Re: Copyright Infringement Happening at Conference Group - Help!

On 17 Jul 98,, John H. Lederer <johnl[_at_]ibm.net> wrote:
>
> Bruce Hayden <bhayden[_at_]uswest.net> wrote:
> >
> > My view is that printing off of a Web page is indeed licensed,to the
> > extent that displaying the underlying page was. Again, note custom and
> > usage creating the license - many people do indeed print out Web pages,
> > so if you post such a page you have a reasonable expectation that people
> > will do such.
>
> So, he, he, if we all copy movies we rent we'll be OK? Who is willing to
> start off?
>
> I know my kids (I am ashmaed to say) have done much to establish the
> principle that copying games is the custom and usage.
>
> I am being facetious, but I do find something very troubling about
> having a big gray "maybe you are violating the law maybe you aren't"
> cloud hanging over speech.
>
> Don't others? Don't we strike down statutes the least bit vague that
> limit speech because of the chilling effect that uncertainty creates?

I'm not quite sure I understand your initial point here -- that the (alleged) implied license to print out a hard copy of a web page is in any way related, or starts us down the slippery slope, to asserting broad license to copy computer games or rental videotapes. Printing out a single copy of a web page to read offline seems to me to be quite similar to simply reading the same page online. Now, of course it is a very different case if the hypothetical web surfer prints out a couple dozen copies of the page and distributes them -- in this case, I think that the implied license to read the publicly posted web page is being stretched beyond its reasonable limit and might constitute an infringement (albeit an infringement that is unlikely to be the subject of a legal proceeding). The bottom line, I think, is that the author of the web page intends the page to be read, and is unlikely to care whether I read it on my monitor or on a single hard copy. On the other hand, the author probably does not intend that his or her web page will be printed out in multiple copies, any more than the game publisher or videotape manufacturer intends their products to be copied. And, I submit, in the case of an implied license, the intent of the copyright owner is highly significant.

Your second point, however, is one that I find *very* interesting -- that in some instances, the rather fuzzy ways in which the law of copyright operates give rise to a tension with the first amendment by virtue of the vagueness doctrine. The area in which I find this most troubling is fair use. The Supremes have told us that fair use, along with the idea/expression dichotomy, represents the necessary first amendment "safety valve" in copyright law. In my view, this can't be right. The idea/expression dichotomy is irrelevant with respect to the first amendment -- it is freedom of "expression", not freedom of "ideas", which the first amendment seeks to protect. Any claim that the idea/expression dichotomy serves the first amendment interest cannot, I believe, be reconciled with the decision in *Cohen v. California*: "[W]e cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process." 403 U.S. at 26.

That leaves us with fair use -- which is of little or no help, so long as no one can say with any certainty if a particular use is fair without litigating the point. I think you said it very well: "a big gray 'maybe you are violating the law maybe you aren't' cloud hanging over speech." Yes, I do find this very troubling, and I expect it to become more troubling over time, as the so-called "copyright industry" pushes the limits of copyright protection farther and farther.

In the interest of full disclosure, I should mention that I wrote a paper on this topic which I intend to be publishing on my web page Real Soon Now. Anyone who is not already convinced at this point that I am a raving fanatic may be interested in looking at the paper when I get it posted.

Happy trails,
Rod

***
Rod McCarvel, Attorney
5341 Ballard Avenue NW
Seattle, Washington 98107

(206)297-1446
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<rod[_at_]seanet.com> Received on Mon Jul 20 1998 - 18:46:54 GMT