[Air-l] SW to store webpages

[Dan L Burk]

I make it a policy to agree with Kirsten as often as possible, and this
instance is no exception, although I do have a couple of caveats: first,
copyright in web pages really has nothing to do with the DMCA; it's just
the way the U.S. copyright statute has worked since at least 1989, and is
the way it works in most countries adhering to the Berne/TRIPs treaties.  

Second, copyright is not really an "opt out" system, and nothing under fair
use is ever clear until settled by a court.  Brewster Kahle made a decision
early on to live dangerously, and so far the gamble has paid off, but there
are no guarantees that any given researcher will be so lucky.  While I tend
to agree that (in the U.S.) a holding that research archiving is fair would
be the right outcome, I can certainly make the argument the other way.  So
YMMV, caveat emptor, and all that stuff.

And none of the legal analysis quite goes to the ethical question except to
the extent that one believes that either law reflects morality, or the
other way 'round.

DLB

On 8 Jun 2005, Kirsten A. Foot wrote:
> On Mon, 6 Jun 2005 Gail Tailor wrote:
> 
> >I have been following this discussion and have not yet seen anyone raise
a
> question relating to the legality of using this approach to capture web
pages
> in
> support of academic research, in particular those web pages that are
clearly
> identified as being copyrighted. Are you contacting the owner of the site
to
> ask
> permission to create a copy of their documents for current and future
use? If
> not, how are you justifying using this approach to duplicating the data?
Fair
> use laws?
> 
> Gail--
> Here's my $.02 in response to your questions about fair use and copyright
> regarding Web pages... My understanding of the U.S. Digital Millenium
> Copyright
> Act is that all Web pages are copyrighted upon posting to the Web (which
> means
> that every instance of use of a Web browser can be argued to be illegal,
> since
> browsers "copy" Web pages as they display them). Clearly some
interpretations
> of
> the DMCA are technically untenable. That said, copying Web pages (and
storing
> the copies) for the purpose of academic research is clearly within the
U.S.
> fair
> use doctrine. However, the applicability of the fair use doctrine in
> re-presenting copied Web pages on the Web or in print in the context of
> academic
> research has been interpreted in a range of ways by various U.S.
> universities,
> libraries, and academic publishers over the last five+ years-- resulting
in a
> range of protocols regarding the means (e.g. opt-in or opt-out) and
timing
> (e.g.
> before/during collection or before/during display) of notification of
site
> producers. The Internet Archive (a non-proft organization) is an example
of a
> liberal interpretation of the DMCA: it has taken the stance that
previously
> produced Web resources should be preserved and available in the public
> domain,
> and generally operates on a post-display opt-out mechanism (see
> http://web.archive.org). In each of the Web collections in which our
> WebArchivist.org research group has participated, a different protocol
has
> been
> employed in response to the nature of the colllection, and the policies
of
> participating institutions. I highly commend the precedent that AOIR
member
> Laura Gurak and Yale University Press set in Laura's book
*Cyberliteracy*. A
> 2-page appendix explains the U.S. fair use doctrine and the rationale
> underlying
> Laura's (and the Press's) decision *not* to seek permissions from site
> producers
> for the screenshots included in this book.
> 
> > How are you using the data after it has been captured? Are you
extracting
> data
> > >to support point in time studies? Longitudinal studies?
> 
> My collaborators and I have employed Web-based data (e.g. archived Web
pages)
> and metadata (codes and other kinds of annotations associated with Web
pages)
> in
> several kinds of analyses, both point-in-time and longitudinal. Some of
our
> publications about Web-based research are available at
> http://webarchivist.org/resources.htm. You might be particularly
interested
> in
> our presentation on the "Ethics of Web Archiving" from the 2003 Internet
> Research conferece, which is also available via that page.
> 
> > I am also using this as an opportunity to advance research practices in
a
> > >manner that call attention to the dynamic nature of Internet web sites
and
> > some of the inherrent issues in taking this approach to collecting data
in
> > comparison to some of the more traditional methods that might be used
when
> > working with paper documents.
> 
> I share your interest in these issues, and would be happy to correspond
> further
> with you about this offlist.
> 
> -Kirsten
> 
> ***************************************
> Kirsten A. Foot, PhD
> Assistant Professor, Communication
> Co-Director, WebArchivist.org
> University of Washington
> Box 353740
> Seattle, WA 98195-3740
> 206-543-4837

Dan L. Burk
Visiting Professor
Cornell Law School
Myron Taylor Hall
Ithaca, NY 14853 USA

Oppenheimer, Wolff & Donnelly Professor
University of Minnesota Law School
229 19th Avenue South
Minneapolis, MN 55455 USA
***************************************
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