Copyright Issues in Internet

Copyright Issues in Internet

The basic principle on which copyright  rests is that creativity needs to be rewarded and individuals who create such intellectual work should be able to live by their skill and  effort. Copyright ensures owners the control and participation in the proceeds of the commercial exploitation of the work. Since copyright is about the protecting ‘original expression’, it arises as soon as the work is created. Copyright protects “original authors of workship” that are fixed in any tangible medium of expression from which they can be perceived, reproduced or otherwise communicated either directly or with the aid of a machine or device[1]

The advent of new technologies in the digital  world have posed a challenge to the copyright regime. Though, in a way the emergence of digital and information technologies have promised the copyright owners with a widening market , but on the other side the same technologies have sounded a threat to the copyright owners with a loss of control over their own property. As newer digital products enter the market, efficient management and controlled  of  such products is become a major concern. The copyright owners are under a constant threat of losing control over their copyrighted work. To protect their works against the splurge of digital goods in the information superhighway, they are using technology to retain control. As even downloading might amount to copyright infringement, so enforcing copyright against individual internet users worldwide is impractical . so copyright holders have placed the legal liability for copyright infringement on the Internet Service Provider (ISP), as it is they who allow  and enable copyright infringements to take place.

Copyright in Digital Medium

While the contours of copyright law has always been drawn by the developments in the technological world, the emergence of digital technologies in the last few years have raised a whole new set of challenges to copyright regime.  As the digital works can be replicated at ease  and making of even thousands of ‘perfect’ copies is a simple job , it becomes difficult for the copyright owners to control the replication of their works. Also the ease of transmission over the internet has raised newer problems for the copyright owners. A pirated version of a digital work can be uploaded into a computer connected to the internet and hence can be made available and transmitted across the globe.

There are many types of Internet activities, few of them are-

Caching – It is used to improve response time for end users. It means copying of a web page/ site and storing that copy for the purpose of speeding up subsequent accesses.

Browsing – A software driven process for searching the World Wide Web using a browser.

Mirroring – It improves service for the users by replicating a web site across various servers all over the world and make available the critical information to all the users at all times.

Downloading – It means to receive information, typically a file, from another computer via modem.

File-swapping – A “peer-to-peer” transmission of digital files from one computer to another via the Internet.

These Internet activities do infringe exclusive statutory rights of copyright owner, because these activities result in –

• Transmission of information from one computer system or network to another, involving temporary storage (RAM) of that information.
• An unauthorized storage of such information a violation of the copyright owner’s exclusive right to make copies,i.e., to reproduce the copyrighted work.
• A violation of the copyright owner’s exclusive distribution right.
• An appearance of a copyright image in a web browser infringing the copyright owner’s public display right.

Thus the nature and characteristic of internet is such that  there will be certain infringements to the exclusive statutory rights of copyright owner.

A browser is required for accessing the internet as it helps in downloading from the website. The downloads can be saved in the hard disk or in removable storage devices and that amounts to fixation in ‘tangible form’.

The digital downloads are temporarily stored in  the Random Access memory (RAM). Now the question which arises is whether the temporary storage constitutes ‘fixation’ to attract copyright laws.

In MAI Systems Corporation v. Peak Computer, Inc[2], MAI Systems was a manufacturer of computers, who also designed software for those computers . MAI had a copyright in the operating software utilized in its computers. Defendant Peak Computer in the course of servicing these computers, would turn on the computer and run the computer’s operating software, which had been licensed to the owner and/or lessee of the machine. This was done to view the system error log, which assisted the repairman in servicing the machine. When this program was run, it was retrieved from the computer’s storage system, placed into the computer’s Random Access Memory (“RAM”) and viewable on the computer’s screen. After the repair was completed, the machine was turned off and no permanent copy of the copyrighted operating system software was made or removed from the machine or premises by Peak. If a computer had to be removed from the client’s place of business to repair it, Peak apparently offered to loan the customer a similar MAI machine until the computer was repaired. MAI charged the defendants, inter alia, with copyright infringement. The Ninth Circuit affirmed the district court below, and held that the foregoing conduct constituted copyright infringement. The linchpin of the court’s holding was its finding that unauthorized “copying, for purposed of copyright law occurs when a computer program is transferred from a permanent storage device to a computer’s RAM.” Thus, the court concluded that such action created a copy within the meaning of 17 U.S.C. 101[3].

Digital downloads and reproduction rights

The reproduction and display of a copyrighted work of another person , in a non-removable (for example, hard disc of a computer) or removable storage medium, without his authorization amounts to an infringement of statutory exclusive rights vested in the said copyright owner.

Leslie Kelly, et al. v. Arriba Soft Corp.[4]

Court held that defendant’s operation of a “visual search engine” which presents, without the owners’ permission, “thumbnails” of copyrighted images that appear both without identifying copyright management information, and separated from the Internet web page in which the image was originally displayed, is a protected fair use under the Copyright Act which does not run afoul of the Digital Millennium Copyright Act (“DMCA”).

Defendant operates a “visual search engine” which allows users to search for images on the Internet that are responsive to their inquiry. The responsive images presented by defendant’s search engine are initially presented as “thumbnails” separated from both the web page on which they were placed by their owner, as well as any identifying copyright management information (unless the same is embedded into the same image that contains the picture in question). At present, clicking on this “thumbnail” image causes two additional screens to open. The first screen displays a full-size version of the thumbnail image in question, and partially blocks from view the second screen. The second screen displays the full web page in which the image is situated. This represented a change from a prior version of defendant’s search engine. In that version, a click on the thumbnail image resulted in the display of a larger, full-size version of the thumbnail image, as well as a link to the web page from which the image originated. Defendant currently maintains approximately two million images in its database. Importantly, defendant does not seek the approval of the owner of the image before posting it in its database. It has, however, posted instructions for blocking its web crawler from obtaining images from a web site.

Plaintiff is the owner of the copyright in 35 images, which were included in defendant’s site without his permission. Plaintiff has posted these images on two web sites, which he uses to promote various products, including a book plaintiff authored. After plaintiff objected, defendant took steps to remove his works from its database. Plaintiff thereafter commenced this action, claiming that defendant, by its conduct, infringed his copyright in the images in question, and violated the Digital Millennium Copyright Act. Finding that defendant’s conduct constituted a fair use of plaintiff’s works and not a violation of the DMCA, the court granted defendant summary judgment dismissing these claims.

Defendant conceded that plaintiff had made out a prima facie case of copyright infringement. However, defendant claimed that its use was a permitted fair use under 17 U.S.C. Section 107[5]. Analyzing the various factors the statute directs be considered, the court held that defendant’s use was a permitted fair use.

The most important factor relied upon by the court was the “transformative nature” of defendant’s use. In determining whether a use is fair, one of the factors the courts consider is the “purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” This involves, according to the court, “an assessment of whether ‘the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is transformative.” The more transformative, the more likely the use will be found to be a permitted fair use. The court held that defendant’s use was “transformative.”

The court held that defendant did not have reasonable grounds to know that its actions would cause such infringement, because it posts a warning on its site about possible restrictions on use of the images, and instructs users to check the originating web pages for such restrictions, which can be obtained via a link, before copying the images. What made the images vulnerable to copying, according to the court, was their display by plaintiff on a web site.

Playboy Enterprises, Inc. v. Russ Hardenburgh, et al.[6]

In this case, defendant operated a bulletin board service which, among other things, gave individuals who paid a subscription fee access to files they could download.

To  increase the number of GIFs it could offer its customers, defendants offered subscribers “credits” for each GIF they uploaded on defendant’s BBS. GIFs uploaded from subscribers were stored in “an upload file, where an employee briefly checked the new files to ascertain whether they were ‘acceptable,’ meaning not pornographic, and not blatantly protected by copyright.” If the GIFs passed muster, they were made available to all users of defendant’s service.

Subscribers, without the consent of plaintiff Playboy Enterprises, Inc. (“Playboy”), uploaded onto defendant’s BBS approximately 400 GIFs which contained copies of adult photographs from Playboy Magazine. Plaintiff had copyrights in each of these photos. Defendants contended they had no actual knowledge that photos in which plaintiff possessed copyright were uploaded onto their BBS. The court, on plaintiff’s motion for summary judgment, agreed that defendants’ conduct constituted both direct and contributory copyright infringement.

To establish direct copyright infringement, plaintiff must establish both (1) its ownership of a valid copyright and (2) copying by defendants of constituent elements of the work that are original. Plaintiff met this burden.

Most importantly, the court held that “a finding of direct copyright infringement requires some element of direct action or participation” in the infringing activities. This, in turn, required the defendant to do more than merely set up and maintain a bulletin board on which infringing images could be up and downloaded. Said the court:

The copyright act is cast in terms of activities which are reserved to copyright owners. It follows that an infringer must actually engage in one of those activities in order to directly violate the statute. Setting up a computer bulletin board is not one of those activities. Merely encouraging or facilitating those activities is not proscribed by the copyright statute. Defendants, however, were directly involved in the distribution and display of plaintiff’s copyrighted works because of their policy of encouraging uploading GIFs, and their attempts at screening the same for infringing materials. The court also held the defendants liable for contributory infringement.

Playboy Enterprises, Inc. v. Frena[7]

In this case, Playboy charged the defendants, operators of a bulletin board system, with copyright and trademark infringement. Defendants’ bulletin board system is accessible via telephone modem to subscribers. Subscribers uploaded onto the bulletin board various pictures published by Playboy to which Playboy owned the applicable copyright. The  court granted plaintiff’s motion for partial summary judgment, finding defendants guilty of copyright and trademark infringement. The court reached such conclusion notwithstanding defendant Frena’s claim both that he did not upload the images onto his BBS and he was unaware of the presence of such images on his service until such time as he was served with the summons and complaint.

The court held that the display of Playboy’s images by Frena to bulletin board subscribers was a public display, and that the projection of such images on the bulletin board system was a display for copyright purposes. The  court held that it does not matter that Defendant Frena may have been unaware of the copyright infringement. Intent to infringe is not needed to find copyright infringement.

Linking

The interactive feature of the internet’s most popular information access tool the World Wide Web, to hyperlink defines its very culture distinguishing it from any other communications medium. On the internet, a link is a selectable connection from one word, picture, or information object to another.

A link is simply a connection between the content of two different files or between different parts of a single file.  A link may lead either to another file in the same Web site, or to a fie on a different computer located elsewhere on the Internet. Internet browsers automatically decipher the instructions given by links and retrieve the specified file. A single Web page may contain links to other Web pages. That same page may itself be the ‘destination’ of hundreds, or thousands of other links on other pages.

Linking is the sine qua non for the World Wide Web and in fact links are what make the World Wide Web a web.- links allow quick access to information that otherwise could take much time and effort to find. Consequently, if linking were disallowed or made illegal, the Web would no longer exist.

Linking is of two types:

Surface linking: when the home page of a site is linked, it is the case of surface linking.

Deep linking: when a link bypasses the home page and goes straight to an internal page within the linked site, it is the case of deep linking.

In most cases, the owner of a web page will desire the page to be the destination of as many links as possible because more links would mean more hits, and more hits would in turn mean wider dissemination of whatever information the page is designed to get across. To date, Web site owners have made money primarily from the sale of advertising at their sites.

The problem arises only with regard to the practice of deep linking. The home page of a Web site is used as the entry point to information contained within the Web site and welcomes users, explains the nature of the site and offers links that allow the user to  navigate through the site. Deep links defeat a Web site’s intended method of navigation. Further deep links may “steal” traffic from the linked site’s home page thereby decreasing the revenue that could be generated from advertising that is dependant on the traffic onto the site.

Inlining

Inlining or ‘In-line-linking’ enables a web page to summon different elements from diverse pages or servers to create a new Web page. Instead of copying the elements to the composite page, the elements are linked in by ‘pulling in’ graphic or image files from another site and displaying on the composite Web page. Thus, the composite page, the elements are linked in by ‘pulling in’ graphic or image files from another site and displaying on the composite Web page. Thus, the composite page would consisit of a series of links to other sites and servers. While browsing the composite page, the page directs the browser to get the pictures, graphics etc. from the original sources.

Framing

Web browsers allow Web authors to divide pages into “frames”. A frame is an independently controllable window on a web site through which pages from another web site can be viewed.   Since it is possible for a site to call a frame’s contents from a different location, a programmer might “frame” another’s Web content beneath his own navigation or banners. This allows him to use creative content owned  by another entity to sell banner advertising on its on site. A typical use of frames is to have one frame containing a selection menu and another frame that contains the space where the selected (linked to) files appear.

Futuredontics, Inc. v. Applied Anagramics, Inc., et al.[8]

Defendant Applied Anagramics, Inc., without authorization, created a hyperlink which caused content from plaintiff Futuredontics’ website to appear in one of several frames on Applied Anagramics’ site. Simultaneously, the other frames on Applied Anagramics’ site featured information concerning its business operations. Claiming that defendant’s conduct constituted copyright infringement, plaintiff sought a preliminary injunction enjoining defendant from continuing to engage in this conduct. The District Court denied plaintiff’s application.

On appeal, the Ninth Circuit affirmed this decision. The Ninth Circuit found that plaintiff had failed to show that it was or would be injured by defendant’s conduct. Absent the requisite showing of injury, plaintiff was not entitled to injunctive relief. The court held that Futuredontics has presented no evidence whatsoever of tangible, let alone irreparable, harm from AAI’s framed link.

Regarding the liability for a deep link under the Indian Copyright Act, 1957 the relevant provisions are the following:

14. Meaning of copyright.-For the purposes of this Act, “copyright” means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:-

(a) in the case of a literary, dramatic or musical work, not being a computer programme, –

(i) to reproduce the work in any material form including the storing of it in any medium by electronic means;

(ii) to issue copies of the work to the public not being copies already in circulation;

(iii) to perform the work in public, or communicate it to the public;

(iv) to make any cinematograph film or sound recording in respect of the work;

(v) to make any translation of the work;

(vi) to make any adaptation of the work;

(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi);

(b) in the case of a computer programme,-

(i) to do any of the acts specified in clause (a);

“(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme:

Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.”

(c) in the case of an artistic work,-

(i) to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work;

(ii) to communicate the work to the public;

(iii) to issue copies of the work to the public not being copies already in circulation;

(iv) to include the work in any cinematograph film;

(v) to make any adaptation of the work;

(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv);

(d) In the case of cinematograph film, –

(i) to make a copy of the film, including a photograph of any image forming part thereof;

(ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions;

(iii) to communicate the film to the public;

(e) In the case of sound recording, –

(i) to make any other sound recording embodying it;

(ii) to sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless of whether such copy has been sold or given on hire on earlier occasions;

(iii) to communicate the sound recording to the public.

Explanation : For the purposes of this section, a copy which has been sold once shall be deemed to be a copy already in circulation

(ff)  “communication to the public” means making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available.

Explanation.- For the purposes of this clause, communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public;

51. When copyright infringed. -Copyright in a work shall be deemed to be infringed-

(a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act-

(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or

(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or

(b) when any person-

(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or

(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or

(iii) by way of trade exhibits in public, or

(iv) imports into India, any infringing copies of the work

Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work for the private and domestic use of the importer.

Explanation.- For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an “infringing copy”.

Reading sections 14& 51, reproducing any copyrighted work, issuing copies of the work to the public or communicating the work to the public could amount to copyright violation. Technically, a linking site is only informing people about the presence of the work. It is the user’s discretion to access the work by clicking the link. Nevertheless, the linking site is definitely aiding in it.

Prohibiting deep linking,  internet would collapse. But again deep linking to commercial databases without the permission of the content owner could raise many problems. It would not be proper for the Indian legislation to prohibit deep link altogether, courts can fill the vaccum by deciding from case to case basis. If a deep link has been created with bad intent then it could be injuncted.

Regarding inlining, just as linking, section 14 & 51 are the relevant sections. By virtue of these sections, reproducing any copyrighted work, issuing copies of the work to the public or communicating the work to the public could amount to copyright violation. But again a person who employs an inline link on his site is not causing any reproduction of the copyrighted content. But he can be said to be aiding in such communication and distribution.

Inlining brings in the question of moral rights also. Section 57 of the Act states:

57. Author’s special rights. (1) Independently of the author’s copyright and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right-

(a) to claim authorship of the work; and

(b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation :

Provided that the author shall not have any right to restrain or claim damages in respect of any adaptation of a computer programme to which clause (aa) of sub-section (1) of section 52 applies.

Explanation.- Failure to display a work or to display it to the satisfaction of the author shall not be deemed to be an infringement of the rights conferred by this section.

(2) The right conferred upon an author of a work by sub-section (1), other than the right to claim authorship of the work, may be exercised by the legal representatives of the author.

This section allows the copyright author to claim authorship of the work. In the case of inlining, user is  confused about the original source and may never know from where different elements of the site have emanated. So the practice of inlining may implicate moral rights of author.

As in  linking and inlining, again the sections 14 & 51 are involved in the issue of framing. Here also the framer never copies the pirated content, instead merely provides a visiting browser with instructions to receive content. Thus he can be said to be aiding in such communication and distribution. As in inlining, framing also brings in the question of moral rights as well.

Copyright and digital music

The MP3 movement is one of the most amazing phenomena that the music industry has ever seen. Unlike the introduction of the cassette tape or the CD, the MP3 movement started not with the industry itself but with a huge audience of music lovers on the Internet. The MP3 format for digital music has had, and will continue to have, a huge impact on how people collect, listen to and distribute music.

The MP3 format is a compression system for music. The MP3 format helps reduce the number of bytes in a song without hurting the quality of the song’s sound. The goal of the MP3 format is to compress a CD-quality song by a factor of 10 to 14 without noticeably affecting the CD-quality sound. With MP3, a 32-megabyte (MB) song on a CD compresses down to about 3 MB. This lets you download a song in minutes rather than hours, and store hundreds of songs on your computer’s hard disk without taking up that much space

Peer to peer (P2P) is defined as two or more computers connected by software which enables the connected computers to transit files to other connected computers. The P2P connection means that it is a direct link, the file is being directly transferred from one computer to other, it is not going through a mediating server. With the P2P sharing MP3 files are now shared between millions of computer users.

A&M Records, Inc., et al. v. Napster, Inc.[9]

Napster made available for free on its web site its MusicShare software. A user who wishes to use Napster’s service downloads this software onto his/her personal computer. The user may then seek to access the Napster system. Once the user logs on, the MusicShare software reads a list of MP3 files the user has elected to make available to other users then on Napster’s system, and communicates that list to Napster’s servers. These servers, in turn, add this list to a transient directory of MP3 files that users currently logged on to the Napster system are willing to share.

If the user wants to locate a particular MP3 file, the user enters the name of the song or band on the search page in the MusicShare program This software then searches the current directory on Napster’s servers, and generates a list of files responsive to the request. To download one of these files, the user selects that file from the list. The Napster server then communicates this request to the computer on which the file is stored, which request is read by the MusicShare software found on that computer. The host computer responds that it either can or cannot supply the file. If the host computer can supply the file, Napster’s server communicates the host computer’s IP address and routing information to the requesting user’s MusicShare software, which then makes a connection directly with the host computer, and downloads the file over the Internet.

Napster moved for partial summary judgment, claiming that DMCA section 512(a)[10] limited the relief that could be awarded against it. Among other things, Section 512(a) exempts qualifying service providers from monetary liability for direct, vicarious and contributory infringement, and limits the injunctive relief that may be issued by the court.

Section 512(a) limits a service provider’s liability for copyright infringement by reason of the service provider’s “transmitting, routing or providing connections for material through a system or network controlled or operated by or for the service provider”.

The court held that Napster’s role in the transmission of MP3 files by and among the various users of its system was not entitled to protection under Section 512(a) because such transmission does not occur through Napster’s system. Rather, all files transfer directly from the computer of one Napster user through the Internet to the computer of the requesting user. The court held “Although the Napster server conveys address information to establish a connection between the requesting and host users, the connection itself occurs through the Internet.

The court also held that issues of fact existed as to whether Napster was entitled to any protection under the DMCA at all. To be entitled to such protection, a service provider must meet the requirements of section 512(i) of the DMCA, which, among other things, obligates the service provider to “adopt and reasonably implement and inform subscribers and account holders of the service provider’s system or network of a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers”.

The court denied Napster Inc.’s motion for partial summary judgment, in which motion Napster sought to limit the damages and other relief that could be awarded against it for alleged direct or contributory copyright infringement by application of the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”).

Napster pioneered mass P2P media file sharing across the net. Napster was the first generation P2P, second generation P2P consists  of many softwares: primary among them are Gnutella and Kazaa. A landmark judgment regarding the legality of second generation file sharing software is the Grokster case.

Metro-Goldwyn-Mayer Studios, Inc., et al. v. Grokster, Ltd., et al.[11]

Plaintiffs “own or control the vast majority of copyrighted motion pictures and sound recordings in the United States.”

Defendants are distributors of peer-to-peer file sharing programs.  Both defendants distribute their software for free, making money from the advertisements that appear on consumers’ screens when they use the software.

Defendant StreamCast distributes a branded version of the Gnutella peer-to-peer file sharing software known as Morpheus.  The Morpheus software allows each user to create on his computer a list of the song or movie files he is willing to share with his peers.  When a user seeks to obtain a particular song or movie, the Morpheus software sends a query to each users computer then online to ascertain whether the song or movie being sought is on the list of files that user is willing to share.  The Morpheus software compiles the resulting data on the seeker’s computer, who can then initiate a transfer from the computers of the identified users who have the song or movie file he seeks.

Defendant Grokster distributes Fast Track, a branded version of the Kazaa peer-to-peer software.  Fast Track works in a slightly different fashion than Morpheus.  Each user’s computer sends a list of the song or movie files the user is willing to share to computers designated as super nodes.  When a user seeks a particular file, his query is sent to a super node computer, which identifies computers on which it can be found.  As with Morpheus, however, the file transfers take place between the computers of two users.

In neither system is the defendant actively involved in file search or transfer.  Thus, the defendants do not operate centralized computers which house either lists of files available for sharing or the files themselves, or permit a user to access the ‘network.’  In this regard, the software offered by defendants differs from that previously offered by Napster, which housed on its own computers lists of files users were willing to share

Plaintiffs claimed that third parties used defendants’ software to create and distribute unauthorized copies of plaintiffs’ copyrighted works and thereby to directly infringe plaintiffs’ copyrights.  Plaintiffs sought to hold the defendants liable for these infringing activities on theories of contributory and vicarious copyright infringement as a result of their distribution of the software used to effectuate such infringement.

The Ninth Circuit rejected both of these claims holding that to be guilty of contributory copyright infringement, a defendant must have knowledge of, and materially contribute to the direct infringement of plaintiff’s copyright by a third party.  Applying the Supreme Court’s Sony Corp. of America v. Universal Studios , Inc., (Betamax) [12] decision, the Ninth Circuit held that the level of knowledge sufficient to give rise to a contributory infringement claim depended on whether defendants’ software could be used for substantial non-infringing activities.

If the product at issue is not capable of substantial or commercially significant noninfringing uses, then the copyright owner need only show that the defendant had constructive knowledge of the infringement.  On the other hand, if the product at issue is capable of substantial or commercially significant noninfringing uses, then the copyright owner must demonstrate that the defendant had reasonable knowledge of specific infringing files and failed to act on that knowledge to prevent infringement. Affirming the court below, the Ninth Circuit Court of Appeals holds that distributors of Kazaa and Morpheus are not liable for the infringing uses to which their peer-to-peer file sharing programs are put by third parties.  The claims for contributory infringement failed because defendants did not have the requisite knowledge of the users’ infringing activities at a time when they contributed to, or could take steps to prevent that infringement, given the decentralized nature of defendants’ software.  Nor are the distributor defendants liable as vicarious infringers, as they did not have the requisite right and ability to supervise, or prevent, the infringing conduct of the users of their software.

But the Supreme Court reversing the judgment held that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device.

It found that the evidence of intent were – first, all respondents showed itself to be aiming to satisfy a known source of demand for copyright infringement, the market comprising former Napster users. Second, neither respondent attempted to develop filtering tools or other mechanisms to diminish the infringing activity using their software. Third, respondents make money by selling advertising space, then by directing ads to the screens of computers employing their software.

Copyright and Computer  Software

Computer software is either downloaded from Internet or its licensed copy embedded in removable optical storage medium is purchased. It is used to describe computer programme and ancillary materials. It doesnot include a computer hardware. It may include :

• Preparatory design materials, like flowcharts, diagrams, written specifications, form and report layouts, designs for screen displays etc.
• Computer programme (object code and source code) and other executable code
• Software development tools, like relational database development systems, compilers, report generators etc.
• Databases and data files
• Computer output, for example, sounded, print-out, computer file or data, electronic signals
• Screen displays
• Manuals and guides(on paper or stored digitally)
• Programmed languages

Source code and Object code

The computer programme whether written in assembly language or high-level language is known as the source code. When the source code is translated by an assembler or a compiler into machine language, it is known as the object code.

In Sega Enterprises Ltd. V Richards, it was held by Goulding J. that the copyright subsisted in the assembly code version of the programme (the source code) and that the object code was either a reproduction of or an adaptation of the assembly code version and as a result, the object code was also protected by copyright.

Prima-facie, copyright laws apply to both source code and object code and the owners of the copyright in the computer programs are if fact copyright holders to both source code and object code.

Reverse Engineering and copyright

Reverse engineering, is the process of moving backwards (reverse) in order to understand the ideas, principles and algorithm contained and expressed in a computer programme. The processes used are disassembly and decompilation.

Disassembly converts object code into low-level assembly language.

If disassembly leads to the creation of a final product that is not substantially similar to the original programme, consumers will be enriched by a wider choice of programs. Since copyright law protects only expression and not ideas so that the public can profit by using the ideas in copyrighted works. In Sega Enterprises Ltd. V Accolade, Inc. 977 F.2d 1510 (9th Cir.1992), the 9th circuit court held that it does not amount to copyright infringement.

Decompilation allows one to translate a machine language programme (object code) into a high-level representation programme, ie, a more understandable form. Decompiling  a programme to retrieve the original high-level language source code is possible only if the exact version of the high-level language is known. Though in a strict sense both ‘disassembly’ and ‘decompilation’ processes violate the copyright principles, yet it is permissible for a lawful user to decompile or disassembly a computer programme to obtain the information necessary to create an independent programme, which can be operated with the program decompiled or with the other programme.[s.50B, Designs and Patents (Amendment) Act,1988].

International Treaties

The first important attempts towards preventing copyright infringement has been in the form of the Berne convention[13]. In December 1996, the World Intellectual Property Organization (WIPO) held a diplomatic conference in Geneva that led to the adoption of two treaties: WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT)

The relevant provision of WCT are:

Article 8
Right of Communication to the Public

Without prejudice….., authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.

Article 11
Obligations concerning Technological Measures

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

The relevant provisions of WPPT are:

Article10
Right of Making Available of Fixed Performances

Performers shall enjoy the exclusive right of authorizing the making available to the public of their performances fixed in phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them

Article14
Right of Making Available of Phonograms

Producers of phonograms shall enjoy the exclusive right of authorizing the making available to the public of their phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.

Article18
Obligations concerning Technological Measures

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by performers or producers of phonograms in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their performances or phonograms, which are not authorized by the performers or the producers of phonograms concerned or permitted by law.

Thus these WIPO initiatives have helped in legal clarity regarding the rights granted to the authors, performers and producers in the digital medium. Moreover these treaties provide adequate legal protection and remedies against circumvention of effective technological measures that are used by the authors or other right owners to protect their intellectual property. For example, in the US a critical focus of Congressional consideration of the legislation (adaptation of the law of copyright to the digital age) was the conflict between those who opposed anti-circumvention measures as inappropriate extensions of copyright and impediments to fair use and those who supported them as essential to proper protection of copyrighted materials in the digital age. The DMCA was enacted in October 1998 as the culmination of this process.

India is a party to the Berne  Convention but still not a party to the WCT and WPPT, yet it extends the reproduction and communications  to the digital environment.

Copyright is a proactive law and it has to keep pace with the technological developments. Protecting copyright in a digital medium goes against the ‘open source” of the nature of the internet. The fair right use must be preserved. It is a privilege allowing others  than the copyright owner to use the copyrighted material n a reasonable manner without the owner’s consent. Thus there should be a balancing of interests. The recent cases of Napster and Grokster have chilled the digital industry as they now have to be very cautious regarding the copyright issues otherwise they may find themselves entangled in various law suits.

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[1] 17 USC Sec 102(a)

[2] 999 F.2d 511 (9th Cir. 1993)

[3] Section 101 defines copies as: “Material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”

[4] 77 F.Supp. 2d 1116 (C.D. Cal., Dec. 15, 1999) aff’d. in part, reversed in part, 280 F.3d 934 (9th Cir., Feb. 6, 2002)

[5] § 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

[6] 982 F. Supp. 503 (N.D. Ohio, Nov. 25, 1997)

[7] 839 F.Supp. 1552 (M.D. Fla. 1993)

[8] No. 97-56711, 1998 U.S. App. Lexis 17012 (Ninth Cir., July 23, 1998)

[9] 239 F.3d 1004 (9th Cir. 2001), affirming114 F. Supp 2d 896 (N.D. Cal 2000)

[10] 17 U.S.C. 512(a)

[11] 545 U.S. 913 (2005)

[12]464 U.S. 417 (1984)

[13] Berne Convention for the Protection of Literary and Artistic Works ofSeptember 9, 1886,completed at PARIS on May 4, 1896,revised at BERLIN on November 13, 1908,completed at BERNE on March 20, 1914,revised at ROME on June 2, 1928,atBRUSSELS on June 26, 1948,at STOCKHOLM on July 14, 1967, and at PARIS on July 24, 1971, and amended on September 28, 1979