Intellectual Property Law and the Net: False Analogies

Yousuf Dhamee '96

One of the first squabbles to erupt in the courts regarding intellectual property and the Net involves a writer's group suing The New York Times for selling the on-line rights to contributors' work. It is not clear whether standard contracts allow for the sale of an author's work in the electronic medium by his/her publisher. (Diamond/Bates) The issue hinges on an interpretation of the "first sale" clause of the law. Whenever an article is accessed on-line the information contained therein is reproduced. What is not clear is whether this "more closely resembles republication in an anthology or sale of a back issue."(Diamond) The sale of an article to a newspaper is for one publication only. If the New York Times (or any similar institution) wants to publish an article twice it must pay the contributor accordingly. However, the publisher does have the right to sell as many copies of "back issues" as he likes without further payment to the writer. Another way of looking at the case is that the newspaper editors of America would like to believe that their purchases of articles are similar to buying books in a store. If this is indeed the case Publishers can demand the right to resell articles freely.

Looking at this issue on a theoretical level it is clear that Net technology does not lend itself to either analogy. When a web document is accessed or copied nothing new is actually created. Each additional viewer browses through the same document, which is stored in one computer's memory bank. Nothing needs to be produced in order to facilitate distribution. This makes it difficult to liken a Net page to a reprint. On the other hand, a Net document does not resemble an unlimited stack of back issues. A posting remains a single entity, one that can exist in many places at once. The courts must struggle to understand and adapt to this revolutionary idea.