Moderator: Welcome to Viewpoint with our guest, Jim Burger. Jim, thank you for joining us. Let's begin with this question: Is it illegal to trade copyrighted material on the Internet, for example on peer-to-peer services, without the copyright owner's permission?
Jim Burger: Generally, it is illegal, unless the material is on the P2P network with the permission of the copyright owner. Copyright is granted to the creator of an “original” work (e.g., novels, poems, songs, as well as the performance of those works, e.g., a band’s version of a song burned on a CD). The copyright gives the owner of the copyright the exclusive right to copy, distribute, sell, license to sell, create a worked based on the original, perform, and display the work). Therefore, offering a copyrighted work on Internet peer-to-peer (“P2P”) software without the owner’s permission is a violation of the Copyright Act. Copying a work from the Internet without the owner’s permission is also a violation of the law. There are websites where artists offer their music for free to gain recognition (Epitonic: http://www.epitonic.com/) or public domain websites (e.g., U.S. Air Force Band music for which there was no original copyright or the copyright has long since expired: http://www.usafband.com/recording.cfm?start=27). At least according to a General Accounting Office, much of the material available on P2P networks is copyrighted and placed there without the owners’ permission.
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College Park, Md.: You ask some very important questions, but I have one. Who is a content provider? You were Chair of a "Proprietary Rights Committee," but isn't it an insult to our constitution's Copyright Clause to suggest that copyright law should only protect proprietary rights (of incumbent content providers)?
Another important question you ask, concerning the "rules of the copyright road," I think is misleading. Incumbent content providers would have us all think that it is illegal and immoral to distribute copyrighted material. Period. The rights you have depend on how the content is licenced! This is a very important point in the context of the Internet. Over the last 30 years people have been licencing their work (and massively collaborative works) in ways that freely encourage distribution, modification, and contribution.
While the Internet is a "threat" to the incumbents, it is a sublime step forward in the progress and distribution of science and arts. If the government were to legislate computer design, for example to only allow restricted programs to run (which may only allow access to restricted content) they would in fact not be promoting the progress of science and arts. They would be protecting the business model of one set of copyright owners at the expense of another.
I look forward to reading the chat. Thanks.
Jim Burger: Thank you for your interesting questions. Actually, a “content provider” is not an entity recognized by the Constitution or the Copyright Act. It is a copyright owner that obtains rights under the law. Virtually everyone is a copyright owner. If you create an original work – poem, novel, music, etc. – you own the copyright. The Copyright Law is aimed at stimulating the creation of works by protecting the rights of artists creating original material. Content providers is a convenient term referring the industries that through commercial channels provide to the public copyrighted content either the content provider created or have licensed to distribute, e.g., the record labels, the movie studios, the book publishers, software, etc.
As I said in my prior answer to the moderator’s question, it is only illegal to distribute copyrighted material in certain circumstances. It is illegal to generally distribute someone’s copyrighted work without their permission. As noted in the prior question there are many web sites where copyright owners freely distribute their content. That is a copyright holder’s right. Larry Lessig’s Creative Commons (http://creativecommons.org/) is also an example of where copyright owners freely grant people the right to use their creations.
I have to wholeheartedly agree with your last comment. In most circumstances, I am opposed to the government arbitrarily imposing design constraints on computers to protect another copyright owner’s rights. In most instances, the copyright law is sufficient to protect copyright owners. Dell, for example, sells some 83 percent of its computers to businesses. Most P2P illegal copying is done by consumers. Why should business pay extra (or perhaps get less capable computers) to protect another copyright owners property unrelated to their business. The legislation proposed by Senator Hollings would have required such design changes. Fortunately, it failed to make progress in Congress. This should not be about legislating business models.
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Alexandria, Va.: I have a domain name that they wouldn't allow me to trademark because it's a single word -- an adjective. Is it possible for me to keep others from using my name with .net, .biz, .bz etc.?
Jim Burger: Marks that are descriptive terms can be protected if they have acquired distinctiveness through long use. The rule of thumb is that five years of continuous and exclusive use is required. If you can establish acquired distinctiveness, you can register your trademark. You may also be able to stop others from using and registering the corresponding domain name, but there are many other factors that go into that answer, e.g., what's the registrant using the domain name for, did he offer to sell it to you for significantly more that he paid to register it, does the registrant have the pattern of "cybersquatting" and so forth. The decisions in this area are anything but consistent. For example, on the one hand, the owner of the CREW trademark for clothing was able to force the transfer of the domain name crew.com used for a web site on boating. In contrast, the owner of the 1-800-MATTRES mark was unsuccessful in seeking the transfer of the domain name mattress.com.
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Washington, D.C.: I used some images from a stock photo site and cropped out the watermark. The agreement states they are available for mock-up use only. What is the risk that they'll catch me? And how bad are the consequences?
Jim Burger: First, if you use the photos from their web site you are most likely bound by the license on the site. Second, removing the watermark out of the photo may be a separate violation of laws. The Digital Millennium Copyright Act (“DMCA”) prohibits the removal of copyright information from copyrighted content. I can’t tell you what your risk of being caught is. But I assume that you are using these photographs in a commercial setting. I know of many instances where people have done what you are doing and, to their surprise, have been caught. I can’t recommend you continue the practice. The consequences could be quite severe. Under the Copyright Act you could be liable for damages of up to $150,000 per copy. Also, you may have separate liability under the DMCA for removing the watermark.
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Clinton, Md.: Many sites have the copyright symbol and year. I'm sure most of these Webmasters haven't copyrighted the content. Are there laws restricting the use of ©? Is it a good idea to put it on my Web pages?
Jim Burger: The practice of using the © symbol continues to this day even though it is not necessary. When the U.S. signed (and the US Senate ratified) the international copyright treaty known as the Berne Convention, we eliminated the need to put the © copyright notice on copyrighted works. A creator obtains a copyright the moment they “fix” their original work – fixation may be writing it on paper, capturing the sound on a CD, etc. There is now no need to put the © on copyrighted works. But if you are going to sue someone and want to obtain statutory damages, it is advisable to register your copyrighted works with the Library of Congress’s Copyright Office (see http://www.copyright.gov/). Moreover, there is no harm in the legitimate use of the © as a warning.
It is likely that the material on a web site is copyrighted material. It may be created by the web master or licensed from other copyright owners. If the web master is using someone else’s copyrighted material without permission, there are far more serious consequences than the improper use of the ©, i.e., a violation of the copyright law.
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Washington, D.C.: I often "borrow" photos for my personal Web site using Google's image search. Am I breaking any laws by copying pictures I like from other people's Web sites? At what point does it go from friendly sharing to copyright infringement? Should I ask them for permission? Do I need a contract? Am I overly concerned? Sincerely.
Jim Burger: This is a very good question touching on contentious and interesting issues for copyright lawyers. The general rule is copying copyrighted works is illegal. There is a provision of the law called “fair use.” Fair use is a defense to the claiming of illegal copying. But the law does not give us a clear rulebook of what you can and cannot do. Each case has to be decided looking at the individual circumstances and the fair use guidelines. There are four important fair use factors:
– How Used – Commercial v. Educational?
– Type of work – fact versus fiction?
– How much taken?
– Hurt market for work?
If you copy pictures from a web site for your personal use, I would argue that this is a fair use. Note I said argue. There are those in the content community who take a more narrow view of fair use. Indeed, if you are a teacher, I believe that you could use those pictures as part of a class exercise under the education factor. At the other end of the scale, if you intend to use those photographs as part of a business, you should get permission – which might involve payment. In the middle gray area, you would have to look at each case as unique and make a decision based on the facts and the four factors.
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Farmer City, Ill.: It seems to me that the trouble with piracy is a direct result of the lack of content providers embracing new instant gratification opportunities provided by the Internet. Just yesterday, for example, I read an essay which cited a short story from J.R.R. Tolkien's "The Unfinished Tales." Now I do not have a copy of that book. I was all set to go out in the cold and drive a half hour each way to the bookstore to get a copy, when instead it occurred to me that one of the peer-to- peer filesharing networks may just have an e-version. In fact they did (think about what this means ... someone went through the trouble to OCR it, most likely page by page ...), and I downloaded it, and a few other of his texts while I was at it. It wasn't that I was "too cheap" to pay the $10 for the paperback (though $10 would be a bit much for an e-version). It's simply that the instant gratification factor of the Internet is just too compelling to justify a trip to the store. So large markets for on-demand content must exist. Why aren't they being taken advantage of?
Jim Burger: While the law is clear, this is a difficult policy question. There is no doubt many in the content industries were slow to respond to the opportunities presented by the Internet. That was doubly unfortunate both to consumers who want the convenience of being able to quickly satisfy their desire for works and for artists who would welcome a new stream of revenue. However, neither of these justifies nor forgives a violation of the law. Courts would not accept the defense of “it was not legally available on the Internet.” The good news, particularly in the music area, is that the record labels are licensing many web sites to sell music online. Perhaps the most famous is Steve Job’s and Apple’s iTunes (http://www.apple.com/itunes/). But there are now many more legitimate online music sites, even a “reborn” Napster (http://www.napster.com/). I am not as familiar with the online book publishing world. I do know that Audible (www.audible.com) offers many “books on tape,” you can download.
Apart from the copyright violation, I cannot condone illegally downloading works. It has the effect of creating disincentives for the legitimate authors. On the other hand, we need to do everything we can to encourage legitimate online distribution.
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Silver Spring, Md.: If I work on my personal site at work after hours could they claim they own it at some point down the road? Thanks.
Jim Burger : Here is the typical lawyer’s answer – it depends. Generally speaking when you are an employee copyrighted works that you create are a work for hire and the copyright belongs to the company. This can be altered (expanded or contracted) by your employment agreement. Therefore, if you signed an agreement that simply says anything you create on company property or time belongs to the company, the fact that it is after hours doesn’t help you. I don’t know your individual circumstances so I cannot be more specific. But my advice would be to play if safe and not to create copyrighted works that you want to own at work.
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Moderator: Why did the judge set the owner of the P2P Grokster free, while it appears that individuals using Grokster have to pay the recording industry lots of money?
Jim Burger: The answer to this question requires a brief discussion of copyright law. Generally there are two types of copyright infringement: direct and indirect.
Direct infringement is the actual, unauthorized copying (downloading) or distribution (uploading) of the copyrighted work. In the case of P2P, the direct infringers are actually the users themselves who are uploading the copyrighted content (music, movies, etc.) onto their computers and making them available for download by others.
Indirect infringement occurs where the party charged with the infringement did not actually copy the protected work, but is some way responsible for the actions of the person or people who did make the illegal copies. There are two types of indirect infringement: contributory and vicarious. Contributory infringement occurs only if the contributory infringer had knowledge of the illegal copying and in some way encourages or assists with it. On the other hand, vicarious infringement arises where the party charged is responsible for the infringing conduct of another (for example, an employer for its employee’s conduct). To prove vicarious infringement it must be shown that the party charged had control over the conduct of the party actually making the copies, and that it received some financial gain from the infringing activity of the party responsible for the illegal copying.
In the Grokster case, the trial court found that the users of the software were the direct infringers; Grokster itself was not actually doing any of the illegal copying. The court also found Grokster was not liable for indirect infringement, because there was no evidence that it knew the material being shared was copyrighted (for contributory infringement), nor was there any proof that Grokster had control over the users’ conduct (for vicarious infringement). The case is currently being appealed.
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Somewhere, USA: Would you describe a case where an individual writer has successfully protected/defended their copyright after their writing appeared on the Internet and was downloaded and misused? Or, more generally, it seems like this area would be very busy right now with so much new content being provided and the Internet still so new. What are some of the key copyright issues with independent writers and the Internet and how are they being addressed/enforced? Thank you.
Jim Burger: Most of the Internet copyright cases I am aware of involve corporations defending the copyright. There are many examples of success in prosecuting online copyright violations. Most of the lawsuits or threatened lawsuits are in the music sharing field brought by the Recording Industry Association of American. (See http://www.riaa.com/issues/piracy/default.asp.)
The key copyright issues for independent writers and the Internet are remarkably similar to those in the “real world” of publishing. Generally speaking it is guarding your copyright and carefully reviewing the web publishing agreements. Authors want to grant as narrow rights to the web publisher as possible and the web publisher will want to obtain the broadest possible rights. Authors will most likely want to retain the right to use their copyrighted material in places other than just the one web site. (Just as novelists will want to retain the rights to stage and motion picture versions of their works they license to a book publisher.) There is, of course, the matter of compensation that is often negotiated in both the “real work” and the online world.
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Moderator: Should the Internet be regulated to protect content?
Jim Burger: One of the problems with this question is that it is completely impractical. The “Internet” is not really a tangible entity, and thus is not easily regulated. It is actually just a complex network of computers, all speaking the same language which allows them to communicate with one another. As a result there is no government entity that would really be capable of regulating it, and no one has come up with a plan on how it would be done. We should keep in mind the question here is about regulating the technology, not the behavior of individual Internet users. We have laws in place that address the conduct of individuals – for example, as we’ve been discussing we can prosecute people for illegally copying copyrighted material. But it is much more difficult to require that the technology itself be restricted – through things such as filters, if they were practical – to protect online content from Internet piracy.
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Jim Burger: Thank you very much for your very stimulating questions. I hope that I have given you the beginning of understanding some of the issues raised in the online copyright world. Many of these questions could generate a law review article on the topic.
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Moderator: Our thanks to Jim Burger, Dow, Lohnes & Albertson and all who participated.
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At least since the beginning of the 20th century incumbent content providers have regarded new technologies as a "threat." The player piano by the music industry in 1908, radio by the same, photocopiers by the print industry, TV by the movie industry, cable TV by the TV industry, VCR by the movie industry, and DVD players. In the end, all of these turned out to be financial winners for the content industry. Today the "threat" is the Internet and computer technology. What are the "rules of the copyright road?" Is enforcement the only answer? Are there market alternatives? Should computer design be dictated by the government? Attorney Jim Burger was online to answer these questions and more. 
