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Copyright Primer for Cornell University Digital Copyright Educational Program

by Tracy Mitrano, October 2007

See free demo of online course at www.ecornell.com/copyrightdemo

Historical Antecedents

England produced the first copyright law in the sixteenth and early seventeenth centuries as a response to the development of a new technology: the printing press. Those laws established the principles of "exclusive rights" (Stationer's Act of 1557) and "author's ownership for a period of years" where upon expiration the material would go into the "public domain" (Statute of Anne, 1609). American forefathers regarded copyright law as so important a part of the new political economy of the new United States, balancing innovation with incentive, that they made it a part of the original Constitution. Article I on legislative powers, section 8 reads: "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." One year after the ratification of the Constitution in 1790, Congress passed the first copyright law that provided authors "exclusive rights" for a period of 14 years plus the option of an additional 14. It is important to note that at that time, copyright only covered a selected group of materials such as maps and publications and that the author was required to register those works with the United States Copyright Office in order to receive the law's protection.

Copyright Act of 1976

Since then Congress has passed a number of copyright laws extending the term for protection as well as the scope of the material covered, and eliminating the requirement for registration. In 1976 Congress passed the most recent act. That law offers an author of an original work such as literary, dramatic, musical, artistic, and certain other intellectual works set in a tangible medium the right to:

  • reproduce the work in copies;
  • prepare derivative works based upon the work;
  • distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  • perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
  • display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work or in the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

Moreover, this law provides these rights to the author for a period of 70 years plus their life or 95 years if the "author" is a corporation. (The Copyright Term Extension Act of 1998 added on 20 years to the original 1976 law.) The author need only register the work with the Copyright Office in order to collect damages upon achieving a successful suit for infringement. Finally, some important exceptions exist to this law; for example the right to sell copies of the work or to obtain a license under certain limited situations and notably the use usually of small portions of a work in other settings such as a quote in an article, part of a song in a multi-media production, or even sometimes the entire work such as in a parody of existing material. This last exception is known as "fair use" and even though codified in section 107 of the Copyright Law, which provides four factors to test its applicability (amount, type of work, type of use and market effect), legality is often difficult to determine without a full court proceeding because circumstances play such an important part in every individual situation.

Law, Technology, Market and Social Norms in Conflict

In the second half of the twentieth century owners of the most profitable copyright-protected materials such as books, music and movies relied on this law and existing technology around which they built their distribution business models. With the advent of the personal computer, network systems, digitization of copyright-protected material and public use of the Internet, information technologies disrupted these business models by providing users with ready availability of such works as well as the opportunity to use them in new and creative ways. Most popular among those technologies for wide distribution are file sharing programs. Early versions of these programs, such as the original Napster, maintained a centralized database of material. A Ninth Circuit Court found no fair use exception for the sharing of whole works effectively making anyone who shared them liable for infringement and Napster liable for contributory infringement because it maintained the central database that facilitated the activity. At the time of the court injunction on Napster in 2001 both sides of the law suit stipulated that at least 72 million users had accessed the program -- a large number of people who it would appear engaged in the infringement of copyright! Thus innovative technologies created an environment for the development of new social norms in tension with laws and business models grounded in a previous era.

File Share Programs and Copyright Infringement

A new wave of file sharing systems emerged after the Ninth Circuit decision shut down Napster: systems that decentralized sharing of material among users. Among the most notable of these newer systems were KaZaA and Grokster. A Supreme Court decision in 2005 had the effect of further limiting even their availability if a court might have found those programs induce users to infringe copyright. The Recording Industry Association of America (RIAA), the best known advocate of copyright protection and frequent plaintiff in infringement actions involving file sharing systems, settled with Grokster and KaZaA out of court; since then both systems are no longer active on the Internet. At the same time the RIAA began a campaign of suing individual users whom they alleged had directly violated the copyrights they controlled in popular music. Often they would initiate such suits with a "DMCA notice." "DMCA" stands for the name of a law known as the Digital Millennium Copyright Act of 1998 that is an amendment to the foundational copyright law of 1976. This law provides content owners with the procedural means by which to issue a "cease and desist" order to the owner of a server of material alleged to be infringing their copyright. Because the only information available to the content owner is the Internet Protocol Address (IP address) of the alleged infringer, content owners send the notices to Internet Service Providers (ISPs). When an ISP is a mere conduit between two computers, the ISP has no duty to act on the notices.

Cornell University Policy and Process for the Digital Millennium Copyright Act

Cornell University is the Internet Service Provider for network communications on campus and to the Internet. As a conduit between a student's machine and a server on the Internet, it has no duty to act on DMCA notices. As a matter of policy, the university acts on them because it believes in the principles of citizenship that involve obedience to the law and university policy. Copyright infringement is an explicit violation of University Policy 5.1, Responsible Use of Electronic Communications, and university policy is incorporated into the Code of Conduct. The Office of the Judicial Administrator has jurisdiction over these cases and students have all the accompanying due process rights under the Code accorded to them. Absent a computer security violation, which may incidentally implicate a security policy violation, students identified by content owners as allegedly violating copyright almost never have a defense, however. Content owners derive DMCA notices and infringement cases from outbound traffic exclusively and not least for the reason that users who serve out their intellectual property have no rights and no exclusions under copyright law to distribute copies. The most current file share systems such as BitTorrent, unlike the early Napster and recent KaZaA, do not contain functionalities that allow for the termination of outbound function. The system automatically sends out from the computer the exact bytes of a downloaded file. Moreover, file sharing systems automatically search hard drives and export material requested by another user; even materially legally purchased, for example from iTunes or on a compact disk that the user burns onto their computer, may be uploaded through these systems. The user is liable not for having burned the legally purchased material onto their computer but for distributing it out to other users in contradiction to the explicit provisions of copyright law that prohibit distribution.

Is Copyright Infringement Theft?

In their publicity material, content owners frequently compare copyright infringement to theft. The law does not regard the two so similarly, if only for the reason that the penalties are much greater for infringement than they would be for theft of the same material in a physical format. For example if a student were to steal a compact disk out of a store, the alleged crime is petty larceny, which is hardly prosecuted and never punishable by more than an adjournment in contemplation of dismissal and possibly restitution in the amount of the stolen thing, $20 on average. Copyright infringement is both a criminal and civil offense. A copyright holder who has registered their material, as many content owners of widely sought popular material such as music, videos, games and software do, has a statutory minimum of $750.00 compensation for every offense. Thus, if someone is downloading a series of songs or multiple episodes of an HBO series, the minimum would be multiplied not only by the number of songs or episodes but also by the number of times that person's computer was the source for distribution out on the Internet! If the content owner could prove intent -- which would not be difficult given the obvious implications of file sharing -- then the copyright owner could seek putative damages in exponential amounts from the minimum number. Moreover, criminal sanctions are also possible and have been exercised again in the extreme cases of organizers of extensive file share activity. As content owners have stepped up their activity against alleged infringers of copyright, they have both increased the flow of legal papers to campus ISPs in the form of DMCA notices, "settlement letters," which they request be forwarded to offenders, and preservation notices that are sometimes used to announce a forthcoming subpoena that corresponds to a full fledged copyright infringement action.

Digital Copyright and the Internet

Because digital technologies and network systems have changed social norms and disrupted business models based on existing law, copyright law has become a national policy question. There is a lot at stake. The architects of the Internet rendered the technical protocols on which it runs "free," or in the public domain, so whoever controls what runs on the protocols has significant control over the practical application of the Internet. Additionally, what was once designed to be a device for computation and a network for national defense has become the predominant global communication system capable of transmitting information in a wide variety of media formats that has had and continues to promise profound economic, social and political effects. The Internet has spawned countless numbers of new business types and models, been the means for forming new communities, sharing of information and development of knowledge as well as the spark for many local and international political movements. It is in this area of extraordinary influence over ideas and politics and people that the meaning our founding fathers gave to copyright remains relevant. The balance between innovation and incentive not only had the expectation of inspiring new economic opportunities but of bolstering the supply and distribution of information in the public arena, a necessary component of the education citizens needed to exercise their obligations for governance of a democratic republic.

Conclusion

If incentive and innovation are out of balance, as is currently suggested by this unstable period of law, social norms, technology and the market, compounded by the efforts of content owners to aggrandize their investments in intellectual property of all types including patent and trademark as well as copyright, then political systems that rely on free flow of information could find themselves hampered in realizing their mission of government by the people, for the people and of the people as Abraham Lincoln so simply and elegantly defined democracy. Breaking the law is not in and of itself civil disobedience, as some students who infringe copyright assert as a defense. Rather, an awareness of the political purpose in the intent to break the law and a willingness to accept punishment in the name of making a public statement are essential elements in civil disobedience. While Cornell University must and will comply with existing laws and seeks, as one of its core missions, the transmission of citizenship values to its students; it also greatly encourages students to learn more about the economic, social and political issues involved in copyright law and to become involved in appropriate discourse on these topics, and would be proud of both its inventors as well as any student who uses their education in the name of civil rights.