SCN: Intellectual property

[Steve]

x-no-archive: yes

===================


(Patti Waldmeir, Financial Times UK)---Technology always outruns 
the law, but when the lawmakers begin to catch up, watch out.  

For years, US lawmakers sat quietly by as the internet redefined 
the very notion of property. They watched as online music pirates 
rendered private property meaningless by fostering a culture of 
theft. They failed to defend the social bargain that fosters 
creativity: that creators must be allowed to profit from their output 
or they will stop creating.  

Now those who make the laws, in the US Congress and the courts, 
seem set on restoring the supremacy of property. They risk 
overdoing it.  

Legislation has been introduced in the Senate to require that new 
hardware and software, in compact disc players, television sets 
and computers, make it impossible to copy anything without 
authorisation. Lawmakers want to force technology to switch sides: 
to serve property, not piracy. If they succeed, they could vastly 
expand the rights of copyright owners, not just restore what was 
lost.  

The new legislation could well outlaw not just illegal theft but 
perfectly legal pilfering. US law has long allowed limited "fair use" 
of copyrighted material without permission or payment, in the 
interests of promoting education, creativity and free speech. 
Legislators need to think twice before robbing the public domain 
just to pay the content owners.  

If Congress decides in the end to alter radically the balance 
between public and private control of ideas, at least there will have 
been publicised debate on the matter.  

At the same time and much more quietly, a federal appeals court in 
California is considering a decision that could disrupt this balance 
almost as dramatically.  

The ninth circuit US court of appeals is being lobbied to reconsider 
a dangerous if little noticed decision handed down in February. 
The case involves the quintessential web practice of linking. Critics 
say it could turn almost every web link into an act of copyright 
infringement, threatening the unique value of the web as a tool of 
knowledge by preventing people from finding their way around it.  

The case, Kelly v Arriba Soft Corp, involves a "visual search 
engine" located at www.ditto.com. Ditto (formerly known as Arriba) 
trawls the web to produce "thumbnail" images of millions of 
photographs including those of Les Kelly, a photographer of the 
American West, who sued them for reproducing miniatures of his 
images without his permission, and using them to link to his 
original photos.  

A three-judge panel of the appeals court rebuffed Kelly on his 
thumbnail claim, ruling that it was legal "fair use" for Ditto to display 
the tiny images.  

But in a much more far-reaching ruling, the court said Ditto could 
not also send users to the original photo through a link. It was the 
first time an appellate court had ruled on the issue of "in-line 
linking" or "framing", the practice followed by many search engines 
of providing a link that opens a browser window displaying material 
from another website.  

Digital freedom fighters like the Electronic Frontier Foundation say 
the ruling "puts copyright law and free expression on a collision 
course". Search engines, textual as well as visual, say they cannot 
do business in a world where they cannot link without permission.  

In a friend-of-the-court brief to lobby for a rehearing of the case, 
the EFF quotes a different federal court defending links as a 
cultural practice protected by the constitution.  

"Links are what unify the world wide web into a single body of 
knowledge, and what makes the web unique. They often are used 
in ways that do a great deal to promote the free exchange of ideas 
and information that is a central value of our nation," a New York 
court wrote in another landmark copyright case.  

"Anything that would impose strict liability on a website operator for 
the entire contents of any website to which the operator linked 
therefore would raise grave constitutional concerns, as website 
operators would be inhibited from linking for fear of exposure to 
liability," that court concluded.  

The issue in that case was different, involving liability for illegal 
content on a linked site. In the Ditto case, the linked content is not 
illegal, it just does not belong to Ditto. The court found that Ditto 
violated Kelly's right to display his works publicly by displaying 
them for him.  

Ditto did not sell his pictures or even reproduce them directly on its 
site. They helped people find Kelly's pictures and, arguably, 
increased the market for his works.  

If Ditto was wrong, so is everyone else who links, says the EFF. In 
its brief it argues that there is "no principled basis in copyright law 
that would distinguish Ditto's activity from any link on the web".  

The EFF says the court misunderstood the technology involved. If 
it grasped it properly it would have let Ditto off the hook, since "at 
all times it is Kelly who is transmitting his works to end-users, and 
thus Kelly who is publicly displaying his own images. Ditto's only 
transmission is a URL, an address for the location on Kelly's 
website where the image may be fetched by an interested viewer."  

If the court of appeals refuses to reconsider, the effect will be, 
once again, to expand the rights of intellectual property owners at 
the expense of the public and the cause of human knowledge.  

Technology has undoubtedly changed our ability to access the 
creative output of others, but it has done nothing to alter our right 
to that access. We have no right to steal the copyrighted material 
of others but we do have a limited right to sample, or view, or even 
borrow it. Technology does not alter rights and values: it just 
challenges us to find new ways to protect them.  


Copyright The Financial Times Limited 2002





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