Theft vs. Piracy

I don't really have the time to regularly update this blog anymore at the level I'd like to--when I was upkeeping it, I really put a lot of time and thought into what I wrote and wanted to provide as much interesting and useful information as possible. I wish I had more time because I really enjoyed writing in here. But I just found this image and had to share it.




A rather simplistic guide, but it's pretty much accurate (and pretty accurately depicts a lot of what goes on via the web, like file sharing, and even what goes on during an average workday at the photocopier). Some would argue (myself included, perhaps?) that piracy is a FORM of theft, but it is not exactly the same thing as theft itself. Thoughts?

Photocopies: Are You Breaking the Law?

I’ve talked about photocopies made by libraries and schools that are protected (somewhat) by the garbled guidelines of fair use. But what about copies made by copy shops? Should the copy shop employees be responsible for making sure that permissions have been obtained for the materials they’re copying?

Due to the fact that copy shops (such as Kinko’s) had gotten into trouble for copyright infringements in the past, the Copyright Clearance Center was established. Founded in 1978, it’s a nonprofit organization that makes the process of using copyrighted materials easier by offering consumers permissions to use the materials for a fee. So consumers can pay to use copyrighted materials that were submitted to the center, and the creators of the copyrighted works get compensated (this is a simplified summary of how it works). I’m sure it’s not flawless but it seems like a fair enough system that allows both parties to get what they want. (Or at least to get some of what they want.)

And what, dear reader, about copies that you yourself make? On your VCR at home or by surreptitiously using the copier at work while you should be filing, or even at the library? Are you a copyright infringer when you make copies of things without first getting permission?

Yes and no. No one’s really sure. Some people claim that if you’re making the copies for personal use—say, taping a show to watch when you get home from work or photocopying a favorite poem to hang up for inspiration in your cubicle—that this use is fair. You’re not trying to benefit from the copy you’ve made; you’re just trying to enhance your life.

But Congress and the courts have been wary to label these personal uses of copyrighted materials as fair uses—in essence they’ve avoided saying anything at all. This means that there are no fair use guidelines for personal copying, which further means that every time you make a copy of copyrighted materials for personal use, you are infringing upon that copyright.

[points and calls you INFRINGER!]

But of course, no one really gets in trouble for making personal copies. Even though it’s technically an infringement, copyright holders don’t rise up en masse and come after these people because it’s generally not doing them much harm. And they generally don’t even know it’s going on in the first place. Since we’re thankfully not yet living in the era of Big Brother, citizens can pretty much do/copy as they wish in the privacy of their homes. Copyright law tends to emphasize the fact that copies made for public consumption without permission are illegal and an infringement, but Congress has stayed basically mum on creating guidelines governing fair use for personal copying. So what does that mean? Is in fact then legal? Should we abide by a don’t ask, don’t tell policy as we do with many other things?

My belief is that personal copying really isn’t hurting anyone if it’s kept strictly personal—that is, putting the new album you bought on iTunes on your iPod, not making 20 copies of it for all your friends. I read an interesting viewpoint on copyright by Paul Goldstein, the author of “Copyright’s Highway,” that really helped me come to this conclusion. In it he talked about how intellectual property differs from regular property in its very sort of “metaphysical” state. Physical property is often diminished in some way when it is used: crayons wear down as we color with them, playground equipment breaks down when we play on it, a box of cookies disappears (sadly) as we eat them. The value of these things thus diminishes. But the value of an intellectual property item does not diminish as it’s used. In contrast, its value often increases the more it’s used. The pages of a book might come loose or a record might get scratched, but the contents—the story, the songs—retain their value. So each time a piece of intellectual property is used by a new consumer, the value of its content remains the same, or, one could even argue, increases as it is shared with others.

This segues nicely into the concept of public domain and the sharing of information in an increasingly smaller world, so that’s where we’ll pick up next time. Brace yourself: It's a doozy!

FURTHER READING
For information on the Copyright Clearinghouse Center: www.copyright.com

Fair Use, or, How Xerox Changed Everything

So. Up until this point, what I've been learning has pretty much emphasized the fact that material protected by copyright is just that--protected from unauthorized copying. But what happens as technologies evolve and make the copying of protected materials increasingly easier?

Photocopying was like the shot heard 'round the copyrighted world. The rise of the Xerox photocopier in prominence as an office must-have (starting in the 1960s) made it extremely easy for anyone to create copies of documents and other photocopiables at whim, due to the fact that now entirely new plates didn't have to be made any time someone wanted to print something. Office workers must have thrown crumpled balls of carbon paper jubilantly in celebration, but publishers were probably more uneasy. Didn't this rise in new technology mean bad times on the horizon?

Not really. What it did mean was a reexamination of copyright law and the kinds of instances where it was permissable for an entity to create copies without asking permission or compensating the owner--fair use.

Let's pause here and say that the whole concept of copyright has some nebulous qualities about it. If you really think about it, the fact that you are protecting the expression of an idea can make your brain start to warp a little. But add fair use into the mix and you've got a fairly twisted mind implosion. There are no brightly drawn dilineating lines when it comes to fair use. It is the grayest of gray areas.

What is it, exactly? Fair use is a tenet of copyright law that allows for copies to be sans permission or compensation while following a set of guidelines. Fair use is allowed in certain contexts--for instance, educational purposes, research purposes, business, personal use, and such. There are certain criteria which must be met and followed for the use of copyrighted materials to be considered fair use and not copyright infringement (which is illegal).

An interesting case that brought the issue of fair use in libraries to the forefront (with "forefront" here meaning, "Hey, Congress, you should probably maybe eventually take a look at this and mull it over and perhaps make some changes, eh?") was the case in the late 1960s of Williams and Wilkins (a publisher) versus the National Library of Medicine and the National Institutes of Health. To summarize: The NIH had subscriptions to a great quantity of research journals and made photocopies of these available to researchers and doctors, but they didn't get permissions before making and sending off these copies. Most of the journals, published by nonprofits, didn't seem to give a hoot that this was happening. But Williams and Wilkins, a for-profit publisher whose journal articles were being copied without seeking permission, gave many hoots. They argued that the NIH's free distribution of these articles would undercut their already relatively limited subscriber base. The NIH countered that it was essential that the articles contained within all their journals, including the Williams and Wilkins journals they subscribed to, be made available upon request by researchers. Giving the information when it was requested, they said, was part of fulfilling their mission. "We get that," said Williams and Wilkins. "We just want a little compensation. How about a paltry fee paid to us for using our articles?" The NIH said: NO. Other libraries backed them up

The case ended in the NIH's favor, which made libraries everywhere happy. When the Copyright Act was up for revision in 1976, libraries lobbied for exemptions to allow photocopying sans exemptions. What they got instead was section 108 of the Copyright Act of 1976. This somewhat garbled section allowed libraries some fair use photocopying. This included making copies to replace or preserve documents or copies made for researchers when the original can't be provided, as in the case of interlibrary loans. Photocopiers in libraries also had to display signs warning patrons about copyright law. (Come to think of it, the photocopier at my office also has such a warning on it, which I suppose is the college covering its bum in case anything were ever to happen bordering on infringement, but considering that we just use the machine to copy office documents, the sign seems like overkill.)

I could get much more in-depth with this, but I want to focus now on another case that raised some red flags in my head: photocopies made for the classroom. Surely you've received photocopied articles or literary passages from your professors (or have made them), or you may even have received one of those "course packets"--you know, the stack of photocopies bound with a plastic spiral binding that inevitably gets snagged in the sleeve of your sweater. Anyway. These all constitute photocopies made for the classroom, for educational purposes. And all these photocopies have presumably been made because the teacher or professor first secured permission from the copyright holders and compensated them fairly. Right?

In theory, that's what's supposed to happen. But who exactly should be responsible for making sure that these permissions have been secured: should it be the responsibility of the individual professor to ensure that this happens, or does the responsibility ultimately fall upon the school? Guidelines were drawn up for fair use in the classroom (with the classroom being a nonprofit setting), which were, as all government guidelines tend to be, muddled. These copies had to meet a brevity requirement (word count), a spontaneity requirement (a piece not being used over and over), and a cumulative effect requirement, which is so muddled I'm not sure if I understand it. (According to Samuels in "Illustrated History" [see reading list below]: "generally no more than nine instances of multiple copying per course per term, with further limits on the number of works by any particular author" [26]. To which I say, HUH?) Seriously, you need an additional Ph.D. just to understand all these guidelines. What's a professor to do? Hem and haw and try to figure out in which instances he needs permissions, or just photocopy the passages from his portable Nietzche and hope that no one catches him and cares?

In a case brought against NYU in the early 1980s regarding fair use in educational settings, the very matter came up as to whose responsibility it was to ensure that educational fair use guidelines were being followed: professors or the professors' institution of employ. And in a blow to educators, it was decided that the university had to tell professors to either follow the guidelines or get the necessary permissions. The university would provide the professors with legal guidance as to whether the copying they wanted to do was kosher or not. But basically, the university played Pontius Pilate, washing its hands, ultimately, of responsibility and thrusting it instead upon individual professors.

Upon learning about this case, I felt this telltale surging in my gut that happens whenever I have uncovered a case of "that's so not fair." As someone who fervently loves education and who deeply respects and admires educators (mostly because I'd never want their jobs myself), I couldn't believe that an institution that is made upon the labors of these educators was willing to throw them to the wolves in terms of fair use. An educational institution is only as good as its faculty, but if the institution isn't willing to get behind its faculty and support them, how are we supposed to interpret that?

Not to mention the fact that this laissez faire on the part of the universities could seriously impact the quality of education of their students. I can remember many times receiving some sort of photocopied document from teachers and professors that contained knowledge I wouldn't have gotten otherwise--the book was out of print, there were too many different short story collections we would have had to buy to get such variety, the magazine was difficult to procure. These professors shared these materials with us in order to better us, to teach us and give us knowledge. They had no deviant ulterior motive. They had no desire to fleece the publisher and author. They just wanted to share ideas with us. And to know that these people could have been punished and potentially not supported by the institution that hired them just makes me really upset. It seems truly unethical. With all the other things professors have to worry about, obtaining permissions is yet another burden to add to overloaded plates. Not to mention the fact that many times the materials professors hand out copies of are timely. Were the professor to wait and obtain permission to photocopy and give us students this article on a news item, it would hardly be newsworthy by the time we got the copies.

So while I've only very briefly gone over the nebulous fair use guidelines, the most important thing to know is that they tend to raise as many questions as they try to answer. And I feel that all the nit-picky worrying over potential copyright infringement could make the sharing of information more difficult, thus putting a clamp on learning. What do you all think? Is it a good idea to allow educational institutions and libraries fair use guidelines? Should they not be exempt at all and have to pay for permission to use works? Or should fair use be even more generous so that ideas and knowledge can be exchanged even more easily? What about the NYU case? Have any educators had to worry about fair use violation? Has it stopped any of you from using materials in the classroom that would have been of great benefit to your students? Any thoughts you have on fair use are welcome.


FOR FURTHER READING:
All things copyright, plus fun pictures and anecdotes: The Illustrated Story of Copyright by Edward Samuels
More sordid details on the Williams and Wilkins case: Copyright's Highway by Paul Goldstein
Legalese on fair use: http://www.title17.com/contentLegMat/legmat.html
Association of Research Libraries' copyright timeline, with lots of interesting links throughout: http://www.arl.org/pp/ppcopyright/copyresources/copytimeline.shtml


NEXT TIME: So we've covered some instances of fair use of copyrighted materials in places like libraries and schools. But what about you, Mr. or Ms. Private Citizen, sitting at home taping shows off the TV or photocopying your favorite poems on the office copier? Are you an infringer? Or is your bum covered too? Stay tuned.

COMING SOON: What's public domain? How have changes to copyright law affected public domain? And why should you care?