Hijack on the road to Xanadu: The Infingement of Copyright in HTML Documents via Networked Computers and the Legitimacy of Browsing Hypermedia Documents
(Acknowledgement: The author wishes to thank Professor Ian Lloyd and Mr Andrew Charlesworth for their assistance.)
In the few cases involving copyright in HTML documents the treatment of technical issues has been inadequate and has left copyright law in a state of confusion. This confusion has been compounded by the failure of the courts both in the United Kingdom and the United States to give full weight to the economics of Internet commerce. Copyright Management Systems offer only a partial solution to the problems created by hyperlinks, framing, caching and the browsing of hypermedia documents. This has led to the disregard of authors' moral rights and confusion amongst users of the Internet as to the extent of their rights under copyright law. Before this situation can be resolved there must be clear framing of an author's moral rights within their economic context, and a treatment of technical issues which concentrates on the effects of technology rather than the way in which those effects are achieved.
Keywords: Copyright, Internet, Infringement, economics, moral rights, jurisdiction
This is a Refereed Article published on 26 February 1999.
Citation: Morrison A, 'Hijack on the road to Xanadu: The Infingement of Copyright in HTML Documents via Networked Computers and the Legitimacy of Browsing Hypermedia Documents',1999 (1)The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/99-1/morrison.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1999_1/morrison/>
As well as being 'the magic place of literary memory' in Samuel Taylor Coleridge's epic poem, Kubla Khan , Xanadu is the name of Ted Nelsons early hypertext implementation, which was designed as a means of putting the literary corpus of the entire world on-line. Xanadu is capable of dealing with extensive data fragmentation, is infinitely expandable and keeps the user interface and the system database separate. Notably Xanadu is structured so as to maintain copyright protection and to allow for electronic accounting and distribution of royalties (Conklin 1991:386). The importance of this kind of tracking and electronic accounting system is summed up by Ginsburg (Ginsburg 1995:1467): 'If all kinds of works of authorship, particularly those of intense creativity and imagination, are to embark willingly on the cyber-road, then authors require some assurance that the journey will not turn into a hijacking.'
This paper seeks to argue that the technical fix offered by copyright management systems is illusory and that the treatment by the courts of issues surrounding copyright in cyberspace is inadequate in terms of technical factors and in terms of the protection of copyright owners' economic interests. The solution offered is one based upon moral rights and an economic analysis of the copyright problems created by hypermedia within a network context. It is well recognised that digital media are converging at an ever increasing rate, as the boundaries between different media disappear this stretches existing regulatory regimes which were not designed to cope with the conflicts which arise in a technologically convergent marketplace. Computers are no longer isolated systems, it is rather the network which is the computer system. In such an environment micro-infringements may become macro-infringements and jurisdiction becomes increasingly difficult to establish.
In view of the convergence of these media, and the pace of technological change, any regulatory solution must be pragmatic. Technical solutions offer some protection and are vital for maintaining the kind of accounting systems which are necessary for the administration of digital copyright, but to protect copyright owners' rights it is vital to understand how they generate money from their work in a network context. The pivotal argument is that copyright works should be protected through the courts by general moral rights and that a more strict regime of copyright protection should be afforded to copyright owners seeking to make money from their work. Further there should be an implied license to browse hypermedia documents where 'the nature of the transaction makes it necessary to do so' (Stangret 1997:207); equally the protection afforded by copyright management systems should not exceed the protection offered by the law of copyright.
The Internet is not just a network of computers, it is rather a network of networks which grow almost like a living organism. The Internet is also the services and people which make up each network. Each file server on the Internet forms a node in a flexible structure supported by a range of protocols which are the standards which support telecommunications and hardware and software interfacing (Badgett 1995:10). The World Wide Web is essentially a protocol for document exchange designed to aid the collaborative sharing of resources (Pfaffenberger 1996:22). This is facilitated primarily through Hypertext Mark up Language (HTML) which is a basic computer language designed as a simple means of identifying the different parts of a hypertext document.
Hypertext is a computer supported system involving windows on a VDU screen associated with objects in a database via links which can be labelled icons or pointers in the database (Conklin 1991:378).The nodes in hypertext systems are documents linked to each other by pointers. Links can be highlighted text, icons or whole documents. Links may be activated by pointing and clicking using a mouse, or by moving the cursor over the highlighted text/icon and pressing return. The database is a form of 'hypergraph' or 'hyperdocument' made up of textual or graphical nodes (Conklin 1991:380). Hypertext browsers are used to provide a two-dimensional graphical view of the underlying database (Conklin 1991:382). Hypertext links connect source nodes to destination nodes and are usually unidirectional. Most source nodes connect to a single destination node but can also connect to an area of text which may be a sub-paragraph. Linking involves the use of the HTML HREF command to connect to another web site. The link is simply an instruction to your browser program to go to a particular site and to hook up to the server at that site. Once this is done your browser can send instructions to that server to download files located at an address specified in the link's URL. Hypertext links can also connect multimedia files including sound and graphics files and may incorporate a multitude of data types and styles. The HTML IMG command allows users to insert graphics images into hypertext documents, these inlined images form part of the document text and do not form part of a separate window, the source however is separate from the HTML code. These images form unidirectional links which may be activated in the same way as hypertext links.
When links are selected this opens up a new window into which the selected document is imported. The nature of hypertext depends very much upon its implementation. In some implementations of hypertext the modular structure of the nodes are the most salient feature where in others the machine-processable links are the most distinguishing feature (Conklin 1991:408). Hypertext nodes may be an intermediate level of organisation between characters and files intended for the expression of ideas (Conklin 1991:415). The main advantages of hypertext are ease of tracing references or creating new references, ease of structuring, the global presentation of data, modularity of document presentation and the ease with which documents may be customised. On the downside, hypertext can cause user disorientation and cognitive overload.
The main statute concerning copyright in the U.K. is the Copyright, Designs and Patents Act 1988 (hereafter, 'the Act'). This governs the treatment of original literary, dramatic, musical and artistic works including their typographical arrangement, sound recordings, films, broadcasts, and cable programmes (MacQueen 1997:72). Under section 3(1) of the Act, a literary work is a work which is written, spoken or sung, apart from a dramatic or musical work. However, according to the section 3(2), copyright only subsists where the work is recorded in writing or otherwise. Much of the content of a web site is written and will therefore obtain copyright protection. This is not true in the case of a single word or the title of the work. In Exxon Corporation v Exxon Insurance Consultants International Ltd  Ch. 119 the word 'Exxon', an entirely invented word was held not to be the subject of copyright. Further the work must attain a minimum level of originality which obtains in the case of independent expression reached through the exercise of the author's judgement, skill and labour (MacQueen 1997:73). This proposition is echoed by the U.S. Constitution, Article I, 8, cl.8 which makes originality a prerequisite for copyright protection. Indeed, the constitutional requirement is for independent creation plus a modicum of creativity.
In Feist Publications Inc v Rural Telephone Service Co, 499 U.S. 340 (1991), the respondent was a certified public utility providing telephone services and was obliged by statute to provide telephone listings which it provided free of charge to members of the public. These listings were produced as part of a directory which also included yellow pages for business listings as well as other text providing guidance to users. The petitioners specialised in the production of wide-area listings covering 11 different telephone service areas. These listings were compiled through licensing arrangements with the various local companies. The respondents refused to license their directory to the petitioner who subsequently copied the listings they required without authorisation. The U.S. Supreme Court held that the respondent's white page telephone listings were not subject to copyright since only effort, rather than skill or judgement, was required for their compilation. To establish infringement it would have been necessary to establish that a copyright existed and that original elements of the work (it was emphasised that there was originality in the work, although the standard was low). The aftermath of Feist in Europe is Directive 96/9 on the legal protection of databases, which appears to adopt the sweat of the brow approach rejected by the U.S. Supreme Court. This is a clear recognition of the increasing importance of intellectual property (Bainbridge 1997:171).
The mere fact that a copyright work is changed to a digital format does not mean that it has been altered so radically as to make it a new piece of copyright or even a derivative copyright work (Ginsburg 1995:1469). Also, where copyright works are distributed over networks, the copyright owner's public performance and display rights may come into play (Ginsburg 1995:1479). In On Command Video Corp. v Columbia Pictures Industries 777 F. Supp. 787 (N.D. Cal. 1991) it was held by a federal district court that a hotel video system which allowed guests to receive pre-recorded videocassette recordings was 'publicly performed' even though the transmissions were serial rather than simultaneous (Ginsburg 1995:1480). From this it may be inferred that where the public is able to view deferred transmissions via the Internet, the work is thereby displayed or publicly performed (Ginsburg 1995:1481). The transmission of copyright work via linking may also be an infringement of a copyright owner's exclusive distribution right since this could amount to the distribution of copies of the work to the public (Ginsburg 1995:1482). However, it must be noted that the Act limits fair use to research and private study as well as various forms of review and news reporting which is far narrower than the U.S conception of fair use. Under U.K. law, infringement occurs where a substantial amount of an original document is taken. Under section 21 of the Act, adapting a copyright work will usually constitute infringement. If HTML code is converted into a different form that would infringe the copyright, as would the adaptation of any copy of the code.
As the copyright protection of compilations is minimal, contract is a valuable supplement to copyright protection. In ProCD v Zeidenberg 86 F. 3d 1447 (7th Cir. 1996) the U.S. seventh circuit found shrinkwrap licences to be generally valid contracts and concluded that no contract rights are pre-empted by the Copyright Act 1976 [U.S.A.]. In that case a manufacturer, ProCD, brought an action against the defendant for injunctive and monetary relief in respect of the alleged infringement of a CD-ROM product called 'SelectPhone'. This is a database of some 95 million telephone listings compiled from around 3,000 telephone directories. The defendant admitted that he had copied the listings and uploaded them to a World Wide Web bulletin board from where they could be processed for a fee (Grusd 1997:354). ProCD further claimed that the defendant had infringed the copyright in their software. The defendant argued that the uploaded data was not subject to copyright protection. The SelectPhone package included a licence agreement displayed on the purchaser's computer screen in such a way that it had to be agreed to before they could proceed. However, having seen this message, the defendant continued to use the package. On appeal, the judge held that this licence provision was binding on the defendant even though he had no opportunity to bargain over it (Grusd 1997:358), and although the phone listings were not protected by copyright the software used to search them was protected (Grusd 1997:355). The court also ruled that the rights under the licence agreement were 'exclusive rights' which were not equivalent to rights conferred by Copyright Act 1976 [U.S.A.], s.106.. Unfortunately, in allowing the litigants to contract beyond copyright, the Seventh Circuit may have exceeded its jurisdiction by allowing individuals rather than Congress to balance policy issues (Grusd 1997:367).
Authors of web documents may also have rights over works derived from copyright work. In Midway Mfg Co v Artic Int'l 464 U.S. 823 (1983) it was held that a circuit which increased the speed of the plaintiff's computer games violated their right over derivative works by producing unauthorised adaptations of their games. On the other hand, in Lewis Galoob Toys v Nintendo of America 964 F.2d 965 (9 th Cir. 1992) the court held that a program designed to enhance the graphics on Nintendo video games did not create unauthorised derivative works since the resulting display was produced by the interaction of the Game Genie with the Nintendo video game cartridge (Ginsburg 1995:1484). Where two web pages are connected by a hyperlink the creator of that link may be liable for contributory infringement since they are inviting other Internet users to make copies of the work linked to. However, it is important to note that this may be better construed as an infringement of the copyright owner's distribution right since there is no need to retain a permanent copy of linked web pages (Ginsburg 1995:1486). The material is adaptated as well as copied since this is implicit where frames are stored on a computer's stack memory. A further and very important consideration is the economic impact of the creation of derivative works or of conduct leading to contributory infringement: this turns on the likelihood of redistribution of the unauthorised derivative work (Ginsburg 1995:1487).
Many computers are connected to the Internet by means of a modem connected to the telephone system, and thence to the user's computer. This is significant in determining the nature and extent of the users liability in the event of litigation. Modems modulate and demodulate electrical signals (Scott 1980:49). This means that they convert high frequency waves to low frequency waves and vice versa, in so doing they also act as digital to analogue converters. The signal received through telephone wires is analogue, so the modem will convert this to a digital signal which can be fed into the communications port in the back of your computer. It is certainly arguable that it could be an infringement for a modem to demodulate an analogue signal used to transmit copyright material, even supposing the demodulated signal is never received. When a computer receives a digital signal through a modem it does so through an interface called Data Terminating Equipment (DTE), the Data Communication Equipment (DCE) is the interface for the modem, the connecting circuits used by the hardware involved will delay signals to allow internal clocks to synchronise, although these delays may be only a few microseconds it is at least arguable under U.S./U.K. law that this would constitute copying (Scott 1980:82).
For literary, dramatic, musical or artistic works, section 17(1) of the Act defines copying as the reproduction of the work in any material form including the storing of the work in any electronic medium. The broad interpretation of the term 'electronic' given by section 178 of the Act means that direct copying of software onto a magnetic disk can constitute infringement, even where copying is indirect - section 16(3) of the Act prohibits such activity as indirect infringement (Bainbridge 1997:55). In the normal course of events, a copy of a copyright work is made when it is transmitted over the Internet, even if it only exists in the receiving computer's RAM (Ebersole 1997:6). Section 101 of the Copyright Act 1976 [U.S.A.] requires the existence of a 'fixed' copy to establish infringement. This fixation must be sufficient to allow perception, reproduction or transmission over a period which is more than transitory. In MAI v Peak 1991 F. 2d. 518 it was found that fixation in RAM was sufficient to allow a user to view the system error log and diagnose an error with the computer. In a later case (Advanced Systems of Michigan Inc. v MAI Systems Corporation 845 F.Supp.356, 363 (E.D. Va. 1994)) it was found that storage in RAM could last for months and such periods could not be regarded as ephemeral or transient (Ebersole 1997:7). Further, since transmission is by packets which are only assembled at the receiving end, it is arguable that the copies made are de minimis since they are copies of single packets of data, sometimes in sequence with packets from the same transmission, sometimes not (Ebersole 1997:8). When a computer outputs data to a standard CRT type of VDU the data is first stored in a communications line buffer and then is sent to an input/output store containing a decision making unit which determines whether incoming characters are data or control. The store will hold 8-bit characters stored cyclically so the data can then be displayed by means of a character generator which outputs characters as a beam of electrons directed at the phosphor screen of the CRT (Grover 1976:45). Thus where an Internet document is viewed, there will be an element of storage/copying just in the process of outputting it to screen.
Graphical web browsers work as overlay programs which affix themselves to a particular web page. Importantly the interface presents users with a lot of information, even before they begin using the browser, in the form of icons which help the viewer to visualise what they are seeing (Gilster 1995:7). In this way previously complex operations such as downloading a file could be reduced to a point and click exercise. The interface on a graphical browser gives easy access to a whole range of programs and can be configured to meet the needs of individual users (Gilster 1995:5). In early browsers the display of an image file required the whole file to be downloaded byte by byte, but newer browsers allow graphics to be shown gradually as the file is received. Bookmark programmes allow users to save URLs rather than laboriously typing them in every time they want to use them.
The consequence of browser technology is a vastly enhanced range of opportunities to infringe copyright in web documents. This situation is exacerbated by commercial web site owners who offer some services free as an inducement to use their fee paying services. Where such sites are without copyright notices this may give rise to an implied license to browse. In Netupsky v Dominion Bridge Co Ltd  S.C.R. 368 at 375-379, the Canadian Supreme Court found that an implied license to browse existed where a transaction necessitated browsing. In Express Newspapers plc v News (UK) Ltd  3 All E.R. 376 at 383-384, Brown-Wilkinson V-C held that the plaintiff newspaper could not succeed in an infringement claim where there was widespread mutual copying of news stories because they submitted a defence to counterclaim which was identical to the claim brought against them, although in respect of another analogous case. In other words it was not permissible for the plaintiff to approve of copying in one case and later disapprove of the same conduct.
The only U.K. case to date concerning the legality of hyperlinking is Shetland Times Ltd. v Wills (1997) S.L.T. 669: an application for an interim interdict. The case concerned a dispute between a newspaper which owned a web site and a news reporting service which operated through a web site. The Shetland Times web site was created in order to attract users so the site would become a viable means of generating advertising revenue. However, the defenders created hyperlinks to the site which bypassed the Shetland Times home page. The defenders further appropriated headlines verbatim from the Shetland Times and used them as the text for their hypertext links. The headlines involved were short: up to eight words in length.
At the interim hearing in the Court of Session the pursuer contended, firstly, that the headlines made available on their web site were cable programmes within the meaning of section 7 of the Act, and that the defender had infringed their copyright in those headlines and the URLs of the hyperlinks under the Act, s.20.. In retort, the defender argued that there was no sending of information within the meaning of section 17 of the Act, and (using U.S. cases as an analogy) that if there was a sending of information this was done by the pursuer. The defender further argued that the service fell within the interactivity exception in section 7(2)(a) of the Act. This applies where a service or part of a service permits the sending and receipt of audio-visual information other than control data over the same transmission system. The pursuer's second ground of action was that the headlines were their literary works and that the activities of the defender amounted to infringement of those works within the meaning of section 7 of the Act. Notably, this section has a broad definition of copying which includes any form of electronic storage.
The defender conceded that although it was possible for headlines to be subject to copyright, the headlines in this case did not involve the use of sufficient skill and labour to be original literary works. Although no detailed technical evidence was put before Lord Hamilton he granted the pursuer an interim interdict since it was arguable that a sending of information had taken place given the practical effect of the insertion of the hyperlinks in the defender's site, and because this resulted in the defender being the sender of the information. As to the defence based upon the interactivity exception, he recognised that interactivity was possible, but dismissed the defence because it could be argued that interactivity was a severable feature of the pursuer's cable programme service. Further, it was at least arguable that the headlines were literary works and therefore subject to copyright.
In Shetland Times case Lord Hamilton held that there was prima facie infringement of copyright of the newspaper to which the defender's web site linked because the web site could be a 'cable programme' within the meaning of section 7 of the Act. Many of the arguments cited by Lord Hamilton in the interim application were upheld and the economic elements of the case featured strongly despite the fact that there was no attempt to quantify them. It was not, however, recognised that hyperlinks represented an intermediate stage between characters and files, nor was there any consideration whether inclusion of a hyperlink to an item constituted inclusion in the web page (Innes 1997). The case was abruptly terminated after both sides brokered an out-of-court settlement on the following terms: (a) each link to any individual story shall be acknowledged by the legend 'A Shetland Times Story' appearing underneath each headline and of the same or similar size as the headline; (b) adjacent to any such headline or headlines there shall appear a button showing legibly the Shetland Times masthead logo; and (c) the legend and logo shall each be hypertext links to the Shetland Times online headline page (SCL 1998:25). Clearly the settlement is an assertion of moral rights, however, its economic impact is at best marginal.
It is arguable that the Shetland Times web page gave an 'implied licence' for the purposes of linking by virtue of the fact that the page was an open web page. It is also vital to remember that the structure of the World Wide Web is such that it could not operate without linking. This was the line of argument followed in ACLU v Reno 929 F. Supp. 824 , 117 S Ct 554, where web sites were determined to be either open or closed (Akdeniz 1997:287). Since all the information on the Internet, assuming a minimal degree of originality, is copyright, then it is also arguable that any organisation that makes information available on the Internet without charge and without stated restrictions, gives an implied license to anyone who wants to use that information (Ebersole 1997: p9). In considering such cases it is important to take into account the motive of the infringing party for setting up a web site, especially where the economic interests of the parties are concerned. Another difficulty with the decision lies in the determination that hyperlinking falls within the section 20 of the Act as provision of a cable service which is protected as a copyright work. This prohibition on re-broadcasting is derived from the Rome Convention, which limits protection to simultaneous re-broadcasting. It is therefore reasonable to infer that deferred re-broadcasting does not constitute infringement (Wendland 1997:316). Given the way in which linking works broadcasting by such means is almost certainly deferred.
Unfair competition law is well established in the U.SA. and seems to have ousted copyright law because of its inflexible treatment of new technologies. Ticketmaster Corp. v Microsoft Corp. (California District Court, unreported, 1997) arose out of Microsoft's wrongful appropriation of Ticketmaster's name and trademarks, and unfair competition brought about by the insertion of unauthorised hyperlinks in Microsoft's Seattle Sidewalk site. Here the plaintiff's complaint strongly emphasised the economic aspects of the case, alleging that, the value of their intellectual property rights in their web site was being misappropriated or diluted, especially in view of the commercial popularity of the site. There had been abortive negotiations over a linking agreement which showed that Microsoft recognised the commercial value of the Ticketmaster site. As with the Shetland Times case, the hyperlinks circumvented pages in the plaintiff's site which carried advertising, and thereby diminished the plaintiff's advertising revenue whilst enhancing the advertising revenue of the defendant's own site. In doing this the defendant was infringing the plaintiff's moral rights by creating confusion in the minds of the public through inferred association with the plaintiff's web site. Through the device of a constructive trust Ticketmaster claimed relief for lost profits. In its defence Microsoft claimed that Ticketmaster voluntarily chose not to refuse access to its web pages and that Microsoft was not party to the infringing communications since linking was initiated by the viewer. Rejecting these arguments, the court held that Microsoft's object in inserting the offending links into their web site was to stifle competition from Ticketmaster by trade practices which constituted unfair competition.
Framing is a browser feature that allows sites to create an on-screen border which stays in place even as the user clicks on links and transfers content from other sites. This may cause confusion among users since it gives the impression that they are viewing information located on site rather than in a remote site (Ebersole 1997:13). In any consideration of the copyright implications of linking it is important to consider frames. Unfortunately, this is complicated by the fact that they exist on several levels in network architecture. At the most basic level a frame is an encoded block of data which is transferred from one computer to another via a digital or analogue telecommunications medium. At another level, a frame is the representation of data, - graphical or textual - which is presented to the user in a window of their VDU screen. A frame is essentially a data flow concept, it is the division of data into manageable packets which can be stored on the computer's stack memory and then displayed on the user's VDU screen. Frames are a convenient way of breaking large documents into packets so that the document can be readily transferred, stored, and displayed. Frame protocols allow documents to retain their logical structure without being transmitted as a huge asynchronous block of data which could easily damaged or interrupted in transit. In terms of copyright, frames may create disputes over content and the copying and presentation of content. A document viewed via a frame relay network is not viewed all at once. It is copied and assembled bit by bit in the computer's stack memory. When a document which is divided into frames is viewed, it is viewed a frame a time. This gives rise to questions as to what constitutes a 'substantial' part of a copyright document and whether storage of documents as frames constitutes copying.
The case of Washington Post Company v Total News Inc. 97 Civ 1190 (PKL) S.D.N.Y. serves to illustrate the weak protection of broadcast content under the law of copyright and the economic vulnerability of Internet commerce. In that case the Washington Post and a number of other news providers sought injunctive relief in respect of the Total News web site which employed framing technology to link a number of news services together in one site. This site linked together over 1,000 news organisations using their trade marked logos as hyperlinks. Total News did not provide its own content, but parasitically used the content of various news sites belonging to the plaintiffs to generate advertising revenue. Framing allowed the defendants to split their page into multiple windows and superimpose advertising on top of these windows while obscuring advertisements on linked news sites. In the complaint it was emphasised that the amount spent by business advertising on web sites in the first three quarters of 1996 was over $150 million. The plaintiffs alleged that the defendant's activities constituted misappropriation, trade mark dilution, trade mark infringement, false representation, unfair competition, deceptive practices, and copyright infringement.
The main thrust of the plaintiff's arguments rested on the concept of advertising-based proximity which was being used to appropriate some of the value of the defendant's intellectual property as well as diluting the value of the intellectual property by creating confusion in the minds of consumers. Here, dilution was alleged to take the form of competing advertisements, since this was said to affect the value of the plaintiffs' web sites for advertising purposes. It was asserted that the defendant's conduct amounted to misappropriation of the plaintiffs' content beyond the scope of any implied license. In addition the complaint repeats the allegation that if the defendant's actions were allowed to continue, this would cause damage for which there is no legal remedy. Facts such as news items are not normally subject to copyright, but NBA v Motorola 105 F.3d 841 (2nd Cir. 1997) creates a narrow exception to this rule where (i) the plaintiff gathers time sensitive information; (ii) there is free riding on the part of the defendant; and (iii) this free riding threatens the existence of the plaintiff's product or service. Unfortunately the Total News case concluded in an out-of-court settlement involving the imposition of 'link licences'. Although the licences have no legal force they may be rescinded at any time without reason, suggesting that linking rather than framing was the main problem from the outset (Mitchell 1998:1).
Caching is a method of storing packets of data in a computer's RAM so that the computer does not have to access the original data source each time the computer receives instructions to go to a particular site. Caching may be at multiple levels Local caching occurs where files are stored on the users computer and proxy caching occurs where packets of data are stored at server level. Caching has many benefits; it improves user access time, reduces bandwidth used by both users and server, and generally reduces the amount of traffic on the Internet (Sanger 1996:13). As well as reducing network congestion, caching has the drawback of making outdated copies of web pages appear to be current to users and reduces the ability of web site owners to control what information is delivered to end users (Goldman 1996:1). Another problem associated with caching is that it interferes with a web site's analysis of its users (Goldman 1996:2). Caching creates the potential for copyright infringement of web sites vis ? vis reproduction, public display and public performance (Goldman 1996:3). Caches effectively copy whole web pages and their protected parts. Caching also makes web sites undercount page impressions thereby reducing a site's advertising revenues. The negative effects of caching may be reduced by displaying expiry information on web pages so as to activate the refreshing process or through the use of dynamic pages which are displayed only after the user activates a server resident program called a 'cgi-script'. These systems frustrate the purpose of caching by increasing the level of network congestion (Goldman 1996:4).
The Internet is unique not just because it facilitates almost instantaneous global communications, but also because of the way that it reduces costs by using advanced reproduction technology. Digital files may be copied without any loss of quality, so infringement may occur with virtually no marginal cost (Schlacter 1997:19). By using anonymous re-mailers, copyright infringement may take place without leaving detectable traces of activity (Schlacter 1997:20). Further, the culture of the Internet is such that users become used to the idea that all the information they use is free. This means that many users infringe copyright without realising that they are doing so (Schlacter 1997:21). Many costs of using the Internet are fixed, so businesses using it as a distribution channel may make extra sales at almost no extra cost (Schlacter 1997:22). Businesses can, therefore, give away intellectual property in the hope of recouping their costs elsewhere (through advertising revenue, for example). Sales of intellectual property may cross-subsidise the free distribution of hardware as in the bundling of browser programs with the sale of a computer. Intellectual property may also be exchanged for the details of users which may be sold on. Some Internet sites such as the IBM patent site may be sponsored in order to market the company name. Other economic models include shareware, the giving away of free samples, and the distribution of free software in order to sell upgrades (Schlacter 1997:27). Most of these theories hinge upon the notion of attribution, in other words the creation of an association between two products, one of which is free, the other for sale. However, the difficulty with this theory is that the seller can only make a sale to a prospective buyer if the authorship of the free product is properly attributed to the seller. The structure of the Internet is such that attribution may be negated either by linking indirectly to a particular page, through the operation of framing technology or memory caching (Schlacter 1997:30).
While the economic rights of copyright holders are increasingly the subject of legislation the courts' interpretation of such legislation in relation to technology often defeats the copyright interest. In Tasini v New York Times 93 Civ 8678 (SS) S.D.N.Y. (tried in August 1997), the District Court had to decide whether a publisher could place the articles from their periodicals onto electronic databases and CD-ROMs without the consent of the freelance authors who had written them. The plaintiffs claimed that the defendants had infringed their rights under section 201 of the Copyright Act 1976 [U.S.A.] in a total of 21 articles and that the sale of these articles to Nexis, a legal news database, constituted exploitation of their work. The publishers, on the other hand, claimed that they were merely exercising their right under the Act to produce revised versions of their publications. The case revolved around the interpretation of section 201(c), (d)(1) and (d)(2) of the Copyright Act 1976 [U.S.A.],. The first subsection concerns authors' 'privileges', the second subsection deals with the subdivision of authors rights, and the third subsection affects transfer of those rights. The court dismissed the action, holding that the careful placing of the articles on a commercial database had not infringed the authors' copyright, but was in fact a valid exercise of the publishers right of revision. By construing the three subsections in tandem with each other, the court left the defendant with full authority over the 'subdivision' of the rights it acquired. The aim of section 201(c) was to avoid the unfairness of indivisibility which would not be achieved by equating 'privileges' with nonexclusive licences. Furthermore, the court held that the plaintiffs had only limited rights in the individual contributions making up their collective works.
The publishers in this case had carefully tagged the articles and kept the original selection of articles so that the collection retained a 'substantial similarity' with the original collection, even though far more than a 'certain percentage' of the articles were copied. The case does not set a precedent as such but does serve to illustrate a disturbing trend in the U.S. courts towards the disregard of authors' moral rights and a tendency to allow technology to frustrate their economic rights. This kind of disregard for the economic rights of copyright holders is affirmed in the Supreme Court in the recent case of Quality King Distributors, Inc. v Lanza Research International, Inc (No. 96-1470, heard on 9 March, 1998). There it was held that the plaintiff, a shampoo manufacturer that sold its copyrighted products overseas could not prevent the defendants from reselling the goods onto the U.S. market since the economic arguments cited were not relevant to the court's duty to interpret the U.S. Copyright Act.
CMSs are based upon the concept of 'trusted systems' or 'secure digital envelopes' which secure the content of copyright works and control access and copying in accordance with the wishes of the copyright owner. The administration of such CMSs requires a minimum level of accounting data referred to as Rights Management Information (RMI) (Cohen 1997:162). Article 14 of the WIPO Basic Proposal defines RMI as 'information which identifies the work, the author of the work, the owner of any rights in the work, or any numbers or codes which represent such information, when any of these items of information are attached to a copy of the work or appear in connection with the communication of a work to the public' (Cohen 1997:168).
Most conventional copyright management systems work through prior authentication of users by a trusted third party, normally achieved by checking the user's name against a database. This assumes the use of embedded RMI used to identify the right holder. This further facilitates payment debited against the users account, and credited to the account of the right holder (Bing 1998:238). In open systems data will have to be encrypted. Encryption systems such as RSA require a trusted third party to keep track of the encryption keys so that they may be made available to authorised users (Bing 1998:248). This form of CMS is administratively complex and requires more communication than in intelligent CMSs which have a self contained verification algorithm. While this adds to the complexity of the software, the need to communicate with an external database which requires continuous updating is avoided (Bing 1998:243). Although intelligent CMSs make administration of rights more efficient they do not provide a secure means of identification, so where works are digitally encoded RMI have to be embedded into the code indelibly (Bing 1998:247).
There are a number of reasons why CMSs only offer partial protection. Trusted systems may be bypassed, for example by linking to web pages other than a password protected home page, downloadable executables may be metered out since they need to be downloaded before they are executed. Hardwired CMSs resident in hardware installations also present problems since the public has to be persuaded to buy hardware which includes a CMS. Given the widespread ethos of the free availability of information on the Internet it is likely that CMSs are perceived as a threat to users rights or, at best, an inconvenience. Even if the owners of CMSs pay due attention to public policy considerations it seems probable that CMSs will inhibit actions which are permitted by copyright law (Cohen 1997:177). Further it would not be reasonable to prevent users from hacking into the CMS since this would be to confer greater rights on copyright owners than is allowed under copyright law merely by the act of placing material on a CMS (Cohen 1997:178). Given that CMSs are frustrated by the structure of the Internet which is open and designed to facilitate the free flow of information (Barlow 1994:357), they will require a high degree of intelligence if they are provide both a workable and convenient means of administrating copyright material. One possible solution is the use of Java 'applets', small programs resident within larger applications, which could execute RMI programs to determine the identity of the work being exploited (Bing 1998:243).
According to the European Commission the motivation for strengthening the rights held by copyright owners is clear. The Green Paper on Copyright and Related Rights in the Information Society (EU 1995:65) states that 'the time is coming when anyone will be able to change the colours in a film, or replace the faces of actors, and return the modified film to the network. This capacity to amend works in whatever way and to whatever extent one likes is regarded in some quarters as one of the great advantages of digitisation. The creators of works, however, are greatly concerned that this technical capacity will be used to mutilate their works, and are asking for moral rights to be strengthened.' Increasingly, authors' works are accessible via the Internet. If they are to retain control over the non-financial aspects of their work it is crucial that moral rights are protected. In terms of digital broadcasting the difficulty is that while the broadcast itself is protected the content of the broadcast is not. Indeed, the Berne Convention does not even define broadcasting and the Rome Convention makes no provision for a broadcasting right for performers and the producers of phonograms. Under Article 12 of the Rome convention they are though entitled to equitable remuneration (EU 1995:62). Article 6 of the Rental Right Directive provides broadcasting organisations with a fixation right and a right of reproduction over those fixations arises under Article 7 of the same directive. Further, broadcasters have a re-broadcasting right under Article 8 and a right of redistribution of fixations under Article 9, leaving authors with precious little protection in terms of moral rights (EU 1995:63).
Under U.K. law copyright is a property right, unlike most European countries, U.K. law has little notion of the concept of moral rights. This is contrary to the spirit if not the law embodied in the Treaty of Rome. Moral rights are inalienable, however in the U.K. and the United States it is possible to obtain outright control over an author's work (Holderness 1998:2). Moral rights are made up primarily of a right of identification and a right of integrity. Other rights include the right to withdraw a work from public circulation and the right to determine whether a work is released into the public domain (Holderness 1998:4). Under the section 77 of the Act there is a right of identification but only where this is asserted in writing. However this right is disapplied by section 79 in the case of computer programs, designs for type faces, computer generated works and works created during the course of employment. The right of integrity exists in a weakened form under section 80 as a right not to have ones work subject to derogatory treatment, although section 82 disapplies this right where a work is created in the course of employment. Further the section 7(2) of the Act allows the waiver of moral rights by written instrument (Holderness 1998:8).
Jurisdiction on the Internet is not impossible to establish, but the enforcement of such jurisdiction can easily overreach itself. In Religious Technology Centre v Netcom Online Communication Services (1995) F.Supp. 1361, the District Court for the Northern District of California had to determine a case concerning the activities of a former minister of the Church of Scientology who posted verbatim extracts of the church's literature to a specialist news group in order to castigate the church. In the U.K. substantial copying would be required before such an action could be brought under copyright law, but the U.S. law requires only derivation, although the degree of copying may be relevant in determining 'fair use' (Cameron 1997:156). Judge Whyte makes it clear that equal protection is afforded to works forming part of a composite work as that given to complete works. The injunction granted was interesting in that it did not extend to fair use and was tailored for enforcement on the Internet. The notion of copying here includes storage on a computer's hard drive, browsing of copyright web pages and uploading and downloading of copyright documents (Cameron 1997:158).
Historically, the U.S. courts have exercised personal jurisdiction on the basis of physical presence. However in International Shoe Co v Washington 326 U.S. 310, 316 (1945) the Supreme Court held that before an out-of-state defendant could be required to submit to a state's jurisdiction, the defendant must 'have certain minimum contacts with [the state] such that the suit does not offend 'traditional notions of fair play and substantial justice'' (Thatch 1997:146). In Bensusan Restaurant Corp v King Case No. 1383 (CA 2nd Cir., 10 September 1997) an action was brought against a jazz club called 'The Blue Note' located in Colombia, Missouri, in respect of its web site which infringed the plaintiff's registered trade mark. The plaintiff was a famous jazz club 'The Blue Note' located in New York City and alleged violations of the Lanham Act, trade mark dilution and unfair competition. The District Court rejected their claims since they had failed to establish jurisdiction. The Court of Appeals affirmed this decision because the New York statute upon which jurisdiction was based only asserted extraterritorial jurisdiction in respect of tortious acts to persons who expect or reasonably expect them to have consequences in that state and in circumstances where the defendant derives considerable revenues from interstate commerce. The plaintiff contended that the defendant engaged in interstate commerce in so far as they engaged artists from all over the country. This was rejected by the court which asserted that the defendant would have to be physically present in New York if jurisdiction were to be established.
Jurisdictional enforcement on the Internet reaches its nadir in Playboy Enterprises v Chuckleberry Publishing Inc. (Unreported, 1996) S.D.N.Y. where the District Court was asked to determine jurisdictional issues regarding the enforcement of injunctions over Internet sites. In this case the defendants had reproduced publications in a very similar format to those of Playboy magazine and in 1981 an injunction was granted which had the effect of prohibiting the operation of the defendant's web site in the United States, however the offending web sites continued to be operated from Italy. One of the publications was free and promoted the second site for which a charge was made. The judge decided that allowing the service to operate from Italy would emasculate the injunction and that the two services operated as an organic whole. Thus access to both sites from the United States should be denied. In this way the judge sought to control the operation of a web site located in another country and extended an injunction to a linked site (Cameron 1997:163).
Although it is arguable that no contributory infringement occurs where one web site links to another, since it is the server of the web site owner which physically downloads the information, such an argument may not be sustainable because the owners of the infringing web site clearly invite that members of the public to access the site using their links. In presenting those links as internal links, without an appropriate disclaimer, they participate in any transaction made through the link when it is activated by a member of the public by making such transactions more straightforward.. The process by which information is sent is an automated process which can be activated with or without consent. For users to view a document on their VDU screen, a copy of that document must be loaded into the RAM of their computer (Jackson 1998:5). Similarly, browser programs must utilise screen memory in order to display documents on screen and thereby take a copy of the document (Netcom v Religious Technology Centre 907 F.Supp. 1361 (N.D. Cal. 1995) at 1378 n.25). It might be argued that such copies are de minimis, but this fails to consider the qualities of the technology being used to transmit Internet communications. Digital data can be transferred across the globe very rapidly and does not degrade when copied. Apart from browsing and linking, this situation is exacerbated by technologies such as framing and caching which can both seriously affect the economic operation of web sites as well as violating authors' moral rights.
However, the operation of the web is dependent upon easy access to information, and systems such as CMS are a threat to the free flow of information and only offer a partial solution to problems such as copyright infringement. The copyright protection of many web sites is, at best, thin and the right to browse is essential for the continued growth of the Internet. The courts therefore need to limit their intervention to circumstances involving ascertainable commercial losses or clear breaches of moral rights. Copyright is designed to deal with intellectual property which has some physical manifestation, but the Internet possesses no physical dimensions. Thus if copyright in cyberspace is not to become an incomplete masterpiece like Kubla Khan, many of the assumptions which underpin conventional notions of copyright will have to be replaced by a more pragmatic approach which takes into account what new technology is designed to do rather than analysing the physical conditions under which it operates. It is not the case that the Internet should adapt to the law; it is the law which must adapt to the Internet (Barlow 1994:359).
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