1234Individual Behavior, Private Use andFair Use, and the System for CopyrightAs discussed in Chapter 3, the information infrastructure creates bothopportunities for and concerns about public access to information andarchiving. Continuing the inquiry into the consequences of the informa-tion infrastructure for intellectual property, this chapter considers im-pacts on individual behavior and discusses the difficult concepts of fairuse and private use. In addition, it raises the question of whether thecurrent regime of copyright will continue to be workable in the digital ageor whether some of the basic legal models for intellectual property (IP)need to be reconceptualized.UNDERSTANDING COPYRIGHT IN THEDIGITAL ENVIRONMENTEarlier sections of the report note how the technology of digital infor-mation has vastly increased the ability of individuals to copy, produce,and distribute information, making the behavior of individuals a far moresignificant factor in the enforcement of IP rights than in the past. Yet weas a society apparently know relatively little about the public’s knowl-edge of or attitude toward intellectual property. The committee found nodefinitive or widely recognized formal research on this issue, only cir-cumstantial evidence that most people do not have an adequate under-standing about copyright as it applies to digital intellectual property.Copyright © National Academy of Sciences. All rights reserved.The Digital Dilemma: Intellectual Property in the Information Agehttp://www.nap.edu/catalog/9601.html124 THE DIGITAL DILEMMAThe General PublicA number of copyright-related myths and urban legends have circu-lated on the Internet; they are sufficiently widespread that some of theindustry trade associations have taken steps to debunk them.1 In theworld of digital music, for example, some misconceptions include theclaims that the absence of any copyright notice on a Web site or on asound file (commonly an MP3 format file) indicates that the recordings orthe underlying musical composition have no copyright protection and arefreely available for copying; that downloading a copy for purposes ofevaluation for 24 hours is not an infringement; that posting sound record-ings and other copyrighted material for downloading is legally permis-sible if the server is located outside the United States because U.S. copy-right laws do not apply; that posting content from a CD owned by anindividual is not an infringement; that downloading sound recordings isnot an infringement, and so on.2 As discussed in Chapter 2, the extent ofthe unauthorized copying of copyrighted material posted on the Internetand the apparent ignorance of the rules of copyright are particularly com-pelling in regard to digital music files.3Other misconceptions concern print, graphics, or other visual con-tent. Some of these are that if the purveyor of the illegal copies is notcharging for them or otherwise making a profit, the copying is not aninfringement; that anything posted on the Web or on a Usenet news groupmust be in the public domain by virtue of its presence there; that the FirstAmendment and the fair use doctrine allow copying of virtually anycontent so long as it is for personal use in the home, rather than redistri-1See, for example, <http://www.audiodreams.com/mtvhits/> (stating, “This page isnon-profit and audio files can be downloaded for evaluation purposes only and must bedeleted after 24 hours”); <http://www.warezrevolution.com> (indicating “You must de-lete everything after 24 hours and use it for educational purposes only. All files containedhere are only links and are not from our server”); <http://www.fullwarez.com> (indicat-ing, “This page in no way encourages pirated software. This page is simply here to let youTRY the applications before you decide to buy them. Please delete whatever you downloadafter testing them and let the hard working programmers earn their money”); <http://www.escalix.com/freepage/thehangout/disclaim.html> (stating, “MP3’s are legal to makeyourself and keep to yourself, but illegal to download [sic] publicly and keep them, as theyare copyrighted material, that is why you MUST NOT keep an MP3 for more than 24hours.” For an example of a trade association’s attempt to debunk some of these myths, seethe Software Publishers Association site at <http://www.spa.org/piracy/legends.htm>(the SPA has merged with the Information Industry Association, producing the Softwareand Information Industry Association, at <http://www.siia.net>).2See <http://208.240.90.53/html/top_10_myths/myths_index.html>.3According to a briefer at the committee meeting of July 9, 1998, “We’re bringing up ageneration of college students who believe that music should be free because music is freeto them in the colleges.”Copyright © National Academy of Sciences. All rights reserved.The Digital Dilemma: Intellectual Property in the Information Agehttp://www.nap.edu/catalog/9601.htmlINDIVIDUAL BEHAVIOR AND THE SYSTEM FOR COPYRIGHT 125bution to others; that anything received via e-mail can be freely copiedand that if the uploading, posting, downloading, or copying does not, inthe view of the end user, hurt anybody or is just good free advertising,then it is permissible.4Still other common myths concern software. Among these are the 24-hour rule (i.e., software may be downloaded and used for up to 24 hourswithout authorization if the ostensible purpose is to determine whetherthe user wants to continue to use it, at which point he or she would haveto delete it or buy it, but there is no limit on the number of times the usercan download and reuse the software so long as it is deleted or purchasedat the end of each 24 hours) and the “abandonment” rule (i.e., software isavailable for copying without liability if the copyright owner has ceasedactively distributing it for more than some number of years). Some peoplewho copy digital content do not know that they are doing anything illegaland believe that their ignorance of the law should absolve them fromliability for copyright infringement. (As a matter of law, it doesn’t.)There is also the question of how well informed the public is aboutintellectual property more generally, including compliance with the pri-vate contracts embodied in shrink-wrap licenses, point-and-click licenses,subscriber agreements, and terms-of-service contracts. The intuitive con-clusion is that a relatively small portion of the