktop publisher. So how do you protect your company's brochures, reports, and key products?

By Eric R. Chabrow
Issue date: March 25, 1996

You're driving home from work when you suddenly realize the Internet has left you vulnerable. You've just posted the results of your team's latest project on the Web. Now what's to stop anyone from downloading that work and passing it off as their own? Is the work protected by copyright? Even if it is, how does that help you?

Welcome to the new reality of the Net. Until recently, copyrights had precious little to do with the day-to-day work of technology managers. But starting now-thanks to the Internet-copyright is moving onto your agenda. "People who didn't have to know anything of the nicety of laws of publishing will have to learn them," says James Gleick, founder of Pipeline, a New York Internet provider, and moderator of a forum on copyright law on the New York Times' Web site.

Practically every company in every business must protect what lawyers call intellectual property. Most of that protection comes from copyrights, which cover software, brochures, blueprints, videos, and much more. Patents, another form of protection, apply to innovations of all kinds. Trademarks guard company and product names. And very little of this was the concern of IS managers.

That's because pre-Internet, intellectual property was fairly easy to protect. Books, illustrations, and reports could all be held in your hands. Even computer software, though trickier to protect, usually resides on disks that can be protected. But the Internet makes it a cinch for any PC owner to copy and distribute-that is, to publish-virtually anything on the Net. This powerful technology threatens to make copyright and other intellectual-property protections obsolete.

For technology managers, the Net serves up a whole new set of concerns. Specifically, IS managers and their companies face the new tasks of policing two types of intellectual property theft. First, they'll need to stop employees from using the Internet, Web, or intranets to illegally distribute copyrighted information created by those outside the company. Second, they'll need to guard their own intellectual property from the Net's copyright pirates.

Neither task will be easy, since so much copyrighted material is now on the Web. Publishing giant Simon & Schuster, for example, has assembled a team of Net detectives to surf the Net and hunt down pirated copies of the company's books.

The issue of copyright and the Net runs even deeper. The two are fundamentally at odds with each other. "The idea behind the Internet's origin was to transmit information freely around the world, and it does that job beautifully," says Esther Roditti, editor and publisher of The Computer Law & Tax Report, a newsletter in New York. "Now we want to put copyrighted material on it, and we want it protected. But a mechanism wasn't set up for materials not to be copied."

Copyright law blurs when it comes in contact with the Internet. Merely posting a message on the Net doesn't mean it's in the public domain. An article posted on a Usenet newsgroup and an
E-mail message transmitted over the Internet are both automatically copyrighted by their authors. Posting the message does nothing to change that. But because of the nature of Usenet-in which messages zip from one server to another-there is an implied license under fair use, say some legal experts. "Many po sters want their messages to be copied," says Mark Radcliffe, an intellectual property attorney who has written extensively about computer law. "But it's pushing the limits."

Also, the rules governing the distribution of intellectual property are understood by few technology managers. Worse, the rules are changing. In Congress and the courts,copyright law is evolving to adapt to the growth of the Internet. Now making their way through Congress are two relevant bills, S1284 and HR2441. If passed into law, they would add responsibilities to the jobs of technology managers charged with monitoring materials moving across the Internet.

Among the changes the bills propose:

Giving exclusive transmission rights to copyright holders. This would increase the likelihood that a copyright holder could sue for damages anyone who transmits their materials over the Internet without authorization.
Outlawing hardware and software used to thwart anti-copying technology. This co uld strengthen the ability of copyright holders to to protect their works.
Providing civil and criminal penalties for falsifying, altering, and removing copyright-management information, including the name of a copyright owner.

These bills are based on a white paper issued last September by a White House working group that's part of the government's larger National Information Infrastructure (NII) effort. The group spent two years exploring the need for changes in intellectual property laws because of the Internet and similar technologies.

Assistant Secretary of Commerce Bruce Lehman, chairman of the working group that presented the 250-page white paper and Commissioner of Patents and Trademarks, calls the propsed changes minor but necessary to protect the interests of content creators. Lehman says the law is needed for business reasons: The current lack of protection on the Net could discourage businesses from selling online. "There comes a point when theft of product is such a significant threat that it has a chilling effect on investment in this particular marketplace," he says.

It's happening already, says Ken Wasch, president of the Software Publishers Association, a Washington trade group. "How much electronic commerce is there on the Internet?" he asks rhetorically. "None. The Internet will never reap the benefits of electronic commerce if users of electronic commerce believe their confidential information is not secure."

But critics of the bill, including Pamela Samuelson, a law professor at Cornell University in Ithaca, N.Y., disagree. They maintain that the bills, if passed into law, would abolish users' long-held constitutional rights to browse, share, or make copies of copyrighted works for noncommercial, private use.

Critics of the bills also say the NII group failed to tackle several important legal issues. One, known as contributory infringement, covers instances such as an Internet surfe r posting copyrighted materials over an online service or forum without getting the site's permission. Also, say the bills' critics, the white paper fails to address the relationship between trademarks and Internet addresses, or domain names, which have been the subject of several lawsuits.

Another opponent of the bills, Peter Choy, sees the legislation as a rush to judgment. Choy, chairman of the American Committee for Interoperable Systems, a group made up mainly of computer manufacturers, doesn't buy the argument that content providers will stay away from the Internet. "Let's see if it's true," he says.

Attorney Radcliffe adds that today's concerns echo those of 30 years ago, when people feared that the Xerox photocopier would cause the death of copyright. "Copyright has a fairly long history, 350 years of flexible law, and it has done fairly well," Radcliffe says.

Swift changes in technology also could make amendments to the copyright law outdated even befo re enactment. For example, the five-year effort that led to the enactment of the Semiconductor Chip Protection Act of 1984, was legislation principally aimed against the reproduction of semiconductor technology by the Japanese. New technology made the problems associated with reproduction moot. "It was a shotgun correction," Radcliffe says. "It's been a complete, utter flop."

A major concern among legislative opponents is the provision that bans so-called black boxes, devices that could foil anticopying technology. The same technology that might thwart electronic protection of copyrighted materials could be used to reverse-engineer software. Choy of ACIS, who also serves as deputy general counsel at software developer Sun Microsystems Inc., says the proposed legislation is overly broad and has consequences far beyond legitimate interest in protecting copyright. Software Publishers' Wasch, however, dismisses that notion. "The only people who want to create these black boxes, " he says, "are those who want to rip off other people's intellectual property."

Congress is debating the bills. Hearings by a House judiciary subcommittee on copyright law began in February, and the Senate will hold hearings later this month. Meanwhile, the judiciary will determine one major aspect of copyright law not being tackled by Congress: the amount of liability held to an Internet provider or online service for unknowingly disseminating unauthorized copyrighted materials.

The issue of contributory infringement should be of great concern to technology managers, especially those whose companies offer interactive forums as part of their Web offering. Forum operators could be held liable for contributory infringement if unauthorized copyrighted material is placed on forums.

That's exactly the problem facing Netcom Online Communications Services Inc., one of the nation's largest Internet providers. Late last year, a California court ruled that Netcom could be tri ed for contributory infringement after it failed to remove copyrighted material that had been illegally placed on one of its servers by a dissident of the Church of Scientology.

Radcliffe explains that Netcom could be found to have "substantially participated" in the infringement because it failed to delete the copyrighted material once it was notified by the copyright owner. "Netcom's arguments were undercut by its admission that it did not even investigate the claims of the Church of Scientology," he notes.

But lawmakers and judges often seem to ignore-or, more likely, fail to understand-the workings of technology in implementing or interpreting copyright law. Even if Netcom did remove the copyrighted material, it would have been too late to stop the material's distribution throughout the Usenet network. Once posted, copies of an article are swiftly scattered throughout the world to hundreds of servers-well beyond the control of any one Internet provider.

"The only way to remove offending material is to shut down the whole system," Gleick points out. On average, an article on a typical newsgroup remains posted for up to two weeks before vanishing. In the cyber-age, that's nearly a lifetime.

Comments on this story?

InformationWeek http://techweb.cmp.com/iw