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Copyright and Fair Use in Cyberspace

December, 1998

By Erik J. Heels

Several months ago, I included a joke in the copyright notice for an article that I wrote for another American Bar Association publication (http://www.abanet.org/lpm/magazine/nbn/nbn978.html). I wrote "The opinions expressed by the author are not necessarily those of the author or the ABA's Section of Law Practice Management and its membership." [Emphasis added.]  I did this to emphasize that people rarely read the copyright notices attached to Web pages.  Do you?  Do they matter?  Many Net-related copyright issues are not adequately addressed by current copyright law.  But the educated Web surfer should be aware of the issues, because it is easier that you might think to be in violation of copyright law.

Copyright law has its roots in the Patent and Copyright Clause of the Constitution, which states: "The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries."  Copyright rights have been codified as the Copyright Act of 1976 (17 USC Sec. 101).  The owner of copyright then has the exclusive rights to reproduce, prepare derivative works from, distribute, perform, and display the work.

The Copyright Act then carves out a rather large exception to the exclusive rights listed above.  The fair use clause (17 USC Sec. 107) states that certain copying does not infringe the rights of the copyright owner.  The factors used to determine whether a particular use is fair use include:

1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2) the nature of the copyrighted work;

3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4) the effect of the use upon the potential market for or value of the copyrighted work.

In practice, what this means is that a court's determination of whether a particular use is fair use is very fact-specific.  Factors that would tend to indicate a finding of fair use include 1) use for nonprofit educational purposes; 2) of a work rich in facts (as opposed to a literary work); 3) and only a small or non-vital portion of the work; 4) which does not financially harm the copyright owner.   If a school republished Billboard Magazine's "Weekly Top 40" music list, would such use be fair?  Probably not.  Even though a small amount of the magazine was copied, it was a key part of the magazine, one that may be the sole reason for a portion of its magazine sales.

Now consider the Internet.  If you are reading this article on the Web, your Web browser is making a temporary copy of the article.  These temporary Web files - or cache files - are copies of the original.  Is this copying fair use?  Probably not.  Are you going to be sued by the ABA for keeping a copy of this article in your cache?  Probably not.  The most popular argument that this copying does not violate the owner's rights is based on the notion of an "implied license" to copy.  The theory goes that if a webmaster publishes a Web site, then he/she understands how the Web works, intends for people to see the pages on the site, and implicitly approves of the users keeping temporary copies of the pages as Web browser cache files.

But what about so-called offline browsers?  These software programs are designed to download and copy to your computer various sites of your choosing.  For example, if you want to check out what's new at ESPN.com while you're offline, then an offline browser may be what you're looking for.

Two offline browsers are WebWhaker by Blue Squirrel (http://www.bluesquirrel.com/whacker/) and Web Buddy by Dataviz (http://www.dataviz.com/products/webbuddy/wb_home.html). At least one educational institution suggests that "whacking" a Web site is fair use (http://www.edb.utexas.edu/regcol/techhelp/inetutor/whacking.htm).  Blue Squirrel's site is silent on copyright law, but Dataviz's site says "Why have everyone in your company (or your team) do research over the Web?  Share the pages and sites that you have downloaded on a server or a removable media, such as Zip or Jaz disks. Now, anyone with a browser can view the pages with or without an Internet connection."  Actually, their earlier example of how to use the product (for offline browsing on a plane or at the beach) sounds a lot more like fair use than the above example.

Programs that download content automatically from Web sites are called agents.  An offline browsers is one kind of agent.  A search engine's "spider" is another.  If webmasters do not want agents visiting their site, they do have a defense.  A de facto industry standard called the "robots exclusion standard" (http://info.webcrawler.com/mak/projects/robots/norobots.html) has been devised to allow webmasters to restrict agent access to all or part of their Web sites.  By simply adding a properly configured "robots.txt" file to your Web site, you can exclude certain agents from all or part of your site.  Of course, there is nothing that prevents - other than peer pressure and bad press - software agents from ignoring the robots.txt file.  But nearly all respect the standard.  And if you want to know which agents aren't playing by the rules, simply check out http://www.yahoo.com/robots.txt.

Oddly, some webmasters have chosen to write copyright notices (which we assume are designed for human users) to address use of their sites by agents.  For example, the copyright notice on the LegalEthics.com site (http://www.legalethics.com/copyright.htm) states " THE USE OF WEBWACKER OR SIMILAR PRODUCTS TO DOWNLOAD OUR ANY OF THESE PAGES INFRINGES ON OUR COPYRIGHT. DO NOT USE WEBWACKER OR SIMILAR PRODUCTS ON THIS SITE!"  Of course, there is a problem with this approach (besides the obvious that an agent will not "see" the notice).  Namely, that it claims more rights that the Copyright Act grants by implicitly denying even Fair Use.  However, the file robots.txt (which is like a copyright notice for agents) does exist on the site, and in fact is one of the most comprehensive robots.txt files I've seen!

When I was a kid, I used to save the "year in review" issues of Newsweek.  I also saved newspaper clippings of major events, such as when the Red Sox won the 1975 pennant.  I still haul boxes of historic magazines and newspapers from house to house.  But a few years ago, things started to change.  About the time that I got my first Lexis-Nexis account, I stopped reading Newsweek.  As various historic articles were published, I would save the articles from Lexis. As the Web matured, it became a viable supplement to Lexis. I decided to purchase an offline browser, WebWhacker, which I use to download historic Web pages.  A quick look through my collection reveals a copy of the Time-Warner Pathfinder (http://www.pathfinder.com) home page from the day O.J. Simpson was acquitted (10/03/95), the Royal Family's official home page regarding Princess Diana's death (07/31/97), and Mark McGwire's 62nd home run (09/08/98).  I've also got a copy of the 09/98 Starr Report, but some files are more likely to be shared with future generations than others.  Is my use of WebWhacker in this manner fair use?  If not - and as long as I don't redistribute or republish the information - do you think the copyright owners mind?  The answer to both of those questions is probably no.

But what if pages downloaded with WebWhacker are republished?   I have read with interest various articles about organizations attempting to catalog the Web for future generations. The Royal Library in Stockholm, Sweden, is actually archiving all Swedish home pages.  And an attorney in Australia is creating copyright archives of Web sites in that country (http://www.copyrightarchive.com/).

Rick and I periodically review law firm Web sites on our site (http://www.redstreet.com). Just as I've saved historic Web pages in my "news clipping" file, I have saved home pages from law firm Web sites with WebWhacker.  Having copies of these home pages makes it easy for us to see how a law firm's site improves from year to year.  In fact, our archives of law firm Web sites could well be considered a "museum" of law firm Web sites.  But if we publish these home pages on our Web site, is it fair use?  We think so.  Mostly because we are republishing the pages with detailed commentary about each page.  And "comment, news reporting, and teaching" are three examples of fair use stated in the Copyright Act.  This is what allows Siskel and Ebert to show movie clips during their television show.  And it is what allows us, we believe, to create a law firm Web site museum on our site.

The future will no doubt present more twists and turns of copyright law not contemplated by the original Copyright Act.  Only time will tell how the law in this area will evolve.  But if you are using and offline browser, you should think carefully about how your use complies with the law as it now stands.

This article originally appeared in the December, 1998 issue of Student Lawyer, and is copyrighted by the American Bar Association. It appears here with the permission of the ABA.