Alexa and copyright

[Web Publishers Virtual Library]

At 07:23 AM 3/26/98 -0800, Greg MacGowan wrote:
>I am not a lawyer either, but from what little I understand of it, this
>really does sound like copyright infringement. I could understand the
>argument of implied license permitting Alexa (or any user) to make a copy
>for personal use,

[snip]

Copying copyrighted materials is permitted under the fair use clause of the
Copyright Act.  But fair use is not defined -- the law says that it exists
and offers some basis for identifying it.  There is nothing about "personal
use" in the tests in the Act.  "Personal use" is a commonly held myth,
which many think arose when the Supreme Court ruled in favor of Sony,
saying that VCRs were not a mechanism of contributory infringement even
though they allow movies and television to be copied.  The justification
was that there is a legitimate use of a VCR -- time-shifting (recording a
broadcast in order to watch it later).  However, many people misinterpret
that decision as allowing one to create a personal library (so to speak) of
videos.

Alexa could argue that there is an implied license, given the existence of
legitimate (I believe) applications such as proxy servers, to "time-shift"
the contents of the Web.  There's a lot of ammunition on both sides of this
issue and it is by no means clear.  The primary test of copyright
infringement is the effect that the copy has the market value of the work.
That test would seem to favor Alexa, since they are copying works that do
not have market value (I'm not aware of them archiving any for-pay
material).  On the other hand, another important test is the amount of the
original that is copied -- fair use usually is restricted to a small
excerpt from a larger work.  Alexa fails that test, but time-shifting is a
case law exception.  A third test is the purpose of the copy.  Educational
purposes are given more latitude, as every librarian probably knows.

If a person were to truly object to Alexa's archiving, a shareware-style
notice of copyright, limiting the use of your Web pages to exclude such
archives, would probably be upheld in court. I say this because there is a
strong argument that Alexa is doing for all Web content the same thing that
shareware archives have done for shareware.  Shareware licenses that
restrict archiving have been upheld in court.


And now, the disclaimer.  I'm not a lawyer, but I edited and published a
book on copyright law.  I continue to stay abreast of the issues when I'm
able.

Since many of you are librarians and love authoritative sources -- some of
the best analysis of these issues comes from Pam Samuelson, a law professor
at Berkeley who recently won a MacArthur "genius" grant for her work in
this area.

Finally, I'd add my personal opinion.  I think Alexa, as a search service
(v. as an archive), is trying some very interesting and potentially
important innovations in information retrieval.  The traditional sort of
fully automatic search engine, which Alexa founder Brewster Khale knows
very well (he was behind WAIS), does not scale well (or AltaVista would be
where Yahoo! is).  Their concepts of adding user input and categorization
are highly promising.  I'd hate to see that part of their work hurt by
challenges to the legality of their archiving.

Nick Arnett