OPINION
Intranet Publishers Beware!
By Dick Kaser
Every once in a while, there's a landmark court decision that goes far beyond
the facts involved in the case to affect many users and producers of information
services.
Three cases come quickly to mind as classic examples (all from the 1990s):
• Texaco, which was about the photocopying of journal
articles for industrial research. Many conclude that the
decision said, in effect, "there is no fair use in companies."
• Kinko's, which was about the photocopying of chapters and articles
for college coursepacks. The decision essentially said, "Just because it's
for educational purposes, that doesn't make it fair use, either."
• Feist, which was about alphabetical telephone directory listings.
Many would
say it definitively affirmed that facts are not copyright-protected.
Now, in a shades-of-Texaco decision, a federal court in Maryland ruled in
October that brokerage firm Legg Mason was guilty of copyright infringement
for loading Lowry's Market Trend Analysis newsletter on its company intranet
without paying the requisite license fee. (Legg Mason did pay for one $700
subscription, but shared it among 1,300 workers. Lowry's considered that a
flagrant practice that had spanned more than 12 years and involved fax machines
as well as computers.)
The court ordered Legg Mason to pay about $20 million to the newsletter publisher,
mostly in special damages—calculated at $50,000 per issue before a cease-and-desist
order and $100,000 per issue after the order. By statute, the damages could
have gone to $150,000 an issue.
According to a press release from Lowry's: "Legg Mason argued that what occurred
was a good-faith mistake by low-level employees caught up in a technological
transition. Lowry's responded that the fault lay not with those employees,
but with corporate decisions that gave them technology that made infringement
likely and easy without first training them in how to use technology legally."
As with the Texaco case, the Legg Mason decision, if it holds on appeal,
would seem to say there's no fair use in companies, especially if the illegal
copying (photo or now, digital) damages the market for the copyrightable work
in question. This case should send a warning to everyone who operates the content
side of an intranet. As a publisher for your organization, you need to understand
and respect copyright law.
Database Producers Beware! In striking the proper balance between copyright and fair use, as much as
it may seem to the contrary, the courts don't always rule in favor of publishers.
The perfect example is the Feist case. In 1991, the court said that just
because you, Mr. Publisher, worked really hard and spent a lot of money to
create a collection of facts, it doesn't mean others can't copy it straight
from you and go into business for themselves.
Ever since the Feist decision came down, publishers of legal, news, scientific,
and other factual collections have felt more than a little uneasy about this
ruling, since it seems to put their investment at risk.
And for years now, these same publishers have made numerous attempts to get
legislation introduced in Congress that would, if passed, make the flagrant "misappropriation" of
such databases a crime. The European Union has had a similar law for years.
But every time the legislation comes up for public debate in the States,
the library, scientific, academic, and even the news-reporting communities
object to it, saying that facts should not be protected, even from misappropriation
for the commercial advantage of an entire database. The past three or four
bills attempting to legislate database protection have ultimately died.
In fact, the whole debate has been placed on the back burner for a couple
of years now. But after a 2-year legislative hiatus, a database protection
bill is back before Congress.
Introduced in early October, the new measure, dubbed the "Database and Collections
of Information Misappropriation Act" (HR 3261) attempts—through a long
list of exceptions and exemptions to balance the desire of researchers, reporters,
and librarians—to keep facts in the public domain while protecting the
ability of compilers and classifiers to feel that their investment in creating
directories, databases, and other factual collections is protected from flagrant
and malicious theft. This version of the proposed legislation seems to me a
good attempt at compromise.
But will this compromise legislation pass any more muster with the user community
than earlier attempts to protect databases from theft? As much as I might empathize
with the producers—Information Today, Inc. does publish the American Library
Directory, after all—I wouldn't bet the future of our own factual databases
on this bill's likely passage.
But as the one who worries about such things for this company—and in
the wake of the Legg Mason decision—I'm at least comforted to know that
if you're loading our stuff on your intranet without permission, you'll now
be wanting a license.
Dick Kaser is Information Today, Inc.'s vice president of
content. His e-mail address is kaser@infotoday.com.
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