The Virtual Lawyer - NetStealing

by David Crocker

Published 1998-04-01    Printer-friendly version

Web Designers Under Arrest?

Years ago in another life, I worked as a pipefitter in the shipyards. While plying my trade, I once worked for a boneheaded supervisor who (swear to God and hope to die) couldn't read a blueprint. When I would ask him a question about a job, he would invariably send me to a sister ship being outfitted at the nearby pier. "Go look at what they did next door," he would mutter. I can still see the guy, complete with dangling cigarette, green teeth and a mincemeat face.

Educating Web Designers

Pipefitting and Web design may not be that far apart: any half-wit using the Web eventually figures out how easy it is to steal another's content. In fact, an entire generation of Web designers got their start by "borrowing" HTML code contained in the browser cache. It's just too easy. Netscape even allows you to look to look at the code while it's on the screen. Most of the applets and graphics wind up in the cache. If it's just text you're after, then it's even easier. After all, how difficult has it ever been to steal ASCII text? Well, easy though it may be, it can get you in trouble. Even lifting data off another's site can get you in Dutch.

Expert Pages

Copyright holders and content providers have become more aggressive of late over just these sorts of issues. Take, for instance, Expert Pages (http://expertpages.com), which assembled a subscription database of expert witnesses posted to the web. EP took the extraordinary step of registering the copyright of its listing, asserting that the collection of links constituted an "automated database" containing sufficient originality to attain copyright status. A rival site "borrowed" the listing and spammed the listed experts, hoping to lure them away to his site. Expert Pages then filed suit, alleging copyright infringement (because the rival copied the listing) and unfair trade practices (because the rival allegedly disparaged EP's services). This lawsuit is still in progress. Expert Pages also sued another rival on the same grounds. In this latter suit, the parties settled after EP obtained a temporary restraining order.

Borrowing Clip Art

In a somewhat different case, the National Association of Fire Equipment Distributors put copyright-protected clip art on its Web site. It seems that NAFED's Web administrator obtained the clip art from "unknown sources," loaded it on his hard drive and then posted it to the NAFED site. Marobie-FL, Inc., the copyright holder, was understandably upset and sued for direct copyright infringement, winning hands down. As the court said, it didn't matter that no one other than NAFED employees actually downloaded the art. It was enough that once posted, the art would be copied and sent to remote clients requesting the page. It's that browser cache thing again.

No Electronic Theft

Congress passes such catchy-sounding laws, don't you think? Take, for instance, the "No Electronic Theft Act ", signed by President Clinton on December 6. NET (get it?) simply recognizes that copyright infringement has become too easy in the digital age and amends the criminal copyright provisions accordingly. In case you didn't know, "willful" copyright infringement has always been treated criminally, if done for "commercial advantage or private financial gain." NET adds language that makes it a criminal offense to electronically reproduce and distribute one or more copyrighted works during a 180-day period, if the works have a total retail value of more than $1,000.00. For this achievement, you can go to the joint for up to one year and be whacked with a $100,000.00 fine. If you're really serious about infringement and want to go for a felony rap, then make ten copies within 180 days worth more than $2,500.00. Then you can get up to five years and a quarter of a million in fines.

Kids and Victims

Does this mean that your kid will go to Marion or Danbury? Probably not (although there are times you wish he would). NET provides that evidence of mere reproduction or distribution, by itself, will not be criminal (although it's certainly infringing). You can be sued by the copyright holder, but the marshals won't be leading you away in leg irons. But get this: "Victims" of criminal copyright infringement can submit impact statements that become part of the pre-sentencing report. These statements can describe the scope of injury and loss suffered, including economic impact. That part seems a little weird, doesn't it? When I think of victim statements, I conjure images of sobbing relatives at a murder trial. Somehow, copyright infringement victims don't have quite the same sympathetic appeal.

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Clarion Magazine ISSN 1718-9942