aw Exploratory Essays Research PapersEducation, Software Piracy, and the Law Abstract This paper is intended as a primer for copyright law in the form of a short story. An elementary school teacher illegitimately copies a piece of software for educational purposes and is discovered.
Issues such as the fair use doctrine, copyright law, and cyberlaw are covered. The analytical section provides a realistic legal defense for the fictional situation that drives the paper. My name is Jason Lee and I teach 6th grade mathematics at Hightstown Middle School 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, and any occasion when we can all laugh together is a good one. Most students who pass through school here will go on to work at low-income jobs for the rest of their lives.
The few students who do seem to have potential for a bright future rarely achieve one. About five years ago, our school received a number of outdated computers and a small grant to install Internet access from the nearby Armand Hammer Corporation. We converted a classroom downstairs into our first-ever computer laboratory, and the kids couldn’t get enough. Very few of them had used a computer before, and of those, few actually owned one. Even today, a lot 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 that he wanted to make websites for a living. I was enamored, and decided to help 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 pictures of them on the Internet, and posted the site to a free server. His next idea was to create original pictures depicting battles between the Pokemon, but because our district could not afford any drawing software, we were unable to do it. When Jake began to feel discouraged, I resolved to get my hands on a professional quality program. My wife, who is a secretary at an advertising firm, was able to get a copy of Adobe Illustrator for me. I installed the program on one of the lab computers, and Jake and I once again 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. She asked if the school had finally allocated enough money to start upgrading the lab. I responded that no, I had borrowed the software from my wife and installed it on one computer. I didn’t think much of telling Maureen, but she took the event more seriously than I imagined.
As part of the hiring process, teachers are required to report any legal transgressions they observe. If the event had been ignored, Maureen was equally liable for the infraction. Acting on this fear, she reported the illegitimate software to the School Board. Within a week, I received a letter requesting a period of voluntary leave while the Board could investigate. In my initial testimony before the seven members, I related the exact story recounted here. Though they did not disagree with my actions from a practical standpoint, they asked me to prepare a legal defense. Apparently, they were legally bound to report the incident to Adobe, and I was to research copyright law for a possible hearing 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 school hours. As for Jake, I only saw him once over the next two weeks; it seemed like I had let him down. There was nothing I could do, because I could not help him without first helping myself. After only a few minutes of research, it was apparent that much of the case would focus on the Fair Use Doctrine, passed in 19765 as part of a major revision to copyright law. At that time, technological advances prompted Congress to revise standards dating from 19091. Basically, the Fair Use Doctrine provided four criteria by which a copyright infringement case is decided: purpose in copying the work, the nature of the original work, the amount of the original work that was copied, and effect on the potential market9. Several extensions to the doctrine were passed to help clarify rulings for specific cases, like provisions for certain media and organizations, but most did not seem relevant to my case.
Regardless, it was 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 circumstances constituted fair use. Interestingly, I could find no legal precedent for my actions. Wherever I looked, all that experts had to say was that fair use was determined on a case-by-case basis. The regulations that guide the judge’s decision are only a rough outline of what factors should be considered in a case. For example, there is no formula to determine when the “amount or substantiality” clause is violated. Although I was frustrated by the lack of historical precedent involving software copyright violations, I knew that even those cases which did not relate to me directly would still hold in principle before a judge.
Evidently, there had been a fair amount of debate concerning whether software falls under copyright or patent laws. The current reasoning is thus: a program is one way of expressing an idea and is therefore a creative work. A patent can apply to a process while a copyright applies to “original works of authorship fixed in any tangible medium of expression”8.
Clearly, one could not patent or copyright the type of software (i.e. virus protection, word processor, etc.).
However, the exact coding for a program is without question a creative work and therefore subject to copyright. Software that is part of a process, such as operating hardware, is patentable. In my case, I was dealing with software copyright law because by no means had I violated a Photoshop patent. I investigated the actual U.
S. law concerning software copyrights. There was a small section relevant to fair use of software12 that clarified fair use in three situations. The first provision allowed copies to be made if either essential to operating the software in a legal manner, or to make an archival copy. Secondly, software could only be transferred with the permission of the copyright owner. The third allowed copies for repair and maintenance reasons, like backing up software installed on a hard drive while the original was purged.
Unfortunately, none of the provisions for software 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 software as part of the diagnostic process. The software company argued that by activating the program, which the repair company had not paid for, the software was used without paying for the rights to do so7. The court ruled in favor of the repair company, which was personally encouraging because it showed that in some situations at least, the courts were able to forgive blatant violations of copyright law if done so for practical reasons.
Otherwise, it appeared I was heading into uncharted legal waters until I realized that there was a great deal of leniency where education was concerned. The idea of a copyright in general is to allow authors of creative works control over how their product is used. However, when a work is to be used for research or educational reasons, allowances are made11. This is because legislators felt that nothing should prevent individuals from academic advancement, as it is beneficial to society as a whole. Therefore, usage within an educational institution is usually allowed unless there is significant economic damage. In fact, education is specifically mentioned in the four-part test for fair use10. Since I am a teacher, and I was using the software for instructional purposes, I figured this could be my best avenue for defense. All of a sudden, I felt a little more confident about my case because finally, there was some legal precedent for my actions.
When an educational company sued a teacher for creating entire copies of its television programs4, the only reason that the teacher lost was because of significant and consistent damage to the company’s economic market. In my case, I created a single copy for educational purposes, which has already been established as legitimate for other media6. Other cases2 have showed that educators were generally only liable when actual economic damage occurs.
I decided that I could address each section of the fair use doctrine separately to prove fair use. The first factor, purpose of copying, was undeniably educational. By the letter of the law10, such use leans towards legality. 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 only attempting to teach Jake how to create a web page.
The way in which copyright law applies to software (the nature of the work) has previously been discussed. No laws or previous cases could justify 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 an action 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 I hadn’t copied the entire program. I had no other choice but then to copy all 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 market for Adobe. Neither Jake nor I could have afforded to pay for a $400 piece of software. If the school were to buy the program, it would disregard the single copy anyways, and install fresh on all of the computers. In fact, I may have potentially increased the market – after experiencing the software, either Jake or I could conceivably purchase the software.
Finally, a week ago, we were contacted by Adobe. In an official letter from their legal department, they asked that the software be deleted from the laboratory immediately. They also expressed no desire to press charges because of a “lack of substantial damage to the company”, and the school board accordingly dropped its investigation.
Evidently, the legal fees required to pursue small-time offenders would outweigh any reparations ever ordered. I am again able to spend time with Jake, who has decided not to pursue his Pokemon battles for the time being. 1. Association of Research Libraries (2001). Timeline: A History of Copyright in the U.S. Retrieved November 15, 2001 from the WWW: http://arl.
cni.org/info/frn/copy/timeline.html 2.Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F.Supp.
1522 (S.D.N.Y. 1991) 3. D’Amico M (1995).
Fair Use Free Takings Retrieved November 15, 2001 from the WWW: http://lawcrawler.findlaw.com/MAD/mwfairuse.htm 4. Encyclopaedia Britannica Educational Corp. v.
Crooks, 542 F.Supp. 1156 (W.D.
N.Y. 1982) 5. Maricopa Community College (1997). Copyright Restrictions and the Fair Use Doctrine.
Retrieved November 15, 2001 from the WWW: http://www.dist.maricopa.
edu/legal/fairuse.html 6. NoLo – Law for All (2001). Grading Teachers on Copyright Law — Videotaping for the Classroom. Retrieved November 15, 2001 from the WWW: http://www.
nolo.com/encyclopedia/articles/tc/nn72.html?r=00150047303202000 7. Stim R (2001). Copyright Law Changes That May Affect You Retrieved November 15, 2001 from the WWW: http://www.
nolo.com/encyclopedia/articles/tc/legislation98.html 8. United States Code, Title 17, Chapter 1, Sec. 102. Subject matter of copyright: In general 9. United States Code, Title 17, Chapter 1, Sec.
106. Exclusive rights in copyrighted works 10. United States Code, Title 17, Chapter 1, Sec. 107. Limitations on exclusive rights: Fair use 11. United States Code, Title 17, Chapter 1, Sec. 110. Limitations on exclusive rights: Exemption of certain performances and displays 12.
United States Code, Title 17, Chapter 1, Sec. 117. Limitations on exclusive rights: Computer programs 13. University of Texas (1999). Permissible Copying of Software Retrieved November 15, 2001 from the WWW: http://www3.utsystem.edu/ogc/intellectualproperty/mono2.htm