Has the digital millennium copyright act really created a new exclusive right of access?: Attempting to reach a balance between users' and content providers' rights

Journal of the Copyright Society of the U.S.A.

Volumn 49, Issue 1, 2001, Pages 277-311

  Landau, Michael ^a  

^a GEORGIA STATE UNIVERSITY   (United States)

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EID: 0039330533     PISSN: 08863520     EISSN: None     Source Type: Journal    
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References (136)

1. 17 U.S.C. § 1201(a)(1) (2000).
2. Id. § 1201(a)(2).
3. Id. § 1201(b)(1).
4. See Pamela Samuelson, Intellectual Property and the Digital Economy: Why the Anticircumvention Regulations Need to Be Revised, 14 BERKELEY TECH. L.J. 519 (1999) [hereinafter Samuelson I]; see also, Pamela Samuelson, Toward More Sensible Anti-Circumvention Regulations, CYBERSPACE L., July/ Aug. 2000, at 2; Jason Sheets, Copyright Misused: The Impact of the DMCA Anti-Circumvention Measures on Fair & Innovative Markets, 23 HASTINGS COMM. & ENT. L.J. 1 (2000); See generally Matt Jackson, Technology's Threat to Transformative Works, presented to the Washington Area Lawyers for the Arts Second Annual Arts & Entertainment Law Symposium, Nov. 10, 2000.
5. See Pamela Samuelson, Intellectual Property and the Digital Economy: Why the Anticircumvention Regulations Need to Be Revised, 14 BERKELEY TECH. L.J. 519 (1999) [hereinafter Samuelson I]; see also, Pamela Samuelson, Toward More Sensible Anti-Circumvention Regulations, CYBERSPACE L., July/Aug. 2000, at 2; Jason Sheets, Copyright Misused: The Impact of the DMCA Anti-Circumvention Measures on Fair & Innovative Markets, 23 HASTINGS COMM. & ENT. L.J. 1 (2000); See generally Matt Jackson, Technology's Threat to Transformative Works, presented to the Washington Area Lawyers for the Arts Second Annual Arts & Entertainment Law Symposium, Nov. 10, 2000.
6. See Pamela Samuelson, Intellectual Property and the Digital Economy: Why the Anticircumvention Regulations Need to Be Revised, 14 BERKELEY TECH. L.J. 519 (1999) [hereinafter Samuelson I]; see also, Pamela Samuelson, Toward More Sensible Anti-Circumvention Regulations, CYBERSPACE L., July/ Aug. 2000, at 2; Jason Sheets, Copyright Misused: The Impact of the DMCA Anti-Circumvention Measures on Fair & Innovative Markets, 23 HASTINGS COMM. & ENT. L.J. 1 (2000); See generally Matt Jackson, Technology's Threat to Transformative Works, presented to the Washington Area Lawyers for the Arts Second Annual Arts & Entertainment Law Symposium, Nov. 10, 2000.
7. See Pamela Samuelson, Intellectual Property and the Digital Economy: Why the Anticircumvention Regulations Need to Be Revised, 14 BERKELEY TECH. L.J. 519 (1999) [hereinafter Samuelson I]; see also, Pamela Samuelson, Toward More Sensible Anti-Circumvention Regulations, CYBERSPACE L., July/ Aug. 2000, at 2; Jason Sheets, Copyright Misused: The Impact of the DMCA Anti-Circumvention Measures on Fair & Innovative Markets, 23 HASTINGS COMM. & ENT. L.J. 1 (2000); See generally Matt Jackson, Technology's Threat to Transformative Works, presented to the Washington Area Lawyers for the Arts Second Annual Arts & Entertainment Law Symposium, Nov. 10, 2000.
8. The constitutionality of the anti-circumvention provisions of the DMCA is an issue in Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000), affd sub nom, Universal City Studios v. Corley, 273 F.3d 429 (2d Cir. 2001). On June 6, 2001, Edward Felton, an Associate Professor of Computer Science at Princeton and several of his colleagues initiated a declaratory judgment action in the District of New Jersey against the Recording Industry Association of America ("RIAA"), Secure Digital Music Initiative Foundation, Verance Corporation, and John Ashcroft, Attorney General of the United States. The plaintiffs, among other things, wanted a declaration that presenting or publishing scientific and technical information (including computer code) related to access and copy control measures and copyright management information systems was protected under the First Amendment, and also a "[p]ermanent injunction enjoining the private Defendants, the Doe Defendants and their respective agents, employees, attorneys, successors in office, assistants and all persons acting in concert with them from initiating an action against the Plaintiffs and others for violating the DMCA by presenting or publishing scientific and technical information (including computer code) related to access and copy control measures and copyright management information systems." Felton v. RIAA Complaint, filed June 6, 2001 (D.N.J).
9. See generally Jessica Litman, The Exclusive Right To Read, 13 CARDOZO ARTS & ENT. L.J. 29 (1994). It should be noted that Professor Litman's article predates the DMCA by four years. Her article presents a persuasive case for the rights of the public, as opposed to the rights of the corporate interests that usually are able to lobby Congress.
10. See Jane C. Ginsburg, From Having Copies to Experiencing Works: The Development of an Access Right in U.S. Copyright Law, Columbia Law School Public Law & Legal Theory Working Group, Paper No. 8 (2000), at 6 n.13, available at http://papers.ssrn.com/paper.taf?abstract_id=222493.
11. U.S. CONST, art. I, § 8, cl. 8.
12. See Jessica Litman, Copyright Legislation and Technological Change, 68 OR. L. REV. 965 (1990); see also Jessica Litman, Copyright, Compromise, and Legislative History, 72 CORNELL L. REV. 857 (1987); Howard Coble, Copyright's Past and Its Application to Copyright's Future, 47 J. COPR. SOC'Y 1 (2000); ROBERT A. GORMAN & JANE C. GINSBURG, COPYRIGHT 3-12 (1999). For an interesting discussion of the pre-Constitutional copyright laws of the various colonies, See Francine Crawford, Pre-Constitutional Copyright Statutes, 47 J. COPR. SOC'Y 167 (2000).
13. See Jessica Litman, Copyright Legislation and Technological Change, 68 OR. L. REV. 965 (1990); see also Jessica Litman, Copyright, Compromise, and Legislative History, 72 CORNELL L. REV. 857 (1987); Howard Coble, Copyright's Past and Its Application to Copyright's Future, 47 J. COPR. SOC'Y 1 (2000); ROBERT A. GORMAN & JANE C. GINSBURG, COPYRIGHT 3-12 (1999). For an interesting discussion of the pre-Constitutional copyright laws of the various colonies, See Francine Crawford, Pre-Constitutional Copyright Statutes, 47 J. COPR. SOC'Y 167 (2000).
14. See Jessica Litman, Copyright Legislation and Technological Change, 68 OR. L. REV. 965 (1990); see also Jessica Litman, Copyright, Compromise, and Legislative History, 72 CORNELL L. REV. 857 (1987); Howard Coble, Copyright's Past and Its Application to Copyright's Future, 47 J. COPR. SOC'Y 1 (2000); ROBERT A. GORMAN & JANE C. GINSBURG, COPYRIGHT 3-12 (1999). For an interesting discussion of the pre-Constitutional copyright laws of the various colonies, See Francine Crawford, Pre-Constitutional Copyright Statutes, 47 J. COPR. SOC'Y 167 (2000).
15. See Jessica Litman, Copyright Legislation and Technological Change, 68 OR. L. REV. 965 (1990); see also Jessica Litman, Copyright, Compromise, and Legislative History, 72 CORNELL L. REV. 857 (1987); Howard Coble, Copyright's Past and Its Application to Copyright's Future, 47 J. COPR. SOC'Y 1 (2000); ROBERT A. GORMAN & JANE C. GINSBURG, COPYRIGHT 3-12 (1999). For an interesting discussion of the pre-Constitutional copyright laws of the various colonies, See Francine Crawford, Pre-Constitutional Copyright Statutes, 47 J. COPR. SOC'Y 167 (2000).
16. See Jessica Litman, Copyright Legislation and Technological Change, 68 OR. L. REV. 965 (1990); see also Jessica Litman, Copyright, Compromise, and Legislative History, 72 CORNELL L. REV. 857 (1987); Howard Coble, Copyright's Past and Its Application to Copyright's Future, 47 J. COPR. SOC'Y 1 (2000); ROBERT A. GORMAN & JANE C. GINSBURG, COPYRIGHT 3-12 (1999). For an interesting discussion of the pre-Constitutional copyright laws of the various colonies, See Francine Crawford, Pre-Constitutional Copyright Statutes, 47 J. COPR. SOC'Y 167 (2000).
17. See, e.g., Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) (holding that a photograph was a "writing of an author" and therefore the proper subject matter for copyright protection).
18. See White-Smith Music Publ'g Co. v. Apollo Co., 209 U.S. 1 (1908) (holding that a player piano roll was not a "copy" of the underlying musical composition).
19. th Cir.), cert, denied, 516 U.S. 927 (1995) (rejecting Rosette and holding that the sale of sound recordings was the act of "publication" of the underlying musical composition). In November 1997, Congress endorsed the holding in Rosette, and overruled La Cienega by enacting section 303(b), which provides that the sale of sound recordings prior to January 1, 1978 - the effective date of the Copyright Act of 1976 - does not constitute a publication of the underlying musical composition. See 17 U.S.C. § 303(b) (2000). For a discussion of the issue, see generally, Michael B. Landau, "Publication," Sound Recordings and the Copyright Act of1909; Still Crazy After All These Years, 2 VAND. J. ENT. L. & PRAC. 29 (2000).
20. See Bartsch v. Metro-Goldwyn-Mayer, Inc., 270 F. Supp. 896 (S.D.N.Y. 1967). In Bartsch, the Southern District of New York held that there could be no recovery by the plaintiff for the television broadcast of a motion picture based upon his work since the 1930 conveyance of motion picture rights authorizing defendant to "project, transmit and otherwise reproduce certain musical play or any adaptation or version thereof visually and audibly by act of cinematography or any process analogous thereto" transferred television rights and since plaintiffs predecessor in interest transferred all interests he had obtained from his grantors and thus did not retain television or any other rights.
21. See Sony Corp. Am. v. Universal City Studios, Inc., 464 U.S. 417 (1983) (holding that Sony was not liable for contributory infringement for the manufacture and sale of the Betamax videotape recorder).
22. The Audio Home Recording Act of 1992 was enacted to resolve a dispute between the record companies and the manufacturers of digital audio recorders and digital audio recording media. See 17 U.S.C. § 1001 et seq. (2000).
23. th Cir. 2001) (holding that the uploading and downloading of digital music files was copyright infringement; case was remanded for purposes of fashioning a more narrow injunction); see also UMG Recordings, Inc. v. MP3.com, 92 F. Supp. 2d 349 (S.D.N.Y. 2000) (holding that the copying and storage of copyrighted music files by mp3.com was infringement, even though the end users actually owned copies of the recordings); Recording Indus. Ass'n of Am. v. Diamond Multimedia Sys., Inc., 29 F. Supp. 2d 624 (CD. CaI. 1998) (holding that the manufacture and sale of a portable device for storing mp3 music files was not contributory infringement; also holding that a personal computer was not a "digital audio recording device" under the AHRA).
24. See Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000).
25. See Ginsburg, supra note 7, at 6 n.13.
26. See Paul Edward Geller, Copyright History and the Future: What's Culture Got To Do With It?, 47 J. COPR. SOC'Y 209, 230-33 (2000) (discussing the expansion of early copyright law to cover the then newly emerging technologies).
27. Section 106 of the Copyright Act provides: Subject to sections 107 through 121, the owner of a copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of 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, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work by means of a digital audio transmission.
28. See 17 U.S.C. § 106(6) (2000).
29. See, e.g., Agee v. Paramount Communications, Inc., 59 F.3d 317 (2d Cir. 1995) (discussing the difference between the performance right and the reproduction right in connection with sound recordings).
30. See GORMAN & GINSBURG, supra note 9, at 3-12.
31. See Marci A. Hamilton, Historical and Philosophical Underpinnings of the Copyright Clause, 5 OCCASIONAL PAPERS IN INTELL. PROP. FROM BENJAMIN CARDOZO SCH. OF L. 1, 9 (1999); see also L. Ray Patterson, Understanding the Copyright Clause, 47 J. COPY. SOC'Y 365 (2000). Professor Patterson provides an interesting and thorough examination of the history and scope of the early copyright laws.
32. See Marci A. Hamilton, Historical and Philosophical Underpinnings of the Copyright Clause, 5 OCCASIONAL PAPERS IN INTELL. PROP. FROM BENJAMIN CARDOZO SCH. OF L. 1, 9 (1999); see also L. Ray Patterson, Understanding the Copyright Clause, 47 J. COPY. SOC'Y 365 (2000). Professor Patterson provides an interesting and thorough examination of the history and scope of the early copyright laws.
33. To a certain extent, it can be argued that in the arts, the ideology of "standing on the shoulders of giants" was endorsed by allowing parties to utilize and learn from the artistic and musical creations of others in order to perfect their crafts.
34. Jessica Litman has written very good pieces regarding the legislative process and the competing interests. See Jessica Litman, The Exclusive Right To Read, 13 CARDOZO ARTS & ENT. L.J. 29 (1994); Jessica Litman, Copyright Legislation and Technological Change, 68 OR. L. REV. 965 (1990); Jessica Litman, Copyright, Compromise, and Legislative History, 72 CORNELL L. REV. 857 (1987).
35. Jessica Litman has written very good pieces regarding the legislative process and the competing interests. See Jessica Litman, The Exclusive Right To Read, 13 CARDOZO ARTS & ENT. L.J. 29 (1994); Jessica Litman, Copyright Legislation and Technological Change, 68 OR. L. REV. 965 (1990); Jessica Litman, Copyright, Compromise, and Legislative History, 72 CORNELL L. REV. 857 (1987).
36. Jessica Litman has written very good pieces regarding the legislative process and the competing interests. See Jessica Litman, The Exclusive Right To Read, 13 CARDOZO ARTS & ENT. L.J. 29 (1994); Jessica Litman, Copyright Legislation and Technological Change, 68 OR. L. REV. 965 (1990); Jessica Litman, Copyright, Compromise, and Legislative History, 72 CORNELL L. REV. 857 (1987).
37. 209 U.S. 1 (1908).
38. For a discussion of the issue of "publication" and musical compositions, see Landau supra note 12.
39. See 17 U.S.C. § 115 (2000).
40. 354 F. Supp. 1183 (S.D.N.Y. 1973), aff'd, 546 F.2d 461 (2d Cir. 1976).
41. th Cir), cert, denied, 516 U.S. 927 (1995), superseded by 17 U.S.C. § 303(b) (2000).
42. The issue of inter-circuit splits of authority of federal law is one of my favorite topics. For a discussion of inter-circuit disagreement, see Michael Landau and Donald Biederman, Eliminating the Jurisdictional Advantage: The Need for a Specialized Copyright Forum, 21 HASTINGS COMM. & ENT. L.J. 717 (1999).
43. See 17 U.S.C. § 109(b)(1)(A) (2000). It should be noted that the same prohibition applies to computer programs. For illustrative purposes, I limited the statutory language to that regarding phonorecords.
44. A few years ago, I saw an advertisement in the back of a stereo magazine for a company that rented CDs. Out of curiosity, I wrote to them. I received the following reply (actually, I am paraphrasing): Dear Customer: It has come To our attention that under United States copyright law the,rental of sound recordings is illegal. We, therefore, no longer offer that service. We now offer a 100% satisfaction guarantee policy on all CDs that you purchase from us. In the event that you are not satisfied, and would like to return your CD within thirty days, we will offer a full refund, minus a $2.50 restocking fee per CD returned.
45. See 17 U.S.C. § 106(6) (2000).
46. See Id. § 106(6) (2000).
47. I will not get into The old "vinyl v. CD" argument at this time. There is a group of hard core audiophiles, the author included, who contend that the sound of a vinyl album, played on a good turntable "blows away" the sound of a CD played on a good CD player. The author will also disclose that he is of the camp that believes tunes are superior to transistors.
48. Do I hear "It's deja BETA all over again?" The DAT medium did not do well. On the other hand, blank recordable CDs have taken off like wildfire!
49. See 17 U.S.C. § 1001 (2000).
50. th Cir. 2001).
51. See 17 U.S.C. § 1002 (2000).
52. See Id. § 1003.
53. See Id. §1008. The section 1008 was also raised - unsuccessfully - in the Napster case. I personally question whether the activity in Napster is "non-commercial¢ or ¢commercial, yet non-cash.¢
54. Pub. L. No. 105-304, 112 Stat. 2860 (1998).
55. See Jackson, supra note 4, at 17.
56. th Cir 2001) (discussing the creation of "new works" by adding additional material to CD-ROMs of National Geographic magazine); Michael Landau, The Importance of Electronic Rights Revisited, available at GigiLaw.com - Legal Information for Internet Professionals (Aug. 2001) http://www.gigalaw.com/articles/2001/landau-2001-08-pl.html.
57. This subsection did not take effect until November of 2000, after a rulemaking by the Librarian of Congress determined whether any users of any specific "class of works" will be adversely affected in their ability to make noninfringing uses of that particular class of works. According to the House Report the purpose of the delay in the enactment of this clause and the requirement that a rulemaking take place every three years was to ensure the "availability of works in the marketplace for lawful uses." See H.R. REP. No. 105-551, pt. 2, at 37 (1998).
58. th Cong., at 18 (1998).
59. th Cong., at 18 (1998).
60. I am using the term "content provider" because in some cases, the work that has been digitized is not covered by copyright. If, for example, a copy of a public domain book has merely been scanned and digitized, it would be hard to argue that there is any new "original expression" that has been added to the work. Cf. Maljack Prods., Inc. v. UAV Corp., 964 F. Supp. 1416 (C.D. Cal. 1997) ("pan and scan" video version of public domain motion picture held to be an original "derivative work").
61. This would be a scheme that is similar to Serial Copyright Management.
62. See Jackson, supra note 4, at 18-19.
63. 17 U.S.C. § 1008 (2000).
64. Id. § 107.
65. WIPO Copyright Treaty, adopted by the Diplomatic Conference on Dec. 20, 1996, WIPO Doc. CRNR/DC/94 (Dec. 23, 1996) [hereinafter WIPO Copyrigth Treaty].
66. See Samuelson I, supra note 4; see also Nimmer, supra note 48, at 702-38 (discussing the legislative history in detail).
67. The prohibition against the theft of cable services is codified in section 552 of the Communications Act and the prohibition against the theft of wireless and satellite television signals is codified in section 605. 47 U.S.C. § 553(A) provides: "(1) No person shall intercept or receive or assist in intercepting or receiving any communication service authorized over a cable system . . . (2) the term "assist in intercepting or receiving" shall include the manufacturer or distribution of equipment intended . . . for unauthorized reproduction [of cable service]." 47 U.S.C. § 605(e)(4) provides: "Any person who manufactures, assembles, modifies, imports, exports, sells, or distributes any . . . device or equipment knowing or having reason to know that the device or equipment is primarily of assistance in the unauthorized decryption [of satellite broadcasting or programming] shall be fined not more than $500,000 . . . or imprisoned for not more than 5 years for each violation, or both."
68. The prohibition against the theft of cable services is codified in section 552 of the Communications Act and the prohibition against the theft of wireless and satellite television signals is codified in section 605. 47 U.S.C. § 553(A) provides: "(1) No person shall intercept or receive or assist in intercepting or receiving any communication service authorized over a cable system . . . (2) the term "assist in intercepting or receiving" shall include the manufacturer or distribution of equipment intended . . . for unauthorized reproduction [of cable service]." 47 U.S.C. § 605(e)(4) provides: "Any person who manufactures, assembles, modifies, imports, exports, sells, or distributes any . . . device or equipment knowing or having reason to know that the device or equipment is primarily of assistance in the unauthorized decryption [of satellite broadcasting or programming] shall be fined not more than $500,000 . . . or imprisoned for not more than 5 years for each violation, or both."
69. See Rick Lyman, Hollywood, Eye on Privacy, Moves to Rent Movies Online, N.Y. TIMES, Aug. 17, 2001, at A1.
70. The agreements which most universities and law schools have with West is "For Educational Purposes Only." Were I to make a deal with a law firm to provide them with research and unlimited copies of cases downloaded from Westlaw, at a fraction of the cost that West charges, I would be in violation of my contract.
71. th Cir. 1996).
72. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340 (1991).
73. 17 U.S.C. §§ 1201(a)(1), 1201(a)(2) (2000).
74. 17 U.S.C. § 1201(a)(2)(B) (2000).
75. See Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 319-20 (S.D.N.Y. 2000).
76. 17 U.S.C. § 1201(f).
77. See Reimerdes, 111 F. Supp. 2d at 320.
78. 17 U.S.C. § 1201(c)(1) (2000).
79. See Reimerdes, 111 F. Supp. 2d at 321-24.
80. Id. at 323 (citing H.R. REP. No. 105-551, supra note 47, at 18).
81. 464 U.S. 417 (1984).
82. See Reimerdes, 111 F. Supp. 2d at 323.
83. See id. at 333-34.
84. Affirmed sub nom, Universal City Studios, Inc. v. Corley, 273 F.3d 439 (2d Cir. 2001).
85. Id. at 436.
86. Id. at 441 (citing Reimerdes, 111 F. Supp. 2d at 318).
87. Id. at 443.
88. Id. at 444.
89. Id.
90. Id. at 454.
91. th Dist. 2001).
92. Id. at 343.
93. Id.
94. th Cir. 2000)).
95. Id. at 348.
96. This assumes that the videocassettes are not copy-protected, as well.
97. Lewis A. Kaplan et al., Keynote Address: Resolving Tensions Between Copyright and the Internet, 50 AM. U. L. REV. 409, 417-18 (2000).
98. It should be noted that while there is no direct statutory provision relating to contributory infringement in copyright law, there are express provisions in patent law for both active inducement (35 U.S.C. § 271(b) (200O)) and contributory infringement (35 U.S.C. § 271(c) (2000)).
99. It should be noted that while there is no direct statutory provision relating to contributory infringement in copyright law, there are express provisions in patent law for both active inducement (35 U.S.C. § 271(b) (200O)) and contributory infringement (35 U.S.C. § 271(c) (2000)).
100. Section 1201(c)(1) provides, "Nothing in this section shall affect rights, remedies limitations, or defenses to copyright infringement, including fair use, under this title [17 U.S.C. § 1 et seq. (2000)]."
101. th Cong., at 18 (1998); Nimmer, supra note 48, at 702-38 (discussing the legislative history in detail).
102. Kaplan, supra note 85, at 420-21 (2000) (discussing exemptions).
103. Reimerdes, 111 F. Supp. 2d at 321-24.
104. 17 U.S.C. § 107 (2000).
105. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994); see also Pierre Levai, Toward a Fair Use Standard, 103 HARV. L. REV. 1105 (1990) (advocating that "transformative uses" should be fair).
106. This assumes that the record companies have added technological measures that prohibit the making of any copies, instead of serial copies.
107. 17 U.S.C. § 101 (2000)
108. See Sony Corp. Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984).
109. 17 U.S.C. § 1201 (c)(4) (2000).
110. 36 F. Supp. 2d 191 (S.D.N.Y. 1999).
111. 42 U.S.P.Q.2d 1930 (S.D.N.Y. 1997), aff'd, 158 F.3d 674 (2d Cir. 1998), cert. denied, 526 U.S. 1154 (1999).
112. th Cir. 1986).
113. st Cir. 1993) (record producer who owned a band's "demo" tape held not to own the copyrights in and to the musical compositions).
114. 523 U.S. 135 (1998).
115. th Cir. 1996).
116. 847 F.2d 1093 (3d Cir. 1988).
117. Quality King, 523 U.S. at 136.
118. There are a certain number of times, usually five, however, that the codes in computers and DVD players may be changed to accommodate temporary uses of foreign DVD. For example, if I am going to be in Europe for the summer, I can adjust the setting on my PowerBook to allow me to play DVDs that I have purchased "on the continent." I cannot, however, assemble a library of European disks along with my North American disks, for I cannot infinitely change back and forth between regional codes.
119. See 17 U.S.C. § 1201(g) (2000).
120. Id. § 1201(a)(1).
121. Id. § 1201(a)(2).
122. Id. § 1201(b)(1).
123. th Cir. 1992).
124. th Cir. 1993) (the loading of a computer program into RAM was the creation of an infringing copy).
125. th Cir. 1988) (program to modify plaintiff's program so as to defeat the anticopying software was not a derivative work).
126. On July 7, 2001, a criminal complaint was filed against a Russian programmer in the United States for a conference, for violations of section 1201(b). See United States v. Sklyarov, No. 5 01 257P (N.D. Cal. July 7, 2001). The case is discussed above.
127. Section 1204 provides as follows: a) In general. - Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain -(1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and (2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense. (b) Limitation for nonprofit library, archives, educational institution, or public broadcasting entity. - Subsection (a) shall not apply to a non-profit library, archives, educational institution, or public broadcasting entity (as defined under section 118(g). (c) Statute of limitations. - No criminal proceeding shall be brought under this section unless such proceeding is commenced within 5 years after the cause of action arose.
128. I hope that I, too, will not be liable for directing people to the Webster with the software. I got the address directly from the Affidavit In Support of Criminal Complaint, at 2, which I downloaded after being encouraged to do so by a link on the U.S. Attorney's website at http://www.usaondca.com/ press/assets/applets/2001_07_17_sklyarov.pdf. There is also a link on the U.S. Department of Justice's Cybercrime website at http:// www.cybercrime.gov/sklyarov. For additional information on United States v. Sklyarov, see the Electronic Freedom Foundation's website, http:// www.eff.org/IP/DMCA/US_v_Sklyarov; see also http://freesklyarov.org.
129. Affidavit in Support of Criminal Complaint, United States v. Sklyarov, at 3-4.
130. 118 Id. at 3.
131. 35 U.S.C. § 271(b) (2000).
132. Id. § 271(c).
133. See, e.g., Lawrence Lessig, Jail Time in the Digital Age, N.Y. TIMES, July 30, 2001, at A21; see also http://freesklyarov.org.
134. Niels Ferguson, Censorship In Action: Why I Don't Publish My HDCP Results, Aug. 15, 2001, available at http://www.macfergus.com/niels/dmca/ index.html.
135. Felton v. Recording Indus. Ass'n of Am., Complaint, filed June 6, 2001 (D.N.J). The complaint and other information about the case is available through the Electronic Freedom Foundation, available at http://www.eff.org/IP/DMCA/Felten_v_RIAA.
136. See generally Jackson, supra note 4.