A copyright is an intangible right granted by statute to the originator of certain literary or artistic productions, including authors, artists, musicians, composers, and publishers, among others. For a limited period, copyright owners are given the exclusive privilege to produce, copy, and distribute their creative works for publication or sale. Applicants seeking copyright protection for their work must establish that the work is original and has been reduced to a “tangible medium of expression.” 17 U.S.C.A section 102(a). “Originality” does not mean “novelty” for the purposes of copyright law. It simply means that the work in question is the work of the person seeking copyright protection and not the creation of a third party from whom the work was copied. The phrase “tangible medium of expression” means that the work manifests itself in a concrete form, as when something is written on a piece of paper, recorded on an audiotape, captured on a videotape, or stored on a computer disk, hard drive, database, or server.
There are a number of defenses to copyright infringement suits, but “fair use” is the most frequently asserted. Fair use refers to the use of a copyrighted work that does not violate the exclusive rights of the copyright owner. The defense allows original works to be reproduced for the purpose of criticism, comment, news reporting, teaching, scholarship, research, and personal consumption. 17 U.S.C.A. section 107. Whether a particular use is “fair” depends on a court’s application of the following factors: (1) the purpose and character of the use, including whether the 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 the copyrighted work, including the extent to which the use diminishes the economic value of the work.
Copyright thus has important implications for the Internet. It is not uncommon for Web sites to make copyrighted works available to Internet users or for users to alter copyrighted works downloaded from the Internet. Nor is it uncommon for either Web site owners or Internet users to distribute original or altered copyrighted works across the Internet. But unless they are doing so with the permission of the copyright owner, both Web site owners and Internet users face possible claims for infringement, even if the distribution does not directly profit the distributor and even if the recipients are using copyrighted works for personal pleasure.
For example, in the case of A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001), where the U.S. Court of Appeals for the Ninth Circuit ruled that the fair use doctrine does not allow an Internet service to facilitate the transfer of copyrighted MP3 digital audio files between service users who pay no fee to the copyright owners. Napster, the defendant Web service, created a system whereby service users interested in obtaining MP3 files, which reproduce high-quality music in a compressed and easily transferable format, could connect to Napster and contact others interested in exchanging digital recordings. The users would then send MP3 files to each other through the Internet, but the files would never pass through Napster’s servers. Recognizing that the individual users were mostly high school and college students exchanging the music for personal consumption, the court still found that the purpose and character of their use was commercial in nature. “Napster users get for free something they would ordinarily have to buy,” the court observed. The court said that Napster reduced audio CD sales among those students who used its service, thereby diminishing both the size of the copyright owners’ market and the value of the copyrighted work.
