Copyright law amendment could effect academia


If the latest amendment to copyright law is strictly enforced, researchers who post their own published papers on the Internet -- as well as the people who download those papers -- may be committing a crime.

The No Electronic Theft Act (NETA), aimed primarily at stopping electronic copyright violations, extends the reach of existing laws by making the willful violation of copyright a criminal violation, even if no profit is involved. It was signed into law by President Clinton on December 16.

NETA was enacted to protect software and music copyrights from illegal distribution over the Internet, and inclusion of the term "willful" in the law's wording indicates that the law will probably be used specifically in that way.

"It's not likely that scientific journals will start prosecuting their authors," said Karen Hersey, MIT's intellectual property attorney. "But if they don't have permission from the publisher, they're certainly running a risk. There is the potential for individual liability for our faculty, students and staff, as well as for institutional liability."

Essentially, the same rules apply to the Web as to traditional publications. To be safe, people at MIT should not post copyrighted materials -- text, images, music and video clips -- on their Web sites, unless they hold the copyright or have explicit permission from the copyright holder.

Also, providing links to copyrighted materials could be considered "contributory infringement," said Ms. Hersey, particularly if the people using those links download or copy the material they find there without permission.

"It's understood that people will read the material on the computer. But it's not legal for people to download that same material" to read it from the printed page, she said. While it's unlikely that a person providing links would be prosecuted, she suggests posting a notice along with the link, warning users that downloading is illegal.

The right to "fair use" for teaching, scholarship and research may provide some protection for posting, but that protection would not extend to electronic distribution of those materials.

Ms. Hersey expressed concern about the Institute's potential liability "for activities undertaken by faculty and staff that appear to be within the scope of their employment." The electronic distribution of course materials, especially to distance learners, carries a major risk in this regard.

"The library exemption-to-copyright law allows you to make one photocopy of written material from collections and archives in a library. But that doesn't extend over the Internet," she said.

The exception for face-to-face instruction that allows teachers to show copyrighted material to a class does not apply to the Internet either. Nor does permission to make paper copies for a course reader.

Under NETA, the willful infringement of copyrighted material is punishable by hefty fines and prison terms. Reproducing 10 or more copies of copyrighted material worth $2,500 carries a punishment of up to $250,000 and three years imprisonment. Violators making one or more copies of material valued at more than $1,000 but less than $2,500 can be imprisoned for up to one year and fined up to $100,000.

The bill was introduced in Congress following the 1994 case of David LaMacchia (SB/SM '96), who was accused by the government of illegally distributing software by posting it on a globally accessible Internet bulletin board. The bulletin board was operated without authorization on MIT workstations. Officials estimated that more than $1 million worth of copyrighted commercial software was distributed, but at no profit to Mr. LaMacchia, who was an MIT student at the time.

The case was dismissed in January 1995. Because Mr. LaMacchia did not profit from the software's distribution, prosecutors were unable to make a case against him under existing law.

NETA is designed to close that loophole, allowing prosecutors to pursue criminal charges in cases where the accused has not profited from his or her actions. Courts will now accept victim impact statements as a means of measuring the loss, including the estimated economic impact of the offense.

Anyone with questions about the law and how it might apply to his or her activities is urged to contact the Office of Intellectual Property Counsel.

A version of this article appeared in MIT Tech Talk on January 14, 1998.


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