Advanced copyright issues on the internet

Computer Law and Security Report

Volumn 16, Issue 6, 2000, Pages 363-377

  Hayes, David L ^a,b  

^a Fenwick and West   (United States)

^b Fenwick and West LLP   (United States)

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EID: 84979834030     PISSN: 02673649     EISSN: None     Source Type: Journal    
DOI: 10.1016/s0267-3649(00)06002-7     Document Type: Article

References (119)

1. Recently, market research firm International Data Corp. (IDC) in Framingham, Massachusetts, USA, forecast that the number of people accessing the World Wide Web would reach almost 100 million by the end of 1998 and 320 million by the year 2002. Larry Lange, "Technology 1999 Analysis & Forecast: The Internet," IEEE Spectrum January 1999, at 35, 35. "Figures released last September at the European IT Forum in Paris by International Data Corp., Framingham, Massachusetts, USA, indicate E-commerce's compound annual growth rate is more than 190%.At the end of 1998, it was responsible for US$50 billion and by 2003 it is projected to reach US$1.3 trillion." Richard Comerford, "Technology 2000 Analysis & Forecast:The Internet," IEEE Spectrum, January 2000, at 40, 44.
2. Recently, market research firm International Data Corp. (IDC) in Framingham, Massachusetts, USA, forecast that the number of people accessing the World Wide Web would reach almost 100 million by the end of 1998 and 320 million by the year 2002. Larry Lange, "Technology 1999 Analysis & Forecast: The Internet," IEEE Spectrum January 1999, at 35, 35. "Figures released last September at the European IT Forum in Paris by International Data Corp., Framingham, Massachusetts, USA, indicate E-commerce's compound annual growth rate is more than 190%.At the end of 1998, it was responsible for US$50 billion and by 2003 it is projected to reach US$1.3 trillion." Richard Comerford, "Technology 2000 Analysis & Forecast:The Internet," IEEE Spectrum, January 2000, at 40, 44.
3. For example, under United States law, copyright protection subsists only in "works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. § 102(a).
4. 991 F.2d 511 (9th Cir. 1993), cert, dismissed, 114 S. Ct. 672 (1994).
5. World Intellectual Property Organization Copyright Treaty, Apr. 12, 1997, S.Treaty Doc. No. 105-17 (1997).
6. World Intellectual Property Organization Performances and Phonograms Treaty,Apr. 12, 1997, S.Treaty Doc. No. 105-17 (1997).
7. If any packet is lost along the way, the originating computer automatically resends it, likely along a different path than the lost packet was originally sent.
8. Mark A. Lemley "Dealing with Overlapping Copyrights on the Internet," 22 U.Dayton L. Rev. 547, 555 (1997).
9. Even if a complete copy of the picture is not intentionally stored on the recipient computer's hard disk, most computers enhance performance of their memory by swapping certain data loaded in RAM onto the hard disk to free up RAM for other data, and retrieving the swapped data from the hard disk when it is needed again. Some of this swapped data may be left on the hard disk when the computer is turned off, even though the copy in RAM has been destroyed.
10. 17 U.S.C. § 101.
11. The word 'image' is being used here to refer to an image of data stored in RAM to avoid use of the word 'copy', which is a legal term of art. Whether an image of data in RAM should be deemed a 'copy' for copyright law purposes is the question at issue.
12. Information Infrastructure Task Force, "Intellectual Property and the National Information Infrastructure:The Report of the Working Group on Intellectual Property Rights" at 27 (1995).
13. 17 U.S.C. § 101 (definition of "fixed in a tangible medium of expression").
14. H.R. Rep. No. 94-1476, at 53 (1976), reprinted in U.S.C.C.A.N. 5659, 5666.
15. But see R. Nimmer, Information Law ¶ 4.02[2], at 4-6 (1996) ("This language refers to subject matter protection and not whether particular acts create an infringing copy. The exclusion of transient works refers to the work itself, not a copy. It presumes that there was no copy of the work other than the transient display or memory.")
16. 991 F.2d 511 (9th Cir. 1993), cert. dismissed, 114 S. Ct. 672 (1994).
17. Id. at 518.
18. 991 F.2d at 518.
19. 45 F.3d 231 (7th Cir. 1995).
20. Id. at 236.
21. 964 F.2d 965 (9th Cir. 1992).
22. See Stenograph L.L.C. v Bossard Assocs, 144 F.3d 96 (D.C. Cir. 1998) (holding that an infringing copy of a computer program was made when that program was loaded into RAM upon boot up and used for its principal purposes); Triad Sys. v Southeastern Express Co., 64 F.3d 1330 (9th Cir. 1995), cert. denied, 116 S. Ct. 1015 (1996); Intellectual Reserve Inc. v Utah Lighthouse Ministry Inc., 1999 U.S. Dist. LEXIS 19103 (D. Utah Dec. 6, 1999); Tiffany Design Inc. v Reno-Tahoe Specialty Inc., 55 F. Supp. 1113 (D. Nev. 1999); Marobie-FL Inc. v National Association of Fire Equipment Distributors, 45 U.S.P.Q.2d 1236 (N.D. Ill. 1997); Advanced Computer Servs. v MAI Sys., 845 F. Supp. 356 (E.D. Va. 1994); see also 2 M. Nimmer & D. Nimmer, Nimmer on Copyright § 8.08[A][1], at 8-114 (1999) (suggesting that RAM copies are fixed).
23. See Vault Corp. v Quaid Software Ltd, 847 F.2d 255, 260 (5th Cir. 1988) ("the act of loading a program from a medium of storage into a computer's memory creates a copy of the program"); Apple Computer Inc. v Formula Int'l, 594 F. Supp. 617, 621 (C.D. Cal. 1984) (noting that copying a program into RAM creates a fixation, albeit a temporary one); Telerate Sys. v Caro, 8 U.S.P.Q.2d 1740 (S.D.N.Y. 1988) (holding that the receipt of data in a local computer constituted an infringing copy).
24. Advanced Computer Services v MAI Systems, 845 F. Supp. 356, 363 (E.D.Va. 1994).
25. 53 U.S.P.Q.2d 1425 (D.Utah 1999).
26. Id. at 1428.
27. WIPO is a United Nations organization which handles questions of copyrights and trademarks.
28. The treaties enter into force three months after 30 instruments of ratification or accession by member States have been deposited with the Director General of WIPO.
29. Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments - Results of the Uruguay Round, Vol. 31; 33 I.L.M. 81 (1994).
30. The proposed WIPO Treaty on Intellectual Property in Respect of Databases generated huge controversy, and was not adopted at the Conference. "WIPO Delegates Agree on Two Treaties," 2 BNA's Electronic Info. Pol'y & L. Rep. 22, 22 (1997).
31. Berne Convention for the Protection of Literary and Artistic Works, 9 September 1886, 828 U.N.T.S. 221.
32. International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, 26 October 1961, 496 U.N.T.X. 43.
33. Vienna Convention on the Law of Treaties, 23 May 1969, art. 31(2), 1155 U.N.T.S. 331.
34. WIPO Copyright Treaty, Preamble, at 4; WIPO Performances and Phonograms Treaty, Preamble, at 22.
35. 1998 O.J. (C 108) 6.
36. The EC Directive was first circulated for comments among European legal experts. It was then officially published at the end of 1997 for a more public debate of its provisions.
37. The WIPO Copyright Treaty contains a number of important provisions relevant to the Internet that are not discussed elsewhere in this paper. Article 2 codifies the idea/expression dichotomy of copyright law: "Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such." Article 4 expressly extends copyright protection to computer programs in all forms as literary works: "Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression." Article 5 adopts the approach of the Supreme Court's decision in Feist Publications Inc. v Rural Telephone Serv., 499 U.S. 340 (1991), which held that only the selection or arrangement of a compilation of facts such as a database, and not the facts themselves, can be protected under copyright. Article 5 provides: "Compilations of data or other material, in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations, are protected as such. This protection does not extend to the data or the material itself and is without prejudice to any copyright subsisting in the data or material contained in the compilation." The proposed WIPO Treaty on Intellectual Property in Respect of Databases would have extended protection to the information itself in a database where such database was the fruit of substantial labour to compile. Basic Proposal for the Substantive Provisions of the Treaty on Intellectual Property in Respect of Databases to be Considered by the Diplomatic Conference, art. 1(1), WIPO Doc. CRNR/DC/6 (Aug. 30, 1996) 〈http://www.wipo.org/eng/diplconf/ 6dc_all.htm〉.The controversy generated by this Treaty precluded its adoption by WIPO. Article 7(1) provides that authors of computer programs, cinematographic works, and works embodied in phonograms shall enjoy the exclusive right of authorizing commercial rental to the public of the originals or copies of their works. Under Article 7(2), this rental right does not apply "in the case of computer programs where the program itself is not the essential object of the rental" or "in the case of cinematographic works, unless such commercial rental has led to widespread copying of such works materially impairing the exclusive right of reproduction." The Agreed Statement for Articles 6 and 7 notes that the expressions 'copies' and 'original and copies', being subject to the right of rental, "refer exclusively to fixed copies that can be put into circulation as tangible copies". Article 6 of an earlier draft of the treaty would have required Contracting Parties to abolish non-voluntary broadcasting licenses within seven years of ratifying or acceding to the Treaty.This Article was deleted in the final adopted version.
38. Although this provision apparently was designed to ameliorate the potential mischief that might result from deeming all interim copies of a work in the course of transmission to be within the copyright owner's rights, it suffered from a number of potential problems. First, it would have left the issue up to the individual Contracting Parties whether to legislate exemptions. Thus, some Contracting Parties could have legislated such exemptions, while others did not, and the scope of the exemptions could have varied from country to country. As a result, whether interim copies during the course of transmission constitute infringement could have turned on the countries through which the transmission path passes, which is arbitrary under the current transmission technology of the Internet. Second,Article 7(2) stated that the exemptions would apply only to transient or incidental reproductions taking place in the course of an authorized use of a work. Thus, if the transmission itself is unauthorized, the exemptions would not have applied, and there could still have been potential liability for the interim reproductions. Yet the operators of the node computers in which the interim copies are made would have no way of knowing whether any particular packet passing through the node is part of an authorized transmission. Article 7(2) therefore was flawed. Article 10(1) of the adopted version affords a more generic vehicle for the adoption of exemptions or exceptions to rights conferred in the Treaty:"Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty to an extent consistent with exceptions or limitations provided for in the Berne Convention in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author." The requirement that exceptions "not unreasonably prejudice the legitimate interests of the author" provides little guidance as to where the boundaries should lie around exceptions that Contracting Parties may wish to adopt in implementing legislation. The Agreed Statement concerning Article 10 does nothing to clarify the uncertainty: "It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment."
39. "WIPO Delegates Agree on Two Treaties," 2 BNA's Electronic Info. Pol'y & L. Rep. 22, 22 (1997).
40. Id.
41. Article 9(2) of the Berne Convention provides, "It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author."
42. "WIPO Delegates Agree on Two Treaties," 2 BNA's Electronic Info. Pol'y & L. Rep. 22, 22-23 (1997).
43. Article 11(2) in an earlier draft, similar to the proposed and later deleted Article 7(2), was also deleted. Article 11(2) would have provided: "Subject to the conditions under, and without prejudice to the scope of applicability of, Article 19(2), it shall be a matter for legislation in Contracting Parties to limit the right of reproduction in cases where a temporary reproduction has the sole purpose of making the phonogram audible or where a temporary reproduction is of a transient or incidental nature, provided that such reproduction takes place in the course of use of the phonogram that is authorized by the producer of the phonogram or permitted by law in accordance with this Treaty."
44. The WIPO Performances and Phonograms Treaty contains a number of important provisions relevant to the Internet that are not discussed elsewhere in this paper. Article 4 requires Contracting Parties to afford national treatment to nationals of other Contracting Parties. Article 5(1) affords moral rights to performers: "Independently of a performer's economic rights, and even after the transfer of those rights, the performer shall, as regards his live aural performances or performances fixed in phonograms, have the right to claim to be identified as the performer of his performances, except where omission is dictated by the manner of the use of the performance, and to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation." A proposed Article 5(4), which was deleted in the final version, would have allowed any Contracting Party to declare in a notification deposited with the Director General of WIPO that it will not apply the provisions of Article 5. Article 6 grants performers the exclusive right of authorizing the broadcasting and communication to the public of their unfixed performances (except where the performance is already a broadcast performance) and the fixation of their unfixed performances. Articles 9 and 13 grant performers and producers of phonograms, respectively, the exclusive right of authorizing the commercial rental to the public of the original and copies of their performances fixed in phonograms and of their phonograms. Article 15 provides that "[p]erformers and producers of phonograms shall enjoy the right to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes for broadcasting or for any communication to the public." The Agreed Statement for Article 15 provides: "It is understood that Article 15 does not represent a complete resolution of the level of rights of broadcasting and communication to the public that should be enjoyed by performers and phonogram producers in the digital age. Delegations were unable to achieve consensus on differing proposals for aspects of exclusivity to be provided in certain circumstances or for rights to be provided without the possibility of reservations, and have therefore left the issue to future resolution." Under Article 17(1), the term of protection to be granted to performers under the Treaty is at least 50 years from the end of the year in which the performance was fixed in a phonogram. Under Article 17(2), the term of protection to be granted to producers of phonograms under the Treaty is at least 50 years from the end of the year in which the phonogram was published, or failing such publication within 50 years from fixation of the phonogram, 50 years from the end of the year in which the fixation was made.
45. Article 16 affords a generic vehicle for the adoption of exemptions or exceptions to rights conferred in the Treaty. Article 16(1) provides that "Contracting Parties may, in their national legislation, provide for the same kinds of limitations or exceptions with regard to the protection of performers and producers of phonograms as they provide for in their national legislation, in connection with the protection of copyright in literary and artistic works." Article 16(2) provides, however, similar to the WIPO Copyright Treaty, that "Contracting Parties shall confine any limitations of or exceptions to rights provided for in this Treaty to certain special cases which do not conflict with a normal exploitation of the phonogram and do not unreasonably prejudice the legitimate interests of the performer or of the producer of phonograms."
46. Religious Technology Center v Netcom On-Line Communications Servs., 907 F. Supp. 1361, 1367 & n. 10 (N.D. Cal. 1995); R. Nimmer, Information Law ¶ 4.06, at 4-25 (1996). Intent can, however, affect statutory damages to be awarded to the plaintiff. Netcom, 907 F. Supp. at 1367.
47. But cf. R. Nimmer, Information Law ¶ 4.06, at 4-25 (1999 Cum. Supp. No. 3) ("Although copyright is a strict liability statute, there should be some [sort] of volition or causation which is lacking where a defendant's system is merely used to create a copy by a third party.").
48. 907 F. Supp. 1361 (N.D. Cal. 1995).
49. In an earlier order, the court had entered a preliminary injunction against Erlich himself.
50. The Usenet is "a worldwide community of electronic BBSs that is closely associated with the Internet and with the Internet community.The messages in Usenet are organized into thousands of topical groups, or 'Newsgroups'....As a Usenet user, you read and contribute ('post') to your local Usenet site. Each Usenet site distributes its users' postings to other Usenet sites based on various implicit and explicit configuration settings, and in turn receives postings from other sites." Daniel P. Dern, The Internet Guide for New Users 196-97 (1994).
51. Netcom, 907 F. Supp. at 1367.
52. Id. at 1368.
53. Id.
54. Id. at 1369.
55. Id. at 1370.
56. Id. at 1370-71 (emphasis in the original).
57. Id. at 1370.
58. H.R. Rep. No. 105-551 Part 1, at 11, 24 (1998).
59. 948 F. Supp. 923 (N.D. Cal. 1996).
60. Id. at 928.
61. Id. at 929.The Super Magic Drive consisted of a connector which plugged into the video game console, a receptacle which accepted video game cartridges, a main unit having a RAM to store games, and a floppy disk drive. "A MAPHIA BBS user can download video programs through his or her computer onto a floppy disk and make copies with his or her computer or play those game programs through the adaptor drive. To play a downloaded game, the user places the floppy disk into the video game copier. The user can choose the 'run program' option and run the video game program from the floppy disk without a video game cartridge. The adaptor drive also allows the user to copy the contents of a game cartridge onto a floppy disk." Id.
62. Id. at 932.
63. Id. (citations to Netcom omitted). An earlier opinion in the case, issued in conjunction with the granting of a preliminary injunction to Sega, although somewhat unclear in its holding, seemed to suggest that the defendants could be held liable for direct infringement, at least for the unauthorized copies being uploaded through the bulletin board, although not for the subsequent downloading of copies by user of the bulletin board See Sega Enterprises Ltd v MAPHIA, 857 F. Supp. 679, 683 (N.D. Cal. 1994).The court in the later opinion, however, disavowed this interpretation of its earlier opinion. With respect to its earlier order granting a preliminary injunction, the court stated, "To the extent that order can be read to suggest that Sherman may be liable for direct copyright infringement, it is clarified and superseded by this order." Sega Enterprises Ltd v MAPHIA, 948 F. Supp. 923, 932 n.5 (N.D. Cal. 1996). The court also rejected a fair use defence raised by Sherman. With respect to the first fair use factor, the purpose and character of the use, the court found that Sherman's activities in encouraging the uploading and downloading of Sega's games was clearly commercial. "Sherman intended to profit directly from the content of the information made available on his BBS because his copier customers could use the game files to play the games rather than purchase Sega game cartridges. This distinguishes Sherman from the Internet provider in Netcom who did not gain anything from the content of the information available to subscribers." Id. at 934. With respect to the second fair use factor, the nature of the copyrighted work, the court noted that the Sega video games were for entertainment uses and involved fiction and fantasy, so that the second factor weighed against fair use. Id. The court found that the third factor, the extent of the work copied, weighed against fair use because BBS users copied virtually entire copyrighted works, and Sherman had not shown any public benefit or explanation for the complete copying. Id. at 935. Finally, the court found that the fourth factor, the effect of the use upon the market, also weighed against fair use. "Even if the users are only playing the games in their own homes and even if there are currently only a limited number of users that have copiers, unrestricted and widespread conduct of this sort would result in a substantial adverse impact on the market for the Sega games." Id.
64. 1997 Copyr. Law. Dec. ¶ 27,648 (N.D. Cal. Dec. 18, 1996).
65. Id. at 29,847-48.
66. Id. at 29,848.
67. 76 F.3d 259, 264 (9th Cir. 1996).
68. Sabella, 1997 Copyr. Law. Dec. ¶ 27,648 at 29,849.
69. Another recent case applied the Fonovisa standard to hold the defendant Cyrix Corporation liable for contributory infringement for posting on its website some copyrighted applet software of the plaintiff from which it could be downloaded for use with the defendant's sound boards. "Cyrix is probably also contributorily liable because it encouraged and provided the resources for known infringing activity, i.e. the copying by others of the applet software that Cyrix made available on its website." Creative Labs Inc. v Cyrix Corp., 42 U.S.P.Q.2d 1872, 1875-76 (N.D. Cal. 1997).
70. Sabella, 1997 Copyr. Law. Dec. ¶ 27,648 at 29,849.
71. 839 F. Supp. 1552 (M.D. Fla. 1993).
72. Id. at 1554.
73. Id. at 1556.
74. K. Stuckey Internet and Online Law § 6.10[1][b], at 6-68 (1999).
75. H.R. Rep.No. 105-551 Part 1, at 11 (1998).
76. 968 F. Supp. 1171 (N.D.Tex. 1997)
77. Id. at 1175.
78. Id. The court also held that the principals of Webbworld could be held vicariously liable for the infringements. Although the principals had no control over those responsible for originally uploading the infringing images onto the Internet sites from which Webbworld drew its images, the principals had the right and ability to control what occurred on the Neptics website. The court ruled that the $11.95 subscription fee gave the principals a sufficient direct financial benefit from the infringing activity to hold them vicariously liable. Id. at 1177. The court made its rulings in the context of a motion for summary judgment by the plaintiff. The court granted summary judgment of infringement with respect to 62 copyrighted images, but denied summary judgment with respect to 16 additional images because of the presence of material issues of fact. In a subsequent ruling, the court found the defendants directly and vicariously liable with respect to these 16 additional images based on a similar legal analysis of liability. See Playboy Enterprises Inc. v Webbworld Inc., 45 U.S.P.Q.2d 1641 (N.D.Tex. 1997).
79. 1998 U.S. Dist. LEXIS 5125 (S.D. Cal. 1998).
80. Id. at *18-19.
81. The plaintiff requested an astronomical $285 420 000 in statutory damages ($20 000/image for 5776 images that were not willfully infringed, and $100 000/image for 1699 images that were willfully infringed).
82. Los Angeles Times v Free Republic 54 U.S.P.Q.2d 1453, 1455-56 (C.D. Cal. 2000).
83. Id. at 1457.
84. Id. at 1454-55.
85. The court limited its opinion to the availability of the defences on which the defendants had moved for summary judgment. The court stated it was expressing no opinion as to whether, "given that the 'copying' of news articles at issue in this case is to a large extent copying by third-party users," the plaintiffs could prove a claim against the defendants for copyright infringement. Id. at 1458.
86. Id. at 1460-61.
87. Id. at 1461 & 1463-64. The most telling fact on the latter point was that the Free Republic provided a hypertext link to Jewish World Review's website at its request, and asked that Free Republic visitors no longer copy the publication's articles verbatim. Id. at 1463.
88. Id. at 1464-66.
89. Id. at 1467.
90. Id. at 1468.
91. Id. at 1470-71. The court rejected the defendants' argument that its site was increasing hits to the plaintiffs' sites through referrals off its own site, noting that the defendants had not addressed how many hits to the plaintiffs' sites were diverted away as a consequence of the posting of articles to the Free Republic. The court also cited several cases rejecting the argument that a use is fair because it increases demand for the plaintiff's copyrighted work. Id. at 1471.
92. Id. at 1472.
93. Id. at 1472-73.
94. Complaint for Copyright Infringement, UMG Recordings Inc. v MP3.com, Inc., No. 00 Civ. 0472 (S.D.N.Y. Jan. 21, 2000).
95. Id. ¶ 4 & App.A.
96. Id.
97. UMG Recordings Inc. v MP3.com Inc., 54 U.S.P.Q.2d 1668, 1670 (S.D.N.Y. 2000).
98. Id.
99. Section 1008 provides: "No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analogue recording device, or an analogue recording medium, or based on the non-commercial use by a consumer of such a device or medium for making digital musical recordings or analogue musical recordings." 17 U.S.C. § 1008.
100. Pub. L. No. 102-563, 106 Stat. 4244 (1992).
101. "Thus, although defendant seeks to portray its service as the 'functional equivalent' of storing its subscribers' CDs, in actuality defendant is re-playing for the subscribers converted versions of the recordings it copied, without authorization, from plaintiffs' copyrighted CDs. On its face, this makes out a presumptive case of infringement under the Copyright Act of 1976..." 54 U.S.P.Q.2d at 1670.
102. Id. at 1671.
103. Id. Contrast this holding with the Ninth Circuit's statement in RIAA v Diamond Multimedia Sys., 180 F.3d 1072, 1079 (9th Cir. 1999), in which the Ninth Circuit found space shifting of a recording from a CD onto the "Rio" portable MP3 player device (through a process known as 'ripping', or re-encoding of music data encoded in CD format into the MP3 file format) to be "paradigmatic non-commercial personal use entirely consistent with the purposes of the [Audio Home Recording Act]."
104. UMG, 54 U.S.P.Q.2d at 1671.
105. Id.
106. Id.
107. Id. at 1672.
108. Id.
109. See Jon Healey "MP3.com Settles with BMG, Warner," San Jose Mercury News (10 June 2000), at 1A.
110. Pub. L. No. 105-304, 112 Stat. 2860 (1998).
111. 17 U.S.C. § 117.
112. EC Directive, art. 2.
113. Id. art. 3.
114. Id. art. 4.
115. Id. arts. 6-7.
116. Commentary to Art. 2, ¶ 2.
117. Id. ¶ 3.
118. Arts. 5(2) and 5(3) also allow member states to elect to provide exceptions from the reproduction right for certain paper copies using photocopying or other similar techniques, for audio or audio-visual recordings for personal and non-commercial uses, for copies made by public establishments which are not for commercial advantage, and for teaching, scientific research, use by the handicapped, reporting current events, criticism, and public security. Art. 5(4) provides that all exceptions to the reproduction right "may not be interpreted in such a way as to allow their application to be used in a manner which unreasonably prejudices the rightholders' legitimate interests or conflicts with normal exploitation of their works or other subject matter."
119. An earlier version of Art. 5(1) provided that the use of the work must be "authorized or otherwise permitted by law". A copy of an earlier version of the EC Directive and comments may be found at 〈http://www.bna.com/e-law/docs/ecdraft.html〉 (last modified 2 December 1997).