by Susan G. Lesch <firstname.lastname@example.org>
The pictures are familiar. Television reporters find online messaging easy to quote, and easy for a camera crew to reproduce. The Internet boom has TV reporters reaching a critical mass in their efforts to translate the net for broadcasting. Turn on a TV news program, and hear the text of a message, or watch the camera pan an office and then zoom in on a monitor connected to an online service or the Internet.
The list is long. A recent MacNeil/Lehrer PBS report on the Clipper chip, coverage of the NRA (National Rifle Association), an ABC magazine segment about selling sex online, an ABC News "Nightline" special report on privacy, last winter's NBC coverage of the Winter Olympics, CNN's May report on email stalking, and the same story on a recent ABC "A Current Affair" all incorporated direct quotation or representation of text on a computer terminal. The author of such a message is often not present, and unlike guests on TV talk shows, may not even be aware that his or her words have been aired.
My hope is that this article will defend what rights of authorship, ownership, and privacy exist, in the face of increasing press coverage of online messaging. To my knowledge - and I am neither a lawyer nor a journalist - no case law establishes these rules for TV either way. Certainly, the act of posting to a public BBS is evidence of the author's intent to make the work available to others who access the board. However, it is far from clear that such an act gives reporters license to reproduce that text without attribution.
For most purposes, the U.S. Copyright Act of 1976, as amended in 1992, holds today. When anyone creates a written work, whether trivial or of great value, he or she is the author and automatically receives rights of ownership at the time of creation. U.S. copyright extends through the life of the author plus 50 years, and affords the rights to copy the work, to distribute copies, and to make and profit by "derivative works," such as abridgment, translation and adaptation. (An aside here, only about one quarter of the world's 189 countries and 46 dependencies agree to the Berne Convention covering copyright.)
I asked the EFF (Electronic Frontier Foundation) whether posts on public paid services enjoy more protection than Internet posts, and for verification that online messages are copyrighted. The consensus was that a paid service offers no extra protection to its authors. Stanton McCandlish, EFF online activist, reassured me that Internet postings are instantly copyrighted. Mike Godwin, staff counsel for the EFF, wrote, when I asked him about TV coverage of online messages, "I regard this as an insignificant problem - one that causes no significant harm to the individuals involved, at least insofar as their copyright interests go. The relevant legal principle is 'De minimis non curat lex.'" This was the first of several prominent EFF member opinions I found disconcerting - "The law is not concerned with trifles."
An EFF co-founder, John Perry Barlow, is well known for writing and speaking about what he perceives as a dying set of laws governing intellectual property (an umbrella term covering copyright, patents, trademarks, and trade secrets). Mr. Barlow described an "enigma" surrounding digital expression in his "The Economy of Ideas," Wired magazine 2.03.
He asks, "If our property can be infinitely reproduced and instantaneously distributed all over the planet without cost, without our knowledge, without its even leaving our possession, how can we protect it?" I believe he is wrong to suggest that creators of work distributed digitally have no rights of authorship. The answer to his question might be to strengthen what rights the U.S. gives the owners of such work, rather than to encourage the evaporation of those rights. Whether one is a famous lyricist such as Barlow - for the rock 'n' roll band, the Grateful Dead - or an average person, composing and posting messages online, the law protects copyrighted work, and copyrighted work must be attributed if quoted.
It is usual in discussions of these issues to hear strong opinions. These include abolishing copyright, defense of the First Amendment rights of a writer taking precedence over the right to privacy of the individual being reported upon, bitter attacks on reporters who have overstepped guidelines, as well as delight upon discovering that one's name has been used without one's knowledge. Although I believe that defending copyright is critical, for every claim to ownership, there appears a cry for enrichment of the public domain. For every desire expressed for privacy, there is a defense of the doctrine of fair use.
Debra Young, Corporate Communications Specialist for CompuServe, confirmed in a 25-May phone interview that CompuServe upholds member copyright on all postings to CompuServe message boards. CompuServe does not advocate indiscriminate use of the service's vast text base by TV or print reporters. "What we're trying to do is protect privacy. If a camera were to pan over a message and leave it illegible there is no problem." If it focused on a third-party supplied database, permission would have to be given by that supplier, since CompuServe is merely the means of transmission in this case." She continued, "For the time being we follow basic law. However, each situation must be examined to measure its social and legal impact on both the online community, and everyone else watching." From what I can tell, CompuServe can be commended on its ability to state a position on copyright.
Of all the people I talked to, Gail Ann Williams, Conferencing Manager of the WELL, seemed to have the most experience with members complaining about reporters using their messages. The WELL cannot prohibit people from reproducing its message base, nor can it promise to take legal action at the request of a member who feels taken advantage of. She said, "If a journalist is careless, they will damage their reputation. The prudent journalist would take the time to determine the intentions of the author, and get permission if it was considered created property. Some people think they're talking; others think they are writing and composing."
To quote America Online's surprising Terms of Service, "Message Boards shall not contain copyrighted material and anyone posting information in these areas thereby consents to the placement of such material in the public domain." Margaret Ryan, spokesperson for AOL Corporate Communications, made it clear that America Online has rules and wants to "protect members' privacy." I hope other services do not adopt the America Online model, which is the flip side of CompuServe's - the message base and chat areas may be reproduced freely as long as screen names are changed or blocked out.
Ed Garsten of CNN's Detroit bureau produced one of the first national TV pieces on alleged electronic stalking (27-May-94). CNN is an America Online partner, America Online was not mentioned, and we agreed he was within even strict interpretations of fair use. However, in A Current Affair's rendition of the same story (09-Jun-94), America Online was identified on ABC - the interface, exact screen names, and email text were legible. Also Donahue's CBS shows about America Online were not approved by America Online prior to airing.
CBS-owned WCCO-TV, Minneapolis/St. Paul, has produced a weekly feature about online culture for the past year as part of its newscasts. To his credit, reporter Alan Cox said, "Not even fleetingly would we put private material on-screen," because he is aware that his audience has VCRs with pause buttons. But Mr. Cox's policy on televising text is based on this erroneous idea, "Basically, our philosophy on the Internet is that messages are in the public domain." Citing deadline constraints, he said WCCO has run messages without permission, with the author's name removed.
Philip Elmer-DeWitt, Senior Writer at Time magazine, whom I talked to regarding a PBS broadcast he produced that quoted net messages without attribution, gave this some thought. In an enjoyable phone interview on 25-May he decided, "After all the legal rigmarole, I suspect that even CompuServe or the WELL, which takes a very high moral position on this, will find that if it comes to a court of law, that they cannot stop somebody from publishing writing that somebody has posted on a public bulletin board. This is my guess. But it's wrong for a television program to run this stuff on TV without getting permission. It's just bad form."
Stanley Hubbard, President, Chairman and CEO of Hubbard Broadcasting Inc., is one of about 40 people who form the NIIAC (National Information Infrastructure Advisory Council), appointed by the U.S. Commerce Department to create reports for the U.S. government through early 1996. He is a member of the NIIAC subcommittee on intellectual property, security and privacy. Mr. Hubbard agreed in a 28-Jun phone interview that the difficulties arise when TV programs cross U.S. boundaries, and disagreed with my stance on the copyright status of some electronic messaging. He was intrigued by these questions, and said "We [the NIIAC] are not law makers. We are only advisors to the administration."
TV's interface with online messaging is changing fast as these media merge, both technologically, and by shared financial and legal interests, like TV Guide / The News Corporation / Delphi / Internet and CNN / TIME / Warner / NBC / The New York Times / America Online / Internet, to name two huge notable associations that already exist. Apparently it is legal for TV reporters to do what I've described if authors are credited, and not legal if no credit is given. But there are exceptions, like America Online, and new precedents are being set. Maybe the watch dogs of the industry need to be watched.
Policy makers, journalists, and key players I spoke with seemed ready to defend fair use exemptions for the TV press, and reticent to give people posting to the net credit for their work! I was astonished to hear an NIIAC member say that the value of the average person's postings may not be great enough to disallow its use in a broadcast. If a reporter finds a posting interesting enough to televise, how can it not have value, is that reporter not profiting by it, and is it not U.S. law and good practice that the source be credited?
I am afraid the consequence of becoming accustomed to such use without attribution will be erosion of the U.S. right to instantaneous copyright. By making simple acknowledgments of copyright and authorship, TV reporters covering electronic messaging can increase the value of the wealth of information stored online - to its owners!