One of the things I happen to know a decent amount about is the state of the law regarding copyright online (in the United States).
One of the things I’ve noticed when talking to authors about piracy is that a surprisingly small number of them understand how the law of copyright online pertains to them. They know what they think should be the law, but very rarely have much of an understanding as to how it actually works out in practice. This is an explanation I have given out individually to several people, but I’m getting tired of repeating myself, and thought that it might be useful to actually write something out so I can just give someone a link.
In order to understand how copyright liability functions on the internet, you need to understand the threat that copyright liability poses to the internet, and the solutions that Congress has come up with to make it possible for the internet to function. This is going to be a three-part blog post, spread out over three days, and it will cover:
- Why copyright law, without limitations, would destroy the internet (this is today’s post)
- How federal law immunizes various service providers from lawsuit, and who you can hold liable
- Why the law we ended up with is actually fairly good (and if anything, not protective enough of users)
The first two will be informational in nature only; the last one, opinion.
So, after the jump: Why copyright law pre-internet days would destroy the internet
Let’s take a look at what copyright law gives you as an author. Under 17 USC § 106, an author has (among other things) the exclusive right to make and distribute, and to authorize others to make and distribute, copies of her work. And if you understand how the internet works, you will understand very quickly how this could lead to bad behavior. One thing I often see happening when authors talk amongst themselves is that they use the words “pirate site” to refer to a specific website. This is an unfortunate tendency, as it tends to conflate the provider of a service (who may be blameless–or at least innocent for purposes of the law) with the person who has engaged in copyright infringement in the first place.
Suppose that Fred has put a copy of your work up online without your permission, and Betty downloads it. There’s the obvious thing that has happened: Fred has engaged in an unauthorized act of distribution, and Betty it has engaged in an unauthorized act of reproduction. But what has really happened?
In most cases, it actually looks more like this:
Fred puts a book up on a website. Betty clicks the “download” button on her computer. Her computer then sends a message to Comcast, her internet provider, saying, “please send this file from that website.” Comcast sends this message to its hub in Atlanta, 500 miles from Betty’s home: “please send this file from that website.” The Atlanta-based hub sends the message on to a neighboring hub in Nashville, which sends it on to Chicago, and from there to San Francisco, where it’s passed through three other computers before it arrives at the server that hosts the book Fred put up.
The server then makes a copy of the book (a reproduction!) and passes it off to its service provider (a distribution!). That service provider makes a complete copy, and passes the file on to its hub (another copy and reproduction!). Every server between sharethisfile.com and Betty’s computer makes a copy of the data, and then proceeds to distribute it.
There are a lot of computers between Betty’s computer and Fred’s server. For instance, between my computer now and my website, there are 13 hops. Between my computer and eharlequin.com are 11 hops. And so forth.
The following two things are true about those intervening computers:
- They all make a copy of the data involved, without examining it, and then pass those copies on.
- The vast majority of them are owned by large corporations, with relatively deep pockets.
- Therefore, under traditional doctrines of copyright, all these corporations are liable for copyright infringement.
If Fred’s distribution to Betty was not authorized, all the intervening corporate computers are now in violation of copyright law, and you, the author of the piece that was downloaded, could sue them for a minimum of $750 per book downloaded. Multiply that by the amount of traffic that passes through their computers, and you can see the problem: no sane company would ever agree to carry traffic, if it came with that potential price tag. They carry too much traffic, and cannot possibly monitor it all.
You might argue that those servers should have a duty to make sure they’re not carrying copyrighted data, but there’s almost no way they can tell that without scanning the data and comparing it with a set of copyrighted information–not an easy task, and one that would make downloads impossibly slow–and internet access impossibly expensive.
There’s a second problem: Fred’s internet provider is quite often someone like blogspot or my own webhost, dreamhost.com. They have thousands and thousands of customers, who each host hundreds of files. If my web provider had to verify that I had the copyright to every piece that I posted on the internet, (1) I would pay about 20 times more to have a website, and (2), they would probably not let me post anything right away–not even so much as a blog post–since someone could always sue them instead of me. So they would have to filter everything I wrote for copyright infringement. Needless to say, that would make it very difficult to interact in real time on the internet–and things like twitter or facebook simply could not exist.
Copyright law has responded to this by reapportioning copyright liability from its traditional boundaries. It has given absolute immunity to transitory service providers–all the computers that lie between Betty’s home computer and Fred’s computer–no questions asked. It has given limited immunity to the person who hosts the files in question, so long as they follow certain rules. As for Betty and Fred? They’re out on their own, wandering in the dark. They get no immunity–nor should they, since they’re the ones who are really acting with intent here.
What does this mean for you as an author? It means that users of a service violate copyright when they post unauthorized materials. Owners of a service, however, do not violate copyright until you either send them a legally recognizable takedown notification, and they fail to respond, or you can prove that they have otherwise engaged in some form of indirect infringement.
And in tomorrow’s post, I’ll talk about exactly how that works.