Internet service provider liability for subscriber copyright infringement, enterprise liability, and the first amendment

Georgetown Law Journal

Volumn 88, Issue 6, 2000, Pages 1833-1892

  Yen, Alfred C ^a  

^a BOSTON COLLEGE   (United States)

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EID: 23044517751     PISSN: 00168092     EISSN: None     Source Type: Journal    
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References (317)

1. The Internet is a large network of linked computers whose operators cooperate to allow information to pass among them. See generally Reno v. American Civil Liberties Union, 521 U.S. 844, 849-51 (1997) (describing the development and operation of the Internet); Religious Tech. Ctr. v. Netcom On-Line Communication Servs., Inc., 907 F. Supp. 1361, 1365 (N.D. Cal. 1995) (same); PRESTON GRALLA, HOW THE INTERNET WORKS 5-7 (Millenium ed. 1999) (same);
2. DANIEL J. KURLAND, THE 'NET, THE WEB, AND YOU 25-29 (1996) (same);
3. DAVE SPERLING, DAVE SFERLING'S INTERNET GUIDE 2-3 (2d ed. 1998) (same). Those who desire access generally connect to the Internet by using a modem to connect to a computer owned by an Internet Service Provider (ISP), who agrees to provide Internet access for a fee to the subscriber. See GRALLA, supra, at 49-55 (describing Internet connections).
4. See 17 U.S.C. § 106 (1994), amended by 17 U.S.C. § 106 (4)-(6) (Supp. IV 1998) (giving copyright holder the exclusive right to reproduce and distribute the copyrighted work).
5. See Lorrie Grant, Ads Click for Net Retailers, USA TODAY, Jan. 28, 1999, at 3B (containing statement of Jerry Kaplan, CEO of an Internet retailer, referring to cost advantages of doing business via the Internet "because we don't keep inventory, don't have a storefront, don't mail catalogs, and our order-taking process is done by computer").
6. See Marobie-FL, Inc. v. National Ass'n of Fire Equip. Distribs., 983 F. Supp. 1167, 1171 (N.D. Ill. 1997) (describing how defendant's uploading of plaintiff s copyrighted material to a web page made the files in question available for downloading by Internet users).
7. See Chas J. Hartman & Edward Stubenrauch, I Want My MP3: New Technology Sparks 1999 Debate, THE POST (May 27, 1999) 〈http://thepost.baker.ohiou.edu/archives2/052799/access01.html〉 (describing efforts of the recording industry to stop Internet copyright infringement).
8. See Kelly McCullom, How Aggressively Should Universities Enforce Copyright Law on Audio Files?, CHRON. OF HIGHER EDUC., Nov. 19, 1999, at A59 (describing efforts of the recording industry to stop Internet copyright infringement on campuses).
9. See Religious Tech. Ctr. v. Netcom On-Line Communication Servs., Inc., 907 F. Supp. 1361, 1365-66 (N.D. Cal. 1995) (stating that plaintiff contacted various parties to stop alleged copyright infringement before filing suit).
10. See McCullom, supra note 6 (describing the belief of students disciplined for copyright infringement that their actions were legal).
11. See Hartman & Stubenrauch, supra note 5 (describing the inability of copyright holders to detect most infringement on the Internet).
12. This article uses the term "Internet Service Provider" to signify a person or entity that provides customers basic access to the Internet. Such service generally consists of email, hosting of a web page, and the ability to "surf" the Internet. This article's analysis proceeds with the basic service described here in mind. In some cases, ISPs may provide subscribers with additional services such as web page authoring or assistance with business conducted over the Internet. Other service providers may provide customers with more limited services, like the simple uploading and downloading of files. The observations made about the potential copyright liability of ISPs may in many cases be applicable to those not offering basic service, but that is neither always nor necessarily the case. Much depends on the relationship between provider and subscriber and what the provider knows about its subscribers. See infra Part I.B. (describing the duties of ISPs under different theories of liability).
13. This article will refer to this sort of liability by using the shorthand "ISP liability" as a stand-in for "ISP liability for copyright infringement committed by subscribers." The most prominent supporter of ISP liability has been the Working Group on Intellectual Property Rights, which operated under President Clinton's Information Infrastructure Task Force. See WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS, INFORMATION INFRASTRUCTURE TASK FORCE, INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE 1-6, 114-24 (1995) [hereinafter WORKING GROUP] (describing the Working Group and advocating ISP liability). For articles supporting ISP liability, see, for example, Jane C. Ginsburg, Putting Cars on the "Information Superhighway": Authors, Exploiters, and Copyright in Cyberspace, 95 COLUM. L. REV. 1466, 1492-95 (1995) (mildly supporting the idea of ISP vicarious copyright liability);
14. Trotter Hardy, The Proper Legal Regime for "Cyberspace", 55 U. PITT. L. REV. 993, 1042-46 (1994) (advocating strict ISP liability);
15. John Carmichael, Comment, In Support of the White Paper: Why Online Service Providers Should Not Receive Immunity from Traditional Notions of Vicarious and Contributory Liability for Copyright Infringement, 16 LOY. L. A. ENT. L.J. 759, 771-85 (1996) (advocating vicarious and contributory ISP liability);
16. Kelly Tickle, Comment, The Vicarious Liability of Electronic Bulletin Board Operators for the Copyright Infringement Occurring on Their Bulletin Boards, 80 IOWA L. REV. 391, 416 (1995) (favoring limited ISP liability).
17. For arguments opposing liability, see, for example, Niva Elkin-Koren, Copyright Law and Social Dialogue on the Information Superhighway: The Case Against Copyright Liability of Bulletin Board Operators, 13 CARDOZO ARTS & ENT. L.J. 345, 399-410 (1995) (opposing ISP liability under existing copyright law).
18. See infra notes 129-32 and accompanying text for a description and discussion of enterprise liability.
19. See WORKING GROUP, supra note 11, at 117-18 (describing the unique ability of ISPs to spread costs among users).
20. See infra Part I.C.
21. See infra Part I.B.4 and notes 232-35 and accompanying text (discussing free speech, private censorship, and copyright).
22. Those against ISP liability sometimes point to cases that refuse to hold ISPs liable for libelous statements made by others. See Zeran v. America Online, Inc., 129 F.3d 327, 333-35 (4th Cir. 1997) (refusing to hold ISP liable for libelous statement posted to an America Online bulletin board); Blumenthal v. Drudge, 992 F. Supp. 44, 52-53 (D.D.C. 1998) (refusing to hold ISP liable for libelous story distributed over ISP's network). Although these results offer general support for the proposition that ISPs are not liable for the behavior of their subscribers, the specific basis for the decisions makes stronger conclusions impossible. Both Zeran and Drudge use section 230 of the Communications Decency Act of 1996 to absolve ISPs from liability for the libelous statements of others. That statute provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1) (Supp. II 1996). This language might shield ISPs from liability for subscriber copyright infringement as well. However, 47 U.S.C.A. § 230(e)(2) specifically states, "Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property." 47 U.S.C.A. § 230(e)(2) (West Supp. 1999). Nevertheless, the general philosophy motivating these decisions - namely, that the liability against ISPs for subscriber libel would result in undesirable censorship on the Internet-remains vitally important in assessing the desirability of ISP liability. See notes 198-203 and accompanying text.
23. See infra Part I.
24. See WORKING GROUP, supra note 11, at 114-24 (arguing that ISPs are in the best position to prevent copyright infringement and, therefore, must be held liable).
25. See supra note 11 (listing conflicting commentary).
26. 17 U.S.C. §§ 1201-1332 (Supp. IV 1998).
27. See infra Part II.A (describing and discussing the "safe harbor" provisions of the DMCA).
28. See infra Part II.B.
29. See Reno v. American Civil Liberties Union, 521 U.S. 844, 849-53 (1997) (describing the development and operation of the Internet); Religious Tech. Ctr. v. Netcom On-Line Communication Servs., Inc., 907 F. Supp. 1361, 1365 (N.D. Cal. 1995) (same); KURLAND, supra note 1, at 25-29 (same); SPERLING, supra note 1, at 2-3 (same).
30. See LEON SALVAIL ET AL., WEBMASTER'S GUIDE TO INTERNET SERVER CONNECTIVITY 20-25 (1996) (describing the advantages of direct connection).
31. See Reno, 521 U.S. at 849-53; KURLAND, supra note 1, at 201; SPERLING, supra note 1, at 5.
32. See Reno, 521 U.S. at 849-53; KURLAND, supra note 1, at 198-200; SPERLING, supra note 1, at 4.
33. Other pricing options include a charge for each minute connected to the ISP and a charge based upon the amount of traffic generated by the subscriber ("metered bandwidth"). See, e.g., SALVAIL ET AL., supra note 24, at 137, 169, 204 (describing ISP fees); SPERLING, supra note 1, at 5 (listing fees for different ISPs); America Online, Inc., AOL Pricing Plans (visited Jan. 28, 2000) 〈http://www.aol.com/ info/pricing.html〉;
34. EarthLink Network, Inc., EarthLink Dial-Up Internet Access Plans (visited Jan. 28, 2000) 〈http://www.earthlink.net/home/access/〉;
35. EarthLink Network, Inc., EarthLink Internet Access Plans (visited Jan. 28, 2000) 〈http://www.earthlink.net/business/access/〉;
36. Prodigy Communications Corp., Prodigy Internet Price Plans (visited Jan. 28, 2000) 〈http://www.prodigy.com/pcom/prodigy_ internet/pi_index.html〉.
37. "Hosting" the subscriber's web page means storing the information making up the web page on the ISP's computers and making that information available to those who "surf" the Internet. This in turn means duplicating the web pages and sending the relevant information to any person who requests it via the Internet. See Reno, 521 U.S. at 849-53; Marobie-FL, Inc. v. National Ass'n of Fire Equip. Distribs., 983 F. Supp. 1167, 1171-72 (N.D. Ill. 1997); SPERLING, supra note 1, at 49-50.
38. Other activities that might lead to copyright infringement include sending copyrighted material as an email attachment, downloading copyrighted material from other web pages, providing links to a web page that contains unauthorized copyrighted material, and framing or otherwise displaying a person's web page so as to alter its appearance. Each of these activities arguably constitutes copyright infringement because each activity requires either the duplication, distribution, or display of copyrighted material, and the copyright code reserves those rights to copyright holders. See 17 U.S.C. § 106 (1994), amended by 17 U.S.C. §§ 106(4)-(6) (Supp. IV 1998).
39. See Michael Leapman, Trade Digest, TIMES (LONDON), July 2, 1999, at 42 (describing copyright holder's attempts to prevent unauthorized use of the "Thomas the Tank Engine" cartoon character on web sites).
40. See Hartman & Stubenrauch, supra note 5 (describing the distribution of unauthorized duplicates of copyrighted music over the Internet); McCullom, supra note 6 (describing the distribution of unauthorized duplicates of copyrighted music by students at Carnegie Mellon University).
41. The Internet operates by making and sending copies of information from one computer to another. Material viewed on a subscriber's home page is generally stored on her ISP's computer. Internet users view the subscriber's home page by sending a request for the relevant files to the ISP's computer. That computer automatically responds by making a copy of the files stored by the subscriber and transmitting the files over the Internet to the requesting party. In many cases, those files also pass through intermediate computers on the Internet, each of which may make a copy of the files before transmitting them further along the network. Thus, the use of copyrighted material on a subscriber's web page necessarily implies making and distributing copies of that material. See Marobie-FL, 983 F. Supp. at 1171-72; GRALLA, supra note 1, at 5-15, 41-43.
42. See 17 U.S.C. § 106 (reserving rights of reproduction and distribution to copyright owner).
43. See id. § 501(a) (providing that anyone who violates a copyright holder's exclusive rights has committed copyright infringement). It is very much worth noting that subscribers "may" (and not "shall") be liable for reproducing or distributing copyrighted material over the Internet. Although the copyright code clearly reserves rights of distribution and reproduction to copyright holders, those rights are limited by other doctrines such as the "fair use" and the "idea/expression dichotomy." These limitations mean that many unauthorized uses of copyrighted material are perfectly legal. See id. § 102(b) (prohibiting copyright protection for ideas); id. § 107 (excluding fair use from copyright infringement); Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575-79 (1994) (stating that fair use depends on a careful balancing of four statutory factors in light of the overall purpose of copyright law); Baker v. Selden, 101 U.S. 99, 103 (1897) (explaining that copyright protects only an author's expression, and not his ideas). Thus, the mere fact that someone has used copyrighted material on a web page does not conclusively establish copyright infringement. This realization becomes vitally important in a proper understanding of the law governing ISP liability. See infra notes 177-203 and accompanying text.
44. ISPs that offer service that differs from the basic service may face greater exposure to liability, particularly ISPs that control the content of subscribers' web pages and realize revenue from infringements. See infra notes 51-90 and accompanying text.
45. See supra notes 1, 23-28, 32 and accompanying text (describing the operation of the Internet).
46. See 17 U.S.C. § 106 (reserving exclusive rights of reproduction and distribution to copyright holder).
47. 839 F. Supp. 1552 (M.D. Fla. 1993).
48. See id. at 1554. A bulletin board service (BBS) stores and distributes files for its subscribers. Subscribers generally use a modem to connect to the BBS. Once connected, the subscriber can download files on the BBS computer or upload files that the subscriber wishes to leave for others to see. See id. (describing how Frena's BBS operated); Playboy Enters., Inc. v. Russ Hardenburgh, Inc., 982 F. Supp. 503, 505 (N.D. Ohio 1997); Religious Tech. Ctr. v. Netcom On-Line Communication Servs., 907 F. Supp. 1361, 1365-66 (N.D. Cal. 1995); KURLAND, supra note 1, at 19-20.
49. See Frena, 839 F. Supp. at 1554.
50. See id. Playboy also sued for trademark infringement, but the court's treatment of those issues is not relevant here. See id.
51. See id. at 1556-57.
52. Id. at 1559.
53. See Buck v. Jewell-La Salle Realty Co., 283 U.S. 191, 198-99 (1931); Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F.2d 304, 308 (2d Cir. 1964) (discussing strict liability in copyright); Singer v. Citibank N.A., No. 91 Civ. 4453, 1993 WL 177801, at *5 (S.D.N.Y. May 21, 1993) (noting that copyright infringement is a tort that generally does not require scienter).
54. See supra notes 1, 23-28, 32 and accompanying text (describing the operation of the Internet).
55. 907 F. Supp. 1361 (N.D. Cal. 1995). Netcom is the case which considers the issues relevant to this article most extensively. Accordingly, it is discussed throughout this article, particularly infra at notes 63-234 and accompanying text.
56. See 907 F. Supp. at 1365-67.
57. Id. at 1369-70.
58. See Marobie-FL, Inc. v. National Ass'n of Fire Equip. Distribs., 983 F. Supp. 1167, 1178 (N.D. Ill. 1997) (following Netcom); Sega Enters, v. MAPHIA, 948 F. Supp. 923, 931-32 n.5 (N.D. Cal. 1996) (following Netcom and explicitly removing any implication that an earlier opinion in the same case established liability for direct infringement).
59. See 3 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 12.04[A][3][e], at 12-98 (1999); Michael F. Morano, Legislating in the Face of New Technology: Copyright Laws for the Digital Age, 20 FORDHAM INT'L L.J. 1374, 1421 (1997) (criticizing direct copyright liability for ISPs);
60. Bruce W. Sanford & Michael J. Lorenger, Teaching an Old Dog New Tricks: The First Amendment in an Online World, 28 CONN. L. REV. 1137, 1164 (1996) (describing the "tortured reasoning" of Playboy v. Frena);
61. M. David Dobbins, Note, Computer Bulletin Board Operator Liability for Users' Infringing Acts, 94 MICH. L. REV. 217, 222-24 (1995) (arguing against the result in Playboy v. Frena).
62. Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir. 1964) (holding department store vicariously liable for copyright infringement of record sales concessionaire); see Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 261-64 (9th Cir. 1996) (holding operator of swap meet vicariously liable for copyright infringement of booth renters); Gershwin Publ'g Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162-63 (2d Cir. 1971) (holding manager liable for infringing performances by musician).
63. See Shapiro, 316 F.2d at 307; 2 PAUL GOLDSTEIN, COPYRIGHT: PRINCIPLES, LAW AND PRACTICE § 6.2 (2000).
64. See Fonovisa, 76 F.3d at 261-62 (noting connection between vicarious copyright liability and respondeat superior); Polygram Int'l Publ'g, Inc. v. Nevada/TIG, Inc., 855 F. Supp. 1314, 1325-26 (D. Mass. 1994) (discussing relationship of vicarious copyright liability, master/servant liability, and enterprise liability); Demetriades v. Kaufmann, 690 F. Supp. 289, 292 (S.D.N.Y. 1988) (referring to connection between vicarious copyright liability and respondeat superior).
65. See Richard A. Epstein, Products Liability as an Insurance Market, 14 J. LEGAL STUD. 645, 645 (1985);
66. Gregory C. Keating, The Idea of Fairness in the Law of Enterprise Liability, 95 MICH. L. REV. 1266, 1267 (1997) (referring to strict liability in its enterprise liability form);
67. George L. Priest, The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modern Tort Law, 14 J. LEGAL STUD. 461, 462-64 (1985) (relating the rise of strict liability to the rise of enterprise liability as a theory of tort law).
68. For additional readings about tort theory and enterprise liability, see Steven P. Croley & Jon D. Hanson, What Liability Crisis? An Alternative Explanation for Recent Events in Products Liability, 8 YALE J. ON REG. 1 (1991);
69. George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537 (1972);
70. Jon D. Hanson & Kyle D. Logue, The First-Party Insurance Externality: An Economic Justification for Enterprise Liability, 76 CORNELL L. REV. 129 (1990);
71. Alan Schwartz, The Case Against Strict Liability, 60 FORDHAM L. REV. 819 (1992).
72. See Polygram, 855 F. Supp. at 1326.
73. See supra notes 23-28 and accompanying text (describing the basic ISP/subscriber relationship). For a discussion of how variations on a basic relationship might affect the existence of ISP liability, see infra note 82 and accompanying text.
74. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 438 n.18 (1984); Fonovisa, 76 F.3d at 262-63; Shapiro, 316 F.2d at 306-08; Banff Ltd. v. Limited, Inc., 869 F. Supp. 1103, 1108-09 (S.D.N.Y. 1994); Polygram, 855 F. Supp. at 1324-25.
75. See Famous Music Corp. v. Bay State Harness Racing and Breeding Ass'n, 554 R2d 1213, 1214 (1st Cir. 1977) (holding racetrack vicariously liable for hiring infringer to supply music for customers); Dreamland Ball Room, Inc. v. Shapiro, Bernstein & Co., 36 F.2d 354 (7th Cir. 1929) (holding dance hall vicariously liable for hiring orchestra that played infringing music); KECA Music, Inc. v. Dingus McGee's Co., 432 F. Supp. 72 (W.D. Mo. 1977) (holding cocktail lounge vicariously liable for hiring performers who played infringing music for patrons).
76. See Fonovisa, 76 F.3d at 262 (explaining that dance hall proprietors are vicariously liable because they control the premises where infringement occurs).
77. See id. (explaining that dance hall proprietors have direct financial interest in infringement because audience pays to hear infringing performances).
78. See Artists Music, Inc. v. Reed Publ'g, Inc., 31 U.S.P.Q.2d 1623, 1626 (S.D.N.Y. 1994) (stating that landlords do not have sufficient ability to supervise to create vicarious liability in copyright).
79. See Shapiro, 316 F.2d at 307; Deutsch v. Arnold, 98 F.2d 686, 688 (2d Cir. 1938); Artists Music, 31 U.S.P.Q.2d at 1627; Vernon Music Corp. v. First Dev. Corp., No. 83-0645-MA, 1984 WL 8146, at *1 (D. Mass 1984). Shapiro is the leading case applying the distinction between landlords and dance hall proprietors. In Shapiro, the plaintiffs owned copyrights in a number of musical compositions. See 316 F.2d at 305. They sued defendant H.L. Green Co., Inc. for the sale of bootleg records in 23 Green department stores. Green defended by arguing that its concessionaire, Jalen Amusement Company, was solely liable for any infringements. The district court agreed and dismissed Green. See id. at 306. On appeal, the Second Circuit reversed. See id. In doing so, the court noted a number of important facts. Customers received Green company receipts, and all daily proceeds went into a Green cash register. See id. Green deducted a 10-12% commission before proceeds were returned to Jalen, and Green had the authority to discharge any Jalen employee. See id. In the court's opinion, these facts showed that Green controlled Jalen's activities and that Green had a direct financial interest in the infringing sales. See id. at 308. Green was therefore more like a dance hall proprietor than a landlord. See id.
80. See Marobie-FL Inc. v. National Ass'n of Fire Equip. Distribs., 983 F. Supp. 1167, 1179 (N.D. Ill. 1997); Religious Tech. Ctr. v. Netcom On-Line Communication Servs., 907 F. Supp. 1361, 1376 (N.D. Cal. 1995). It should be noted that both courts also left open the possibility of contributory infringement. For analysis of this issue, see infra notes 204-35 and accompanying text.
81. 907 F. Supp. 1361.
82. See id. at 1365.
83. For an explanation of a BBS, see supra note 39.
84. See Netcom, 907 F. Supp. at 1365.
85. See id. at 1365-66.
86. See id. at 1366.
87. See id. at 1365-66.
88. See id.
89. See id. at 1382.
90. See id. at 1375 n.22.
91. See id. at 1367-68.
92. See id. at 1366 n.3.
93. See id. at 1375-77.
94. See id. at 1377.
95. See id.
96. Id. An "off-topic posting" is one which does not pertain to the specific subject matter of a particular BBS or other discussion list. For example, a posting about rock and roll music would likely be "off-topic" if it were posted to a list concerning the game of checkers.
97. See id.
98. Id. at 1376 (citation omitted).
99. ISPs that charge subscribers on a per minute connection basis or metered bandwidth basis, or those who place ads on subscriber web pages and receive revenue from advertising sales in proportion to the traffic on a given site, might have a direct financial interest in their subscribers' infringement because such infringement would imply greater use of the ISPs' service, for which the ISP would charge. However, this sort of billing arrangement would not imply that ISPs had the level of control necessary to establish vicarious liability.
100. 983 F. Supp. 1167 (N.D. Ill. 1997).
101. See id. at 1171. Clip art consists of images sold on disks to users who incorporate those images in documents or other computer generated works. See id.
102. See id. at 1171-72.
103. See id. at 1172.
104. The Netcom court itself claimed that Erlich's indirect relationship to Netcom made no difference to its decision. See Netcom, 907 F. Supp. at 1376 n.22. Nevertheless, it seems odd to think that each layer of BBS or other computer operator between an infringer and an ISP would not make the necessary ability to supervise less and less likely.
105. See Marobie-FL, 983 F. Supp. at 1179.
106. See WORKING GROUP, supra note 12, at 114-24.
107. See infra note 93 and accompanying text.
108. 31 U.S.P.Q.2d 1623 (S.D.N.Y. 1994).
109. 855 F. Supp. 1314 (D. Mass. 1994).
110. Several courts have adopted the general approach of Artists Music. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 491 (1984) (holding that manufacturers of home videotape recorders were not vicariously or contributorily liable); Shapiro, Bernstein & Co. v. H.L. Green, Co., 316 F.2d 304, 306 (2d Cir. 1963) (holding owner of store that distributes bootleg records vicariously liable for copyright infringement); Banff Ltd. v. Limited, Inc., 869 F. Supp. 1103, 1111 (S.D.N.Y. 1994) (holding that parent corporation is not vicariously liable for infringement committed by subsidiary corporation). For courts adopting the general approach of Polygram, see Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 263 (9th Cir. 1995) (holding swap meet operator vicariously liable for infringement committed by booth renters); Broadcast Music, Inc. v. Hartmarx Corp., 9 U.S.P.Q.2d 1561, 1561 (N.D. Ill. 1988) (holding parent corporation vicariously liable for infringement committed by subsidiary corporation).
111. See Artists Music, 31 U.S.P.Q.2d at 1624.
112. See id.
113. See id. at 1624-25.
114. See id. at 1625-26.
115. See id. at 1625.
116. Id. at 1626.
117. See id. at 1626-28.
118. See id. at 1627-28.
119. Id. at 1627.
120. Id.
121. See id.
122. Polygram Int'l Publ'g v. Nevada/TIG, Inc., 855 F. Supp. 1314, 1317-18 (D. Mass. 1994).
123. See id. at 1324-33.
124. See id. at 1328.
125. See id. at 1328-29.
126. Id. at 1329.
127. See id.
128. See id. at 1330.
129. Id. at 1332 (emphases added).
130. See infra notes 117-19 and accompanying text.
131. See Artists Music, Inc. v. Reed Publ'g, Inc., 31 U.S.P.Q.2d 1623, 1627 (S.D.N.Y. 1994).
132. See Religious Tech. Ctr. v. Netcom On-Line Communication Servs., 907 F. Supp. 1361, 1367 (N.D. Cal. 1995).
133. See id. at 1376-77.
134. See Kenneth A. Walton, Note, Is a Web Site Like a Flea Market Stall? How Fonovisa v. Cherry Auction Increases the Risk of Third Party Copyright Infringement Liability for Online Service Providers, 199 HASTINGS COMM. & ENT. L.J. 921, 938-40 (1997) (analyzing similarities and differences between flea market operator and ISPs).
135. The copyright code extends copyright protection to all "original works of authorship." 17 U.S.C. § 102(a) (1994). This category of works specifically includes literary works, pictorial works, motion pictures, musical works, and other items commonly found on home pages. See id:
136. These observations significantly weaken the argument that vicarious liability for ISPs makes sense because ISPs are the cheapest cost avoiders when it comes to preventing copyright infringement. Content providers can identify copyright infringement on the Internet more easily than ISPs can because content providers already know which uses of their works are permitted. Some may argue that technology will soon erase any difficulties faced by ISPs in monitoring subscriber behavior, and that it will become completely fair to require ISPs to identify and prevent their subscribers' infringements. It is, of course, impossible to predict accurately what future technology will achieve, but two observations seem relevant. First, technology will also make it easier for content providers to monitor the use of their works on the Internet; therefore, the relative desirability of placing such burdens on ISPs may not change. Cf. infra note 163 and accompanying text (discussing technologies that could be used to monitor user behavior). Second, it is highly unlikely that technology will completely eliminate the problem of deciding whether any particular use of copyrighted material is permitted, uses only public domain material, or is fair use. These determinations often require human judgment, and it will likely be a very long time before computers can perform this function. See James Boyle, Foucault in Cyberspace: Surveillance, Sovereignty, and Hardwired Censors, 66 U. CIN. L. REV. 177, 198-99 at n.62 (1997) (expressing doubt about whether ISPs are the cheapest cost avoiders in preventing copyright infringement on the Internet). It should also be noted here that the constitutional desirability of such monitoring is highly suspect. If ISPs have difficulty identifying copyright infringement, they will have to resolve their doubts one way or the other. Because ISPs would monitor for the purpose of avoiding liability for subscriber infringement, they would likely resolve those doubts in favor of removal. This, of course, would lead to widespread removal of material from the Internet even though the material in question was not actually infringing anyone's copyright. The resulting chill would raise serious conflicts with the First Amendment. See infra notes 167-203 and accompanying text (discussing First Amendment problems caused by ISP removal of material from the Internet).
137. Although web pages sometimes require payment before viewing, those fees are generally imposed at the option of the web page operator (that is, subscriber) and not the ISP. Of course, if the ISP shares in those revenues or receives advertising revenue based upon the number of "hits" to a subscriber's web site, it might well have a "direct financial interest" in any copyright infringement taking place at the web site. See supra note 82 and accompanying text.
138. See GRALLA, supra note 1, at 41 -43.
139. See supra note 23, 28 for discussion of mechanism of ISP response to requests for materials.
140. See Neil Augenstein, Starr Watchers Fear Internet Overload, UNITED PRESS INT'L, Sept. 11, 1998, at 5 (reporting concerns that numerous Internet requests to see the Starr Report concerning President Clinton would slow down servers on the Internet);
141. Gerry Blackwell, Layin Pipe, TORONTO STAR, Oct. 8, 1998, at J1 (mentioning Internet servers slowed by number of hits);
142. Bob Ruggiero, Geek Force, HOUSTON PRESS, May 13, 1999, at C1 (noting that too many hits related to publicity associated with Star Wars caused server to crash).
143. Cf. FED. R. CIV. P. 56 (motion for summary judgment is appropriate when there is "no triable issue of material fact").
144. Artists Music, Inc., v. Reed Publ'g, Inc., 31 U.S.P.Q.2d 1623, 1626 (S.D.N.Y. 1994).
145. See Keating, supra note 54, at 1267; Priest, supra note 54, at 462-64.
146. Polygram Int'l Publ'g v. Nevada/TIG, Inc., 855 F. Supp. 1314, 1325 (D. Mass. 1994).
147. See, e.g., Keating, supra note 54, at 1267-68 (discussing policy justifications of enterprise liability); Priest, supra note 54, at 462-64 (same).
148. See Polygram, 855 F. Supp. at 1325; Keating, supra note 54, at 1266-70; Priest, supra note 54, at 463.
149. See Polygram, 855 F. Supp. at 1325 (discussing fairness, deterrence, and insurance aspects of enterprise liability); Keating, supra note 54, at 1266-77 (same).
150. Polygram, 855 F. Supp. at 1326.
151. See Priest, supra note 54, at 527 ("The unavoidable implication of the three presuppositions of manufacturer power, manufacturer insurance, and internalization is absolute liability.").
152. See, e.g., Indiana Harbor Belt R.R. Co. v. American Cyanimid Co., 916 F.2d 1174, 1181 (7th Cir. 1990) (shipping the chemical acrylonitrile not sufficiently dangerous to warrant strict liability); Erbrich Prods. Co. v. Wills, 509 N.E.2d 850, 856 (Ind. Ct. App. 1987) (using chlorine gas in production of bleach not an abnormally dangerous activity); RESTATEMENT (SECOND) OF TORTS § 519 (1977) (recognizing strict liability for abnormally dangerous activities).
153. See, e.g., Cochran v. Brooke, 409 P.2d 904, 906 (Or. 1966) (holding that drug used to treat malaria was not defective when used to treat arthritis even though drug caused loss of vision); RESTATEMENT (SECOND) OF TORTS § 402A cmt. g (1965).
154. See, e.g., Robinson v. Reed-Prentice Div. of Package Mach. Co., 403 N.E.2d 440, 441 (N.Y. 1980) (stating that modification to product after it leaves possession and control of manufacturer eliminates proximate cause with respect to manufacturer in strict liability suit); Boris v. Tops Mkts., Inc., 163 Misc. 2d 1088, 1091 (N.Y. Sup. Ct. 1995) (stating that inhaling of butane fumes constituted misuse sufficient to cut off proximate cause with respect to manufacturer and retailer of butane in products liability suit).
155. See, e.g., Leaf River Forest Prods., Inc. v. Harrison, 392 So. 2d 1138, 1139 (Miss. 1981) (no vicarious liability for acts of independent contractor); Ross v. Texas One Partnership, 796 S.W.2d 206, 209 (Tex. App. 1990) (no vicarious liability for act of employee of independent contractor); RESTATEMENT (SECOND) OF TORTS § 409 (1965) (establishing independent contractor defense).
156. See Lisa M. v. Henry Mayo Newhall Mem'l Hosp., 907 P.2d 358, 366 (Cal. 1995); Huddleston by Huddleston v. Union Rural Elec. Ass'n, 841 P.2d 282, 287 (Colo. 1992); Bair v. Peck, 811 P.2d 1176, 1182 (Kan. 1991); Adams v. New York City Transit Auth., 666 N.E.2d 216, 218 (N.Y. 1996).
157. See Hinman v. Westinghouse Elec. Co., 471 P.2d 988, 990 (Cal. 1970) ("[The] proper basis of vicarious liability of the master is not his control or fault but the risks incident to his enterprise."); M.L. v. Magnuson, 531 N.W.2d 849, 856 n.3 (Minn. Ct. App. 1995) ("Respondeat superior imposes vicarious liability on an employer for all acts of its employees that occur within the scope of their employment, regardless of the employer's fault.").
158. See, e.g., Lisa M., 907 P.2d at 360; Sauriolle v. O'Gorman, 163 A. 717, 719 (N.H. 1932); Cosgrove v. Lawrence, 522 A.2d 483, 484-85 (N.J. Sup. Ct. 1987); Antonen v. Swanson, 48 N.W.2d 161, 167 (S.D. 1951); Manuel v. Cassada, 59 S.E.2d 47, 50 (Va. 1950); RESTATEMENT (SECOND) OF AGENCY § 219 (1958).
159. See RESTATEMENT (SECOND) OF TORTS § 409 cmt. b (1965) (no vicarious liability for act of independent contractor because hiring party lacked control). There are, of course, many exceptions to the independent contractor defense in tort law. See id. §§ 410-429. Nevertheless, the exceptions do not eliminate the importance of the independent contractor defense because courts often refuse to hold employers of independent contractors vicariously liable. See, e.g., Mahon v. City of Bethlehem, 898 F. Supp. 310, 314 (E.D. Pa. 1995); Harrison, 392 So. 2d at 1139; Kemp v. Bechtel Constr. Co., 720 P.2d 270, 275 (Mont. 1986); Wagner v. Continental Cas. Co., 421 N.W.2d 835, 836 (Wis. 1988).
160. In Rodebush v. Oklahoma Nursing Homes, Ltd., 867 P.2d 1241 (Okla. 1993), the court stated: As a general rule, it is not within the scope of an employee's employment to commit an assault upon a third person. However, this general rule does not apply when the act is one which is "fairly and naturally incident to the business," and is done "while the servant was engaged upon the master's business and be done, although mistakenly or ill advisedly, with a view to further the master's interest, or from some impulse of emotion which naturally grew out of or was incident to the attempt to perform the master's business." Id. at 1245 (citations omitted). See also Lisa M., 907 P.2d at 361 (declining to find employer hospital vicariously liable because employee acted from motivations not associated with his employment); Weinberg v. Johnson, 518 A.2d 985, 988 (D.C. 1986) (declining to find employers vicariously liable for " 'willful acts, intended by the agent only to further his own interest, not done for the [employer] [sic] at all'").
161. See Vandermark v. Ford Motor Co., 391 P.2d 168, 171-72 (Cal. 1964); Greenman v. Yuba Power Prods., Inc., 377 P.2d 897, 900 (Cal. 1963); Escola v. Coca-Cola Bottling Co., 150 P.2d 436, 440 (Cal. 1944) (concurring opinion); William L. Prosser, The Assault upon the Citadel (Strict Liability to the Consumer), 69 YALE L.J. 1099, 1120-22 (1960).
162. See supra notes 126-28 and accompanying text.
163. See RESTATEMENT (SECOND) OF TORTS § 402A (1965). The Restatement asserts: One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. Id.
164. Cf. Kelley v. R.G. Indus., Inc., 497 A.2d 1143, 1153-54 (Md. 1985) (describing problems with "Saturday Night Specials").
165. See Raines v. Colt Indus., Inc., 757 F. Supp. 819, 822 (E.D. Mich. 1991) (plaintiff shot because of error concerning whether gun was loaded); Hammond v. Colt Indus. Operating Corp., 565 A.2d 558, 559 (Del. Super. Ct. 1989) (accidental shooting of plaintiff when gun twirled on finger of 13-year-old child).
166. See, e.g., Paul R. Bonney, Note, Manufacturers' Strict Liability for Handgun Injuries: An Economic Analysis, 73 GEO. L.J. 1437, 1438 (1985);
167. H. Todd Iveson, Note, Manufacturers' Liability to Victims of Handgun Crime: A Common Law Approach, 51 FORDHAM L. REV. 771, 773 (1983);
168. Joi Gardner Pearson, Comment, Make It, Market It, and You May Have to Pay for It: An Evaluation of Gun Manufacturer Liability for the Criminal Use of Uniquely Dangerous Firearms in Light of In re 101 California Street, 1997 BYU L. REV. 131, 145 (1997);
169. Andrew O. Smith, Comment, The Manufacture and Distribution of Handguns as an Abnormally Dangerous Activity, 54 U. CHI. L. REV. 369, 391-92 (1987).
170. The only case found is Kelley, 497 A.2d at 1159 (holding manufacturers of "Saturday Night Specials" liable). However, the result in Kelley was partially overturned by legislative action in 1988. See MD. CODE ANN., art. 27 § 36-I(h) (1988) (stating that a person or entity cannot be held strictly liable for injuries resulting from criminal use of a firearm). Moreover, other courts specifically have noted Kelley and have refused to follow it. See, e.g., Armijo v. Ex Cam, Inc., 656 F. Supp. 771, 775 (D.N.M. 1987); Delahanty v. Hinckley, 686 F. Supp. 920, 927-28 (D.D.C. 1986); King v. R.G. Indus., Inc., 451 N.W.2d 874, 875 (Mich. Ct. App. 1990).
171. See Fortier v. Olin Corp., 840 F.2d 98, 99 (1st Cir. 1988) (holding manufacturer liable for defectively designed firing pin that caused "inertia firing" of rifle when hunter stumbled and fell); Hammond, 565 A.2d at 560 (denying summary judgment motion because triable issue of fact existed over whether gun without modern safety was defective).
172. Delahanty, 686 F. Supp. at 927.
173. See Martin v. Harrington and Richardson, Inc., 743 F.2d 1200, 1204 (7th Cir. 1984); Wasylow v. Glock, Inc., 975 F. Supp. 370, 380-81 (D. Mass. 1996) ("It is the province of legislative or authorized administrative bodies, and not the judicial branch, to . . . transform firearm enterprises into insurers against misuse of their products.").
174. Fisher v. Johnson Milk Co., 174 N.W.2d 752, 753 (Mich. 1970), cited with approval in Raines v. Colt Indus., Inc., 757 F. Supp. 819, 824 (E.D. Mich. 1991); see also RESTATEMENT (SECOND) OF TORTS § 402A cmt. i (1965).
175. It is worth noting that plaintiffs have also tried holding gun manufacturers liable on an ultrahazardous activity theory. Those cases generally represent an effort to circumvent the problems with strict products liability actions discussed here, and they have been unsuccessful. See Copier v. Smith & Wesson Corp., 138 F.3d 833, 839 (10th Cir. 1998) (rejecting plaintiffs claim against gun manufacturer on theory of ultrahazardous activity and rejecting law review commentary favoring imposition of strict liability); Shipman v. Jennings Firearms, Inc., 791 F.2d 1532, 1534 (11th Cir. 1986) (finding that the manufacture and sale of rifles is not an ultrahazardous activity); Martin, 743 F.2d at 1203-04 (finding that the sale of handguns to the public is not an ultrahazardous activity); Addison v. Williams, 546 So. 2d 220, 223 (La. Ct. App. 1989) (same). More recently, some cities have had success suing gun manufacturers on the theory that the guns are defective or that the defendants marketed their products in a negligent or fraudulent way. See Lisa Gelhaus, Brooklyn Jury Adds Momentum to Antigun Litigation, 35 TRIAL 96, 96-98 (1999);
176. David Kairys, Legal Claims of Cities Against the Manufacturers of Handguns, 71 TEMP. L. REV. 1, 12-15 (1998). Although these cases might appear to be exceptions to previous holdings in favor of gun manufacturers, it is important to note that the suits stand on something other than pure enterprise liability.
177. See, e.g., Garrison v. Heublein, Inc., 673 F.2d 189, 190 (7th Cir. 1982) (manufacturer had no duty to warn plaintiff about dangers of alcohol); Maguire v. Pabst Brewing Co., 387 N.W.2d 565, 572 (Iowa 1986) (brewer of alcoholic beverage not liable for injuries caused by intoxicated driver); Pemberton v. American Distilled Spirits Co., 664 S.W.2d 690, 693 (Tenn. 1984) (retailer, wholesaler, and manufacturer not liable to father whose son died from alcohol overdose); Morris v. Adolph Coors Co., 735 S.W.2d 578, 584 (Tex. App. 1987) (alchohol manufacturer not liable for injury caused by intoxicated driver). For commentary, see Robert F. Cochran, Jr., "Good Whiskey,"Drunk Driving, and Innocent Bystanders: The Responsibility of Manufacturers of Alcohol and Other Dangerous Hedonic Products for Bystander Injury, 45 S.C. L. REV. 269, 335 (1994) (arguing that enterprise liability principles support extension of strict liability against alcohol manufacturers). It is important to keep in mind that the discussion in the text concerns strict liability actions against alcohol manufacturers and not negligence claims. See infra note 156 (discussing how some states allow actions against those who serve liquor on a negligence or other fault basis).
178. RESTATEMENT (SECOND) OF TORTS § 402A cmt. j (1965). Several cases have cited section 402A with approval. See Maguire, 387 N.W.2d at 566; Pemberton, 664 S.W.2d at 692; Morris, 735 S.W.2d at 582.
179. A number of states allow plaintiffs to sue in negligence those who serve alcohol, with negligence typically shown by evidence that the patron was already drunk or that the sale was made in violation of liquor control laws, especially sale to minors. See, e.g., Ontiveros v. Borak, 667 P.2d 200, 207-08 (Ariz. 1983); Ono v. Applegate, 612 P.2d 533, 539 (Haw. 1980); Algeria v. Payonk, 619 P.2d 135, 138 (Idaho 1980); Rappaport v. Nichols, 156 A.2d 1, 4 (N.J. 1959); Campbell v. Carpenter, 566 P.2d 893, 895 (Or. 1977). For a survey of various state approaches to liability for dispensing alcohol, see Daphne D. Sipes, The Emergence of Civil Liability for Dispensing Alcohol: A Comparative Study, 8 REV. LITIG. 1, 25-51 (1988).
180. Those who support broad application of enterprise liability against ISPs may point to cases involving the misuse of a product's hidden and incidental features as evidence of broad enterprise liability in tort. For example, courts are sometimes willing to find manufacturers of glue liable for injuries caused by individuals who sniff the glue, suffer hallucinations, and then injure bystanders. See Kelly v. M. Trigg Enters., Inc., 605 So. 2d 1185, 1187 (Ala. 1992) (denying summary judgment for maker of air freshener); Moran v. Faberge, Inc., 332 A.2d 11, 13 (Md. 1975) (upholding jury verdict against manufacturer of cologne which ignited when a plaintiff, age 17, poured the cologne on a candle to produce a scent); Crowther v. Ross Chem. & Mfg. Co., 202 N.W.2d 577, 580 (Mich. Ct. App. 1972) (denying summary judgment for maker of model cement). Although these cases do suggest the imposition of enterprise liability, the fact that they involve the misuse of hidden and incidental - as opposed to the obvious and inherent - features of a product make them less influential when considering vicarious liability for ISPs. It is reasonable to pin responsibility for misuse on third parties who appreciate the nature of their misuse. Someone who misuses a gun or alcohol knows exactly what she is doing. Similarly, a subscriber who uses Internet service to duplicate copyrighted material knows that he is duplicating that material. There is no need to warn the third party user about the nature of his use. By contrast, those sniffing glue may not have a full appreciation for the consequences, and it seems reasonable to ask manufacturers to provide appropriate warnings or other precautions.
181. Indeed, one could argue that an ISP is the agent for its subscribers, and that subscribers are vicariously liable for infringements committed by ISPs on their behalf. Although no such cases have been brought, the suggested result is far less counterintuitive than is holding ISPs liable for subscriber infringement. After all, if an ISP were to commit copyright infringement at the instruction of a subscriber, the idea that the injured party could sue the subscriber makes some degree of sense. Cf. 17 U.S.C. § 106 (1994) (reserving right to authorize duplication to copyright holder).
182. See supra note 119 and accompanying text.
183. Of course, this does not mean that agents do not face personal liability for torts they commit while within the scope of employment. The point is simply that vicarious liability is not applied to agents. It is only applied to their employers. This is important when considering vicarious copyright liability for ISPs because personal liability for the ISP (that is, direct infringement) has already been rejected by most courts. See supra notes 36-50 and accompanying text.
184. See supra notes 139-41 (citing cases that use furtherance of principal's business objective and intent to do so as factors in determining whether agent acted within scope of her employment).
185. See supra notes 23-28, 32 and accompanying text.
186. In the case of Microsoft, its Windows 98 operating system automatically created a unique identification number on every computer that uses it. See Hiawatha Bray, Privacy Advocates Decry Digital 'Fingerprints', Step up Call for Federal Protection in Wake of Microsoft Disclosure, THE BOSTON GLOBE, Mar. 9, 1999, at C1;
187. Tech Companies to Customers: Privacy is History, USA TODAY, Mar. 12, 1999, at 14A. The number would then be sent to Microsoft when the user registered her software without the user's consent. See Bray, supra, at 2. Moreover, the identification was also placed in documents created with Microsoft applications such as Microsoft Word. See id. at 3. This meant that Microsoft would be able to identify the creator of particular electronic documents. See id. Microsoft has since taken remedial measures to remove this feature. See id. at 4.
188. See Kairys, supra note 153, at 1-2.
189. The relative importance of physical personal injury over simple property damage or economic harm is a common theme in tort law. For example, the amount of force justified by a claim of self-defense depends on whether human safety is involved. Thus, a homeowner cannot use a spring gun merely to ward off trespassers precisely because the risks that such devices pose to human safety outweigh an otherwise legitimate interest in property. See Katko v. Briney, 183 N.W.2d 657, 660 (Iowa 1971) (stating that property owner may not use deadly force to protect property absent a threat of death or serious bodily harm). The RESTATEMENT (SECOND) OF TORTS § 85 cmt. a (1965), states: The value of human life and limb, not only to the individual concerned but also to society, so outweighs the interest of a possessor of land in excluding from it those whom he is not willing to admit, that a possessor of land has, as is stated in § 79, no privilege to use force intended or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle with his chattel, unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises. Similar values appear to be reflected in the exceptions to the independent contractor defense. See id. §§ 410-429. Many of these exceptions hold the hiring party vicariously liable for "physical harm" caused by the independent contractor and not simply "harm." See id. §§ 416-417, 423, 425, 427, 427 A-B, 428. Finally, one of the earliest and most influential advocates of enterprise liability, Fleming James, spoke of injury to persons (and not all injuries) when making his case: "Strict liability is to be preferred over a system of liability based on fault wherever you have an enterprise or activity, beneficial to many, which takes a more or less inevitable accident toll of human life and limb." Fleming James Jr., General Products - Should Manufacturers Be Liable Without Negligence?, 24 TENN. L. REV. 923, 923 (1957).
190. U.S. CONST, amend. I (providing that "Congress shall make no law . . . abridging the freedom of speech.").
191. See, e.g., Robert C. Denicola, Copyright and Free Speech: Constitutional Limitations on the Protection of Expression, 67 CAL. L. REV. 283 (1979);
192. Paul Goldstein, Copyright and the First Amendment, 70 COLUM. L. REV. 983 (1970);
193. Mark A. Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 DUKE L.J. 147 (1998);
194. Melville B. Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. REV. 1180 (1970);
195. L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 VAND. L. REV. 1 (1987);
196. Lionel S. Sobel, Copyright and the First Amendment: A Gathering Storm?, 19 COPYRIGHT L. SYMP. (ASCAP) 43 (1971);
197. Alfred C. Yen, A First Amendment Perspective on the Idea/Expression Dichotomy and Copyright in a Work's "Total Concept and Feel", 38 EMORY L.J. 393 (1989);
198. Diane Leenheer Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 WM. & MARY L. REV. 665, 666 (1992) (discussing understatement of conflict between copyright and the First Amendment).
199. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771-72 (1976) (stating that false advertising not protected by the First Amendment); Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974) (stating that false statements have no constitutional value because they do not advance social debate); Konigsberg v. State Bar of Cal., 366 U.S. 36, 49 n.10 (1961) (listing false advertising among forms of speech not protected by First Amendment).
200. See R.A.V. v. City of St. Paul, 505 U.S. 377, 399 (1992) (stating principle that First Amendment does not protect speech which does not advance First Amendment interests); Osborne v. Ohio, 495 U.S. 103, 109-11 (1990) (discussing the state interest in protecting children from exploitation that justifies regulation of child pornography); New York v. Ferber, 458 U.S. 747, 756-58 (1982) (same); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67 (1973) (permitting regulation of obscene material); Miller v. California, 413 U.S. 15, 24 (1973) (allowing regulation of obscene materials that lack "serious literary, artistic, political, or scientific value").
201. See Securities and Exch. Comm'n v. Wall St. Transcript Corp., 422 F.2d 1371, 1379 (2d Cir. 1970) (listing securities regulation as an example of a limitation on the right to communicate information). See generally Symposium, The First Amendment and Federal Securities Regulation, 20 CONN. L. REV. 261 (1988) (providing various perspectives on free speech and securities regulation).
202. For further discussion of libel law, see infra notes 187-97 and accompanying text.
203. See U.S. CONST. art. I, § 8, cl. 8 ("The Congress shall have Power . . . [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. . . ."); Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) (noting copyright's operation as incentive for creativity); Mazer v. Stein, 347 U.S. 201, 219 (1954) (noting that copyright encourages individual effort).
204. See 1 NIMMER & NIMMER, supra note 50, § 1.10[D], at 1-95; Lemley & Volokh, supra note 167, at 166 (noting argument that literal copiers do not originate speech).
205. See Emerson v. Davies, 8 F. Cas. 615, 619 (C.C.D. Mass. 1845) (No. 4,436) ("Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.").
206. See Castle Rock Entertainment, Inc. v. Carol Publ'g Group, Inc., 150 F.3d 132, 138-46 (2d Cir. 1998) (finding that trivia book devoted to quiz about facts from the Seinfeld television series was infringement and rejecting fair use defense); Rogers v. Koons, 960 F.2d 301, 307-08 (2d Cir. 1992) (finding infringement when postmodern artist Jeff Koons based a larger-than-life sculpture on a postcard photograph for purposes of illustrating the banality of everyday images); Salinger v. Random House, Inc., 811 F.2d 90, 99-100 (2d Cir.) (finding infringement and no fair use when biographer of J.D. Salinger paraphrased unpublished letters written by Salinger), supplemented and reh'g denied, 818 F.2d 252 (2d Cir. 1987); Roth Greeting Cards v. United Card Co., 429 F.2d 1106, 1110-11 (9th Cir. 1970) (finding infringement where defendant's greeting cards drew inspiration from plaintiffs greeting cards despite new artwork and restriction of borrowing to simple public domain phrases); Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir. 1936) (comparing two works based on real life events and finding copyright infringement despite dissimilarities).
207. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556-60 (1985) (noting the economic incentive function of copyright law and discussing the function of internal limitations that eliminate conflicts with the First Amendment); New York Times Co. v. United States, 403 U.S. 713, 726 n.* (Brennan, J., concurring) (government violates First Amendment rights when it seeks to supress ideas, but "copyright laws . . . protect only the form of expression and not the ideas expressed"). Even the Netcom court rejected the First Amendment as irrelevant, thereby overlooking critical support for its decision. See Religious Tech. Ctr. v. Netcom On-Line Communication Servs., Inc., 907 F. Supp. 1361, 1377 (N.D. Cal. 1995). For an article analyzing some of the First Amendment implications of Netcom, see Stephen Fraser, The Conflict Between the First Amendment and Copyright Law and its Impact on the Internet, 16 CARDOZO ARTS & ENT. L.J. 1, 36-50 (1998).
208. See 17 U.S.C. § 102(b) (1994) ("In no case does copyright protection for an original work of authorship extend to any idea . . . ."); Baker v. Selden, 101 U.S. 99, 102-03 (1879) (copyright does not give the author of a book an exclusive property in processes or methods described therein); Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930) (holding that playwright acquires no property right in his ideas by virtue of copyright).
209. 17 U.S.C. § 107(4) (Supp. IV 1998) (making effect on the market for the original work a factor in fair use analysis); see also Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (noting importance of transformative borrowing in deciding fair use); Harper & Row, 471 U.S. at 567-69 (deciding that proposed fair use was not fair in part because defendant's use supplanted the copyrighted original in the marketplace).
210. See Brandir Int'l, Inc. v. Cascade Pac. Lumber Co., 834 F.2d 1142, 1146-47 (2d Cir. 1987) (denying copyright to plaintiff's bicycle rack because its function of holding bicycles could not be separated from its aesthetic components); Carol Barnhart Inc. v. Economy Cover Corp., 773 F.2d 411, 417 (2d Cir. 1985) (denying copyright to plaintiffs mannequins because they were useful articles whose function was to display clothing).
211. See Warner Bros. Inc., v. American Broad. Co., 720 F.2d 231, 239-40 (2d Cir. 1983) (requiring "substantial similarity" as prerequisite to copyright infringement); Arnstein v. Porter, 154 F.2d 464, 468-69 (2d Cir. 1946) ("In some cases the similarities between the plaintiffs and defendant's work are so extensive and striking as, without more, both to justify an inference of copying and to prove improper appropriation.").
212. See 17 U.S.C. § 102(a) (1994) (limiting copyright to "original works of authorship"); Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).
213. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 475 (1984) (Blackmun, J., dissenting) (calling fair use determination "'the most troublesome in the whole law of copyright.'"); Nichols, 45 F.2d at 121 (Hand, J.) (stating that "[n]obody has ever been able to fix that boundary [between idea and expression], and nobody ever can"); Amy B. Cohen, Copyright Law and the Myth of Objectivity: The Idea-Expression Dichotomy and the Inevitability of Artistic Value Judgments, 66 IND. L.J. 175, 210-29 (1990) (analyzing how assessments of artistic value affect the application of the idea/expression dichotomy in determining copyright infringement);
214. Alfred C. Yen, Copyright Opinions and Aesthetic Theory, 71 S. CAL. L. REV. 247, 266-97 (1998) (analyzing conflicts in doctrines of originality, useful article doctrine, and substantial similarity); Yen, supra note 167, at 398-407 (analyzing ambiguity of idea/expression dichotomy).
215. See generally Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 303-04 (1996) (contending that copyright doctrine is only "sporadically effective in protecting First Amendment values"); Yen, supra note 167, at 395-98 (arguing that the idea/expression dichotomy as presently interpreted does not adequately address First Amendment concerns).
216. Even if a defendant has copied from a plaintiffs copyrighted work, no infringement exists unless the two works are "substantially similar." This degree of similarity marks the line between permissible borrowing and improper appropriation. See Warner Bros., 720 F.2d at 239-40 (requiring "substantial similarity" as prerequisite to copyright infringement); Arnstein, 154 F.2d at 468 (explaining importance of "substantial similarity").
217. Consider cases such as Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021 (2d Cir. 1966) and Steinberg v. Columbia Pictures Industries, Inc., 663 F. Supp. 706, 711 (S.D.N.Y. 1987), which state that substantial similarity exists when "an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work." Ideal Toy Corp., 360 F.2d at 1022. This statement of substantial similarity amounts to nothing more than saying that substantial similarity exists when there has been copying from the copyrighted work.
218. See New York Times v. Sullivan, 376 U.S. 254, 279-81 (1964) (identifying the "chilling effect" of laws that silence speakers through the risk of judicial error and incorporating constitutionally required substantive standards to reduce the chilling effect of libel laws); Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the "Chilling Effect," 58 B.U. L. REV. 685 (1978) (describing how courts reduce the chilling effect of libel law);
219. Eugene Volokh & Brett McDonnell, Freedom of Speech and Independent Judgment Review in Copyright Cases, 107 YALE L.J. 2431, 2465-66 (1998) (arguing that free speech rights deserve special protection from mistaken curtailment).
220. A defamatory statement is one that "tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." RESTATEMENT (SECOND) OF TORTS § 559 (1977).
221. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974) (stating that false statements have no constitutional value because they do not advance public debate).
222. 376 U.S. 254. For additional cases in this line of precedent, see Hustler Magazine v. Falwell, 485 U.S. 46 (1988); Gertz, 418 U.S. 323; Curtis Publ'g Co. v. Butts, 388 U.S. 130 (1967).
223. See New York Times, 376 U.S. at 256.
224. See id. at 257-59.
225. See id. at 256.
226. See id. at 279.
227. Id. at 271-72.
228. See id. at 279-80.
229. 418 U.S. 323 (1974).
230. Id. at 347.
231. See supra note 182 and accompanying text.
232. See Volokh & McDonnell, supra note 186, at 2467-70 (suggesting how changes in copyright law might reduce First Amendment problems); Yen, supra note 167, at 433-36 (discussing how copyright liability creates a chilling effect against individual speakers and suggesting that the doctrine of the idea/expression dichotomy should be interpreted to reduce the number of cases in which copyright owners can bring plausible claims of infringement that chill the free speech of others).
233. The most likely scenario under which ISPs would have the obligation to act would be the handling of complaints about copyright infringement received from content providers. See infra Part II.C.
234. See supra notes 176-81 and accompanying text.
235. See supra note 182 and accompanying text (referring to ambiguities in copyright law).
236. See Zeran v. America Online, Inc., 129 F.3d 327, 330-31 (4th Cir. 1997) (discussing chill against free speech if ISPs monitor subscriber postings for defamatory content). Of course, the revision of copyright law suggested here does not affect the observations earlier made about vicarious liability and enterprise liability.
237. Gershwin Publ'g Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971); see also Religious Tech. Ctr. v. Netcom On-Line Communication Servs., Inc., 907 F. Supp 1361, 1371 (N.D. Cal. 1995); Demetriades v. Kaufmann, 690 F. Supp. 289, 293 (S.D.N.Y. 1988).
238. 464 U.S. 417 (1984).
239. The Sony plaintiffs also argued that the home use of video recorders constituted infringement. See id. at 420. The Court, however, held that such use was fair use. See id. at 456.
240. 222 U.S. 55 (1911).
241. Sony, 464 U.S. at 436-37.
242. Id. at 442.
243. The Court also wrote: If vicarious liability is to be imposed on petitioners in this case, it must rest on the fact that they have sold equipment with constructive knowledge of the fact that their customers may use that equipment to make unauthorized copies of copyrighted material. There is no precedent in the law of copyright for the imposition of vicarious liability on such a theory. Id. at 439. Although this passage ostensibly refers to the doctrine of vicarious liability, its reasoning reflects contributory liability because the Court discusses knowledge, which is an element of contributory liability, but not vicarious liability. See supra notes 51-53 (discussing elements of vicarious liability); see also Matthew Bender & Co., Inc. v. West Publ'g Co., 158 F.3d 693, 706-07 (2d Cir. 1998), cert. denied, 119 S.Ct. 2039 (1999) (holding that defendants who provided "star pagination" in case reports were not contributory infringers because their case reports were capable of substantial noninfringing uses); Vault Corp. v. Quaid Software Ltd., 847 F.2d 255, 262 (5th Cir. 1988) (holding that maker of software that made copying from locked disks possible was not contributorily liable because software had substantial noninfringing use).
244. See Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996) (providing space, utilities, parking, advertising, plumbing, and customers constitutes material contribution for purposes of contributory infringement); Religious Tech. Ctr. v. Netcom On-Line Communication Servs., Inc., 907 F. Supp. 1361, 1375 (N.D. Cal. 1995) (providing service that allows distribution of infringing material is material contribution for purposes of contributory liability); Screen Gems-Columbia Music, Inc. v. Mark-Fi Records, Inc., 256 F. Supp. 399, 404-05 (S.D.N.Y. 1966) (refusing summary judgment for agencies that facilitated mailing and radio advertising of infringing material).
245. 907 F. Supp. 1361 (N.D. Cal. 1995). For the factual background of Netcom, see supra notes 64-71 and accompanying text.
246. See Netcom, 907 F. Supp. at 1375.
247. Id.
248. See Fonovisa, 76 F.3d at 264.
249. See Screen Gems, 256 F. Supp. at 404; see also Sony v. Universal Pictures, 464 U.S. 417, 438 n.18 (1984) (citing Screen Gems with approval).
250. See Sega Enters., Ltd. v. MAPHIA, 948 F. Supp. 923, 933 (N.D. Cal. 1996).
251. See 17 U.S.C. § 102(b) (1994) (enumerating areas not subject to copyright protection); id. § 107 (1994) (codifying the fair use doctrine); Nichols v. Universal Pictures Corp., 45 F.2d 119, 122 (2d Cir. 1930) (allowing the borrowing of ideas).
252. Cf. WORKING GROUP, supra note 11, at 122-23 (arguing in favor of legal rules designed to force ISPs to take responsibility for subscriber infringements).
253. 907 F. Supp. 1361 (N.D. Cal. 1995); see also Marobie-FL, Inc. v. National Ass'n of Fire Equip. Distribs., 983 F. Supp. 1167, 1177-78 (N.D. Ill. 1997) (following Netcom without conducting significant analysis of the underlying law).
254. Netcom, 907 F. Supp. at 1374.
255. See id. at 1366-75.
256. Id. at 1373.
257. See id.
258. See id. at 1374-75; see also Marobie-FL, 983 F. Supp. at 1178-79 (refusing to grant summary judgment to ISP on issue of contributory infringement).
259. See Netcom, 907 F. Supp. at 1374 ("[A] mere unsupported allegation of infringement by a copyright owner may not automatically put a defendant on notice of infringing activity . . . .").
260. Id. at 1374.
261. Id. at 1383.
262. The copyright code explicitly mentions "criticism" as one of the indicia of fair use. See 17 U.S.C. § 107 (1994); Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) ("We thus line up with the courts that have held that parody, like other comment or criticism, may claim fair use under § 107."). Such language alone suggests that substantial quotation for purposes of criticizing the plaintiffs texts or the teachings of scientology colorably merits fair use treatment. Indeed, at least one court has found that extensive use of L. Ron Hubbard's writings was a fair use when used in a work criticizing Hubbard; this finding, however, was criticized by the court of appeals. See New Era Publications Int'l, APS v. Henry Holt & Co., Inc., 695 F. Supp. 1493, 1507-08 (S.D.N.Y. 1988), aff'd on other grounds, 873 F.2d 576 (2d Cir. 1989).
263. See Netcom, 907 F, Supp. at 1366 n.3 (stating that Erlich copied "substantial portions" of plaintiffs works). Parodies offer an analogy to Erlich's use because parodists often appropriate the entire tune of a song being parodied. Such use is sometimes considered "fair" because parodists are allowed to borrow at least as much as is reasonably necessary to conjure up the target of parody in the listener's mind. See Fisher v. Dees, 794 F.2d 432, 438-39 (9th Cir. 1986) (discussing contours of "the so-called 'conjure-up' test"); Berlin v. E.C. Publications, Inc., 329 F.2d 541, 545 (2d Cir. 1964) (allowing parodist to appropriate amount of original work necessary "to 'recall or conjure-up' the object of his satire"). Thus, Erlich's use of an entire Scientology writing might be fair as long as it was reasonably necessary for Erlich to post the original in order for his readers to understand his criticism.
264. See Casella v. Morris, 820 F.2d 362, 365 (11th Cir. 1987) (citing Gershwin language regarding knowledge of underlying infringement); Gershwin Publ'g Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971) (citing Screen Gems); Sega Enters. Ltd. v. Sabella, No. C 93-04260 CW, 1996 WL 780560, at *8 (N.D. Cal. Dec. 18, 1996) (citing Casella); Screen Gems-Columbia Music, Inc. v. Mark-Fi Records, Inc., 256 F. Supp. 399, 403-04 (S.D.N.Y. 1966) (discussing relevance of advertising agency's constructive knowledge of infringement).
265. GOLDSTEIN, supra note 52, § 6.1 (footnote omitted). If Goldstein's language is taken literally, ISPs that fail to investigate a complaint could be deemed to have knowledge of underlying subscriber infringement. Thus, if a court ultimately finds that the subscriber's uninvestigated behavior constitutes infringement, the ISP would be contributorily liable even if the case for underlying infringement were extremely controversial. This result would effectively make ISPs responsible for any infringement committed by subscribers after receiving information that would reasonably prompt an inquiry. Indeed, an ISP that made such inquiry and reasonably concluded that infringement had not occurred might still be contributorily liable if a court later disagreed.
266. Although the text refers to the "suspension" of Internet service, it should be understood that the ISP's options include measures short of completely denying Internet services to the subscriber. For example, the ISP might disable access to the allegedly offending page or remove material from the page by deleting the appropriate files from its computer.
267. An ISP might consider the possibility that subscribers will sue if the ISP suspends Internet service. This possibility is real, but it carries far less danger for ISPs. First, ISPs could write protection against such contingencies into their standard Internet service agreements. Second, subscribers are often (though not always) less likely to sue than content providers. This is because the most likely source of complaints about infringement will likely come from holders of significant copyrights who are combing the Internet to protect their rights. Such complainants will likely see the costs of litigation as part of a budget earmarked for copyright enforcement. By contrast, subscribers are more likely to be individuals or smaller businesses who are not planning on copyright litigation. They will be reluctant to spend money on legal fees. Third, even if the subscriber turns out to be a business with resources, it may prove easier to capitulate to the content provider's demands for the same reason that ISPs would tend to do so. After all, subscribers who fight their ISPs will also wind up fighting the content provider, with all of the same costs of litigation and uncertainty of result. Fourth, subscribers who find their Internet service suspended may find moving to another ISP easier than suing.
268. See supra notes 189-203 and accompanying text.
269. 17 U.S.C. § 512 (Supp. IV 1998).
270. See id. §§ 512(a)-(d), (f), (g), (i); see also infra notes 245-68 and accompanying text.
271. See 17 U.S.C. § 512(1).
272. See id. § 512(a). For a description of the basic requirements, see infra notes 245-68 and accompanying text.
273. See supra notes 46-50 and accompanying text.
274. This result follows because the relevant provision guards against liability for both transmission and temporary storage of otherwise infringing material. See 17 U.S.C. § 512(a).
275. Some ISPs keep copies of subscriber emails and their attachments. If they do so, their storage might fall outside the provision's limitation to "intermediate and transient storage of that material in the course of such transmitting, routing or providing connections . . . ." Id.
276. This is a reference to a statutorily prescribed complaint by which a content provider formally informs an ISP about alleged infringement on the ISP's system. Further description of the notice is provided infra at note 250.
277. 17 U.S.C. §§ 512(c)(1)(A)-(C).
278. Id. §§ 512(c)(1)(A)(i)-(ii).
279. See supra notes 204-35 and accompanying text (discussing knowledge of defendant and contributory infringement).
280. 17 U.S.C. § 512 (c)(1)(B).
281. See supra notes 51-52 and accompanying text (discussing requirements for vicarious liability in copyright).
282. See 17 U.S.C. § 512(c)(1)(C).
283. The statutory requirements for this formal notice include the signature of a person authorized to act on behalf of the copyright owner, identification of the copyrighted work allegedly infringed, identification of the infringing material, contact information for the complaining party, a good faith statement that the complained of use is not permitted by the copyright owner or by law, and a statement under penalty of perjury that the complaining party has the authority to enforce the rights in question. See id. § 512(c)(3)(A).
284. See id. § 512(i)(1)(A).
285. See id. § 512(i)(1)(B).
286. The provisions of 17 U.S.C. § 512(i) are prerequisites for any relief under 17 U.S.C. § 512.
287. See id. § 512(c)(2).
288. See id. §§ 512(c)(1)(C), (c)(3)(B)(ii), (d)(3), (f).
289. Id. § 512(c)(1)(A)(iii).
290. See id. § 512(c)(1)(C).
291. See id. (referring to "material that is claimed to be infringing") (emphasis added).
292. Id. § 512(c)(3)(B)(i).
293. See id. § 512(c)(3)(B)(ii).
294. See supra note 234.
295. See 17 U.S.C. §§ 512(g)(1), (g)(2)(A).
296. See id. § 512(g)(2)(B). The form of the notice is prescribed in 17 U.S.C. § 512(g)(3).
297. See id. § 512(g)(3)(D).
298. See id. § 512(g)(2)(B).
299. See id. § 512(g)(2)(C).
300. Id.
301. See id.
302. See supra notes 46-50 and accompanying text.
303. See supra notes 51-203 and accompanying text (discussing contours of vicarious liability in copyright).
304. See supra notes 245-50 and accompanying text.
305. See supra notes 204-34 and accompanying text.
306. See supra note 227 and accompanying text.
307. See 17 U.S.C. § 512(c)(3)(B) (Supp. IV 1998).
308. Such liability is admittedly not terribly serious in most cases. See supra note 234. Nevertheless, the risk of suit is identifiable and one against which risk averse ISPs might find it is worth gaining protection.
309. See 17 U.S.C. §§ 512(g)(1)-(2).
310. See supra note 260 and accompanying text.
311. Some may argue that the DMCA alleviates the problem of indiscriminately removing speech from the Internet by providing for penalties against those who make knowingly false representations about the existence of infringement. See 17 U.S.C. § 512(f). This argument misses the mark because "knowing" misrepresentations do not include statements that are made in good faith but incorrect about the existence of infringement. Indeed, copyright's ambiguity assures that many statements of infringement can be made in good faith, even though a court may find that no infringement actually exists.
312. See supra note 234.
313. This article contrasts the interests of content providers and Internet users in order to describe clearly the issues at stake. It is not at all clear, however, that the DMCA's emphasis on enforcing copyrights will even consistently serve the interests of content providers. This is because content providers themselves use the Internet to distribute their works, and such use will only increase in the years to come. Content providers, therefore, may discover that the very provisions designed to enforce their copyrights will instead frustrate their efforts to profit from the Internet. At present, it is quite common for famous movie makers, song writers, and recording artists to face charges that their latest hits are in fact copied from an unknown plaintiffs copyrighted work. See, e.g., Selle v. Gibb, 741 F.2d 896, 898 (7th Cir. 1984) (alleging that the Bee Gees' hit song "How Deep is Your Love" infringed plaintiff's song "Let It End"); Litchfield v. Spielberg, 736 F.2d 1352, 1354 (9th Cir. 1984) (alleging that Stephen Spielberg's hit movie "E.T. - The Extra Terrestrial" infringed plaintiffs "Lokey from Maldemar"); Arnstein v. Porter, 154 F.2d 464, 467 (2d Cir. 1946) (alleging that various songs written by Cole Porter infringed plaintiffs songs). In the not-so-distant future, when many movies and songs will be distributed over the Internet, content providers distributing the hits of the future could be stopped cold by plaintiffs who believe in good faith that their works have been infringed. Such plaintiffs need only serve a formal complaint upon the proper ISP and removal of the hit movie or song will likely follow. If, as is often the case, the plaintiff fails in his suit, the content providers themselves will still have lost their free speech rights (not to mention considerable revenue) for the period of time between the formal complaint and satisfactory resolution of the case.
314. See 17 U.S.C. § 502 (1994) (authorizing courts to issue temporary injunctions in copyright cases); FED. R. CIV. P. 65 (b) (requiring "specific facts shown by affidavit or by the verified complaint" as prerequisite to issuance of temporary restraining order); id. 65(c) (requiring posting of security for preliminary injunctive relief); Hubbard Feeds, Inc. v. Animal Feed Supplement, Inc., 182 F.3d 598, 601 (8th Cir. 1999) (setting out four factor test for granting preliminary injunction); Shaffer v. Globe Protection, Inc., 721 F.2d 1121, 1123 (7th Cir. 1983) (same); 11A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2948 (2d ed. 1995) ("[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion."), quoted in Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); Lemley & Volokh, supra note 167, at 154-65 (discussing and describing law concerning preliminary injunctive relief in copyright cases, and contending that courts grant such relief too freely).
315. This argument is made in great detail with respect to injunctions and copyright in general by Professors Mark A. Lemley and Eugene Volokh. See Lemley & Volokh, supra note 167. Professors Lemley and Volokh persuasively contend that although courts traditionally grant preliminary injunctive relief in copyright cases, such a practice is inconsistent with First Amendment jurisprudence in other analogous areas. See id. at 182-97. Accordingly, they conclude that preliminary injunctive relief should be given in copyright cases only when the case for infringement has been made by clear and convincing evidence. See id. at 215-16. This is a standard far stronger than requiring a statement of "good faith belief" and the filing of a complaint.
316. See supra note 282 and accompanying text (discussing situations in which First Amendment concerns diminish upon a clear showing of copyright infringement).
317. BENJAMIN KAPLAN, AN UNHURRIED VIEW OF COPYRIGHT 78 (1967) (quoting Voltaire, Dictionaire Philosophique, in 42 OEUVRES COMPLETES DE VOLTAIRE 321 (Imprimerie de la Societe Litteraire-Typographique ed., 1784)).