Copyright in the Digital Age
Moscou, Jim, Editor & Publisher
There really wasn't a lot of money at stake when Rex Heinke was asked to file a copyright-infringement lawsuit against a little-known Web site called Free Republic. But, then again, that really wasn't the point.
Heinke, an attorney who represents both The Washington Post and the Los Angeles Times, said the two papers discovered in 1998 that Free Republic's creators and visitors were posting their articles in the Republic's forums for discussion and debate. So, in September of that year, they hauled the Web operator into federal court claiming copyright violations.
In both a very real and a symbolic way, L.A. Times vs. The Free Republic emerged as a pioneer in the new era of cyber-copyright law. While the rules governing intellectual property haven't changed very much since the beginning of the digital revolution, the speed, access, vocabulary, and volume of information spinning around the Internet is forcing newspapers - and the courts - to consider new ways to protect intellectual assets. The Times and Post, after all, Heinke argues, charge about a dollar-fifty per article online. That's lost revenue. In turn, Free Republic - which touts itself as a "gathering place for independent, grass-roots conservatism on the Web"- argued its postings of the articles were protected under fair-use laws. A federal court issued a tentative ruling against the Web site last month. A final decision is expected soon.
But the court's opinion will most likely just leave more questions. Here, in an edited interview, Heinke - who is a First Amendment and intellectual-property attorney at the Los Angeles-based firm Greines, Martin, Stein and Richland - discusses the dawn of digital copyright law.
E (and)P: Let's start with one of the most obvious and, to me, gnawing questions: The Internet is so big, so vast, and so fast, how in the world can anyone really control their copyrighted material?
Heinke: Well, it depends on what you're seeking to control. If your goal is to say that no one can ever copy a single page off of any Web site without permission, you're not going to be able to achieve that, ever. If your goal is to say somebody is not going to be able to operate a Web site that regularly engages in distributing copyrighted materials and does that in violation of the law, you are going to be able to control that. Those places are not going remain anonymous.
So, it's not the "mom-and-pop" home page listing a few articles that's of concern, but It's the question of the volume, the number of people going to the Web site, and looking at the material being copied.
Is that how the Post and the Times came to sue the Free Republic?
[Free Republic] was in business for a couple of years and was growing very, very rapidly. It was having 20,000 to 50,000 hits a day. They were cutting and pasting the articles to their site. ... There was a correspondence back and forth trying to resolve it. When we couldn't, we filed a lawsuit.
The Republic argued they were using the information to foment discussion and debate. Isn't that fair use?
We think [the tentative federal court decision in the case] makes it clear what is or isn't fair use. And the courts have tentatively resolved that, saying it wasn't.
Are newspapers going to be driving online copyright legal battles?
They are going to be one of the important players, but it'll be anyone that owns copyrighted information that is digitized and therefore can be distributed on the Internet. That includes music, books, movies, software, and so on.
This is where it becomes daunting to me. How can digital copyrighted products be tracked and controlled on the Internet?
But it has always been daunting [at] some level.
But the speed at which information can be sent back and forth nowadays. …