Stolen content: Avoiding trouble on the Web

Academe, Jan/Feb 2001 by Ginsburg, Jane C

The Internet is a marvelous teaching tool. But professors and universities had better take a careful look at the materials on their sites-and access to them-if they want to avoid liability for copyright infringement.

THE INTERNET BRISTLES WITH POTENTIAL for professors, students, and their universities. It promotes scholarly communication by permitting professors to self-publish and to make their work immediately available throughout the world. It enhances course content by making it possible to update materials instantly, not to say incessantly. It might even save trees: rather than photocopying news articles and distributing the photocopies in class, teachers can just link their course Web pages to those of the news sources (although if students link and then print out, trees will remain at risk).

But the Internet is also fraught with peril for educators, particularly for those who indulge in what one of my colleagues calls "heroic optimism" about the scope of the public domain and the fair use doctrine. Consider the following scenario:

Professor Donna Prima, of the Basilica College English department, teaches a course in popular culture. Her "reading list" includes magazine articles, excerpts from books, film clips, recorded music, and cartoons. She has made all of the "readings" available through her Web site. It has not occurred to her to request permission from the authors or publishers to do so. Because Professor Donna Prima believes fervently in academic freedom and open communication, she has not restricted access to her course Web page to students enrolled in the course, or even to those enrolled at Basilica College. Because Professor Prima is Web-adept (or has hired student teaching assistants who are Web-adept), her course Web page has lots of bells and whistles. It includes a cartoon of the week, scanned from sources such as the New Yorker and the Sunday comics, and a song of the week downloaded from a variety of sites (not all of them authorized). This week's song is the appallingly postfeminist hit by Normandie Swords: "Beat Me Baby, Yet Again." The Web page also has a chatroom that allows students and others to comment on the classes and the "readings." Sometimes, participants post excerpts from other works as part of the online discussions. Not surprisingly, Professor Prima's Web page has developed quite a following in and outside Basilica College; the Web page's counter shows thousands of "hits" to the site. Basilica College dean Willard Worried has become concerned that Professor Prima's site may pose copyright problems. He wonders what, short of shutting the site down (which would spark tremendous resentment), he can do to minimize risks of liability to the college.

Dean Worried is right, at least in part, to feel uneasy. While some of Professor Prima's postings may well be permissible under a reasonable interpretation of the fair use doctrine, other features of her Web site compel an interpretation so aggressive as to be unconvincing. To evaluate the site, we need to analyze both its content and its audience. When we discuss content, we must distinguish the posted "readings" from the cartoon and song of the week, as well as from material that the chatroom participants post.

First, the "reading list": Professor Prima has taken the college "course pack" a step or two further. Rather than create a printed anthology by photocopying excerpts from books and other sources, she has put everything on her Web site, making it available for end-user downloading (and possible printing out). If Professor Prima had given a course-pack order to Kinko's or a similar off-campus copy shop, it would be clear (based on two important court decisions) that the shop would need to obtain permission from the authors or other copyright owners in order to engage in the photocopying. The primary rationale for this requirement is the for-profit nature of the offcampus copy shops. They may copy material at a professor's behest, but they do it to make money. If the copy shops make money by copying authors' works, then authors should share in the profits.

Would it be different if the university took over the photocopying, but still did not secure permission? The university is not a for-profit enterprise, so there are no profits to share. Nonetheless, the university, or the students, get some

thing for nothing, and the authors lose sales of the books excerpted in the photocopies. They would not lose sales if Professor Prima chose not to assign a whole book from which she could not excerpt. Bul when she posts selections on her Web page, the authors or publishers lose the licensing fees they would charge Kinko's or other shops to copy subsets of books. So even if the univer

sity does not make money, it systematically deprives the authors of established revenue opportunities.

But, Professor Prima might object, what she is doing is not like taking Kinko's operations in house, since she has not become photocopy central for Basilica College. What she does, she would argue, is more like putting books on library reserve, anticipating that students will individually photocopy the reading assignments. This argument assumes, of course, that end-user student photocopying would be fair use. But what may be fair in isolation becomes more troublesome when it is done cumulatively. In the context of Web sites, moreover, there is the matter of posting a copy on the Web site, from which students make more copies. In the context of library reserve, the library has lawfully acquired the copy or copies it puts on reserve. But Professor Prima assembled her Web "reading list" by making unauthorized copies-copies that are not for private research but for further dissemination, indeed, for dissemination beyond her course and even her college.