This paper is intended as a primer for copyright law inthe form of a short story. An elementary school teacher illegitimatelycopies a piece of software for educational purposes and is discovered. Issues such as the fair use doctrine, copyright law, and cyberlaw arecovered. The analytical section provides a realistic legal defense for thefictional situation that drives the paper.
I teach 6th grade mathematics at Hightstown MiddleSchool in Hightstown, New Jersey. I can’t say I particularly enjoy my job,but I still give it my best. I do enjoy spending time with my students, andany occasion when we can all laugh together is a good one. Most studentswho pass through school here will go on to work at low-income jobs for therest of their lives. The few students who do seem to have potential for abright future rarely achieve one.
About five years ago, our school received a number of outdated computersand a small grant to install Internet access from the nearby Armand HammerCorporation. We converted a classroom downstairs into our first-evercomputer laboratory, and the kids couldn’t get enough. Very few of them hadused a computer before, and of those, few actually owned one. Even today, alot of kids know what a computer is but lack basic knowledge about its use.
Six months ago, one of our outstanding students, Jake Meyers, told me thathe wanted to make websites for a living. I was enamored, and decided tohelp him as best as I could. We spent our after school hours for the next month learning HTML together. Jake’s first website was about Pokemon cards, one of his many passions.
Jake and I made a page for each of his favorite characters, found picturesof them on the Internet, and posted the site to a free server. His nextidea was to create original pictures depicting battles between the Pokemon,but because our district could not afford any drawing software, we wereunable to do it. When Jake began to feel discouraged, I resolved to get myhands on a professional quality program. My wife, who is a secretary at anadvertising firm, was able to get a copy of Adobe Illustrator for me. Iinstalled the program on one of the lab computers, and Jake and I onceagain spent hours designing his imaginary Pokemon haven.
Unfortunately, the action came back to haunt me when one of my colleagues,Maureen Shea, dropped in on one of our sessions about two months ago. Sheasked if the school had finally allocated enough money to start upgradingthe lab. I responded that no, I had borrowed the software from my wife andinstalled it on one computer. I didn’t think much of telling Maureen, butshe took the event more seriously than I imagined. As part of the hiringprocess, teachers are required to report any legal transgressions theyobserve. If the event had been ignored, Maureen was equally liable for theinfraction. Acting on this fear, she reported the illegitimate software tothe School Board.
Within a week, I received a letter requesting a period of voluntary leavewhile the Board could investigate. In my initial testimony before the sevenmembers, I related the exact story recounted here. Though they did notdisagree with my actions from a practical standpoint, they asked me toprepare a legal defense. Apparently, they were legally bound to report theincident to Adobe, and I was to research copyright law for a possiblehearing with the company. All of a sudden, I had a new project to work on.
I spent most of my days in front of a computer in the basement after schoolhours. As for Jake, I only saw him once over the next two weeks; it seemedlike I had let him down. There was nothing I could do, because I could nothelp him without first helping myself.
After only a few minutes of research, it was apparent that much of the casewould focus on the Fair Use Doctrine, passed in 19765 as part of a majorrevision to copyright law. At that time, technological advances promptedCongress to revise standards dating from 19091. Basically, the Fair UseDoctrine provided four criteria by which a copyright infringement case isdecided: purpose in copying the work, the nature of the original work, theamount of the original work that was copied, and effect on the potentialmarket9. Several extensions to the doctrine were passed to help clarifyrulings for specific cases, like provisions for certain media andorganizations, but most did not seem relevant to my case. Regardless, itwas clear that if I could prove “fair use” then I would be exonerated.
I glanced through a few cases online that seemed relevant to my situation,and in each, the defendant argued that the particular circumstancesconstituted fair use. Interestingly, I could find no legal precedent for myactions. Wherever I looked, all that experts had to say was that fair usewas determined on a case-by-case basis. The regulations that guide thejudge’s decision are only a rough outline of what factors should beconsidered in a case. For example, there is no formula to determine whenthe “amount or substantiality” clause is violated. Although I wasfrustrated by the lack of historical precedent involving software copyrightviolations, I knew that even those cases which did not relate to medirectly would still hold in principle before a judge.
Evidently, there had been a fair amount of debate concerning whethersoftware falls under copyright or patent laws. The current reasoning isthus: a program is one way of expressing an idea and is therefore acreative work. A patent can apply to a process while a copyright applies to”original works of authorship fixed in any tangible medium of expression”
Clearly, one could not patent or copyright the type of software (i.e. virusprotection, word processor, etc.). However, the exact coding for a programis without question a creative work and therefore subject to copyright. Software that is part of a process, such as operating hardware, ispatentable. In my case, I was dealing with software copyright law becauseby no means had I violated a Photoshop patent.
I investigated the actual U.S. law concerning software copyrights. Therewas a small section relevant to fair use of software12 that clarified fairuse in three situations. The first provision allowed copies to be made ifeither essential to operating the software in a legal manner, or to make anarchival copy. Secondly, software could only be transferred with thepermission of the copyright owner.
The third allowed copies for repair andmaintenance reasons, like backing up software installed on a hard drivewhile the original was purged. Unfortunately, none of the provisions forsoftware would excuse my actions. I only managed to find one case that in some way applied to my situation.
The first involved a repair company that had activated a piece of softwareas part of the diagnostic process. The software company argued that byactivating the program, which the repair company had not paid for, thesoftware was used without paying for the rights to do so7. The court ruledin favor of the repair company, which was personally encouraging because itshowed that in some situations at least, the courts were able to forgiveblatant violations of copyright law if done so for practical reasons. Otherwise, it appeared I was heading into uncharted legal waters until Irealized that there was a great deal of leniency where education wasconcerned.
The idea of a copyright in general is to allow authors of creative workscontrol over how their product is used. However, when a work is to be usedfor research or educational reasons, allowances are made. This is becauselegislators felt that nothing should prevent individuals from academicadvancement, as it is beneficial to society as a whole. Therefore, usagewithin an educational institution is usually allowed unless there issignificant economic damage. In fact, education is specifically mentionedin the four-part test for fair use10. Since I am a teacher, and I was usingthe software for instructional purposes, I figured this could be my bestavenue for defense.
All of a sudden, I felt a little more confident about my case becausefinally, there was some legal precedent for my actions. When an educationalcompany sued a teacher for creating entire copies of its televisionprograms, the only reason that the teacher lost was because of significantand consistent damage to the company’s economic market. In my case, Icreated a single copy for educational purposes, which has already beenestablished as legitimate for other media6. Other cases2 have showed thateducators were generally only liable when actual economic damage occurs.
I decided that I could address each section of the fair use doctrineseparately to prove fair use. The first factor, purpose of copying, wasundeniably educational. By the letter of the law10, such use leans towardslegality. The website we had posted, the only use of the copied software,was not for profit. Also, Maureen Shea, who knew a lot about our project,could testify as to my purpose in copying the software. I was onlyattempting to teach Jake how to create a web page.
The way in which copyright law applies to software (the nature of thework) has previously been discussed. No laws or previous cases couldjustify my actions on this count. I had copied a creative work in whole;that was certain. However, no precedent had ever been set for such anaction in an educational environment.
The most damaging factor was relevant to the amount of work I copied. Certainly, no one is denying that I copied the entire piece of software. But, there is no way I could use the program for educational purposes if Ihadn’t copied the entire program. I had no other choice but then to copyall of it, so perhaps the court would excuse my actions.
What gave me the most hope was the fact that there was no loss of a marketfor Adobe. Neither Jake nor I could have afforded to pay for a $400 pieceof software. If the school were to buy the program, it would disregard thesingle copy anyways, and install fresh on all of the computers. In fact, Imay have potentially increased the market – after experiencing thesoftware, either Jake or I could conceivably purchase the software.
Finally, a week ago, we were contacted by Adobe. In an official letter fromtheir legal department, they asked that the software be deleted from thelaboratory immediately. They also expressed no desire to press chargesbecause of a “lack of substantial damage to the company”, and the schoolboard accordingly dropped its investigation. Evidently, the legal feesrequired to pursue small-time offenders would outweigh any reparations everordered. I am again able to spend time with Jake, who has decided not topursue his Pokemon battles for the time being.
Reference
- Association of Research Libraries (2001). Timeline: A History ofCopyright in the U.S. Retrieved November 15, 2001 from the WWW:http://arl.cni.org/info/frn/copy/timeline.html
- Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F.Supp. 1522 (S.D.N.Y. 1991)
- D’Amico M (1995). Fair Use Free TakingsRetrieved November 15, 2001 from the WWW:http://lawcrawler.findlaw.com/MAD/mwfairuse.htm
- Encyclopaedia Britannica Educational Corp. v. Crooks, 542 F.Supp. 1156(W.D.N.Y. 1982)
- Maricopa Community College (1997). Copyright Restrictions and the FairUse Doctrine. Retrieved November 15, 2001 from the WWW:http://www.dist.maricopa.edu/legal/fairuse.html
