Copyright law in the United States was established at a time when the primary concerns were literary and musical works in written form. But we now live in the Information Age in which computers, software, electronic and digital modes of storage and communication, and the internet have led many to view paper publications as obsolete. How has copyright law responded to this strange new environment? That is the focus of this chapter.
8.1 Software
Key point. A report issued by the Software & Information Industry Association and the Business Software Alliance estimates that software “piracy” (the unauthorized duplication of copyrighted software) in 1999 cost U.S. software owners $3.2 billion. The report estimates that one in three uses of software by U.S. businesses in 1999 was from an unauthorized copy.
Most churches own several software programs. Common examples are word processing, spreadsheet, database, financial, and audiovisual “presentation” software. It is common for many of these programs to be pre-installed on new computers, while other programs are purchased and installed after a computer is acquired.
copying software
There is much public confusion regarding the legality of making copies of software. This confusion is understandable. Consider the following factors:
• Software is a recent development unlike any previous medium or technology. This uniqueness has caused confusion regarding the legality of copying.
• Many software providers use “shrinkwrap licenses” that clearly describe the user’s rights and obligations. But few users ever read these licenses because they consider them to be self-serving, or they find the language so technical as to be unintelligible. The “license” is quickly torn off the package and discarded.
• There are countless software programs that are freely available over the internet (often called “shareware”) that are intended to be copied and shared. This practice has helped create the perception that software can be copied.
• The availability of all kinds of free information over the internet creates the perception that the public has a legitimate right to freely access and copy any information, whether subject to copyright protection or not.
As a result of these and other factors, many software users now view software as “different” from books and periodicals, and they assume that ordinary copyright principles do not apply. They believe they have a “right” to copy software and other forms of digital information. But as the landmark “Napster” case demonstrates, this perception is not always accurate and can lead to copyright infringement. 1
What then do church staff need to know about copying software? This question is addressed in the following subsections.
A. Software Is Protected by Copyright Law
copyright covers software
Section 102 of the Copyright Act specifies that copyright protection “subsists … in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. There is no question that this section allows software programs to be protected by copyright. 2 This means that the copyright owner of a software program has the same exclusive rights as any copyright owner, including the exclusive rights to copy and publicly distribute the program. As a result, it is a violation of copyright law for anyone who owns or possesses a software program to copy it, with the exceptions noted below.
Key point. A good rule to follow is that if a copyrighted software program can be used simultaneously by two or more persons then you have committed copyright infringement, because the only way that this can happen is for one or more copies to have been made.
Example. Jay is a church staff member. He purchases a new computer at his home that came installed with the latest version of Microsoft Word. He brings the CD containing the software to work, and copies it on his church computer as well as the computers of three other staff members. Jay has committed copyright infringement if the copies he made at work were not authorized by Microsoft. This practice is sometimes called “softlifting.”
Example. Jay is a church staff member. He purchases a new computer at his home that came installed with the latest version of Microsoft Word. He installs the program on his laptop computer using the CD that came with his new computer. If Jay is the only person who uses both computers, then an argument can be made that no “simultaneous use” is possible, and therefore no copyright infringement has occurred.
Example. Same facts as the previous example, except that Jay’s wife often uses his home computer. Since simultaneous use of Microsoft Word is possible, Jay’s act of installing the software on his laptop constitutes copyright infringement unless the copy was authorized by Microsoft.
Example. Jay lets a friend borrow the CD containing the Microsoft Word program so she can install it on her computer. The friend returns the CD to Jay as soon as she installs the software on her personal computer. Jay has committed copyright infringement unless the copy was authorized by Microsoft.
rationale
Some have argued that these rules are overly technical, and that persons who purchase computer software should be allowed to make copies so long as they realize no financial benefit. After all, cannot computer software be compared to a book that is purchased at a bookstore? The book owner is free to let anyone else borrow and read the book, and so why can’t a purchaser of computer software do the same? Such an argument is unconvincing. Consider the following points:
• Book buyers who let others borrow and read their books are not making unauthorized copies. They are exercising their rights under what is called the “first sale doctrine.” This doctrine, which is set forth in section 109(a) of the Copyright Act, specifies that the owner of a lawful copy “is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy.” But when a purchaser of computer software lets others borrow and download the software on their own computers, an unauthorized copy ordinarily is made that infringes on the copyright owner’s exclusive right of duplication. A better analogy would be a book buyer who, rather than allowing others to borrow and read his book, makes copies for them. There is no question that this would amount to copyright infringement, and this is exactly what purchasers of computer software are doing when they allow others to download the software onto their own computers. Unauthorized copies are being made in violation of the copyright owner’s exclusive rights.
• Computer software is a valuable property right. It is really no different in principle than computers themselves since both are examples of property. One is simply more tangible than the other. Would a church employee consider stealing a computer software program from a local office supply store without paying for it? Of course not. And yet, that is exactly what church employees are doing when they make unauthorized copies of a copyrighted software program. They are “stealing” from the copyright owner by acquiring a valuable property right without permission and without payment.
• Some church leaders evaluate whether or not to follow copyright law on the basis of the risk of detection and punishment. After all, if no one will ever know that church employees made a few unauthorized copies of computer software, who cares? But church leaders, more than anyone, should be guided in their judgments by ethical principles rather than the risk of punishment. Would a church employee walk out of a grocery store without paying for a cart of groceries because “no one was watching,” or would he be guided by higher principles?
• In section 1.1 of this text we learned that the purpose of copyright law is “to promote the progress of … the useful arts, by securing for limited times to authors … the exclusive right to their respective writings.” If authors and composers are given exclusive rights in their creative works, they will have little if any incentive to create them, and the public will be the loser. The United States Supreme Court stated the rationale as follows: “The economic philosophy behind the clause empowering Congress to grant … copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors … in the useful arts. Sacrificial days devoted to such creative activities deserve rewards, commensurate with the services rendered.” 3 If unauthorized copying of computer software becomes common enough, then companies and individuals will produce less of it because the financial rewards are too uncertain. In such a case, the entire society is the loser. Who, after all, is willing to work for extended periods of time without compensation? Jesus said that “the worker deserves his wages.” 4
B. Penalties for Unauthorized Duplication of Computer Software
As noted in section 5.3 of this text, a copyright infringer faces civil penalties of up to $150,000 per violation, and criminal penalties of up to $250,000 and a prison term of up to 5 years.
C. When Software Can Legally Be Copied
when software can be copied
In some cases, an owner of computer software can make a copy without committing copyright. Consider the following examples:
(I) the intangible copy made in a computer’s random access memory (RAM)
Section 117 of the Copyright Act specifies that it is not an infringement for the owner of a software program to make the “intangible copy” of the program in a computer’s random access memory (RAM) that is needed to operate the program.
(2) archival copies
Section 117 of the Copyright Act specifies that it is not an infringement for the owner of a software program to make a single backup copy for archival purposes.
(3) authorization by the copyright owner
Copyright owners may authorize the duplication of computer software. Examples include (1) “site” licenses (sometimes called “concurrent use” licenses) that authorize employers to make up to a specified number of copies for their employees; (2) “shareware,” which is software that users are allowed to copy on the condition that they pay the copyright owner a fee; (3) “freeware,” which is the same as shareware except that no fee is expected or required; (4) a “shrinkwrap license” that comes with computer software and that in some cases may authorize a purchaser to make a limited number of copies under specified circumstances.
Tip. Some computer software licenses permit the purchaser to download the software on a computer at a place of employment and at home. Be sure to read your software license carefully since it will specify permitted uses.
(4) software in the public domain
Software in the public domain has either lost its copyright protection, or never had it. This will be rare for any software created since March of 1989 when the Berne Treaty became effective, since a copyright notice is no longer required to maintain copyright protection. This means that the omission of a copyright notice on software will not result in the loss of copyright protection.
Example. A church has a computer network for all of its office computers. The church purchases a “Local Area Network” (LAN) version of a software program that is installed on the network and is accessible by all users. This practice is permissible so long as the terms of the license agreement are followed. For example, some licenses only permit access by a specified number of users. If this number is exceeded, copyright infringement occurs.
Example. Same facts as the previous example, except that the church purchases a software program designed for use by an individual user (not a network). The software is installed on the church’s computer network and is accessible by all users. This constitutes copyright infringement unless such use is authorized by the license agreement.
Example. A church owns one computer: It has purchased several pieces of software. It is not an infringement for the church to input its lawfully obtained software into its computer’s random access memory, although this constitutes the making of a copy. The church may also make a single backup copy of each item of software for archival purposes. Note, however, that the backup copy must be for archival purposes only. It cannot be used on a minister’s personal computer, or any other computer on the premises (unless the copyright owner has authorized additional duplication).
Example. A church has 2 pastors and 6 nonminister employees who have church-provided computers. One of the pastors purchases a new software program that works so well that he allows all of the other church employees to download the software onto their computers. Unless specifically authorized by the copyright owner (for example, in a license agreement) this practice constitutes copyright infringement since it violates the copyright owner’s exclusive right of reproduction.
Example. Pastor Greg has a computer in his church office. In order to enable him to perform work while at home, the church permits him to copy onto his home computer three software programs that were purchased for his church computer. Is this practice permissible? After all, the only reason the copies are being made is to enable Pastor Greg to perform work at home. If the software can legally be used at church, why can’t it be used at home? Copying the software onto Pastor Greg’s home computer infringes on the copyright owners’ exclusive right of reproduction, unless the copying is authorized by license.
Key point. Church staff should avoid purchasing software through internet auctions. It is common for persons to offer expensive software programs at a small fraction of their retail price. The low price makes the software very attractive, and can result in quick profits to the seller. In many cases, the software being offered represents an unauthorized copy. A recent survey conducted by the Software Information & Industry Association shows that 91% of all software sold over internet auctions is illegitimate. Unbelievable “bargains” are a good sign that the software is an unauthorized copy.
D. Reducing a Church’s Liability Through a Software Policy
software policy
Employers are liable for the copyright infringement of their employees committed within the scope of their employment. 5 As a result, it is advisable for churches to take steps that will reduce the risk of liability for their employees’ infringing acts. Here are two steps that can reduce a church’s risk of liability: (1) adopt a software policy, and (2) have all staff sign a statement acknowledging their receipt, comprehension, and acceptance of the policy. A sample software policy and employee acceptance are set forth in Illustration 8-2.
8.2 E-mail
Most churches now have computers that are connected by modem or cable to the internet. This has opened a whole new mode of communication which has come to be known as “email.” It is now common for church staff members to communicate with other staff members, congregation members, vendors, and a host of other persons and organizations by means of email. But church staff should recognize that the use of email can lead to copyright infringement in some cases.
Illustration 8-1
Software Policy
Most software programs available for use on computers owned by the church are protected by federal copyright law. Churches are not exempt from these laws. In addition, software is normally protected by a license agreement between the purchaser and the software seller. The software provided by the church for use by staff may be used only as specified in the applicable software license. It is the policy a church to respect the copyright protections given to software owners by federal law. As a result, the church expects all staff to abide by this policy.
1. Prohibitions. Church staff are prohibited from engaging in any one or more of the following acts:
(a) Making unauthorized copies of church-provided software, including the downloading of church-owned software programs on an employee’s personal computer at his or her home. The making of one archival copy of a software program is allowed so long as it is made by the user of the original program, kept with the original program, not further duplicated, and not used as a working copy unless the original is lost or destroyed. Staff are permitted to download a software program on a replacement computer so long as the program is deleted on previously used computer.
(b) Making unauthorized copies of software owned by a staff member for use on a church computer.
(c) Using unauthorized copies of software programs.
(d) Allowing persons who are not church staff members to make duplicate copies of church-provided software without the express written permission of the copyright owner.
(e) Using church equipment to make unauthorized copies of software.
(f) Using unauthorized copies of software on church-owned computers or on personal computers on church property.
(g) Modifying a program to enable several persons to simultaneously access the program by means of a network or otherwise without the express written permission of the copyright owner.
(h) Modifying the contents of a computer program without the express written permission of the copyright owner.
2. Reporting of known or suspected violations. Church staff shall report to the senior pastor or business administrator any known or suspected violations of this policy.
3. Violations of this policy. Any staff member who violates this policy is subject to disciplinary action. In addition, persons who violate U.S. copyright law and software licensing agreements may be subject to civil and criminal liability.
4. Responsibilities of the church. The church will investigate any known or suspected violation of this policy. It also will apprise all current and future staff (having access to church-owned computers) of this policy.
5. Definitions. As used in this policy, the term “staff” refers to employees, independent contractors, volunteers, members, and others who are allowed to use a computer owned by the church. The term “unauthorized copy” refers to copies of copyrighted software that are made without the express authorization of the copyright owner, whether made on discs, CDs, tapes, or in a computer’s permanent memory. The term “unauthorized copy” does not refer to software that is in the public domain or that is “freeware.”
Illustration 8-2
Employee’s Acceptance of Software Policy
I have been given a copy of the church’s Software Policy; I have read and understand all of its provisions; I agree to comply fully with the Software Policy; and in consideration of my continuing employment I understand and agree that any violation on my part of the Software Policy may result in my discipline, including dismissal.
_______________ ___
employee signature date
copyright law and email
To illustrate, assume that Esther is a church employee, and that she has access to the internet on her church-provided computer. Esther occasionally comes across articles and other items that she thinks would be of interest to others, and she downloads the material and “attaches” it to email messages. If Esther downloads and sends copyrighted material by means of email, she has committed copyright infringement by violating the copyright owners’ exclusive right of reproduction. When Esther sends copyrighted material with her email, she is making a number of unauthorized copies. First, the material is stored, at least temporarily, in the internet service provider’s (ISP’s) random access memory (RAM). When Esther sends her email, the ISP makes another copy that is stored in her “out box.” The email is then forwarded to the designated recipient, which often results in additional copies being made “en route” by intermediate providers. Eventually, a copy is made in the recipient’s “in box.” Other copies may be made if Esther makes “back up” copies of her computer memory. As this example illustrates, the use of email can lead to copyright infringements if copyrighted materials are transmitted. As a result, church staff who have access to email should be warned (in writing, through an appropriate policy) not to transmit any copyrighted material.
8.3 The Internet
Most churches now have at least one computer with access to the internet either through a phone modem or cable connection. This section will review the history of the internet, summarize how it works, and then address four potential copyright issues that are associated with church use of the internet.
A. History of the Internet
The “internet” is a collection of tens of thousands of networks linking millions of computers worldwide. What we now refer to as “the internet” grew out of an experimental project of the Department of Defense’s Advanced Research Projects Administration (“ARPA”) designed to provide researchers with direct access to supercomputers at a few key laboratories and to facilitate the reliable transmission of vital communications. ARPA supplied funds to link computers operated by the military, defense contractors, and universities conducting defense-related research through dedicated phone lines, creating a “network” known as ARPANet. Programs on the linked computers implemented a technical scheme known as “packet-switching,” through which a message from one computer to another would be subdivided into smaller, separately addressed pieces of data, known as “packets,” sent independently to the message’s destination and reassembled upon arrival. Each computer on the network was in turn linked to several other computers, creating any number of routes that a communication from one computer could follow to reach its destination. If part of the network were damaged, a portion of the message could be re-routed automatically over any other path to its ultimate destination, a characteristic of the network intended initially to preserve its operability in the event of enemy attack.
Having successfully implemented a system for the reliable transfer of information over a computer network, ARPA began to support the development of communications protocols for transferring data between different types of computer networks. Universities, research facilities, and commercial organizations began to develop and link together their own networks implementing these protocols. These networks included a high-speed “backbone” network known as NSFNet, sponsored by the National Science Foundation, smaller regional networks, and, eventually, large commercial networks run by organizations such as Sprint, IBM, and Performance Systems International (commonly known as “PSI”).
As faster networks developed, most network traffic shifted away from ARPANet, which formally ceased operations in 1990. What we know as “the internet” today is the series of linked, overlapping networks that gradually supplanted ARPANet. Because the internet links together independent networks that merely use the same data transfer protocols, it cannot be said that any single entity or group of entities controls, or can control, the content made publicly available on the internet or limits, or can limit, the ability of others to access public content. Rather, the resources available to one with internet access are located on individual computers around the world. It is estimated that as many as 200 million individuals had access to the information and tools of the internet by the year 1999.
Access to the internet can take any one of several forms. First, many educational institutions, businesses, libraries, and individual communities maintain a computer network linked directly to the internet and issue account numbers and passwords enabling users to gain access to the network directly or by modem. Second, “internet service providers” (ISPs) offer modem access to computers or networks linked directly to the internet for a fee. Third, commercial “on-line services”—such as America Online, CompuServe, Prodigy, and Microsoft Network—allow subscribers to gain access to the internet while providing extensive content within their own proprietary networks. Finally, organizations and businesses can offer access to electronic bulletin-board systems—which, like national online services, provide certain proprietary content; some bulletin-board systems in turn offer users links to the internet.
B. Categories of Internet Use
There are two overlapping categories of internet use. First, an individual who has secured access to the internet can correspond or exchange views with one or many other internet users. Second, a user can locate and retrieve information available on other computers. For any communication to take place over the internet, two pieces of software, adhering to the same communications protocol, are required. A user must have access to certain kinds of “client” software, which enables a computer to communicate with and make requests of remote computers where information is stored. These remote computers must be running “server” software, which provides information in response to requests by client software.
Communicating with other internet users
Perhaps the most widely used internet service is electronic mail, or “email.” Using any one of dozens of available “mailers” (client software capable of reading and writing email), a user is able to address and transmit a message to one or more specific individuals. A user can also “subscribe” to an electronic mailing list on a topic of interest; the user receives a copy of messages posted by other subscribers and, in turn, can post messages for forwarding to the full mailing list. Once a mailing list is established, it is typically maintained using a “mail exploder”—a program such as “listserv” running on the server on which the list resides—that automatically (i.e., without human intervention) responds to a user’s request to be added to or removed from the list of subscribers and retransmits messages posted by a subscriber to others on the mailing list. Some mailing lists are “closed”: a user’s request to join the list requires the approval of an individual who maintains the list. Mailing lists (both open and closed) may also be “moderated”: all messages posted to the list are forwarded to a moderator, who approves certain messages and retransmits them to subscribers.
An individual sending a message that will be retransmitted by a mail exploder program has no way of knowing the email addresses of other subscribers. Even if the user could obtain an email address for each subscriber to a particular list, those addresses alone would provide no information about subscribers. There is no directory that identifies persons using a certain email address. In addition, a user can avoid disclosing his true email address by developing an email “alias” or by using an “anonymous remailer”—a server that purges identifying information from a communication before forwarding it to its destination. Internet users may also transmit or receive “articles” posted daily to thousands of discussion groups, arranged by subject matter and known as “newsgroups,” available through an electronic bulletin-board system known as “Usenet.” When a user with access to a Usenet server—that is, a computer participating in the Usenet system—posts an article to a particular newsgroup, the server automatically forwards the article to adjacent Usenet servers, which in turn forward it to other servers, until the article is available on all Usenet sites that furnish access to the newsgroup in question.
Once a message reaches a particular Usenet site, it is temporarily stored there so that individual users—running client software, known as a “newsreader,” capable of sorting articles according to header information identifying the newsgroup to which the article was posted—can review and respond to the message. Some Usenet newsgroups are moderated; messages to the newsgroup are forwarded to an individual who selects those appropriate for distribution. Because Usenet articles are distributed to (and made available on) multiple servers, one who posts an article to a newsgroup has no way of knowing who will choose to retrieve it, or whether or not the newsgroup is moderated. There is no newsgroup equivalent of a “closed” mailing list: access to a particular newsgroup can only be limited by restricting the number of servers participating in the newsgroup.
The internet also offers opportunities for multiple users to interact in real time. Using a program called “Talk,” two users can exchange messages while they are both online; a message typed on one user’s computer will appear almost immediately on the other’s screen. Servers running so-called “chat” software, such as Internet Relay Chat (“IRC”), permit multiple users to converse by selecting one of many discussion “channels” active at any time. Commercial online services such as America Online, CompuServe, Prodigy, and the Microsoft Network offer their own chat systems for their members. Having joined a channel, the user can see and read messages transmitted by other users, each identified by a name the user selects upon joining the channel. Individual participants in IRC discussions know other participants only by the names they choose upon entering the discussion; users can participate anonymously by using a pseudonym.
Locating and retrieving information on the internet
Individuals with internet access can take advantage of a number of tools for locating and retrieving information and resources stored on remote computers. One who wishes to make certain articles, files, or software available to other users will set up a server, adhering to certain communications protocols, capable of retrieving and presenting stored information in response to a request from client software using the same communications protocol.
1) File-Transfer Protocol (“FTP”). One type of software implements a set of conventions for copying files from a host computer known as “file-transfer protocol” (“FTP”). With appropriate client software, a user with an account on the host computer can contact the server, view a directory of available files, and copy one or more of those files to his own computer. In addition to making files available to users with accounts, thousands of content providers also make files available for “anonymous” retrieval by users who do not possess an account on the host computer. A content provider who makes files available for retrieval by anonymous FTP has no way of discerning who gains access to the files.
(2) “Gopher” Servers. A second type of server software capable of making available the resources of a host computer is known as a “gopher” program. A gopher server presents information in a set of menus, enabling a user who gains access to the server to select a series of increasingly narrow menu items before locating a desired file that can be displayed on or copied to the user’s computer. A content provider who maintains a gopher server ordinarily has no way of knowing who will gain access to the information made available.
world wide web
(3) The World Wide Web. The third and perhaps best known method of locating and accessing information on the internet is by exploring the World Wide Web. Documents available on the Web are not collected in any central location; rather, they are stored on servers around the world running Web server software. To gain access to the content available on the Web, a user most have a Web “browser,” which is software such as Netscape Navigator, Mosaic, or Internet Explorer, that is capable of displaying documents formatted in “hypertext markup language” (“HTML”), the standard Web formatting language. Each document has an address, known as a Uniform Resource Locator (“URL”), identifying, among other things, the server on which it resides. Most documents also contain “links,” which are highlighted text or images that, when selected by users, permit them to view another, related Web document.
Because Web servers are linked to the internet through a common communications protocol, known as hypertext transfer protocol (“HTTP”), a user can move seamlessly between documents, regardless of their location; when a user viewing a document located on one server selects a link to a document located elsewhere, the browser will automatically contact the second server and display the document. Some types of Web client software also permit users to gain access to resources available on FTP and gopher sites.
search engines
A number of “search engines”—such as Yahoo, Magellan, Alta Vista, WebCrawler, and Lycos—are available to help users navigate the World Wide Web. For example, the service Yahoo maintains a directory of documents available on various Web servers. A user can gain access to Yahoo’s server and type a string of characters as a search request. Yahoo returns a list of documents whose entries in the Yahoo directory match the search string and organizes the list of documents by category. Search engines make use of software capable of automatically contacting various Web sites and extracting relevant information. Some search engines, such as Alta Vista, store the information in a database and return it in response to a user request. Others, such as Yahoo, employ a group of individuals to determine whether and how a site should be categorized in the Yahoo directory.
As the growth in internet use and the wide availability of tools and resources to those with access to the internet suggest, the internet presents extremely low entry barriers to those who wish to convey internet content or gain access to it. In particular, a user wishing to communicate through email, newsgroups, or Internet Relay Chat need only have access to a computer with appropriate software and a connection to the internet, usually available for a low monthly fee. The user then in a sense becomes a public “speaker,” able to convey content, at relatively low cost, to users around the world to whom it may be of interest. Those who possess more sophisticated equipment and greater technical expertise can make content available on the internet for retrieval by others (known or unknown) by running a server supporting anonymous FTP, a gopher server, or a Web server. Yet content providers need not necessarily run their own servers or have the programming expertise to construct their own sites; they can lease space on a Web server from another or create a “homepage” through an online commercial service.
C. Church Use of the Internet
A connection to the internet raises several potential copyright issues, including the following:
(1) email
The application of copyright law to email is addressed in section 8.2 of this text.
browsing
(2) browsing
Browsing refers to the viewing of Web pages with a Web browser. To view a Web page the Web browser needs the URL of the desired document. This can be provided by either typing the information in the “URL window” on the browser’s homepage, or by using a pre-existing link on a pre-existing Web page (a “bookmark”). While browsing technically creates unauthorized copies of what is being viewed in the random access memory (RAM) of the user’s computer, the question is whether these transitory copies are permanent enough to constitute a violation of the copyright owner’s exclusive right of reproduction.
Some courts have reached the extraordinary conclusion that browsing the internet results in the making of unauthorized copies because of the temporary copies of web pages that are created in the random access memory (RAM) of the user’s computer. For example, one court ruled that a computer repair person, who was not authorized to use the computer owner’s licensed operating system software, committed copyright infringement when he turned on the computer and loaded the operating system into RAM memory long enough to check an “error log.” 6 According to this case, the loading of data from a storage device into RAM constitutes copying because that data stays in RAM long enough for it to be perceived.
Other courts have concluded that the transitory “copies” of copyrighted web pages and materials that are created in the RAM memory of a user’s computer are not permanent enough to constitute unauthorized copying, and so no copyright infringement occurs. To illustrate, in a case involving the unauthorized copying of copyrighted religious texts by a computer bulletin board service, a federal court ruled that browsing does not constitute a copyright infringement even though it involves the making of unauthorized copies. The court observed:
Browsing technically causes an infringing copy of the digital information to be made in the screen memory…. The temporary copying invoked in browsing is only necessary because humans cannot otherwise perceive digital information. It is the functional equivalent of reading, which does not implicate the copyright laws and may be done by anyone in a library without the permission of the copyright owner. However, it can be argued that the effects of digital browsing are different because millions can browse a single copy of a work in cyberspace, while only one can read a library’s copy at a time. Absent a commercial or profit-depriving use, digital browsing is probably a fair use; there could hardly be a market for licensing the temporary copying of digital works onto computer screens to allow browsing. Unless such a use is commercial, such as where someone reads a copyrighted work online and therefore decides not to purchase a copy from the copyright owner, fair use is likely. Until reading a work online becomes as easy and convenient as reading a paperback, copyright owners do not have much to fear from digital browsing and there will not likely be much market effect. Additionally, unless a user has reason to know, such as from the title of a message, that the message contains copyrighted materials, the browser will be protected by the innocent infringer doctrine, which allows the court to award no damages in appropriate circumstances. In any event, users should hardly worry about a finding of direct infringement; it seems highly unlikely from a practical matter that a copyright owner could prove such infringement or would want to sue such an individual. 7
In other words, even if browsing constitutes the making of unauthorized copies, no copyright infringement occurs in most cases because of the fair use defense8 and the innocent infringer defense. 9
downloading
(3) downloading
Key point. To download means to receive information (usually a file) from another computer by means of a modem. The opposite is an upload, which means to send a file to another computer.
The downloading of materials from websites is a common practice. Pastors may download information to use in preparing sermons, and other church staff members may download information for use in church classes, programs, and publications. If the material that is downloaded is not copyrighted, then there is no problem with infringement. For example, if a staff member downloads forms from the IRS website, this is permissible. But downloading copyrighted material is another story. There is no question that downloading copyrighted information infringes upon the copyright owner’s exclusive right of reproduction. If the user uploads the copyrighted material to others, then the copyright owner’s exclusive right of public distribution may be infringed. 10 However, the fair use defense often prevents downloading from constituting copyright infringement. 11 In other words, downloading copyrighted information for the user’s personal reference or research often will constitute permitted fair use. Examples include downloaded news items, product reviews, travel schedules, research information, and weather reports. These items often will constitute permissible fair use under the four-factor analysis contained in the Copyright Act since the purpose of the downloading is noncommercial, the nature of the downloaded material is factual, the amount downloaded is small, and there is little if any impact on the market for the copyrighted work.
But some downloading will not qualify as fair use. For example, if a user downloads a copyrighted computer program, or music, this cannot be considered fair use. Further, when users upload information to others, this weakens the availability of the fair use defense.
Example. Individuals who downloaded copies of video games “to avoid having to buy video game cartridges” were guilty of copyright infringement. The fair use defense did not apply. 12
Example. In the “Napster” case, a federal appeals court ruled that users who downloaded copyrighted music were engaging in copyright infringement. MP3 is a standard file format for the storage of audio recordings in a digital format. With appropriate software, a computer user can copy an audio compact disk (CD) directly onto a computer’s hard drive by compressing the audio information on the CD into the MP3 format. The MP3’s compressed format allows for rapid transmission of digital audio files from one computer to another by electronic mail. Napster is a company that promoted the sharing of MP3 files through a process called “peer-to-peer” file sharing. Users simply went to the Napster internet site, downloaded software, and then were able to transfer exact copies of the contents of MP3 files from one computer to another via the internet. This allowed users to “download” exact digital copies of a vast array of popular copyrighted songs. A group of music publishers sued Napster in federal court. The court primarily addressed the liability of Napster for copyright infringement, but in so doing it also addressed the liability of individual users who downloaded copyrighted music using Napster. Napster insisted that its users were not engaging in copyright infringement because they were simply downloading MP3 files to “sample” the music in order to decide whether to purchase the recording, and that this is a permissible fair use. In rejecting this argument, the court concluded that sampling remains a commercial use even if some users eventually purchase the music. 13
The Audio Home Recording Act
Digital audio tape (DAT) technology was introduced to the consumer-electronics world in 1986. With this new technology, consumers for the first time could make home copies of prerecorded music as good as the commercial originals. Moreover, the technology allowed consumers to make copies not only from the commercial originals but from “copies of copies.” From a single work, thousands of copies could be made that would be virtually indistinguishable from the original. The music recording industry became concerned that the DAT recorder’s “perfect” copying capabilities could significantly decrease consumer demand for commercially prerecorded music products because there would be significantly more illegal “perfect” copies in circulation. The Audio Home Recording Act (AHRA) was enacted by Congress in 1992 to address this concern. AHRA contains the following provisions: (1) consumers are permitted to make copies directly from a lawfully purchased prerecorded tape for personal use but, due to digital code that is inserted into any initial copy, are prevented from further copies from the initial copy; (2) a royalty is imposed on digital recorders, which are deposited with the Copyright Office for distribution by the Copyright Royalty Tribunal; (3) consumers are given immunity from liability for making analog musical recordings or digital musical recordings on a device covered by the AHRA royalty provisions. Note that computers and CD-R drives are not covered devices, and so AHRA does not provide legal immunity to persons who copy music onto their computer’s hard drive or a CD.
Key point. According to one survey, 73% of college students used Napster at least monthly to download unauthorized copies of copyrighted music. Another survey found that persons 18 to 24 years of age downloaded copyrighted music at least once each week.
(4) websites
church websites
Churches can commit copyright infringement when creating and maintaining their own websites. Here are some examples:
• Images. The use of someone else’s image on your own website without permission is a potential copyright infringement. Some “clip art” providers allow the use of their work on a website for a fee. Before using clip art, be sure to read carefully the terms of the license.
• Text. The use of copyrighted text on a website without permission will infringe upon the copyright owner’s exclusive rights of reproduction and public distribution.
• Linking. Most web pages are written in computer languages, chiefly HTML, which allow the programmer to prescribe the appearance of the web page on the computer screen and, in addition, to instruct the computer to perform an operation if the cursor is placed over a particular point on the screen and the “mouse” is clicked. Programming a particular point on a screen to transfer the user to another web page when the point (referred to as a hyperlink) is clicked is called linking. Web pages can be designed to link to other web pages on the same site or to web pages maintained by different sites. For example, a web page maintained by a church may provide a hyperlink to its parent denomination’s site, or to the site of a church literature supplier. Links bear a relationship to the information superhighway comparable to the relationship that roadway signs bear to roads. Like roadway signs, they point out the direction. Unlike roadway signs, they take one almost instantaneously to the desired destination with the mere click of an electronic mouse. The courts have ruled that linking in itself does not constitute copyright infringement. To illustrate, one court observed,
Links are what unify the World Wide Web into a single body of knowledge, and what makes the Web unique. They are the mainstay of the internet and indispensable to its convenient access to the vast world of information. They often are used in ways that do a great deal to promote the free exchange of ideas and information that is a central value of our nation. Anything that would impose strict liability on a website operator for the entire contents of any website to which the operator linked therefore would raise grave constitutional concerns, as website operators would be inhibited from linking for fear of exposure to liability. And it is equally clear that exposing those who use links to liability … might chill their use, as some website operators … may be more inclined to remove the allegedly offending link rather that test the issue in court. 14
Church websites should not contain links to other websites without first obtaining permission from the provider of the other site. Also, never create links that do not clearly reveal the source of the linked information.
• Miscellaneous issues. There are other legal concerns associated with the establishment and maintenance of church websites having nothing to do with copyright law. These concerns, which are beyond the scope of this book, include the selection and protection of domain names, defamation, and trademark infringement.
The Napster Case
In 1987 a standard file format for the storage of audio recordings in a digital format was established that became known as MP3. With appropriate software, a computer operator can copy an audio compact disk (CD) directly onto a computer’s hard drive by compressing the audio information on the CD into the MP3 format. The MP3’s compressed format allows for rapid transmission of digital audio files from one computer to another by electronic mail. Napster is a company that promoted the sharing of MP3 files through a process called “peer-to-peer” file sharing. Users simply went to the Napster internet site, downloaded software, and then were able to transfer exact copies of the contents of MP3 files from one computer to another via the internet. This allowed users to “download” exact digital copies of a vast array of popular copyrighted songs. A group of music publishers sued Napster in federal court. The publishers claimed that Napster was a “contributory and vicarious” copyright infringer, and they asked the court to issue an injunction prohibiting Napster from “engaging in, or facilitating others in copying, downloading, uploading, transmitting, or distributing” copyrighted music. The court issued the injunction, and Napster appealed. A federal appeals court ruled that Napster had engaged in copyright infringement, and it sustained the district court’s injunction. The appeals court concluded that Napster users infringe at least two of the copyright holders’ exclusive rights—the rights of reproduction and distribution. Napster users who upload files for others to copy violate the copyright holder’s exclusive right of public distribution. And, Napster users who download files containing copyrighted music violate the copyright holder’s exclusive right of reproduction. The court conducted that Napster was liable for the users’ acts of copyright infringement on the basis of “contributory copyright infringement.” It explained, “one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a contributory infringer. Put differently, liability exists if the defendant engages in personal conduct that encourages or assists the infringement.” The court noted that Napster had “actual, specific knowledge of direct infringement” by its users, and concluded that “if a computer system operator learns of specific infringing material available on his system and fails to purge such material from the system, the operator knows of and contributes to direct infringement.” The court also found Napster liable for its users’ acts of copyright infringement on the basis of “vicarious copyright infringement.” It defined vicarious infringement as infringement that is imputed to an employer because of acts of infringement by its employees in the course of their employment. But it concluded that vicarious liability also can be imputed to a defendant that “has the right and ability to supervise the infringing activity and also a direct financial interest in such activities.” The court ruled that this test was met in this case. Not only did Napster have a direct financial interest in the infringing activity of its users (its future revenue was dependent upon “increases in userbase”), but it also had the ability to supervise its users’ conduct. The court noted that Napster’s ability to block infringers’ access for any reason was evidence of the right and ability to supervise, and that “to escape imposition of vicarious liability, the reserved right to police must be exercised to its fullest extent. Turning a blind eye to detectable acts of infringement for the sake of profit gives rise to liability.” 15
D. Internet Usage Policy
See Illustration 8-3 for a sample employee internet usage policy, developed by the Software & Information Industry Association.
Illustration 8-3
Employee Internet Usage Policy
Note: This policy was prepared by the Anti-Piracy Division of the Software & Information Industry Association (SIIA). It is reprinted with permission. SIIA permits the use of this policy in church employee manuals, and authorizes churches to modify the policy.
As part of this organization’s commitment to the utilization of new technologies, many/all of our employees have access to the internet. In order to ensure compliance with the copyright law, and protect ourselves from being victimized by the threat of viruses or hacking into our server, the following is effective immediately:
1. It is [Organization’s] policy to limit internet access to official business. Employees are authorized to access the internet, for personal business, after-hours, in strict compliance with the other terms of this policy. The introduction of viruses, or malicious tampering with any computer system, is expressly prohibited. Any such activity will immediately result in termination of employment.
2. Employees using [Organization’s] accounts are acting as representatives of the [Organization]. As such, employees should act accordingly so as not to damage the reputation of the organization.
3. Files which are downloaded from the internet must be scanned with virus detection software before installation or execution. All appropriate precautions should be taken to detect for a virus and, if necessary, to prevent its spread.
4. The truth or accuracy of information on the internet and in email should be considered suspect until confirmed by a separate (reliable) source.
5. Employees shall not place company material (copyrighted software, internal correspondence, etc.) on any publicly accessible internet computer without prior permission.
6. Alternate Internet Service Provider connections to [Organization’s] internal network are not permitted unless expressly authorized and properly protected by a firewall or other appropriate security device(s).
7. The internet does not guarantee the privacy and confidentiality of information. Sensitive material transferred over the internet may be at risk of detection by a third-party. Employees must exercise caution and care when transferring such material in any form.
8. Unless otherwise noted, all software on the internet should be considered copyrighted work. Therefore, employees are prohibited from downloading software and/or modifying any such files without permission from the copyright holder.
9. Any infringing activity by an employee may be the responsibility of the organization. Therefore, this organization may choose to hold the employee liable for their actions.
10. This organization reserves the right to inspect an employee’s computer system for violations of this policy.
I have read [organization’s] anti-piracy statement and agree to abide by it as consideration for my continued employment by [organization]. I understand that violation of any above policies may result in my termination.
___________ ____
user signature date
Copyright 2001 Software Information & Industry Association
Endnotes
1 A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). The Napster case is addressed later in this chapter,
2 The earliest court case recognizing the copyrightability of software was a 1983 decision by a federal appeals court. Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3rd Cir. 1983). In the Apple case, the argument was made by Franklin Computer Corporation that computer software was not copyrightable since it was designed to be read by machines rather than humans. The court rejected this argument. It concluded that the “source code” that comprises a computer program is a “literary work” that can be copyrighted.
3 Mazer v. Stein, 347 U.S. 201 (1954).
4 Luke 10:7 (NIV).
5 See, e.g., A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001), Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996); Shapiro, Bernstein and Co. v. H.L. Green Co., 316 F.2d 304 (2nd Cir, 1963); Polygram International Publishing, Inc. v. Nevada / TIG, Inc., 855 F. Supp. 1314 (D. Mass. 1984).
6 MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir.1993).
7Religious Technology Center v. Netcom, Inc, 907 F.Supp. 1361 (N.D. Cal. 1995).
8 See section 6.1, supra.
9See section 1.3,supra.
10 See section 5.1, supra.
11 See section 6.1, supra.
12Sega Enterprises, Ltd. v. MAPHIA, 857 F.Supp. 679 (N.D.Cal.1994).
13 A&M Records, Inc. v, Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).
14 Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294 (S.D.N.Y. 2000).
15 A&M Records, Inc. v. Napster, Inc., 239 F. 3d 1004 (9th Cir. 2001).