On 1/13/00, Laurie Urquiaga <urquiagal[_at_]lawgate.byu.edu> wrote:
>
> On Wed, 12 Jan 2000, Bob Stock <bstock[_at_]mindspring.com> wrote:
> >
> > On 1/11/00, Michael Sowinski <msowinski[_at_]dpra.com> wrote:
> > >
> > > I would really appreciate a word of advice. Several newsletters
> > > that my company subscribes to have begun to offer their periodicals
> > > via electronic delivery services, such as PDF. If my company, which
> > > includes 8 offices nationwide and one in Canada, stores those PDF
> > > files on our company Intranet site where they could be accessed by
> > > all of our offices, would we be infringing?
> >
> > Depends on the terms of the subscription, but in the absence of terms
> > to the contrary, I would think yes. If you took your current hard
> > copy magazine, scanned it, and made it available on your Intranet,
> > wouldn't you be infringing? I can't see much of a difference between
> > that and the .pdf hypo (I realize there are technical differences).
>
> Actually, I see a big difference. If you have a paper copy, and route
> that copy to all of the interested parties (no copying involved, unless
> an individual makes one for him/herself), I think it would clearly be
> allowed.
Yes, without anyone making copies, there's no problem (assuming magazine publishers don't create licenses like software licenses that limit transfers because you don't really own a copy, you own a license to the copy :-) ).
> What about a subscription that comes electronically that is
> stored on a network in such a way that it can be viewed by only one
> workstation at a time? There is no transformation of the work involved,
> and without multiple simultaneous users, where's the infringement?
If the number of viewers is limited to one, it's similar to your paper analogy. Nonetheless, you might still run afoul of the literal language of what it means to publicly display a work:
"to transmit ... a ... display of the work ... to the public,
by means of any device or process, whether the members of the
public capable of receiving the performance or display receive
it in the same place or in separate places and at the same time
or at different times."
17 U.S.C. sec. 101.
The work is transmitted from the server to the user's workstation and then displayed on the user's monitor. The fact that each person views it at a different time doesn't seem to be saved by the statutory language. One might argue that the *display* is not being transmitted, only the *work*, which is then displayed. That seems a bit weak, but it shows what happens when you have language that doesn't take into account technical niceties. It's an interesting question and not susceptible to an easy answer. The main practical difference between the computer and the paper routing solutions is that the former, logistically, permits people to view the work more easily and quickly. Not a trivial difference, either, but that doesn't necessarily change the legal analysis.
> Even if a user independently prints (or even downloads) all/part
> of the pdf, what's the difference between that and a single user
> making a scan or copy of a routed periodical?
There isn't, but that kind of copying was held not to be fair use in Texaco. Now, if the subscription permits a single user to make a single printout of the pdf file, then there's no differnece, but, here again, we are talking about licensing type terms.
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