By Pike, George H.
Information Today , Vol. 26, No. 7
Courtrooms are busy places. A colleague of mine once described lawsuits as "chaos" and best to be avoided. However, the courts are a critical component of the legal process, and as such, they are essential to determining how the law applies to a given situation.
The courts interpret the state and federal statutes that apply to the information industry, such as the Copyright and Patent Acts. Those interpretations serve as the foundation on which future decisions will rest. As is often seen with statutes such as the Fair Use Doctrine, these decisions of the past provide guidance for the future.
But they can only provide guidance. Because human history never repeats itself exactly, future circumstances can only be similar to the circumstances in these past decisions. An example of this is the lawsuit filed against Georgia State University (GSU) that alleges its course webpages and electronic course reserves violate copyright law. GSU claims those are fair uses. The Fair Use Doctrine outlines four factors, but a court must apply those factors. Prior cases involving academic uses of copyrighted materials have generally restricted fair use, but those cases have involved nonacademic copy shops doing the actual copying, not copying done by the academic institution itself. The prior cases provide some guidance, but they still can't be the basis for deciding the current case.
A Snapshot of the Law
Individual court decisions provide a snapshot of how the law may apply to a situation. I spent some time gathering a few court decisions from the last several weeks as a modest representation of the range of issues the courts deal with. Even some of these modest issues may have an impact on the information industry.
Many of the recent changes to copyright law have been driven by efforts to coordinate U.S. copyright with international copyright laws. A1994 statute implementing the Berne Convention on copyright served to restore the copyright of foreign works that had fallen into the public domain due to technicalities in U.S. law. However, a federal court in Colorado recently found the statute to be unconstitutional. The court held that restoring public domain works to copyrighted status violated the First Amendment rights of users who relied on the public domain works. This decision could have broad implications for users who rely, or want to rely, on foreign works that have fallen into the public domain.
Just because your copyrighted content is illegal doesn't mean it isn't entitled to copyright protection. This was the judgment of a federal appeals court in a case involving the infringement of the copyright of a video bingo game system. However, video bingo is illegal in several states. According to the court, there was nothing in the Copyright Act that restricts copyright protection or remedies for infringement based on "illegal operation of a copyrightable work." While I'm certain most of the information industry does not dabble in illegal activity, a scenario involving an archival database of Nazi, Ku Klux Klan, or similar content, which might be illegal in some jurisdictions, does not lose copyright protection under this holding.
The rise of the internet has created challenges for people victimized by internet content. These challenges include whom do you sue and where. When content is posted over a global network, it can be difficult to determine when and where the injury took place and where the parties are located. …