Authors and users in copyright

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

Volumn 45, Issue 1, 1997, Pages 1-19

  Ginsburg, Jane C ^a  

^a NONE

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EID: 0039506176     PISSN: 08863520     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (99)

1. This article is based on the 26th Annual Donald C. Brace Memorial Lecture, sponsored by the Copyright Society of the U.S.A., delivered on Nov. 13, 1997.
2. Morton L. Janklow Professor of Literary and Artistic Property Law Columbia University School of Law. Many friends and colleagues offered helpful suggestions throughout the evolution of this article. Thanks in particular to Tom Lombardo, Josh Masur, Henry Monaghan, Shira Perlmutter, Kate Spelman and George Spera, and to the Columbia Law School faculty symposium. Special thanks for research assistance to Jacqueline Ewenstein, Columbia Law School class of 1998.
3. See, e.g., John Perry Barlow, The Economy of Ideas, WIRED, Mar. 1994 〈http:// wwww.wired.com/wired/2.03/features/economy.ideas.html, visited 11/22/97〉 (arguing that copyright on the Internet defeats the Jeffersonian purpose of seeing that ideas are available to everyone regardless of economic station); Pamela Samuelson, The Copyright Grab, WIRED, Jan. 1996, at 134, 135 (warning that the information superhighway is being turned into a "publisher dominated toll road.") [hereinafter, The Copyright Grab] ; Rosemary Coombe, Left Out on the Information Highway, 75 OR. L. REV. 237, 239 (1996) (lamenting that in the digital environment, communicational activities long encouraged by democracies with an Enlightenment faith in the progress of arts and science, are viewed as trespassing on private property.) [hereinafter, Left Out]
4. See, e.g., John Perry Barlow, The Economy of Ideas, WIRED, Mar. 1994 〈http:// wwww.wired.com/wired/2.03/features/economy.ideas.html, visited 11/22/97〉 (arguing that copyright on the Internet defeats the Jeffersonian purpose of seeing that ideas are available to everyone regardless of economic station); Pamela Samuelson, The Copyright Grab, WIRED, Jan. 1996, at 134, 135 (warning that the information superhighway is being turned into a "publisher dominated toll road.") [hereinafter, The Copyright Grab] ; Rosemary Coombe, Left Out on the Information Highway, 75 OR. L. REV. 237, 239 (1996) (lamenting that in the digital environment, communicational activities long encouraged by democracies with an Enlightenment faith in the progress of arts and science, are viewed as trespassing on private property.) [hereinafter, Left Out]
5. See, e.g., John Perry Barlow, The Economy of Ideas, WIRED, Mar. 1994 〈http:// wwww.wired.com/wired/2.03/features/economy.ideas.html, visited 11/22/97〉 (arguing that copyright on the Internet defeats the Jeffersonian purpose of seeing that ideas are available to everyone regardless of economic station); Pamela Samuelson, The Copyright Grab, WIRED, Jan. 1996, at 134, 135 (warning that the information superhighway is being turned into a "publisher dominated toll road.") [hereinafter, The Copyright Grab] ; Rosemary Coombe, Left Out on the Information Highway, 75 OR. L. REV. 237, 239 (1996) (lamenting that in the digital environment, communicational activities long encouraged by democracies with an Enlightenment faith in the progress of arts and science, are viewed as trespassing on private property.) [hereinafter, Left Out]
6. See, e.g., Columbia Pictures Industries, Inc. v. Redd Home, Inc., 749 F.2d 154, 157 (3rd Cir 1984) ("A defendant, however, is not immune from liability for copyright infringement simply because the technologies are of recent origin or are being applied to innovative uses."); WGN Continental Broadcasting Company v. United Video Inc., 693 F.2d 622, 627 (7th Cir. 1982) ("The comprehensive overhaul of copyright law by the Copyright Act of 1976 was impelled by recent technological advances . . . This background suggests that Congress probably wanted the courts to interpret definitional provisions of the new act flexibly, so that it would cover new technologies as they appeared . . . "). For denial of a First Amendment defense to copyright infringement, see, e.g., Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985); Twin Peaks Productions Inc. v. Publications, Int'l, Ltd., 996 F.2d 1366 (2d Cir. 1993).
7. See, e.g., Columbia Pictures Industries, Inc. v. Redd Home, Inc., 749 F.2d 154, 157 (3rd Cir 1984) ("A defendant, however, is not immune from liability for copyright infringement simply because the technologies are of recent origin or are being applied to innovative uses."); WGN Continental Broadcasting Company v. United Video Inc., 693 F.2d 622, 627 (7th Cir. 1982) ("The comprehensive overhaul of copyright law by the Copyright Act of 1976 was impelled by recent technological advances . . . This background suggests that Congress probably wanted the courts to interpret definitional provisions of the new act flexibly, so that it would cover new technologies as they appeared . . . "). For denial of a First Amendment defense to copyright infringement, see, e.g., Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985); Twin Peaks Productions Inc. v. Publications, Int'l, Ltd., 996 F.2d 1366 (2d Cir. 1993).
8. See, e.g., Columbia Pictures Industries, Inc. v. Redd Home, Inc., 749 F.2d 154, 157 (3rd Cir 1984) ("A defendant, however, is not immune from liability for copyright infringement simply because the technologies are of recent origin or are being applied to innovative uses."); WGN Continental Broadcasting Company v. United Video Inc., 693 F.2d 622, 627 (7th Cir. 1982) ("The comprehensive overhaul of copyright law by the Copyright Act of 1976 was impelled by recent technological advances . . . This background suggests that Congress probably wanted the courts to interpret definitional provisions of the new act flexibly, so that it would cover new technologies as they appeared . . . "). For denial of a First Amendment defense to copyright infringement, see, e.g., Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985); Twin Peaks Productions Inc. v. Publications, Int'l, Ltd., 996 F.2d 1366 (2d Cir. 1993).
9. See, e.g., Columbia Pictures Industries, Inc. v. Redd Home, Inc., 749 F.2d 154, 157 (3rd Cir 1984) ("A defendant, however, is not immune from liability for copyright infringement simply because the technologies are of recent origin or are being applied to innovative uses."); WGN Continental Broadcasting Company v. United Video Inc., 693 F.2d 622, 627 (7th Cir. 1982) ("The comprehensive overhaul of copyright law by the Copyright Act of 1976 was impelled by recent technological advances . . . This background suggests that Congress probably wanted the courts to interpret definitional provisions of the new act flexibly, so that it would cover new technologies as they appeared . . . "). For denial of a First Amendment defense to copyright infringement, see, e.g., Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985); Twin Peaks Productions Inc. v. Publications, Int'l, Ltd., 996 F.2d 1366 (2d Cir. 1993).
10. Paul Goldstein, Copyright, 38 J. COPYRIGHT SOC'Y U.S.A. 109 (1991).
11. The trend is evidenced by a proliferation of "user rights" titles in recent copyright scholarship. See e.g., L. RAY PATTERSON & STANLEY W. LINDBERG, THE NATURE OF COPYRIGHT, A LAW OF USERS' RIGHTS (1991) [hereinafter, A LAW OF USERS' RIGHTS; Richard Stallman, Reevaluating Copyright: The Public Must Prevail, 75 OR. L. REV. 291 (1996). See also works cited infra, note 11.
12. The trend is evidenced by a proliferation of "user rights" titles in recent copyright scholarship. See e.g., L. RAY PATTERSON & STANLEY W. LINDBERG, THE NATURE OF COPYRIGHT, A LAW OF USERS' RIGHTS (1991) [hereinafter, A LAW OF USERS' RIGHTS; Richard Stallman, Reevaluating Copyright: The Public Must Prevail, 75 OR. L. REV. 291 (1996). See also works cited infra, note 11.
13. "User rights" challenges to other branches of intellectual property law appear to be more discretely targeted than the current broad-based attacks on copyright. For example, with respect to trademark law, some commentators are concerned that vigorous enforcement of trademark rights against parodists or others who exploit the popular linguistic and cultural associations of famous trademarks will curtail freedom of speech. See, e.g., Rochelle Cooper Dreyfuss, We Are Symbols and Inhabit Symbols, So Should We Be Paying Rent? Deconstructing the Lanham Act and Rights of Publicity, 20 COLUM.-VLA J. L. & ARTS 123 (1996); Alex Kozinski, Trademarks Unplugged, 68 NYU L. REV. 960 (1993); Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in The Pepsi Generation, 65 NOTRE DAME L. REV. 397 (1990); Robert Denicola, Trademarks as Speech: Constitutional Implications of the Emerging Rationales for the Protection of Trade Symbols, 1982 WIS. L. REV. 158. With respect to patent law, there are significant scholarly and popular press objections to patents on software programs, particularly business applications programs. See, e.g., Pamela Samuelson, Benson Revisited: The Case Against Patent Protection for Algorithms and Other Computer Related Inventions, 39 EMORY L.J. 1205 (1990); Richard Morin, Freedom to Program, UNIX REVIEW, May 1, 1995, at 79; Michael J. Miller, Software Patents Must Go, PC MAGAZINE, March 15, 1994, at 79.
14. "User rights" challenges to other branches of intellectual property law appear to be more discretely targeted than the current broad-based attacks on copyright. For example, with respect to trademark law, some commentators are concerned that vigorous enforcement of trademark rights against parodists or others who exploit the popular linguistic and cultural associations of famous trademarks will curtail freedom of speech. See, e.g., Rochelle Cooper Dreyfuss, We Are Symbols and Inhabit Symbols, So Should We Be Paying Rent? Deconstructing the Lanham Act and Rights of Publicity, 20 COLUM.-VLA J. L. & ARTS 123 (1996); Alex Kozinski, Trademarks Unplugged, 68 NYU L. REV. 960 (1993); Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in The Pepsi Generation, 65 NOTRE DAME L. REV. 397 (1990); Robert Denicola, Trademarks as Speech: Constitutional Implications of the Emerging Rationales for the Protection of Trade Symbols, 1982 WIS. L. REV. 158. With respect to patent law, there are significant scholarly and popular press objections to patents on software programs, particularly business applications programs. See, e.g., Pamela Samuelson, Benson Revisited: The Case Against Patent Protection for Algorithms and Other Computer Related Inventions, 39 EMORY L.J. 1205 (1990); Richard Morin, Freedom to Program, UNIX REVIEW, May 1, 1995, at 79; Michael J. Miller, Software Patents Must Go, PC MAGAZINE, March 15, 1994, at 79.
15. "User rights" challenges to other branches of intellectual property law appear to be more discretely targeted than the current broad-based attacks on copyright. For example, with respect to trademark law, some commentators are concerned that vigorous enforcement of trademark rights against parodists or others who exploit the popular linguistic and cultural associations of famous trademarks will curtail freedom of speech. See, e.g., Rochelle Cooper Dreyfuss, We Are Symbols and Inhabit Symbols, So Should We Be Paying Rent? Deconstructing the Lanham Act and Rights of Publicity, 20 COLUM.-VLA J. L. & ARTS 123 (1996); Alex Kozinski, Trademarks Unplugged, 68 NYU L. REV. 960 (1993); Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in The Pepsi Generation, 65 NOTRE DAME L. REV. 397 (1990); Robert Denicola, Trademarks as Speech: Constitutional Implications of the Emerging Rationales for the Protection of Trade Symbols, 1982 WIS. L. REV. 158. With respect to patent law, there are significant scholarly and popular press objections to patents on software programs, particularly business applications programs. See, e.g., Pamela Samuelson, Benson Revisited: The Case Against Patent Protection for Algorithms and Other Computer Related Inventions, 39 EMORY L.J. 1205 (1990); Richard Morin, Freedom to Program, UNIX REVIEW, May 1, 1995, at 79; Michael J. Miller, Software Patents Must Go, PC MAGAZINE, March 15, 1994, at 79.
16. "User rights" challenges to other branches of intellectual property law appear to be more discretely targeted than the current broad-based attacks on copyright. For example, with respect to trademark law, some commentators are concerned that vigorous enforcement of trademark rights against parodists or others who exploit the popular linguistic and cultural associations of famous trademarks will curtail freedom of speech. See, e.g., Rochelle Cooper Dreyfuss, We Are Symbols and Inhabit Symbols, So Should We Be Paying Rent? Deconstructing the Lanham Act and Rights of Publicity, 20 COLUM.-VLA J. L. & ARTS 123 (1996); Alex Kozinski, Trademarks Unplugged, 68 NYU L. REV. 960 (1993); Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in The Pepsi Generation, 65 NOTRE DAME L. REV. 397 (1990); Robert Denicola, Trademarks as Speech: Constitutional Implications of the Emerging Rationales for the Protection of Trade Symbols, 1982 WIS. L. REV. 158. With respect to patent law, there are significant scholarly and popular press objections to patents on software programs, particularly business applications programs. See, e.g., Pamela Samuelson, Benson Revisited: The Case Against Patent Protection for Algorithms and Other Computer Related Inventions, 39 EMORY L.J. 1205 (1990); Richard Morin, Freedom to Program, UNIX REVIEW, May 1, 1995, at 79; Michael J. Miller, Software Patents Must Go, PC MAGAZINE, March 15, 1994, at 79.
17. "User rights" challenges to other branches of intellectual property law appear to be more discretely targeted than the current broad-based attacks on copyright. For example, with respect to trademark law, some commentators are concerned that vigorous enforcement of trademark rights against parodists or others who exploit the popular linguistic and cultural associations of famous trademarks will curtail freedom of speech. See, e.g., Rochelle Cooper Dreyfuss, We Are Symbols and Inhabit Symbols, So Should We Be Paying Rent? Deconstructing the Lanham Act and Rights of Publicity, 20 COLUM.-VLA J. L. & ARTS 123 (1996); Alex Kozinski, Trademarks Unplugged, 68 NYU L. REV. 960 (1993); Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in The Pepsi Generation, 65 NOTRE DAME L. REV. 397 (1990); Robert Denicola, Trademarks as Speech: Constitutional Implications of the Emerging Rationales for the Protection of Trade Symbols, 1982 WIS. L. REV. 158. With respect to patent law, there are significant scholarly and popular press objections to patents on software programs, particularly business applications programs. See, e.g., Pamela Samuelson, Benson Revisited: The Case Against Patent Protection for Algorithms and Other Computer Related Inventions, 39 EMORY L.J. 1205 (1990); Richard Morin, Freedom to Program, UNIX REVIEW, May 1, 1995, at 79; Michael J. Miller, Software Patents Must Go, PC MAGAZINE, March 15, 1994, at 79.
18. "User rights" challenges to other branches of intellectual property law appear to be more discretely targeted than the current broad-based attacks on copyright. For example, with respect to trademark law, some commentators are concerned that vigorous enforcement of trademark rights against parodists or others who exploit the popular linguistic and cultural associations of famous trademarks will curtail freedom of speech. See, e.g., Rochelle Cooper Dreyfuss, We Are Symbols and Inhabit Symbols, So Should We Be Paying Rent? Deconstructing the Lanham Act and Rights of Publicity, 20 COLUM.-VLA J. L. & ARTS 123 (1996); Alex Kozinski, Trademarks Unplugged, 68 NYU L. REV. 960 (1993); Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in The Pepsi Generation, 65 NOTRE DAME L. REV. 397 (1990); Robert Denicola, Trademarks as Speech: Constitutional Implications of the Emerging Rationales for the Protection of Trade Symbols, 1982 WIS. L. REV. 158. With respect to patent law, there are significant scholarly and popular press objections to patents on software programs, particularly business applications programs. See, e.g., Pamela Samuelson, Benson Revisited: The Case Against Patent Protection for Algorithms and Other Computer Related Inventions, 39 EMORY L.J. 1205 (1990); Richard Morin, Freedom to Program, UNIX REVIEW, May 1, 1995, at 79; Michael J. Miller, Software Patents Must Go, PC MAGAZINE, March 15, 1994, at 79.
19. "User rights" challenges to other branches of intellectual property law appear to be more discretely targeted than the current broad-based attacks on copyright. For example, with respect to trademark law, some commentators are concerned that vigorous enforcement of trademark rights against parodists or others who exploit the popular linguistic and cultural associations of famous trademarks will curtail freedom of speech. See, e.g., Rochelle Cooper Dreyfuss, We Are Symbols and Inhabit Symbols, So Should We Be Paying Rent? Deconstructing the Lanham Act and Rights of Publicity, 20 COLUM.-VLA J. L. & ARTS 123 (1996); Alex Kozinski, Trademarks Unplugged, 68 NYU L. REV. 960 (1993); Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in The Pepsi Generation, 65 NOTRE DAME L. REV. 397 (1990); Robert Denicola, Trademarks as Speech: Constitutional Implications of the Emerging Rationales for the Protection of Trade Symbols, 1982 WIS. L. REV. 158. With respect to patent law, there are significant scholarly and popular press objections to patents on software programs, particularly business applications programs. See, e.g., Pamela Samuelson, Benson Revisited: The Case Against Patent Protection for Algorithms and Other Computer Related Inventions, 39 EMORY L.J. 1205 (1990); Richard Morin, Freedom to Program, UNIX REVIEW, May 1, 1995, at 79; Michael J. Miller, Software Patents Must Go, PC MAGAZINE, March 15, 1994, at 79.
20. For example, authors enjoy the exclusive right to reproduce their works in copies, but copying for criticism, comment or parody will be exempted if the fair use criteria are met. See 17 U.S.C. sec. 107. Similarly, authors enjoy exclusive rights of public performance, but performances that fit the criteria of section 110 will benefit from specific exemptions (some justified by the nonprofit educational character of the performances, others understandable only as pork barrel concessions). Compare 17 U.S.C. §§ 110(1) (classroom performances) and 110(2) (distance learning) with 110(6) (horticultural fairs) and 110(10) (social functions of veterans' organizations).
21. See, e.g., the American Library Association Office for Information Technology Policy Library Bill of Rights (visited 11/22/97) ("Users should not be restricted or denied access for expressing or receiving constitutionally protected speech ... Although electronic systems may include distinct property rights and security concerns, such elements may not be employed as a subterfuge to deny users' access to information.") 〈http://www.ala.org/otip/ ebillrits.html〉; the Home Recording Rights Coalition's mission statement on its homepage (visited 11/22/97): "The HRRC is a coalition of consumers, consumer groups, trade associations, retailers and consumer electronics manufacturers, dedicated to preserving your right to purchase and use home audio and video recording products for noncommercial purposes. HRRC was founded in 1981 . . and [s]ince then, the HRRC has supported to the consumer's "Right to Tape" and "The Right to Rent." 〈http:// www.hrrc.org〉; A Cyberspace Independence Declaration, posted on the Electronic Frontier Foundations publications page (visited 11/22/97) ("Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are based on matter. There is no matter here.") 〈http/ /eff.org/pub/Publications/John_Perry_Barlow/barlow_0296.declaration).
22. See, e.g., the American Library Association Office for Information Technology Policy Library Bill of Rights (visited 11/22/97) ("Users should not be restricted or denied access for expressing or receiving constitutionally protected speech ... Although electronic systems may include distinct property rights and security concerns, such elements may not be employed as a subterfuge to deny users' access to information.") 〈http://www.ala.org/otip/ ebillrits.html〉; the Home Recording Rights Coalition's mission statement on its homepage (visited 11/22/97): "The HRRC is a coalition of consumers, consumer groups, trade associations, retailers and consumer electronics manufacturers, dedicated to preserving your right to purchase and use home audio and video recording products for noncommercial purposes. HRRC was founded in 1981 . . and [s]ince then, the HRRC has supported to the consumer's "Right to Tape" and "The Right to Rent." 〈http:// www.hrrc.org〉; A Cyberspace Independence Declaration, posted on the Electronic Frontier Foundations publications page (visited 11/22/97) ("Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are based on matter. There is no matter here.") 〈http/ /eff.org/pub/Publications/John_Perry_Barlow/barlow_0296.declaration).
23. See, e.g., the American Library Association Office for Information Technology Policy Library Bill of Rights (visited 11/22/97) ("Users should not be restricted or denied access for expressing or receiving constitutionally protected speech ... Although electronic systems may include distinct property rights and security concerns, such elements may not be employed as a subterfuge to deny users' access to information.") 〈http://www.ala.org/otip/ ebillrits.html〉; the Home Recording Rights Coalition's mission statement on its homepage (visited 11/22/97): "The HRRC is a coalition of consumers, consumer groups, trade associations, retailers and consumer electronics manufacturers, dedicated to preserving your right to purchase and use home audio and video recording products for noncommercial purposes. HRRC was founded in 1981 . . and [s]ince then, the HRRC has supported to the consumer's "Right to Tape" and "The Right to Rent." 〈http:// www.hrrc.org〉; A Cyberspace Independence Declaration, posted on the Electronic Frontier Foundations publications page (visited 11/22/97) ("Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are based on matter. There is no matter here.") 〈http/ /eff.org/pub/Publications/John_Perry_Barlow/barlow_0296.declaration).
24. Pierre N. Leval, Fair Use or Foul, 36 J. COPYRIGHT SOC'Y U.S.A. 167 (1989); Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105 (1990); the Supreme Court adopted Judge Leval's "transformative use" formulation in Campbell v. Acuff-Music Inc., 510 U.S. 569, 579 (1994).
25. Pierre N. Leval, Fair Use or Foul, 36 J. COPYRIGHT SOC'Y U.S.A. 167 (1989); Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105 (1990); the Supreme Court adopted Judge Leval's "transformative use" formulation in Campbell v. Acuff-Music Inc., 510 U.S. 569, 579 (1994).
26. Pierre N. Leval, Fair Use or Foul, 36 J. COPYRIGHT SOC'Y U.S.A. 167 (1989); Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105 (1990); the Supreme Court adopted Judge Leval's "transformative use" formulation in Campbell v. Acuff-Music Inc., 510 U.S. 569, 579 (1994).
27. See, e.g., James Boyle, Overregulating the Internet, WASH. TIMES, Nov. 14, 1995 at A17, Niva Elkin-Koren, Copyright Law and Social Dialogue on the Information Superhighway, 13 CARDOZO ARTS & ENT. L.J. 345 (1995); See also, Diane Zimmerman, Copyright in Cyberspace: Don't Throw Out the Public Interest with the Bath Water, 1994 ANN. SURV. AM. L. 403.
28. See, e.g., James Boyle, Overregulating the Internet, WASH. TIMES, Nov. 14, 1995 at A17, Niva Elkin-Koren, Copyright Law and Social Dialogue on the Information Superhighway, 13 CARDOZO ARTS & ENT. L.J. 345 (1995); See also, Diane Zimmerman, Copyright in Cyberspace: Don't Throw Out the Public Interest with the Bath Water, 1994 ANN. SURV. AM. L. 403.
29. See, e.g., James Boyle, Overregulating the Internet, WASH. TIMES, Nov. 14, 1995 at A17, Niva Elkin-Koren, Copyright Law and Social Dialogue on the Information Superhighway, 13 CARDOZO ARTS & ENT. L.J. 345 (1995); See also, Diane Zimmerman, Copyright in Cyberspace: Don't Throw Out the Public Interest with the Bath Water, 1994 ANN. SURV. AM. L. 403.
30. See, e.g., Eugene Volokh, Cheap Speech, 104 YALE L. J. 1805 (1995); The Copyright Grab, supra note 3.
31. See, e.g., Eugene Volokh, Cheap Speech, 104 YALE L. J. 1805 (1995); The Copyright Grab, supra note 3.
32. U.S. Const., art. I, § 8, cl. 8.
33. See, e.g., FEDERALIST No. 43 (Madison) ("The public good fully coincides in both cases [copyright and patent] with the claims of individuals.")
34. JOHN DONNE, DEVOTIONS UPON EMERGENT OCCASIONS No. XVII (John Carey ed. Oxford University Press 1990) at 344.
35. For a discussion of authors' debt to their predecessors, see, e.g., Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990).
36. See, e.g., Nichlos v. Universal Pictures, 45 F.2d 119 (2d Cir. 1930) (L. Hand, J.).
37. See, e.g., A LAW OF USERS' RIGHTS at 19-20; PAUL GOLDSTEIN, COPYRIGHT'S HIGHWAY, THE LAW AND LORE OF COPYRIGHT FROM GUTENBERG TO THE CELESTIAL JUKEBOX 39-41 (1994) [hereinafter, COPYRIGHT'S HIGHWAY].
38. See, e.g., A LAW OF USERS' RIGHTS at 19-20; PAUL GOLDSTEIN, COPYRIGHT'S HIGHWAY, THE LAW AND LORE OF COPYRIGHT FROM GUTENBERG TO THE CELESTIAL JUKEBOX 39-41 (1994) [hereinafter, COPYRIGHT'S HIGHWAY].
39. See, Kalem Co. v. Harper Brothers, 222 U.S. 55 (1911) (film version of novel "Ben Hur"); 1909 Copyright Act, 17 U.S.C. § 1 (e) (bringing mechanical reproduction of musical compositions within the scope of copyright).
40. See, White-Smith Music Publishing v. Apollo Co., 209 U. S. 1 (1908) (pianola rolls); Fortnightly Corp. v. United Artists Television, Inc. 392 U.S. 390 (1968) (cable retransmissions); TelePrompTer Corp. v. Columbia Broadcasting System, Inc., 415 U.S. 394 (1974) (cable retransmissions); Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) (video tape recorders). See generally, COPYRIGHT'S HIGHWAY, supra note 18, at 65-67, 89-90, 125, 149-58 (reviewing the cases).
41. See, White-Smith Music Publishing v. Apollo Co., 209 U. S. 1 (1908) (pianola rolls); Fortnightly Corp. v. United Artists Television, Inc. 392 U.S. 390 (1968) (cable retransmissions); TelePrompTer Corp. v. Columbia Broadcasting System, Inc., 415 U.S. 394 (1974) (cable retransmissions); Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) (video tape recorders). See generally, COPYRIGHT'S HIGHWAY, supra note 18, at 65-67, 89-90, 125, 149-58 (reviewing the cases).
42. See, White-Smith Music Publishing v. Apollo Co., 209 U. S. 1 (1908) (pianola rolls); Fortnightly Corp. v. United Artists Television, Inc. 392 U.S. 390 (1968) (cable retransmissions); TelePrompTer Corp. v. Columbia Broadcasting System, Inc., 415 U.S. 394 (1974) (cable retransmissions); Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) (video tape recorders). See generally, COPYRIGHT'S HIGHWAY, supra note 18, at 65-67, 89-90, 125, 149-58 (reviewing the cases).
43. See, White-Smith Music Publishing v. Apollo Co., 209 U. S. 1 (1908) (pianola rolls); Fortnightly Corp. v. United Artists Television, Inc. 392 U.S. 390 (1968) (cable retransmissions); TelePrompTer Corp. v. Columbia Broadcasting System, Inc., 415 U.S. 394 (1974) (cable retransmissions); Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) (video tape recorders). See generally, COPYRIGHT'S HIGHWAY, supra note 18, at 65-67, 89-90, 125, 149-58 (reviewing the cases).
44. See, White-Smith Music Publishing v. Apollo Co., 209 U. S. 1 (1908) (pianola rolls); Fortnightly Corp. v. United Artists Television, Inc. 392 U.S. 390 (1968) (cable retransmissions); TelePrompTer Corp. v. Columbia Broadcasting System, Inc., 415 U.S. 394 (1974) (cable retransmissions); Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) (video tape recorders). See generally, COPYRIGHT'S HIGHWAY, supra note 18, at 65-67, 89-90, 125, 149-58 (reviewing the cases).
45. I owe this observation to Prof. Pierre Sirinelli, Dean of the Faculty of Law, Université de Paris-Sud, who offered a similar analysis in the context of digital-era challenges to French copyright law.
46. See, e.g., David Lange, At Play in the Field of Words: Copyright and Construction of Authorship in the Post-Literate Millennium, 55 L. & CONTEMP. PROBS. 139 (1992) (arguing that if intellectual property survives, it will no longer lend itself to a romantic construction of authorship for the purposes of suppressing speech) [hereinafter, Authorship in the Post-Literate Millennium]. Some critics take the somewhat less radical position that copyright need not die, but that it must be revised to reflect the reality of a pluralistic authorship process. See, e.g, Peter Jaszi, On the Author Effect: Contemporary Copyright and Collective Creativity, 10 CARDOZO ARTS & ENT. L.J. 293 (1992) (arguing that the notion of romantic authorship on which copyright law is based fails to reflect the reality of contemporary polyvocal writing) [hereinafter, On the Author Effect]. See also Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 307 n.97 (1996) (listing - but disagreeing with - several copyright and literature scholars who "assert that a misguided natural rights approach, together with vestiges of nineteenth-century Romanticism, has pushed copyright in the direction of a full common law property right that is immune from claims of public access.").
47. See, e.g., David Lange, At Play in the Field of Words: Copyright and Construction of Authorship in the Post-Literate Millennium, 55 L. & CONTEMP. PROBS. 139 (1992) (arguing that if intellectual property survives, it will no longer lend itself to a romantic construction of authorship for the purposes of suppressing speech) [hereinafter, Authorship in the Post-Literate Millennium]. Some critics take the somewhat less radical position that copyright need not die, but that it must be revised to reflect the reality of a pluralistic authorship process. See, e.g, Peter Jaszi, On the Author Effect: Contemporary Copyright and Collective Creativity, 10 CARDOZO ARTS & ENT. L.J. 293 (1992) (arguing that the notion of romantic authorship on which copyright law is based fails to reflect the reality of contemporary polyvocal writing) [hereinafter, On the Author Effect]. See also Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 307 n.97 (1996) (listing - but disagreeing with - several copyright and literature scholars who "assert that a misguided natural rights approach, together with vestiges of nineteenth-century Romanticism, has pushed copyright in the direction of a full common law property right that is immune from claims of public access.").
48. See, e.g., David Lange, At Play in the Field of Words: Copyright and Construction of Authorship in the Post-Literate Millennium, 55 L. & CONTEMP. PROBS. 139 (1992) (arguing that if intellectual property survives, it will no longer lend itself to a romantic construction of authorship for the purposes of suppressing speech) [hereinafter, Authorship in the Post-Literate Millennium]. Some critics take the somewhat less radical position that copyright need not die, but that it must be revised to reflect the reality of a pluralistic authorship process. See, e.g, Peter Jaszi, On the Author Effect: Contemporary Copyright and Collective Creativity, 10 CARDOZO ARTS & ENT. L.J. 293 (1992) (arguing that the notion of romantic authorship on which copyright law is based fails to reflect the reality of contemporary polyvocal writing) [hereinafter, On the Author Effect]. See also Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 307 n.97 (1996) (listing - but disagreeing with - several copyright and literature scholars who "assert that a misguided natural rights approach, together with vestiges of nineteenth-century Romanticism, has pushed copyright in the direction of a full common law property right that is immune from claims of public access.").
49. Authorship in the Post-Literate Millennium, supra note 22,
50. at 143 citing Michel Foucault, What is the Author? (Donald F. Bouchard & Sherry Simon, trans.) in ROBERT C. DAVIS & RONALD SCHLEIFER, CONTEMPORARY LITERARY CRITICISM: LITERARY AND CULTURAL STUDIES 274 (Longman, 1989).
51. On the Author Effect, supra note 22, at 302.
52. See, e.g., Martha Woodmansee, On the Author Effect: Recovering Collectivity, 10 CARDOZO ARTS & ENT. L.J. 279 (1992).
53. But not necessarily so, see discussion infra of copyright ownership and the amazon.com serial novella.
54. See, e.g., The Middling (and Unloved) in Publishing Land, N.Y. TIMES, Aug 18., 1997, at D1, ("Cutbacks in the number of books are a sobering reality for authors who began their careers in the 1960's still believing that there was a social contract with publishers who would nurture them through lean times until they bloomed into best-selling authors ... William Faulkner and John Irving had modest sales at the starts of their careers . . ."). For the same observation in the trade press, see PUBLISHERS WEEKLY, June 5, 1995 at 38.
55. See, e.g., The Corporatization of Publishing: Books are Becoming like Everything Else the Mass Media Turn To, THE NATION, June 2, 1996, at 29; The Literary-Industrial Complex: How the Corporate Mentality Has Undermined the Profession of Publishing, THE NEW REPUBLIC, June 8, 1997.
56. See, e.g., The Corporatization of Publishing: Books are Becoming like Everything Else the Mass Media Turn To, THE NATION, June 2, 1996, at 29; The Literary-Industrial Complex: How the Corporate Mentality Has Undermined the Profession of Publishing, THE NEW REPUBLIC, June 8, 1997.
57. "He who can, does. He who cannot, teaches." GEORGE BERNARD SHAW, MAN AND SUPERMAN, Maxims for Revolutionists (1903), in BERNARD SHAW, FOUR PLAYS 485 (Washington Square ed. 1965).
58. "He who can, does. He who cannot, teaches." GEORGE BERNARD SHAW, MAN AND SUPERMAN, Maxims for Revolutionists (1903), in BERNARD SHAW, FOUR PLAYS 485 (Washington Square ed. 1965).
59. Hugh C. Hansen, International Copyright: An Unorthodox Analysis, 29 VAND. J. TRANSNAT'L L. 579, 583-84 (1996).
60. Michiko Kakutani, Never-Ending Saga, N.Y. TIMES SUNDAY MAGAZINE, Sept. 28, 1997 at 40, 41.
61. Interview with Lisa Lewis, marketing, amazon.com, October 15, 1997. Cf. Jane C. Ginsburg, Putting Cars on the "Information Superhighway": Authors, Exploiters and Copyright in Cyberspace, 95 COLUM. L. REV. 1466, 1469-74 (1995)(posing hypothetical of author who initiates a mystery story on her website and invites participants to continue the story, and raising questions of copyright ownership in the result; life imitates law review article).
62. www.webcom.com/registry/ (visited 11/22/97).
63. See, e.g., Art. L122-5, "Code de la propriété intellectuelle," J.O. 3 Jul. 1992, as last amended by Laws Nos. 94-361 of May 10, 1994, and 95-4 of Jan. 3, 1995 (France), translated in Industrial Property and Copyright: Monthly Review of the World Intellectual Property Organization (hereinafter, IPC WIPO) (September 1995); Art. 53 "Urheberrechtsgesetz," BGGl I pg. 1,273, as last amended by the law of July 19, 1996 (Germany), translated in IPC WIPO (April 1997); Art 31 "Ley de propiedad intelectual," B.O. 17 Nov. 1987, as last amended by law No. 43/1884 of Dec. 30, 1994 (Spain), translated in IPC WIPO (October 1995).
64. See 17 U.S.C. §§ 1001 et seq.
65. Sony Corp. of America, 464 U.S. 417.
66. See, e.g., Pierre N. Leval, Nimmer Lecture: Fair Use Rescued, 44 UCLA L. REV. 1449, 1457-58 (1997).
67. See, e.g., Wendy Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and its Predecessors, 82 COLUM. L. REV. 1600 (1982).
68. Sony Corp. of America, 464 U.S. at 448 n.31 and 445 n.40.
69. Thanks to Jacqueline Ewenstein for coining the term "place shifting."
70. See, Joel Brinkley, It's a Made for Television Controversy, N.Y. TIMES, Oct. 15, 1997 at D1, col 2.
71. See, 17 U.S.C. §§ 106(3), 109(a).
72. Outside of the context of private performances of the work, in which the copyright law entitles users to engage, see 17 U.S.C. § 106(4).
73. Cf. DVD ($25 for unlimited playback) vs. Divx ($5 for one playback; subsequent playbacks for a fee). See, N.Y. TIMES, Oct. 15, 1997, supra note 41.
74. Berne Convention for the Protection of Literary and Artistic Works, art. 9.2. The WIPO Copyright Treaty [WCT], concluded in December 1996 and awaiting ratification, generalizes art. 9.2 to all rights under copyright, not just the reproduction right See, WCT, art. 10.
75. See, e.g., American Geophysical v. Texaco, 60 F.3d 913, 937 (2nd Cir. 1994) (Jacobs, J., dissenting); Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381, 1407-8 (6th Cir. 1996) (Ryan, J. dissenting); Amy Groves, Princeton University Press v. Michigan Document Services, Inc.: The Sixth Circuit Frustrates the Constitutional Purpose of Copyright and the Fair Use Doctrine, 31 GA. L. REV. 325 (1996).
76. See, e.g., American Geophysical v. Texaco, 60 F.3d 913, 937 (2nd Cir. 1994) (Jacobs, J., dissenting); Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381, 1407-8 (6th Cir. 1996) (Ryan, J. dissenting); Amy Groves, Princeton University Press v. Michigan Document Services, Inc.: The Sixth Circuit Frustrates the Constitutional Purpose of Copyright and the Fair Use Doctrine, 31 GA. L. REV. 325 (1996).
77. See, e.g., American Geophysical v. Texaco, 60 F.3d 913, 937 (2nd Cir. 1994) (Jacobs, J., dissenting); Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381, 1407-8 (6th Cir. 1996) (Ryan, J. dissenting); Amy Groves, Princeton University Press v. Michigan Document Services, Inc.: The Sixth Circuit Frustrates the Constitutional Purpose of Copyright and the Fair Use Doctrine, 31 GA. L. REV. 325 (1996).
78. Campbell, 510 U.S. at 592.
79. See, e.g, Left Out, supra note 3, at 240.("Theses of media imperialism invariably ignore the creative work people do in reception of media work, and the transformation of meaning effected in practices of interpretive recording and reworking of commodified texts.")
80. Campbell 510 U.S. at 582, 595. Justice Souter went on to suggest, in n. 10, that a transformative work whose economic impact on plaintiff's work is too prejudicial to qualify as a fair use might nonetheless continue to be disseminated subject to payment of a court-fashioned license fee. Id. at 578, n. 10.
81. Robert Merges, The End of Friction? Property Rights and Contract in the "Newtonian" World of On-line Commerce, 12 BERKELEY TECH. L.J., 115, 134-35 (1997) . See also Jane C. Ginsburg, Libraries Without Walls? Speculations on Literary Property in the Library of the Future, 42 REPRESENTATIONS 53, 63-64 (1993).
82. Robert Merges, The End of Friction? Property Rights and Contract in the "Newtonian" World of On-line Commerce, 12 BERKELEY TECH. L.J., 115, 134-35 (1997) . See also Jane C. Ginsburg, Libraries Without Walls? Speculations on Literary Property in the Library of the Future, 42 REPRESENTATIONS 53, 63-64 (1993).
83. See, Merges, supra note 50, at 134-35.
84. Thomas B. Macaulay, Speech before the House of Commons (Feb. 5, 1841) in VIII THE WORKS OF LORD MACAULAY 195, 201 (Trevelyan, ed. 1879). That same day, however, Lord Macaulay also declared, "The advantages arising from a system of copyright are obvious. It is desirable that we should have a supply of good books: we cannot have such a supply unless men of letters are liberally remunerated; and the least objectionable way of remunerating them is by means of copyright." Speech before the House of Commons (Feb. 5, 1841, reprinted in MACAULAY, PROSE AND POETRY 733-34 (G. Young ed. 1952).
85. Note that the Supreme Court in Sony did not purport to address the fair use status of copies that VTR users would retain; the court's analysis concerned only deferred access to the "freely broadcast" work. Nor has a work's accessibility in other contexts carried with it a right to copy. For example, J.D. Salinger's uninvited biographer had access to Salinger's unpublished letters that recipients had deposited in libraries. Salinger did not authorize copying from the letters, and the Second Circuit held that, despite the letters' availability for public perusal, the incorporation of extensive quotations was not fair use. Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987), cert. denied, 484 U.S. 890 (1987).
86. See, e.g., http://www.mtersurf.com/~beam/temple/temple.html ("The graphics . . . in this page were obtained from public sources on the Internet, therefore this page is given back to the public domain from which it came.") (visited 12/3/97); http://www.cruzng.com/marilyn/marilyn.htm ("all the images contained in this tribute are believed to be in the public domain, if there are any images where this is not the case please notify me and they will be promptly removed.") (visited 12/1/97); http://mozart.lib.uchicago.edu/marilyn/about.html (" . . . I have scanned and edited [the images] all myself . . .) (visited 12/1/97). See also, http://sd02.znet.com/ bogart/ ("[O]n April 1, 1996, I removed from this site all images and sound clips from the 50 Bogart movies owned by Turner Broadcasting System and its subsidiary, Turner Entertainment Company (TEC), at the request of Turner's attorneys. After numerous attempts to secure permission to restore the materials to the site failed, on January 19, 1997, I decided to put them back up. Why? It is now my opinion that their inclusion in this site falls within the Fair Use statute of the U.S. Copyright Act.")(emphasis in original)(visited 12/2/97).
87. See, e.g., http://www.mtersurf.com/~beam/temple/temple.html ("The graphics . . . in this page were obtained from public sources on the Internet, therefore this page is given back to the public domain from which it came.") (visited 12/3/97); http://www.cruzng.com/marilyn/marilyn.htm ("all the images contained in this tribute are believed to be in the public domain, if there are any images where this is not the case please notify me and they will be promptly removed.") (visited 12/1/97); http://mozart.lib.uchicago.edu/marilyn/about.html (" . . . I have scanned and edited [the images] all myself . . .) (visited 12/1/97). See also, http://sd02.znet.com/ bogart/ ("[O]n April 1, 1996, I removed from this site all images and sound clips from the 50 Bogart movies owned by Turner Broadcasting System and its subsidiary, Turner Entertainment Company (TEC), at the request of Turner's attorneys. After numerous attempts to secure permission to restore the materials to the site failed, on January 19, 1997, I decided to put them back up. Why? It is now my opinion that their inclusion in this site falls within the Fair Use statute of the U.S. Copyright Act.")(emphasis in original)(visited 12/2/97).
88. See, e.g., http://www.mtersurf.com/~beam/temple/temple.html ("The graphics . . . in this page were obtained from public sources on the Internet, therefore this page is given back to the public domain from which it came.") (visited 12/3/97); http://www.cruzng.com/marilyn/marilyn.htm ("all the images contained in this tribute are believed to be in the public domain, if there are any images where this is not the case please notify me and they will be promptly removed.") (visited 12/1/97); http://mozart.lib.uchicago.edu/marilyn/about.html (" . . . I have scanned and edited [the images] all myself . . .) (visited 12/1/97). See also, http://sd02.znet.com/ bogart/ ("[O]n April 1, 1996, I removed from this site all images and sound clips from the 50 Bogart movies owned by Turner Broadcasting System and its subsidiary, Turner Entertainment Company (TEC), at the request of Turner's attorneys. After numerous attempts to secure permission to restore the materials to the site failed, on January 19, 1997, I decided to put them back up. Why? It is now my opinion that their inclusion in this site falls within the Fair Use statute of the U.S. Copyright Act.")(emphasis in original)(visited 12/2/97).
89. See, e.g., http://www.mtersurf.com/~beam/temple/temple.html ("The graphics . . . in this page were obtained from public sources on the Internet, therefore this page is given back to the public domain from which it came.") (visited 12/3/97); http://www.cruzng.com/marilyn/marilyn.htm ("all the images contained in this tribute are believed to be in the public domain, if there are any images where this is not the case please notify me and they will be promptly removed.") (visited 12/1/97); http://mozart.lib.uchicago.edu/marilyn/about.html (" . . . I have scanned and edited [the images] all myself . . .) (visited 12/1/97). See also, http://sd02.znet.com/ bogart/ ("[O]n April 1, 1996, I removed from this site all images and sound clips from the 50 Bogart movies owned by Turner Broadcasting System and its subsidiary, Turner Entertainment Company (TEC), at the request of Turner's attorneys. After numerous attempts to secure permission to restore the materials to the site failed, on January 19, 1997, I decided to put them back up. Why? It is now my opinion that their inclusion in this site falls within the Fair Use statute of the U.S. Copyright Act.")(emphasis in original)(visited 12/2/97).
90. See, e.g., http://www.quarsarcom.com/lady/schiffer/schiffer.html, a webpage featuring pictures of super model Claudia Schiffer, offering the disclaimer: "All images have been acquired through the Internet, I assume no responsibility for their origin. If one of your images are on our homepages, please feel free to Email details and images will be removed if deemed necessary." (visited 11/22/97); http:/www.jimsplace.com/jim/dm.htm, a gallery of Demi Moore photographs with the disclaimer: "All pictures were found on the internet or usenet and are presented for your viewing pleasure. If any are a copyright violation would the copyright holder please inform me at jk@thewebdepot.com and I will remove them immediately." (visited 11/23/ 97).
91. See, e.g., http://www.quarsarcom.com/lady/schiffer/schiffer.html, a webpage featuring pictures of super model Claudia Schiffer, offering the disclaimer: "All images have been acquired through the Internet, I assume no responsibility for their origin. If one of your images are on our homepages, please feel free to Email details and images will be removed if deemed necessary." (visited 11/22/97); http:/www.jimsplace.com/jim/dm.htm, a gallery of Demi Moore photographs with the disclaimer: "All pictures were found on the internet or usenet and are presented for your viewing pleasure. If any are a copyright violation would the copyright holder please inform me at jk@thewebdepot.com and I will remove them immediately." (visited 11/23/ 97).
92. Accord, Douglas Baird, Changing Technology and Unchanging Doctrine: Sony Corporation v. Universal Studios Inc., 1984 S.CT. REV. 237.
93. Oral Argument for Readers Digest Assoc., Inc, Plaintiff-Appellee Cross Appellant, Harper & Row, Publishers, Inc. v. Nation Enterprises, 723 F.2d 195 (2d. Cir. 1983), September 14, 1983; Record at 28, lines 19-22. ("The freedom of speech which we cherish is the freedom to make our own speech but not the freedom merely to copy someone else's and the question is doesn't that restrict the press, you ask?")
94. Although some user rights advocates find this kind of information pernicious. See, e.g., A LAW OF USERS' RIGHTS, supra note 5, at 182-186. See also, The Copyright Grab, supra note 3, at 191; Peter Jaszi, Caught in the Net of Copyright, 15 OR. L. REV. 299, 299-300 (criticizing National Information Infrastructure White Paper proposal to educate school children about Copyright law); Mark A. Lemley, Copyright Owners' Rights and Users' Privileges on the Internet: Dealing with Overlapping Copyrights on the Internet, 22 DAYTON L. REV. 547, 577 n.185 (1997) (agreeing with Jaszi that the NII proposal "smacks . . . of a program of mind control.")
95. Although some user rights advocates find this kind of information pernicious. See, e.g., A LAW OF USERS' RIGHTS, supra note 5, at 182-186. See also, The Copyright Grab, supra note 3, at 191; Peter Jaszi, Caught in the Net of Copyright, 15 OR. L. REV. 299, 299-300 (criticizing National Information Infrastructure White Paper proposal to educate school children about Copyright law); Mark A. Lemley, Copyright Owners' Rights and Users' Privileges on the Internet: Dealing with Overlapping Copyrights on the Internet, 22 DAYTON L. REV. 547, 577 n.185 (1997) (agreeing with Jaszi that the NII proposal "smacks . . . of a program of mind control.")
96. Although some user rights advocates find this kind of information pernicious. See, e.g., A LAW OF USERS' RIGHTS, supra note 5, at 182-186. See also, The Copyright Grab, supra note 3, at 191; Peter Jaszi, Caught in the Net of Copyright, 15 OR. L. REV. 299, 299-300 (criticizing National Information Infrastructure White Paper proposal to educate school children about Copyright law); Mark A. Lemley, Copyright Owners' Rights and Users' Privileges on the Internet: Dealing with Overlapping Copyrights on the Internet, 22 DAYTON L. REV. 547, 577 n.185 (1997) (agreeing with Jaszi that the NII proposal "smacks . . . of a program of mind control.")
97. Although some user rights advocates find this kind of information pernicious. See, e.g., A LAW OF USERS' RIGHTS, supra note 5, at 182-186. See also, The Copyright Grab, supra note 3, at 191; Peter Jaszi, Caught in the Net of Copyright, 15 OR. L. REV. 299, 299-300 (criticizing National Information Infrastructure White Paper proposal to educate school children about Copyright law); Mark A. Lemley, Copyright Owners' Rights and Users' Privileges on the Internet: Dealing with Overlapping Copyrights on the Internet, 22 DAYTON L. REV. 547, 577 n.185 (1997) (agreeing with Jaszi that the NII proposal "smacks . . . of a program of mind control.")
98. Article 12 of the WIPO Copyright Treaty would oblige member states to protect copyright management information that authors and copyright owners include with their works. Legislation is now pending in Congress to implement this requirement. See, e.g., H.R. 2281, 105th Cong., 1st sess. (1997).
99. Article 11 of the WIPO Copyright Treaty obliges member countries to protect against the circumvention of technological measures used by authors to protect their copyrights. Legislation is now pending in Congress to implement anti-circumvention protection, see, e.g., H.R. 2281, supra, note 59.