June 2000

On-Line Copying Is (Generally) Not Fair Use

8 min

A copy is a copy is a copy! It does not matter what the format, under federal copyright law, you generally need permission to make a copy. Copies take many forms such as photographic, mechanical reproduction, photocopies, and electronic copies. When you make a copy and save it on your hard drive, it is no different than making a copy in a photocopier. You are making a copy when you attach a file to your e-mail, when you "send a page" by e-mail, or even when you merely forward a message to someone else. You are also making a copy when you upload or download a file. Courts have held that when anything is loaded into your computer's memory (RAM) without permission, it is a copyright infringement (unless it qualifies for the "fair use" exception, as discussed below). One court has gone so far as to hold that, under certain circumstances, merely viewing an image on your computer is making a copy. That court held that if you were viewing someone else's Web site without authorization, you are committing a copyright infringement. Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 Fed. Supp. 2d 1290 (USDA DUCD, 1999).

Of course, many Web sites, for instance, provide an express policy granting limited permission for users to download and use material on the Web site for individual use, but making clear that such permission does not extend beyond that. In other cases, there may well be a limited "implied license" to download and use material on the Web site for individual use, but in most cases an implied license will not be construed any broader than that (e.g., will not permit the materials to be forwarded to others). In some cases, no such implied license can be inferred. Finally, asking express permission of the Web site owner (by e-mail, telephone or otherwise) is always an option. Where such permission is sought, while verbal authorization may be legally sufficient, written permission - even in the form of a reply e-mail message - is desirable and encouraged.

Many associations, as a service to their members, copy articles and materials that they find on-line and post them to their own Web sites (or send them to their members via a listserv or other e-mail system). Most of the time, the question as to whether such a posting is permissible is not even entertained. Associations generally assume that anything found on the Web may be copied, or that since they are nonprofit organizations and are not charging for the copied articles and materials, their activities must constitute some type of "fair use." "Fair use" is an exception to the exclusive rights granted to a copyright owner under copyright law. There are certain uses of copyrighted material which, as a matter of public policy, will trump the copyright owner's monopoly. Fair use is one of the most misunderstood concepts in copyright law and is the defense of last resort of every infringer.

It is safe to say that if an association copies an article in its entirety and posts it to its Web site without permission, it is a copyright infringement. Such action generally is not going to be found to constitute a permissible fair use. This is true even though the association is a nonprofit, tax-exempt organization, even if there is no fee charged to any individual viewing the Web site, and even if the association does not make any money by posting the article. It is also true even if the association couches its efforts in educational terms.

If an association wants to provide the information contained in an article to its members, it may summarize the article and provide a hyperlink to the actual article on the Internet. In that manner it can inform its members of all-important information and news without violating anybody's copyright (as no "copying" is involved). Courts have held in a fairly consistent matter that hyperlinks generally do not require permission and generally are not violative of anyone's rights. See, e.g., Ticketmaster Corporation v. Tickets.com, Inc., 54 USP 2d 1344 (USDC CDCA, 2000). Be aware, however, that a hyperlink to a Web site known to contain infringing or otherwise illegal material may, in certain circumstances, create liability for the party providing the link to material it knows to be illegal. In addition, the practice of "deep-linking" (whereby the link is made to a page deep within a Web site that bypasses the site's home page) has been challenged in some cases and its legal permissibility is currently unsettled.

A recent case illustrates these points far better than a hypothetical. Los Angeles Times v. Free Republic, 54 USP 2d 1453 (USDA CDCA, 2000). An Internet bulletin board operator posted articles from the L.A. Times and The Washington Post on its site. The defendant in this case was an entity called Free Republic which operated the www.freerepublic.com Web site on which members post news articles with their comments for other visitors to read and further comment upon. The federal court, in this instance, found that this was not a fair use. The court analyzed the case using the statutory factors that a court must look to in order to decide whether or not any specific use is a fair use. One aspect the court looks to is the purpose and character of the use. This factor assesses whether the use is commercial or is for nonprofit educational purposes, with the latter weighing in favor of fair use. The court also looks and determines whether the new work merely supersedes the original work or adds something new to it. When something new is added it is considered transformative (which weighs in favor of a finding of fair use). In discussing the case, the court observed that both The Washington Post and Los Angeles Times had their own on-line publications. After reviewing the various Web sites, the court concluded that there was nothing transformative about copying the entire work verbatim. Free Republic's argument that the visitors' comments were transformative was rejected by the court. The court also rejected the argument that copying the articles was necessary to facilitate discussion, criticism and comment. The argument was made by Free Republic that since Internet links often expire after a week or two, copying the articles in their entirety was therefore necessary. In rebutting this argument, the court pointed out that the links expire because the newspapers charge for reviewing the articles after the first two-week period of free viewing lapses.

The court went on to dismiss Free Republic's claims that because it is a nonprofit organization and made no money from operating its Web site, it should be allowed to reproduce the articles. The court stated that the inquiry which should be made is not whether the sole motive of the user is monetary gain but whether the user stands to profit from exploitation of the copyrighted materials without paying the customary price. The court found that the posting of the articles assisted the Web site in attracting visitors to the site. This conduct was beneficial to the organization since it used the site for the commercial purposes of promoting the association (whose members pay dues) and generating advertising revenues.

The court in this case referred back to the now-famous Texaco case. American Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir 1995). In the Texaco case, researchers at Texaco made just a few photocopies of a commercial newsletter and circulated them within the company's research department. The court found that even making just a few copies of a commercial newsletter for research purposes was an infringement. It was held to be an infringement even if the copier, Texaco, derived no direct revenue from its photocopies of the articles. Texaco reaped indirect benefits, however, from its photocopies in not having to buy additional subscriptions to the newsletter. Indirect economic benefit weighs against a finding of fair use. Similarly, in this case, posting articles on Free Republic's Web site after the free two-week period allowed visitors to the site to avoid paying the customary price charged by the copyright owners (the newspapers) for the works. The court also looked to the nature of the copyrighted work. The more factual and functional a work, the less protection it receives under copyright law. The newspapers' articles were news articles and predominantly factual and, as such, would enjoy less protection than other types of works such as opinions or analyses. However, since the entire articles were copied, more than the unprotected facts were extracted from them. Therefore, this factor also weighed in favor of the copyright owner.

Finally, the court looked at the effect of the use upon a potential market for the copyrighted work. Here the court concluded that an adverse effect on a potential market for the articles had been demonstrated. If people could view them for free on Free Republic's site, they would not then purchase them from the L.A. Times or Washington Post's archive. Nor would they purchase the print versions of the newspapers. Free Republic also raised First Amendment protection arguments which the court dismissed.

Many Internet users mistakenly believe the copyright laws have been suspended or relaxed on the Internet. This is not true. Courts have been particularly supportive of intellectual property owners when it comes to on-line infringements. The courts realize the vast potential for copyright abuse through the Internet and are reacting by providing assistance to copyright owners in their never-ending quest to prevent unauthorized copying of their works.

Much of the on-line copying is not done with the intent of violating anyone's rights, but simply out of ignorance of the law. Copyright infringement is a strict liability violation. What that means is that even if you infringe on someone else's works innocently, it is irrelevant. The often-quoted statement, "Ignorance of the law is no excuse," may be a cliché, but it is all too true when it comes to copyright infringement.

The best advice one can give is - Ask before you post!