[Began with a review of three challenges confronting us in this novel course and strategies for dealing with them.]

Challenge 1

Establishing an effective work pattern in a course that lacks the external discipline of physical class room meetings.

Strategy: Set a week schedule that includes daily or near daily visits to the Webboard conference. Meet locally once a week. View the CUSEEME conference as the culmination of a week's reflection and exchange rather than "the week's class".

Challenge 2

Differential familiarity with the technology, especially the Webboard conference environment.

Strategy: Those who need some guidance or mentoring should obtain it from a classmate further up the learning curve.

Challenge 3

Access.

Strategy: Since the Webboard conference is the channel for the bulk of our substantive exchange having adequate access to it on a daily basis is critical. Getting into it and getting to the readings posted on the course web pages are the functional equivalents of getting to class and not losing your course materials. In some cases, your existing access via a school lab or dial-up connection may prove too limited in time of day or capacity may prove inadequate for these purposes and the expenditure of a few dollars on a commercial Internet access account be necessary.

[Discussion of CUSEEME conference protocol - spokesperson's role, need to identify who is speaking, use of chat window to indicate problems or a desire to comment, backup plan for periods of dropped connection.]

[Substantive discussion - Using the course as a object of analysis in order to begin an inventory of copyright issues arising from the shift from print and oral exchange to digital technology.]

Question: When one of you posts in the Webboard conference or I do is it clear that that posting is subject to the U.S. Copyright Act? If it is clear is that different from speaking in a conventional classroom?

Colorado: We have somewhat of a consensus that it is implicated when we post on the Webboard, but the extent of the protection is up in the air at this point.

Followup: Colorado takes the view that when one posts on the Webboard, the expression (as distinguished from the underlying ideas) is subject to the U.S. Copyright Act. I take it that conclusion incorporates a conclusion that a posting on the Webboard is sufficient "fixation" - that a Webboard posting is "fixed in a tangible medium of expression" - and so that threshold of the Copyright Act is satisfied. Are you persuaded of that?

Colorado: Yes. Considering the permanence of the posting and its ability to be copied at any member's site and that access involves copying into RAM of the member's machine that would be sufficient.

Question: What difference if any does that represent in comparison with a conventional course? If I were speaking to you in a physical classroom and you were responding to me, would that expression (mine and yours) be covered by the Copyright Act?

Chicago-Kent: [via chat window] Speech that is not "fixed" is not covered.

Followup: Question posed but not for present answer is whether unfixed speech is protected by some law other that the U.S. Copyright Act, whether state doctrines for example may protect it. [See the subsequent posting on common law copyright.] We've also noted in the Webboard conference that if either teacher or student are speaking from notes and are, therefore, in Copyright terms performing an already fixed work that expression is protected.

Perhaps we can identify as proposition number one the following. Since all our discussion other than that carried out in the video conference sessions is in written form and held on a computer harddisk and then transmitted to other computers where it is held in digital format in RAM and on disk, the Copyright Act is far closer to the ground, its coverage far more complete than in a conventional course.

Question: What about this video conference? Each of the sites has a chance to speak. The speech is transmitted across the Net and in real time translated into audio and video. Would my statements (to the extent they are extemporaneous and not reading from previously written materials) be covered by copyright?

Kansas: Our consensus is that it is not covered, that it is like TV broadcasting and as long as there is not a recording being made of what is broadcast it is not "fixed" and therefore not covered.

Followup: Remember that I making an audio recording of everything that I say and everything that comes through the speakers on my computer from one of you. For example, the answer you just gave is on an audio recording. Does that change your conclusion?

Kansas: Our revised consensus is that the audio portion of the conference, being recorded, is subject to the Copyright Act.

Followup: When we add an simultaneous recording of an audio/video conference, that recording renders the expression sufficiently fixed to secure copyright protection. Colorado indicates it would also like to respond.

Colorado: The cases seem to indicate that sufficient fixation may occur when digital material passes through RAM. If that is true, then even without the tape recording their may be sufficient fixation of both audio and video content for copyright protection.

Followup: That represents the view that even though a whole comment, perhaps not even a whole sentence remains in RAM at once, the fact that there is, for a brief moment, a copy of what has been transmitted in the machine's of both sender and recipient, is enough to constitute fixation.

That is a literal and extreme interpretation of the reach of the Copyright Act - one that I expect the authors of the White Paper would embrace.

It is the kind of reach that Jessica Litman's article focuses on as a cause for alarm.

For sure one of the central topics for us in this course is the reach of the notion that a Copyright Act "copy" is made when digital material passes into RAM - both as an issue of construing the present act and as a matter of policy.

Question: Anything to add Cornell?

Cornell: The White Paper takes the position that anything held in RAM for more than a brief period constitutes a copy. That simply transfers the question to one of: what is "more than a brief period"?

Followup: To the extent was that question addressed in the Marobie-FL case what answer does it give?

The proposition that if digital material moves through RAM that is sufficient to constitute a "copy" either for fixation purpose or for purposes of section 106 is one with revolutionary consequences. Among other things it would mean that while a broadcast using conventional broadcast technology is not subject to copyright protection (unless a simultaneous recording is made) the functional equivalent using computers and the Net would be. This issue will recur in many different settings through the course

Chicago-Kent: [via Chat window] Long enough that it can be perceived.

Followup: If that means long enough for this string of words coming to you across the Internet to be heard, then indeed we have a very different legal environment for this course than applies in a conventional classroom.

Question: If some one of us, most plausibly me, does something that constitutes an infringement what are the consequences? For example, suppose I were now to read to you a passage from a copyrighted law review article, without permission. Alternatively, suppose I made a copy of such a passage either by keying it in or downloading and pasting and posted it to the Webboard conference. For the moment, let's leave "fair use" aside and focus on the base question of whether or not we have infringement.

If I did this in a conventional class am I right that those of you on the receiving side would not be infringers? That is to say, that you can listen to an infringing performance or receive a copy from someone that is an infringing copy and not as the recipient be an infringer. Are there qualifications to that or is that a fairly "black letter" statement of copyright law?

Cornell: "Fair use" aside, if you are only receiving you are not distributing or copying yourself and therefore are not infringing.

Followup: I take it that lies back of Litman's assertion that the copyright act does not inhibit or limit the acts of reading, listening, or viewing - that those are not among the exclusive rights laid out in section 106, the bundle of rights of a copyright holder. While I as teacher may be infringing one of the 106 rights by performing publicly or copying it, those of you on the receiving side are not. There may be circumstances, of course, in which vicarious or contributory liability is a risk to the receivers, but that is an issue for a future day. In a typical teaching situation, that would not seem to be a serious possibility.

Question: Do you agree that in a conventional class those receiving infringing material from the teacher are not themselves infringers?

Colorado: There is an issue whether when students incorporate the material in their notes or make notes on an infringing copy they are making unauthorized derivative works.

Followup: Colorado has quite rightly drawn attention to another of the exclusive rights in 106 - namely the right to make derivative works. At some point the recipient of an infringing copy made by someone else may do things to it or with it that step on other 106 rights (than making a copy). While those rights don't include reading or viewing, they do include the right to make a derivative work and adding extensive notes may arguably cross that line.

What about this course? Suppose I put an infringing copy of a written work at the course web site or in the Webboard conference as a post and you access it with your Web browser. Are you infringing copyright at that point?

Colorado: For basically the same reasons as a conventional class, you the original infringer would be liable but we would not be, simply for downloading, unless we somehow knew it was copyright protected.

Followup: Bear in mind there is no "innocent infringer" defense although as the Marobie case suggests innocence may impact the level of liability exposure.

Cornell: If you download something, even if you have it only in RAM, you have according to the White Paper view made a copy. Therefore, if Prof. Martin has posted infringing material on the Webboard by downloading that work each of us would also, individually, be making an infringing copy.

Followup: One of the points made by Prof. Litman is that insofar as making a copy to hard disk or in RAM is an essential step in a digital exchange it radically changes not only where infringing transactions occur but who potentially is an infringer. She understands the White Paper as taking the position that an innocent downloader is making an infringing copy and therefore violating one of the 106 exclusive rights. Let us leave for the future the parameters of the "fair use" defense under these circumstances as well as the effect of innocence on liability. But simply note for now that if making a copy in the course of browsing gives rise to an infringement by the recipient that is an importantly different result than occurs when one receives a physical copy that is already the product of infringement.

Question: There were a couple of points made in the Webboard conference that I would like at this point to acknowledge.

One of the points made was that since the Copyright Act applies to the conference and since our postings collectively constitute an organized whole that largely work itself may have distinct copyright status. This is a matter we will have to address. If everything that we contribute to the class discussion is copyright protected, what rights to the entirety do each of use have? What rights to control the use of our own contributions by others?

Cornell: We believe that each has the right to control the use of his or her individual contribution, but have not reached a conclusion about the work as a whole.

Followup: If each contributor has rights what does that say about the rights of the other members of the course. Suppose I were to write something about the course or its subject and want to incorporate a number of your postings. Could I do so without infringement? Could one of you wanting to prepare a manual on copyright protection of digital material incorporate postings by other members of the class, including me? We'll need to put that over for next week.

Question: Another posting suggested that "fair use" may operate differently in a digital environment. Suppose again that I put several passages from a copyrighted law review article either at the course web site or in Webboard, without permission. Is that a stronger or weaker case for "fair use" than if I made photocopies of the very same material for a conventional class? Does anyone have preliminary thoughts? Arguments for or against "fair use" applying differently to digital material?

Colorado: Can the Webboard conference be accessed by others than the members of this class? Without my allowing someone in they cannot access material posted there. The course web pages are not so restricted. While the address is not advertised, anyone with the URL can access material there - including people who find it with a search engine or mere blunder.

Conclusion: I think we got off to a good start. You have a couple of minutes for local discussion. They should be used to agree upon a local meeting time, and for making matches between those of you who would like coaching on the use of Webboard and those who are already comfortable users of that software.

Send me e-mail if you want to ask me anything in "virtual office hours".