Friday, May 13, 2005

A Question of Law and Ethics

I previously mentioned the discussion that was taking place in the e-Sword group on Yahoo about the legality of using a third-party tool to import Bibles from the web into e-Sword. Since that time, I have done a lot of thinking (also some praying and talking) about the morality and legality of doing this and I want to put my conclusions current thinking out here publicly for others to read and respond to. Every time I sat down to write this, I thought of more issues or questions. Consider my opinion a work in progress rather than a finished argument on this issue.

The specific question is whether it is right to download a copy of the NIV from a publicly accessible web site, which is there specifically "for reading and researching scripture online," and import the text into e-Sword (for reading and researching scripture online). To add an additional wrinkle, a representative of the International Bible Society, which holds the copyright to the NIV, has said, "No," when asked this question.

At first blush, the easy answer is, "Of course not. The copyright holder has said you can't use it that way." But easy answers aren't always right answers and the issue needs deeper thinking before deciding whether that is the answer or not.

The first question that needs to be resolved is whether the act in question itself is morally wrong. Certainly there is no passage of scripture that talks about computers or the internet specifically or about copying electronic bits from one location to another so I believe the answer here is no. However, one could argue that the prohibition against theft is applicable, but if it is then exactly what is being stolen must be established since no physical goods have been taken from anyone. Another possible scriptural mandate that might apply is the admonition to obey the laws of our government insofar as they don't contradict God's commands. Is there some statute that might make either of these last two issues apply?

It turns out that there is law that addresses these issues, at least in the US. Our copyright law is designed in part specifically to protect intellectual property. (I must stress at this point that I am not a lawyer and nothing I say can be construed as legal advice. I might well be misusing this term or misconstruing the law. If that is the case, I welcome correction from any qualified attorneys. As far as what I say here goes, I am only relating my own thinking and understanding as a layman.) It might well be that both the prohibition against stealing (of intellectual property) and the admonition to abide by the law apply. On the other hand, the other purpose of copyright law is so that ideas and creative works can be disseminated widely in a way that is useful to the legitimate recipient of the work.

Copyright law is an entire branch of study in itself and is so complicated that I would not pretend to understand it in its entirety. On top of that, copyright law has been regularly amended in the last decades as broadcast and digital issues have arisen that weren't dreamed of when the early copyright law was written. I don't believe that the Internet related aspects of copyright law have been addressed adequately yet. After all, if copyright law were interpreted to prevent copying protected content to a local computer then that content could never be displayed on the web since the very act of browsing creates a local copy on each computer that views the page.

In a nutshell, as I understand copyright law, the owner of the copyright has the right to control distribution and modification and subsequent redistribution of copies of the copyrighted work. (I will leave out of this the whole question of the ethics of copyrighting the Bible. Some folks have problems with this idea, but for this discussion, let's just consider that what is copyrighted is the creative work involved in translating the original languages to English in the NIV.) They cede certain rights to purchasers and other legal recipients of copies of the material, while retaining other rights. One of the well-known rights end users (to borrow a computer term) have is called fair use. We can quote the material in other works, reproduce them in certain circumstances, etc. for various legitimate purposes. We can't photocopy and distribute or resell the copies however.

One way that I am using a particular translation of scripture is by typing it into my computer. Since I can't find an electronic version of this particular translation, this appears to be the only way that I can get it into e-Sword. I own a legitimate copy (actually, two) of this translation and believe that I am within my rights to convert it from a paper copy into an electronic version as long as I don't redistribute the electronic version. Case law appears to support this point of view, notably the RIAA vs. Diamond Multimedia case from 1999. (You can see the text of this law at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=9th&navby=case&no=9856727.) This law established that one can "space shift" copyrighted material under the fair use clause of copyright law. Space shifting means to transfer or convert a work from one format into a different format for personal, non-infringing use, such as by converting a CD into mp3 files for use on a computer or mp3 player. The key seems to be that the use must be personal and non-infringing. So, for example, the resulting work cannot be redistributed unless the original and all copies go with it.

How does this apply to the NIV posted on a web site? Posting on a web site is a means of distribution to end users. By giving us the work in this way, the IBS has granted us all the legitimate rights to use the work that copyright law allows just as if we had purchased a copy. I believe that this includes the right to space shift the work, within the constraints outlined above.

Some folks at this point will question whether we are bound by the letter of the law or the spirit of the law. Oughtn't we respect the wishes of the copyright holder? My answer is no. The copyright holder specifically gives up the right to dictate our use of the work outside of the established limitations of copyright law. That is both the letter and the spirit of copyright.

One could argue that the IBS could restrain this use of the posted work with a click-through license agreement on either of the two sites where the NIV is posted. Aside from the fact that not only is there no click-through agreement, there is not even a readily available statement of legitimate usage of the work. The legal merits of click-through agreements are still under debate in the courts in any event, as far as I know.

There is another position with which I have some sympathy. Some folks feel that the IBS is entitled to profit from its work and that the way to guarantee this right is to only download the text if you own a hard copy of the work. Or, conversely, you should buy a copy if you are going to download it. While I don't think this is required by the law, it does appear to me an honorable position.

This is a complex issue and I encourage anyone reading this to think about it and research it for him- or herself, and not just to listen to my point of view. If anyone has any doubts about the legitimacy of this action, he should not do it.

In my next post, I'll discuss the tool that allows for this import into e-Sword.

5 Comments:

Anonymous Erik G. said...

Interesting train of thought.

I read through the "Terms of Use" for the on-line NV at the IBS web-site. They seem to be fairly clear (and strict) about prohibiting reproducing the entire contents into another form. I can understand them wanting to protect a considerable investment made in producing a new translation.

However, such strict prohibition smacks more of business than ministry. I won't stray onto that topic other than to say people like William Tyndale gave their lives to translate the Word into a language the common man can understand and IBS won't even grant your request to read the NIV in a form other than what they provide.

Legally and ethically I would honor their terms of use. Personally, I think they loosen up on their terms of use.

- Erik

11:23 AM  
Blogger Mark Payton said...

As you indicate, Erik, there are a lot of issues involved in this discussion and some of them are better left alone.

One problem with the IBS terms of use is that it is not at the site where the NIV is downloaded, nor is it even readily visible, at least at the time I wrote this. It is hard to say that it is binding when it is not even presented, let alone required reading, before using the materials.

That said, copyright is designed to protect the author (or copyright holder in this case) from loss owing to the redistribution of his work and I read the IBS copyright in this light.

Here is a pertinent passage from it: "The NIV text may be quoted in any form (written, visual, electronic or audio), up to and inclusive of five hundred (500) verses without express written permission of the publisher, providing the verses do not amount to a complete book of the Bible nor do the verses quoted account for twenty-five percent (25%) or more of the total text of the work in which they are quoted."

The context is in a published work so it doesn't apply to a personal reuse of the content. It really is no different than what I am doing with the Modern Language Bible: retyping the entire thing so that I have a copy in eSword. I can't distribute the end product, but it is a legitimate use of my copy for my own puposes.

8:24 AM  
Anonymous Anonymous said...

Not that long ago, the makers of MP3 players were getting sued over this same format shifting issue (and before that, it was the taping of radio!). The record companies lost. Interestingly, it seems Australia is going though the same process we already went though in the US:



http://yro.slashdot.org/article.pl?sid=06/05/13/1739203&from=rss

Australians Allowed to Format Shift Media
Posted by Zonk on Sunday May 14, @03:28AM
from the yay-for-rights dept.

"Australian Federal law will now allow format shifting of media (ie:Ripping CDs to MP3s). Something long allowed under US copyright legislation, but only now coming to the Land Down Under." From the article: "Once the new laws are passed, 'format shifting' of music, newspapers and books from personal collections onto MP3 players will become legal. The new laws will also make it legal for people to tape television and radio programs for playback later, a practice currently prohibited although millions of people regularly do it. Under the current regime, millions of households a day are breaking the law when they tape a show and watch it at another time."

7:28 AM  
Anonymous Anonymous said...

Another thing that should be noted is that the BibleGateway site itself used to specifically state (and this is an EXACT quote copied and saved from when it was on their site):


“These Scriptures may be downloaded and saved locally on a computer for personal, non-commercial use only. These Scriptures may be re-printed for non-commercial use. Clearly, you are encouraged to use the Bible for personal use, and to quote from it. The goal of the copyright is to prevent others from profiting from the work that IBS, Nelson, or other translators have done. As we live in a society based on capitalism and trade, the copyright law is what allows these companies to continue to do the work that they do.”


I trust that no one here is selling the scriptures. I can no longer find this quote on the BibleGateway site, so maybe it does not represent what they currently believe? I don’t know.

That said, the Bible teaches that one should not violate his own conscience. Interestingly enough, it also says to keep it between yourself and God (Romans 14:22-23).

7:34 AM  
Anonymous Anonymous said...

The question I come away with is why is the IBS so insistant on not allowing this use of the NIV when they have already allowed it to be published on at least two free websites?

8:58 PM  

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