4.0708 Copyright (1/63)
Elaine Brennan & Allen Renear (EDITORS@BROWNVM.BITNET)
Tue, 13 Nov 90 09:37:03 EST
Humanist Discussion Group, Vol. 4, No. 0708. Tuesday, 13 Nov 1990.
Date: Wed, 7 Nov 90 09:26 EST
From: BRIAN KAHIN <KAHIN@HULAW1.BITNET>
Subject: RE: 4.0676 Copyright; Email tapping
>Humanist Discussion Group, Vol. 4, No. 0668. Wednesday, 31 Oct 1990.
>From: Malcolm Brown <email@example.com>
>Subject: Remote searching and copyright
>James O'Donnell wrote in a recent HUMANIST posting:
>> In the absence of copyright permission, does it violate
>> the author's and/or publisher's rights to provide
>> facilities to others to do word searches via TELNET
>> from remote locations?
>This is exactly what ARTFUL does, so I would assume that
>either there's no copyright difficulty or that
>it is somehow minor in nature. It also is analogous to
>the kind of access you get to books in the library: you
>don't get to keep the book, but you can hunt around in it.
>It seems to me, however, that James' suggestion has great
>merit: if there was a general search system available
>on a national or international level, it would permit
>at least some level to access to electronic texts that
>otherwise would be impossible.
Under the copyright law, providing for this kind of access constitutes a
public display, which requires the permission of the copyright owner.
There is an exception (part of the first sale doctrine) that says that
the owner of a copy can display a work publicly at the place where the
copy is located (but no more than one image at a time).
Although there is also an argument that such an online display
constitutes the preparation of derivative work -- as firstname.lastname@example.org
suggests in a subsequent note, it is so clearly a violation of the
public display right that the derivative works argument is of little
Note that in either case, we have been assuming that it was okay to put
the text into digital readable form in the first place. The question
is, once you have something legitimately in the computer, can you make
it available for others to look at over the network? Basically, no,
unless there is a fair use defense. Macrakis does present an
interesting argument for the particular case of remote searching to
locate a particular passage in a local copy. But the correct analogy to
the Roxbury vs. New York Times case which he refers to would be to
identify page numbers for the text rather than actually show the text.
Ironically, Section 108, which deals with copying by libraries, suggests
that it may be permissible to actually copy material and send the copy
over the network -- when it would clearly violate the public display
right to merely display it remotely. If you think that's
counterintuitive, you're right.
I am a lawyer -- but would be the first to disclaim that this is legal
(I hope someone will forward this to Humanist.)