The Technological Transformation of Copyright Law

Iowa Law Review

Volumn 81, Issue 5, 1996, Pages 1395-1465

  Cate, Fred H ^a,b,c  

^a STANFORD LAW SCHOOL   (United States)

^b STANFORD UNIVERSITY   (United States)

^c INDIANA UNIVERSITY   (United States)

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EID: 0030328461     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (326)

1. U.S. Const. art. I, § 8, cl. 8.
2. Id. amend. I.
3. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985).
4. 17 U.S.C. § 102(b) (1994).
5. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344-45, 349 (1991) (quoting Harper & Row, 471 U.S. at 556).
6. See Final Report of the Nat'l Commission on the New Technological Uses of Copyrighted Works 20 [hereinafter CONTU Final Report] (explaining the doctrine of merger as it applies to computer programs).
7. National Telecommunications and Information Administration Fact Sheet, May 30, 1995, at 2 [hereinafter NTIA Fact Sheet].
8. Ronald H. Brown, Remarks at the Museum of Television and Radio, New York 3 (Jan. 6, 1994); Al Gore, Remarks at the National Press Club, Washington, D.C. 4 (Dec. 21, 1993).
9. Ted Bunker, Is it 1984?, LAN, Aug. 1994, at 40.
10. See infra notes 14-106 and accompanying text.
11. See infra notes 107-231 and accompanying text.
12. See infra notes 232-40 and accompanying text.
13. See infra notes 291-512 and accompanying text.
14. Pub. L. No. 94-553, 90 Stat. 2541 (1976) (codified as amended at 17 U.S.C §§ 101-803 (1994)).
15. Act of March 4, 1909, ch. 320, 35 Stat. 1075 (codified as amended at 17 U.S.C. §§ 1-215 (1970) repealed by 1976 Act, supra note 14).
16. 17 U.S.C. § 2 (1970) amended by 17 U.S.C. § 301 (1976). The 1909 Act provided exceptions from the publication requirement for certain works "not reproduced for sale" and common-law provided copyright-like protection for many unpublished works. 17 U.S.C. § 12 (1970) amended by 17 U.S.C. § 408 (1976).
17. These formalities included registration with the Copyright Office and publication with appropriate copyright notice. 17 U.S.C. § 10 (1970) amended by 17 U.S.C. § 401 (1976).
18. 17 U.S.C. § 24 (1970) amended by 17 U.S.C. §§ 203, 301-305 (1976).
19. 17 U.S.C. § 102(a) (1994). Works subject to copyright include, but are not limited to, literature, music, drama, pantomime, choreography, photography, graphic art, sculpture, film, computer software, sound recordings, or architecture. Id.
20. A work is "fixed" when it is embodied, by or with the permission of its creator, in "any tangible medium of expression," no matter when invented, from which the work can be "perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device . . . for a period of more than transitory duration." 17 U.S.C. §§ 102(a), 101 (1994). Under the 1976 Act, "copies" and "phonorecords" describe the entire universe of physical objects in which copyrighted works may be fixed. A "phonorecord" is not limited to a vinyl LP or other single technology. See id. § 101 (failing to make such a limitation). In this Article, the term "copies" includes both copies and phonorecords.
21. A work is "original" if it "was independently created by the author (as opposed to copied from other works), and . . . possesses at least some minimal degree of creativity." Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).
22. 17 U.S.C. § 301 (a) (1994). Section 301 (a) preempts "all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright . . . in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright . . . ." Id.
23. Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853 (1988) (codified at 17 U.S.C. §§ 101, 104, 116, 205, 301, 401-408, 411, 601, 604, 801, 804 (1988)).
24. The 1976 Copyright Act offers several incentives to prompt registration, including making registration a prerequisite for filing a copyright infringement action or for obtaining statutory damages. 17 U.S.C. §§ 411 (a), 412 (1994). Similarly, despite elimination of the notice requirement, affixing notice may affect the copyright owner's monetary recovery for infringement. As a general rule, if notice appears on the published copy to which the infringer had access, a court will give no weight to a defense that innocent infringement mitigates actual or statutory damages. 17 U.S.C. §§ 401 (d), 402(d) (1994).
25. The right belonged initially to the creator unless the work was "made for hire." The statute defines a "work made for hire" as follows: (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. Id. § 101.
26. 17 U.S.C. § 106 (1994).
27. 17 U.S.C. § 602(a) (1994).
28. See, e.g., BMG Music v. Perez, 962 F.2d 318 (9th Cir.), cert. denied, 505 U.S. 1206 (1992).
29. 17 U.S.C. §§ 201(d), 101 (1994).
30. Id. § 201 (d) (2).
31. See, e.g., Gross v. Seligman, 212 F. 930 (2d Cir. 1914).
32. Whitol v. Crow, 309 F.2d 777, 782-83 (8th Cir. 1962); M. Witmark & Sons v. Calloway, 22 F.2d 412, 414 (E.D. Tenn. 1927).
33. Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963).
34. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 442 (1984); Gershwin Publ'g Corp. v. Columbia Artists Management, 443 F.2d 1159, 1161-62 (2d Cir. 1971).
35. See Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191, 198 (1931) ("Intention to infringe is not essential under the act."); Playboy Enters. v. Frena, 839 F. Supp. 1552, 1559 (M.D. Fla. 1993) ("Intent or knowledge is not an element of infringement, and thus even an innocent infringer is liable for infringement."). See generally Paul Goldstein, Copyright § 9.4 (1989).
36. 17 U.S.C. § 502 (1994).
37. 17 U.S.C. § 503 (1994).
38. 17 U.S.C. § 504(b) (1994).
39. 17 U.S.C. § 504(c) (1994). Statutory damages range from $200 for innocent infringement to $100,000 for willful infringement.
40. 17 U.S.C. § 505 (1994).
41. Id.
42. 17 U.S.C. § 506(a) (1994).
43. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 362 (1991).
44. Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99, 103 (2d Cir. 1951) ("Hence it is possible to bave a plurality of valid copyrights directed to closely identical or even identical works. Moreover, none of them, if independently arrived at without copying, will constitute an infringement of the copyright of the others.'") (quoting Leon H. Admur, Copyright Law and Practice 70 (1936)); Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir.), cert. denied, 198 U.S. 669 (1936).
45. 17 U.S.C. § 302 (1994).
46. 17 U.S.C. § 105 (1994).
47. To perform or display a work "publicly" means: (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. Id. § 101.
48. 17 U.S.C. § 109(a) (1994).
49. Id. Columbia Pictures Indus. v. Aveco, 800 F.2d 59, 64 (3d. Cir. 1986) ("When a copyright owner parts with title to a particular copy of his copyrighted work, he thereby divests himself of his exclusive right to vend that particular copy.").
50. 17 U.S.C. § 109(b) (1994).
51. Pub. L. No. 101-650, Tit. VIII § 804, 104 Stat. 5136 (Dec. 1, 1990) (codified at 17 U.S.C. § 109(b) (1994)). See ganerally Kenneth R. Corsello, The Computer Software Rental Amendments Act of 1990: Another Bend in the First Sale Doctrine, 41 Cath. U. L. Rev. 177 (1991) (discussing the effect the ease of duplication since the digital age has had on the first sale doctrine).
52. See Michael D. McCoy & Needham J. Boddie, II, Cybertheft: Will Copyright Law Prevent Digital Tyranny on the Superhighway?, 30 Wake Forest L. Rev. 169, 174-75 (1995) (discussing indistinguishable differences between a copy and an original in digital reproductions).
53. 17 U.S.C. § 109(b)(1)(B)(I).
54. 17 U.S.C. § 109(c) (1994).
55. Id.
56. 17 U.S.C. § 110(5) (1994).
57. Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191, 196 (1931).
58. 17 U.S.C. § 117 (1994).
59. Congress created a commission to make recommendations concerning copyright protection for computer programs. The commission recommended to include the revision to § 117 in 1980, "[b]ecause the placement of a work into a computer to the preparation of a copy, the law should provide that persons in rightful possession of copies of programs be able to use them freely without fear of exposure to copyright liability." CONTU Final Report, supra note 6, at 13.
60. H.R. Rep. No. 1476, 94th Cong., 2d Sess. 89 (1976) ("[I]t would be impractical and unduly burdensome to require every cable system to negotiate with every copyright owner whose work was retransmitted by a cable system.") [hereinafter House Report].
61. 17 U.S.C. § 111 (1994).
62. 17 U.S.C. § 115 (1994).
63. 17 U.S.C. § 116 (1994).
64. 17 U.S.C. § 118 (1994).
65. See Fred H. Cate, Cable Television and the Compulsory Copyright License, 42 Fed. Comm. L.J. 191, 220-32 (1990) (discussing the attacks on the compulsory cable copyright license system).
66. 17 U.S.C. § 108 (1994).
67. Id. § 110.
68. 17 U.S.C. § 107 (1994).
69. In determining whether the specific use made of a work in any particular case is fair, the factors to be considered shall include -(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Id.
70. Id.
71. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 566 (1985) ("This last factor is undoubtedly the single most important element of fair use."); Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984); see also Campbell v. Acuff-Rose Music, 510 U.S. 569, 590 (1994) (considering effect of use upon potential market to determine fair use).
72. Sony, 464 U.S. at 451.
73. See Harper & Row, 471 U.S. at 568: [T]o negate fair use one need only show that if the challenged use "should become widespread, it would adversely affect the potential market for the copyrighted work." This inquiry must take account not only of harm to the original but also of harm to the market for derivative works. "If the defendant's work adversely affects the value of any of the rights in the copyrighted work . . . the use is not fair." (quoting Sony, 464 U.S. at 451; 3 Melville B. Nimmer, Nimmer on Copyright, § 13.05[B], at 13-205 to 13-206 (1995)) (citations omitted).
74. Campbell, 510 U.S. at 592.
75. See, e.g., id. The Campbell Court stated: The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop. Yet the unlikelihood that creators of imaginative works will license critical reviews of lampoons of their own productions removes such uses from the very notion of a potential licensing market. Id.
76. S. Rep. No. 473, 94th Cong., 1st Sess., 64 (1975) [hereinafter Senate Report] ("If the work is 'out of print' and unavailable for purchase through normal channels, the user may have more justification for reproducing it.").
77. 17 U.S.C. § 102(b) (1994).
78. 499 U.S. 340 (1991).
79. Id. at 344-45, 349 (quoting Harper & Row, 471 U.S. at 556).
80. 17 U.S.C. § 103(b) (1994).
81. Feist, 499 U.S. at 350-51.
82. Id. at 346-47.
83. 17 U.S.C. § 102(b).
84. Feist, 499 U.S. at 347.
85. Id. at 346-47.
86. Id. at 349 (quoting Harper & Row, 471 U.S. at 589 (Brennan, J., dissenting)) (citations omitted).
87. Baker v. Selden, 101 U.S. 99, 104 (1879).
88. See Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir. 1971) ("When the 'idea' and its 'expression' are thus inseparable, copying the 'expression' will not be barred, since protecting the 'expression' in such circumstances would confer a monopoly of the 'idea'"); Merrit Forbes & Co. v. Newman Inv. Serv., 604 F. Supp. 943, 951 (S.D.N.Y. 1985) ("where an underlying idea may only be conveyed in a more or less stereotyped manner, duplication of that form of expression does not constitute infringement, even if there is word for word copying"). See generally Goldstein, supra note 35, § 2.3.2 (summarizing the doctrine of merger).
89. See Teleprompter Corp. v. CBS, 415 U.S. 394 (1974) (finding no violation of copyright law by the public for viewing television broadcasts); Fortnightly Corp. v. United Artists, 392 U.S. 390, 398-99 (1968) (viewing broadcast television programs by public not a "performance" and therefore not protected by copyright law).
90. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 155 (1975) ("No license is required by the Copyright Act, for example, to sing a copyrighted lyric in the shower.").
91. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984).
92. Marshall Leaffer, Understanding Copyright Law § 8.27[A], at 275-76 (1989).
93. These "moral rights" differ from country to country, but generally include: the right of integrity (protecting the work from mutilation or distortion); the right of withdrawal (the right to withdraw, modify, or disavow a work after publication); the right of paternity (the right to be identified as the work's creator); and the right of disclosure (the right to decide when and in what form the work will be made public). Id.; see also Goldstein, supra note 35, § 15.23 (summarizing these moral rights).
94. In 1990 Congress amended the 1976 Act to create certain moral rights of attribution and integrity for creators of visual art. Pub. L. No. 101-650, Tit. VIII § 804, 104 Stat. 5136 (Dec. 1, 1990) (codified in 17 U.S.C. § 106A (1994)). The narrowness of the new rights indicates the disfavor accorded moral rights in U.S. law. For example, the rights apply only to works of fine art that exist in a single copy or in signed, numbered editions of fewer than 200 copies. Congress exempted from the new rights virtually all significant commercial uses. And the rights, unlike the other exclusive rights, expire with the death of the creator. 17 U.S.C. § 106A. See Goldstein, supra note 35, § 5.12 (Supp. 1994) (explaining the U.S.'s limited adoption of moral rights).
95. See generally Paul Goldstein, Copyright's Highway 163-64 (1994); John Cole, Public Lending Right, 42 Library of Congress Info. Bull. 427 (Dec. 12, 1983).
96. See generally Paul Goldstein, Copyright's Highway 163-64 (1994); John Cole, Public Lending Right, 42 Library of Congress Info. Bull. 427 (Dec. 12, 1983).
97. See Jessica Litman, The Exclusive Right to Read, 13 Cardozo Arts & Ent. L.J. 29, 38 (1994) (discussing the statute's lack of a provision concerning one's right to "read, see, hear, or download copyrighted works").
98. Fortnightly Corp. v. United Artists, 392 U.S. 390, 393-45 (1968). The Fortnightly Court stated: The Copyright Act does not give a copyright holder control over all uses of his copyrighted work. Instead, § 1 of the Act enumerates several 'rights' that are made 'exclusive' to the holder of the copyright. If a person, without authorization from the copyright holder, puts a copyrighted work to a use within the scope of one of these 'exclusive rights,' he infringes the copyright. If he puts the work to a use not enumerated in § 1, he does not infringe. Id.
99. Information Infrastructure Task Force, Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights 73 n.227 (Sept. 1995) [hereinafter IITF Report]. The IITF Report states: [U]sers are not granted any affirmative "rights" under the Copyright Act; rather, copyright owners' rights are limited by exempting certain uses from liability. It has been argued, however, that the Copyright Act would be unconstitutional if such limitations did not exist, as they reduce First Amendment and other concerns. Id.
100. Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932); see also Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429, 450 (1984) ("The purpose of copyright is to create incentives for creative effort. . . . [T]he limited grant is a means by which an important public purpose may be achieved"); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) ("[T]he ultimate aim is, by [granting exclusive rights] to stimulate artistic creativity for the general public good. . . . [P]rivate motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts."); Mazer v. Stein, 347 U.S. 201, 219 (1954) ("The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in 'Science and useful Arts.'"); United States v. Paramount Pictures, 334 U.S. 131, 158 (1948) ("The copyright law, like the patent statute, makes reward to the owner a secondary consideration.").
101. As the House of Representatives noted: The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural right that the author has in his writings, . . . but upon the ground that the welfare of the public will be served and progress of science and useful arts will be promoted by securing to authors for limited periods the exclusive rights to their writings. H.R. Rep. No. 2222, 60th Cong., 2d Sess. 7 (1909).
102. U.S. Const. amend. I ("Congress shall make no law . . . abridging freedom of speech, or of the press . . . .").
103. New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964).
104. FCC v. League of Women Voters, 468 U.S. 364, 381-82 (1984) ("The freedom of speech and of the press guaranteed by the Constitution embraces at least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment." (quoting Thornhill v. Alabama, 310 U.S. 88, 101-02 (1940) (footnote omitted))).
105. Thomas Emerson, The System of Freedom of Expression 6-7 (1970). See generally Fred H. Cate, The First Amendment and the National Information Infrastructure, 30 Wake Forest L. Rev. 1, 9-18 (1995) (stressing the importance of government not interfering with communication).
106. Thomas Emerson, The System of Freedom of Expression 6-7 (1970). See generally Fred H. Cate, The First Amendment and the National Information Infrastructure, 30 Wake Forest L. Rev. 1, 9-18 (1995) (stressing the importance of government not interfering with communication).
107. Any interpretation of copyright law that allowed copyright holders to monopolize or constrain public discussion about issues concerning public officials and the conduct of the government would be antithetical to the very structure of the government created by the Constitution. Former Judge Robert Bork has written: The first amendment indicates that there is something special about speech. We would know that much even without a first amendment, for the entire structure of the Constitution creates a representative democracy, a form of government that would be meaningless without freedom to discuss government and its policies. Freedom for political speech could and should be inferred even if there were no first amendment. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 23 (1971); see also Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 Sup. Ct. Rev. 245, 253-56 ("[The First Amendment] protects the freedom of those activities of thought and communication by which we govern"). See generally Fred H. Cate, Defining California Civil Code Section 47(3): The Resurgence of Self-Governance, 39 Stan. L. Rev. 1201, 1218-22 (1987) (explaining that in a democratic society, speech about self-governance must be protected).
108. Any interpretation of copyright law that allowed copyright holders to monopolize or constrain public discussion about issues concerning public officials and the conduct of the government would be antithetical to the very structure of the government created by the Constitution. Former Judge Robert Bork has written: The first amendment indicates that there is something special about speech. We would know that much even without a first amendment, for the entire structure of the Constitution creates a representative democracy, a form of government that would be meaningless without freedom to discuss government and its policies. Freedom for political speech could and should be inferred even if there were no first amendment. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 23 (1971); see also Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 Sup. Ct. Rev. 245, 253-56 ("[The First Amendment] protects the freedom of those activities of thought and communication by which we govern"). See generally Fred H. Cate, Defining California Civil Code Section 47(3): The Resurgence of Self-Governance, 39 Stan. L. Rev. 1201, 1218-22 (1987) (explaining that in a democratic society, speech about self-governance must be protected).
109. Any interpretation of copyright law that allowed copyright holders to monopolize or constrain public discussion about issues concerning public officials and the conduct of the government would be antithetical to the very structure of the government created by the Constitution. Former Judge Robert Bork has written: The first amendment indicates that there is something special about speech. We would know that much even without a first amendment, for the entire structure of the Constitution creates a representative democracy, a form of government that would be meaningless without freedom to discuss government and its policies. Freedom for political speech could and should be inferred even if there were no first amendment. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 23 (1971); see also Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 Sup. Ct. Rev. 245, 253-56 ("[The First Amendment] protects the freedom of those activities of thought and communication by which we govern"). See generally Fred H. Cate, Defining California Civil Code Section 47(3): The Resurgence of Self-Governance, 39 Stan. L. Rev. 1201, 1218-22 (1987) (explaining that in a democratic society, speech about self-governance must be protected).
110. Harper & Row Publishers, Inc. & Nation Enters., 471 U.S. 539, 558 (1985).
111. RAM refers to random access memory and is the computer's active, "thinking" memory. RAM must be constantly "refreshed" by electric current to retain its digital content. Unlike other forms of digital media, RAM is erased when a computer is turned off.
112. Remarks of Secretary Ronald H. Brown, supra note 8; Remarks by Vice President Al Gore, supra note 8.
113. Michael J. Mandel et al., The Digital Juggernaut, Bus. Wk., June 6, 1994, at 22.
114. Howard Gleckman, The Technology Payoff, Bug. Wk., June 14, 1993, at 57. The Office of Technology Assessment, a research arm of Congress, wrote a decade ago: "Information and information-based products and services are not only valuable economic commodities in and of themselves; their use also increasingly affects the performance of other economic sectors. The application of information technology is responsible for vast increases in productivity in manufacturing industries, offices, financial services, and scientific research." U.S. Congress, Office of Technology Assessment, Intellectual Property Rights in an Age of Electronics and Information 225 (1986).
115. NTIA Fact Sheet, supra note 7, at 2.
116. Information Infrastructure Task Force, National Information Infrastructure Agenda for Action 5 (1993) [hereinafter Agenda for Action].
117. Latest Estimates of Internet Growth, Online Newsletter, Nov. 1994; Win Treese, The Internet Index, Jan. 2, 1996 (available at: http://www.openmarket.com/intindex/96-01.htm); Network Wizards, Distributions by Top-Level Domain Name (by name), Internet Domain Survey (Jan. 1996) (available at: http://www.nw.com/zone/www/dist-byname.html).
118. Latest Estimates of Internet Growth, Online Newsletter, Nov. 1994; Win Treese, The Internet Index, Jan. 2, 1996 (available at: http://www.openmarket.com/intindex/96-01.htm); Network Wizards, Distributions by Top-Level Domain Name (by name), Internet Domain Survey (Jan. 1996) (available at: http://www.nw.com/zone/www/dist-byname.html).
119. Latest Estimates of Internet Growth, Online Newsletter, Nov. 1994; Win Treese, The Internet Index, Jan. 2, 1996 (available at: http://www.openmarket.com/intindex/96-01.htm); Network Wizards, Distributions by Top-Level Domain Name (by name), Internet Domain Survey (Jan. 1996) (available at: http://www.nw.com/zone/www/dist-byname.html).
120. See On-line Exchanges Can Reach Thousands, Plain Dealer, June 11, 1995, at 17A.
121. Anthony M. Rutkowski, Internet Trends (Feb. 1996) (available at http://www.genmagic.com/internet/trends/sld003.htm).
122. Id.; Treese, supra note 113.
123. See Fast Fact, Toronto Star, Nov. 3, 1994, at Jl.
124. The other two exclusive rights - the right to distribute and the right to adapt - are also implicated by digital information. For example, one court has found that operation of a computer bulletin board from which subscribers could obtain unauthorized copies of copyrighted photographs violated the copyright holder's exclusive right to distribute those photographs. Playboy v. Frena, 839 F. Supp. 1552, 1556 (M.D. Fla. 1993). On the other hand, because the dissemination of digital information inherently involves its reproduction, it is unlikely that the right to distribute could be infringed without the right to reproduce being infringed as well. See IITF Report, supra note 98, at 66 n.205. The right to adapt, i.e., to prepare derivative works, is likely to be infringed when digital information is accessed. The 1976 Act defines a "derivative work" as "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted." 17 U.S.C. § 101. Computers may create derivative works, in RAM, as digital files on a hard drive or floppy disk, or as screen displays, when executing a program. It is for this reason that § 117 protects the user's right to make a copy "or adaptation" of a program if it is an essential requirement for using the program or is necessary for archival purposes. Id. § 117. The exemption does not, however, apply to derivative works created in other digital contexts. Surprisingly, the law does not require that a work be "fixed" in order to be a derivative work. House Report, supra note 60, at 62. Therefore, even if courts find that a work created by a computer is not fixed, it may still constitute a derivative work and therefore violate one of the copyright holder's exclusive rights. The distribution and adaptation rights are relevant to digital copyrighted works, but, with this exception, no more so than they are to uses of copyrighted works in a non-digital environment. As a result, this Article does not address those rights further.
125. See McCoy & Boddie, supra note 52, at 185 ("Virtually every transmittal of a work across the superhighway will involve the exclusive right to copy. Printing to paper, copying to disk, and loading into memory all amount to reproduction.").
126. 17 U.S.C. § 106.
127. Id. § 101. A copy need not be exact to violate the exclusive right to reproduce. Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930) (stating that reproduction "cannot be limited literally to the text, else a plagiarist would escape by immaterial variations"), cert. denied, 282 U.S. 902 (1931).
128. 17 U.S.C. § 101.
129. House Report, supra note 60, at 52.
130. See 17 U.S.C. § 101 ("'Literary works' are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.").
131. Apple Computer v. Franklin Computer Corp., 714 F.2d 1240, 1243 (3d Cir. 1983), cert. denied, 464 U.S. 1033 (1984) ("A computer program can be stored or fixed on a variety of memory devices . . . [including] a diskette or 'floppy disk' . . . ."); Stern Elecs. v. Kaufman, 669 F.2d 852, 856 (2d Cir. 1982); Triad Sys. Corp. v. Southeastern Express Co., 1994 WL 446049, at *6, 1994 U.S. Dist. LEXIS 5390, at *20 (N.D. Cal. 1994) ("[T]he Court is persuaded that these copies to tapes and hard disks are sufficiently fixed to be deemed copies under the Copyright Act as a matter of law"); see also Goldstein, supra note 35, § 2.15.2 n.56 (and sources cited therein) (reviewing judicial decisions upholding the copyrightabilty of computer programs); McCoy & Boddie, supra note 52, at 177 (discussing that copies must be recorded on a tangible medium to be subject to copyright law).
132. According to the House Report on the 1976 Act: "[T]he definition of 'fixation' would exclude from the concept purely evanescent or transient reproductions such as those projected briefly on a screen, shown electronically on a television or other cathode ray tube, or captured momentarily in the 'memory' of a computer." House Report, supra note 60, at 53.
133. In Apple Computer, decided in 1983, the Third Circuit Court of Appeals found that ROM (read-only memory, which contains digital information on a chip) is fixed because it retains information even after the computer is turned off. The court then noted: "In contrast to the permanent memory devices a RAM (random access memory) is a chip on which volatile internal memory is stored which is erased when the computer's power is turned off." Apple Computer, 714 F.2d at 1243 n.3.
134. 991 F.2d 511 (9th Cir. 1993), cert. denied, 510 U.S. 1033 (1994).
135. MAI Sys. Corp. v. Peak Computer, 1992 WL 159803, at *13, 1992 U.S. Dist. LEXIS 21829, at *36-37 (C.D. Cal.) appeal dismissed in part, aff'd in part by MAI Sys. Corp., 991 F.2d 511 (1992). The district court stated: [T]he loading of copyrighted computer software from a storage medium (hard disk, floppy disk, or read only memory) into the memory of a central processing unit ('CPU') causes a copy to be made. In the absence of ownership of the copyright or express permission by license, such acts constitute copyright infringement. Id.
136. MAI Sys. Corp., 991 F.2d at 519.
137. Id. at 518 (quoting 17 U.S.C. § 106).
138. Vault Corp. v. Quaid Software, Ltd., 847 F.2d 255, 260 (5th Cir. 1988) (stating that "the act of loading a program from a medium of storage into a computer's memory creates a copy of the program . . . .").
139. The MAI court cited 2 Nimmer on Copyright § 8.08 at 8-105 (1983) ("Inputting a computer program entails the preparation of a copy."); see also 2 Nimmer on Copyright, supra note 73, § 8.08[A] [1], at 8-111 ("the input of a work into a computer results in the making of a copy . . . .).
140. CONTU Final Report, supra note 6, at 13 (stating that "the placement of a work into a computer is the preparation of a copy").
141. MAI Sys. Corp., 991 F.2d at 519 (quoting 17 U.S.C. § 101).
142. Advanced Computer Serv. of Mich. v. MAI Sys. Corp., 845 F. Supp. 356 (E.D. Va. 1994).
143. Id. at 362-63 (quoting 17 U.S.C. § 101).
144. Id. at 363.
145. Triad Sys. Corp. v. Southeastern Express Co., 1994 WL 446049, 1994 U.S. Dist. LEXIS 5390.
146. Id., 1994 WL 446049, at *5, 1994 U.S. Dist. LEXIS 5390, at *15.
147. Id., 1994 WL 446049, at *5, 1994 U.S. Dist. LEXIS 5390, at *16.
148. 17 U.S.C. § 101.
149. Triad Sys., 1994 WL 446049, at *5, 1994 U.S. Dist. LEXIS 5390, at *16.
150. Id.
151. Id., 1994 WL 446049, at *5; 1994 U.S. Dist. LEXIS 5390, at *17.
152. Pub. L. No. 101-650, Tit. VIII § 804, 104 Stat. 5136 (Dec. 1, 1990) (codified in 17 U.S.C. § 109(b) (1994)).
153. See Litman, supra note 96, at 41-43 (giving authority suggesting that it may not be so clear that "placement of a work into a computer's memory amounts to a reproduction of that work").
154. IITF Report, supra note 98, at 66 (citations omitted).
155. 17 U.S.C. § 109(a); see also supra notes 48-53 (discussing the first sale doctrine).
156. The one exception is in some recent operating and file management systems, such as recent venions of MS-DOS, if a file is moved from one location on a physical storage device to another location on that same storage device, the program will not actually copy the file to the new location. Instead, it merely alters the internal pointer that tells the program where the file is located. The insignificance of this exception, particularly the fact that it applies only to files that are moved (not copied) on the same hard drive or floppy disk, suggests the extraordinary scope of reproduction in digital technologies.
157. See infra notes 302-08 and accompanying text (discussing federal limits on contracts protecting intellectual property).
158. 17 U.S.C. § 117.
159. Id. § 101.
160. Pub. L. No. 96-517, 10(b), 94 Stat. 3028 (1980) (codified in 17 U.S.C. § 117 (1982)).
161. Campbell v. Acuff-Rose Music, 510 U.S. 569, 590-91 (1994); Harper & Row Publishers, Inc. v. Nation Enter., 471 U.S. 539, 568 (1985). According to the Senate Report, "With certain special exceptions . . . a use that supplants any part of the normal market for a copyrighted work would ordinarily be considered an infringement." Senate Report, supra note 76, at 65; see also supra notes 68-76 (discussing the fair use doctrine).
162. 37 F.3d 881 (2d Cir. 1994).
163. The Journal of Catalysis is published monthly; each issue contains between 20 and 25 articles. American Geophysical Union v. Texaco, 802 F. Supp. 1, 5 (S.D.N.Y. 1992), aff'd, 37 F.3d 881 (2d Cir. 1994).
164. American Geophysical Union, 37 F.3d at 899.
165. Id.
166. Virtually all major U.S. newspapers and many news magazines and non-U.S. publications are available via Westlaw or Lexis/Nexis. Increasingly, major periodicals are available through other databases and network services. For example, the Chicago Tribune, New York Times, and San Jose Mercury News are available through America Online; the Atlanta Constitution, Dallas Morning News, Los Angeles Times, and Newsday are available on Prodigy.
167. Goldstein, supra note 95, at 200.
168. See id. at 219-20 (discussing the "record-beeping nightmare" created by the Copyright Clearance Center's Transactional Reporting Service).
169. Id. at 224.
170. See IITF Report, supra note 98, at 82 ("[I]t may be that technological means of tracking transactions and licensing will lead to reduced application and scope of the fair use doctrine").
171. American Geophysical Union, 37 F.3d at 899 (citation omitted).
172. See NTIA Fact Sheet, supra note 7, at 2.
173. Campbell v. Acuff-Rose Music, 510 U.S. 569, 592 (1994).
174. Harper & Row Publishers, Inc. v. Nation Enter., 471 U.S. 539, 568 (1985) (quoting Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984)).
175. 17 U.S.C. § 107. The Supreme Court's 1994 decision in Campbell is not to the contrary. Although the Court there noted that all four statutory factors "are to be explored, and the results weighed together, in light of the purposes of copyright," the Court considered all of the factors with an eye toward their impact on the market. Campbell, 510 U.S. at 590. In addition, the Court went out of its way to avoid overruling Sony, 464 U.S. 417, and Harper & Row, 471 U.S. 539, the Court's fair use cases that had clearly stated that the impact on the market "is undoubtedly the single most important element of fair use." Harper & Row, 471 U.S. at 566.
176. 17 U.S.C. § 107(3) (1994); see Harper & Row, 471 U.S. at 565 ("[T]he fact that a substantial portion of the infringing work was copied verbatim is evidence of the qualitative value of the copied material, both to the originator and to the plagiarist who seeks profit from marketing someone else's copyrighted expression.").
177. 17 U.S.C. § 107(1) (1994).
178. Campbell, 510 U.S. at 578 (citations omitted); see also Marcus v. Rowley, 695 F.2d 1171, 1175 (9th Cir. 1983) ("[A] finding that the alleged infringers copied the material to use it for the same intrinsic purpose for which the copyright owner intended it is strong indicia of no fair use.").
179. To the extent that the secondary use involves merely an untransformed duplication, the value generated by the secondary use is little or nothing more than the value that inheres in the original. Rather than making some contribution of new intellectual value and thereby fostering the advancement of the arts and sciences, an untransformed copy is likely to be used simply for the same intrinsic purpose as the original, thereby providing limited justification for a finding of fair use. American Geophysical Union v. Texaco, 37 F.3d 881, 891 (2d Cir. 1994).
180. Campbell, 510 U.S. at 591.
181. 17 U.S.C. § 107.
182. Id. § 101. According to the House Report, "'display' would include the projection of an image . . . by electronic or other means, and the showing of an image on a cathode ray tube, or similar viewing apparatus connected with any sort of information storage and retrieval system." House Report, supra note 60, at 64.
183. 17 U.S.C. § 101. According to the House Report, [a] performance may be accomplished "either directly or by means of any device or process," including all kinds of equipment for reproducing or amplifying sounds or visual images, any sort of transmitting apparatus, any type of electronic retrieval system, and any other techniques and systems not yet in use or even invented. House Report, supra note 60, at 63.
184. The exclusive right to display a copyrighted work publicly applies to "literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work." 17 U.S.C. § 106(5) (1994). The exclusive right to perform a copyrighted work publicly applies to "literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works." 17 U.S.C. § 106(4) (1994). "Sound recordings" are works that "result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture of other audio visual work." Id. § 101. They were excluded from the exclusive right to public performance primarily because of the political opposition of broadcasters. In the words of former Register of Copyright, Barbara Ringer: "The opposition from the American broadcasting industry is too strong." Barbara Ringer, United States of America, in S. Stewart, International Copyright and Neighbouring Rights 530 (1983). See generally Goldstein, supra note 35, § 5.7.
185. The exclusive right to display a copyrighted work publicly applies to "literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work." 17 U.S.C. § 106(5) (1994). The exclusive right to perform a copyrighted work publicly applies to "literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works." 17 U.S.C. § 106(4) (1994). "Sound recordings" are works that "result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture of other audio visual work." Id. § 101. They were excluded from the exclusive right to public performance primarily because of the political opposition of broadcasters. In the words of former Register of Copyright, Barbara Ringer: "The opposition from the American broadcasting industry is too strong." Barbara Ringer, United States of America, in S. Stewart, International Copyright and Neighbouring Rights 530 (1983). See generally Goldstein, supra note 35, § 5.7.
186. 17 U.S.C. § 101.
187. House Report, supra note 60, at 64-65 ("[A] performance made available by transmission to the public at large is 'public' even though the recipients are not gathered in a single place, and even if there is no direct proof that any of the potential recipients was operating his receiving apparatus at the time of the transmission"); see also On Command Video Corp. v. Columbia Pictures Indus., 777 F. Supp. 787, 790 (N.D. Cal. 1991) (defining public reception to include hotel guests who have potential to receive transmission to their own room).
188. This might be contrasted with violation of the exclusive right to reproduce, for which the liable parties will certainly include both the end user and any intermediaries who "authorized" the reproduction or provided unauthorized access, which, as noted, in the context of digital technologies inherently requires reproduction. Liability for violations of any of the exclusive rights may be further spread through the doctrines of respondeat superior, vicarious infringement, and contributory infringement. See supra notes 32-35 and accompanying text (explaining these doctrines). In Sega Enter. v. MAPHIA, for example, the court found the defendant electronic bulletin board operator directly liable for violating the plaintiff's reproduction right based on unauthorized copies of the plaintiff's computer game software found on defendant's bulletin board. 857 F. Supp. 679, 689 (N.D. Cal. 1994). The court went on to hold, however, that "[e]ven if defendants do not know exactly when games will be uploaded to or downloaded from the MAPHIA bulletin board, their role in the copying, including provision of facilities, direction, knowledge and encouragement, amounts to contributory infringement." Id. at 686-87.
189. 800 F.2d 59 (3d Cir. 1986).
190. Id. at 63; see also Columbia Pictures Indus. v. Redd Horne, 749 F.2d 154, 160 (3d Cir. 1984) (analogizing a showcase operation to a public performance for purposes of the first sale doctrine).
191. See Red Baron-Franklin Park v. Taito Corp., 883 F.2d 275, 278 (4th Cir. 1989).
192. See On Command Video Corp., 777 F. Supp. at 789.
193. 839 F. Supp. 1552, 1557 (M.D. Fla 1993).
194. Id. at 1556; see also IITF Report, supra note 98, at 72 ("The right to display a work publicly is extremely significant in the context of the NII. . . . [M]any NII uses would appear to fall within the law's current comprehension of 'public display.'").
195. Playboy Enter., 839 F. Supp. at 1557.
196. Thomas v. Pansy Ellen Prods., 672 F. Supp. 237, 240 (W.D. N.C. 1987); Ackee Music v. Williams, 650 F. Supp. 653, 656 (D. Kan. 1986).
197. See McCoy & Boddie, supra note 52, at 189 (stating that "a public display occurs every time a user browses a copyrighted work on the superhighway. Consequently, an owner's right to display may be the broadest of all the exclusive rights in the context of the superhighway, because a majority of uses constitute a public display.").
198. 17 U.S.C. § 109(c).
199. Id.
200. A recent opinion by the U.S. Court of Appeals for the Seventh Circuit has questioned the effectiveness of using shrink-wrap terms to convert a sale into a license, but the court explicitly avoided the application of its decision to copyright law. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1455 (7th Cir. 1996).
201. 17 U.S.C. § 110(5).
202. Id.
203. House Report, supra note 60, at 86.
204. Although the Court in Sony applied fair use to protect the recording of entire television programs for later viewing, that case is readily distinguished from the public performance or display of copyrighted works in a digital environment. Sony involved the use of works that were intended by their owners to be performed to the precise audience that was recording them for later viewing. The Court noted that the television broadcasters had already compensated copyright owners for this use of their works; presumably, it makes little difference whether the intended audience views the programs when broadcast or at a later time: [W]hen one considers the nature of a televised copyrighted audiovisual work, and that timeshifting merely enables a viewer to see such a work which he bad been invited to witness in its entirety free of charge, the fact that the entire work is reproduced, does not have its ordinary effect of militating against a finding of fair use. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 449-50 (1984) (citations omitted).
205. Playboy Enters. v. Frena, 839 F. Supp. 1552, 1558 (M.D. Fla. 1993).
206. Id. at 1559.
207. Goldstein, supra note 95, at 223-24.
208. The Task Force includes representatives from the Departments of Agriculture, Commerce, Education, Energy, Housing and Urban Development, Interior, Justice, State, and Veterans Affairs, the Central Intelligence Agency, Environmental Protection Agency, Federal Communications Commission, Federal Trade Commission, General Services Administration, National Economic Council, National Science Foundation, White House Office of Science and Technology Policy, and the Vice President's office. Fred H. Cate, The National Information Infrastructure: Policymakers and Policymaking, 6 Stan. L. & Pol'y Rev. 43, 46-48 (1995).
209. Agenda for Action, supra note 112, at 5.
210. The National Information Infrastructure; Frequently Asked Questions (available through Internet from the NTIA NII bulletin board, iitf.doc.gov) (describing the NII as consisting of "(1) thousands of interconnected, interoperable telecommunications networks, (2) computer systems, televisions, fax machines, telephones, and other 'information appliances,' (3) software, information services, and information databases (e.g., 'digital libraries'), and (4) trained people who can build, maintain, and operate these systems."). The Task Force is divided into three committees - the Telecommunications Policy Committee, Information Policy Committee, and Applications and Technology Committee - which, in turn, are further divided into working groups and subworking groups. The Telecommunications Policy Committee is divided into four working groups: Universal Service, Reliability and Vulnerability, Legislative Drafting, and International Telecommunications. The Information Policy Committee has three working groups: Intellectual Property Rights, Privacy, and Government Information. The Applications and Technology Committee is divided into three working groups: Government Information Technology Services, Technology Policy, and Health Information and Applications. In addition, an NII Security Issues Forum coordinates so-called "security issues" concerning "confidentiality, integrity, and availability of information and of the systems carrying the information," and a 37-member Advisory Council on the National Information Infrastructure, created by Executive Order No. 12864, advises the Task Force from the perspective of information "stakeholders," including industry, labor, academia, public interest groups, and state and local governments. Id. See generally Cate, supra note 201, at 46-48 (outlining the Clinton Administration's goals for information policymaking).
211. Agenda for Action, supra note 112, at 5.
212. Information Infrastructure Task Force, Intellectual Property and the National Information Infrastructure: A Preliminary Draft of the Report of the Working Group on Intellectual Property Rights (July 1994) [hereinafter IITF Draft Report].
213. IITF Report, supra note 98.
214. S. 1284, NII Copyright Protection Act of 1995, 104th Cong., 1st Sess. (1995).
215. H.R. 2441, NII Copyright Protection Act of 1995, 104th Cong., 1st Sess. (1995).
216. IITF Report, supra note 98, at 64-66 ("The fundamental right to reproduce copyrighted works in copies and phonorecords will be implicated in innumerable NII transactions. Indeed, because of the nature of computer-to-computer communications, it will be implicated in most NII transactions.") (footnote omitted).
217. Id. at 70-72.
218. Id. at 72 ("The right to display a work publicly to extremely significant in the context of the NII").
219. Id. at 17.
220. Id. at 217 n.543.
221. IITF Report, supra note 98, at 221 ("Although we recognize that the U.S. Customs Service cannot, for all practical purposes, enforce a prohibition on importation by transmission, given the global dimensions of the information infrastructure of the future, it is important that copyright owners have the other remedies for infringements of this type available to them.").
222. The Working Group also recommends redefining "publication" to include the concept of distribution by transmission. Id. at 219. The 1976 Act eliminated publication as the starting point for federal copyright protection, but the fact of publication does still carry some significance for copyright holders. For example, only published works are subject to mandatory deposit in the Library of Congress, and the duration of protection for works made for hire may be determined by the date of publication. Id. at 219-20. The Working Group therefore recommends amending the definition of "publication" to read: "'Publication' is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, lending, or by transmission." Id. at 124, app. 1, § 2(b)(1) (amending 17 U.S.C. § 101). This change would have little substantive impact on the rights of copyright holders or of users.
223. Id. at 230.
224. Id.
225. Id., app. 1, § 4 (adding 17 U.S.C. § 1201).
226. IITF Report, supra note 98, at 230, app. 1, § 4 (adding 17 U.S.C. §§ 1203-04).
227. Id. at 231.
228. Id. at 228.
229. S. 1122, Criminal Copyright Improvement Act of 1995, 104th Cong., 1st Sess. (1996).
230. IITF Report, supra, note 98, at 229. This amendment would respond to concerns raised following United States v. LaMacchia, 871 F. Supp. 535 (D. Mass. 1994), in which the court dismissed criminal wire fraud charges against a university student who operated Internet sites for the receipt and distribution of unauthorized copies of copyrighted software, because the student acted without any commercial or financial purpose.
231. IITF Report, supra note 98, at 235.
232. Id. at 221-25.
233. Id. at 222.
234. Id. at 221-22.
235. See, e.g., Pamela Samuelson, Copyright and Digital Libraries, Communications of the ACM, Apr. 1996, at 15, 20 ("No wonder, then, that publishers have hailed the Green Paper for its vision, depth, and insight. After so many years of living in fear that digital networks would put them out of business, print publishers and other well-established copyright industries have found a new Messiah."); Litman, supra note 96, at 31-32 n.19; Pamela Samuelson, The NII Intellectual Property Report, Communications of the ACM, Dec. 1994, at 21 [hereinafter Samuelson, The NII Intellectual Property Report]. Litman writes: [T]he Draft Report's recommendations would enhance the exclusive rights in the copyright bundle so far as to give the copyright owner the exclusive right to control reading, viewing or listening to any work in digitized form. The Draft Report comes down firmly on the side of increased rights for copyright owners and it endorses the goal of enhanced copyright protection without acknowledging any countervailing concerns. . . . It gives voice to only one side of complicated policy debates. . . . The Draft Report . . . takes the side of copyright owner interests in every dispute. Indeed, it reads as if it were Santa Claus' response to the with lists presented by current stakeholders. Litman, supra note 96, at 31-32 & n.19.
236. See, e.g., Pamela Samuelson, Copyright and Digital Libraries, Communications of the ACM, Apr. 1996, at 15, 20 ("No wonder, then, that publishers have hailed the Green Paper for its vision, depth, and insight. After so many years of living in fear that digital networks would put them out of business, print publishers and other well-established copyright industries have found a new Messiah."); Litman, supra note 96, at 31-32 n.19; Pamela Samuelson, The NII Intellectual Property Report, Communications of the ACM, Dec. 1994, at 21 [hereinafter Samuelson, The NII Intellectual Property Report]. Litman writes: [T]he Draft Report's recommendations would enhance the exclusive rights in the copyright bundle so far as to give the copyright owner the exclusive right to control reading, viewing or listening to any work in digitized form. The Draft Report comes down firmly on the side of increased rights for copyright owners and it endorses the goal of enhanced copyright protection without acknowledging any countervailing concerns. . . . It gives voice to only one side of complicated policy debates. . . . The Draft Report . . . takes the side of copyright owner interests in every dispute. Indeed, it reads as if it were Santa Claus' response to the with lists presented by current stakeholders. Litman, supra note 96, at 31-32 & n.19.
237. For example, the Working Group in the draft report recommended amending Section 109(a) to explicitly exclude transmissions of copyrighted works from the first sale doctrine: "This subsection does not apply to the sale or other disposal of the possession of that copy or phonorecord by transmission." IITF Draft Report, supra note 205, at 125. Under that language, the first sale doctrine would not have applied to any copy of a digital work obtained by transmission. The final report abandoned this controversial recommendation, which the Working Group believed merely restated existing law. IITF Report, supra note 98, at 92.
238. For example, the Working Group in the draft report recommended amending Section 109(a) to explicitly exclude transmissions of copyrighted works from the first sale doctrine: "This subsection does not apply to the sale or other disposal of the possession of that copy or phonorecord by transmission." IITF Draft Report, supra note 205, at 125. Under that language, the first sale doctrine would not have applied to any copy of a digital work obtained by transmission. The final report abandoned this controversial recommendation, which the Working Group believed merely restated existing law. IITF Report, supra note 98, at 92.
239. IITF Report, supra note 98, at 225-27.
240. Id. at 227-28.
241. Harper & Row Publishers, Inc., v. Nation Enter., 471 U.S. 539, 558 (1985).
242. Feist Publications Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344-45,
243. Harper & Row, 471 U.S. at 558.
244. Feist, 499 U.S. at 349 (quoting Harper & Row, 471 U.S. at 589 (Brennan, J., dissenting)) (citations omitted).
245. Baker v. Selden, 101 U.S. 99, 104 (1879).
246. Beginning with Whalen v. Roe, the Court has recognized a constitutional interest "in avoiding disclosure of personal matters." 429 U.S. 589, 599 (1977); see also Walls v. City of Petersburg, 895 F.2d 188, 192 (4th Cir. 1990) ("Personal, private information in which an individual has a reasonable expectation of confidentiality is protected by one's constitutional right to privacy."); Tavoulareas v. Washington Post Co., 724 F.2d 1010, 1019 (D.C. Cir. 1984) ("Recent Supreme Court decisions indicate that a litigant's interest in avoiding public disclosure of private information is grounded in the Constitution itself, in addition to federal statutes and the common law."); Barry v. City of New York, 712 F.2d 1554, 1559 (2d Cir. 1983) (holding that Nixon v. Administrator of Gen. Serv., 433 U.S. 425 (1977), cert. denied, 464 U.S. 1017 (1983), reaffirmed the constitutional interest in nondisclosure of personal information); United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir. 1980) (recognizing a constitutional right to privacy and holding that the interest of an employee in her medical records necessarily implicated that right); Duplantier v. United States, 606 F.2d 654 (5th Cir. 1979) (characterizing the issue presented as "whether personal financial disclosure required by the [Ethics in Government] Act impermissibly intrudes into the sphere of family life constitutionally protected by the right of privacy"); Schacter v. Whalen, 581 F.2d 35, 37 (2d Cir. 1978) (holding that a constitutional right to informational privacy exists but is not infringed by the subpoena of medical records as long as privacy protections are afforded); Plante v. Gonzalez, 575 F.2d 1119, 1123 (5th Cir. 1978) (explaining that the constitutional right to privacy includes the "right to confidentiality"). See generally Francis S. Chlapowski, The Constitutional Protection of Informational Privacy, 71 B.U. L. Rev. 133 (1991).
247. Harper & Row Publishers, Inc. v. Nation Enter., 471 U.S. 539, 553 (1985) ("The right of first publication implicates a threshold decision by the author whether and in what form to release his work."); see also Salinger v. Random House, 811 F.2d 90, 97 (2d Cir.), cert. denied, 484 U.S. 890 (1987) (discussing author's right to control first publication as weighing against any possible fair use prior to publication).
248. Harper & Row, 471 U.S. at 553 ("[T]he potential damage to the author from judicially enforced 'sharing' of the first publication right with unauthorized users of his manuscript is substantial . . . .").
249. See Three Affiliated Tribes of Berthold Reservation v. Wold Eng'g, 467 U.S. 138, 157 (1984) ("It is a fundamental rule of judicial restraint, however, that this Court will not reach constitutional questions in advance of the necessity of deciding them."); Gulf Oil Co. v. Bernard, 452 U.S. 89, 99 (1981) ("[P]rior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision.").
250. See Steven Metalitz, The National Information Infrastructure, 13 Cardozo Arts & Ent. L.J. 465, 469-70 (1995) (discussing varying legal doctrines affecting digital information); Philip H. Miller, Life After Feist: The First Amendment, and the Copyright Status of Automated Databases, 60 Fordham L. Rev. 507, 526-27 (1991) (discussing the use of contracts to control unauthorized use of digital information); Jane C. Ginsburg, Copyright Without Walls?: Speculations on Literary Property in the Library of the Future, Representations, Spr. 1993, at 42 (discussing the use of contracts to protect copyrighted expression, and the interaction of copyright and contract law); Maureen A. O'Rourke, Proprietary Rights in Digital Data, 41 Fed. B. News & J. 511 (1994) (analyzing proprietary rights in digital information).
251. See Steven Metalitz, The National Information Infrastructure, 13 Cardozo Arts & Ent. L.J. 465, 469-70 (1995) (discussing varying legal doctrines affecting digital information); Philip H. Miller, Life After Feist: The First Amendment, and the Copyright Status of Automated Databases, 60 Fordham L. Rev. 507, 526-27 (1991) (discussing the use of contracts to control unauthorized use of digital information); Jane C. Ginsburg, Copyright Without Walls?: Speculations on Literary Property in the Library of the Future, Representations, Spr. 1993, at 42 (discussing the use of contracts to protect copyrighted expression, and the interaction of copyright and contract law); Maureen A. O'Rourke, Proprietary Rights in Digital Data, 41 Fed. B. News & J. 511 (1994) (analyzing proprietary rights in digital information).
252. See Steven Metalitz, The National Information Infrastructure, 13 Cardozo Arts & Ent. L.J. 465, 469-70 (1995) (discussing varying legal doctrines affecting digital information); Philip H. Miller, Life After Feist: The First Amendment, and the Copyright Status of Automated Databases, 60 Fordham L. Rev. 507, 526-27 (1991) (discussing the use of contracts to control unauthorized use of digital information); Jane C. Ginsburg, Copyright Without Walls?: Speculations on Literary Property in the Library of the Future, Representations, Spr. 1993, at 42 (discussing the use of contracts to protect copyrighted expression, and the interaction of copyright and contract law); Maureen A. O'Rourke, Proprietary Rights in Digital Data, 41 Fed. B. News & J. 511 (1994) (analyzing proprietary rights in digital information).
253. See Steven Metalitz, The National Information Infrastructure, 13 Cardozo Arts & Ent. L.J. 465, 469-70 (1995) (discussing varying legal doctrines affecting digital information); Philip H. Miller, Life After Feist: The First Amendment, and the Copyright Status of Automated Databases, 60 Fordham L. Rev. 507, 526-27 (1991) (discussing the use of contracts to control unauthorized use of digital information); Jane C. Ginsburg, Copyright Without Walls?: Speculations on Literary Property in the Library of the Future, Representations, Spr. 1993, at 42 (discussing the use of contracts to protect copyrighted expression, and the interaction of copyright and contract law); Maureen A. O'Rourke, Proprietary Rights in Digital Data, 41 Fed. B. News & J. 511 (1994) (analyzing proprietary rights in digital information).
254. See infra notes 298-308 and accompanying text.
255. 17 U.S.C. § 102(b) ("In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.").
256. 101 U.S. 99 (1879).
257. Id. at 104; see also Morrissey v. Procter & Gamble Co., 379 F.2d 675, 678 (1st Cir. 1967): When the uncopyrightable subject matter is very narrow, so that "the topic necessarily requires," if not only one form of expression, at best only a limited number, to permit copyrighting would mean that a party or parties, by copyrighting a mere handful of forms, could exhaust all possibilities of future use of the substance. (quoting Sampson & Murdock Co. v. Seaver-Radford Co., 140 F. 539, 541 (1st Cir. 1905)) (citation omitted).
258. Crume v. Pacific Mut. Life Ins. Co., 140 F.2d 182, 184 (7th Cir. 1944).
259. Id.
260. See, e.g., Atari Games Corp. v. Nintendo of Am., 975 F.2d 832 (Fed. Cir. 1992); Whelan Assoc. v. Jaslow Dental Lab., 797 F.2d 1222 (3d Cir. 1986), cert. denied, 479 U.S. 1031 (1987). See generally Peter S. Menell, An Analysis of the Scope of Copyright Protection for Application Programs, 41 Stan L. Rev. 1045 (1989).
261. 714 F.2d 1240 (3d Cir. 1983).
262. Id. at 1253.
263. Sega Enter. v. Accolade, 977 F.2d 1510, 1527 (9th Cir. 1992).
264. Id. at 1520.
265. Id.
266. See infra notes 280-88 and accompanying text.
267. See, e.g., Computer Assoc. v. Atari, 982 F.2d 693 (2d Cir. 1992); Atari Games Corp. v. Nintendo of Am., 975 F.2d 832 (Fed. Cir. 1992); Whelan Assoc. v. Jaslow Dental Lab., 797 F.2d 1222 (3d Cir. 1986).
268. 17 U.S.C. § 109(a).
269. IITF Report, supra note 98, at 217 n.543.
270. Congress achieved a similar purpose, with regard to the public performance right, when it amended § 109 in 1990 to authorize the owner of a lawfully made copy of a coinoperated video game to publicly perform that game without the permission of the copyright owner. Pub. L. No. 101-650, Tit. VIII § 803, 104 Stat. 5135 (codified at 17 U.S.C. § 109(e) (1994)). The amendment recognized that it would be patently unfair to permit the copyright owner to sell a copyrighted game, which could only be accessed through performance, and then deny the purchaser the right to perform it.
271. 17 U.S.C. § 117.
272. Id. § 101.
273. CONTU Final Report, supra note 6, at 12.
274. 17 U.S.C. § 101.
275. Id. § 109(b).
276. Id.
277. Samuelson, The NII Intellectual Property Report, supra note 228, at 22-23; see also Litman, supra note 96, at 42 ("I would argue that the better view of the law is that the act of reading a work into a computer's random access memory is too transitory to create a reproduction within the meaning of section 106(1).").
278. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).
279. Fortnightly Corp. v. United Artists, 392 U.S. 390, 395-96 (1968).
280. See generally Pamela Samuelson, Fair Use for Computer Programs and Other Copyrightable Works in Digital Form: The Implications of Sony, Galoob and Sega, 1 J. Intell. Prop. L. 49 (1993).
281. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (quoting U.S. Const. art. I, § 8, cl. 8).
282. Atari Games Corp. v. Nintendo of Am., 975 F.2d 832, 843 (Fed. Cir. 1992).
283. See supra notes 69-71 and accompanying text (explaining the four factors of fair use calculus).
284. See supra notes 235-42 and accompanying text (outlining five conditions under which a court might find an application of an exclusive right unconstitutional).
285. See Campbell, 510 U.S. at 591-92 ("[W]hen a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act.").
286. 17 U.S.C. § 107.
287. See, e.g., Sony Corp. of Am. v. Universal Studios, 464 U.S. 417 (1984).
288. 975 F.2d 832 (Fed. Cir. 1992).
289. For an illustrative example of the process of reverse engineering computer programs, see Sega Enter., Ltd. v. Accolade, Inc., 977 F.2d 1510, 1514-16 (1993).
290. Atari, 975 F.2d at 842.
291. Id. Ultimately, the court held that fair use did not excuse Atari's copying because Atari had misled the Copyright Office to obtain its copy of Nintendo's game program.
292. 977 F.2d 1510 (1993).
293. Id. at 1518.
294. Id. at 1522.
295. Id.
296. Id. at 1523.
297. Sega Enter., 977 F.2d at 1523.
298. Id. at 1527.
299. House Report, supra note 60, at 66.
300. Id.
301. See Jessica Litman, Copyright, Compromise and Legislative History, 72 Cornell L. Rev. 857, 861 (1987) (acknowledging that much of the statutory language came from authors, publishers, and parties with economic interests); Litman, supra note 96, at 33 ("Congress, for its part, has, since the turn of the century, been delegating the policy choices involved in copyright matters to the industries affected by copyright."); Thomas P. Olson, The Iron Law of Consensus: Congressional Responses to Proposed Copyright Reforms Since the 1909 Act, 36 J. Copyright Soc'y 109, 109 (1989) (discussing the role of special interests in copyright law revisions).
302. See Jessica Litman, Copyright, Compromise and Legislative History, 72 Cornell L. Rev. 857, 861 (1987) (acknowledging that much of the statutory language came from authors, publishers, and parties with economic interests); Litman, supra note 96, at 33 ("Congress, for its part, has, since the turn of the century, been delegating the policy choices involved in copyright matters to the industries affected by copyright."); Thomas P. Olson, The Iron Law of Consensus: Congressional Responses to Proposed Copyright Reforms Since the 1909 Act, 36 J. Copyright Soc'y 109, 109 (1989) (discussing the role of special interests in copyright law revisions).
303. Harper & Row Publishers Inc. v. Nation Enter., 471 U.S. 539, 545 (1985).
304. Until passage of the Chace Act, ch. 565, 26 Stat. 1106, in 1891, U.S. copyright law did not prohibit copying non-U.S. works.
305. The first copyright act, Act of May 31, 1790, ch. 15, 1 Stat. 124, protected only maps, charts, and books. On the expansion of copyright subject matter generally, see Subcomm. on Patents, Trademarks & Copyrights of the Sen. Comm. on the Judiciary, 8th Cong., 1st Sess., Study No. 3, The Meaning of "Writings" in the Copyright Clause of the Constitution 72-76 (Comm. Print 1960).
306. The Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853, eliminated compliance with statutory formalities as a condition for obtaining copyright protection.
307. The 1976 Act extended protection from 28 years (56 years, if renewed) to life of author plus 50 years, or, if the author is an organization, for 100 years after creation or 75 years after publication, whichever is first. 17 U.S.C. § 302 (1994).
308. The 1976 Act added to the exclusive rights the rights "to do and to authorize," 17 U.S.C. § 106, in an effort "to avoid any questions as to the liability of contributory infringers." House Report, supra note 60, at 61.
309. For example, an exclusive right to public display did not exist before the 1976 Act. Goldstein, supra note 35, § 5.10.
310. Consider Macaulay's statement before Parliament when that body was considering extending the term of copyright protection: Now, would the knowledge, that this copyright would exist in 1841, have been a source of gratification to [Dr.] Johnson? Would it have stimulated his exertions? Would it have once drawn him out of his bed before noon? Would it have once cheered him under a fit of the spleen? Would it have induced him to give us one more allegory, one more life of a poet, one more imitation of Juvenal? I firmly believe not I firmly believe that a hundred years ago, when he was writing out debates for the Gentleman's Magazine, he would very much rather have had twopence to buy a plate of shin of beef at a cook's shop underground. Considered as a reward to him, the difference between a twenty year's term, and a sixty year's term of posthumous copyright, would have been nothing or next to nothing. But is the difference nothing to us? I can buy Rassselas for sixpence; I might have had to give five shillings for it. I can buy the Dictionary - the entire genuine Dictionary - for two guineas, perhaps for less; I might have had to give five or six guineas for it. Do I grudge this to a man like Dr. Johnson? Not at all. Show me that the prospect of this boon roused him to any vigorous effort, or sustained his spirits under depressing circumstances, and I am quite willing to pay the price of such an object, heavy as that price is. But what I do complain of is that my circumstances are to be worse, and Johnson's fare none the better, that I am to give five pounds for what to him was not worth a farthing.
311. Parl. Deb., H.C. (3d Ser.) 341, 349-50 (1841) (statement of T. Macaulay).
312. "Public domain" materials include works for which copyright protection has expired, works which were eligible for protection under the 1909 Act but for which protection was never obtained, and works that are ineligible for copyright protection.
313. Metalitz, supra note 241, at 469-70.
314. Id. at 470.
315. "A 'shrink wrap license' is an adhesion contract directed at consumers of computer software: its terms appear on the packaging of the software product and purport to secure the buyer's agreement, upon opening the package, to the terms and conditions set forth." Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 Colum. L. Rev. 1865, 1920 n.211 (1990).
316. See Vault Corp. v. Quaid Software Ltd., 847 F.2d 255, 270 (5th Cir. 1988) (illustrating when copyright law preempts state law that conflicts). See generally Jane C. Ginsburg, No "Sweat"? Copyright and Other Protection of Works of Information After Feist v. Rural Telephone, 92 Colum. L. Rev. 338, 355-67 (1992).
317. 17 U.S.C. § 301 (1994).
318. Step-Saver Data Syg. v. Wyse Tech. and the Software Link, 939 F.2d 91 (3d Cir. 1991); Vault Corp. v. Quaid Software, 655 F. Supp. 750 (E.D. La. 1987), aff'd, 847 F.2d 255 (5th Cir. 1988). See generally David W. Maher, The Shrink-Wrap License: Old Problems in a New Wrapper, 34 J. Copyright Soc'y 292 (1987).
319. Under Section II of the Sherman Act, 15 U.S.C. §§ 1-2 (1994), a business incurs liability for refusing to deal with a competitor only when two elements exist: "(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident." United States v. Grinell Corp., 384 U.S. 563, 570-71 (1966). These requirements form the basis of the "essential facilities doctrine," which consists of four elements: "(1) control of the essential facility by a monopolist; (2) a competitor's inability practically or reasonably to duplicate the facility; (3) the denial of the use of the facility to a competitor; and (4) the feasibility of providing the facility." MCI Communications Corp. v. AT&T, 708 F.2d 1081, 1132-33 (7th Cir. 1983). See generally Phillip Areeda, Essential Facilities: An Epithet in Need of Limiting Principles, 58 Antitrust L.J. 841 (1990). Even where these four conditions exist, a discriminating monopolist may escape liability by demonstrating a valid reason for its refusal to deal. Absent an acceptable justification, however, a monopolist meeting the four conditions of the essential facilities doctrine, who refuses to deal with otherwise qualified customers, violates the Sherman Act and becomes subject to its full panoply of remedies. The fact that the offending monopolist is in the business of providing information, an activity protected by the First Amendment, is irrelevant. Associated Press v. United States, 326 U.S. 1, 20 (1945) ("The First Amendment affords not the slightest support for the contention that a combination to restrain trade in news and views has any constitutional immunity.").
320. Robert A. Gorman, Fact or Fancy? The Implications for Copyright, 29 J. Copyright Soc'y 560, 604 (1982).
321. 35 U.S.C. §§ 101-376 (1994).
322. Bonito Boats v. Thunder Craft Boats, 489 U.S. 144, 151 (1989). See generally, Ginsburg, supra note 302, at 353-66.
323. See generally Pamela Samuelson & Robert J. Glushko, Intellectual Property Rights for Digital Library and Hypertext Publishing Systems, 6 Harv. J.L. & Tech. 237, 239-42 (1993).
324. Charles W. Beardsley, Uncorking Fine Wine; Copyright Laws, Mechanical Engineering-CIM, Aug. 1994, at 6 (quoting John Perry Barlow).
325. John P. Barlow, The Economy of Ideas, Wired, Mar. 1994, at 126.
326. IITF Report, supra note 98, at 217-30.