Alexa and copyright

[Greg MacGowan]

At 08:45 AM 3/26/98 -0800, Nick Arnett wrote:
>  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).  

If I may clarify your statement a bit, market effect is only one of the
four factors to be considered under the "Fair Use" section (sec. 107) of
the copyright act. I hope Alexa is not attempting to rely on the Fair Use
section, which is usually asserted by educators and libraries, and not
for-profit enterprises. Even if they were to claim fair use due to lack of
market effect, I don't think I would agree with your logic; the fact that
Alexa is making a profit from these works suggests that they do have market
value, the fact they are usually given away notwithstanding. For example,
if I take a photograph of a public sculpture, and then sell that
photograph, I have infringed the copyright on that work.

To be fair, it could be argued that Alexa is making their profit from the
service they provide in guiding users to the works, just as a print index
would. However, they are bundling their search engine with these works,
which makes the situation only slightly fuzzier. Alexa is still a
for-profit company copying copyrightable work without permission, and I
think *that* is the real issue here. (Again, I am not a lawyer, so this is
just my understanding of the law.)  

>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. 

But notice is not required for copyright protection. The onus is on the
copier, not the author.

>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.  

I agree.

>  I'd hate to see that part of their work hurt by
>challenges to the legality of their archiving.

I disagree. I realize I'm looking at the copyright issues in isolation (but
then again, that's what the court would do, too), but innovation is not an
excuse for circumventing the law. Alexa could still pay a royalty to those
authors who own the works.

Disclaimer: I am not a lawyer. I do not play a lawyer on TV. The opinions
above are my own and not necessarily those of my employer.

--------------------------------------------------------------
Greg S. MacGowan
Information Technologies Coordinator (and Webmaster)
Brandeis University Libraries
Brandeis University
Waltham, MA  02254-9110

phone: (781) 736-4690 (W)
fax:    (781) 736-4719 
email: macgowan at Brandeis.edu


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