Property Crime - Copyrighted Material: Can't Touch This!

In December 1997, President Clinton signed the No Electronic Theft (NET) Act into law. The law was intended to combat the growing threat of Internet copyright piracy. The NET Act makes it illegal to distribute copyrighted works even if the defendant is not acting out of financial gain. A little over a year later, the law had its first test: a 22-year-old University of Oregon senior pled guilty to a felony count of criminal infringement of copyright for making thousands of musical recordings, movies, and computer software programs available on his Web site. (He received probation.)

Copyright, according to Intellectual Property law firm Smith & Hopen, is a form of protection provided to the authors of original works of authorship including literary, dramatic, musical, and certain other intellectual works, both published and unpublished. Such industries generate billions annually.

In July 1992, a U.S. District judge ruled that a Texaco scientist violated the U.S. Copyright Law when he copied articles without providing the appropriate fee to publishers. Texaco argued that the copying fell within fair use. Publishers across the country looked to the case of American Geophysical Union v. Texaco Inc. (which lasted roughly a decade) to see what "fair use" really means. In other words, how much of a writer's work can be cited and in what way?

The Internet — which provides unfettered access to a wealth of ideas, images, and material — is turning out to be a thorny issue for those who believe an artist's work should not be easily disseminated. Photographs, writings, and commercial images are traded among Web users or posted on Web sites without the knowledge or consent of the producer. The music industry in particular has faced some tough challenges. In 1999, Shawn Fanning, a freshman at Northwestern University, founded Napster, an online music service in May 1999. The service, known as peer-to-peer file sharing, allowed users to trade and download their favorite songs … for free. Music lovers no longer had to go to the store and buy a compact disc to hear their favorite song. It was at their fingertips. After a series of court challenges by music distributors, in February 2001, the 9th U.S. Court of Appeals ruled that Napster knew its users were violating copyright laws through its file service. Napster still exists, as do similar services, but users now pay a small fee to download songs.

Where does the law stand on the copyright issue? The 1976 Copyright Act gives the owner the exclusive right to reproduce the work, perform the copyrighted work, or display it publicly. Copyright extended from the life of the author plus 50 years. In 1998, the legislation was amended, increasing the term of copyright to 70 years. Work produced for hire or anonymously was shielded by copyright for a term of 95 years. The move was immediately challenged by publishers who depend on work in the public domain (work not protected by copyright). "Congress made a choice about who would have the right to develop and exploit 75 years of American culture," said Stanford University law professor Lawrence Lessig in his legal challenge.

It's the copyright protecting well known items that often receives the most attention — such as the songs of pop music stars. But what of the copyright extended to lesser known but important works? Arnold Lutzker, a lawyer for the American Association of Law Libraries, has pointed out that there "are millions of pieces of work created by ordinary people that will be delayed decades." Protected work can not be included in, for example, university Web sites or distributed in college course packs. Some authors have copyrighted their personal correspondence and other writings, preventing from them from being excerpted in academic writing.

The challenge to the 1998 copyright extension moved to the Supreme Court in October 2002. Will the justices agree with the claim that too much work has been kept away from public use? Justice Sandra Day O'Connor has already claimed to find fault with what Congress did in 1998. But — and this is probably the key question for the justices — did the extension violate the Constitution? At stake in this debate are access to some of the treasures of American culture that were produced in the 1920s and 1930s: songs by George Gershwin, poems by Robert Frost, The Wizard of Oz, and Disney's Mickey Mouse.

Sources: "Oregon Student Convicted Under new Internet Copyright Theft Law." Available online at http://www.cnn.com; "American Geophysical Union V. Texaco Inc." Available online from http://www.arl.org/info/frn/copy/texaco.html; Biskupic, Joan. "Court Finds Copyright Case a Tough One." USA Today, October 10, 2002, p. 5A; Joan Biskupic, "Copyright Case to Determine Use of Classic Culture." USA Today, October 5, 2002, p. 5A. Online data retrieved October 20, 2002.