Internet Not Immune to Copyright Law
Contrary to Gary Chapman’s recent article (“Bill Would Infringe on Internet’s Promise,” May 20), the proposed amendments to the Copyright Act will neither destroy the Internet nor turn innocent Web browsers into criminals. What those amendments would do is confirm the application of familiar copyright protections, already applied to more traditional businesses and technologies, to online services. They do not create novel forms of liability, and they do not weaken the ability of courts to deal fairly and reasonably with those who infringe copyrights inadvertently.
The need for online copyright protection is beyond dispute. Proponents of the Internet are quick to point out that online services have democratized electronic communication. They are less eager to concede that those services also have democratized piracy. The fact is, however, that increasing numbers of persons, acting deliberately and often for profit, are offering computer games, published material scanned from books and magazines as well as valuable software of all kinds for downloading by Internet users all over the world.
If these materials were copied and distributed with the aid of photocopiers, computer disks or other cumbersome methods, no one would argue for their exemption from the copyright laws. The new amendments merely recognize that if copyright infringement is wrong when it is costly and slow, then it should not be immunized when it is cheap, ubiquitous and fast.
Mr. Chapman suggests, however, that the proposed amendments will reach beyond the pirates and impose criminal liability on the innocent Internet user who views copyrighted material placed online, or who e-mails a paragraph of a newspaper column to a friend. Mr. Chapman also suggests that unless the amendments include an outright exemption of online service providers from all copyright liability, the value of the Internet as a medium of communication will be lost. These concerns are entirely misplaced.
First, no one who browses in a copyrighted document without intent to infringe, or who sends a copy of a newspaper column to a friend, need be concerned about prosecution under the Copyright Act. Criminal actions under the measure are limited to those who infringe willfully and for profit or commercial advantage--they do not reach the inadvertent browsers and casual e-mailers described by Mr. Chapman.
And civil actions--i.e., suits to recover damages--are brought only where a plaintiff has something to gain through such an action. Since limited noncommercial uses of copyrighted material may be found to constitute fair use, and since the courts are authorized by the Copyright Act to award token damages--or no damages at all--against so-called innocent infringers, copyright owners ordinarily have no incentive to sue in the circumstances Mr. Chapman describes. This is true today and will be no less true if the proposed amendments become law.
Nor is there any justification for exempting online service providers from the copyright-enforcement responsibilities already imposed on bookstores, photo labs and other dealers in copyrighted material. Those businesses are not permitted to participate in copyright infringements of which they have knowledge and are liable for copyright violations that they have the right and ability to prevent. The proposed amendments are not radical. They carry on the same incremental process by which copyright principles were extended to the motion picture, the phonograph record and the computer software program. There is no reason for the law to stop at the Internet’s door.
CHARLES H. KENNEDY
The writer teaches the legal problems of the Internet at Catholic University Law School in Washington.
