Project Looking Forward

Sketching the Future of Copyright

in a Networked World

Final Report

May 1998

Prepared for the U.S. Copyright Office by

Professor I. Trotter Hardy

College of William and Mary

 School of Law
Library of Congress Cataloging-in-Publication Data

Hardy, I.Trotter.

 Project looking forward: sketching the future of copyright in a networked world,

May 1998 / final report by I. Trotter Hardy.

p. cm.

 1. Copyright and electronic data processing—United States.

 2. Internet (Computer network). I. Title.

 KF3030.1.H37 1998 98-27418

 346.7304’82—dc21 CIP
 No copyright is claimed in this report by the U.S. Copyright Office or Professor

I.Trotter Hardy. Any use of the material contained herein should be accompanied by a

citation to its source.


Contents—Summary

Executive Summary _______________________ 11

What is the Internet?_____________________________ 11

Technologies relevant to copyright ________________ 13

Today’s legal issues______________________________ 15

Tomorrow’s issues ______________________________ 18

Three patterns of copyright and technology_________ 24

Copyright in a rapidly changing environment_______ 27

1. Introduction___________________________ 29

Methodology ___________________________________ 30

About names used in this Report __________________ 31

About predictions in this Report __________________ 31

2. How the Internet Works Today ____________ 33

2.1 Mechanics of switching_______________________ 35

2.2 Internet geography __________________________ 38

2.3 Internet switching technology _________________ 40

2.4 User capabilities _____________________________ 43

2.5 Who pays for the Internet? ____________________ 46

2.6 How big is the Internet? ______________________ 51

3. How the Internet Will Work Tomorrow _____ 53

3.1 Mechanics __________________________________ 54

3.2 Players and Organizations ____________________ 98

3.3 User Capabilities ___________________________ 105

4. Today’s Legal Issues ___________________ 119

4.1 Web posting _______________________________ 121

4.2 Caching ___________________________________ 124

4.3 RAM copies________________________________ 128

4.4 Intermediaries’ liability______________________ 133
Contents—Summary



4.5 Wide-spread copying _______________________ 150

4.6 Digital registration and deposit_______________ 151

5. Tomorrow’s Issues _____________________ 153

5.1 Technology and new issues __________________ 154

5.2 “Pure” copyright issues _____________________ 157

5.3 Copyright and other laws____________________ 217

6. Analysis _____________________________ 237

6.1 Three Patterns of Copyright and New Technology238

6.2 History and Analysis of the Three Patterns_____ 244

6.3 Copyright in a rapidly changing environment __ 277

7. Conclusion ___________________________ 283

Today’s Legal Issues ____________________________ 284

Tomorrow’s Issues _____________________________ 285

Three patterns of copyright and new technology ___ 287

Copyright in a rapidly changing environment______ 289

8. Appendices___________________________ 291

8.1 People interviewed _________________________ 293

8.2 Presentations_______________________________ 299

8.3 Glossary___________________________________ 301


Contents—Details

Executive Summary _______________________ 11

What is the Internet?_____________________________ 11

Technologies relevant to copyright ________________ 13

Today’s legal issues______________________________ 15

Tomorrow’s issues ______________________________ 18

Three patterns of copyright and technology_________ 24

Copyright in a rapidly changing environment_______ 27

1. Introduction___________________________ 29

Methodology ___________________________________ 30

About names used in this Report __________________ 31

About predictions in this Report __________________ 31

2. How the Internet Works Today ____________ 33

2.1 Mechanics of switching_______________________ 35

2.2 Internet geography __________________________ 38

2.3 Internet switching technology _________________ 40

2.4 User capabilities _____________________________ 43

Intranets _____________________________________________43

Search engines ________________________________________44

2.5 Who pays for the Internet? ____________________ 46

Backbone networks ____________________________________46

Regional networks_____________________________________48

Local networks________________________________________49

Network access points _________________________________49

2.6 How big is the Internet? ______________________ 51

3. How the Internet Will Work Tomorrow _____ 53

3.1 Mechanics __________________________________ 54

Economics and pricing _________________________________57

Encryption ___________________________________________61

Electronic copyright management systems________________69
Contents—Details



Digital containers, objects____________________________ 71

“Superdistribution” ________________________________ 75

Proprietary viewers ___________________________________ 76

Fingerprinting, watermarking___________________________ 78

Handles _____________________________________________ 84

Repositories __________________________________________ 86

Convergence of media _________________________________ 86

Dispersed works ______________________________________ 90

Image searching ______________________________________ 91

Push versus pull technology ____________________________ 92

Customized information delivery_____________________ 94

Software agents ____________________________________ 95

3.2 Players and Organizations ____________________ 98

Content providers and carriers __________________________ 98

Everyone will not be a publisher _______________________ 100

Commercial vs. academic entities_______________________ 103

3.3 User Capabilities ___________________________ 105

Internet as backdrop__________________________________ 105

“Ubiquitous computing” ______________________________ 106

Software subscriptions ________________________________ 108

Reading from books versus computer screens ____________ 112

Real time audio and video_____________________________ 115

Interactive “chat” ____________________________________ 117

4. Today’s Legal Issues ___________________ 119

4.1 Web posting _______________________________ 121

4.2 Caching ___________________________________ 124

4.3 RAM copies________________________________ 128

4.4 Intermediaries’ liability______________________ 133

Intermediaries: analysis _______________________________ 135

Direct infringement___________________________________ 137

Strictness in copyright cases ________________________ 139

The tailoring of remedies as a compromise ____________ 142

Vicarious and contributory liability _____________________ 143

Intermediaries: conclusions ____________________________ 149

4.5 Wide-spread copying _______________________ 150

4.6 Digital registration and deposit_______________ 151

The Copyright Office as central repository _______________ 151
Contents—Details



5. Tomorrow’s Issues _____________________ 153

5.1 Technology and new issues __________________ 154

5.2 “Pure” copyright issues _____________________ 157

Non-public posting ___________________________________157

“Live” information and display forms ___________________162

Factual information ___________________________________164

Avatars _____________________________________________169

Internet broadcasting _________________________________170

In-line linking and framing ____________________________171

Authorization and extra-territoriality____________________178

Works of visual art ___________________________________183

RAM copies and personal privacy ______________________186

RAM copies and junk e-mail and other inflows ___________190

Hypertext links out ________________________________193

Changes in pricing structure ___________________________194

Computer-generated works ____________________________195

Multiple authorship __________________________________197

Libraries, archives, search sites _________________________199

Statutory provisions for archives_____________________201

Facsimile copies of printed text ______________________202

Facsimile copies of digital text _______________________205

Search sites as reproductions ________________________206

Metered use _________________________________________210

Filtering_____________________________________________214

5.3 Copyright and other laws____________________ 217

Copyright and communications law_____________________219

Copyright and bailment law ___________________________224

Copyright and contract law ____________________________229

Copyright and the Uniform Commercial Code____________231

6. Analysis _____________________________ 237

6.1 Three Patterns of Copyright and New Technology238

New subject matter ___________________________________238

New use of existing works _____________________________240

“Decentralized infringement” __________________________240

Another pattern: contract interpretation _________________242

6.2 History and Analysis of the Three Patterns_____ 244

Subject matter: issues _________________________________244

Subject matter: analysis________________________________246

New uses: issues _____________________________________248
Contents—Details



New uses of music ________________________________ 248

Radio ____________________________________________ 250

Cable ____________________________________________ 252

New uses: analysis ___________________________________ 256

Decentralized infringement: issues _____________________ 259

Private guidelines _________________________________ 260

Statutory immunization and compulsory license_______ 261

Fair use versus contributory infringement ____________ 262

Decentralized infringement: analysis____________________ 264

Do nothing _______________________________________ 264

Increase penalties _________________________________ 265

Educate the public_________________________________ 266

Make it lawful ____________________________________ 267

Technological responses____________________________ 269

Summary and conclusion on decentralized infringement __ 276

6.3 Copyright in a rapidly changing environment __ 277

7. Conclusion ___________________________ 283

Today’s Legal Issues ____________________________ 284

Tomorrow’s Issues _____________________________ 285

Three patterns of copyright and new technology ___ 287

Copyright in a rapidly changing environment______ 289

8. Appendices___________________________ 291

8.1 People interviewed _________________________ 293

8.2 Presentations_______________________________ 299

8.3 Glossary___________________________________ 301


List of Figures

Figure 1: Map of Internet connectivity in June, 1996, from

<http://www.isoc.org/images/mapv15.gif> on

February 23, 1997. ________________________________________38

Figure 2: Map of Internet connectivity in June, 1997, from

<ftp://ftp.cs.wisc.edu/connectivity_table/Connectivit

y_Map.color.bmp> on January 25, 1998. ____________________39

Figure 3: MCI’s 1995 Internet backbone network, from

<http://www.mci.net/bipp95.html> on October 28,

1996.____________________________________________________47

Figure 4: MCI’s planned 1996 Internet backbone network,

from <http://www.mci.net/bipp96.html> on October

28, 1996._________________________________________________48

Figure 5: Map showing Internet “Network Access Points,”

where various backbone networks connect to each

other, from

<http://www.cerf.net/cerfnet/about/interconnects/

NSP-img_map.gif> on October 10, 1996. ____________________50

Figure 6: Screen capture of one form of digital object

technology from the IBM Corporation, from

<http://www.infomarket.ibm.com/> in the Fall of

1996.____________________________________________________73

Figure 7: One non-watermarked, and one invisibly

watermarked, images from the DigiMarc Corporation,

from <http://www.digimarc.com/wt_page.html> on

December 12, 1996. _______________________________________79

Figure 8: Screen capture of a visibly watermarked image

from the Corbis Corporation,

<http://www.corbis.com> on December 12, 1996.____________83

Figure 9: Screen capture showing live television broadcast

of a soccer game in Spain, from

<http://www.crtvg.es/tvrede/privideo.htm> on

September 6, 1997.________________________________________88

Figure 10: Screen capture of TotalNews home page, from

<http://www.totalnews.com> on March 9, 1997.____________173
List of Figures



Figure 11: Screen capture showing what appears after

clicking on the “CNN Interactive” button in the left

frame of the TotalNews home page, from

<http://www.totalnews.com> on March 9, 1997.____________174

Figure 12: Screen capture of the TotalNews web site, from

<http://www.totalnews.com> on February 23, 1998. ________176

Figure 13: Screen capture of the TotalNews site after

clicking on the “CNN Interactive” button. Notice that a

new window has opened and that the CNN site is no

longer framed. From <http://www.totalnews.com>

(in the background) and <http://cnn.com> (in the

foreground) on February 23, 1998. _________________________177

Figure 14: Information gathered and stored at the Iinternet

Archives, from <http://www.archive.org> on March

14, 1997. _______________________________________________200

Figure 15: Screen capture from

<http://www.audionet.com>, showing the site as it

normally appeared on November 11, 1996. _________________273

Figure 16: Screen capture of the Web page in Figure 15

saved with a “single button press” (actually using a

browser’s “File Save As” menu command and

reloaded into the browser as a file from the author’s

disk storage). ___________________________________________274
	



Executive

Summary

Executive summaries are usually one or two pages. This one is

longer—about sixteen pages—but it includes the major points of

this Report. A much shorter summary appears in section

7. Conclusion, at page 283.

What is the Internet?

The Internet is not a “thing” so much as a word that describes

both a loosely connected set of computers and the technology that

allows them to communicate. It provides a means of transmitting

anything that can be represented in “digital” form—text, images,

music, videos, cartoons, animations, voice, diagrams,

photographs, etc. Millions of computers and tens of millions of

people are connected with this technology. The amount of

information residing on all the computers connected in this way

around the world is quite large, though often overestimated: all

the computers connected to the Internet as of mid-winter, 1996,

contained less than the amount of information residing on a

single large information service like Lexis.

Circuit and packet switching. Networks before the Internet, such

as the telephone network, were usually “circuit switched.” That

is, when a call was placed, telephone company equipment would

set up an electrical path from calling party to called party. The

entire conversation would flow over that same path; the path

would be reserved for the use of the caller for the duration of the

call.

Internet and other computer networks work differently; they are

based not on “circuit switching” but “packet switching.”

Transmission is effected by breaking up whatever information is
Executive Summary 

	



to be sent into small “packets” that are individually routed.

Routing is done by computers that are connected to the Internet.

A single transmission of, e.g., a twenty-page document, might be

accomplished with several dozen packets, each of which might

travel a different path through the network. Computers at the

sending end are responsible for creating the packets; at the

receiving end, computers re-assemble the packets back into a

single document.

Network technology is a subject of constant research, but the basic

idea of packets that are individually routed or “switched” among

computers is likely to remain for years to come—if for no other

reason than the inertia of current huge investments and reliance

on this particular technology. These networks will, however,

continue to operate at faster and faster speeds.

Flat-rate pricing to disappear. Most users today pay a single flat

rate for basic access to the Internet. This will almost certainly

change. In time, users will not buy generic “Internet access”; they

will either buy a type of access, such as “e-mail access” or

“telephony access” or “video access,” or they will buy different

amounts of transmission capacity called “bandwidth,” or a

combination of these two. Prices for the lower-end services will

likely be very low—within the reach of nearly anyone.

Intranets. New uses of the Internet and digital technology

generally are being developed and refined rapidly. The same

technology that allows messages to be sent around the world can

also be used to send messages down the hall. Many organizations

today are using this technology to support “in-house” e-mail,

document transfer, and so on. These in-house Internets are often

called “intra-nets.”
Executive Summary

	



Technologies relevant to copyright

A lot of new technologies have copyright significance. Some

important ones are described here.

Encryption. Packet switching technology means that messages

travel through many different computers, each of which can be

owned and controlled by almost anyone located almost

anywhere. Consequently, security of Internet communications,

including some assurance of privacy, is an altogether different

matter than it has been for telephone or paper mail

communication. Encryption is therefore an essential element of

the Internet of tomorrow.

Electronic Copyright Management Systems. Some of today’s

technology research is directed toward making digital works

harder to copy or easier to license. These schemes are often

lumped under the single heading “Electronic Copyright

Management Systems” or “ECMS.” The most basic systems rely

on “secure transmission” of digital materials between sender and

recipient. A stronger degree of protection can be created with a

centralized source of access to copyrighted material. For example,

a user might gain access to an entire lengthy work like a novel or

movie, but with access only for purposes of making use of the

work while “connected” to the source site.

Digital objects. A “digital object” is a unit of information such as

a story, a movie, an image, a game, a computer program, or any

other informational work, that is encrypted and then “wrapped”

inside a software “envelope.” Anyone receiving a copy of a digital

object would be able to read the “wrapper.” Access to the

encrypted contents would, however, be conditioned on

acceptance of terms specified in the wrapper, such as payment of

a royalty fee.

Proprietary viewers. With some technologies, a digital object that

is unencrypted (after, say, payment of the appropriate fee)
Executive Summary 

	



becomes a digital work that is “in the clear”: no longer encrypted.

The work can be further copied or distributed without

authorization. Another technology, called “proprietary viewer”

technology, changes that outcome. A proprietary viewer is a

computer program that keeps a digital object always under its

control. For example, if a buyer of an encrypted novel satisfied the

conditions for decrypting the novel, the decryption would remain

under the control of the proprietary viewer program. The

proprietary viewer program would not allow the user to make

unauthorized uses of the work. For instance, if the user had paid

for reading only, the proprietary viewer would prevent the user

from printing out the work, or from making additional copies,

and so on.

Watermarks. A digital watermark is a small, almost unnoticeable

alteration to a digital work like an image, a photograph, or a

sequence of sounds.1 The watermark cannot be perceived with the

human eye, but can be detected with a computer program

designed for the purpose. Watermarks can be used to embed

identifying information into the digital work. Moreover, software

for working with images can automatically detect the hidden

markings and act accordingly: not permit copying, for example. If

the watermark contains a serial number, any given copy of a

watermarked work can be logged and recorded somewhere,

allowing the author to track down the source of unauthorized

copies.

Dispersed works. Web pages are often more than a static

repository of text and graphics. A given “page” may consist of

some material in a single computer file along with links to

information stored in many other files. These other files may

reside on the same computer as the primary “page” or they may

 

1 A work of text cannot as readily be watermarked because any alteration of

the bits would alter the letters or punctuation and show up as an error. A slight

alteration to an image is far less noticeable.
Executive Summary

	



reside anywhere on the Internet. In addition, much of the page

may not “reside” anywhere, but be generated “on the fly” under

the control of computer programs (often written in the

programming language called “Java”). These well-known facts

have a less well-known consequence: much of the material on the

Internet cannot be copied by a “single button press.” There is not a

single “thing” to be copied.

Real time audio and video. A variety of technologies exists to

provide audio in digital format. Many radio stations are now

broadcasting over the Internet simultaneously with the over-theair broadcasts. Other Internet sites have arisen that offer to play

CD’s of the user’s choice, on demand. Similarly, video signals are

also being transmitted over the Internet on a regular basis.

Today’s legal issues

The rate of change in Internet and digital technology is too rapid

for any easy classification of issues as “today’s” or “tomorrow’s.”

The use of these terms in this Report is as a short-hand for issues

that are either widely recognized (“today’s”), or less well known

(“tomorrow’s”).

Web posting as “publication.” Putting material on a Web site

and thereby making it available to a wide audience is not the

same thing as distributing thousands of books or magazines to

retail stores or consumers. At one time, these differences might

have caused some to think that unauthorized Web posting of

copyrighted material was consequently not an infringement.

However, today it seems clear that such a posting violates the

copyright owner’s rights. Less clear is the question whether such

a posting should be considered a public “distribution,” or

“performance,” or a “reproduction.” Less clear as well is the issue

whether such a posting constitutes “publication” for copyright

purposes.
Executive Summary 

	



Caching. Nearly everyone wishes the Internet were faster.

Technologies to speed things up are therefore popular. If a

message (or text file, or image, etc.) can originate at a point closer

to the ultimate consumer rather than farther, or from a computer

that is faster or less congested than another, the consumer will be

able to obtain it more quickly. Mechanisms to do that—to store

information temporarily “closer” to the consumer or on a more

powerful or less congested computer, in order to speed up

access—are referred to as “caching.” When information is

temporarily stored midway between sender and recipient, it is

also copied. Copying invokes copyright, and the issue of whether

temporary storage is a fair use, or impliedly licensed.

RAM copies. “RAM” stands for “random access memory.” It

refers to a type of computer memory, the solid state or “internal”

memory of computers. With present technology, a digital

computer cannot run any of its programs without effecting some

sort of copying of information and data into the computer’s

internal RAM memory. A number of cases have held that loading

instructions from a disk into RAM memory constitutes the

making of a “copy” of the program for copyright purposes. That

is, the process results in the creation of a copy that if not expressly

or impliedly authorized or within some exception such as fair use,

is a potentially infringing violation of the copyright owner’s

rights.

Any access to or use of digital information means access to or use

of information that is under the control of a computer. Access to

digital information therefore entails the running of one or more

computer programs. If a computer program is run, a copy is

created in the computer’s internal memory. There is a link, in

short, between access to digital information and copyright law:

the former implicates the latter. Absent statutory amendments to

the contrary, judicial decisions will likely result in copyright law’s

becoming the means for governing that access and use.
Executive Summary

	



Intermediaries’ Liability. The Internet has given rise to many

organizations whose purpose is to provide individuals with

online information services and access to the Internet. These

“Online Service Providers” or “OSPs”—or for that matter, any

computer on the Internet that forwards information from one

point to another—are thus situated between their usersubscribers, and the Web sites to which these subscribers connect

and browse. Copyright law has a tradition of liability for innocent

infringers. No case so far has held that such an intermediary is

liable in circumstances where the intermediary’s actions were

wholly innocent. Nevertheless, a current issue is whether and to

what extent OSPs as intermediaries ought to be liable for

copyright infringement when their users engage in copyright

infringing activities.

Wide-spread copying. The most obvious concern about copyright

and the Internet today is that a lot of copying takes place over the

Internet. Web pages, graphics, news articles, e-mail messages, and

other digital works are frequently taken from one source and used

in another or circulated to large numbers of people. The

phenomenon of falling reproduction costs resulting in widening

dispersal of reproduction activities is labeled “decentralized

infringement” in this Report. Decentralized infringement has a

long history: photography, photocopying, analog audio tapes,

digital audio tapes, video tapes, computer software, and so on.

Responses to the phenomenon have included the application of

fair use principles; the development of fair use guidelines;

statutory compulsory licenses; application of the doctrine of

contributory infringement; and new technological developments

to raise the cost of unauthorized copying.

Digital registration. Project Looking Forward did not address the

technical issues of digital deposit or registration because the

Copyright Office is actively pursuing those concerns through

other more focused projects like CORDS. But interviews

conducted as part of the project did reveal some misconceptions

in the technical community about the nature and function of the
Executive Summary 

	



Copyright Office as a central repository. In particular, some think

that the Copyright Office’s function is to authenticate authors: to

verify that anyone claiming to have authored a work is in fact the

author. This view can lead to the conclusion that if digital

techniques allow a work to be “self-authenticating,” a central

registry is no longer needed. Much less understood or appreciated

is the fact that the Office’s files provide a means for the public to

track changes of ownership after initial authorship. Digital selfauthentication alone cannot accomplish this type of tracking.

Tomorrow’s issues

Non-public posting. It is generally conceded that the

unauthorized posting of information on a world-wide-accessible

web site constitutes infringement. Whether denominated

“distribution” or “display” or “performance,” the act of such

posting violates the copyright owner’s rights. Crucial to this

conclusion, though, is a finding that something “public” has

happened: either a public distribution, a public display, or a

public performance. Any of those things done privately would

not constitute infringement. Increasingly, Web technology is

being used for less than world-wide access. Corporate “intranets”

exemplify this trend. The narrowing range of accessibility raises

the “slippery slope” issue of when a posting is “public” and when

private. The slippery slope problem is common to all law, and

certainly to copyright law, but the matter is made more difficult

here because the copyright definition of “public” is tied in part to

physical places.

“Live” information and display forms. The Internet will

commonly feature links to changing databases of information.

Users accessing this information through a World Wide Web

“browser” will be able to pull up constantly updated information

that is reformatted on the fly for Web display. The techniques for

doing this live, constant updating of Web page information are

fairly straightforward today, and will only get easier tomorrow.
Executive Summary

	



Copyright law, and particularly the Copyright Office registration

process, will be faced with an enormous amount of frequently

changing information displays, raising the issues of both

copyright registration of rapidly-changing works, and the

copyright of derivative works.

Factual information. Facts are not copyrightable. Much of what

makes the Internet useful is the ability to pull down timely

information on a moment’s notice. Much timely information is

factual: weather, sports scores, locations, directions, forecasts,

departure times, maps, etc. The general prohibition against

copyrighting facts, and the Feist case’s prohibition against

“sweat” copyrights, will prevent copyright protection for these

works. In the absence of other forms of protection, such as for

factual databases, Web site owners who would like to charge for

essentially factual material will find it difficult to do so.

Avatars. Computers can create three-dimensional figures and

animate them. Experiments are already underway on the Internet

in allowing users to create animated figures to represent

themselves for purposes of on-line interactive discussions. Some

obvious questions will arise from this technology: Can one

copyright one’s avatar as a fictional creation? Does this bring into

play other legal issues like trademark and right of publicity?

Internet broadcasting. Today, a number of radio stations are

broadcasting their performances directly over the Internet,

simultaneously with their over-the-air broadcasts. Some video

broadcasting is also being undertaken. The quality of both is

rapidly improving. Because the cost of becoming an Internet radio

or television station is substantially less than becoming a

broadcast station, we will see a large increase in the number of

such stations. For those that are already broadcast entities, and

have been paying ASCAP and BMI royalties, an issue may arise

as to whether that existing royalty payment means that royalties

have “already been paid” and further royalties are not owed. For

new Internet stations, the issue will be whether such stations
Executive Summary 

	



should be treated just like broadcasters for copyright purposes, or

in some other way.

In-line linking and framing. “Framing” is a technique whereby

one Web site’s pages are made to appear in a smaller window

inside another Web site’s page. The copyright issues in framing

have already arisen in litigation, though have not been resolved:

does the provision of such links involve the creation of a “copy?”

A “public display?” A “derivative work?”

Authorization and extra-territoriality. Copyright’s traditional

commitment to “territoriality”—that United States copyright law

does not apply outside the territory of the United States—has led

to judicial decisions holding that an authorization made within

the United States of the use of copyrighted works outside the

United States does not violate an owner’s right to “authorize”

uses of a work under section 106. With the sharp rise in easy

transmission of information around the globe, we will likely see a

sharp increase in the number and variety of such circumstances.

The increase will accordingly put new stress on the interpretation

of the “authorization” right in section 106.

Works of visual art. Parts of the current Copyright Act continue

to be tied to the notion that works of authorship exist in printed or

paper form. The moral rights that inhere in “works of visual art,”

for example, depend on definitions of “works of visual art” that

are directed to traditional media like paper and canvass, rather

than to digital works fixed in electronic form. The application of

these rights to the electronic medium will therefore raise new

issues of interpretation tomorrow.

RAM copies and other issues. When a user browses the WWW

with browser software, the various sites browsed may be able to

gather personal information about that user from the user’s

computer. Copyright does not apply to most personal information

because such information is factual and cannot be considered an

original work of authorship. Yet, information extracted
Executive Summary

	



automatically from a user’s own computer will typically cause

some form of computer processing on that user’s computer. That

computer processing may entail the creation of copies of the

programs in the RAM memory of the user’s computer. Can the

user argue that the copying of programs in that way is a copyright

violation? Similar arguments can be made about the receipt of

unwanted e-mail—receipt takes place under the control of

computer programs on the user’s own computer and hence may

cause some form of copying into the user’s RAM memory. Can

the user argue that the receipt of unwanted e-mail therefore

causes an unauthorized copy to be made of computer programs?

Similar arguments can also be made about unwanted hypertext

links to one’s own computer. When those links are followed by

others, they cause the running of certain computer programs, and

perhaps the copying of those programs. If unauthorized, is that a

copyright infringement?

Changes in pricing structure. The Internet seems to represent a

“convergence” of different media into one digital transmission

stream. Oddly, the Internet will likely also begin to exhibit

“divergence,” with different service quality levels becoming

available at different prices. This shift may be perceived in some

quarters as reducing access to high quality information by poorer

schools, individuals, and other organizations. Quite possibly what

is perceived as a reduction in access will encourage some to press

for changes in copyright law. The pressure will take the form of

urging alterations in copyright’s protection to ensure greater

access to information, as by expanding the exceptions to

copyright’s subject matter.

Computer-generated works. Humans can program computers to

create, and the resulting computer programs can clearly be

original and copyrightable; but what about the output of the

computer program? The traditional answer has been that a

computer cannot be a copyright “author” because computers are

not human. Yet, computers are getting better all the time. If

computer poetry today is not very good, then it will be better
Executive Summary 

	



tomorrow. Computers can draw maps, for example. Maps can be

copyrighted. Though not conceptually a problem, the

copyrightability of computer-created works is nonetheless likely

to cause factual disputes over which portions of such works are of

human origin and hence copyrightable.

Multiple authorship. Collaboration among multiple authors is a

phenomenon of long standing. In this sense, multiple authors of

digital works raise no new issues. But lower communications

costs may expand the opportunities for multiple authorship well

beyond what we have seen in the past. How should works by

many authors, perhaps very many authors, be treated for

copyrighted purposes?

Libraries, archives, search sites. Huge amounts of information

are circulated daily on the Internet. Organizations have begun

keeping archives of much of this material. These archives exist

and function by making “copies” of the materials they store and

serve, invoking copyright issues. Provisions of the current Act

deal specifically with “Libraries and Archives,” but these

provisions are directed to reproduction of works that were

originally fixed on paper and are of uncertain application to

works originally created in electronic format.

Metered use. The use of digital information can be monitored by

a computer. That is, given that the information is “computerized”

in the first place, it requires a computer to display or perform or

copy or otherwise make use of it. This allows a very fine level of

metering and billing for information access. In the past, we have

been used to being charged for larger units of information:

hundred-page books, two-hour movies, fifteen-song CD’s, etc.

Arguments can be made that current copyright provisions like

fair use were created in a world of that sort of “coarse-grained”

metering, and that those provisions should be changed to

recognize a different world if policies underlying the provisions

are to be preserved.
Executive Summary

	



Filtering. Filtering technologies, or “filters,” consist of computer

software that screens all material received over computer

communications lines. Filters, designed originally to screen out

pornography, can also be used to provide automatic inclusion or

exclusion of elements and pieces from various information

sources. They might be used to combine two or more WWW

pages together, for example, or re-arrange their elements. They

might also be used to delete advertising from a WWW page.

When an Internet user makes use of filtering software to alter a

copyrightable work such as a Web page, does that user infringe

the right of the copyright owner to authorize the preparation of

derivative works?

Copyright and other laws. Copyright provides a form of

“property” rights in some forms of information and permits the

exchange of information “products.” Other laws like those

surrounding broadcasting and telephony were conceived

primarily as regulations of activities rather than the distribution

of products. As the Internet brings about an increasing overlap

between information sold as a “thing” and information

distributed as part of a service, conflicts between fundamentally

different legal regimes will arise. Even the notion of information

as a “product” will cause conflicts. Many of our laws evolved

over the centuries to deal with tangible objects in a world in

which tangible objects and information products seemed

obviously different. As the number and variety of transactions in

information products grows, more of these transactions will have

the earmarks of transactions in tangible products. That will lead

to more frequent and complex interactions between two sets of

laws: those that evolved to handle tangible goods, and those—

principally copyright law—that evolved to handle information

goods. The intersection of copyright law and Bailment law is one

example. Contract law, and especially proposals to add a new

section on software licensing to The Uniform Commercial Code,

may also give rise to issues of conflict between copyright and

other legal regimes.
Executive Summary 

	



Three patterns of copyright and

technology

Copyright law has had to accommodate new technologies

repeatedly over the two centuries of its existence. This

accommodation gives rise to broadly similar issues time and time

again. Those issues can be summarized as issues of new subject

matter, new uses of existing copyrighted works, and

decentralized infringement.

New subject matter. Some technologies create a new type or a

new medium of expression. They give rise to the “subject matter”

question: should the new type of expression, or the expression

that is recorded in a new medium, fall within copyright’s subject

matter—i.e., be appropriate for copyright’s protection?

Subject matter issues are less in evidence today than in the past.

Congress worded the 1976 Act’s concept of subject matter much

more broadly and generally that it had been before. As a result,

most works fixed in new types of media no longer give rise to

subject matter questions: it is the “work” that is protected, not the

medium. Questions can still arise over new types of works,

though. The menu command structure in the Lotus v. Borland case

can be analyzed as one such type of new subject matter.

New use of existing works. Second, some technologies create a

new way of using existing copyrighted works. These technologies

give rise to the “new use” question: does the new use of an

existing copyrighted work infringe the author’s rights? This has

been a troublesome issue for copyright law over its history,

arising in connection with phonograph recording of music; radio

air play of music; cable-casting of broadcast programs; and others.

The issue will likely recur with Internet transmission of a variety

of digital works. It is more troublesome than the subject matter

issue because the Copyright Act defines “rights” (and hence
Executive Summary

	



“infringement”) in ways that are far more technology- and

medium-dependent than is its definition of subject matter.

Almost invariably, the arguments over new uses take the same

form each time. Copyright owners argue that if others are making

money from their works, they deserve a share. Those making the

new use argue that their use only advertises or extends the

copyrighted works to a wider audience and so should not be

burdened with a royalty obligation. Just as invariably, the

arguments overlook the central—and largely unanswerable—

question: will the new use eventually grow to supplant the old

use? If it will, there are strong arguments that royalty payments

will be needed to preserve incentives. If it will not, those

arguments are much weaker. An appreciation for possible future

market effects of a new use technology is essential to good

copyright decision making in the present, but seldom in evidence.

“Decentralized infringement.” Finally, some technologies neither

create new forms of expression nor allow new ways of using

existing expression, but rather make methods of infringement far

cheaper than before and also harder for copyright owners to

discover. This sort of technological development raises what can

be called the issue of “decentralized infringement.”

Decentralized infringement occurs, for example, when the

development of photocopy machines makes reproduction of

printed materials much cheaper and easier than before, or the

development of home tape recording makes the reproduction of

music much easier than before, or the development of the

personal computer makes the reproduction of computer programs

easier, or the development of the Internet makes copying a wide

variety of digital materials easier than before, etc.

Decentralized infringement usually raises issues of fair use,

proposals for statutory amendment, or compulsory licenses. It

typically motivates copyright owners to seek counter-measures:

technological developments the purpose of which is to raise the
Executive Summary 

	



cost and inconvenience of making unauthorized uses of their

works. Often, the issues are never definitively resolved. This may

be an appropriate outcome, given that developments in the

technologies that raise or lower costs will proceed unevenly and

unpredictably.

Digital vs. analog: really different? Arguments that digital works

are fundamentally different from analog works depend on an

assumption that digital works are easily and cheaply copied. They

are therefore arguments about decentralized infringement. For

copyright purposes, however, the differences between digital and

analog works is not one of technology, but of the cost of

unauthorized uses. If technological developments raise the cost or

inconvenience of making unauthorized uses of digital works, the

assumed differences between analog and digital works will

shrink proportionally. Many developments sketched in the Report

have just that effect, including watermarks, encryption, dispersed

works, proprietary viewers, digital objects, and others. From a

copyright perspective, these technologies may end up making the

world of tomorrow more like the world of yesterday than like the

world of today.
Executive Summary

	



Copyright in a rapidly changing

environment

Will copyright decrease in importance in tomorrow’s world of

digital communications? A conclusion that copyright is less

necessary in tomorrow’s digital world rests on a crucial

assumption: that the digital world will continue to evolve in the

way that some parts of that world seem to be evolving now. That

evolution features new business models such as giving away

certain digital works for free and earning revenue from other

services: technical support, updating, advertising. We should not

be optimistic, however, about our ability to foresee the future

evolution of either technology or new business models, especially

those that relate to the Internet: we were not too good about

predicting the rise of the Internet and the World Wide Web in the

first place.

Individuals and businesses may choose to produce things for

which copyright is important, or they may choose to produce

other things. The existence of copyright law gives them that

option. A copyright possessed by an owner can be either asserted

or waived as the public demand dictates. A copyright not

possessed can only be “waived,” as it were—it cannot be

unilaterally created even if the public’s good makes the assertion

of copyright desirable. Copyright functions in a changing world

not to enable a particular technology, business model, or market;

but rather to preserve choices among different technologies,

business models, and markets. Whether it should function this

way or not, however, is a policy determination beyond the scope

of this Report.




1. Introduction

This is the final report from Project Looking Forward. That project

represents one avenue by which the Copyright Office has sought

to predict the future evolution of the Internet and related digital

communications technologies, and to identify the copyright issues

that might arise as a result.

This Report is not a report from any individuals or organizations

or focus groups or anyone other than myself. Though I have been

informed by a great many people, all of whom I thank and

express my utmost appreciation to,2 this Report reflects solely my

own views.

During the course of this study, I gave a number of presentations

to various audiences on “Internet and Copyright” issues. At many

 

2 In addition to those formally listed in Appendix 8.1 People interviewed, I

express special appreciation to members of the U.S. Copyright Office who were

helpful in countless ways, in particular to Register Marybeth Peters, Sandy

Barnes, David Fernandez, Mary Gray, Shira Perlmutter, and Jerry Tuben; I also

thank William and Mary law student Carrie Schneider for proof reading; and the

College of William and Mary, then-law school Dean Thomas Krattenmaker, and

most especially Shirley Aceto, for finding a way for me to take the leave

necessary for this project.
Introduction





of these presentations, I was able to get some very helpful

questions and suggestions about project Looking Forward. I have

listed these presentations, though not the attendees individually,

in the Appendices, at Section 1.1. Note, however, that I always

spoke at presentations as a William and Mary faculty member,

not as a Copyright Office member; views expressed at these

presentations were my own, not those of the Office.

The Office requested an identification of issues, but not any

proposal for their resolution. The resolution of most copyright

issues touches on matters of important public policy, matters that

can only be addressed with careful deliberation and consultation

with affected parties and with Congress.

I thank the Copyright Office, particularly the Register, Marybeth

Peters, and the Associate Register for Policy & International

Affairs, Shira Perlmutter, for initiating the project, for giving me

the opportunity to participate in it by conducting this study, and

for providing on-going support and encouragement.

Methodology

I relied in the preparation of this Report on several things. Most of

all, I have spent a good deal of time talking with people who have

an interest in and knowledge of the Internet. I have also

continued to conduct research of my own, both into the legal

issues and into the Internet as a technology. I use the Internet on

a daily basis, and have found the net itself to be helpful in

learning about what is happening with the technology and what

is likely to be upcoming in the near future.

In addition, in cooperation with the Copyright Office, I planned

and led three small “focus group” sessions, two of them “live”

and in-person; the third conducted by e-mail. The first live session

was held on the campus of Stanford University, in conjunction

with the Stanford law school and in particular with Prof. Carey

Heckman, the Director of the Law and Technology Policy Center
About names used in this Report





there. The second live session was held at the Copyright Office

itself in Washington, D.C. The e-mail conference was, of course, in

“cyberspace.”

About names used in this Report

It is helpful in explaining things to give real-world examples.

Often when an actual example would be useful, I refer to

particular companies or products or services by name, frequently

with a World Wide Web address included. I do not endorse or

support or have any affiliation with any of these—or any other—

commercial organizations.

This Report also includes a number of images that are “screen

captures,” that is, images taken directly from a computer screen.

Most of these images are of pages from different sites on the

World-Wide Web, pages that may themselves be copyrighted.

Having concluded that for purposes of this Report the

reproduction of these page images is a fair use, I have not

obtained permission for their use. Naturally, the copyright status

of this Report overall does not affect the copyright status of these

images.

About predictions in this Report

The Copyright Office asked me to look at the future evolution of

the Internet and related digital technologies, and then to try to

predict what new copyright issues that future will raise. This

should help the Office to be informed and hence to be prepared to

address tomorrow’s issues and controversies.

To accomplish that goal, one need not accurately predict a single

“future.” One can predict many futures, or many different aspects

of “the future” and then suggest some, perhaps even differing,

copyright consequences. To that end, I have not tried to sketch out

a single vision of digital communications of tomorrow, but rather
Introduction





looked at various pieces of digital communications technology:

different mechanisms, functions, user capabilities, and so on. Nor

have I tried to ensure that all these various elements are consistent

with each other and with a single evolutionary path; perhaps they

are, perhaps they are not. My assumption is that it will help the

Copyright Office to know what it can about the possible copyright

issues of tomorrow, not what the world of tomorrow will look like

in general.




2. How the Internet

Works Today

An appreciation for the “mechanics” of the Internet’s functions is

very helpful to anyone who wants to understand the legal issues.

The salient point about the net is its distributed nature—that is,

information flowing through the Internet travels over many

different paths from the point of origin to the destination, even

during a single “session” of Internet use. This mechanism

contrasts sharply with the existing voice telephone network, over

which phone calls travel over a single path for the duration of a

call.

Two important consequences are that Internet information passes

through a great many computers, each of which may be

controlled by different individuals or organizations, either within

or without the United States; and information travelling over the

Internet is “copied” dozens of times as it progresses from origin to

destination. This section of the Report explains the mechanics

without drawing conclusions as to copyright issues. Later sections
How the Internet Works Today





discussing copyright issues will draw on the technical

explanations that appear here.
Mechanics of switching





2.1 Mechanics of switching

The Internet is a network for carrying computerized (“digitized”)

data from place to place. We have had computer networks for

many years, long before the rise of the Internet. What makes the

latter type of network so different?

Earlier computer networks were centrally “switched,” so that all

messages between any two points on the network were sent

through the central switching computer. These networks are

today called “star” networks, because there is a central point in

the network—the central switching computer—that has wires

“radiating” out to all other computers.

Though all computer networks of the time were “star” shaped in

their architecture, different switching technologies were often

employed by each of them.

In the late 1960’s, the Department of Defense, like other computer

network users, relied on star-shaped networks for military

communication.3 The Department understood, however, that

those networks had at least two problems. First was that they

were highly vulnerable. Anything that rendered the central

switching computer inoperative—whether a bomb, sabotage, or

just “down time”—would simultaneously render the entire

network inoperative. Second, because different star networks

used different technologies for switching messages internally,

they could not communicate with each other. Messages were

confined to the network from which they originated.

 

3 More on the history of the Internet is available from the Internet Society’s

Web site. See Barry M. Leiner, Vinton G. Cerf, David D. Clark, Robert E. Kahn,

Leonard Kleinrock, Daniel C. Lynch, Jon Postel, Larry G. Roberts, and Stephen

Wolff, A Brief History of the Internet, <http://www.isoc.org/internet-history>,

available as of February 23, 1997.

Problems with star

networks
How the Internet Works Today





The Defense Department undertook a research project through its

research arm, the Advanced Research Projects Agency4 (ARPA) to

remedy these two major drawbacks to existing network

technology.

ARPA’s research led to an alternative networking technology that

successfully avoided both the problems identified by Defense.

ARPA created a standard format for electronic messages that

could be used between networks to connect them in spite of

internal differences; and it devised an interconnection method

that was based on many decentralized switching computers. Any

given message would not travel over a fixed path to a central

computer. Rather, it would be “switched” among many different

computers until it reached its destination. The network designers

set a limit on the size of a single message. If longer than that limit,

a message would be broken up into smaller pieces called

“packets” that would each be routed individually. This new type

of network switching was therefore called “packet switching.”

By creating a system that relied on many decentralized computers

to handle message routing, rather than one central computer as

was the method for star-shaped networks, ARPA produced a

network that could still operate even if many of its individual

computers malfunctioned or were damaged. ARPA implemented

a prototype network called “ARPANet” to test out and continue

development of this new technology.

Unrelated to ARPA’s work on this packet switching technology,

at about the same time (the early 1980’s) the National Science

Foundation (NSF) funded the creation of several supercomputer

sites around the country. There were far fewer supercomputers

than scientists and researchers interested in using them. NSF

understood that it would be important to find ways for

 

4 At times, ARPA has been known as “DARPA,” which stands for “Defense

Advanced Research Projects Agency.” ARPA and DARPA are the same agency,

however, so this Report will use “ARPA” throughout.

ARPA research
Mechanics of switching





researchers to use these computers “remotely,” that is, without

having to travel physically to the supercomputer site. NSF was

aware of the work going on with the ARPANet, and determined

that that network might provide the sort of access methods

needed to link researchers to the supercomputers.

NSF then funded the construction of its own network for these

purposes, a network known as the “NSFNet” and built with the

ARPA packet-switching technology. NSFNet connected a variety

of local university networks and hence enabled nation-wide

access to the new supercomputer centers. The idea of calling this

sort of network an “Internet” reflects the fact that its first use was

conceived primarily to allow an interconnection among existing

incompatible networks; in its early incarnations, the Internet was

viewed less as a “network” for its own sake, in other words, and

more as a means to connect other networks together.

Thus the first practical, non-prototyped version of the Internet

was designed and built to enable researchers to use distant

computers. Before long, however, the users of the NSFNet began

to realize that they were not limited to just sending data back and

forth to computers. They could also send messages to each other.

At first, these may have been messages that related to the use of

the supercomputers. But it soon became obvious that a message

from one researcher to another need not have anything to do with

supercomputers: the NSFNet was in fact a very general purpose

communications medium. Electronic mail, file transfers, and the

like thus arose literally as afterthoughts to the Internet’s creation.

NSFNet
How the Internet Works Today





2.2 Internet geography

This multi-purpose usefulness of the Internet has fueled its

enormous growth. It is possible to connect to the Internet from

almost anywhere, though of course the actual number of people

and institutions that are connected is less than the number that are

close enough to obtain a connection because connections carry a

cost.

Here is a map showing the places where Internet connectivity was

possible as of June 15, 1996. Notice that all but a handful of

nations fall within the “connection-is-possible” areas.

Figure 1: Map of Internet connectivity in June, 1996, from

<http://www.isoc.org/images/mapv15.gif>

on February 23, 1997.
Internet geography





Here is the same map from a year later, in June, 1997. Note that

considerable expansion of connectivity has taken place in the

interim.

Figure 2: Map of Internet connectivity in June, 1997, from

<ftp://ftp.cs.wisc.edu/connectivity_table/Connectivity_Map.color.bmp>

on January 25, 1998.
How the Internet Works Today





2.3 Internet switching technology

The way information travels across the Internet is mysterious to

most people, beyond the simple knowledge that information is

broken into “packets” and that these packets get relayed from

computer to computer until they reach their destination. Detailed

understanding about the architecture of the Internet is not central

to the copyright issues, but some understanding will be useful.

The Internet and its contribution to network technology is easier

to understand if one first understands how the telephone network

was designed to work. Voice telephony is based on “circuit

switching.” A “circuit” is the particular path of physical wires

over which the conversation will be carried. Typically there are

many physical wires going among various locations. These wires

will meet at various switching points across the country. When a

call is made, it goes to a nearby switching station; there the switch

must determine which outgoing wire of many the call should be

routed on. That outgoing wire may in turn go to another

switching station, which again must find an available outgoing

wire; etc. This may happen at many different switching points.

Once the various switching points have chosen all the necessary

wires, they form an end-to-end path or “circuit”; that path

remains constant for the duration of a phone call, whether anyone

is actually talking or not. The time delay necessary for the

switches to find an available line and making the necessary

connection, constitutes the delay one experiences after dialing—

the time spent “waiting for a connection.”

The disadvantage of this mechanism, compared to the Internet’s

“packet switching” mechanism, is that it “wastes” the resources of

the circuit when there are pauses in the conversation. The

advantage is that it ensures that the call will continue without

interruption no matter how much the network may become

congested. Indeed, congestion in the telephone network only

Voice telephones and

circuit switching
Internet switching technology





affects those who are initially trying to place a call. If the network

is highly congested, they will be unable to make a call at all and

will instead receive a “fast busy” signal.5

In a packet-switched network like the Internet, however, the

mechanism is radically different. All Internet information is

digital—represented by a series of high and low voltage values

for an electric current that in turn represent the one’s and zero’s

that computers work with. This differs from the telephone system,

where phone calls are represented by continuously varying

voltages—a so-called “analog” communication. But that is not the

crucial aspect of the Internet’s form of transmission. Rather it is

the fact that digital information is broken up into small “packets”

before transmission. Each packet is numbered in sequence and

sent out over the network individually. When received at the

ultimate destination computer, that computer must re-assemble

the packets in the correct order before delivering them to the

recipient. Packets may in fact arrive out of order, and quite

commonly do because the packets have traveled over quite

different physical paths.

The nature of this packet switching mechanism makes it

extremely well suited to some forms of digital communication,

and less well suited to others. The ideal use of packet switching is

for electronic mail. E-mail communication is “asynchronous,” that

is, it is not a live or “real time” exchange back and forth between

two people. An e-mail message that is divided into packets

arriving essentially randomly at the destination computer can

therefore be reassembled without a delay that is noticeable to the

message’s recipient. Typical “delays” are on the order of fractions

of a second in any event, perhaps reaching seconds or minutes

during periods of heavy Internet traffic. Most people are unaware

 

5 The usual busy signal that one gets when calling a telephone that is busy is

a slow alteration between a tone and silence. When all circuits are busy—not just

the telephone one is trying to reach—the same alternating tone and silence is

heard, but at about twice the rate.

Packet switching

mechanism in

contrast to circuit

switching
How the Internet Works Today





and unconcerned whether an e-mail they receive was sent five

seconds or five minutes ago.

Some digital communications are not “asynchronous,” however,

and hence are better suited to live or real time operation. A

telephone call over the Internet is such an example. A phone call

is “synchronous”—it is live and in “real time.” When an Internet

user places a phone call over the Internet (as an increasing

amount of new software allows one to do), the call is digitized at

the sending end (converted into one’s and zero’s). It is then—like

an e-mail message or any other Internet communication—broken

up into packets.

Like the packets of an e-mail message, the packets of a “phone call

message” may well travel over different routes and may arrive

out of order. The receiving computer has no trouble re-arranging

the packets into the correct order, but this rearrangement takes

some amount of time. Again, this delay may only be fractions of a

second to several seconds, but the if resulting delays happen in

the middle of a spoken sentence, they introduce some “jerkiness”

into the telephone conversation with odd and unpredictable

delays for both parties.

It is possible to construct a packet-switched network like the

Internet so that even phone calls can be transmitted smoothly,

without interruption. But “smooth” transmission of real-time

information like phone calls is a function of two things: the

network’s capacity and the amount of use it gets. Any given

capacity (called “bandwidth”) would allow smooth real-time

transmission if the number of users and uses could be limited.

Any given number of users and uses could be accommodated if

the capacity could be expanded appropriately. At present,

capacity at any given time is fixed, and the number of users is not

fixed; consequently, real-time information transmission today is

often not “smooth” at all.
User capabilities





2.4 User capabilities

The capabilities of the Internet and the World-Wide Web today

are well known. Users can send and receive e-mail; they can

download files and programs from various sites; they can

“browse” various WWW sites to examine their content; they can

post materials to a site they own for others to browse.

Web sites in particular are rapidly maturing: just a year or two

ago, they were almost entirely text with plain gray backgrounds.

Today they are often wildly colorful, with animated movement,

“wallpaper” backgrounds, photographic images, and links to live

information in databases that range from price lists to airline

schedules. A number of programming languages have been

created to facilitate Web site animations, including popular ones

called “Java” and “ActiveX.”

Intranets

More and more organizations are creating in-house organizational

networks, called “Intranets,” that are based on Internet and

World-Wide Web technologies but accessible only from within

the organization. The attraction of Internet technology, compared

to previous networking technologies, is that it is an “open”

standard. That is, the software to create and access Web sites is

available from a number of different companies. Many previous

networking technologies like Novell NetWare, Banyan Vines, IBM

token ring designs, and the like were “proprietary”—they

belonged to and were controlled by a single vendor.

Additionally, the Internet is available from an almost countless

number of sites around the world, so that with appropriate

security measures like passwords, a user can access even an

internal company Intranet from anywhere in the world.
How the Internet Works Today





Many of the interesting uses of the Internet will be discussed

under the heading How the Internet Will Work Tomorrow,

specifically the section on User Capabilities, at page 155. The most

common use today, outside of organizations’ Intranets, is simply

for individuals to find and retrieve information. Typically finding

information on the Web is done with “search engines.”

Search engines

A “search engine” is piece of computer software that examines as

many pages as possible on Web sites the world over, compiling a

list of the location of each word on each such page. In a sense,

these search engines create a full-text index of the Internet, in

much the same way that Lexis and WestLaw create a full-text

search capability for legal materials. Though such a task may

sound daunting, in fact the total amount of information presently

available on the World-Wide Web is considerably less than that

available on either Lexis or WestLaw alone.6 This may change, of

course, as the Internet continues its rapid growth. But storing and

providing access to a full text index of the Internet is well within

the capability of computers costing only a few thousand dollars

today.

Compiling the index and keeping it up-to-date are far more

difficult. What happens is that a computer program called a

“search engine” starts with a list of one or more Web sites. The

engine then requests the top-level (“home”) page from each site

on its list. When a homepage is retrieved that has links to yet

other pages, the search engine requests a copy of each of the

pages that these links point to. And if those pages in turn contain

links to yet more pages, the search software requests a copy of

those pages. And so on, day after day, ceaselessly.

 

6 Personal conversation with Ron Staudt, Vice-President, Lexis-Nexis

Corporation, January, 1997.
User capabilities





In all, a typical indexing computer, with a T1 phone line

(operating at 1.5 megabits per second) examining about 500 sites

at a time, can canvass the entire WWW in about 44 days.7 Of

course, the number of Web sites and hence the amount of

information available is growing rapidly; but then it is always

possible to double the speed of index compilation by adding a

second computer and a second communications line. In practice,

most search engines do not exhaustively cover all possible sites.

In addition, some search engines pass along material for review

by human editors, who rate the pages retrieved on a variety of

scales—quality, appropriateness for families, and so on. The

creation of such an annotated index obviously takes longer than it

does to create a comparable unannotated index.

About a dozen search engines operate today,8 with names like

AltaVista,9 Excite,10 HotBot,11 InfoSeek,12 Lycos,13 Magellan,14

NetGuide,15 WebCrawler,16 Yahoo,17 and others. These and similar

search engines form a kind of “card catalog” for the Internet, and

as such, are the primary means by which Internet users can find

digital information.

 

7 Personal conversation with Brewster Kahle, President of the Internet

Archive, February 12, 1997.

8 Early spring, 1997.

9 <http://www.altavista.digital.com>.

10 <http://www.excite.com>.

11 <http://www.hotbot.com>.

12 <http://guide-p.infoseek.com>.

13 <http://www.lycos.com>

14 <http://www.mckinley.com>.

15 <http://ms.netguide.com>.

16 <http://webcrawler.com>.

17 <http://www.yahoo.com>.
How the Internet Works Today





2.5 Who pays for the Internet?

To understand “who pays for the Internet,” one needs first to

appreciate the difference between the architecture of the Internet’s

computers, and the architecture of the wires and satellite links

that connect those computers. The switching computers are quite

decentralized: millions of computers help to handle the Internet’s

traffic, and no one of them has any control over the others. All

such computers are “peers”: there is no hierarchy of control of

some computers over the other. That is what enables the net to

continue functioning even if a number of individual computers

falter.

On the other hand, the links between computers—primarily

telephone lines, with some amount of satellite and other non-wire

forms of communication—are arranged in a hierarchical structure.

Backbone networks

The hierarchical structure of physical links, roughly speaking,

runs from “backbone” networks to “regional” networks to “local”

networks. At the top level are the highest speed links: very fast

telephone lines known as “T1” or “T3” lines. These high speed

lines form what is called the “backbone” of the Internet. A

number of them criss-cross the country and other countries; the

U.S. alone is home to dozens of such backbone lines. Backbone

lines for the most part are physically installed and paid for by

telecommunications carriers like AT&T or MCI.

Many of these carriers are installing more and newer backbones

to accommodate the rising demand for Internet services. As an

example, below are two diagrams, taken from the World Wide

Web, showing MCI’s Internet backbone in 1995 and again as

expanded in 1996.
Who pays for the Internet?





Figure 3: MCI’s 1995 Internet backbone network,

from <http://www.mci.net/bipp95.html> on October 28, 1996.
How the Internet Works Today





Figure 4: MCI’s planned 1996 Internet backbone network, from

<http://www.mci.net/bipp96.html> on October 28, 1996.

Regional networks

Other companies, including typically Internet Service Providers,

form smaller networks in a given region of the country. These are

known as “regional” networks, and may be provided by for-profit

entities such as PSINet or UUNet, or by universities or consortia

of universities, such as “SURANet,” the “SoUtheastern Regional

Area Network.”

A regional network with no further connections to other networks

could only provide services such as e-mail and Web browsing

directly within its own area. Regional networks therefore contract

with a backbone network to be connected to, and thereby have

access to, any place on the Internet that that backbone network

reaches. This is the means by which the backbone companies earn

revenue from the installation of the backbone.
Who pays for the Internet?





Local networks

In turn, a regional Internet provider will sell its services to many

local networks. A typical university, for example, will install its

own campus-wide network to connect all campus computers

together. The university bears the expense of stringing the wires

and supplying the other necessary hardware and software. This

campus network will then have a point of interconnection with a

regional network, for which the university will pay (usually) a flat

annual fee for the privilege of making the connection.

As a result, local networks are paid for by the entity (university or

business or other organization) that installs them. This local entity

will contract and pay for a connection to a regional Internet

network. The regional provider will then contract and pay for a

connection to a backbone Internet network.

Network access points

The backbone networks also interconnect with each other at a

dozen or so sites around the U.S. (and other similar sites around

the world). These points of interconnection are called “Network

Access Points,” or “NAPs” for short.18 The connection is by means

of a switching computer which looks at each incoming packet to

see where that packet should be routed next. This switching

computer is called a “router.”

For example, there are NAPs in New York, Washington D.C., San

Francisco, and Chicago, where various backbones connect to each

 

18 See NSF Press Release 96-45, The Next Generation Internet: Another Step In

The Successful Transition To The Commercial Internet, August 15, 1996, available as

of November 18, 1996, from

<http://www.nsf.gov/od/lpa/news/press/pr9645.htm>.
How the Internet Works Today





other.19 When several backbones agree to interconnect at a given

point, the connection is, loosely speaking, between “peers” rather

than hierarchical. Consequently it is common for the owning

companies to agree to interconnect without charging each other

any fees.

Figure 5: Map showing Internet “Network Access Points,”

where various backbone networks connect to each other, from

<http://www.cerf.net/cerfnet/about/interconnects/NSP-img_map.gif>

on October 10, 1996.

 

19 An interesting animated demonstration of communication over the

Internet illustrating some of the points in the text can be found at an MCI site:

<http://www.mci.com/aboutyou/interests/technology/internet/guide.shtml>,

as of March 3, 1998.
How big is the Internet?





2.6 How big is the Internet?

Statistics about the size of the Internet are not highly reliable: the

decentralization of computers and equipment makes it hard for

anyone to calculate how many computers there are exactly, or

how many users, or how much traffic is carried over the network.

Then too, the Internet is changing and growing constantly, so

figures that can be collected are not only suspect at the time, but

likely to be soon out of date.20

 That said, there are a few observations that one can make.

The World Wide Web, as of mid-winter 1996-97, contains a little

over two “terabytes” of data.21 A single “byte” is roughly equal to

a single letter of the alphabet or a single decimal digit. A terabyte

is a thousand “gigabytes”; a gigabyte is a billion, or equivalently,

a thousand “megabytes”; and a megabyte is a million bytes. So

two terabytes is about two thousand billion bytes, or

2,000,000,000,000 bytes.22 For comparison, the Library of Congress

holds about 20 terabytes of data.23 Here is one indication of the

size of the Web, quoted from the Internet Archive:24

 

20 “Public information on the Internet is constantly growing and changing,

and it’s hard to know exactly how much information is there at any given time.

We have collected 500 gigabytes so far. We’ll keep you updated on our

progress.” From the Internet Archive,

<http://www.archive.org/webarchive96.html> on December 5, 1996 (reflecting

a date of Sept. 23, 1996 shown at the bottom of the Web page).

21 The Internet Archive, <http://www.archive.org> as of March 14, 1997.

22 Usually computer measurements are in units of “1K,” which is not 1000

but rather 1024—a round number in the binary number system. Consequently

when people use terms like “megabytes” and “gigabytes,” they may mean

multiples of round decimal numbers (1000’s), or they may mean multiples of

round binary numbers (1024’s). For the degree of accuracy we are dealing with

here, the distinction does not matter.

23 The Internet Archive, available as of March 14, 1997,

<http://www.archive.org/webarchive96.html>.
How the Internet Works Today





 The Alta Vista search engine is based on an index

of at least 30 million web pages spread across

275,000 sites.

 Excite [a search engine site] says it has indexed

over 50 million pages.

 Our own analysis indicates there are about 450,000

unique web servers (as of December 1996).

 From our crawl so far, the average HTML page is

about 5 kb [kilo bytes]. If there are 80 million

pages, then the text side of the web is 400 GB

[gigabytes].

 From our crawl so far, it appears that the total size

of the non-text side of the web (images, [sounds],

etc.) is about 4 times that of the HTML side. So we

think the total size of a single snapshot of the web

is about 2000 GB [gigabytes], or 2 TB [terabytes].

 The mean lifetime of a web object is only 44 days

(Chankhunthod et al., USC / UCBoulder) ...

 

24 <http://www.archive.org>.




3. How the Internet

Will Work

Tomorrow

The previous sections explained the basic mechanics of today’s

Internet. The decentralized nature of the net helps to explain, as

will be discussed below, some of the challenging copyright issues

to which the net has begun to give rise. Similarly, an

understanding of tomorrow’s Internet will be helpful to assess

tomorrow’s issues. It turns out, however, that the basic Internet

mechanisms of decentralized packet switching are likely to be

with us for a long time to come. This section therefore

summarizes why that is so, and then goes on to discuss a number

of newly emerging uses of the net. It is these new uses, not the

net’s underlying architecture, that are likely to give rise to

tomorrow’s copyright issues.
How the Internet Will Work Tomorrow





3.1 Mechanics

An easy answer to the question “how will the Internet work

tomorrow,” is to say “much like today, only bigger and better and

faster.” That’s not too far off the mark, though the notion that the

Internet will work “better” tomorrow is not free of controversy.

Some schools of thought hold that it cannot continue to function

under its present rate of growth and will in some fashion or other

“collapse” fairly soon.25

A collapse seems unlikely, though it does seem likely that

something will have to change in the structure or capacity or

pricing of the Internet. The rate of growth in number of

computers and users has been exponential in the past several

years.26 Nothing can keep growing in the same way indefinitely;

once every man, woman, and child is connected to the Internet,

growth of that particular kind—one person equals one

connection—will stop. Some very recent estimates suggest that

the peak rate of growth in the number of host computers

 

25 In December, 1995, the editor of the widely-known computer newspaper

InfoWorld, Bob Metcalfe, said “I predict the Internet, ... will soon go

spectacularly supernova and in 1996 catastrophically collapse.” INFOWORLD, vol.

17, Dec. 4, 1995, p. 61, available as of May 10, 1997, from

<http://www.infoworld.com/cgi-bin/displayArchive.pl?/95/49/o05-

49.61.htm>. Metcalfe repeated these predictions from time to time in 1996,

offering to eat his columns if the Internet did not collapse. INFOWORLD, vol. 18,

Nov. 18, 1996, available as of May 10, 1997 from

<http://www.infoworld.com/cgi-bin/displayArchives.pl?dt_iwe47-96_24.htm>

(“The Internet might possibly escape a ‘gigalapse’ this year. If so, I'll be eating

columns at the World Wide Web Conference in April.”). He ended up eating

these columns, literally. See Sandy Reed, Fulfilling his promise, columnist Bob

Metcalfe dines on his own words, INFOWORLD, vol. 19, Apr. 28, 1997, available as of

May 10, 1997, from < http://www.infoworld.com/cgibin/displayArchives.pl?97-o09-17.75.htm>. See also Brian Livingston, Will Too

Many Users Destroy the Internet? I Hardly Think So, INFOWORLD, Dec. 9, 1996, p. 35.

26 See Robert H. Zakon, Internet Timeline,

<http://www.isoc.org/zakon/Internet/History/HIT.html> as of October 20,

1997.
Mechanics





connected to the Internet occurred in June, 1997. This estimate

shows that number likely leveling off at between 19 and 57

million hosts, with the most likely number being 38 million, in the

year 2002.27 But other things can grow: the number of devices

connected to the Internet, for example, or the available

bandwidth, or innovations in features, or the location of

connection points, and so on.

Of the various things that might change with the Internet in the

three to five year time frame, in response to growth, the least

likely is the underlying packet-switching protocol. The most

likely is an increase in bandwidth coupled with an evolution

toward a variety of levels and qualities of service, with different

prices for the different quality levels.

The basic method of packet switching and the TCP/IP protocol

seem destined to remain relatively unchanged. First, the basic

method of communication is sound and advantageous and scales

well to very large networks, as is shown by the size of the Internet

today. Predictions of collapse have not so far proven true, and the

Internet continues to grow rapidly.

Another reason that the underlying packet-switching technology

is likely to endure has to do with inertia. Engineering decisions

made in the original design of the Internet were made by a

handful of technology pioneers working together. Today, the

number of Internet users has grown so vast, and the number of

machines, software, and human investments in the present

scheme so gargantuan, that really fundamental change in the next

five or so years seems exceedingly unlikely. The process of reengineering and designing the Internet goes on, of course, but

today the coordination required for any change—any change at

 

27 Mario Hilgemeier, Internet Growth - Host Count Turning Point in June 1997,

<http://www.is-bremen.de/~mhi/inetgrow.htm> as of October 20, 1997.

Underlying packetswitching, TCP/IP

protocol
How the Internet Will Work Tomorrow





all—includes thousands of people and companies around the

world.

For good or ill, then, the inertia (or momentum, if one prefers)

created by the Internet’s very size and scope will ensure that

major design changes will happen very slowly if at all.

That does not mean, however, that there will not arise separate

networks based on other technology. That seems likely because

research on networking technology proceeds apace. But it is likely

that the benefits of connecting with existing Internet-based

communications devices will mean that fundamentally different

networking technologies will either take a back seat to the

Internet protocols we see currently or be used in close connection

with them.

Though major revisions in the five-year time horizon are almost

prevented by the Internet’s size, that size is already necessitating

one significant change: an expansion in the size of an Internet

“address.”

When telephone switching equipment was first in place,

telephone numbers consisted of four digits. When the population

and the number of telephones grew, phone numbers were

increased to seven digits. Now it is common to have to dial ten or

eleven digits in large cities. Similarly, the Internet’s addressing

scheme is now being revised to handle larger addresses and so to

accommodate even more networks and computers and devices.

Current proposals call for increasing the size of an Internet

address substantially: from 32 bits to 128 bits. This will allow a

separate Internet address to be applied not only to all foreseeable

computers, but also to all foreseeable “things” for which an

address might be desirable. Current thinking is that appliances

like toasters and refrigerators will have—or at least can have—

their own addresses in the future; even individual light bulbs in

one’s house may have their own Internet address. This would

Addressing Scheme
Mechanics





allow remote control of devices over the Internet if that proved

desirable.

Economics and pricing

Most users today pay a single flat rate for basic access to the

Internet. At times, rates are set hourly, though often there is an

initial flat rate for a number of hours which, if exceeded, converts

to an hourly rate. Increasingly common is true flat-rate pricing:

unlimited access for a single monthly fee.

A modem connection using ordinary dial telephone lines

presently allows 28.8 or 33.6 or 56 kilobits-per-second access.28 In

some areas of the country, one can acquire an “ISDN”29 line that

operates at about 128 kilobits per second, or a “T1” line that

operates at 1500 kilobits-per-second, or even higher speed

communication lines. These latter higher speed lines simply cost

more than the ordinary telephone lines.

In any event, whatever the terms of the service pricing and basic

access speed, the rate usually provides generic “access to the

Internet.” That means that once one has access, one can use the

Internet to send e-mail, or files, or digitized telephone

conversations, or interactive video, or whatever.

 

28 A “kilobit” is a thousand bits. About eight bits are needed to represent a

single letter of the alphabet. On the matter of modem speeds, see press release,

“U.S. ROBOTICS SHATTERS SPEED BARRIER: DELIVERS 56 Kbps OVER

STANDARD TELEPHONE LINES -- Internet service providers Embrace New x2

Technology; Plan Field Trials & Roll-Out”; Skokie, Ill., October 16, 1996,

available as of November, 1996, at

<http://www.usr.com/aboutusr/103_64.html>. [Within the year or so

following that press release, modems operating at 56Kbs have become common.

This evolution shows the difficulty of predicting developments in an industry

for which “rapid change” is a gross understatement.]

29 ISDN stands for Integrated Services Digital Network. It is a technology for

telephone lines to communicate at faster than ordinary phone line speeds.
How the Internet Will Work Tomorrow





The flat-rate system will almost certainly change to one based

more closely on usage because flat-rate pricing is inefficient.

When that change happens, if it does, the Internet will begin to

exhibit a kind of “divergence” in services and pricing.

Many people are happy just to send e-mail and assume that it will

be received within minutes or even hours. Others want to conduct

live two-way video conferences with participants identified ahead

of time from several different countries and with the use of

computerized presentations for all to see “live.” It is most unlikely

that both the e-mail user and the live video conference user will

be satisfied with the same level of service at the same flat-rate

price. If all communications are fast and reliable enough for the

video-conference user, they will be more expensive than

necessary for the individual e-mail sender, possibly leading to

economic waste.30

Presently too, transmission capacity and speed fluctuates widely

with the number of concurrent users. The Internet is very speedy

at 3:00 o’clock in the morning on the east coast of the United

States; it is far slower at 3:00 o’clock in the afternoon. The inability

to ensure ahead of time that an Internet connection will be fast

enough for one’s needs will frustrate a number of uses. In this

regard, the needs of two otherwise disparate groups coincide:

large corporations and academic scientists.

Corporations will want to plan large, dispersed meetings by

interactive video. They cannot take the chance that the bandwidth

necessary to sustain interactive video will not be available.

Scientists, too, have to be able to count on high capacity

transmissions at times specified far in advance. For example,

astronomers frequently reserve time on telescopes or

supercomputers or other expensive, shared scientific equipment

 

30 Only “possibly” because it might happen that bandwidth is so cheap that

it would not be worth differentiating among different levels. The author thinks

that is unlikely to be the case, as noted in the text, but it is possible.

Flat-rate pricing will

give way to usagebased pricing
Mechanics





years in advance. U.S. astronomers allocated 10 minutes on a

telescope in Latin America two years from now cannot take the

chance that the necessary capacity to transmit the observational

data might not be there; it has to be reserved and guaranteed.

For business, science, and other needs, high capacity bandwidth

cannot be left to random fluctuations in service levels. One

potential resolution of this problem has been discussed: a

differentiation in pricing for different service levels from more

usage-based charges for Internet access.

It is possible that pricing will become sensitive enough that any

desired amount of capacity can be bought at a moment’s notice. If

so, corporations and scientists will just pay more whenever they

need greater bandwidth. To balance demand and supply through

prices in this way, though, would mean that a last-minute request

for large amounts of bandwidth would be very costly—much as

last-minute airline tickets cost substantially more than those

bought weeks ahead of time.

More likely will be a combination of differential prices and

waiting times as the mechanism for balancing supply and

demand. “Waiting time” can mean the same thing as “delays.”

That is what happens today when too many people are using the

net at the same time. Because the unpredictability of this type of

delay effectively prevents both scientists and corporations from

planning for high capacity uses, another type of waiting time will

arise: reserving bandwidth in advance of the need.

Already, the National Science Foundation is working on a system

to do just that. The system, appropriately enough, goes by the

acronym “R.S.V.P.” NSF will initially test out the RSVP system on

a new Internet now under development, the so-called “Internet

II.”

The pressure for better performance for carrying things like video

will likely lead to differentiation of services as well as prices on

the Internet. Just as “cars” are not all similarly equipped and
How the Internet Will Work Tomorrow





priced, “the Internet” of tomorrow will be less monolithic than it

is today. Eventually one will not buy generic “Internet access”;

one will buy “e-mail access” or “telephony access” or “video

access” or the like and pay separately for each.

Further evidence of the difficulties of flat-rate pricing has come to

light since the first draft of this Report was completed. In

December, 1996, America Online converted most of its subscribers

from essentially an hourly billing system to a flat-rate, single

monthly payment system. Immediately, more users went online

and stayed for longer periods. As a result, subscribers frequently

encountered busy signals and were denied service; AOL was

forced to undertake near-emergency measures to provide greater

capacity.31

The price for basic Internet access services may well fall so low as

to ensure near universal access in the U.S. without any substantial

governmental action. Thanks to the falling prices that seem

relentless in the world of consumer electronics and digital

communications, very likely anyone who wants some form of

access to the Internet will be able to afford it.

Already today companies have announced plans to offer access

for $5 a month—access through ordinary television sets, requiring

no additional equipment beyond a simple adapter and keyboard.

The signals would be sent into the home by using the “vertical

blanking interval” of the television broadcasts (the same part of

the broadcast currently used for close-captioning, which would

still be available).

 

31 See, e.g., Stanley Ziemba, Extra Use Swamps AOL’s New Capacity; Despite

Additional Equipment, Pricing Plan Offering Unlimited Access Leads To Delays,

CHICAGO TRIBUNE, Dec. 13, 1996, at 1.

Falling costs
Mechanics





Encryption

Note: The term “secure” as used in this section is a relative term that

refers to how difficult and costly it is to gain unauthorized access to a

communication. The more difficult and costly it is, the more secure a

communication is. “Absolute” or “total” security is a theoretical concept

of no practical relevance here.

Encryption is an essential element of the Internet of tomorrow.

There are many sources of helpful information on what

encryption is and how it works.32 What follows is a quick

summary.

Most people’s concept of encryption stems from its use as the

“secret codes” of wartime and clandestine operations. Much of

the work on the technology in the past decades was for just that

purpose. Ordinary citizens had little need for encryption: other

than by breach of trust by postal workers themselves, paper mail

is fairly secure as it is; because few individuals are in a position to

communicate over the broadcast spectrum, the security of

broadcasts is not an issue for them.33 Most electronic

communications among individuals other than over the Internet

are by wired telephone. The telephone system is based on the

reservation of a single, end-to-end channel for the duration of a

call. Short of a wire-tap or mechanical malfunction, phone calls

are private.

The Internet, in contrast, is based on routing information over any

number of links, through any number of computers. That is the

“packet switching” technology described above.34 A single e-mail

 

32 Especially helpful is Michael Froomkin, The Metaphor Is the Key:

Cryptography, the Clipper Chip, and the Constitution, 143 U.PENN. L.REV. 709 (1995).

33 The author does not use CB radio, but imagines that it is not at all a

“secure” medium of communication. On the other hand, CB does not seem to be

widely used in the way that e-mail is today.

34 See the section on Mechanics of switching, at page 35.

Security of packetswitched and nonpacket-switched

communications
How the Internet Will Work Tomorrow





message may travel through dozens of different intermediate

computers—each one of which is owned and operated by

someone who can, if they want to, intercept and read every

message. To be sure, such interceptions will usually be a violation

of law: the wire-tap laws applicable to telephones now cover email.35 But there are exceptions to those laws for “necessary

maintenance,” which in practice is a substantial loophole because

maintenance is necessary operation for anyone who manages a

computer. More importantly, detection of an unauthorized

reading of e-mail at some intermediate—and for any given

message, unpredictable—point on the network is next to

impossible.

Consequently, security of Internet communications, including

some assurance of privacy, is an altogether different matter than it

has been for telephone or paper mail communication.

The inherent lack of security in packet switching communications

can largely be overcome with the technology of encryption. The

technology that once seemed the esoteric subject of military and

diplomatic communications, turns out to be both practical and a

garden-variety necessity for making Internet communications as

private as paper mail or the telephone. For that matter, as more

and more communication move to wireless modes, such as

cellular telephones, the need for encryption to assure privacy will

expand to those realms as well.

Encryption covers a range of possibilities. Low level encryption

might be about as secure as a conversation undertaken in a public

supermarket; higher level encryption is more secure; the most

powerful encryption cannot be broken by currently available

mechanical or computer means.

 

35 Electronic Communications and Privacy Act, 18 USC 2701 et seq.

“Powerful”

encryption
Mechanics





The first uses of encryption were based on a secret code or key. A

normal message, called the “plain text,” would be converted with

a key into an encoded or encrypted version called the “cipher

text.” This latter version looks like gibberish. Converting a plain

text into a cipher text can be done in different ways. A simple way

is to shift the letters of the alphabet by a forward certain number

of letters. A key of “5-forward” for example would mean that an

“a” was replaced with an “f”. A “b” would be replaced with a

“g,” and so on. The recipient must know that the key is “5,” and

the shift direction was forward, but with that knowledge can

decode a message.

But so can a computer, even without that knowledge. All that is

necessary is for the computer to try every possible shift of letters

and compare each result with either a spelling checker or a table

giving the average frequencies of use of each letter in the

alphabet—in English, “e” is the most frequently used letter, for

example.36 When a result produces fewer spelling errors than any

other, or has a distribution of letters that closely matches that of

the language overall, the computer can offer the result for human

inspection.

Encryption of this form is obviously not very secure. Greater

security can be obtained by converting the whole message into

numeric codes: the letter “a” might be “1,” the letter “b” a “2,”

and so on. Then each such number, instead of being shifted by

some fixed amount, could be converted with a more complex

formula: each number could be squared, or multiplied by a

constant, or subject to some other calculation. Or the numeric

representations of each letter could be taken in clusters, say 6

digits at a time, and the resulting clusters manipulated by a

formula. Once the message is converted into numbers initially, a

wide variety of calculations are possible; this makes the

 

36 This assumes that the would-be decoder of the message knows what

language the message is written in.
How the Internet Will Work Tomorrow





encryption more secure. Again, a computer can try using every

sort of calculation that it (or its designers) can think of. And in

practice, this is not as hard as it sounds: computers can in fact

often crack these types of encryption. But it is harder to do than

the simple “letter shifting” described earlier.

More recent forms of encryption use newer mathematical

techniques that are not possible for even today’s most powerful

computers to break. In brief, the techniques rely on using longer

keys (bigger numbers). The bigger the key size, the more

combinations a computer must try in order to decode a message.

The simplest way to think about this is to think of passwords.

Passwords can be one letter long; or two letters long; or three; or

longer. If someone wants to crack a password that is one letter

long, they only have to try (or their computer only has to try)

26 possibilities. If two letters are used, the number of possible

combinations goes up to 26 * 26 or 676. If three letters, the number

of combinations is 26 * 26 * 26, or 17,576. And so on.

Though passwords are not exactly the same thing as encryption,

the principle is the same with encryption. By using more and

more digits as a key to encrypt a message, a message sender can

make it harder and harder for the message to be decrypted by

unauthorized recipients.

Even with long keys, encryption has until recently required both

sender and recipient to have a copy of the same key. This means

that the sender must first send a copy of the key to the recipient.

In turn, this means that the risk of third parties intercepting the

key remains quite high. After all, if one worries that third parties

will intercept a communication so that one chooses to use

encryption, one must also worry that the same third parties will

intercept the transmission of the secret key—thereby voiding all

the benefits of the encryption.

This type of encryption is called “single key encryption.”

Sometimes a key might be in two parts: what the cluster size is,

Single-key versus

dual-key encryption
Mechanics





and what the formula for manipulating the cluster is, for example.

But it is still conceptually one key, and whatever the key, it must

be known by both sender and recipient.

A more sophisticated form of encryption today uses two different

keys. One key is used to encrypt the message; the other, different

key, is used to decrypt it. Just as important, only the second key

will decrypt the message; the key that was used to encrypt the

message will not work to decrypt it.37

The result is astonishingly useful. One use of this technology is

for the person who wants to receive secure messages to publicly

distribute an encrypting key. Anyone can have this key, and use it

to encrypt a message to the recipient. The recipient, though, is the

only one who knows the decrypting key. Hence the recipient can

decode encrypted messages, but no one else can. This could be

useful, for one example, for a mail order company advertising on

the Internet. The mail order company would publicly distribute

its encrypting key; it would almost be like a telephone number.

Anyone could use that key to encrypt ordering information,

notably including credit card information, and send the message

to the company. Only the secret decrypting key in the possession

of the company could, however, decode the order and credit card

information.

A key that is publicly distributed is called a “public key.” A key

that is kept secret is called a “private key.”

Public-key/private-key encryption can also be used in the reverse

situation to that just described for a mail order company. Suppose

that instead of using its keys for receiving secure

communications, the company wants to send out communications

to the public. The company could encrypt its own message with

 

37 The process is based on the mathematics of prime numbers, a description

of which is well beyond the bounds of this Report.

Public-key/private-key

encryption
How the Internet Will Work Tomorrow





its own private key. Members of the public receiving the

encrypted message could then decode it with the public key.

Since anyone can have access to the company’s public key—that

is why it is called a “public” key—anyone at all can decrypt the

company’s message. So why would a company want to do that?

Because doing so assures members of the public that the message

did indeed come from the company—not from an “impostor”

company or anyone else. Remember that the company’s public

key is the only key that will decrypt a message that was first

encrypted with the company’s private key. Any other

organization claiming to be the same company can encrypt

messages all they like, but if they cannot use the real company’s

private key to do so, the real company’s public key will not

decode the message—it will remain gibberish.

This latter use of public-private key encryption is an excellent

way to ensure authenticity. With other bells and whistles, it forms

the basis of what is often called “digital signatures”—a reliable

way of ensuring authenticity for digital communications. In fact, a

digital signature does not have to involve encrypting an entire

message. In some circumstances the message can be in plain text,

but have a set of numbers at the bottom. The numbers at the

bottom have just enough information to identify the sender, and

are encrypted with the sender’s private key. The sender’s public

key will decode that information and hence identify and

authenticate that the person claiming to be the sender is in fact the

real sender.

In a working system, more steps are involved. In particular, there

has to be some way of ensuring that someone who gives out a

public key in the first place is the “someone” they claim to be. For

example, what would stop Mary Doe from distributing a public

key over the Internet, accompanied by the statement “I am

L.L. Bean, and this is L.L. Bean’s public key. Be sure to use it

when you send all your credit card information to me.” The

generally accepted answer is that we need something like a notary
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public or other trusted official or organization that can undertake

the initial verification. This role is usually referred to as a

“Certificate Authority.”38 If the real L.L. Bean wanted to distribute

a public key, the Certificate Authority would say, in effect, “There

is a public key now available that was distributed by someone

who claims to be L.L. Bean. We have investigated and concluded

that it is, in fact, the real L.L. Bean that has distributed this public

key.” All this requires a fairly extensive computercommunications capability adapted to the purpose, because

verification must be available on demand, by computer process,

any time someone asks for it. But that capability is rapidly being

researched and built today.39

The Certificate Authority itself must be inherently trustworthy,

which suggests that the first CA’s will be established government

agencies or banks or comparable financial or other corporate

entities.40

Public-key/private-key encryption software is beginning to work

its way into commercial software products. It will be common

tomorrow for nearly any software package that exchanges

information over a network—and most will—to deal with

encryption quietly in the background, in a user-friendly way. This

 

38 The concept of certificate authorities is well explained in A. Michael

Froomkin, The Essential Role of Trusted Third Parties in Electronic Commerce, 75

OREGON L. REV. 49 (1996), also available from

<http://www.law.miami.edu/~froomkin/articles/trusted.htm> as of October

19, 1997.

39 See, e.g., a description of the research being conducted at the National

Institute of Standards and Technology on what is called the “Public Key

Infrastructure” or “PKI,” of which certificate authorities are an essential

component, at <http://csrc.nist.gov/pki/>, available as of October 19, 1997; see

also, e.g., VeriSign Corporation, Enabling Secure Electronic Commerce Through

Digital ID Solutions, <http://www.verisign.com/about/brochure.html>,

available as of October 19, 1997.

40 CA’s can also work in hierarchies: an established CA can certify a less

well-known CA, who derives its trustworthiness from the better-known

Authority’s “blessing.” In turn, the less known CA can then certify even less well

known CA’s, and so on.
How the Internet Will Work Tomorrow





software will also understand the notion that a given user may

have to deal with quite a number of keys: the user’s own private

key or keys, and a perhaps large number of public keys from

companies, charitable organizations, friends, colleagues,

government agencies, and the like. Computer methods for

managing a large number of keys are sometimes called “key

rings” or generally, “key management.”

In sum, communications by paper mail and phone are inherently

fairly secure,41 whereas the Internet’s packet-switched technology

is inherently insecure. Consequently, encryption is necessary to

assure that packet-switched or wireless communications are at

least as secure as mail and telephones. Public-key/private-key

encryption is a remarkable technology that allows both privacy

and authentication. Mechanisms are being built today for

providing, on demand over the Internet, the initial authentication

that public key distributors are who they say they are. And

finally, within the next year or so, ordinary software like word

processing and e-mail will come with easy-to-use encryption

capabilities built in as a matter of course.

 

41 But see Froomkin, The Metaphor Is the Key, supra note 32 at 729, noting that

even telephones are less secure than many citizens would think.
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Electronic copyright

management systems

A number of organizations are working on various schemes to

make digital works harder to copy and easier to license.42 These

schemes are often lumped under the single heading “Electronic

Copyright Management Systems” or “ECMS.” Some of the

schemes emphasize the technology of making works “harder to

copy”; others emphasize ways of making it “easier to pay for

copying.” Commonly both elements are present, so the emphasis

is a matter of degree.

The most basic systems rely on “secure transmission” of digital

materials between sender and recipient. Invariably, over the

Internet, this is done by means of encryption. For copyright

owners’ purposes, simple, single-key encryption alone provides

some, but not much, protection. It can prevent a “thief” stationed

at an intermediate computer from gaining access to the material,

for the material will be gibberish without the necessary decoding

key. The authorized recipient of the material can be required to

make a payment to the owner before obtaining the key. Once the

key is obtained, the recipient can decrypt the material and make

use of it. Nothing in the scheme itself, however, prevents the

recipient from further circulating either the key (if the owner uses

the same key for all encryption), or the decrypted material itself

without authority.

For some works, that modest limitation may be more than

enough. Many copyrighted materials are short in length and have

a short “half-life.” A timely newspaper column on a current

 

42 See the brief overview in Mark Stefik, Trusted Systems: Devices that enforce

machine-readable rights to use the work of a musician or author may create secure ways

to publish over the Internet, SCIENTIFIC AMERICAN, vol. 276, Issue 3, March 1997 at

68, also available as of March 12, 1997, from

<http://www.sciam.com/0397issue/0397stefik.html>.
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event, for example, may not have substantial monetary value even

when first released, and certainly not as time goes by and the

news becomes stale. Thus a mechanism based on encryption that

ensures a small payment in exchange for timely access may be all

the copyright owner desires. Further, unauthorized recirculation

may be limited by nothing more than the little time and trouble it

requires, relative to the modest value of the work.

A stronger degree of protection can be created with a centralized

source of access to copyrighted material. At one level, this is no

more than what many on-line database suppliers like WestLaw

and Lexis offer today: the material itself is not “sold” or

distributed; rather “access” to the information is sold. The user

must enter a contractual relationship with the seller; passwords

are issued to authorized users only; the entire database is either

too big or is technically restricted in such a way that an

authorized user cannot obtain more than a small portion of it at

any one time.

But more sophisticated variations are possible. For example, a

user might gain access to an entire lengthy work like a novel or

movie, but the access is only for purposes of making use of the

work while “connected” to the source site. That limitation might

be enforced by having the novel or movie kept on the source and

sent down in bits as it is being read or viewed; or it might be

enforced by downloading the whole thing to the user, but

encrypted in such a way that only when and only while an

authorized user is connected to the source site will the material be

decrypted. Upon disconnection, the material is left in an

encrypted state.
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Some variations of this scheme are designed to be accomplished

with special purpose hardware and software.43 Others rely on

software alone, coupled with WWW browser software. Generally

the software approaches involve the creation of a two-part

“package,” consisting of the actual copyrighted content, along

with a set of instructions or terms for gaining access to that

content. These “packages” are sometimes called “containers” or

“digital containers” or “digital objects”; they are the subject of the

next section.

Digital containers, objects

Much research goes on today on the technology of “digital

objects.” A “digital object” is a unit of information such as a story,

a movie, an image, a game, a computer program, or any other

informational work, that is encrypted and then “wrapped” inside

a software “envelope.” The object therefore has two parts: a

wrapper, and contents. Of course, the words “wrapper and

contents” are used metaphorically here: inside the computer, the

whole package is a string of bits. It is convenient to talk about

digital objects at a higher, more conceptual level, though, so

readers will need to remember that we are just talking about a

computer-processable set of bits.

The wrapper—the digital envelope—is not encrypted. Anyone

receiving a copy of a digital object will therefore be able to read

the wrapper. What the wrapper contains is up to the owner of the

object. The expected uses for the wrapper are to contain things

like abstracts or summaries of the contents; the name and address

 

43 See ROBERT WEBER (Northeast Consulting Resources, Inc.), DIGITAL RIGHTS

MANAGEMENT TECHNOLOGIES, SECTION 2.3 HARDWARE CONTAINERS (October, 1995)

(describing an implementation of this approach developed by the Xerox

Corporation), a report prepared for the International Federation of Reproduction

Rights Organizations, available from

<http://www.ncri.com/articles/rights_management> as of December 12, 1996.
How the Internet Will Work Tomorrow





of the copyright owner; the fees, if any, required by the owner to

make that content available; and so on.

The contents of the object would be encrypted and hence not

readily readable (or viewable, or listenable, or otherwise

perceivable) to the holder of the object.

These digital objects could be distributed widely, or posted on

WWW “server” computers that would function like digital retail

stores. Users would find these objects through browsing, using

online indexes, and the like—much as people find books or

software in stores or catalogs today. Once users found an object of

interest, they would read the wrapper to learn more about the

contents and the terms on which they might access those contents.

A built-in mechanism would also exist for users to make the

necessary payment for obtaining access to the contents. The

mechanisms currently under consideration vary, but let’s consider

a typical scenario. A service is available on the WWW that

provides bookstore or library-type access to digital objects. A user

uses a common WWW browser software package, with a special

“plug-in” designed for the purpose, to access this site and to

browse through or search with indexing systems the site’s

holdings. When encountering an object of interest, the user sees

the information from the object’s wrapper displayed on screen.

This display contains a summary of the contents and a price for

accessing those contents.
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Here, for example, is the way one such container appears on

screen:

Figure 6: Screen capture of one form of digital object technology from the IBM

Corporation, from <http://www.infomarket.ibm.com/> in the Fall of 1996.

Say the price is $.95, and the user agrees with these terms. The

user would then press or click an on-screen button to say “yes, I

am willing to pay the $.95 to access these contents.” At that point,

the click of the button would trigger an entry into an accounting

system that would record a transfer of $.95 from that user to the

owner of the digital object. The contents of the object would then

be decoded (unencrypted) and made available to the user.

Now a lot goes on “behind” this click. The accounting system may

be based on debit or credit accounts or on digital cash. That is, the

user may have previously had to establish an account by

depositing money into the account. This money would be

deducted from the user’s account and credited to other accounts.
How the Internet Will Work Tomorrow





Or the user may previously have needed to establish a line of

credit that allows the transaction to be handled like a charge on a

credit card. Or there may be a system of “digital cash” in place,

where in effect the user transfers “cash” directly over the

Internet.44 Whatever the mechanism, appropriate messages must

be sent back and forth among the computers and sites involved.

Sometimes this process is described with a line from the movie

E.T., by saying that the digital object must “phone home” to

register payment and get authorization to decode itself for the

user’s benefit. But however complex in fact, the whole process

only takes a fraction of a second, and so is not obtrusive to the

user.

The payment amount would be split up among various parties.

The site that is the “retail outlet” would get some of the money, of

course, but so would the copyright owner and the provider of the

accounting services. But none of this splitting up is in principle

any different from what happens with any ordinary retail

transaction in a physical store today.

Already today, one version of this system is operational with

users and a funds collection and distribution mechanism. 45

 

44 The mechanism for allowing “digital cash” is complex, but has been

worked out in theory and demonstration systems. See David Chaum, Achieving

Electronic Privacy, SCIENTIFIC AMERICAN, vol. 267, Issue 2, August 1992, p. 96.

There does not seem to be a strong trend toward wide-spread adoption of such

mechanisms at this point.

45 IBM has implemented a scheme like this that it calls “Cryptolopes,” short

for “cryptography” or “encryption” and “envelope.” See About IBM Cryptolope

Containers, available from <http://www.cryptolope.ibm.com/wiacc.htm> as of

December 11, 1996. A more detailed explanation of this approach, useful as

background on digital objects and rights management generally, is

INTERNATIONAL BUSINESS MACHINES CORPORATION, INTERNET DIVISION, IBM

INFOMARKET RIGHTS MANAGEMENT OVERVIEW (December 5, 1995), available from

<http://www.infomkt.ibm.com/ht3/rights.htm> as of December 12, 1996. A

more general summary of rights management technologies, including the digital

object container idea and other technologies as well, is ROBERT WEBER (Northeast

Consulting Resources, Inc.), DIGITAL RIGHTS MANAGEMENT TECHNOLOGIES, supra

note 43.
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“Superdistribution”

Digital objects also offer the possibility of what is called “super

distribution.” Super distribution refers to a mechanism whereby

individuals can buy access to a digital object, and also pass along

the object to others who can similarly buy access, and pass along

the object to still others, etc. The notion is very much like that of

“shareware” today. “Shareware” refers to software that is

copyrighted, and for which the author seeks payment, but whose

reproduction is not limited by the author. Shareware computer

programs are intended to be copied and circulated freely to

others. Payment is rendered either on the “honor system” or in

order to gain additional features or capabilities. The key point

about shareware, and the mechanism of superdistribution, is that

distribution is accomplished by individuals to other individuals,

not through stores or other commercial entities.

The difference between shareware and the use of digital objects

for super distribution is that digital objects would not rely on the

honor system. Rather, any user’s access to the object would by

some technical means be confined to those who have paid

whatever fee is called for by the author.
How the Internet Will Work Tomorrow





Proprietary viewers

Digital object technology provides a way to wrap up a unit of

information and keep it encrypted until decryption is authorized.

A common reaction from technologists when told about digital

object container technology is to assert that such a technology

won’t “do any good.” They mean by that that once the object’s

contents are decoded and available “in the clear,” as the

cryptographic community refers to unencrypted works, the

possessor of the information can freely copy and distribute it.

Thus all that is necessary for defeating the encryption scheme is

one buyer. That buyer will pay for decryption, and can then post

the unencrypted information to the Internet, whereupon it will

spread like wildfire.

Of course, assuming that this action is prohibited under copyright

law, some people will choose to obey the law and not post the

information. But there is also a technological response to this

situation, that takes the form of “proprietary viewers.”

A proprietary viewer is a software package that makes

information available to someone, either literally by displaying it

on-screen for “viewing,” or more generally by making it

accessible in whatever way is appropriate to the content. A sound

recording, for example, would not be “viewed” but rather

“played” or “listened to.” The term “viewer” is, however, used for

any such access.

The notion that a viewer would be “proprietary” is a bit of a

misnomer. The term itself suggests something about ownership,

which is perhaps loosely true; but more specifically what is meant

by the term is that the viewer program is a special program that

“knows about” rights management systems. Such a viewer could,

for example, understand that one user may have paid for the right

to read the contents of a digital object, but not enough for the

right to print those contents on paper; or paid for the right to
Mechanics





watch a movie two times, but not three times. The viewer

program would enable display of the contents of the object on a

computer screen in the first instance, but not allow printing; or in

the second instance, allow two viewings, but not three.46

The point of such viewers is that a digital object can be made

available to a buyer, without the contents ever being fully “in the

clear.” That is, there is never a time when the contents are

unencrypted and residing as a computer file of information

accessible to the buyer or anyone else. Display or other access to

the digital object’s contents always takes place under the control

of the viewer program, and that program is designed to allow the

buyer to do only what the buyer has contracted to be allowed to

do.

Like any scheme of technological protection, digital objects and

proprietary viewers are not insurmountable restrictions. They are

based on computer programs; such programs can sometimes be

“cracked” or “broken” or “reverse engineered.” When that is

done, the information is no longer protected against unauthorized

copying. But protection schemes will make such efforts harder

than otherwise in time, trouble and especially in expertise.

 

46 For a discussion of one particular proprietary viewer technology, see

Elizabeth Corcoran, Protecting the Ownership Right to Copyright: Paul Schneck’s

Technology Tightens Digital Safeguards Over Intellectual Content, WASHINGTON POST

Business Section Supplement, Monday, February 23, 1998, at 5. Also available as

of February 23, 1998 from <http://www.washingtonpost.com/wpsrv/WPlate/1998-02/23/016l-022398-idx.html>.
How the Internet Will Work Tomorrow





Fingerprinting, watermarking

Some digital materials contain so much information in the form of

“bits” that a few of those bits could be altered without the result

being noticeable. A digitized image is a good example. A detailed,

high resolution digital image might contain several million bits. A

handful of those bits could be changed (a few “ones” changed to

“zeros,” or vice-versa) without the image exhibiting any

noticeable difference. Even more than a handful could be altered

in a systematic way so that the image changed slightly, but only

in overall brightness or coloration. A side-by-side comparison

might reveal differences, but a stand-alone copy would appear to

the casual eye as the original unaltered image.
Mechanics





For an example of what the differences look like, an example that

will not show up well on paper, here are two image “halves.” One

is plain; the other is watermarked. The reader will have a hard

time judging which is which,47 certainly with this low resolution

image in black-and-white (the originals are in color), but even

higher resolution images in color may be only subtly different.

Figure 7: One non-watermarked, and one invisibly watermarked, images from the

DigiMarc Corporation, from <http://www.digimarc.com/wt_page.html> on December

12, 1996.

A small, systematic, but almost unnoticeable alteration like this

can be used to embed identifying information into the digital

work. A string of bits representing perhaps a serial number, or an

author’s name, is “hidden” in the other bits that make up the

 

47 Images were obtained from the web site of the DigiMarc Corporation, a

seller of the technology that has, of course, an interest in showing that the

technology is invisible. Their Web site does not reveal which half of the image is

watermarked and which is not.
How the Internet Will Work Tomorrow





image. With the right software, this string of bits can be extracted.

Moreover, software for working with images can automatically

detect the hidden markings and act accordingly—not permit

copying, for example.48 If those bits represent a serial number, the

image can then be identified as the particular one—or a copy of

that particular one—originally “stamped and numbered” by some

author. If serial numbers are logged and recorded somewhere, the

author can thus track down the source of unauthorized copies of

the image.

The string of bits would not have to represent a serial number, of

course. It might contain an author’s name, or terms of sales and

use, or the name of a library or bookstore from which the image

was originally acquired, or the trademark of the software used to

create the image, or nearly anything else.

Embedding more-or-less invisible information in a digital object is

called “watermarking,” after the similarly all-but-invisible

markings on paper used to identify the paper’s manufacturer.

Sometimes the term “fingerprinting” is also applied to this same

technology. Here the two terms are used interchangeably.

Other types of digital works are less susceptible to the bit-level

alteration of watermarking. A computer program, for example,

might be rendered completely dysfunctional if even one, crucial

bit were altered. Textual material with a few bit-level changes

 

48 One company that has developed this type of hidden marking has

reached agreement with a major manufacturer of image editing software to

create just this sort of automatic detection. “Automatic detection of the DigiMarc

watermark by image editing and browsing tools, such as Adobe's PhotoShop,

diminishes the potential for misuse and piracy of your images.”

<http://www.digimarc.com/let_page.html>, available from the DigiMarc site

as of March 14, 1997.
Mechanics





might look as though it contained typos: even a single “one”

turned into a “zero” is enough to turn one letter into another.49

In general, the types of digital materials that are most easily

watermarked are things that have continuous variations (what we

think of as “analog” works): photographic images, drawings,

sound, video, and the like. Computing—whether mainframes,

mini-computers, desktops, hand-held computers, or the

Internet—almost always evolves to handle “pure” digital

materials like plain text and numbers first, because these

materials require relatively little computer storage and processing

capacity. Computing comes to handle materials like images,

sound, etc.—which nowadays we tend to call “multi-media”—

later, because representing those kinds of materials in digital form

requires orders of magnitude more “bits” than plain text and

numbers and hence requires far more computing power and

storage capacity. A picture may be worth a thousand words, but

to a computer, a picture will require at least that much more

storage capacity and processing time.

But increasingly, the Internet is evolving, like mainframes and

desktop computers before it, to be more congenial to these large,

analog-like materials. The WWW has evolved to the point where

these days it carries quite a lot of such material. Consequently, the

ability to watermark digital materials can be useful to those who

want to have more oversight of the copying of their information.

Like digital object technology, watermarking is well out of the

laboratory already. Commercial companies announced plans to

 

49 Textual and numeric material can, however, be “converted” to an image

form. Conceptually, this is like taking a photograph of a page of text and then

digitizing the photograph. The result is a digital image that can be watermarked

as easily as a photograph of the Mona Lisa. The downside to this process,

though, is that the text can no longer be manipulated in, say, a word processing

program: it is no longer really “text” to the computer, but is instead a single

photograph. Techniques do exist, however, to convert the image back to text.

These techniques are known as “optical character recognition” or “OCR.”
How the Internet Will Work Tomorrow





include watermarking capabilities in commercial products for the

desktop computer market some time ago.50

Watermarking can also be highly visible. It can be used the way

the word “PROOF” is sometimes stamped across a photograph to

render the photograph viewable, but not commercially valuable.

In this capacity, watermarking is obvious and can be used for

showing what the commercial version of the image would look

like for those who choose to buy it.

 

50 See, e.g., Corel Corporation, Press Release: Corel Corporation Announces the

Launch of CorelDRAWTM 7 (October 8, 1996) (“Digital watermarking by DigiMarc

Corporation, ... can be used in conjunction with either CorelDRAW or Corel

PHOTO-PAINT”), available from

<http://www.corel.com/news/1996/october/draw7.htm> as of December 12,

1996. The commercial supplier of this particular brand of the technology is the

DigiMarc Corporation; on their technology, see generally DIGIMARC CORPORATION,

WATERMARKING TECHNOLOGY, available from

<http://www.digimarc.com/wt_page.html> as of December 12, 1996.

Visible watermarks
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Here, for example, is an image that has a visible watermark

applied to it. This particular mark is the logo of the company

supplying the image,51 but it could be anything at all.

Figure 8: Screen capture of a visibly watermarked image from the Corbis Corporation,

 <http://www.corbis.com> on December 12, 1996.

A buyer can then contract for the full-quality image, and obtain

either another distribution of the image with the visible

watermark removed by the seller, or some piece of software that

will automatically strip out the watermark.

 

51 The Corbis Corporation, Redmond, Washington.
How the Internet Will Work Tomorrow





Handles

A technology related to digital objects is that of “handles.” The

notion of a “handle” is based on the fact that digital works have

no standard convention for being identified by name; a “handle”

would be such a name. We have a long-standing system today of

citing and finding printed matter, especially in academic circles.

Lawyers know how to identify a precedent: we have a very

elaborate system based on volumes and page numbers. Other

disciplines have similar conventions for identifying printed

materials. Except for especially hard-to-find or unique works like

personal letters, references to printed works do not usually

contain information about the physical location of the work. One

might cite “J. SMITH, The Nature of the Universe, 78 JOURNAL OF

PHILOSOPHY 301 (1989),” but ordinarily one would not add “Acme

University Library, Second floor, Shelf B-27.”

Digital objects could have a reference system that imitated such

print-based systems, but the mapping of “volume” and “page”

numbers onto digital works is strained because digital works do

not fall naturally into such divisions.

Moreover, the current system of referring to information on the

Internet is not constant. That system—used in the footnotes of this

Report—depends more on identifying “locations” than “units of

information”; it is more like giving floor numbers and shelf

numbers in a reference than would be done with printed

materials. The conventional Web citation today is a “URL” or

“Uniform Resource Locator” that looks like this:
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http://www.acme.com/folder1/document 52

This reference implicitly assumes that “www.acme.com” is a

place on the WWW. The trouble with such “places” is that they

are really identifiers for computers, the computers that serve as an

organization’s host server. Which computer one uses may vary

over time: e.g., an organization may acquire a new computer or

new Internet supplier and want to switch materials to the new

computer. The lack of persistence in references caused by a

gradual but constant “movement” in the computers used for Web

services is sometimes called “Web rot,” for the gradual “decay” of

accuracy in Web references.

A “handle” would be a more refined convention for identifying

digital works. One such proposal,53 from the Corporation for

National Research Initiatives (CNRI), calls for a particular syntax

consisting of a label for an organization, a slash, then a label for

the particular document or work. So an article stored by, say, the

Copyright Office, dealing with the Internet and copyright, might

carry a handle like this hypothetical one:

hdl:www.co.loc.gov/Internet.copyright_issues

The “hdl” would identify the citation as a “handle”; the

“www.co.loc.gov” would identify an organization—the World

Wide Web site of the U.S. Copyright Office, which is part of the

Library of Congress“; Internet” might be a computer directory or

 

52 Sometimes brackets, typically angle brackets, are added outside the

reference to ensure that ordinary sentence punctuation is not confused with the

URL itself. Thus if the above reference were included within the body of a

sentence, it would appear as <http://www.acme.com/folder1/document>, so

that the comma at the end was clearly not part of the reference.

53 See WILLIAM ARMS AND DAVID ELY, THE HANDLE SYSTEM: A TECHNICAL

OVERVIEW (June 23, 1995), available from

<http://merlin.cnri.reston.va.us/home/cstr/handle-overview.html> as of

December 12, 1996.
How the Internet Will Work Tomorrow





folder holding various publications, within which was stored a

document labeled “copyright_issues.”

At first glance, this notation does not seem especially different

from the URL example shown previously. The syntactical

differences are in fact relatively slight. But the difference is not

primarily in the syntax and appearance of the references. It is

rather that the handle reference is merely the surface appearance

of an agreed-upon system of storing and accessing digital objects.

And this takes us to the idea of “repositories” for such objects.

Repositories

A repository for digital objects would be like a library or

bookstore, but would be designed for continuity. Any author of a

digital work could choose a repository, and place the work there.

The repository would undertake the function of providing a

unique name (handle) for the work, and for ensuring that other

indexing and repository services are aware of the work and its

handle.

Convergence of media

In a nutshell, the future of information is digital. Nearly all

information that is potentially copyrightable—text, images,

animations, drawings, motion pictures, music and other sounds,

etc.—can be represented by a set of one’s and zero’s

comprehensible to computers. In some realms like commercial

motion pictures, the use of digital technologies is still

supplementary to motion picture photography. Most movies with

people and real things in them are filmed on film. True, special

effects are often created with computers and digital technology,

and more movies are being made entirely by computer animation

(such as Disney’s Toy Story). But the preponderance of movie

work today is still with photographic film techniques. Of course,

this may change, as it already appears to be doing with television.
Mechanics





Television is beginning to rely more on digital technology. The

original capture of a performance by a television camera may or

may not still be done with “ordinary” cameras. But a great deal of

television is put in digital form for satellite transmission.

Television that is sent by satellite directly to a small (roughly

eighteen-inch diameter) dish antenna on one’s house is in digital

form, for instance. The result is purportedly of better quality than

wire cable or regular broadcasting. If true, that has nothing to do

with the difference between wires and satellite transmissions.

Rather, it has to do with the difference between analog and digital

transmissions. If wire cable or broadcast television switched to

digital format—which is technically feasible54—those signals

would have the same quality as a satellite transmission.

The number of these digital satellite receiving dishes in use by

consumers is growing fairly rapidly,55 though it is too soon to tell

whether this represents a long-term trend or not. But the satellite

television example does show one thing: how feasible it is to

convert television into digital form. The Internet is also, of course,

a medium for carrying digital signals. Hence the Internet is

capable of carrying television transmissions and has begun to do

so.

Here is a screen capture showing a live television broadcast of an

indoor soccer game in Spain, being broadcast over the Internet

from Spain. This image was captured with an ordinary home

 

54 See Paul Farhi, The Whole World in His Hands? Murdoch’s Satellite TV Plan

May Be His Shrewdest Move Yet—if It Flies, WASHINGTON POST BUSINESS, Sunday,

March 16, 1997, p. H1, H7 (“TeleCommunications Inc., the nation’s largest cable

company ... is among those that have begun to introduce ... digital ‘boxes’ that

expand the average cable system’s capacity to 150 channels. TCI has been testing

its digital system in Hartford, Conn., and says it will make the service available

to more than 5 million of its customers by year-end.”).

55 See, e.g., Mike Mills, News Corp. Makes $1 Billion Bid To Enter U.S. Satellite

TV Market, WASHINGTON POST, Tuesday, February 25, 1997, at p. D1 (noting that

the number of direct-satellite subscribers at the end of 1996 amounted to about

4.3 million, with projections of 13.6 million in 2001, and 17 million in 2006).
How the Internet Will Work Tomorrow





computer with a standard modem56 and a dial-up connection to

the Internet from Virginia.

Figure 9: Screen capture showing live television broadcast of a soccer game in Spain,

from <http://www.crtvg.es/tvrede/privideo.htm> on September 6, 1997.

 

56 The modem was a 28.8 kbps model running over an analog phone line in

the author’s home.
Mechanics





Perhaps the Internet will end up carrying television signals on a

regular basis because the net’s capacity will be dramatically

improved, whereupon already-digital television would leave

satellites and dish antennas to “move over” to the Internet. Or it

might happen in reverse: the Internet might “move over” to a

more capable satellite and dish antenna system, joining television

that is already there. At least one commercial service has already

arisen to provide the equivalent of television’s Direct Broadcast

Satellite services for Internet transmissions57 and a similar service

provides both television and Internet reception on the same

satellite dish antenna.58 Whether television “moves” to the

Internet or vice-versa is simply a difference in the way that

progress unfolds, but not in the end result.

New services have been announced that will provide a

combination of television and World-Wide Web browsing

capability. The idea is that one can be watching television, say a

news broadcast. At the bottom of the television screen will be a

continually changing list of URL’s, each appropriate for the story

being broadcast at that time. If a story interests a viewer, the

viewer can use a mouse to click—directly on the TV screen—the

URL and immediately jump from the television picture to a Web

browser to a site that provides more detailed information.

What is true for audio-visual signals is even more true for sounds.

Sound alone takes much less transmission capacity that soundplus-pictures. Digital musical broadcasts are rapidly becoming a

reality, and will continue to grow.

 

57 The commercial name is "DirecPC." See more information on

<http://www.direcpc.com/about/index.html> as of September 6, 1997.

58 See the “DirecDuo” site, <http://www.direcduo.com/> as of September

8, 1997.
How the Internet Will Work Tomorrow





Dispersed works

Techniques like encryption, digital objects, watermarking, and the

like are oriented to units of information that exist in one lump, as

it were. The WWW itself, in contrast, is all about dispersing

information physically but then connecting it by links. The typical

WWW site page, for example, has lots of links or “pointers” to

other things. Sometimes these pointers are obviously “pointing”

somewhere. For instance, one might see a Web page that says:

For more information, check out

Acme’s Corporate site.59

The user is invited to click a mouse pointer on the underlined

words, and understands that doing so will cause a “jump” to the

Acme site. We might call this type of link an “out-link,” because it

directs one’s computer to go “out” to another site.

But other links are not as obvious. For example, graphic images

that appear on a Web page are not actually located “on” that

page. Rather, they are contained in separate image files. The Web

page contains links to these image files. When a user visits the

site, the host computer will “assemble” the various elements on

the page—which might include in addition to images other

separate files containing text, animation, sound, and so on—from

each of these separate files and merge them on the spot into what

appears to the user to be a single, colorful page like in a magazine.

Because this type of link pulls information “in” to a Web page, we

can refer to it as “in-linking.”60

 

59 This kind of link in the HyperText Markup Language, or HTML, might

look something like this: <a HREF="http://www.acme.com/">Acme’s

Corporate site.</a>.

60 This kind of link in HTML might look something like this: <img

src=”picture.gif”>.
Mechanics





When some of the in-line links pull in images or other

information from another site and another owner, copyright

issues are more clearly raised. This latter situation is addressed

below, in the discussion of copyright implications under the

heading In-line linking, at page 171.

Image searching

Searching for images or sounds is obviously different from

searching for text. Several techniques are available, however. One

search site indexes the words that surround or label images and

sound files. One can search for “beach or sky,” for example, and

find pictures of beaches or the sky.61 Though relatively

unsophisticated in concept (the searching is still for words), this

type of searching allows finding quite a lot of audio and imagery.

More sophisticated techniques are being worked on, however,

that allow something like “full text searching” of computerized

images.62 Such systems work something like this: Imagine a user

seeking an image in an online image database. The user has an

idea of what the image either does look like (having seen it

before), or what it might look like (having a general idea of what

kind of image is appropriate).

The search system presents the user with several quite different

images, chosen at random. The user selects the one that seems

most like the desired image in color and composition. The system

then brings up another selection of images, this time that

approximate the chosen image’s color, color saturation, layout,

and so forth. Again, the user selects the one that most closely

 

61 See, e.g., the Lycos site, available as of March 11, 1997,

<http://www.lycos.com/lycosmedia.html> ("Now you can search for photos,

art, designs, videos, music, noises... everything that the written word can't say.

Our multimedia index will link to directly to image and sound files from across

the Web!").

62 The author is not aware of comparable techniques for digitized sound.
How the Internet Will Work Tomorrow





resembles the desired image. The process repeats itself until the

user finds the right image.63

Push versus pull technology

Browsing the Web implies that a user affirmatively “goes out”

and looks at various Web sites. Web site pages, in other words, do

not just come to a user’s computer screen willy-nilly: rather, the

user specifies a Web address (a “URL”) and presses “enter” or

clicks on a hypertext link. When one speaks today of “browsing”

the Web, it is this user-initiated process that is meant.

Increasingly, though, new technologies are being developed that

send information to a given user without the user’s affirmatively

undertaking any more than a one-time indication of desire to

receive the information. The Web can thus function the way

newspaper delivery functions: once the initial arrangement is

made, information from one or more Web sites can be “delivered”

to the user’s computer at regular intervals to be examined at

leisure. Because of the development of this form of information

access, the previous “go-out-and-get-it” methods are becoming

known as “pull” technology. The “subscribe-and-it-will-be-sentto-you” methods are becoming known as “push” technology.

In reality, both “pull” and “push” information access work the

same way: commands are sent from a user’s computer to a Web

site to request the retrieval of information, typically in the form of

Web pages (though perhaps in other formats as well). The

difference is in the degree of automation. With “pull” technology,

every command that requests information is initiated by a user

 

63 See the experimental image search engine that is part of the on-line

collection of the Fine Arts Museums of San Francisco, available as of January 16,

1997, from <http://www.thinker.org/imagebase/index-2.html> (Click the

button labeled “Search the Japanese prints”; options are offered to seek an image

match based on either color percentages, color layout, or texture.)
Mechanics





sitting in front of a PC at that time. With “push” technology, the

user commands a computer program to set up a schedule for

information requests. After that, the computer makes the requests

in accordance with the user’s chosen schedule: hourly, daily, etc.

In both cases, the user’s computer must issue the request for

information, but in the latter the requests are undertaken

automatically, whether the user is physically present or not.

As long as the latter requests are handled by the computer more

or less “invisibly” to the user, the effect is that of newspaper or

paper mail delivery. Users can therefore schedule Web

information delivery for regular intervals, such as daily or

monthly. Online magazines and news services are obvious

candidates for this use. Or delivery might be on a “need to

receive” basis. Software updates, for example, might come out on

an irregular basis. Whenever they do, they can be sent out on the

Web to those who have indicated a desire for that service. That

this actually happens by means of a program constantly running

on the user’s computer that initiates repeated requests over the

Web to check for updates at regular intervals matters little; it

“feels” as though the updates are “shipped” to the user whenever

they are released by the manufacturer.

Whether “push” or “pull” technology emerges as the primary

mode of World-Wide Web transmissions depends mostly on the

future capacity of the Internet and its pricing. It is possible that

the Internet will be like television, with hundreds or thousands or

even millions of channels available to anyone. If so, connecting to

a given site might be as simple as flipping to another channel on

television is today. And if that is true, the distinction between

push and pull is unimportant. Users will simply “dial up”

whatever they want and be instantly connected at that time. With

television today, for news, one flips to the news channel; for

weather, one turns to the weather channel. On the Internet

tomorrow, such turning of a dial may result in customized news

and weather being delivered, specified ahead of time by each

subscriber as being of interest to him or her. But whether this is
How the Internet Will Work Tomorrow





done with a “push” or “pull” will not matter. The point is rather

that customized information will be readily available to all

Internet users.

Customized information delivery

There has been talk for years of “personal newspapers” delivered

to individuals; several new Web news services now approach that

model. These services allow a user to specify what sort of news,

weather, sports, and the like that the user has an interest in. These

organizations will then gather, on a daily or other specified basis,

just the news and information that the user has indicated, for

delivery to that specific user. Other users get their own, tailored

information.

Microsoft, for example, is now creating “Sidewalk,” a format for

information relating to individual cities, with an opportunity for

subscribers to customize information even more locally than to a

particular city. A subscriber will evidently be able to specify, for

example, a list of sports teams, bands, comedians, artists, and so

on that are of special interest. The Sidewalk service will then

notify the user of events relating to those interests.64

PointCast is a company that assembles customized news,

weather, sports, and financial information in accordance with

interests specified by a PointCast user. PointCast then ensures

 

64 “Yes, it’s D.C.! It’s our entertainment scene -- restaurants from Mexico to

Ethiopia, music from political satire to all that jazz, movies from blockbusters to

classic revivals, sports from the ‘Skins and the new downtown arena to your

favorite college teams. From Georgetown to U Street, from Manassas, Va., to

Columbia, Md. -- It’s your personal guide so you can get the most out of this

diverse and exciting city. And if you tell us what entertainment means to you,

our editors will customize Sidewalk for you every day with the local information

you want. Whether it’s Old Town dining options, the best margarita in Adams

Morgan, or where to grab a burger after a 'Skins game, we’ll point you in the

right direction. Afraid you’ll miss out when your favorite band comes to town?

Let us know and we’ll keep our eyes open, so you don’t have to.” From the

Microsoft Web site, available as of November 15, 1996 from

<http://www.microsoft.com/sidewalk/TeamDC.htm>.
Mechanics





that the user’s desktop computer is updated, at intervals the user

specifies, with the latest news.65 Time Magazine, for another

example, operates “Pathfinder,” which includes a personalized

news and information delivery service called “Personal

Edition.”66 Other similar services can be expected to arise.67

Software agents

Software can automate a lot of activities. The popular perception

of this probably first arose with word processors: the computer

could do the work of moving words and lines around and retyping. We are all familiar today with this sort of software

automation; indeed, we expect that large businesses will keep

their product inventory on a computer, will have computerized

ordering, and so on.

We are less familiar with a variant of software automation that is

under serious development: software “agents.” A software agent

is a computer program designed to search regularly and

automatically across the Internet to look for things such as

 

65 See <http://www.pointcast.com>.

66 <http://www.pathfinder.com>

67 E.g., the Lexis-Nexis Information service advertises as follows:

“LEXIS®-NEXIS® Tracker is for organizations that need to alert their

employees to daily news and information regarding their own

company, competition or industry... soon after it happens. Specialized

Trackers are also available to monitor patents, U.S. legislative bills and

other topic areas. LEXIS-NEXIS Tracker delivers to company e-mail or

groupware platforms, or through your company's intranet. 

“LEXIS®-NEXIS® InfoTailorTM is a personal information agent that

brings customized news every morning to your desktop. You tell

InfoTailor what you're looking for -- it finds it, builds your personal

issue, and delivers it to your in-box or Web browser (limited release).

You get the top 20 articles relevant to your profile request, and you can

change your profile as often as you like.”

See <http://www.lexis-nexis.com/lncc/products.html> available as of June

7, 1997.
How the Internet Will Work Tomorrow





information or products or services desired by its “owner,” and

perhaps even be able to execute contracts for the purchase of

goods and services on behalf of its owner.68

These “agent” programs can take different forms. One would be a

computer program that resides on, and is run on, a user’s own

computer. The agent program would therefore not physically

“travel” on the Internet, but rather would send queries and

requests across the Internet; the results would, however, appear to

be the same as though the program had literally traveled across

the network. Other forms of agent programs might more literally

travel. It is possible to create a network within which programs

actually are communicated—more or less like e-mail messages—

to other locations, perhaps many such locations. Once being

delivered to a particular computer, the agent program would then

run on that computer to initiate requests for information, or

deliver information, or negotiate contracts, and the like. At the

completion of that task, the agent program might return to its

home computer, or perhaps continue its journey to other

computers, as initially arranged by the program’s owner.

There is mixed opinion on the desirability and feasibility of these

agents. Many in the computer science community see them as an

inevitable, exciting, and powerful wave of the future. Many in the

commercial community are much less certain of this outcome, and

point to a variety of perhaps less exotic alternatives that they

argue can do more with less. One alternative is powerful search

engines and large databases, for example. The notion is that

database and search engine technologies are becoming extremely

powerful and sophisticated. A search site that was devoted to

 

68 See UCC 2B draft dated September 25, 1997, 2B-102 (definition of

“Electronic Agent” as “a computer program or other electronic or automated

means used, selected, or programmed by a party to initiate or respond to

electronic messages or performances in whole or in part without review by an

individual”).
Mechanics





tracking prices of certain goods69 might yield faster answers to a

price search than one that was done by an individual agent sent to

“crawl” around the Web.

 

69 The author happens to know of one such site,

<http://www.pdapage.com/default.htm>, as of January 25, 1998, that tries to

track the best prices on a type of handheld computer sometimes known a

“Personal Digital Assistant” or PDA; doubtless there are others.
How the Internet Will Work Tomorrow





3.2 Players and Organizations

The best information available on the “players” in tomorrow’s

Internet is not good information at all. The companies most likely

to be affected by, or to be able to take advantage of, the Internet,

are themselves at a loss as to their own future roles.

In only the last two or three years, we have seen huge corporate

mergers announced, called off, undertaken, canceled. Large

companies have considered mergers with other large companies

(IBM and Apple held talks); have acquired other companies (IBM

acquired Lotus); have announced mergers and given them up

(AT&T, TCI); have merged with former competitors (Symantec

acquired former competitor Norton); undertaken partnerships

(Microsoft and NBC); and the like.

There is no clear trend in these corporate re-shufflings. At best,

one can try to fall back on principles of economic incentives and

corporate size and role, hoping that they will provide some

insight.

Content providers and carriers

One communications-related phenomenon prevalent today is the

blurring of the roles of provider of content, and provider of

transmission services. The phone companies just a few years ago

were barely in the “content” business at all (with the exceptions of

white and yellow pages and directory assistance services). They

were, for all practical purposes, entirely in the “distribution” or

common carriage business.

The phone companies of today are exploring the provision of

content, as cable companies began to do a few years ago. Newer

companies like CompuServe and America Online are playing a

variety of roles, as they offer both a telecommunications
Players and Organizations





infrastructure and much of the narratives and imagery that form

that infrastructure’s content. Other companies that provide

Internet access to consumers—the Internet Service Providers—

offer little or no content currently, but could change that practice

tomorrow.

The rights and responsibilities of these intermediaries, broadly

referred to here as “OSPs” for “Online Service Providers,” are not

yet clear because they do not occupy a single position on the

spectrum of content-to-carriage. Even companies like Microsoft

that formerly provided an end-product (applications and other

software) with little relationship to communications or “content”

as we usually think of it, are now “doing it all”: providing

applications programs; providing communications services

(through the Microsoft Network); providing pure content in the

form of CD-ROM encyclopedias and the like; and engaging in

joint ventures that deliver content (the Microsoft Network and

NBC venture called, appropriately enough, “MSNBC”).

Economic analysis suggests that merging for greater size is only

advantageous in the long run if it provides economies of scale.

This means that (again, in the long run and other things being

equal) a single company is not likely to stay in two or more lines

of business (such as content and distribution) unless there is some

“synergy” between the lines. Microsoft can be successful in the

applications program market and CD-ROM encyclopedia market

because it has economies of scale in software distribution. In fact,

its encyclopedia “Encarta” is licensed from and based on the

Compton’s encyclopedia; presumably the skills of software

research, development and testing are not efficiently transferable

to the collection and assemblage of encyclopedic knowledge, so

Microsoft does not try to leverage its skills in that area.

With WWW distribution of information products, more

traditional distribution mechanisms—that depend on mailing or

trucking physical boxes to retail stores, stacking products on

shelves, and the like—may prove to be less important than they

Economies of scale
How the Internet Will Work Tomorrow





have been. If that happens, it may no longer prove advantageous

for companies like Microsoft to continue in the encyclopedia

business: without economies of scale in the physical distribution

of software, and without any particular advantages in the

preparation of encyclopedic knowledge, it would have no

competitive advantage over the encyclopedia companies

themselves. We may, in short, see tomorrow the opposite of the

mergers and would-be mergers of today, as companies specialize

in segments of the Internet market.

Everyone will not be a publisher

Current digital communications sharply lower the cost of

distributing information to others. At the cost of access to the

Internet and perhaps a small additional fee, anyone can have a

Web page. Not counting hardware costs, the cost of having a

commercial service host a Web page is about $30 to $35 a month.

It is thus now easy to have a world-wide audience for one’s works

of authorship. Compared to reaching a world wide audience

through print media, this pricing level is staggeringly low. Such a

sharp drop in distribution costs leads many to say that “everyone

is a publisher” these days. Some even go so far as to say that

conventional publishing is dead or will soon be so.70

How true is it that “everyone is a publisher” Or that conventional

publishing is dying? Certainly digital communications change

things. One expects a great deal of information to be accessible

world-wide that was not nearly so accessible previously. One

expects many new business to arise and grow because they can

make use of inexpensive WWW technologies and global access to

their services. Academic papers are already coming onto the Web

 

70 For interesting speculations about the lowering costs of “publishing,” see

Eugene Volokh, Cheap Speech and What It Will Do, 104 YALE L.J. 1805 (1995).
Players and Organizations





long before they appear in print; this may have the effect of

diminishing the contribution of conventional print publishers.71

But we might look a little harder at what “publishing” entails.

Publishing involves several steps: selection, editing, layout and

design, printing and binding, distribution, advertising.

Digital communications mostly apply to the “printing and

binding” and “distribution” steps; nothing about a digital world

makes it cheaper or easier to select works—to decide what

information has value and what does not. Of course, the point

about “everyone” publishing is that “selection” will mean “self

selection”: people will publish their own information themselves,

and not go through the selection process of a publisher at all. But

publisher selectivity serves a function, namely quality control.

Most academic libraries will buy a new book from a reputable

scholarly publisher without close examination, relying on the

publisher’s past reputation for selectivity as a good and low cost

indication of quality. Quality control, quality rating, and the like

are valuable functions that will continue to have value in

tomorrow’s world. If today’s publishers do not find a way to

provide that service, someone else will. Self-publication will

require it because those who are not specializing in, and making a

living from, reviewing information for its quality will not have

the time to review thirty million documents72 every time they

need to know something.

“Layout and design” are functions that are likely to assume an

even greater role in tomorrow’s world. Most people are not aware

of what today’s graphic designers do for printed publications, or

 

71 See, e.g., Bernard Hibbits, Last Writes? Reassessing the Law Review in the Age

of Cyberspace, 71 N.Y.U. L. REV. 615 (1996); see also, I. Trotter Hardy, The Death of

Law Reviews—A Reply, 30 UNIV. AKRON L.REV. 249 (1996).

72 Computerized search engines do not answer the need. Despite very

sophisticated search techniques and algorithms, they still are not able to rate and

review sites for quality. Some “search” sites do this, but they do it with human

editors.
How the Internet Will Work Tomorrow





producers for video commercials. The best works for which they

are responsible have a degree of sophistication in their

appearance that is invisible as a conscious matter to the average

consumer, but that exercises a great deal of unconscious influence.

It is already true today, though not often noted by those who

believe that everyone will be a publisher, that when “everyone”

has a Web site, the sites look amateurish. The most appealing sites

are increasingly sophisticated—not just in their technology,

though that is certainly a part of it, but also in their design and

layout. Attractive dancing and singing Web pages take a lot of

effort and resources and talent to create. “Everyone” does not

have the time or talent to produce them, so that it is unrealistic to

think that everyone will be a publisher on the Internet of

tomorrow.73 At the very least, whether one uses the term

“publisher” or not, there will be a sharp difference between

“professional” Web sites and “amateur” ones, and the differences

will be significant for users.

The distribution of advertising is something that the Web makes

cheaper, so that some advertising will certainly be done by

individuals. But effective advertising depends on consumer

appeal, which depends on cleverness, good design, eye-or-ear

appeal, and so on. There is no reason to think that average

persons will have any more ability to produce good advertising

 

73 “According to AltaVista, which has indexed a total of about 30 million

Web pages, five million of them haven't changed at all since early 1996, and

some 424,000 pages haven't been updated since early 1995. ‘People have enough

enthusiasm to design the sites once -- but it's not clear that they have the

resources to update them regularly,’ says Louis Monier, the architect of Digital

Equipment's search engine. (Wall Street Journal 11 Mar 97).” John Gehl &

Suzanne Douglas, Spring Cleaning Time For Some Web Sites, EDUPAGE, 11 March

1997. (“Edupage, a summary of news about information technology, is provided

three times a week as a service by Educom, a Washington, D.C.-based

consortium of leading colleges and universities seeking to transform education

through the use of information technology.”)
Players and Organizations





than they have to produce attractive Web sites.74 Once again,

there is a role to be filled by someone here, whether that someone

is called a “publisher” or “advertising agency” or something else.

Commercial vs. academic entities

For years, the Internet was an academic research project. It was

created by talented academics and computer science researchers.

Much of whatever organization we have today is dominated by

the structure originally established in a research climate. The

cooperative, collegial approach of academics is visible in such

Internet institutions as the Internet Engineering Task Force (IETF),

a body that anyone can join.

Talks with people in research-oriented institutions, in

government, and in private industry, reveal an interesting

phenomenon. Those in research retain a sense both that the

Internet should be collegially and cooperatively managed and

developed, and that it is in fact being so managed and developed.

Those in private industry manifest a different attitude, that the

Internet is in no one’s hands, though private industry is taking the

lead in exploiting and shaping its future.

It is quite common to observe academic researchers engaged in

projects similar to those being undertaken privately, notably in

the area of digital objects. There’s nothing inherently wrong or

even wasteful in this sort of competition: if there are several

schemes for protecting information objects, users will have a

choice, there will be incentives to improve products, and the

public will benefit.

 

74 If one watches enough television, one has to question whether some of

today’s advertisers have any sense about consumer appeal either. But the best ads

are, it is true, very good indeed--and they are generally done by a concentration

of advertising agency talent, not computer technologists.
How the Internet Will Work Tomorrow





What is striking about the process, though, is the speed with

which private industry is moving relative to that of the academic

research sectors. One researcher noted, for example, that in the

early days of the Internet, a handful of people could get together

and make crucial decisions about network architecture, protocols,

addressing, and the like. Nowadays, so many people have a stake

in these things, that progress on new, improved standards (for

architecture, protocols, etc.) comes more slowly than before. It is a

major undertaking to make any changes at all in the underlying

technology of the Internet.

What that means is that changes are most rapid when they consist

of applications layered on top of the existing structure. Many such

new applications are in evidence already: Internet telephony, live

radio broadcasting, video, animation, and so on. These are

applications that can earn money and are being driven largely—

though certainly not exclusively—by commercial interests.
User Capabilities





3.3 User Capabilities

Users of the Internet tomorrow will have access to many services.

Many of these services will cease to be highly “visible” and will

instead become a part of ordinary life.

What follows is a snapshot of a number of significant capabilities

that are either operable in a limited way today, or nearing that

point.

Internet as backdrop

Many experts agree that both “the Internet” and “computers” will

cease to be visible to their users.

We speak of “the Internet” today as an entity—a thing. One

connects “to the Internet” for a session. One finds things “on the

Internet.” The attention to the Internet as a thing in this way will

gradually fade, as “the Internet” becomes more and more the

mechanism by which digital information is transmitted. Today we

do not say that we called somebody “using the voice telephone

system,” nor do we say that we picked up a television program

“over the electromagnetic spectrum.”

In just that same way, tomorrow we will stop being conscious of

the Internet as a medium and simply take it for granted. The

Internet will be assumed, assumed as the medium of digital

communications. More and more information will be delivered in

digital format, including telephones, radio, television, movies,

and music. When we speak tomorrow of “watching television” or

“listening to the radio,” we may well mean that we are receiving

the signals over a digital network—the Internet.
How the Internet Will Work Tomorrow





“Ubiquitous computing”

Computers are getting smaller and less expensive. They are

already present in many places that are not noticeable: in cars,

regulating gas flow and combustion; in smoke alarms; in voicemail systems; and so on. This trend will continue. Eventually,

nearly everything with an electro-mechanical function will also

contain a computer and be connected to the Internet.

In one sense, this trend is just a continuation of the gradual

shrinking in size of computers. At the very dawn of their

development, in the 1940’s and 1950’s, computers were roomsized pieces of equipment. Later in the 1960’s they became

refrigerator sized. In the 1980’s the personal computer became

roughly “television” sized and could fit on a desk. Today, laptop

computers are a few pounds in weight, and “hand held” or

“personal digital assistant” computers weigh typically less than

one pound and fit in pocket or purse. Computers will no doubt

continue becoming smaller and more powerful.

But in another sense, the way we perceive “computers” will

change. For as computers become more and more numerous and

smaller and smaller, we may cease viewing them as “things” and

begin seeing them as simply part of the general background of

modern life. An analogy may help convey this important shift.

In the eighteenth century, glass for windows was rather

expensive. Buildings accordingly had relatively few, if any, glass

windows. One would expect that a glass window would therefore

be noticeable as such: an eighteenth century guest in a home or

store with a large glass window would almost certainly notice it

as unusual and striking. Today, there is nothing whatever striking

about glass windows: a twentieth century citizen of the United

States would not pay any attention to them, glass windows

having become so common that they have disappeared into the

background of everyday familiarity. To be sure, desktop
User Capabilities





computers these days are also familiar to most industrialized

societies, but they have not yet “disappeared.” We still notice

them, think about them as entities, call them “desktop

computers,” and the like.

In the next few years, they may recede as individually identifiable

things. Some predict that computers used for work purposes will

stop having an association with particular “owners.” Today, we

speak of “my computer”; we may note that we cannot take notes

or do some other function because we “do not have my computer

here.” Or we carry several pounds worth of a laptop computer

because by doing so, we can be sure to have “our computer” with

us when needed. We are much less proprietary and possessive

toward paper and pencil, because if we are going to use paper

and pencil, we are comfortable using whatever pad of paper and

pencils happen to be near. Tomorrow we may do the same with

computers. Each computer may be part of something no bigger—

and perhaps no more expensive—than a pad of paper. We may

simply find them lying on a conference table or in a meeting

room—computer pads—awaiting our temporary use.75

Internet connections will likewise be almost everywhere. Not only

will “computer pads” be readily available for temporary use, but

each of these small pads will be connected to a network that

allows the computer pad to transmit whatever we have written or

spoken or drawn to some other computer storage location. That,

of course, is the key to temporary computer use: the information

will be easily transmitted back to whatever storage location is

always accessible to us.

 

75 Mark Weiser, The Computer for the 21st Century, SCIENTIFIC AMERICAN, vol.

265, Issue 3, September 1991, at 94.
How the Internet Will Work Tomorrow





Software subscriptions

A lot of mass-market computer software—including computer

programs or “applications,” as well as “information” and

“edutainment”76 programs—is sold today in physical packages:

shrink-wrapped, cardboard boxes bought from retail outlets or by

mail order. The same is true for audio CD’s, video cassettes, and

computer game cartridges, which are either sold or rented as

physical packages. Other software is sold on-line in the form of

access fees: Lexis and WestLaw, for example, sell information online (as well as on disk in some cases). With the Internet, the

possibility arises that some of what are today’s disk sales might be

replaced by on-line distribution.

This might happen in a variety of ways. Some software might be

sold entirely over the Internet. Today, some software is given

away in this fashion; tomorrow, some will continue to be given

away, while other software will be sold for downloading. Other

software will be sold as a physical package but the buyer will

obtain updates—bug fixes, new features, and so on—over the

Internet. This latter mechanism can itself be set up in different

ways. A user might “go out” actively to browse a company’s Web

site to see if updates are available and on what terms. Or the user

might subscribe to a service that does the checking for updates

automatically. Such a service can be offered by the software seller

itself, or by third party “update services” who make it their

business to keep track of other companies’ software versions and

new releases.77

 

76 “Edutainment,” a contraction of “education” and “entertainment,” is a

new term that describes multi-media software intended to be both.

77 One such service, commercially sold by the Cybermedia company under

the name “Oil Change,” is already operational. See the product description,

<http://www.cybermedia.com/products/oilchange/ochome.html>, available

as of October 19, 1997. Other companies offer automatic updating of their own

software products.
User Capabilities





A third-party update service consists of two parts: software

loaded on the individual buyer’s desktop computer, and a central

repository of update information located on the third party’s own

computer. The software installed on the individual buyer’s hard

disk makes a record of the various other software programs that

the buyer already owns. Meanwhile the company continually

tracks other software companies for any new releases or updates

they may issue. It makes a record of these updates in its central

database. The copy of the software on the buyer’s hard disk then

periodically and automatically “checks in” with the central

database to find out if any of the buyer’s software packages have

been updated. If they have, the software obtains the necessary

updates and installs them. The user is therefore kept up-to-date

without having to make an affirmative effort to do so.

Another possibility is that software companies themselves will

sell the service of automatic updates, instead of or in addition to a

third party update service. When users buy a software package,

they will buy an automatic updating service provided directly by

the seller. Periodically, the buyer’s copy of the software would

check in with the seller’s database of updates and update itself as

necessary. Such updates could be of either enhanced features, as

in a word processor; or they might be of information, like the next

six month’s worth of encyclopedia articles or the next day’s

baseball scores.

Yet another option is that computer users will never actually buy

a software “package” at all. Rather, they will obtain whatever

capabilities are needed at the moment by downloading small

applications, called “applets,” or small amounts of information or

facts, at the time they are needed.

The recent development of a computer programming language

called “Java” suggests this model for computer applications. Java

programs are designed to be downloaded over the Internet at the

time they will be used. Currently, these “download-as-needed”

programs tend to do modest things: make a drawing move or
How the Internet Will Work Tomorrow





rotate; slide a headline from right to left across the screen; change

colors; etc. But one possible future development is that such

programs would constitute word processing features, or

spreadsheet features, and the like. A user wanting to create an

outline, for example, might call up an outline processing feature

from a seller on the Internet. Such a feature, implemented as a

Java or similar program, might be usable for a limited period of

time and then “expire,” or it might simply disappear when not

being used, to be downloaded again when needed again.

Payment options would include: a charge for each download; a

charge per minute of use; or a flat monthly subscription payment

entitling as many downloads of as many features as the user

desired.

This approach to software distribution depends on a speedy

Internet connection, but a fast enough connection would make it

feasible. The possibility of this type of distribution is sometimes

coupled with a vision of desktop computing that has the

“computer” as primarily a terminal for accessing applications and

information over the Internet. Sometimes such a terminal (or its

operating software) is referred to as a “thin client,” where “thin”

means that the device has relatively little processing power itself,

and “client” refers to the fact that the device must go to another

source, called a “server,” to obtain any necessary software. This

sort of terminal is sometimes also referred to as a “network

computer” or “NC.” Again, this vision emphasizes the user’s local

“computer” as mostly a means of accessing processing power and

information from other sources on the Internet.

Whether the “thin client” vision makes sense, or whether desktop

computers will instead continue to become more and more

powerful, is a matter of some current controversy. The competing

visions often carry the flavor of political or religious debate: they

have overtones of zealotry and philosophy as much as rational

estimations of probable futures. They spring to some extent from

different companies’ self interest: some companies will stand to

gain if the thin client vision proves true; different ones will gain if
User Capabilities





it does not. And of course, it is entirely possible that both visions

will co-exist, depending on different users’ differing needs.

At the least we can say that there is no inevitable “trend” in

software distribution technologies. How the market evolves will

depend largely on economics, technology, and the legal

framework, not on philosophy or history or inevitability. Apart

from requirements imposed by law, what matters most are the

costs of delivering information over different channels, and users’

preferences. For instance, if the development of disk storage

mechanisms, like CD-ROMs, were to move slowly and costs

remain constant, but the speed of the Internet were to increase

rapidly with dropping costs, then more information would be

delivered over the Internet relative to disk distribution than is the

case today. On-line delivery also provides an immediacy that

facilitates impulse buying and instant gratification—things that

many consumers highly value.

On the other hand, there is no particular reason to think that disk

storage technologies are stagnant. Soon the “digital video disk” or

“DVD” technology will become commercially available.78 This

technology increases the amount of information that can be stored

on a CD-ROM-like disk by several orders of magnitude over what

is possible today.79 Consumers may also prefer to buy tangible

objects: cardboard packages are attractive and “feel” like a more

substantial purchase than the abstract experience of downloading

invisible bits over a network.

 

78 This sentence was first written in the fall of 1996. In April, 1997, DVD

devices began to appear on the market. As of the fall of 1997, they are

increasingly appearing in consumer electronic store advertising.

79 Current CD-ROM format disks hold about 650 million bytes of

information. The DVD format holds from 4.7 gigabytes to 17 gigabytes,

depending on the number of sides and layers used for recording. The lower

number is about seven times the capacity of a CD-ROM and is enough to store a

digitized full-length motion picture.
How the Internet Will Work Tomorrow





In sum, costs and consumer preferences matter. And inasmuch as

both costs and preferences will vary across different types of

services and different users, we will likely see combinations of

different distribution mechanisms co-existing. For example, small

software applications might routinely be bought over the Internet,

while a recorded twelve-hour performance of an opera or five

years’ worth of a television program series might be bought only

on a physical disk. Then again, even the latter might be usefully

available for network downloading for customers who are willing

to pay a premium for extremely high speed network connections.

And even downloading of a small application might be more

expensive than a one-time purchase without updates of the

equivalent application on a disk. Some buyers may opt for the

latter, others for network downloading.

Reading from books versus

computer screens

It has been said that reading from a computer screen will never be

as easy or enjoyable as reading from paper. With the current state

of low priced display monitors, and the assumption that we are

talking about high quality paper and ink, that observation is

probably true. But this observation misses at least three important

points.

First, the advantages of books are a function of many things, but

the major things are contrast, resolution, and glare. Printed type

in a book is easier to read than type on a computer screen largely

because the ratio of dark to light on the pages of a book is much

greater than the same ratio on a computer screen. Similarly, the

resolution of printed type is much higher than found on the

typical work-a-day computer screen. And the pages of a book

reflect less glare than the glass of a CRT monitor.

But computer technology, including computer screen display

technology, is not static. Like all other aspects of the computer

Advantages of books
User Capabilities





world, it is evolving rapidly. Laptop computers are a good

example. The first screens were 8 or 9 inches diagonally and often

used “double scan” technology, a method of display information

that is slow and plagued with “ghost” images when the display

changes rapidly. Today (only a few years after the advent of

laptop computers), it is common to find screens that are 12 or 13

inches diagonally, use “active matrix” technology, and that are

bright and crisp—often brighter and more crisp than desktop

monitors. Newer technologies for displays have come onto the

market just in the few months of project Looking Forward.80

One does not have to expect technological miracles to expect that

screen displays will continue to get better each year. There is no

inherent reason why such displays cannot come much closer to

the quality of book pages than they do today. Even size is

decreasingly a distinction: handheld computers have been on the

market for some time, and new ones are announced frequently. A

computer weighing a few ounces can contain and display a novel

with ease today;81 tomorrow that capacity and low weight will

only improve.

 

80 Devices to project a computer (or other digital) image onto a screen have

been developed for some time, but a new technique called Digital Light

Processing is now also available:

“DLP projectors process light digitally using a microchip invented

by Texas Instruments called the Digital Micromirror Device (DMD).

(The full projection process using the DMD is called Digital Light

Processing.) This 1 x 1.5-centimeter chip contains 508,800 tiny

aluminum mirrors. Each mirror, representing a pixel in an 848 x 600

array, is digitally controlled by an individual memory cell beneath

it. A digital ‘1’ turns the micromirror on; a ‘O’ turns it off. The

activated mirror reflects light from the lamp through the imaging

lens and onto the screen.” William Bohannon, Projector Technology

Overview, PRESENTATIONS MAGAZINE, January, 1997, available from

<http://www.amug.org/~ccsprez/technology.html> as of October

19, 1997.

81 The PalmPilot computer by 3Com corporation, which has been on the

market since June of 1996, weighs 4.5 ounces, is about the size of a deck of cards,

and, using third-party software, can contain and display several novel-length

sets of textual material.
How the Internet Will Work Tomorrow





Second, people often need to read specific information in brief

pieces rather than extended narratives. A novel requires sustained

attention; but learning what the population of France is does not.

Even with today’s screen technology, there is certainly a market

for “reading” shorter, more factual excerpts from a computer

screen when a longer session with such a screen might prove

uncomfortable.

Third, reading, like many things, is a question of relative costs

and benefits. If computer screen displays are inferior to book

pages, but offer other advantages such as motion, sound, links to

other information, gargantuan amounts of text in a small package,

intense colors, etc., then many people will opt for the computer

display over the book “display” despite the former’s inferiority. It

follows that even if computer displays never reach the sharpness

or contrast of print material, they may still offer desirable

attributes. After all, a television display today has astonishingly

poor resolution compared to the average paper magazine page

(even worse than a good computer monitor); and yet, people do

watch television. For that matter, it may be a more pleasurable

experience to read from sheepskin scrolls or parchment rolls than

from the pages of a book. We do not do so, however, because even

if the quality of these other materials is higher, the cost of

sheepskin scroll publication would be so much higher still that we

would opt for the inferior—but far cheaper—bound paper format.

There is no reason to think that the same thing will never prove

true for reading from computer screens.

The belief that we will always rely heavily on printed paper,

therefore, or that information producers can always use electronic

publishing as a “loss leader” for their “real” market in print

materials, is erroneous. Most information in the future will shift

from paper to electronic form.
User Capabilities





Real time audio and video

The Internet today is already full of sound, if not fury. A variety

of technologies exist to provide audio in digital format. For some

years now, net users have been able to send and receive audio

files “in bulk,” that is, digitized audio in files that must be entirely

downloaded and then played on one’s desktop computer. The

more recent development is that of “real time” audio, or a

mechanism for playing sounds “live,” as they are being

transmitted from a distant site. This latter form of Internet audio

is known as “streaming” audio, because the sounds arrive in a

“stream” of bits that are played as they are arriving.82

Streaming audio makes possible digital audio broadcasting, much

like radio. Unlike radio, though, the Internet is interactive; that

means that it is perfectly possible for users to “call up” audio files

and have them played live. This capability is much like having a

juke box on call, but with the capacity for an almost unlimited

number of CDs or other audio recordings available for playback.

Current advertising for this sort of capability draws attention to

these possibilities. Here, for example, is an ad from the Web site

of RealAudio, a leading producer of Internet audio technology,

for a recent version of its software:

 This holiday, give someone thousands of CDs,

hundreds of sports tickets, and a front row seat at

the opera. ...

 Shipped directly to the recipient in a special gift

box for the holidays.

 

82 See, e.g., the RealAudio site, available as of March 11, 1997,

<http://www.realaudio.com>. Regular audio events are now scheduled over

the Internet. See, e.g., the ESPN site with coverage of NBA basketball games,

available on a subscription basis as of March 11, 1997,

<http://espnet.sportszone.com/editors/liveaudio/nba.html>.
How the Internet Will Work Tomorrow





 Includes Internet audio essentials, including free

online time for Internet users and Netscape and

Microsoft web browsers.

 Delivers near-CD quality audio over modems with

PerfectPlay.83

Other radio-like Web sites are appearing with great frequency.84

Video technologies are following a similar path. Again, for some

time now it has been possible to create a file that consisted of

digitized video. Such a file could be sent across the net and

downloaded on a desktop computer, where it could be played for

viewing. The newer technologies, like those for audio, incorporate

a “real time” component to video, allowing it to “stream” onto a

desktop computer and be played as it is being sent.85

The current quality of Internet video is far below that of

television, even with a high-speed (non-modem) connection.

Audio quality is pretty good, as audio alone requires substantially

less bandwidth than video. But the technologies keep advancing,

and Internet bandwidth may well increase enough to make even

video of sufficiently high quality to be a major commercial factor.

Audio technologies are fast approaching “CD quality” sound,

deliverable over today’s Internet. The distributors of the well

known “Dolby” audio technology, for example, are hard at work

on technologies designed specifically for Internet audio

 

83 From the RealAudio web site,

<http://www.realaudio.com/hpproducts/playerplus/holidaygift/index.htm>

on December 10, 1996.

84 See, e.g., V-cast, Grit radio, available as of December 16, 1996 from

<http://www.grit.com>;

85 Among other technologies, see “VDONet,” available as of December 7,

1996, from <http://www.vdonet.com>. As the talking head explains when one

first downloads the VDO “player” that allows watching and listening to

streaming video, “this isn’t a matter of 100’s of channels, or even thousands of

channels. This means the Internet can carry 30 million channels.”
User Capabilities





transmission, with an eye toward “music on demand”

applications.86

Interactive “chat”

For some years the Internet has provided a mechanism for users

to have a group “chat.” When a member of the group types a

message to other group members, the message appears on the

others’ computer screens immediately. This capability is known

as “Internet Relay Chat” or “IRC” or just “chat.” The members of

the group participating in a chat may be known to each other

ahead of time, or may simply join or leave the discussion as they

like, “meeting” and “talking with” other group members perhaps

for the first time. Commercial on-line services like CompuServe

and America Online have also offered a variant of this capability

in the form of “chat rooms.” The “rooms” description is just a

metaphor, but a helpful one because it allows one to speak of

“entering” or “leaving” a chat room.

Internet chat is widely used among university students. Chat

rooms are one of the most popular features of America Online as

well. In both instances chatting’s predominant appeal is to a

relatively small segment of the population (generally mid-teens to

 

86 See Press Release, available as of December 2, 1996 from

<http://www.dolby.com/press/imadnet.html> (“New York, September 17 --

Dolby Laboratories has introduced a new implementation of Dolby Digital,

called Dolby Net. The new format is a low bit rate version of Dolby Digital and

has been developed for low bandwidth applications, such as real time streaming

Internet audio. The concept of Dolby Net quality Internet audio has caught the

attention of several companies in the industry, and efforts are currently

underway to provide this capability to computer users. Progressive Networks

recently signed an agreement with Dolby to develop a high quality Internet

audio delivery system which will use Dolby Net to provide real-time streaming

audio capability. In addition, Liquid Audio has announced a Music on Demand

system which will utilize this new technology and allow users to preview music

in real time from an Internet server. Users will then be able to purchase and

download their selections. A customized version of Dolby Digital will deliver the

Compact Disc quality music a user purchases.”)
How the Internet Will Work Tomorrow





mid-twenties). There is reason to think that it will spread more

widely in the near future, however.87 Aside from whatever

general utility the interactive typing of messages has, one thing

seems destined to increase interactivity of the “chat” variety

enormously: the rise of Internet telephony. “Chatting,” largely a

metaphor today, may be a more literal description tomorrow. If

the Internet facilitated groups that could actually speak to each

other, the use of chatting would increase. If interactive video is

added to the mix, as it almost certainly will be, use the Internet

will begin to replace face-to-face meetings more commonly than is

the case now.

It is easy, of course, to overstate people’s desires to “meet”

virtually. Lots of people prefer face-to-face meetings over videoconferences. But economics has a lot to do with it. Many

businesses can be expected to require some meetings with

geographically dispersed individuals to be held over the Internet

to save money, regardless of the preferences of the individuals

involved.

Interactive video will show the value of virtual meetings and

increase their acceptance and use. But video is a high-bandwidth

use of the Internet that will be more expensive than text-only

chats. The development and popularization of interactive video

may therefore have the effect of drawing attention to virtual

meetings of any sort, including text-only or other low-bandwidth

forms of chat. In short, as video chat becomes better known, it will

also have the effect of increasing the amount of chat that relies on

text only or on text with low-quality images.

 

87 “Forrester Research, Inc. says it won’t be long before every major content

site has tools that make chat available to its visitors. The capability will

encourage repeat-visits to the sites, allow businesses to use their sites for training

and customer service, and encourage the development of ‘chat clubs’ that will

create revenue for the site from cover charges and advertising.” (COMPUTER

INDUSTRY DAILY 12 Aug. 96).




4. Today’s Legal

Issues

The Internet is changing so rapidly that one can barely separate

“today’s” from “tomorrow’s” issues. Some of the issues that were

described as “in the future” in draft versions of this report later

became current and went to litigation. Others may well be in

litigation by the time this Report is publicly circulated, or perhaps

long since resolved. Readers should not give much weight to the

identification of issues as “today’s” or “tomorrow’s.” The use of

these terms in this Report is as a short-hand for issues that are

either more widely recognized (“today’s”), or less widelyrecognized (“tomorrow’s”).

A number of copyright issues related to digital communications

technology have already arisen in the last several years. Some are

the subject of recent legislation or legislative proposals or
Today’s Legal Issues





international treaty;88 others exist as a result of a few court

holdings, none with definitive Supreme Court resolution.89 Most

of them remain the subject of debate and study. The following

discussion will not constitute an exhaustive catalog of such issues;

others could doubtless be added to the list. But these are central to

the over-arching issue of copyright’s accommodation to Internet

technology.

 

88 See, e.g., the “Digital Performance Right in Sound Recordings Act of 1995,”

P.L. 104-39, 109 Stat. 336 (1995) (codified primarily in 17 U.S.C. § 114(d)); the

“NII Copyright Protection Act of 1995,” (H.R. 2441) and, the “National

Information Infrastructure Copyright Protection Act,” (S. 1284) (104th Cong. 2d

Sess.); the “Computer Maintenance Competition Assurance Act” (H.R. 72, 105th

Cong. 1st Sess., January 7, 1997) (available as of March 9, 1997, from

<http://lcweb.loc.gov/copyright/penleg.html>. See the WIPO treaties and

legislative proposals available from the Copyright Office Web site as of March 9,

1997, from <http://lcweb.loc.gov/copyright/wipotrty.html>.

89 The issue of copyright’s applicability to a computer program’s menu

command structure is one current issue that did reach the Supreme Court, but

the Court split four-to-four on the matter. See Lotus Development Corp. v.

Borland International, Inc., 516 U.S. 233 (1996), affirming by an equally divided

Court, 49 F.3d 807 (1st Cir. 1995).
Web posting





4.1 Web posting

Only two or three years ago, the copyright significance of posting

information to a Web site was uncertain. Was such a posting a

“public distribution?” A “public display?” A “public

performance?” Not a “public” activity at all?90

Today it is clear that an unauthorized a posting to a Web site does

indeed infringe the copyright owner’s rights—if not of

reproduction or distribution, then certainly of display, or

performance, or both.91 The rest of this Report assumes that that is

the case.

Less clear, though, is the question whether such a posting is a

“publication.” A substantial number of provisions in the

Copyright Act make distinctions that turn on the fact of a work’s

being “published” or not. For example, section 108 permits certain

types of reproduction by libraries and archives. Subsections (b)

and (c) permit reproduction of works for different purposes.

Section (b) permits reproduction “for purposes of preservation

and security or for deposit for research use in another library” as

 

90 “It is not clear under the current law that a transmission can constitute a

distribution of copies or phonorecords of a work.” INFORMATION INFRASTRUCTURE

TASK FORCE, INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION

INFRASTRUCTURE: THE REPORT OF THE WORKING GROUP ON INTELLECTUAL PROPERTY

RIGHTS 213 (1995) [hereinafter WHITE PAPER]. The WHITE PAPER expressed no

doubts, however, that posting to a Web site constituted a public “performance”

or “display.” See id. at 72.

91 See Marobie-FL, Inc. v. National Assoc. of Fire Equip. Dists., 1997 U.S.

Dist. LEXIS 18764 (N.D. Ill. Nov. 18, 1997); Central Point Software, Inc. v.

Nugent, 903 F.Supp. 1057 (E.D. Tex. 1995); Sega Enterprises Ltd. V. MAPHIA,

857 F.Supp 679 (N.D. Cal. 1994); Playboy Enterprises Inc. v. Frena, 839 F. Supp.

1552 (M.D. Fla. 1993). See generally 2 MELVILLE B. NIMMER AND DAVID NIMMER,

NIMMER ON COPYRIGHT, § 8.08[A][1] (1997) (“input of a work into a computer

results in the making of a copy, and hence . . . such unauthorized input infringes

the copyright owner's reproduction right”) [hereinafter NIMMER ON COPYRIGHT].
Today’s Legal Issues





long as the work is “unpublished.”92 Section (c) permits

reproduction “for the purpose of replacement of a copy ... that is

damaged, deteriorating, lost, or stolen,”93 but only for works that

are published and for which reasonable efforts to obtain a

replacement copy have proved unavailing.

Many other sections of the Act refer to the same concept for

purposes such as helping to determine: whether a work is or is

not a “Berne Convention work;”94 how the author’s nationality

affects copyright;95 when the digital transmission of a sound

recording shall be subject to statutory licensing;96 and so on.

Currently, the Copyright Office has not formulated a policy on

this issue, though if an applicant for registration considers Web

posting to constitute publication, the Office will accept that

characterization. Even were that matter definitively resolved,

there remains an issue whether the copyright concept of

“publication,” as defined in section 10197 is a single concept. For

example, the application of the statutory licensing scheme for the

 

92 17 U.S.C. § 108(b).

93 17 U.S.C. § 108(c).

94 17 U.S.C. § 101 (definition of “Berne Convention work”).

95 17 U.S.C. §§ 104 (National Origin) and 104A (Copyright in Restored

Works) make repeated reference to the status of a work as published or

unpublished.

96 17 U.S.C. § 114(d)(2) explains that the statutory licensing scheme of the

section will apply to certain public performances of sound recordings if several

conditions obtain. One of those conditions is that “the transmitting entity does

not cause to be published by means of an advance program schedule or prior

announcement the titles of the specific sound recordings or phonorecords

embodying such sound recordings to be transmitted.” 17 U.S.C. § 114(d)(2)(C)

(emphasis added).

97 “’Publication’ is the distribution of copies or phonorecords of a work to

the public by sale or other transfer of ownership, or by rental, lease, or lending.

The offering to distribute copies or phonorecords to a group of persons for

purposes of further distribution, public performance, or public display,

constitutes publication. A public performance or display of a work does not of

itself constitute publication.” 17 U.S.C. § 101.
Web posting





digital audio transmission of certain sound recordings turns in

part on whether the transmitting entity has previously “published

by means of an advance program schedule or prior

announcement the titles of the specific sound recordings.”98

In this context, the term “publication” applies not to a

copyrighted work, but rather to a pre-announcement of the

performance of copyrighted works. Such an announcement could

easily be in the form of a notice posted on a Web site, raising

simultaneously the issues of whether such a notice is “published”

within the usual meaning of the term for Web postings; and

whether the usual meaning of the term for copyrighted works

also applies to announcements and notices of such works for the

purposes of section 114 and its statutory licensing scheme.

 

98 17 U.S.C. § 114(d)(2)(C) (emphasis added).
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4.2 Caching

Computerized information traveling over a network like the

Internet sometimes arrives at its destination quickly and

sometimes slowly—often painfully slowly, as any frequent

“surfer” on the World Wide Web can attest. Speed of

communications depends on many things: the speed of the

computer that is providing the information initially; the speed of

the slowest “link” in the network chain; the number of other users

using the same computer or the same network at the same time;

the complexity of the information being transmitted (including

the number and size of images, for example); and so on. Other

things being equal, if a unit of information can originate at a point

closer to the ultimate consumer rather than farther, or from a

computer that is faster or less congested than another, the

consumer will be able to obtain it more quickly.

Mechanisms to do that—to store information temporarily “closer”

to the consumer or on a more powerful or less congested

computer, in order to speed up access—are generally referred to

as “caching.” Caching of this sort can take place in a variety of

locations. It can be done by a user’s copy of browser software on

the user’s local hard disk, and indeed this is very common today.

But it can also be accomplished at the point of one’s connection to

the Internet, the Internet Service Provider. For example, America

Online may cache WWW information on its own computers, so

that if an AOL user is browsing the Web and requests the same

page of information twice, the AOL computers may be able to

supply it without issuing another request across the Internet.
Caching





Another form of caching of more recent origin is denominated

“off line browsing.”99 The user buys an offline browser program

that can be set to run late at night while the user is asleep. The

program will browse the Web, visiting sites that the user has

previously defined as being of interest. The program will then

copy, not just one page of a web site, but all pages affiliated with a

particular site. It will store these pages—perhaps hundreds of

them—on the user’s own hard disk. Whenever the user wants to,

he or she can then “browse” these pages as if doing so over the

Web, but in fact doing so from the user’s own hard disk at

dramatically greater speeds than could be obtained over the

Internet.100

 

99 See. e.g., advertisements for OM-Express by Open Market, Inc. ("Avoid the

World Wide Wait"), NetGuide Magazine, October 1996 at p. 29; Web Buddy by

DATAVIZ, NetGuide Magazine, November 1996 at p. 64; WebClip by PaperClip

Software, Inc., NetGuide Magazine, November 1996, at p. 130. A particularly

interesting new application to expedite "live" Web browsing has recently been

announced. The product is called "Net.Jet," and appears to "anticipate" where

one will browse next. It does this by pre-loading—another form of caching—all

links from the page one is currently viewing. See advertisement for net.jet by

Peak Technologies, Inc., NetGuide Magazine, November 1996, at p. 146; see also

the Peak Technologies Web site, available as of November 8, 1996 at

<http://www.peak-media.com/netjet/netjet.html> ("Real Time Acceleration:

Peak Net.Jet will dramatically speed up your browsing when you are visiting

new sites that contain reading material or articles that you spend some time

reading. You will find that as you read through different articles on a site, the

new pages you go to will load into your browser as if they were already in

cache. This is because Peak Net.Jet loads all available links so that it appears to

anticipate where you are going to go next, and gets that page ready for you to

read.").

100 As one advertisement, sent to me by a mass e-mailing, puts it:

You can review hundreds or even thousands of Web sites retrieved

by Robo Surfer at an incredibly fast speed because it's all on your

hard drive. There's basically no wait time! What might take you

hours to do online can be done in a matter of minutes off-line. It's

like having the Internet on your hard drive!

E-mail message of March 13, 1997 (emphasis added). See similar wording posted

on the Robo Surfer Web site, available as of March 19, 1997,

<http://www.robosurfer.com>.

Offline browsing
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Caching at all levels is obviously a function of the current state of

technology. If the carrying capacity of the Internet were suddenly

to be multiplied a hundred-fold (and nothing else, such as the

number of users, changed), the need for caching would be greatly

reduced or perhaps even disappear. If there are no delays

whatever in obtaining information from distant computers, there

is no need to cache to eliminate delays. Caching carries its own

costs: added complexity of software design, more possibility for

error, and added time for the software to determine whether any

given unit of requested information is “in the cache” or not. If

delays were eliminated, these costs would plainly be a substantial

deterrent to undertaking the bother of caching.

Caching is defined as temporary storage, but “temporary” can

mean anything from milliseconds101 to days. Regardless of its

duration, though, whenever a temporary copy of information is

created, it will likely be a copy not just for computer purposes, but

also for copyright purposes.102 A fortiori a temporary copy on a

hard disk is a copyright copy because such storage typically does

not become erased when the power is turned off. Much caching is

in fact accomplished by storage on hard disks, and many caching

technologies result in the creation of quite persistent copies.

Internet “browser” software often stores information on a user’s

 

101 Many personal computer systems provide caching internally, not for

purposes of accessing information on the Internet—the focus of this Report—but

for even faster access to information stored on a PC's hard disk or RAM memory.

Even though access to today's hard disks is at speeds almost unimaginably fast,

to a computer, accessing information on a hard disk is dramatically slower than

accessing that same information from RAM memory. Consequently, some

computers "cache" information they read from the hard disk in RAM. It is also

possible to achieve speed gains from caching some information that is accessed

from RAM memory in a smaller, faster memory located adjacent to the

processing unit. One therefore hears of processor chips, such as the Pentium,

which have an “on-board” cache of 256 kilobits or 512 kilobits or the like. The

principle of these caches within a single desktop computer is exactly the same as

that for access to information over the Internet, but only the latter is addressed in

this Report.

102 See the discussion in the section titled RAM copies, at page 128, and

sources cited in note 108.
Caching





own hard disk, for example, and only infrequently or never erases

it.103

The issue of caching and copyright is therefore a significant one.

Because judicial decisions so far hold that caching constitutes the

making of a “copy” under the statute as it now stands, it is

unlikely that legislation would be needed to establish infringement

liability for caching. If we were to resort to a legislative resolution

of the caching issue, then, it is likely that the legislation would

take the form of “legalizing” caching or perhaps defining some

subset of all “caching” behavior and legalizing that subset, while

preserving infringement liability for other subsets.

 

103 Just to see what was there, the author checked his own computer’s hard

disk on November 15, 1996. At that time, he had over five megabytes of

Netscape cached files dating back two months; 30 megabytes of Internet

Explorer 2.0 cached files dating back six months; and 36 megabytes of Internet

Explorer 3.0 cached files dating back three months
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4.3 RAM copies104

Caching is a significant issue in its own right. One can also see it

as a microcosm of another issue today: the matter of “RAM

copies.”

There is much ferment in both technology and copyright circles

about the copyright significance of the temporary appearance of

digital information in computer memory. Computers have more

than one kind of “memory,” so it is useful to keep them straight.

Most of the time, the concern centers on a computer’s “internal”

or “random-access memory.” Abbreviated “RAM,” this internal

memory is an essential part of the operation of computers. It

where the brain of the computer—the processor—stores the

instructions and data it operates on.105 These days most RAM

memory in desktop and other computers lies in one or more

computer “chips,” which look like small black or gray squares

stuck on a printed circuit board. These squares contain quite a

number of transistors, resistors, and the like that are

microscopically tiny (and covered up in any event by the black or

gray outer shell). They have no moving parts, and like the

processor chip itself, are therefore “solid state” devices.

Most computers also have another storage memory in the form of

“disk” storage. The “disk” may be a floppy disk, or a hard disk.

 

104 Parts of this section have been taken from I. Trotter Hardy, Computer

RAM “Copies:” Hit or Myth? Historical Perspectives on Caching as a Microcosm of

Current Copyright Concerns, 22 UNIV. DAYTON L. REV. 423 (1997) (an article

written with the permission of the Copyright Office in conjunction with Project

Looking Forward; the views expressed in the article are, however, solely the

author’s own).

105 Technically most computers cannot “operate” on data in this RAM; they

must pull it into various parts, called “registers,” of the processor itself to do any

actual manipulation. But the distinctions do not matter for purposes of this

Report.
RAM copies





This form of storage is also sometimes referred to as computer

“memory,” but this Report will refer to it as “disk storage” to

distinguish it from RAM storage. Disks do have moving parts: the

disk rotates. So they are not referred to as “solid state” devices.

Commonly today, they work on the principle of a tape recorder:

the disk surface is coated with a magnetic material that can

selectively be exposed to a magnetic field and thus altered. A

specially designed “head” moves over the surface of the disk as it

rotates and either “magnetizes” small spots on the disk (“writes”)

or recognized previously-magnetized spots on (“reads”) the disk.

Other disk storage technologies involve optical techniques:

marking a disk with physical “pits” or tiny spots of dye, for

example.

The “RAM copy” issue deals with the other type of computer

memory, the solid state or “internal” memory of computers. It is

in this memory that a computer must make “copies” of some sort

in order to function. This might happen when a computer is

looking at a piece of e-mail to determine whether the recipient has

an account on that computer, or whether the e-mail must be

directed onward to another computer. It might take only a few

thousandths of a single second to make that determination, after

which the computer is “through” with that piece of (possibly)

copyrighted information.

A computer RAM “copy” must also be made in other

circumstances, particularly whenever a computer program is run.

A program is a set of instructions. If it resides on a disk, it cannot

at that point be “run.” First, the instructions must be brought into

the computer’s RAM memory. That is a form of copying (and has

been so held; see the next paragraph). In fact, though this

discussion seldom comes up in the caselaw, even the copy in

RAM is not enough to enable the computer to run the program.

For that to happen, the computer must move each of the

instructions, often only one or two instructions at a time, into the

“CPU,” or “central processing unit.” It is there that the

instructions are actually “obeyed” by the computer. So it is
Today’s Legal Issues





possible to look at the running of a program as necessitating more

than one form of “copying” inside the computer.

Debates go on over the issue whether copyright law should define

the term “copy” in such a way that brief instantiations of

copyrightable works in computer memory are “copies.”106 The

argument that it should not is based on the observation that a

reliance on “copying” for copyright purposes arose when

“copies” were very tangible, long lasting objects: books, 35mm

film reels, audio tape cassettes, etc.107 These objects are produced

deliberately, typically under the direct control of a single entity,

such as a record company or a book publisher. Imposing liability

for copying in a world of this sort of tangible objects seems to

make intuitive sense and be relatively straightforward.

On the other hand, as with caching, a RAM copy is not inherently

short-lived. With most personal computers today, the RAM

memory is erased when the power is turned off. If the power is

not turned off, the memory persists. Other kinds of RAM memory

use different technology and retain their data even when the

power is turned off. As with caching, then, RAM copies come in a

 

106 See Ira L. Brandriss, Writing in Frost on a Window Pane: E-Mail and Chatting

on RAM and Copyright Fixation, 43 J. COPYRIGHT SOC’Y 237, 239 (characterizing the

RAM-copy issue as a “fierce debate[] among scholars”); David Post, New Wine,

Old Bottles: The Evanescent Copy, THE AMERICAN LAWYER, 103, May 1995. See also

Jessica Litman, The Herbert Tenzer Memorial Conference: Copyright in the

Twenty-First Century: The Exclusive Right to Read, 13 CARDOZO ARTS & ENT.

L.J. 29 (1994); David Nimmer, Brains and Other Paraphernalia of the Digital

Age, 10 HARV. J. LAW & TECH. 1 (1996); Pamela Samuelson, Legally

Speaking: The NII Intellectual Property Report, 37 COMMUNICATIONS OF THE

ACM, December 1994, at 21, available from

<http://alberti.mit.edu/arch/4.207/texts/samuelson.html>.

107 Raymond T. Nimmer & Patricia Ann Krathaus, Copyright on the

Information Superhighway: Requiem for a Middleweight, 6 STAN. L. & POLICY REV. 25,

32 (1994) (“The rights and the preconditions in copyright law flow from a print

and mass market era.”); OFFICE OF TECHNOLOGY ASSESSMENT, INTELLECTUAL

PROPERTY RIGHTS IN AN AGE OF ELECTRONICS AND INFORMATION 59 (1986) (The

present system of copyright law, which evolved under the model of print

publication, may no longer serve to determine the boundaries of ownership in

computer-based methods of creation and dissemination.”).
RAM copies





wide variety of types, durations, and purposes. A number of

cases, most notably MAI v. Peak,108 have either held or implied

that the first step, bringing the instructions from a disk of some

kind into RAM memory, constitutes the making of a “copy” of the

program for copyright purposes. That is, the process results in the

creation of a copy that if not expressly or impliedly authorized or

a fair use, is a potentially infringing violation109 of the copyright

owner’s rights.

One recent proposal to amend the Copyright Act on this point

proposed that temporary copies in RAM for certain, defined

purposes, such as maintenance and repair would not be

considered infringements.110 By implication, this legislation

supports the view that other forms of computer-memory copies,

made for other purposes, would continue to be considered

“copies” for copyright’s purposes.

 

108 MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 518-19 (9th Cir.

1993), cert. dismissed, 510 U.S. 1033 (1994). See also DSC Communications Corp. v.

DGI Technologies, Inc., 81 F.3d 597, 600 (5th Cir. 1996); Triad Sys. v.

Southeastern Express Co., 64 F.3d 1330, 1335 (9th Cir. 1995), cert. denied, 516 U.S.

1145 (1996); Religious Tech. Center v. Netcom On-line Comm., 907 F.Supp. 1361,

1368 (N.D. Cal. 1995); In re Independent Servs. Orgs. Litigation, 910 F.Supp.

1537, 1541 (D. Kan. 1995); Advanced Computer Servs. of Mich., Inc. v. MAI Sys.

Corp., 845 F.Supp. 356, 362-64 (E.D.Va. 1994). See generally II PAUL GOLDSTEIN,

COPYRIGHT § 5.2.1 (1996); 2 NIMMER ON COPYRIGHT, supra note 91, § 8.08[A][1];

RAYMOND T. NIMMER, INFORMATION LAW ¶ 4.02[2]-[3] (1996).

109 Actual liability would be dependent on additional factors such as fair

use.

110 One bill specified this: “(c) MACHINE MAINTENANCE OR REPAIRNotwithstanding the provisions of section 106, it is not an infringement for the

owner or lessee of a machine to make or authorize the making of a copy of a

computer program if such copy is made solely by virtue of the activation of a

machine that lawfully contains an authorized copy of the computer program, for

purposes only of maintenance or repair of that machine, if--(1) such new copy is

used in no other manner and is destroyed immediately after the maintenance or

repair is completed; and (2) with respect to any computer program or part

thereof that is not necessary for that machine to be activated, such program or

part thereof is not accessed or used other than to make such new copy by virtue

of the activation of the machine.” Computer Maintenance Competition

Assurance Act of 1997, H.R. 72, 105th Cong. § 2 (January 7, 1997).
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Digital information, at least for the foreseeable future, means

information that is under the control of computers. With present

technology, a digital computer cannot “run” without some sort of

“copying” of information and data into the computer’s internal

RAM memory. Therefore any access to or use of digital

information means access to or use of information that is under

the control of a computer, and therefore means that some

computer program must be executed. If a computer program is

executed, a RAM copy is created. In this manner, “access to and

use of information” and “copyright” can be tied together; that fact

raises a number of other issues discussed below.111

 

111 See the discussion in the sections titled RAM copies and personal privacy, at

page 186, and RAM copies and junk e-mail and other inflows, at page 190.
Intermediaries’ liability





4.4 Intermediaries’ liability

The Internet has given rise to many organizations whose purpose

is to provide individuals with online information services and

access to the Internet. These “Online Service Providers” or

“OSPs”—or for that matter, any computer on the Internet that

forwards information from one point to another—are thus

situated between their user-subscribers, and the Web sites to

which these subscribers connect and browse. These service

providers are therefore sometimes referred to as “intermediaries.”

A troublesome contemporary issue is whether, and under what

circumstances, OSPs should be liable for the actions of their users.

A conservative approach would be to rely on existing principles

and let courts interpret them. Some argue, however, that

legislation should be enacted dealing with the issue. The White

Paper proposed that OSPs be subject to existing laws, as

interpreted by judicial decisions.112

OSPs argue that existing laws about innocent infringers, coupled

with an express provision for a “transmission” right, would leave

them vulnerable to infringement suits in circumstances that many

people would agree should not give rise to liability. For example,

when a subscriber to an online service sends an infringing e-mail

to a large group of persons, the OSP is technically “transmitting”

the e-mail, yet knows nothing about it nor can reasonably be

expected to read all e-mail on a regular basis. In fact, the OSP

might in some circumstances be liable for violating the privacy

rights of the e-mail author under the Electronic Communications

and Privacy Act.113

 

112 See WHITE PAPER supra note 90, at 114-24, and especially 122.

113 See 18 U.S.C. § 2511:

(continued next page)

White Paper proposal
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What should one make of the issues surrounding copyright

intermediaries?

 

Interception and disclosure of wire, oral, or electronic

communications prohibited. (1) Except as otherwise specifically

provided in this chapter any person who—(a) intentionally

intercepts, endeavors to intercept, or procures any other person to

intercept or endeavor to intercept, any wire, oral, or electronic

communication; ... shall be punished as provided in subsection (4)

or shall be subject to suit as provided in subsection (5).

Section (4) specifies that fines and imprisonment of up to five years may be

imposed.
Intermediaries’ liability





Intermediaries: analysis

Liability for intermediaries can be based on a variety of copyright

theories. Intermediaries might be liable for direct infringement,

sometimes called “primary” liability; or for indirect

infringement, sometimes called “secondary liability.”114 Indirect

infringement liability in turn can be based on theories of either

contributory infringement or vicarious infringement.115 For any

of these theories, liability is not explicitly based the state of mind

of copyright defendants, nor on their lack of good faith or lack of

negligence—although those elements are very much relevant to

the amount of any damages.116 Copyright law therefore appears at

times to impose “strict liability.”117 Standard examples of this type

of liability include photo finishers held liable for duplicating

photographs,118 and music cases in which defendants were found

liable for copying melodies unconsciously.119

A great deal of the debate over the White Paper has been over the

issue of whether copyright law ought to be changed in regard to

 

114 See generally, 3 NIMMER ON COPYRIGHT, supra note 91, § 12.04, at 12-66ff.

115 See generally, 3 NIMMER ON COPYRIGHT, supra note 91, § 12.04, at 12-66ff.

116 See the discussion in the section titled The tailoring of remedies as a

compromise, at page 142.

117 See WHITE PAPER supra note 90, at 115 (“Direct infringers are held to a

standard of strict liability. Liability for direct infringement is, therefore, generally

determined without regard to the intent of the infringer.”); and WHITE PAPER at

123, quoting I PAUL GOLDSTEIN, COPYRIGHT, supra note 108, § 1.15, at 45 (1989)

(“The exercise of due diligence . . . can reduce, but never entirely exclude, the

risk of a copyright infringement claim. Copyright law's rule of strict liability

poses particularly hard problems for an intermediary [such as a book

publisher], . . . which must accept on faith its author's representation that he

originated the work.”).

118 See Olan Mills, Inc. v. Linn Photo Co., 23 F.3d 1345 (8th Cir. 1994),

discussed in the WHITE PAPER supra note 90, at pp. 121-131.

119 See, e.g., Bright Tunes Music Corp. v. Harrisongs Music Ltd., 420 F.Supp.

177 (S.D.N.Y. 1976); Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54

(2d Cir. 1936); Northern Music Corp. v. Pacemaker Music Co., Inc., 147 U.S.P.Q.

358, 359 (S.D.N.Y. 1965).
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this apparent strictness, at least in the context of liability for

OSPs.120 This debate has shifted to various legislative proposals

that have been introduced following the release of the White

Paper. Under debate in the Fall of 1997, for example, was

H.R. 2180, the “On-Line Copyright Liability Limitation Act,”

introduced by Representatives Coble and Hyde on July 17,

1997.121 The bill would exempt OSPs from copyright liability

under certain circumstances.122

 

120 See WHITE PAPER supra note 90, at 114 (section “d. On-Line Service

Provider Liability”).

121 “On-Line Copyright Liability Limitation Act,” (H.R. 2180) (105th Cong.,

1st Sess.), available as of August 24, 1997 from <http://thomas.loc.gov/cgibin/query/z?c105:H.R.2180:>.

122 The bill would add a new section 512 to the Copyright Act, to read as

follows:

Sec. 512. Limitations on liability relating to material on-line.

(a) EXEMPTIONS- A person shall not be liable--

(1) for direct infringement, or vicariously liable for the infringing

acts of another, based solely on transmitting or otherwise providing

access to material on-line, if the person--

(A) does not initially place the material on-line;

(B) does not generate, select, or alter the content of the material;

(C) does not determine the recipients of the material;

(D) does not receive a financial benefit directly attributable to a

particular act of infringement;

(E) does not sponsor, endorse, or advertise the material; and

(F)(i) does not know, and is not aware by notice or other

information indicating, that the material is infringing, or

(ii) is prohibited by law from accessing the material; or

(2) in the case of a finding of contributory infringement based solely

on conduct for which a person is exempt from liability for direct

infringement or vicarious liability under paragraph (1), for any

remedy other than injunctive relief under section 502, except that

such injunctive relief shall be available only to the extent that all acts

required by such relief are technically feasible and economically

reasonable to carry out.
Intermediaries’ liability





Direct infringement

Because both forms of secondary liability—contributory and

vicarious—require some sort of participation by the defendant,123

concerns about the strictness of copyright liability usually center

on the possibility that a defendant would be held strictly liable for

“direct” infringement.

“Strict liability” is a relatively recent term for what has long been

called “liability for innocent infringement.” Innocent

infringement was discussed during the 1909 Act hearings and

during the history of the 1976 Act revisions as well, generating

one of some thirty scholarly and significant studies prepared at

the request of the Copyright Office.

The general features of the law of innocent

infringement were shaped prior to 1909. ...

There is considerable evidence that this

situation was realized by those participating in

the drafting and enactment of the 1909 act;

although the problem of the innocent infringer

was considered at some length in the hearings,

the 1909 statute contained no broad provisions

excusing innocent infringers. Moreover, the act

eliminated the provision in earlier statutes

expressly protecting the innocent seller.124

 

123 See the discussion in the section titled Vicarious and contributory liability, at

page 143.

124 Alan Latman and William S. Tager, LIABILITY OF INNOCENT INFRINGERS 141,

reprinted in Subcomm. on Patents, Trademarks, and Copyrights of the Senate

Comm. on the Judiciary, 86th Cong., 2d Sess. (S. Comm. Print 1958), COPYRIGHT

LAW REVISION, reprinted in 2 STUDIES ON COPYRIGHT (Arthur Fisher Memorial

Edition 1963) Study No. 25, at 1049 (footnotes omitted).
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The 1976 Act did not eliminate this general approach to liability

and in that regard remains similar to the previous 1909 Act.125

The term “strict liability” is taken from other forms of legal

liability such as those for product defects and trespass to real

property. Unfortunately, confusion often stems from terminology;

references to liability that is “strict” are commonly wrong. The

popular perception of the “strictness” of liability in both products

liability and trespass cases, for example, is incorrect.

A manufacturer’s liability for product defects is not “strict” in any

meaningful sense but is rather based on fault.126 Products liability

cases fall into three categories: manufacturing defects, design

defects, and warning defects. Liability for manufacturing defects

is not “strict” because such defects obviously stem from

negligence in manufacturing. The doctrine of “strict liability”

operates to create a presumption of the defendant’s negligence

that relieves the plaintiff of having to prove what happened at the

factory when the product was made. Nor is liability for design

defects or failure to warn “strict.” When liability is imposed it is

typically because the manufacturer’s design was negligently

done, or a warning negligently given.

Liability for trespass to land is based much less on strictness than

it is on the law’s principle that a remedy should exist for the

violation of an exclusive right, and that “ignorance of the law is

no excuse”—we do not want to give potential trespassers a reason

to remain ignorant of others’ rights.

 

125 See HOUSE REPORT ON COPYRIGHT ACT OF 1976, H.R. REP. NO. 1476-94, 159-

60, reprinted in 1976 U.S.C.C.A.N. 5775-76 [hereinafter HOUSE REPORT].

126 The following discussion is based on AMERICAN LAW INSTITUTE,

RESTATEMENT OF THE LAW—TORTS: PRODUCTS LIABILITY 3D, PROPOSED FINAL DRAFT

19 (April 1, 1997) (“[The design defect section] adopts a reasonableness ... test as

the standard for judging the defectiveness of product designs. ... That standard

is also used in administering the traditional reasonableness standard in

negligence.”).
Intermediaries’ liability





Strictness in copyright cases

Liability for copyright infringement is similarly seldom “strict” in

any meaningful sense . Playboy v. Frena127 is a good example. In

Frena, the systems operator of a computer bulletin board service

(BBS) was found liable for direct copyright infringement when his

users uploaded and downloaded copyrighted pictures that had

been converted to computer-readable form from Playboy

magazine. The defendant operator claimed not to know what was

happening. Although the court responded that his knowledge

was irrelevant because copyright liability has no requirement of

scienter, in fact, other evidence in the case made clear that the

operator did indeed know what was happening. When BBS

subscribers uploaded the photographic images, someone—

presumably the defendant BBS operator—removed their

identifying Playboy labels and replaced them with the defendant’s

own name and that of his BBS.128

Instead of representing the application of strict liability, the case is

better explained as being based either explicitly on the operator’s

knowledge—thus satisfying perhaps even an “intent”

requirement—or at best as a case of “ignorance of the law is no

excuse.” The operator may not have thought that what he was

doing was wrong, but he was aware of what was going on. We do

not want to create an incentive for people to remain willfully

ignorant of their legal obligations; Frena seems to stand for little

more than that and hardly qualifies as an indication of the

strictness of copyright liability. The court itself did not use the

phrase “strict liability” in its opinion.

 

127 Playboy Enterprises Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993).

128 “PEI’s [Playboy Enterprises, Inc.] text was removed from the

photographs and Defendant Frena’s name, Tech Warehouse BBS, and telephone

number were placed on PEI’s copyrighted photographs. This is uncontested.”

Playboy Enterprises, 839 F. Supp. at 1559.
Today’s Legal Issues





In at least two other cases, Religious Technology Center v. Netcom

On-Line Communications Services, Inc.,129 and Marobie-FL, Inc. v.

National Assoc. of Fire Equip. Dists.,130 courts have had an

opportunity to impose true “strict” copyright infringement

liability on an OSP but have chosen not to do so.

In Netcom, the defendant Netcom corporation was an online

service provider. A subscriber to its service had uploaded

copyright infringing materials belonging to RTC. RTC sued

Netcom for both direct and indirect copyright infringement.

Before RTC provided notice to Netcom about the possibility of its

system containing infringing materials, Netcom did not know

about the alleged infringements. For the court to impose liability

on such facts would have constituted a form of “strict” liability in

the conventional sense—liability without knowledge or fault.

Instead, the court did not impose direct infringement liability at

all, noting instead that

the mere fact that [defendant] Netcom's system

incidentally makes temporary copies of

plaintiffs' works does not mean Netcom has

caused the copying. The court believes that

Netcom's act of designing or implementing a

system that automatically and uniformly

creates temporary copies of all data sent

through it is not unlike that of the owner of a

copying machine who lets the public make

copies with it. Although some of the people

using the machine may directly infringe

copyrights, courts analyze the machine

owner's liability under the rubric of

contributory infringement, not direct

infringement.131

 

129 Religious Tech. Center, 907 F.Supp. at 1361.

130 1997 U.S. Dist. LEXIS 18764 (N.D. Ill. Nov. 18, 1997).

131 Religious Tech. Center, 907 F.Supp. at 1368-69 (citations omitted).

The Netcom and

Marobie-FL cases
Intermediaries’ liability





Marobie-FL dealt with the representative of a trade association for

fire fighting equipment distributors (“NAFED”) who had

obtained several computer disks of copyrighted drawings that

related to fire fighting equipment. The representative placed a

copy of the drawings, or “clip art,” on NAFED’s World Wide Web

site for downloading by Internet users. Circumstances strongly

implied that the representative knew that the drawings were

copyrighted and that he lacked authority to post them to the Web;

the court found on a motion for summary judgment that NAFED

had directly infringed the copyright holder’s rights.132

The issue of concern here was whether the OSP that provided

disk storage and Web hosting services to the trade association,

Northwest Nexus Inc. (“Northwest”), should be also be found

liable on theories either of direct, contributory, or vicarious

copyright liability. On the direct infringement claim, the court

found no liability:

the Plaintiff argues that Northwest [the

defendant OSP], unlike the Internet access

provider in Religious Technology Center, serves

as more than just a gateway to the Internet

because [it] actually stores the files ... in its

hard drive. Although [this is] a service

somewhat broader than the service provided

by the Internet access provider in Religious

Technology Center, the court nevertheless finds

that Northwest only provided the means to

copy, distribute or display plaintiff's works,

much like the owner of a public copying

machine used by a third party to copy

protected material. Like a copying machine

owner, Northwest did not actually engage in

any of these activities itself. Accordingly,

 

132 Marobie-FL, 1997 U.S. Dist. LEXIS 18764 at [*22].
Today’s Legal Issues





Northwest may not be held liable for direct

infringement.133

In fact, no case to date,134 other than Playboy v. Frena, has

purported to impose direct copyright infringement liability on an

OSP for acts of its users or subscribers; Frena itself can be

explained on grounds other than strict liability.

The tailoring of remedies as a compromise

Courts have a variety of ways of responding to the extent of a

copyright defendant’s ignorance or innocence. Lawyers well

understand that “liability” and “damages” and “injunctions” are

very different things. The public is less likely to distinguish

among them, so that the notion of a party’s being “liable” may

seem to the public to be an all-or-nothing thing: one is liable and

hence must pay a price in fines or punishments; or one is not

liable, and hence one pays nothing. But courts tailor remedies

much more carefully than that. A copyright defendant can be

“liable” and pay a large sum in damages; or be liable and pay

nothing in damages, but pay attorney’s fees; or be liable and pay

no fees at all, but be enjoined from continuing a certain type of

conduct.

Public discourse surrounding direct infringement by intermediaries focuses largely on the liability issue. Liability is

substantially less important, however, than the amount of

damages or other remedies that a court will award—and it is with

 

133 Marobie-FL, 1997 U.S. Dist. LEXIS 18764 at [*29].

134 February 1, 1998.
Intermediaries’ liability





variations in remedies that courts have most often handled the

question of direct but innocent infringement.135

Vicarious and contributory liability

Intermediaries can also be held “secondarily” liable, on the

theories of vicarious and contributory infringement.

A finding that a defendant is liable for contributory infringement

implies two things: first, that the defendant did not itself infringe

any copyright rights; and second, that the defendant nevertheless

did something “wrongful” in relation to a copyright owner’s

rights. The “wrongful” element consists of knowledge plus

inducement of the infringing act, or as described by Professor

Paul Goldstein, “acting in concert with the direct infringer

[knowing] of the direct infringement.”136

An example of a contributory infringement case would be a

defendant who manufactures and sells a device whose sole

purpose is to enable others to infringe copyrights. Imagine a

company that produces and sells a “descrambling” device

designed to allow unauthorized viewing of copyrighted satellite

television programs and having no other function or purpose. The

production and sale of the device do not themselves involve the

direct infringement of any copyright rights. The device is sold to

facilitate an infringement by others, the buyers of the device. The

defendant producer of the device would nonetheless be liable for

contributory infringement.

Particularly when infringing use is the only use of the device, it is

easy to see that the producer is involved in a sort of wrong-doing;

 

135 See WHITE PAPER supra note 90, at 119 (“Congress also determined that the

innocent infringer provision, which allows reduction of damages for innocent

infringers ‘is sufficient to protect against unwarranted liability’ ... .” (quoting

HOUSE REPORT at 163, reprinted in 1976 U.S.C.C.A.N. 5779).

136 II PAUL GOLDSTEIN, COPYRIGHT, supra note 108, § 6.1.

Contributory

infringement
Today’s Legal Issues





holding such a producer to some form of indirect infringement

liability is not controversial. The issue becomes more

controversial as the device in question adds non-infringing

capabilities. In the Sony-Betamax case,137 the Supreme Court

declared that sales of a device with a “substantial non-infringing”

use did not constitute contributory infringement. The NII Task

Force’s White Paper proposed a standard easier for plaintiffs to

prove, that the sale of devices that have the primary purpose of

infringing constitute contributory infringement.138 The recent

World Intellectual Property Organization treaties do not specify

the precise standard, merely requiring in Article 11 that

Contracting Parties shall provide adequate

legal protection and effective legal remedies

against the circumvention of effective

technological measures that are used by

authors in connection with the exercise of their

rights... .139

The standard for contributory infringement in the U.S. therefore

remains that of the Betamax case, but with a possibility of being

revised legislatively.

Vicarious liability is different from contributory infringement. The

twin elements of vicarious liability are first, that someone other

than the defendant has infringed a copyright owner’s rights, and

second, that the defendant bears a relationship to the infringer

 

137 Sony Corp. v. Universal City Studios. Inc, 464 U.S. 417 (1984).

138 WHITE PAPER supra note 90, at 230.

139 WIPO COPYRIGHT TREATY adopted by the Diplomatic Conference on

December 20, 1996, Article 11. Technically, the Treaty does not define a form of

contributory liability, but rather creates a new right in copyright owners: the

right to a remedy against the circumvention of technological measures for

protecting copyrighted works. The copyright owner’s assertion of that right

might therefore take the form of an allegation that the defendant had directly

infringed the right to have a remedy against circumvention. But the result is

quite similar in effect to right to be free of contributory infringement.

Vicarious

infringement
Intermediaries’ liability





such that it does not seem unfair to hold the defendant liable.140

The “relationship” in copyright cases is usually expressed as a

combination of two things: that the defendant have “the right and

ability to supervise” the direct infringer, and that the defendant

has “an obvious and direct financial interest” in the infringing

activities.141 The garden-variety cases of vicarious liability for

copyright infringement involve a nightclub or restaurant owner

who hires a band that performs copyrighted music without

authorization. The owner-managers of such establishments are

routinely held vicariously liable for the band’s infringement.142

Courts distinguish financial interests that vary with the amount of

infringement from those that do not. A landlord who gets a flat

monthly rent regardless of the infringing activities of a tenant will

usually be found not to have the requisite financial interest,

whereas a landlord who is paid a percentage of the tenant’s

revenue usually will.143

The degree of “control” that a party must exercise to satisfy the

“right and ability to supervise” test is a question of practicality.

Almost any party who enters a contractual relationship with a

potential infringer can put a clause in the contract requiring that

 

140 “For vicarious liability is imposed in virtually all areas of the law, and the

concept of contributory infringement is merely a species of the broader problem

of identifying the circumstances in which it is just to hold one individual

accountable for the actions of another.” Sony Corp. v. Universal City Studios.

Inc, 464 U.S. 417, 435 (1984) (footnote omitted).

141 Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 306-07 (2d Cir.

1963). See also Religious Tech. Center, 907 F.Supp. at 1375 (“A defendant is liable

for vicarious liability for the actions of a primary infringer where the defendant

(1) has the right and ability to control the infringer's acts and (2) receives a direct

financial benefit from the infringement. ... Unlike contributory infringement,

knowledge is not an element of vicarious liability.”) (citations omitted).

142 See, e.g., Wow & Flutter Music v. Len’s Tom Jones Tavern, 606 F.Supp.

554 (W.D.N.Y. 1985); Warner Bros. Inc. v. Lobster Pot, Inc., 582 F.Supp. 478 (N.D.

Ohio 1984); and other cases cited in II PAUL GOLDSTEIN, COPYRIGHT, supra note

108, § 6.2 n.13.

143 Religious Tech. Center, 907 F.Supp. at 1376-77.
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the latter not infringe. If such a clause alone satisfied the “control”

test, it would encourage perverse results: parties like landlords

and restaurant owners would take care not to prohibit

infringements in their contracts in order to appear unable to

control it. Courts instead look for realistic control: actual approval

of infringing activities before they take place, for example.144

The two cases of Internet intermediaries’ discussed in connection

with direct infringement also dealt squarely with the issue of

secondary copyright liability for intermediaries, Religious

Technology Center v. Netcom,145 and Marobie-FL, Inc. v. National

Assoc. of Fire Equip. Dists.146 As noted earlier, the Netcom case

involved a subscriber to Netcom, an Online Services Provider. The

subscriber sent allegedly copyright infringing material through

the Netcom system in the form of e-mail. The copyright owner,

RTC, sued Netcom, the service provider.

The District Court held that an intermediary’s liability for

contributory infringement depended on its having knowledge of,

and substantial participation in, the infringements.147 RTC, the

copyright owner, had indeed sent a letter to the defendant

Netcom notifying it of the infringements and demanding that the

infringing material be removed from Netcom’s system. Defendant

Netcom was found not to have had any knowledge of infringing

activities on its system before receiving this letter. The court also

held that such a letter would not necessarily show that a

 

144 See, e.g., Davis v. Dupont de Nemours & Co., 240 F.Supp. 612, 631-32

(S.D.N.Y. 1965) (Imposing vicarious liability on the sponsor of an infringing

television broadcast on grounds that the sponsor “had to approve of several

steps in the production of the television program. For example, [it] had to

consent to televising the story ... before work on the production was

commenced. Copies of the first draft of the television script (which substantially

represented the actual telecast) were sent to [the sponsor], and their

representatives sat in on story conferences.”) (footnotes omitted).

145 907 F.Supp. 1361 (N.D. Cal 1995).

146 1997 U.S. Dist. LEXIS 18764 (N.D. Ill. Nov. 18, 1997).

147 Religious Tech. Center, 907 F.Supp. at 1373-75.

Internet cases:

Netcom and

Marobie-FL again
Intermediaries’ liability





defendant had “knowledge,” if the defendant could not

reasonably verify a party’s claim of infringement.148 It required a

factual finding to determine whether the notice was sufficiently

detailed and credible as to give the defendant the requisite

knowledge of the infringements. If Netcom were found to have

had the requisite knowledge, it would have been an active

participant in the infringing activities assuming that “simple

measures” were available to it to remove the offending messages

from its system.149

The court denied summary judgment to the defendant on the

contributory infringement issue, concluding that the factual

findings just noted had to be made. The case settled, however,

before those findings were ever made. Hence we do not have a

strong precedent (from what would have been a District Court

decision in any event) from the case.

Netcom also addressed the issue of vicarious liability for an OSP.

The court held that defendant Netcom offered e-mail services for

a flat monthly rate, and hence was in the position of a landlord

charging a flat monthly rate: it did not receive the “direct financial

benefit” from the infringing activity that courts require to meet

the test of for vicarious liability.

The Netcom court relied in part on the case of Fonovisa Inc. v.

Cherry Auction. Inc.,150 for its conclusion that Netcom’s flat

monthly rate did not constitute a direct financial benefit. Fonovisa

 

148 “Where a BBS operator cannot reasonably verify a claim of infringement,

either because of a possible fair use defense, the lack of copyright notices on the

copies, or the copyright holder's failure to provide the necessary documentation

to show that there is a likely infringement, the operator' s lack of knowledge will

be found reasonable and there will be no liability for contributory infringement

for allowing the continued distribution of the works on its system.” Religious

Tech. Center, 907 F.Supp. at 1374.

149 Religious Tech. Center, 907 F.Supp. at 1375.

150 847 F. Supp. 1492 (E.D. Cal. 1994).
Today’s Legal Issues





was later reversed by the 9th Circuit,151 which left the Netcom

court’s holding uncertain.

The second case, Marobie-FL, Inc. v. National Assoc. of Fire Equip.

Dists, followed the Netcom court’s reasoning even though MarobieFL was decided after the 9th Circuit’s decision in Fonovisa. Recall

that Marobie-FL dealt with the customer of an OSP, NAFED, that

had uploaded copyrighted clip art to its Web site. In the case

against the OSP, Northwest, the court addressed both

contributory and vicarious liability.

In regard to contributory infringement, the court concluded as the

Netcom court had concluded that the issue turned on factual

findings that prevented a grant of summary judgment for the

defendant OSP:

Based on the evidence presented, it is unclear

whether Northwest knew that any material on

NAFED's Web Page was copyrighted and, if it

did know, when it knew. The degree to which

Northwest monitored, controlled, or had the

ability to monitor or control the contents of

NAFED's Web Page is also unclear. These

disputed issues of material fact preclude

summary judgment for either party on this

theory of liability.152

In regard to vicarious liability, the court found that the defendant

OSP was not vicariously liable. Vicarious liability turns in part on

the defendant’s having a direct financial interest in the infringing

activities. Here, observed the court, the OSP did not have such a

direct financial interest NAFED’s infringing activities because

... [defendant] NAFED paid [defendant]

Northwest a one-time set-up fee of $20 and ...

 

151 Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. Cal. 1996).

152 Marobie-FL, 1997 U.S. Dist. LEXIS 18764 at [*30].

Marobie-FL
Intermediaries’ liability





since that time NAFED has paid Northwest a

flat fee of $67.50 each quarter. It is also

undisputed that the fee Northwest receives has

never changed based on how many people visit

NAFED's Web Page or what is accessed. In

other words, NAFED's infringement did not

financially benefit Northwest. Accordingly,

Northwest cannot be held vicariously liable for

NAFED's infringement.153

Intermediaries: conclusions

The early cases of against OSPs who lack specific knowledge of

the copyright infringements at issue, in sum, have concluded: that

direct liability should not be imposed; that vicarious liability

should not be imposed; and that the imposition of contributory

liability will turn on the state of the defendant’s knowledge and

participation in the infringing activities. True “strict liability” in

the sense of liability without any fault whatever by a defendant,

then, seems to be exceedingly rare. At the very least, it has yet to

be imposed on an Internet intermediary.154

 

153 Marobie-FL, 1997 U.S. Dist. LEXIS 18764 at [*31] (emphases added).

154 Obviously the author does not consider the Frena case to be an example

of liability without fault. See the discussion in the section titled Strictness in

copyright cases, at page 139.
Today’s Legal Issues





4.5 Wide-spread copying

The most obvious feature of the Internet relating to copyright is

that a lot of copying in the usual copyright sense goes on.

Leaving RAM copies and temporary cache copies and links-ascopies aside, one still observes wide-spread “old fashioned

copying” of e-mail, news and other articles, software, Web pages,

and so on. Some of this copying may be done with authorization,

either explicit, implicit, or statutory as a matter of fair use, but a

good deal of it is undoubtedly not.

Any view of today’s and tomorrow’s Internet has to include

recognition of the amount of unauthorized copying that currently

takes place without being easily detectable.

Wide-spread copying or other unauthorized uses of copyrighted

works is certainly a major issue for copyright owners today. It is

less obvious whether this phenomenon poses any issues of

copyright law or policy. In any event, the existence of widespread copying of digital works falls solidly within a recurring

pattern of copyright issues that are here collected under the label

of “decentralized infringement.” This issue is discussed in more

depth under the headings Decentralized infringement: issues, at

page 259, and Decentralized infringement: analysis, at page 264.
Digital registration and deposit





4.6 Digital registration and deposit

The most appropriate role for the Copyright Office in registering

and accepting deposits of digital materials is not obvious. Because

various members of the Copyright Office are already engaged in

studying and experimenting with digital registration and deposit,

Project Looking Forward did not address the issue. Still, the study

did turn up some confusion as to the Office’s role as a central

repository even currently. This section discusses these findings.

The Copyright Office as central

repository

Central repositories are often thought to be outmoded in the

digital world of the Internet. When an encrypted work—a digital

object—can carry with itself all the relevant information about

ownership, licensing, and the like, goes the argument, why bother

with a central repository like the Copyright Office of the same

information?

Many in the technical community accordingly see the role of

central repositories as waning for these reasons. The assumptions

that underlie the belief in the superfluity of central repositories

are not always sound, however. For example, some of the

technical researchers interviewed for project Looking Forward

believe that the purpose of the Copyright Office registration and

cataloguing system is to verify and authenticate that the person

claiming authorship is in fact the author of the work being

registered. There is a modest amount of truth to this view: if

fraudulent claims are identified by the Copyright Office’s

Examining Division, they will be investigated and resolved. But

the Copyright Office cannot reasonably be expected to undertake

substantial verification and authentication of each of the 600,000
Today’s Legal Issues





registrations mailed into the office each year, and it does not

attempt to do so.

Consequently, arguments that technological means for ensuring

authenticity will obviate the need for central repositories of

copyright information are based on a faulty premise—that a

repository of copyright registrations exists primarily to

authenticate submitted materials.

On the other hand, many of those researchers interviewed during

project Looking Forward are unaware of some of the most

important purposes of the current Copyright Office registration

and cataloguing system. Much of what makes this facility useful

is not just the initial recordation of basic ownership information.

It is, rather, the use of that facility to track later assignments and

licenses. This is not easily done on a decentralized basis. A digital

envelope, for example, that tells its possessor what it costs to read

the enclosed, encrypted data, and to whom to forward the money,

does not tell the possessor that the copyright ownership of the

object was transferred last year to another party and it is to that

party that the money should be sent.

To be sure, that observation does not imply that central records of

copyright rights are required in a digital, online world; perhaps

multiple recordation systems can co-exist, some or all under

private, non-governmental operation. The observation does show,

however, that one of the reasons suggested for the obsolescence of

a central recordation system is dubious.




5. Tomorrow’s Issues

In this section, the issues divide into those identified as “pure”

copyright issues, and those that involve copyright and its relation

to other bodies of law. To be sure, the “law is a seamless web” so

that any such breakdown is one of editorial convenience, not

substantive import. For that matter, when it comes to the Internet,

the Web may be a seamless law, with issues blending into one

another in a way that makes them difficult to unravel. But for

analytical purposes, one must try to unravel them nonetheless.

Here is a brief statement of the issues later addressed in more

detail in this section.
Tomorrow’s Issues





5.1 Technology and new issues

With any major new technology like the Internet, there is always a

debate over how the technology affects the law. One can look at

technology and law from a very abstract perspective and find that

nothing whatsoever is “new”: every problem of technology and

law ends up being a dispute between people, and disputes

between people are as old as people. Or one can look closely at

the details of any new technology and discover that everything is

new: “We’ve never had defamation by e-mail before!”

Some sort of middle ground between these extreme perspectives

will prove the most helpful. This Report is guided by a simple

principle: technology raises “new” legal issues when those issues

become “worth thinking about afresh because greater certainty

would be helpful.”155

In turn, greater certainty may be helpful for several reasons,156 but

two have particular relevance in the copyright context.

1. Statutory language expressly tied to particular technologies.

Some statutes (or court holdings) refer expressly to particular

technologies. When a new technology arises, the question follows

whether or how the existing language applies to the new

development. One approach is to decline to apply the existing

words to new media. A new enactment or a new clause is then

necessary to accommodate the new technology. When the first

question arose as to whether photographs could be copyrighted

under the statutory category of “prints,” for example, the court

 

155 I. Trotter Hardy, Law and the Internet, BUSINESS LAW TODAY, March/April

1996, at p. 8.

156 I. Trotter Hardy, Law and the Internet, supra note 155 at 10; I. Trotter

Hardy, The Proper Legal Regime for “Cyberspace,” 55 UNIV. PITTS. L. REV. 993, 1000-

1015 (1994).
Technology and new issues





said no: “prints” meant something altogether different at the time

of that category’s addition to the statute, and the court declined to

broaden its meaning to include photographs—even though the

latter were also popularly called “prints.”157

Another approach to the issue is interpretative: to give a special

legal meaning to existing terms so that they do apply to the new

technology. Courts have broadened the term “writing,” for

example, so that it now has a gloss that means something like

“result of creative endeavor.” Whatever the approach, the change

in technology requires some kind of response, and hence

constitutes an issue raised by the advent of the new technology.

2. Change in underlying assumptions. A legal rule may be

implicitly based on assumptions about some underlying facts or

circumstances, even though those facts are nowhere mentioned or

referred to in the rule. When those facts or circumstances change

because of technological evolution, an argument arises that the

rule should change as well. In the early days of radio, Congress

held hearings on the liability of radio stations that broadcast

copyrighted music. At one point a bill was introduced—though

never passed—that provided immunity from copyright liability to

radio stations.

Though the bill said nothing expressly about its underlying

rationale, Congressional testimony makes clear that the rationale

was the belief that radio would not be financially viable without

copyright immunity: no mechanism existed to charge listeners

individually, and radio was thought not able to depend on

advertising because any station attempting to “put obvious

 

157 Wood v. Abbott, 30 F. Cas. 424 (S.D.N.Y. 1866) (No. 17,938).
Tomorrow’s Issues





advertising on the air ... would be killed. The public would take

care of that. There would be nobody listening to it.”158

One can easily imagine the situation had the bill passed. When it

later became clear that the public would tolerate advertising on the

radio, copyright owners would have argued that the statue ought

to be changed. The change would not be necessitated by statutory

language tied to particular technologies, though, but rather by

changes in the underlying assumptions of that language.

 

158 TO AMEND THE COPYRIGHT ACT: HEARINGS ON S. 2600 BEFORE THE

SUBCOMM. OF THE COMM. ON PATENTS, 68th Cong., 1st Sess. 11-12 (1924)

(statement of E. F. McDonald, Jr., President, National Association of

Broadcasters).
“Pure” copyright issues





5.2 “Pure” copyright issues

The discussion of issues is in two parts: this section addresses

technologies that will raise “pure” copyright issues, those that

have relatively little to do with other bodies of law. The next

section will address technologies that are likely to raise issues

springing specifically from the interaction of copyright law with

other bodies of law.

Some Internet trends are quite visible. They result from the

enormously greater capacity to send and receive information over

huge distances quickly and cheaply. Such a capability will allow

the rise of all sorts of new ways for people to communicate, both

as individuals and as groups. It is no surprise that the parts of the

Copyright Act that are defined in terms of yesterday’s

communications technologies will give rise to interpretative

questions. Here are some examples.

Non-public posting

Today the phrase “World-Wide Web” refers to the public Web,

sites that anyone can access from anywhere the Internet is

connected. As already noted,159 posting information on the WWW

constitutes a making of the information publicly available,

whether considered as a public distribution or performance or

display.

But as also previously discussed,160 another rapidly growing

phenomenon today is that of private “Intranets,” networks using

Internet technology but designed to be accessible only to an

organization’s employees. The use of Intranets for posting

 

159 See the discussion in the section titled Web posting, at page 121.

160 See the discussion in the section titled Intranets, at page 43.
Tomorrow’s Issues





information will increase. The groups to which such information

will be accessible may grow smaller and more ad hoc. For

example, Intranets accessible to every employee in a corporation

are common today, but tomorrow it may be just as common to

have an Intranet for the sole use of an educational class, a church

group, or a work group of a half dozen individuals.

At some point, the accessibility of information may be

circumscribed enough to raise the issue whether such information

has been made “publicly” available or not.

To be sure, the definition of “public performance or display” in

the current Act is drawn without regard to technology directly.

The definitions in section 101 of the Act say that:

To perform or display a work “publicly”

means -

(1) to perform or display it at a place open to

the public or at any place where a substantial

number of persons outside of a normal circle

of a family and its social acquaintances is

gathered; or

(2) to transmit or otherwise communicate a

performance or display of the work to a place

specified by clause (1) or to the public, by

means of any device or process, whether the

members of the public capable of receiving the

performance or display receive it in the same

place or in separate places and at the same

time or at different times.161

The definition in part (1) contemplates that groups of people will

congregate in a physical location. With the Intranet phenomenon,

part (1) raises the issue of whether a “virtual” gathering of

 

161 17 U.S.C. § 101.
“Pure” copyright issues





individuals outside a family and social acquaintances constitutes

a “public.”

We can take as a simple illustration a meeting of a corporate

Board of Directors, first as a physical gathering, and then as an

electronic one. Suppose that a corporation’s Board of Directors

were meeting face-to-face and that as part of the meeting, a

musical composition were played. Assuming that the Board meets

at a place that is not generally “open to the public,” the question

whether the performance of the music was “public” would turn

on whether the meeting was at a place “where a substantial

number of persons outside of a normal circle of a family and its

social acquaintances is gathered.” If the Board were small, it is

possible that it would not constitute a “substantial number of

persons,” and the performance would therefore be private.162 But

even groups with as few as twenty-one persons and their guests

have been found to be “substantial,”163 so a larger Board meeting

might well be considered public. Let’s assume that the face-to-face

gathering is indeed large enough to be “public.” Obviously,

unless some other exemption such as fair use applied, the group

would need a license for the composition’s performance because

it would be, by hypothesis, a public performance.

Now suppose the same Board members were to meet

electronically online, in an interactive “chat” room or by means of

interactive video conferencing. Suppose again that the same

musical work were played electronically. Whatever policy

justifications applied to cause the first, face-to-face meeting to be

considered “public” would seem to apply here as well. By

hypothesis, nothing of apparent copyright significant would have

 

162 “Routine meetings of businesses and governmental personnel would [not

be public] because they do not represent the gathering of a ‘substantial number

of persons.’” HOUSE REPORT at 64.

163 See Fermata Intl. Melodies, Inc. v. Champions Golf Club, Inc., 712 F.Supp.

1257, 1260 (S.D. Tex. 1989), as cited in II PAUL GOLDSTEIN, COPYRIGHT, supra note

108, § 5.7.2, n. 21.
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changed—not the number of people, the purpose of the meeting,

the purpose for using the music, or anything else except the

physical presence of the individuals in question. Would the

electronic music performance still be “public?”

Presumably an electronic Board of Directors’ meeting would not

be at a “place” open to the public. Even an online meeting would

typically be confined to Board members and others authorized by

the Board. So again, that part of the statutory definition would not

be satisfied.

But unlike the physical meeting, the virtual meeting might also

fail the second part of the test: a meeting “at any place where a

substantial number of persons outside of a normal circle of a

family and its social acquaintances is gathered.” Here, the

problem is that “place” is the crucial word but “place” does not

readily apply to an online meeting where all the participants are

in physically different locations.

One might argue that “place” should be taken metaphorically as a

virtual place. The “place” could therefore be said to be

“cyberspace.” That interpretation would make sense because it

would result in comparable treatment of the two meetings, the

one physical, the other virtual. Both would be public, or if the

numbers were small, both would be private, but in any event they

would be treated the same way.

Unfortunately, the notion of “place” in the statute is listed in

contrast to part (2) of the definition, which defines “public

performance” as also meaning “to transmit or otherwise

communicate a performance or display of the work to a place

specified by clause (1)”—that is, a public performance includes a

transmission to a place where there are gathered a substantial

number of persons. The fact that Congress chose to refer to

“transmit” in this context means that it contemplated electronic

transmissions of at least the radio-television type. The fact that it

spoke of “transmitting to a place” suggests that it did not consider
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the transmission itself to constitute a “place” (else the wording

would be redundant), or that a “place” could be anything other

than a physical place (else it would not make sense to transmit “to

a place”).

If that interpretation of “place” as being confined to physical

place is correct, then the electronic meeting would not be a public

one, even though precisely the same meeting accomplished faceto-face would be public. Consequently the performance of the

music during the electronic meeting would not constitute a public

performance.

The definition offers yet a third way that the music performed for

an electronic meeting might be “publicly performed.” The

definition quoted above notes that to perform a work publicly

includes “to transmit or otherwise communicate a performance ...

to the public.” This part, “to transmit ... to the public,” is

ambiguous. “The public” appears to refer to “the public

generally,”164 and hence would exclude a meeting of a board of

directors. On the other hand, “public” might be used as a term of

art, but if so, then the definition is circular: a public performance

is a performance made to the public. To avoid that circularity, one

must fall back on the notion that “the public” here means the

larger public and not just “a public.” In short, a careful reading of

the statute on this point supports the conclusion that music

played to a physical meeting of a board of directors might be a

public performance, but the same music played to a “virtual”

meeting of the same board might not be.

Whether this interpretation is correct, whether a court would

follow it, or whether indeed it makes good policy sense, are

questions beyond the scope of this Report. But once again,

wording in the statute is expressly tied to certain forms of

 

164 See the HOUSE REPORT at 64-65 (“a performance made available by

transmission to the public at large is ‘public’ ....”) (emphasis added).
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technology; the Internet is rapidly creating other analogous

circumstances, but for which straightforward application of the

statute could lead to different results.

“Live” information and display forms

At one time, we might have envisioned the WWW as a giant, but

relatively static, information source. That is, individual computer

servers and documents would grow in capacity and holdings, like

a library, but any individual document would more or less stay as

it was when first posted. Obviously there is great value in just this

sort of “library” model of the Web, and the Web fits that model in

many ways. But even individual servers and documents and

pages are becoming far from static repositories of information. A

rapidly growing phenomenon is the use of Web page links to

connect to an underlying, and changing, database of information.

A classic example can be seen in the provision of airline flight

information. As of this writing, several Internet sites offer such

information, including that of several airlines themselves.165 The

Web interface pulls information from some other source and

reformats it for Web display.

Companies are doing much the same thing with internal

databases of information, pulling constantly updated information

out of them and reformatting it on the fly for Web display.

The techniques for doing this live, constant updating of Web page

information are fairly straightforward today, and will only get

easier tomorrow. We can expect that nearly anyone with

information they desire to get out to the public will do so, at least

in part, by means of Web pages. Not just national airlines, but

local restaurants, for example, will have location, hours of

 

165 One good example, which relies on links that hide a great deal of

underlying complexity to create a very “user-friendly” interface, can be found at

<http://www.flifo.com>, available as of December 13, 1996.
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operation, and menus constantly available. So will stores and

other retail outlets. Much of the underlying layout and design of

these Web pages will remain the same, in the way that paper

forms make up an unchanging template with variable

information. The use of an underlying template with variable

information from a computerized database is already common off

the Internet today, but the information displays are typically

rudimentary: they are literally “forms” and often will not be

copyrightable at all.

The difference with Web pages displays is that those aimed at

desktop computers, connected to the Internet with high

bandwidth communications lines, will be much more elaborate in

their layouts, images, sound, video, and the like. In short, they

will be much more likely to be copyrightable subject matter.

From the copyright perspective, we will be faced with an

overwhelming amount of frequently changing information

displays, raising the issues of both copyright registration of

rapidly-changing works, and copyright in derivative works.166

 

166 Rapidly changing “works” can also describe daily newspapers or

newsletters, for which the Copyright Office has well-developed registration

procedures. See U.S. Copyright Office, Circular 62c GROUP REGISTRATION FOR

DAILY NEWSLETTERS, 37 CFR202.3(b)(8), also available as of October 19, 1997,

from <http://lcweb.loc.gov/copyright/circs/circ62c>. Web sites pose

substantially harder questions than frequently-issued newsletters, however, for

Web sites are updated “in place” whereas newsletters are updated in discrete

and independent “issues.”
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Factual information

The World Wide Web is a remarkable technology for making

current factual information promptly available. Accessible now

primarily from desktop computers, the Web tomorrow will be

accessible from cars, portable wireless computers, hand-held

devices, and perhaps computer screens situated in public places

like airports and store windows. It will be handy to be in an

unfamiliar location and have a hand-held Web access device or

car-based device167 tell you where various restaurants or hotels or

gas stations or other facilities are in relation to where you are at

that very moment. Or to obtain the latest basketball scores,168 the

upcoming weather,169 or the scheduled departure times for an

airplane flight170 while you are on the way to the airport.

Largely factual information like locations, directions, scores,

forecasts, departure times, maps, and so on abound on the

Internet today. Some of this consists of lists and nothing more—

price lists,171 recipe lists,172 event calendars,173 etc. Others are lists

 

167 See Joseph B. White and David Bank, Soon Drivers Will Be Negotiating

Internet Traffic, Too: Guess Which Company Wants To Be First To Break Into This New

Market, THE RALEIGH NEWS AND OBSERVER, February 24, 1998, Tuesday, FINAL

EDITION.

168 See, e.g., the ESPN site, available as of March 11, 1997,

<http://www.espnet.sportszone.com>.

169 See, e.g., The Weather Channel site, available as of December 15, 1996,

<http://www.weather.com>.

170 See, e.g., the FliFo site, available as of March 11, 1997,

<http://www.flifo.com>.

171 See, e.g., the PDA Page, listing prices for various small computers,

available as of March 11, 1997, <http://www.pdapage.com>.

172 See, e.g., the Diana's Kitchen site, with recipes from readers, available as of

March 11, 1997, <http://www.ebicom.net/kitchen/page/favorite.htm>.
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with comments—health foods,174 wine rankings,175 fitness and

nutritional information,176 and so on. Others may be simple maps

or charts: A great deal of this information is essentially factual.

Factual information has always had a limited scope of protection.

Since Feist Publ., Inc. v. Rural Telephone Service Co.177 ruled that the

white pages of a telephone book were not original enough to

constitute “authorship,” factual information seems likely to

receive even less protection than before.178 One way that a seller of

such information can respond to these narrow limits on copyright

protection is to “fancy up” the facts with graphics and colorful

background forms, as discussed in the previous section. For maps

especially, the addition of original symbols, coloring, shading,

 

173 See, e.g., the Runners World site, list of race events for April 1997, available

as of March 11, 1997,

<http://www.runnersworld.com/calendar/calapr97.html>. See also, e.g., a Webformatted calendar designed to permit quick copying of event schedules at the

Now-Up-to-Date site, available March 11, 1997,

<http://www.nowsoft.com/plugins/NBA/Atlantic.html> (NBA Atlantic

Division team schedules).

174 See, e.g., the Runners World site, available as of March 11, 1997,

<http://www.runnersworld.com/nutrition/nusuperf.html>.

175 See, e.g., the Wine Spectator site, available as of March 11, 1997,

<http://www.winespectator.com/Wine/Spectator/Archives/19960131/013196f

y11.html|6389032086596260132497074479>.

176 See, e.g., the FitnessLink site, available as of March 11, 1997,

<http://www.fitnesslink.com/food/eatfit.htm>.

177 Feist Publ., Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).

178 See, e.g., The National Basketball Association v. Motorola, Inc., 1997 U.S.

App. LEXIS 1527; 41 U.S.P.Q.2D (BNA) 1585; 1997-1 Trade Cas. (CCH) P71,705

(2d Cir. 1997) (live broadcasting of sports scores over a pager system held not to

be a misappropriation; case not based on copyright); NBA Calls Foul on America

Online’s Sports Posts, NETGUIDE MAGAZINE (December 1996) at 48.
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legends, and the like can convert underlying facts into protectible

expression.179

In the early days of any new computer technology, though,

“fancying up” is less possible. Attractive graphics and coloring,

for example, require greater computing “horsepower” and

communications bandwidth. To be sure, today’s desktop

computers are quite powerful and routinely handle elaborate

graphics and color. But desktop computers are no longer a “new”

technology. To see examples of something new, we can look at the

so-called hand-held computers. These are devices that weigh

about a pound or less, and that fit into a pocket or purse. Already

the technology exists to give these devices a wireless connection

to faxing, e-mail, and the WWW. Within the next year, the cost

and weight of such additional capabilities will fall enough to

bring them to a wide market.

But WWW access in particular may operate over a limited

bandwidth, relative to networked, desktop computers. That

means in turn that much of the information of interest that has a

graphic component—maps and directions, e.g.—will at first be

fairly simple in design; fancier designs require higher bandwidth.

For that matter, maps and directions may at some point be read

by other devices, not by human beings. “Getting directions to a

restaurant” may eventually be something that one’s car does, not

oneself. All that would be required is a “smart” car that can guide

itself from external signals, a technology that has been in

development for some time and is held back more by cost than by

 

179 Fancier graphics and illustrations may not always be what consumers

want or want to pay for. It remains true nonetheless that the lesser scope of

copyright protection for factual information creates an incentive for creators to

add additional even though unwanted materials like graphics in order to

increase the level of copyright protection. See Jane C. Ginsburg, No “Sweat?”

Copyright and Other Protection of Works of Information after Feist v. Rural

Telephone, 92 COLUM. L.REV. 338, 345 (1995) (arguing that lack of copyright on

facts may discourage the creation of exhaustive compilations, even though “[t]he

exhaustive compilation may be most attractive to the user”).
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the need for technological break-throughs. Even with today’s

human guided cars, a Web access device itself will likely simply

give basic factual information, telling the driver when and where

to turn.

The significance of all this for copyright purposes is that the

information of interest will be heavily factual, not initially

“fancied up” with graphics and colors, and hence will have at best

a very thin copyright.180 For Web site owners who would like to

charge for essentially factual material, both the general

prohibition against copyrighting facts, and the Feist case’s

prohibition against “sweat” copyrights will pose a problem. As

noted, factual databases are nothing new; it did not take the

Internet to create them. But in the past, the terms and prices for

many large databases could be negotiated within a contractual

relationship. To some extent, commercial database access, as to

WestLaw and Lexis, looks like mainframe computer software a

decade or two ago. The packages were expensive and were

typically sold on an individual contractual basis. Desktop

computer software today, in contrast, is sold as a commodity in

“shrink wrap” packages stacked on a shelf. The opportunity for

enforceable contract terms in such packages—not to say in the

 

180 Databases may acquire protection under database legislation such as the

Database Investment and Intellectual Property Antipiracy Act of 1996, H.R. 3531,

104th Cong., or the more recent Collections of Information Antipiracy Act,

H.R. 2652, 105th Cong. (introduced by Rep. Coble on October 9, 1997). The

precise form of such protection, if enacted, is presently uncertain.
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very common “click-on” or “Web wrap” licenses—has been

questioned.181

Easy WWW access to individuals will mean that access to many

kinds of databases will shift to the same commodity basis. Access

by individuals might of course be by means of subscription,

which will offer an opportunity for contractual agreement. But it

also seems likely that there will be a market for one-time, ad hoc,

access to factual databases by large numbers of individuals for

short periods of time. When tourists are in a strange city, for

example, they may want to have access to local information for

that city for a week or two, but not for month after month.

With easy access to such databases and the “commodification” of

database sales, questions of access controls will certainly arise.

For instance, suppose several companies were to provide factual

database information, either over the Internet or on a disk, about

Chicago. Each of these services offers a large array of information

about the city: restaurants, maps, hotels, shopping, entertainment,

and so on. Each offers different strengths and weaknesses: one

may have the best restaurant information, for example, and

another the best hotel information.

Can a competitor take the best restaurant information from one

service, the best hotel information from another, the best

shopping information from a third, and so on, offering a “cream

 

181 Shrink wrap contracts for software are a topic of considerable

controversy today. One appellate decision deals with the issue, ProCD, Inc. v.

Zeidenberg, 86 F.3d 1447 (7th Cir. 1996); commentators also address it, e.g., Julie

E. Cohen, Reverse Engineering And The Rise Of Electronic Vigilantism: Intellectual

Property Implications Of "Lock-Out" Programs, 68 S. CAL. L. REV. 1091 (1995); Mark

A. Lemley, Intellectual Property And Shrinkwrap Licenses 68 S. CAL. L. REV. 1239

(1995). See also Robert W. Gomulkiewicz and Mary L. Williamson, A Brief Defense

Of Mass Market Software License Agreements, 22 RUTGERS COMPUTER & TECH. L.J.

335 (1996); Charles R. McManis, Taking Trips On The Information Superhighway:

International Intellectual Property Protection And Emerging Computer Technology, 41

VILL. L. REV. 207 (1996); Jonathan E. Retsky, Computer Software Protection In 1996:

A Practitioner's Nightmare, 29 J. MARSHALL L. REV. 853 (1996).

Database protection
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of the crop” database without ever having to invest much in

collecting the information initially? Copyright protection will be

far from assured because the information is so heavily factual. Yet

plaintiffs are certain to make every argument they can. Feist

notwithstanding, any database supplier can argue that it

exercised enough selection and arrangement to sustain a

copyright, so that a copyright claim will likely be raised in any

event. Similar scenarios are likely to arise time and again because

of the commercial value of factual information.

In a sense, then, we will be looking at a “new use” industry:182 one

that takes tiny amounts from a great many sources and compiles

them on the fly into a new service. What makes this a new issue is

several things: the information will be heavily factual, and hence

will have a very thin copyright, if any—raising problems of just

how thin; the information will be taken in small amounts from

each database owner, raising the question whether the amounts

are de minimus or a fair use; and the new use industry that

extracts from many of the existing suppliers may at first appear

actually to benefit those suppliers by providing advertising value.

Avatars

Computers can create three-dimensional figures and animate

them. The best technology today can be quite effective in creating

characters that appear to talk and move: witness the computeranimated Disney movie Toy Story. This animation can also be

done in response to ad hoc human control, as is true with many

video games where characters move, turn, jump, attack, and so on

in immediate response to the game player’s directions expressed

through joy sticks, buttons, and similar controls.

 

182 The various types of issues that arise with copyright and new

technologies are discussed in the section titled Three Patterns of Copyright and New

Technology, at page 238; see especially the section on New use of existing works, at

page 240.
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Experiments are already underway on the Internet in allowing

users to create animated figures to represent themselves for

purposes of on-line interactive discussions. These figures are

popularly termed “avatars.” They are rather crude at present,

though there is every reason to think that they will become

increasingly detailed and realistic (or unrealistic, as their creator

prefers).

Some obvious questions will arise from this technology: Can one

copyright one’s avatar? Does this bring into play other legal issues

like trademark and right of publicity? Can an avatar become a

“person” in the way that corporations are considered legal

persons? And if so, can an avatar own a copyright? A copyright in

itself as a fictional creation?183

Internet broadcasting

Today, a number of radio stations are broadcasting their

performances directly over the Internet, simultaneously with their

over-the-air broadcasts. The cost of becoming an “Internet radio

station” is substantially less than becoming a broadcast radio

station. For one thing, a license is not needed from the FCC, so

one enormous cost—and one limit on the number of

broadcasters—that stems from the requirement of dealing with

the FCC proceedings is avoided by the Internet radio station.

The analogy of Internet “radio” with broadcast radio is very

strong; in fact, the Internet radio organizations are encouraging

exactly that analogy with explicit comparisons to ordinary radio.

RealAudio, for example, is a company that provides live audio

services over the Internet today. It advertises its software as

 

183 See the interesting discussion of using electronic “persons” as a way to

ensure privacy found in Curtis E. A. Karnow, The Encrypted Self: Fleshing out the

Rights of Electronic Personalities, 13 J. COMP. & INFO. LAW 1 (1994). More general

discussions of electronic persons may be found in 37 COMMUNICATIONS OF THE

ACM (Special Issue: Intelligent Agents), July 1994 (as cited in Karnow at 9 n.35).
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having “Preset Buttons, like a car radio, that take you straight to

your favorite RealAudio sites. It also has a scan feature that lets

you scan the Web for live music, radio, sports, and news.”184

One can expect, then, an increase in the number of such “radio”

stations. For those stations that are already broadcast entities, and

have been paying ASCAP and BMI royalties, the issue may be

whether that existing royalty payment means that royalties have

“already been paid” and further royalties are not owed. 185 The

issue may thus be cast in the form of a question of contract

interpretation: what exactly does the contract provide in the way

of a license to “broadcast?”

In-line linking and framing

Everyone familiar with the WWW understands that an enormous

advantage of the Web is that most documents and sites contain

“links” to other documents and sites. That is the whole point of

the WWW: it would not be a “web” or be “world-wide” if it did

not contain links to other information.

Fewer people presently understand that “links” come in several

flavors. The ones just referred to are perhaps the most commonly

thought of; they might be described as “links out” to other

information. Another type of link is referred to as an “in-line

link,” which in contrast to the first type might be thought of as

“links in” to other information.

 

184 See <http://www.realaudio.com/tmaplus/index.html>, available as of

August 20, 1996. A subsequent check on August 30, 1997, showed this similar

text being used: “Use the 40 RealPlayer Plus preset buttons to take you straight

to your favorite news, music, and sports sites, just like with a car radio.”

185 The author understands from informal conversations with those in the

music licensing field that as of March, 1997, some Internet audio sites are paying

ASCAP and BMI royalties, and that others are not.
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An in-line link is a pointer to a document somewhere on the

WWW that causes that document to appear to be located on the

“receiving” site. Let us say that Web page owner A puts up a

document on A’s web site. Part of that document contains a link to

a picture located on, say Web site B. Many such links are used to

direct a user “out” to another image or bit of text. Typically, such

a link will be represented in text form by the use of a blue type

font, often underlined as well. A user understands that “clicking”

on the blue text will cause a jump to some other document, and

perhaps some other computer.

But the in-line link, in contrast, in effect pulls the other image or

bit of text into the current document for display. In other words,

the user looking at site owner A’s Web page will see on that page

an image that actually was “pulled in” from site owner B’s Web

page, even though it appears to be a part of A’s page. For all

practical purposes, it is a part of A’s web page, at least as far as the

viewing user is concerned.

This has already happened once in a way that raised—but did not

resolve—the copyright issue. An individual at the Princeton

University for a while kept an in-line link to the “Dilbert” cartoon

of the day. The cartoon appears on copyright owner United

Media’s site,186 but to browsers of the individual’s site, the cartoon

appeared to be residing “there.” Reportedly, United Media sent

the individual a “cease and desist” letter, after which he ceased

and desisted the in-line linking.187

When the first draft of this Report was written in the fall of 1996,

this section ended with these words: “Certainly this [in-line

linking] is an issue that will be revisited in the future. Because it

 

186 See <http://www.unitedmedia.com/comics/dilbert> .

187 The author recalls seeing the matter discussed in an online discussion

group, but otherwise has no authoritative reference for the cited fact. He notes

that the only significant issue for this Report’s purposes, however, is that no

court or legislative conclusion was reached on the matter.
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involves technology that is already working today, one can expect

the issue to arise fairly soon.” By February, 1997, a law suit

involving “in-line linking” had in fact been filed.

A site on the WWW known as “TotalNews” provides links to a

variety of other news sites on the Web, including CNN, CBS,

NPR, and others. The linking mechanism was initially

implemented in such a way that the news organizations’ Web

pages appeared to be “on” the TotalNews page. This particular

variant of in-line linking is popularly known as “framing,” as it

involves a border from one site—the frame—surrounding or

edging the content from another site.

Here is a screen capture of the TotalNews home page, taken on

March 9, 1997.

Figure 10: Screen capture of TotalNews home page,

 from <http://www.totalnews.com> on March 9, 1997.

Framing
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Though it may not be apparent, the screen image consists of

several different parts. The overall screen shows a Web browser

and its menus and button icons along the top. Within the

browser’s window appear several images from the TotalNews

site. These images are divided into several “frames” or segments.

One of these frames appears along the left side of the page and

contains a series of buttons with the names of various news

organizations: FOX News, MSNBC, and so on. To the right of this

narrow frame is a wider one that contains the TotalNews logo and

a compass rose. At the time of the litigation, when a user clicked

on one of the buttons in the left side frame, that frame remained

in place, but the content of the larger frame with the compass rose

was replaced with content from the selected news site.

This next screen capture shows what happened, for example,

when a user clicked on the “CNN Interactive” button.

Figure 11: Screen capture showing what appears after clicking on the “CNN

Interactive” button in the left frame of the TotalNews home page,

from <http://www.totalnews.com> on March 9, 1997.
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Notice that the frame or border on the left and bottom of the

screen remained the same, and the small address window

showing a URL continued to display the TotalNews Internet

address.

On February 20, 1997, some the news organizations188 listed in the

left frame filed suit against TotalNews, alleging a number of

causes of action including misappropriation, trademark dilution,

trademark infringement, false designation of origin, tortious

interference with contract, and copyright infringement.189

The complaint was not specific in its allegation of copyright

infringement as to which rights are involved. Presumably the

issues would include whether the TotalNews site was copying or

 

188 The Washington Post, Cable News Network, Times Mirror, Dow Jones

and Reuters New Media.

189 Paragraph 30 of the complaint states:

At the heart of Defendants' wrongful conduct is a practice known

as “framing” that causes Plaintiffs' websites to appear not in the

form that Plaintiffs intended, but in an altered form designed by

Defendants for their own economic advantage. The totalnews.com

website consists of lists of numerous “name-brand” news sources,

including the famous trademarks exclusively associated with

Plaintiffs in the public mind. When a user of totalnews.com

“clicks” on one of those famous trademarks with the computer

mouse, the user accesses a Plaintiff's corresponding website. (In

Internet parlance, the trademarks here function as “hyperlinks”:

areas on the screen that, when clicked on, take the user directly to

another website.) Plaintiff's site, however, does not then fill the

screen as it would had the user accessed Plaintiff's site either

directly or by means of a hyperlink from a website that does not

“frame” linked sites. Nor does Plaintiff's URL appear at the top of

the screen as it normally would. Instead, part of Plaintiff's site is

inserted in a window designed by Defendants to occupy only a

portion of the screen. Masking part of Plaintiff's site is the

totalnews.com “frame,” including, inter alia, the “TotalNEWS”

logo, totalnews.com URL, and advertisements that others have

purchased from Defendants.

The Washington Post Company v. Total News, Inc., (S.D.N.Y. February 20,

1997) 97 Civ. 1190 (PKL).
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publicly displaying or publicly performing or creating a

derivative work of the works at issue.

In June, 1997, the case was settled;190 we do not, therefore, have

any judicial resolution of the issues involved. As of early 1998, the

TotalNews site was no longer consistently framing other sites.

Here, for example, is the site as of February 23, 1998. The basic

layout is similar to that of a year ago.

Figure 12: Screen capture of the TotalNews web site,

from <http://www.totalnews.com> on February 23, 1998.

 

190 See STIPULATION AND ORDER OF SETTLEMENT

AND DISMISSAL, 97 Civ. 1190 (PKL) (S.D.N.Y. June 6, 1997), available as of

October 19, 1997 from the BNA ELEC. INFO. & POLICY L. REP. (online version),

<http://www.bna.com/e-law/cases/totalset.html>.

TotalNews case

settled
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This time, a click on the “CNN Interactive” button causes a new

window to open without framing.

Figure 13: Screen capture of the TotalNews site after clicking on the “CNN

Interactive” button. Notice that a new window has opened and that the CNN site is no

longer framed. From <http://www.totalnews.com> (in the background) and

<http://cnn.com> (in the foreground) on February 23, 1998.

Regardless of these particular instances of framing, the

technology is widely used on the Internet. Technology also exists

for Web site owners to prevent other sites from framing them,191

but not everyone is aware of either the technology or the

likelihood of framing. The issue therefore remains open as a legal

matter. The general issue here is one of a “new use” of existing

 

191 The technical community is aware of the matter: see Arnoud Engelfriet,

Frames FAQ: Avoiding getting ‘framed’: Is there a way to prevent getting framed?,

<http://www.htmlhelp.com/design/frames/faq/framed.html>, as of February

28, 1998. For those who wonder how an obscure reference like this one can be

found: the author visited a search engine site on the Web, entered the search

request “html code to prevent site being framed.” The sixth response was a

reference to the Engelfriet site.
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copyrighted works, a matter discussed in more depth under the

heading New uses: analysis, at page 256.

Authorization and extra-territoriality

The Internet facilitates communication across national borders,

and naturally raises issues relating to the use and exploitation of

copyrighted works in other countries. A little-examined provision

of the 1976 Act may come into play when works under U.S.

copyright protection are used abroad.

The 1976 Act for the first time included a right of copyright

owners both “to do and to authorize” the various exclusive rights

of copyright ownership.192 The legislative history of this provision

explains that “use of the phrase ‘to authorize’ is intended to avoid

any questions as to the liability of contributory infringers.”193

One issue that arises with regard to this language is whether it

was intended only to codify existing case law on contributory

infringement, or whether it created in effect a new right of

authors. In many cases, there will be no difference between these

two interpretations, so the question is not of practical importance.

For example, suppose an individual bought a large quantity of

video cassettes of popular motion pictures. This individual then

began renting the cassettes to others with an express statement

that the rentals were suitable and intended for the purpose of

public performances.

If those renting the cassettes in fact publicly performed them, the

performances would clearly infringe the owner’s rights. But the

party originally renting out the cassettes would just as clearly

violate the owner’s rights as well: that party would be liable

under existing interpretations of the contributory infringement

 

192 17 U.S.C. § 106 (emphasis added).

193 HOUSE REPORT at 61.
“Pure” copyright issues





doctrine because a direct infringement would have occurred. It

would be liable also for “authorizing” a public performance

under any plausible interpretation of that term.

Other cases can arise, however, in which the difference is more

significant. Two illustrations are foreign actions, and private

performances or displays.

American copyright law is considered not to have “extraterritorial

effect.”194 That means that acts done outside the United States do

not infringe United States copyright law. Publicly performing a

movie at a theater in another country, for example, does not

violate American copyright law (it might or might not violate the

law of the other country). Suppose a defendant in the United

States lawfully acquired copies of a motion picture, though not

the performance rights, and began authorizing the motion

picture’s public performance in another country where such

performances are lawful. The foreign entity arranging for the

performance would not be liable under its own law, by

hypothesis. This same party would not be liable for a violation of

U.S. law because our law is not extraterritorial. The question is:

has the American defendant authorizing the foreign performances

violated any copyright rights?

If the “authorize” clause in the Copyright Act only codifies the

doctrine of contributory infringement, the defendant is not liable.

The contributory infringement doctrine generally requires that a

direct infringement takes place somewhere. No one can

“contribute” to an infringement, goes the argument, if there is no

infringement to which to contribute.195 Because the foreign acts do

 

194 See, e.g., Subafilms Ltd. v. MGM-Pathe Communications Co., 24 F.3d

1088, 1095 (9th Cir. 1994) (mentioning the long history of decisions so holding).

195 See Sony Corp. v. Universal City Studios. Inc, 464 U.S. 417 (1984).
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not constitute infringement, the U.S. defendant cannot be liable

for contributory infringement.196

If, on the other hand, the term “authorize” is an independent

copyright right, then what the American defendant is doing is

“authorizing” a public performance. Authorizing a public

performance, goes the argument, is a right of the U.S. copyright

holder regardless of whether the foreign performance is lawful or

not. Hence the American defendant would be liable for copyright

infringement.

The Ninth Circuit has determined that the former interpretation is

correct: that “authorize” merely codifies existing doctrine on

contributory infringement, and that liability for contributory

infringement depends on the existence of a direct infringement

under U.S. law.197 The decision has not been well received by all

commentators, however, some of whom suggest that nothing in

the Act requires the existence of direct infringement for a

violation of the “authorize” right,198 nor has the matter reached

the Supreme Court.

A second example of how the difference in interpretation of the

“authorize” language matters is in regard to private performances

and displays. Suppose a motion picture company were to post a

full-length feature film on its Web site for the purpose of

individuals’ viewing. Suppose that another Web site under

different ownership provides an in-line link to the motion picture

site in such a way that individuals can see the movie, but only

surrounded by additional art work or video or sound provided by

the second site. (This would constitute a situation much like that

 

196 Subafilms Ltd., 24 F.3d v. MGM-Pathe Communications Co., 24 F.3d 1088

(9th Cir. 1994).

197 Subafilms Ltd., 24 F.3d 1088.

198 See, e.g., II PAUL GOLDSTEIN, COPYRIGHT, supra note 108, § 6.3.2; RAYMOND

T. NIMMER, INFORMATION LAW, supra note 108, at ¶ 4.10.
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of the “framing” case discussed elsewhere.199) The motion picture

copyright owner may object to the presentation of its movie in

this fashion (whether such an objection should be legally valid or

not is another question). The individuals viewing the movie

would not infringe the owner’s rights: by hypothesis they are

making “private” performances, which are not within the

copyright owner’s right of control. The motion picture site would

be engaged in “publicly performing” its own movie, but would of

course be doing so itself voluntarily.

The second site’s liability would then depend in part on how one

interprets the “authorize” clause. Again, if the clause merely

codifies existing contributory infringement doctrine, the second

site would not be liable. With no direct infringement by

individuals, there is no contributory infringement.200 But if

“authorize” is an independent right, the second site might be

liable for “authorizing public performances.”

Why “public,” if the second site enables access by private

individuals? The argument would be that the second site was not

directly infringing, because it was not copying the movie.201 An

in-line link does not itself cause the making of a copy—that only

happens when an individual browses the second site, not when

the second site creates the link to the motion picture company’s

site. The individuals viewing the movie would, again, not be

 

199 See the discussion of the “TotalNews” case in the section titled In-line

linking and framing, at page 171.

200 But see II PAUL GOLDSTEIN, COPYRIGHT, supra note 108, § 6.3.1.2 (“Nothing

in the text of legislative history of the 1976 Act makes direct infringement a

condition to contributory infringement.”). See also RAYMOND T. NIMMER,

INFORMATION LAW, supra note 108, at ¶ 4.10 (noting that “[a] dispute exists about

whether the ‘to authorize’ language” creates a right that stands independent of

any requirement that there be a direct infringement).

201 One could also argue that the second site was directly infringing the

public performance right. The argument here simply addresses a different

question. On the direct infringement issue, please see the discussion of the

“TotalNews” case in the section titled In-line linking and framing, at page 171.
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directly infringing because they would be making private

performances. However, the second site has enabled the public to

come to the second site and see the movie “performed”—albeit

technically performed from the copyright holder’s site. The

argument would be that the second site has not itself performed

but has done the equivalent: it has authorized the public

performance of the movie.

This argument is not necessarily persuasive. Rather, the

argument, and the “foreign performance” example, merely

illustrate that the Internet permits all sorts of indirection with

pointers, links, and so on, by which copyrighted content can be

pushed and pulled through many types of intermediaries. These

links to links to links in turn enable individuals to engage in even

more activities “in the privacy of their own home” than ever

before, raising the general issue of what this Report calls

“decentralized infringement.”202 They also enable a considerable

amount of activity to take place outside the physical borders of

the United States. For both reasons, then, the Internet will

encourage copyright owners to look for new theories on which to

base claims of infringement. An obvious such theory under these

circumstances is that of the “authorization” right of section 106.

 

202 See the discussion in the section titled ““Decentralized infringement”, at

page 240, and as more fully discussed at page 259.

Implication
“Pure” copyright issues





Works of visual art

As discussed elsewhere in this Report,203 the 1976 Copyright Act

has managed to avoid a great many old controversies over the

medium of fixation of a work. Past versions of the Act defined

copyright’s subject matter partly in medium-specific terms, which

naturally caused question to arise whenever a new medium of

fixation was invented. This happened most famously with “piano

rolls,” the development of which caused great debate over

whether such a roll was a “copy” of a musical composition.204

Were the same situation to arise again today, we would not

trouble over it. Protection would apply to the “musical work,”

regardless of the form in which it was fixed—whether sheet

music, or a phonograph recording, or a piano roll. We have

defined away the “medium of fixation” issue that so bedeviled

courts construing earlier copyright acts because Congress has

now shifted copyright’s focus away from tangible fixations

altogether. Perhaps a good contemporary example is that of audio

CD’s and CD-ROMs. At one time, we might have had to question

whether such tangible objects were suitable copyright subject

matter. Today, works on CD or CD-ROM are clearly protected

precisely because the tangible objects are not the subject of

copyright. Rather, it is their contents—the works of authorship

such as “musical compositions”—that are the subject of copyright

protection.

Unfortunately for the digital future, a recent amendment to the

Act has reverted to establishing protection on the basis of a

medium-specific provision. The amendment extends rights of

“attribution and integrity” (two kinds of “moral right”) to a new

 

203 See the discussion in the section titled Subject matter: issues, at page 244,

and Subject matter: analysis, at page 246.

204 See White-Smith Music Pub. Co. v. Apollo Co., 209 U.S. 1 (1908).
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category of “works of visual art” in section 106A.205 Works of

visual art are not defined as “works” in the usual 1976 Act’s

medium-neutral way, but are defined as particular types of

tangible objects, including “painting[s], drawing[s], print[s] or

sculpture[s] ... or ... still photographic image[s].”206

The problem for the digital world of tomorrow is that any one of

those works, including sculpture, can be “embodied” in a digital

form.

For two-dimensional works, the embodiment is straightforward: a

painting can be digitized, as can a drawing or print. More to the

point, a digital image can be created initially on a computer. All

manner of computer software these days exists for the purpose of

helping artists and illustrators create computerized images, or for

retouching and altering existing images.

For sculpture, the digitization of a work may be less obvious, but

it is still entirely possible. A three-dimensional work can be

digitized as a three-dimensional object represented inside a

computer. Such a work can be displayed on a computer screen,

rotated, subjected to various lighting and shadow effects, and so

on. The concept of “virtual reality” depends on computer creation

of three-dimensional spaces and objects in this way. One also

frequently sees computer-created new car models, or DNA

structures, or human bodies, or new buildings, etc. being

displayed this way in advertisements and science programs. The

computational mechanism for creating a representation of a threedimensional object depends on fairly complex mathematical

calculations, using principles of solid geometry and other math

beyond the scope of the Report (and its author). But it is well

established today.

 

205 17 U.S.C. § 106A.

206 17 U.S.C. § 101.

Visual art can be

computerized
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Second, a three-dimensional work such as a sculpture can also be

represented as a set of instructions for creating the work in

tangible form. These instructions might be the same as those

necessary only to represent the object, or might be different. The

instructions might be designed for a human being to execute, but

perhaps more problematic—because there is less room for human

intervention and the issue is more clearly drawn—the instructions

can also be in a form that is used by an automatic milling or other

machine to create the three-dimensional object directly from

tangible matter. The relationship between such a work and the

underlying instructions would then be much like the relationship

between a video game in actual appearance and the computer

program instructions for creating a video game.

Thus we have several possible situations of concern to copyright.

First is that works that clearly fall under the visual rights

amendment—say, prints, limited edition photographs, or limited

edition sculptures—can be represented as digitized objects inside

a computer. Do these digitized versions of the protected works

also acquire the same protection as their original tangible

manifestations? Can artists object if a computerized versions of

their works are altered? Or are displayed with the artist’s name

removed? Do the digitized versions “count” as part of the “200

copies” that are allowed before a work of visual art ceases to be

such a work? If there exist 200 paper prints and one digital copy

of the print, does the work fall outside the definition of a “work of

visual art?”

Second, what about works that are created initially on a computer

and that perhaps exist only in computerized form? Can such

works constitute “works of visual art” as defined in the statute?

Can an image created on a computer be a “print?” Can a set of

computer instructions for creating a three-dimensional object be a

“sculpture?”

It might be thought that these questions would never arise. But

copyright’s history suggests that whenever the protection of

Can there be a

computerized “work

of visual art?”
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subject matter is defined in terms of particular technologies—

particular tangible fixations—the question of new forms of

fixation for the same general type of thing will almost inevitably

arise.

RAM copies and personal privacy

Many citizens worry about a loss of personal privacy because of

apparently easier and easier access to data that is computerized.

One individual obtained a copy of the state of Oregon’s motor

vehicle records and posted them on the Internet.207 This caused

much consternation among citizens, whose driving history,

though previously a “public record” in the legal sense, now

became a very “public record” in the factual sense. Other

examples abound; organizations exist to promote privacy208

specifically because of the concern that electronic records and

Internet access mean a loss to a society that puts any value on

“being left alone.”

 

207 See, e.g., Steven D. Jones, Oregon Should Keep DMV Records Public, THE

BUSINESS JOURNAL [of Oregon], September 16, 1996 (“In August, a computer

enthusiast posted on the Internet license records from Oregon's Department of

Motor Vehicles and touched off a firestorm. The names and addresses of drivers

have always been available to the public for the trouble of going to a DMV office

and paying a nominal fee. But posting the thousands of names where anyone

could easily see them triggered outrage from a population already offended by

privacy violations by everyone from credit agencies to telemarketers.”), available

from <http://cgi.amcity.com/portland/stories/091696/editorial2.html> as of

October 19, 1997. Oregon motor vehicle records are also available for purchase

on a CD-ROM titled Motive Power for Oregon, described as “a list of passenger

vehicles from the Oregon Department of Motor Vehicles. This includes pickups,

vans, and sport utility vehicles up to 1 ton capacity. You can select vehicles by

make, body style, and year, and by the owner's location (city, county, or zip

codes). You can use this information for direct mail or market research.” From

<http://www.computerassistance.com/> on October 19, 1997. Public concern

about driving records has also led to a federal law, the Driver’s Privacy

Protection Act of 1993, part of Pub. L. No. 103-322, Sept. 13, 1994, 108 Stat. 2099

(codified at 18 U.S.C. § 2721 et seq.)

208 The Electronic Privacy Information Center (EPIC),

<http://www.epic.org>, is one such organization, for example.
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On the surface, these privacy issues do not seem to raise copyright

issues. But privacy rights are relatively weak in the United States,

where the “default” legal rule is usually that there is no privacy

right.209 The privacy of credit,210 e-mail,211and education212 records,

for example, is a function of special laws enacted for specific

purposes. Absent those specific laws, those particular types of

records would not have to be kept private. Moreover, many

straightforward privacy causes of action may be preempted by

the Copyright Act itself.213 If one kept a secret and embarrassing

diary, for example, and a thief stole and published it, one might

have to sue the thief for copyright infringement.214 Even though

the heart of the complaint would be that one’s privacy had been

invaded, the fact that a “diary” is a literary work and that the

right being pursued was to stop the public distribution of that

literary work, might well mean that copyright’s preemption

 

209 See generally, Joel Reidenberg and Gamet-Pol, The Fundamental Role of

Privacy and Confidence in the Network, 30 WAKE FOREST L.REV. 105 (1995). Many

states recognize some form of privacy, but often it applies specifically to the

commercial use of one’s name or likeness. The requirements for recovering for

the disclosure of personal information are difficult to meet: typically, one must

prove that the disclosure of personal information not only was offensive to the

plaintiff, but would also be offensive to a person of ordinary sensibilities. See W.

PAGE KEETON at al., PROSSER AND KEETON ON TORTS 857 (5th ed. 1984). The fact that

a defendant had scoured the World Wide Web and assembled a dossier of one’s

likes, dislikes, habits, age, ages of family members, trips taken, etc. etc. would

almost certainly not be remediable under most states’ privacy law.

210 The Fair Credit Reporting Act, 15 USC 1681 (1992).

211 Electronic Communications Privacy Act, 18 USC 2510 et seq, 2710 et seq.

(1986).

212 Family Educational Right to Privacy Act (Buckley Amendment), 20 USC

1232g (1993).

213 See 17 U.S.C. § 301.

214 But see 1 NIMMER ON COPYRIGHT, supra note 91, § 1.01[B][1][c], stating in

regard to the tort of invasion of privacy that “inasmuch as the essence of the tort

does not lie in [reproduction, distribution, performance, or display], pre-emption

should not apply.”
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provision in section 301 governed and that the action would have

to be cast in the form of copyright infringement.215

At present, copyright does not apply to most “personal

information” because such information is usually factual and

hence cannot be considered an original work of authorship. So a

common situation of concern to some—the unauthorized

gathering of “dossiers” with lots of personal profiling—might not

be actionable on a privacy theory: privacy law might not make the

gathering unlawful, or copyright law might preempt a privacy

action in any event. Yet a copyright action would not likely be

able to redress the harm either, because at issue would be factual,

hence uncopyrightable, information.

On the other hand, computers depend on temporary copying in

memory to function at all.216 Any information that is extracted

automatically, i.e., by computer, from a given user will typically

cause some form of computer processing on that user’s computer.

For example, when a user browses the WWW with browser

software, the various sites browsed may be able to gather certain

information about that user. Frequently the “server” software

running at a site that provides access to Web pages can find out a

visiting user’s name and e-mail address by querying the user’s

browser. Commonly today, when this happens, it happens

without the user’s knowledge. But for it to happen, the user’s

copy of the browser software must perform some action.

If that action causes the making of a temporary copy in RAM of

something to which the user can assert an ownership claim—

whether by being an author, or, more likely, by being granted an

interest by contract—the user may be able to put forward a

copyright infringement theory against the site attempting to

 

215 One might well be successful in a copyright action on these facts, of

course.

216 See the discussion in the section titled RAM copies, at page 128.
“Pure” copyright issues





collect the personal information. The user would announce in

some fashion (presumably through the software itself) that any

attempt at collection of the user’s personal data was not

permitted. If a site nonetheless collected that data, the user would

claim that such a collection necessarily required the copying of

software into the user’s computer without authorization and

hence was a copyright violation.217

There might seem to be a problem with this theory in that for any

user to have standing to sue, the user must be a copyright

“owner”—one who possesses an exclusive copyright right.218 At

first blush, it might appear that a company selling millions of

copies of its software would be selling it on the basis of a nonexclusive license to each buyer. Users who are non-exclusive

licensees do not themselves have standing to sue.219

But things would not have to work that way. The seller might be

able to create an exclusive license for each individual buyer to use

 

217 To be sure, the matter can quickly become complicated. Browser software

is usually acquired from third parties—it is not the sort of thing that is easily

“home grown.” The producers of browser software are in a position, in other

words, to condition the use of their own software on a user’s giving up any right

to control data gathering in the way just outlined. But users might connect a

small piece of additional software to their browser in the form of a so-called

“plug-in” software package. This smaller plug-in might then have to be invoked

any time a visited site tried to collect personal data from the user’s browser. This

invocation of the plug-in software module, rather than the browser software

itself, might form the basis of the user’s claim of unauthorized use, and hence

form the basis of a copyright infringement claim for the gathering of personal

data. Of course, browser producers might then condition the use of their

browsers on the user’s agreement not to incorporate such plug-ins, etc. etc. etc.

But whether this escalating battle of conditions and permissions would actually

take place depends in part on whether browser producers have any interest in

preventing their browser users from being able to stop the collection of personal

data. If they do not have such an interest, then it seems quite possible that they

would permit the sort of claim here described.

218 17 U.S.C. § 501(b) provides that “The legal or beneficial owner of an

exclusive right under a copyright is entitled ... to institute an action for

infringement. ... .” Section 101 defines a “Copyright owner” as the owner of a

particular exclusive right.

219 By negative implication of 17 U.S.C. § 501(b).

Ownership, exclusive

rights
Tomorrow’s Issues





the software on that user’s particular machine. In that fashion,

each such buyer would have the exclusive rights to create

whatever copies on that particular user’s computer would be

necessary to cause personal data to be divulged to a datagathering Web site. The user would therefore be a copyright

“owner” of that exclusive right and be able to sue the gathering

Web site for copyright infringement when personal data was

collected.

RAM copies and junk e-mail and

other inflows

A widely held concern these days centers on “junk e-mail,” the

use of Internet e-mail for advertising purposes sent out in bulk

amounts.220 One recent controversy featured an Internet bulk emailer that routinely distributed over a million pieces of

advertising e-mail every day. America Online subscribers were

recipients of many of these e-mails. On behalf of its subscribers,

AOL instituted technical measures to prevent these messages

from being circulated. The company involved sued to enjoin AOL

from preventing it from doing so. Plaintiffs’ argument was that

AOL was a “state actor” and as such, fell under the First

Amendment’s prohibition of speech restrictions. The court found,

however, that AOL was not a state actor and that the First

Amendment accordingly did not apply to it.221

 

220 The author himself receives many such bulk e-mailings. Particularly

offensive to his personal sensibilities are messages announcing that one has been

subscribed to a distribution list. One must then take affirmative steps to be

removed from such a list. E.g., “Disclaimer: According to our resources the

enclosed information may be of interest to you. If you wish to be Removed and

receive no further issues simply send an E-mail message and type REMOVE in

the subject ...” E-mail to the author received on March 12, 1997. This particular

solicitation, a bulk mailing of various small “classified ads,” included

information on making money from the Internet by ... sending out bulk e-mail

through the company’s service:

(continued next page)
“Pure” copyright issues





This sort of situation may well arise again, perhaps in a context

that makes the First Amendment argument less apposite.222

Would copyright apply? It seems unlikely at first blush, but it is

far from impossible that it would. When an individual sends

another individual a piece of e-mail, various software functions

must be invoked by the recipient. An e-mail program of some

kind must run, for example. Even before the intended recipient’s

own e-mail program is started up to read the message, the OSPs

computers have somewhere along the line already run other

communications programs to connect to the Internet, to

acknowledge and adjust to various communications “protocols”

or standard ways of communicating with other computers, to

process incoming and outgoing queues of mail messages and the

like. In short, for anyone to receive an e-mail, including an

individual OSP subscriber, quite a number of computer programs

must be run.

Under current technology and case law interpretations, the

running of a computer program necessitates the making of a

“copy” of the program. Either a copy is made from a disk storage

system into RAM memory, or copies of the program residing in

 

Every minute of the day 7 new people log on-line. That’s 10,080

people per day! Is that unbelievable or what? Do you know what

that means? That’s 10,080 new business prospects per day! There

are over 55 MILLION prospects waiting for you right now! By the

end of the year in ‘97 there is expected to be over 120 MILLION

people on-line! As you can simply tell, there is no end to this. Let’s

face it. There are many large companies investing MILLIONS of

dollars per day on the Internet, and for one reason only. They know

this is where their business is going to be by the year 2000.

Marketing on-line can be a very difficult task, but it doesn’t have to

be. Here at [company name deleted], can make [sic] your On-Line

Marketing effort a successful experience for you.

221 See Cyber Promotions, Inc. V. America Online, Inc., Nos. 96-2486, 95-5213

(E.D. Penn. Nov. 4, 1996). See also a similar case, CompuServe v. Cyber

Promotions, Inc., (S.D. Ohio No. C2-96-1070 October 23, 1996), discussed in 1

BNA ELECT. INFO. POLICY & LAW 718 (Nov. 1, 1996).

222 For example, with junk mail to a government-owned site.
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RAM memory may be copied to other locations in that same

memory.223

That means that a sender of an e-mail is in some sense the

initiator of the running of a number of software programs on the

recipient’s computer(s). Suppose the recipient announced, ahead

of time, to the sender that the sender was not “authorized” to

cause the copies of the recipient’s e-mail and communications

programs to run and that accordingly, the sender had no right to

send any more e-mail. At least after that notification,224 would the

sender who ignores that announcement be a copyright infringer?

Other bodies of law might more straightforwardly apply to this

situation. A theory based by analogy on “trespass to land” might

make sense, as the author has argued elsewhere.225 But other

theories like this might be preempted by the Copyright Act, and if

not preempted, might be coupled with a copyright action in a

given case. In either of the latter instances, a court faced with the

copyright question will have to address it. Granted, having a

recipient of copyrighted subject matter (e-mail) sue the sender for

copyright infringement (based on the sender’s unauthorized

creation of “copies” of the recipient’s e-mail processing programs)

may seem odd. But cyberspace raises all sorts of odd new

possibilities, of which this is only one.

 

223 See the discussion in the section titled RAM copies, at page 128.

224 Before such notification, the situation would likely be interpreted as an

implied license or fair use.

225 See I. Trotter Hardy, The Ancient Doctrine of Trespass to Web Sites, 1996 J.

ONLINE L. art. 7, <http://www.wm.edu/law/publications/jol/hardy.html>.
“Pure” copyright issues





Hypertext links out

Does copyright apply, in a fashion similar to that just described,

to prevent unwanted hypertext links to one’s site? A recent case in

Scotland’s Shetland Islands suggests how a dispute might arise.

Rival online newspapers compete in the Shetlands, a community

of some 24,000 residents. One online paper copied headlines from

the other, and included hypertext links to the other paper as well.

That way readers of the first paper could, if they chose to “follow”

the links, also read the complete articles in the rival newspaper’s

online edition.

The paper whose headlines had been copied sued to stop both the

copying of the headlines, and the linking.226

Under U.S. law, a headline would likely be considered a “short

phrase or title” and hence not be copyrightable.227 So the question

in the U.S. would be whether the copying of headlines, along with

links or pointers to another’s site, constituted any sort of

copyright infringement. One way to address the issue is to

analogize this activity to that of in-line linking as discussed

elsewhere.228 Or it could be addressed as a possible violation of

the copyright owner’s right to “authorize.”229

But another way to analyze it is this: Whenever an individual user

clicks on a link and browses another site, the browsing causes

computer programs to execute on both the user’s computer and

 

226 See Scottish Court Orders Online Newspaper to Remove Links to Competitor’s

Web Site, 1 BNA ELECT. INFO. POLICY & LAW 723 (Nov. 1, 1996).

227 See U.S. Copyright Office, Circular Circular 34: Names, Titles, Short Phrases

Not Copyrightable (Jan. 19, 1996) (available from the Copyright Office World

Wide Web site, <http://lcweb.loc.gov/copyright/circs/circ34> as of February 1,

1998); see generally 1 NIMMER ON COPYRIGHT, supra note 91, § 2.16.

228 See the discussion of the “TotalNews” case in the section titled In-line

linking and framing, at page 171.

229 See the discussion of the authorization right in the section titled

Authorization and extra-territoriality, at page 178.
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the site being visited (as well as one or more intermediate sites).

Can the visited site declare that its computer programs are only

authorized for execution (being copied into RAM) by individuals

who reach the visited site by following certain links but not

others? Note that by expressing the infringement in terms of

copying/executing software, the visited site can avoid the issue of

“public” versus “private” performance: the infringement from

execution of software under the RAM-copy doctrine is based on

the making of a copy of the software, not on public performance

or display.

Changes in pricing structure

The Internet, as already noted,230 is likely to exhibit “divergence,”

with different service quality levels becoming available at

different prices. This change from today’s more generic access

arrangements does not seem directly related to copyright law. Yet

it may prove to be. Many people have a strong belief in the

Internet as not just a technology but as an institution—as a

fundamentally equal-access and hence very “democratic”231

institution. As the Internet becomes more specialized to

accommodate greater performance, it will in some senses become

less a technology of generic and hence “equal” access, and hence

may come to be perceived as increasingly less democratic.

That view in turn will likely lead to some public pressure to

“regain” the access that will have been “taken away” by the

evolving technologies of the Internet as it begins to differentiate in

services and prices. Some of this pressure may be brought to bear

on copyright law. The pressure on copyright law may take the

form of urging alterations in copyright’s protection to ensure

 

230 See the discussion in the section titled Economics and pricing, at page 57.

231 The author uses the term “democratic” because he suspects that that is

how many people will phrase it. Multiple levels of differing service qualities has

nothing to do with “democracy” in the pure political science sense, of course.
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greater access to information, as by expanding the exceptions to

copyright’s subject matter or by being reluctant to define its

subject matter differently from today. Or the pressure may take

the form of urging a greater scope for fair use inquiries, or in the

form of a desire to include the First Amendment more explicitly

in copyright controversies.

Computer-generated works

The idea that computers can generate works of authorship is not

new. Concerns about copyright and computer-generated works

have arisen and been discussed at some length.232 The issue is this:

Authorship involves an original creation,233 which implies a

human author. Humans can program computers to create, and the

resulting computer programs can clearly be original and

copyrightable; but what about the output of the computer

program? The traditional answer has been that a computer cannot

be a copyright “author” because computers are not human.234

Unfortunately, there has been very little in the way of definitive

judicial or legislative resolution of these ownership and rights

issues. That is largely because very few computer-generated

works have been the subject of litigation. Perhaps few works have

been the subject of litigation because few of them have had

enough merit to make their unauthorized copying or display or

performance a temptation to others. If that is true, then the picture

may soon change. Computers are getting better all the time. They

get faster, more powerful, and more sophisticated. If computer

 

232 See, e.g., NATIONAL COMMISSION ON NEW TECHNOLOGICAL USES OF

COPYRIGHTED WORKS, FINAL REPORT 43-46 (1978) [hereinafter CONTU REPORT]; see

generally I PAUL GOLDSTEIN, COPYRIGHT, supra note 108, § 2.2.2.

233 Feist Publ., Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).

234 See CONTU REPORT, supra note 232, at 45 (“The eligibility of any work for

protection by copyright depends not upon the device or devices used in its

creation, but rather upon the presence of at least minimal human creative effort

at the time the work is produced.").
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poetry today is not very good, then it will be better tomorrow.

Computer-generated art will be better in general, and it takes no

great stretch of the imagination to suppose that computergenerated works will before long be good enough that others will

want to copy or display or perform them.235

That means that the issue of ownership and rights in such works

will become a much more serious one in the future. Indeed, one

need not think in terms of Shakespeare-like quality for such

works to see the potential issues. Computers can draw maps, for

example. Maps can be copyrighted. Computer-generated maps

can be and are used on the World-Wide Web, where with today’s

technology they are easily found and copied.

What if a private company produces its own computer program

that accepts government-gathered, public domain satellite data,

and uses those data to create colorful, artistic maps, with colors

and symbols and an overall style that were “chosen” by the

computer itself? The generating computer program is of course

copyrighted, but is the map? And if copyrighted, is it owned by

the company? One might think the answer would be “yes, who

else would own it?” But copyright ownership hinges on the

exercise of creative expression. The product of creative human

expression on these facts was the original computer program, not

the map.

One might object here that the range of choices in colors, symbols,

and the like all had to be input into the computer in the first place

by a human programmer or designer, and hence would have been

“created” by that person at that time. But that is not necessarily

so. The computer might have been instructed to browse the

World-Wide Web to look for map examples. By so doing, it might

have collected a great deal of “knowledge” about maps and how

 

235 See CONTU REPORT, supra note 232, at 46 (“[T]he Commission recognizes

that the dynamics of computer science promise changes in the creation and use

of authors’ writings that cannot be predicted with any certainty.”).
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they are drawn from looking at other maps, whether of human or

machine origin. In short, the computer in question might have

“learned” its style of map making the way humans learn style: by

looking at the examples of others.

Would one still say that the expression embodied in the map in

question is authored by a human programmer? Perhaps, by

convention, one might choose to reach such a conclusion. But it

would be a matter of convention, not by any means a

straightforward application of current copyright principles.

Multiple authorship

Multiple authorship of copyrighted works is not a new idea.236

But often multiple authorship of a single work237 has been

accomplished by a handful of individuals: two authors of a song,

for example, or a team of three or four authors working on a

scholarly treatise. Motion pictures have typically required larger

groups—producers, directors, actors, composers, camera

operators, scenery designers, costume designers, sound

technicians, and so on—but typically all these individuals will be

employees in a contractual relationship with a single entity like a

movie studio. Contracts of employment and the Copyright Act’s

“works-made-for-hire” provision238 can clarify most of the

questions involved in allocating the copyright rights resulting

from such a large scale project.

 

236 The first United States copyright act expressly provided that “from and

after the passing of this act, the author and authors of any map, chart, book or

books ... shall have the sole right and liberty of printing, reprinting, publishing

and vending such map, chart, book or books ... .” 1 Stat. 124, 1st Cong., 2d Sess.,

c.15 (1790) (emphasis added).

237 Multiple authors of a compilation like an encyclopedia raise different

issues. Such works are typically not considered to be of “joint” authorship any

more than a collection of different short stories or poems is considered a “joint

work” among the various authors.

238 17 U.S.C. §§ 101 (definition of “work made for hire”) and 201(b).
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Outside of motion pictures, large groups of multiple authors do

not seem a common phenomenon. This seems likely to be the

result of the difficulty and expense of bringing together a larger

number of authors and coordinating their efforts.

One thing the Internet seems very likely to bring—indeed,

already brings—is lower communication costs. Lower

communication costs among potential authors mean that the

barriers to the creation of multiply-authored works will fall, and

with that fall we can expect to see a substantial increase in the

number and type of works that have multiple authors.239

In a sense, the issue of multiple authorship will still not be “new.”

But whenever the frequency of an activity like multiple

authorship increases, a sufficiently large increase in quantity may

eventually lead to a qualitative difference. With markedly lower

communications costs, it is likely that markedly more and perhaps

different interactions among multiple authors will take place. For

example, it is easy with the Internet today to ask a thousand or a

million people to participate over a network in authoring a

copyrightable work—something that though theoretically

possible even in, say, the 18th century, would never earlier have

been contemplated. As the Office of Technology Assessment once

observed, “In a world where there are many authors of one work

... a law based on the concepts of originality and authorship may

become too unwieldy to administer.”240

 

239 See generally Jane C. Ginsburg, Putting Cars on the “Information

Superhighway”: Authors, Exploiters, and Copyright in Cyberspace, 95 COLUM. L. REV.

1466, 1469-1472 (1995).

240 OFFICE OF TECHNOLOGY ASSESSMENT, INTELLECTUAL PROPERTY RIGHTS IN AN

AGE OF ELECTRONICS AND INFORMATION 6 (1986).
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Libraries, archives, search sites

The Internet is full of archives of old e-mail and newsgroups

articles. The creation and upkeep of these archives requires more

disk space and perseverance on the part of the archive owner than

it does anything else—with automated indexing systems widely

available, the talents of a trained archivist or indexing

professional are not used. Yet the resulting archives can be very

helpful: many Internet users experience the phenomenon of

remembering a message they saw from a month or two ago that

contained information they now want. Being able quickly to go an

archive site and pull up the message is a great convenience and

time-saver.

On the other hand, archives exist by making copies of works that

for the most part are copyrighted: e-mail messages. Most of these

archives are available to be searched at no charge. My own

experience with asking members of Internet discussions how they

react to having their “works” copied and stored leads to several

conclusions. First, many Internet participants are aware of the

archives’ existence and do not object to having their messages

copied and stored in this searchable fashion. Second, if the

archives began charging for their services, many, though certainly

not all, of those affected would feel differently about the matter.

Third, many people are not aware that their old e-mail messages

may be residing somewhere on the Internet and can be found by

anyone the world over.241

 

241 The author once searched on a search site for references to his name and

found a publicly-accessible archive site that held at least one copy of a private email sent only to one other person and never given to or authorized for use by

the archive site. The author does not know how this happened. Unrelated to this

incident, the author once came across a comment on the Web from which

perhaps historians and androids would take more comfort than others: “Our

web-crawling robot may visit you soon!” (from the Internet Archive site, as of

December 5, 1996, <http://www.archive.org/>).
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At least one site on the Internet has undertaken the ambitious

project of archiving the entire World Wide Web. The Internet

Archive242 has a computer connected to the Web by a high-speed

connection that continually pulls in copies of Web sites twentyfour hours a day, every day. The organization states its mission

this way:

Internet Archive is gathering, storing, and

providing access to public materials on the

Internet such as the World Wide Web,

Netnews, and downloadable software. The

Archive will provide historians, researchers,

scholars, and others access to this vast

collection of data (reaching ten terabytes), and

ensure the longevity of the information.243

And the archive is growing, like the World Wide Web, at a

prodigious rate. Here is their growth chart:

Figure 14: Information gathered and stored at the Iinternet Archives,

 from <http://www.archive.org> on March 14, 1997.

 

242 From <http://www.archive.org> on December 5, 1996.

243 From <http://www.archive.org> on December 5, 1996.
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Statutory provisions for archives

Archives are explicitly mentioned in the Copyright Act: section

108 deals with the special issues of both libraries and archives.

The provision was adopted primarily for what we think of as

libraries and archives in the physical sense: a public library of

books and magazines, a university library of books and scholarly

journals, etc. And, as is so common with the Copyright Act, the

rights and responsibilities defined in section 108 are primarily

aimed at just those sorts of tangible materials: books, journals, and

magazines. The rules of section 108 easily apply to such common

activities as a library’s making a copy of a magazine article for a

patron; copying a chapter from a book for inter-library loan; or

providing unsupervised photocopy machines for patron use.

 “Libraries and archives” in tomorrow’s world, though, will often

be the type of electronic sources just described. What makes an

on-line library valuable is that its holdings can be searched and

read from a distance, over the Internet. When that happens,

though, words in the statute like “make a single copy” begin to

make less sense than they did for tangible books and journals.

Does a remote user browsing the library “make a copy” of the

materials? In one sense, this is no different from the general

question of copyright, copying, and the Internet. It re-invokes the

idea of “RAM copies” and their copyright significance, as

discussed elsewhere in this report. 244

But section 108 is much more specific than section 102 or 106, and

hence will make judicial interpretation of the provision less

flexible than is the case with those more general provisions. For

example, section 108 (b) invokes a highly problematical concept:

that to be authorized, certain copies must be in “facsimile” form.

 

244 See the discussion in the section titled RAM copies, at page 128.
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Facsimile copies of printed text

In addition to the issue of whether “providing access” to an online archive is the same as “making a copy,” courts or the

Copyright Office will still have to face issues like this: is the

scanning of a page of text that produces a digital image the

making of a “facsimile” copy? The legislative history of section

108 makes clear that “facsimile copies” do not include converting

printed text into full-text-searchable databases like Lexis or

WestLaw.245 But it is unclear whether creating a computerized,

digital image of a page, just as if it were the digital image of a

drawing or photograph, constitutes a “facsimile” or not.246

The answer may turn on the purpose for which the limitation to

“facsimile” copies was adopted. Typically limitations like this

represent an implicit limitation on the amount of harm to a

publisher’s market that can occur from the permitted copying. We

know at least that Congress was concerned that “systematic

copying” not be allowed to serve “as a substitute for subscription

to or purchase” of a work.247 So it is reasonable to conclude that

the concern over facsimile copying was similar: Congress most

likely wanted to confine copies to facsimile form to ensure that an

entire new market—for online full-text retrieval—did not arise to

 

245 The legislative history of section 108 explains that “Under this exemption,

for example, a repository could make photocopies of manuscripts by microfilm

or electrostatic process, but could not reproduce the work in ‘machine-readable’

language for storage in an information system.” HOUSE REPORT at 75, reprinted in

1976 U.S.C.C.A.N. 5689.

246 See also WHITE PAPER supra note 90, at 86, which concludes that section

108’s “exemption does not allow for replacement of a published work by

reproduction in digital form (at least when the original copy of the published work

was not in digital form).” (emphasis added). Senator Ashcroft introduced a bill in

late 1997 that would, among other changes to the Copyright Act, strike the

references in section 108 to “facsimile” copies, leaving the surrounding clauses

equally applicable to digital and non-digital works. See Digital Copyright

Clarification and Technology Education Act of 1997, S. 1146, 105th Cong., § 203

September 3, 1997.

247 17 U.S.C. § 108(g)(2). See also HOUSE REPORT at 77-78.
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jeopardize the production of the information in the first place. If

the Act allowed a library or archive to produce computerreadable text from a printed text and to offer remote access to that

computer-readable version, the result might substantially reduce

sales of the printed original. Reduced sales would mean a reduced

incentive for the publisher to continue to produce the printed

texts in the first place. A limitation on libraries and archives to the

making of facsimile copies helps to ensure that no such reduction

in incentives occur.

If that is so, then how would Congress or courts view the making

of digital “facsimile” copies of printed originals? The likely

answer is that Congress would have intended to allow libraries or

archives to make digital facsimile copies when doing so would

not substantially reduce the incentive of the original publisher to

produce the published material in the first place. How much a

publisher’s incentives to publish would be reduced depends in

part on how close a substitute a digital facsimile copy is for the

original printed text. The more easily the copy can substitute for

the original, the less likely it is that Congress would have

intended to allow the copy. The less it can substitute, the more

likely that Congress would have intended to allow it.

Congress evidently thought that allowing machine-readable text

versions would constitute too much of a substitute for printed

materials; that seems to be the reason for the current limitations

on reproduction in machine-readable format in section 108. So

one relevant question is this: how easy is it to make a machinereadable version of the text from a digital facsimile? If it is very

easy to go from printed page, to digital facsimile copy, to

machine-readable copy, then perhaps Congress would not have

wanted to allow such copies; if it is very difficult or costly, then

perhaps Congress would have wanted to allow them.

The answer to that question in turn depends on the current state

of technology. Technology can facilitate copying, and technology

can impede copying as well. The situation today can change
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tomorrow—that is one reason the Copyright Office commissioned

this study and Report. Today, the answer to the question “how

easy is it to turn a digital facsimile copy into machine-readable

form” is simple: it is very easy. The necessary technology is

widely available and inexpensive; it is that of Optical Character

Recognition, or “OCR.”

OCR is often thought to apply only to converting an original

printed page into machine-readable text, but in fact, when an

OCR “scanner” examines a page of printed text, it does so by first

creating a digital facsimile copy in the associated computer’s

memory. That is precisely what the process of “scanning” entails:

the creation of a digital facsimile copy. The OCR software then

examines the digital facsimile copy and converts that image into a

machine-readable form. If one begins this process with a digital

facsimile copy already, one simply saves the step of scanning.

Indeed, this is how computers can “read” incoming fax

transmissions to produce a machine-readable version of a fax.

In short, unless the technology arises to prevent OCR conversion

of digital facsimile copies, it will be quite easy to produce

machine-readable texts from such facsimiles. This fact in turn

argues that Congress would not want section 108 to allow a

library or archive to create digital facsimile copies of printed texts.

To be sure, this conclusion is based on the assumption that

Congress was concerned about the ease of substituting certain

copies for the original. To the extent that other policy judgments

were or become a factor, Congress might well prefer a different

outcome. But in the meantime, the issue may arise in litigation

under the statute’s current wording, and it will pose

interpretative problems for the court that must deal with it.
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Facsimile copies of digital text

The previous analysis has dealt with digital facsimile copies

(graphic images) of printed pages. Another issue is whether

libraries and archives can rely on section 108 to create digital

facsimile copies of texts that were originally in digital, not

printed, form themselves. Here the analysis divides into two

parts. First, what about digital originals that are only images

(pictures) of text, containing no directly machine-readable text at

all? Second, what about digital originals that are in machinereadable format to start with; can a library create a “facsimile”

copy of such an original? What would a “facsimile copy” consist

of?

The first question can be analyzed just like the issue of facsimile

copies of printed originals. To the extent that Congress was

concerned that machine-readable versions of texts would

constitute too much of a substitute for printed versions, it would

likely reach the same conclusion for digital images of text.

Namely, if OCR can quickly turn copies of such originals into

machine-readable text, then Congress would probably want to

prevent that outcome by disallowing library copying of such

works for patrons under section 108. Conversely, if a digital

image of text were formatted or prepared in such a way that it

made OCR creation of machine-readable formats difficult or

costly, then Congress probably intended to allow libraries to

make such copies for patrons.

The second question is more difficult. What does section 108

imply for a library that holds an originally machine-readable

version of textual materials? Is it possible to make a “facsimile

copy” of such a work? That depends on what Congress intended

by the word “facsimile.” If “facsimile” means “in the same form

as the original,” then of course the answer is yes: one can create

an identical copy of digital, machine-readable texts; the result is a

copy in the same form as the original. Hence it would be a

“facsimile copy.”
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On the other hand, it is possible that the word “facsimile” does

not mean “in the same form as the original,” but instead means

something more like “analog format.” That is, Congress may have

used “facsimile” to mean precisely the opposite of “in the form of

machine-readable text.”

Obviously, each of these interpretations leads to completely

different conclusions about section 108 and library copying of

originally machine-readable texts. If “facsimile” means “same

form as original,” then libraries are allowed under section 108 to

create copies of machine-readable originals. If “facsimile” means

the opposite of “machine-readable,” then of course libraries are

not so allowed.

Search sites as reproductions

The Internet is full of sites that exist to provide an index to the rest

of the World Wide Web. These sites—like Lycos, Magellan,

AltaVista, etc.—have been mentioned before.248 They are different

from archives in that they attempt to create an index to other sites,

not to provide a backup copy of the other sites.249

Yet, the search sites operate by extracting words from other World

Wide Web sites and storing them in a searchable database. The

search sites can also, if they choose to do so, store information in

the index about the relative position of each word extracted from

another Web site. In other words, it is possible to create an index

much like Lexis or WestLaw: one can ask to find all Web sites or

 

248 See the discussion in the section titled Search engines, at page 44.

249 It is possible to combine the functions of archiving and indexing, of

course. See Rajiv Chandrasekaran, Seeing the Sites On a Custom Tour,

WASHINGTON POST, Thursday, September 4, 1997, at E1 (the Internet Archive [see

text at note 242, supra] has spun off a service called “Alexa,” that provides

sophisticated indexing to the World Wide Web through the linking of related

words and phrases).
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pages in which the word “car” appears within five words of

“boat.”

If an index is that detailed, it can be used to recreate the full text

of each indexed site (though not the graphic images or sounds or

video or other aspects of Web pages). Or to put it another way,

the storage medium containing such an index would constitute a

“material object[] ... in which a work [viz., textual or largely

textual Web pages] is fixed ... and from which the work can be

perceived, reproduced, or otherwise communicated, either

directly or with the aid of a machine or device,”250 and hence

would constitute a “copy” of the Web pages it indexed.

In short, search sites raise some of the same issues that Internet

archives raise.

A practical convention has arisen on the Internet that provides a

means for Web site owners to specify that they do not want their

sites or pages to be indexed. If the owner includes a file with a

special name and contents251 in the same area of computer storage

 

250 17 U.S.C. § 101.

251 The software that search sites use to compile indexes is often known as a

“robot.” The file name that by convention causes the indexing not to take place

for a given Web page is “ROBOT.TXT.” The convention is not widely used. See

CHARLES P. KOLLAR, JOHN R. R. LEAVITT, AND MICHAEL MAULDIN, ROBOT

EXCLUSION STANDARD REVISITED (June 2, 1996), as of March 25, 1997,

<http://www.kollar.com/robots.html> (“It has been pointed out in some

discussion on the /robots.txt mailing list that the current standard is not widely

in use. Louis Monier, in a posting to this list, reckoned that only about 5% of all

sites visited by his robot at Alta Vista at that time had a non-empty /robots.txt

files. This is supported by information gathered from recent spidering logs at

Lycos. We found that only 6% of all requests for the /robots.txt files resulted in a

status code 200. There are any number of reasons why this may be: the people

who set up web servers simply don't know about the standard, the people who

set up the web servers are not the same people who control the content of the

web site, and there is little effective communication between them, this number

reflects the number of the sites on the web that really need to exclude

information from robots.”). See also, e.g., the discussion of “robots” files in

relation to a particular search engine, the one at the Internet Archive,

<http://www.archive.org/webmasters.html>, as of March 3, 1998.
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as the Web pages, most searching software will not include the

site in an index. Presently, the technique is voluntary: the special

step does not disable the searching software, but instead simply

indicates the owner’s preference. The owners of most indexing

software in practice program their software to comport with the

convention, but again, this is simply a widely followed

convention, not something inherent in Internet technology. Other

proposed Internet standards are more sophisticated, allowing a

Web site owner to specify whether a given page may or may not

be indexed, whether subsequent pages linked from the current

page may be indexed, and so on.252 These proposals might

continue to be voluntary conventions, or they might take on a

stronger role as required technical standards.

If we assume for a moment that the index of a search site either

does, or at least under some circumstances, can constitute an

infringing253 “copy” of the sites indexed, an interesting issue

arises. So far, the techniques and proposals for avoiding indexing

call for affirmative steps by Web site owners. In effect, they create a

presumption that one’s Web site may be indexed, unless one takes

steps to prevent it. As affirmative steps, the techniques suggest

the issue of “formalities” under the Berne Convention.254 Since the

 

252 See, e.g., MICHAEL MAULDIN AND MICHAEL SCHWARTZ (for the World Wide

Web Consortium), SPIDERING BOF REPORT, available as of March 25, 1997,

<http://www.w3.org/pub/WWW/Search/9605-IndexingWorkshop/ReportOutcomes/Spidering.txt>.

253 An index might be deemed a “fair use” of the indexed sites, of course, or

some other feature of the law might result in a finding that indexes are not

infringing.

254 Berne Convention For The Protection Of Literary And Artistic Works, Paris Act

of 1971 [hereinafter Berne Convention], ART. 5(2) (“The enjoyment and the exercise

of these rights shall not be subject to any formality”), S. TREATY DOC. NO. 27,

100th Cong., 1st Sess. (1989), reprinted in 3 SOURCES OF INTERNATIONAL UNIFORM

LAW E325 (Konrad Zweigert & Jan Kropholler, eds. 1973), and the World

Intellectual Property’s Web site, <http://www.wipo.org>, specifically at

<http://www.wipo.org/eng/iplex/wo_ber0_.htm> as of February 4, 1998.
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United States joined the Berne Convention 255 (March 1, 1989),

formalities in our copyright law are not permitted.

The issue yet to be addressed, therefore, is whether judicial

enforcement of a requirement that Web sites affirmatively

indicate a desire not to be copied constitutes a “formality” and is

hence disallowed under Berne.

The argument that it would be a “formality” is straightforward:

copyright owners (of Web sites) must take an affirmative step to

retain copyright protection; such a step is obviously a formality.

Though Berne does not require member countries to establish all

possible authors’ rights, it does specifically guarantee the right to

“reproduce” copies, which is at issue here.

A counter-argument is also possible, however. The language of

the Convention’s Article 5(2) provides that “[t]he enjoyment and

exercise of these rights shall not be subject to any formality.”256

Possibly, the rule prohibiting formalities applies to any formal

steps required to retain “copyright” rights in some aggregate

sense. In the case of Web search sites (and archives), the issue is

whether the copyright owner must take formal steps to preserve

one particular copyright right—the right not to be copied in the form

of a comprehensive textual index—out of a larger bundle of rights

that are otherwise preserved without formalities. Put another

way, if Berne disallows the use of formalities to condition the

existence of “copyright rights,” does it also disallow the use of

formalities to condition the existence of a single right out of

many?

 

255 Berne Convention Implementation Act of 1988, 102 Stat. 2853-2861 (“An

Act to amend title 17, United States Code, to implement the Berne Convention

for the Protection of Literary and Artistic Works, as revised at Paris on July 24,

1971, and for other purposes.”)

256 Berne Convention, supra note 254, at art. 5(2).
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Metered use

The use of digital information can be monitored by a computer.

That is, given that the information is “computerized” in the first

place, it requires a computer to display or perform or copy or

otherwise make use of it. If a computer is necessarily controlling

the use of the information, the computer can be programmed to

monitor that use.257

Although “monitoring use” sounds Big Brotherish, the term is

used here only in the context of clocking or counting access,

where a typical reason for doing so is to charge a fee for the

access. And if a fee is to be charged, then absent some statutory

restriction to the contrary, the charging party can choose on what

basis the charge is to be levied: perhaps per view, or per

“screenful,” or per minute, or for that matter, per second or per

word displayed. To be sure, technology today does not make it

feasible to account for each nanosecond or each bit examined; but

that is a function of whatever the current technology is. Perhaps

tomorrow even such a detailed level of resource accounting might

be practical.

If “nanoseconds” and “bits” are not worth monitoring today, it

does seem plain that computers can at least monitor something

much more finely grained than, say, a “two-hundred page book.”

Indeed, a computerized World Wide Web site can easily monitor

the “pages” or screenfuls of text or the number of images or the

seconds of animation that a user consumes at a given Web site.

People speak of this phenomenon as “finely-grained metering” or

“metered usage” or in similar terms. Of course, metering by time

or pages is not at all unknown in today’s world, or even in the

 

257 Of course, a computer that is controlling information will not necessarily

be so programmed. One can acquire digital materials for storage on one’s own

personal computer, for example, without that computer being set up to perform

monitoring of what the user does.

“Fine grained

metering”
“Pure” copyright issues





past. Time metering has been used for years with large mainframe

systems as exemplified by Lexis, WestLaw, and other suppliers of

commercial information from a centralized information

“warehouse.” Other examples of metering occur in many parts of

the economy besides in the information business: per-mile

charges for rental cars; per day charges for video rentals; per hour

charges for legal services; per day charges for hotel stays; per hour

charges for renting certain power tools; per page charges for

copying or printing at a copy shop; and so on.

The choice of describing something as “metered” or “not

metered” is partly a semantic issue or a matter of common

practice, and not at all the black-and-white distinction that it

appears to be at first sight. One could argue, for example, that

books sold in bookstores are “metered” for pricing purposes. The

metering does not take place with respect to pages read or

seconds consumed in reading, but rather with respect to “number

of books bought.” That is, a buyer is charged on a “per book”

basis, which itself is a form of metering. Similarly, a per-screendisplayed charge for viewing information on a computer screen

can be seen as not metered: after all, the reader is free to read and

re-read a given screenful as many times as desired.

But as a matter of customary practice today, many people tend to

think of “books” as representing information access that is not

metered; they tend to think of digital information that can be

accessed only with a per page or per second charge as

representing the contrasting regime of “metering.” Despite the

fact that this terminology can be gainsaid, as noted, we can accept

this popular characterization for purposes of the following

discussion.

One might be surprised to discover that the idea of paying for

more information in the future on a metered basis (usually with

respect to individual pages or seconds) is at all controversial. But

it is. Examining the issue in the light of the differing perspectives

on “promoting progress” and “balancing” that have been

Metering is

a semantic issue

Metering is

controversial
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delineated above will help to show why the controversy arises,

and precisely what it is that is controversial about “metered

usage” pricing.

The resistance to metered pricing seems is based on the fact that

current copyright law, especially the parts that deal with the first

sale doctrine258 and fair use,259 is implicitly premised on

assumptions about the relevant facts260—in particular, the typical

manner in which information is accessed.

The first sale and fair use doctrines assume—again, according to

one view of copyright—that much information is in the form of

books and other printed material. In regard to books, the first sale

doctrine makes perfect sense—indeed, the doctrine was almost

“designed” for books. A book is a tangible object that can easily

be lent, resold, discarded, and so on. The first sale doctrine is all

about what a buyer of a tangible object like a book can do with

that object in just those ways.

The scope of fair use for books is not so well defined, but of

course that is a product of the fair use doctrine, not the nature of

books. More to the point, the scope of fair use with regard to

books is likely to be about as extensive as it will be for anything.

Books are generally published and distributed without any faceto-face contact with the book buyer, making contracts over minor

or temporary uses impractical; books are certainly used widely in

education and for scholarship; books are frequently copied in

small amounts and less commonly copied in their entirety; and so

on. The scope of fair use for books may therefore be quite large

without causing any significant detriment to the copyright owner.

 

258 17 U.S.C. § 109.

259 17 U.S.C. § 107.

260 See the discussion in the section titled Change in underlying

assumptions, at page 155.
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Digital works seem more ill-at-ease with a first sale doctrine than

books simply because they are not (usually) tangible objects that

one can hand over to a friend or throw in a trash can. Digital

works may also lose some of the attributes of books that make the

latter so well suited to many fair uses. For example, digital works

may come from a producer who, thanks to e-mail and the WWW,

is quite easy and cheap to contact. This may argue for a lesser

scope of fair use in practice for such works.261

The crucial point, by this argument, is that in an earlier day, the

scope of first sale and fair use were based on the assumption that

most information is in the form of books and tangible materials.

That is, the scope of first sale and fair use were assumed by

Congress to be large because when adopted, they were large. If

digital technologies have the effect of shrinking the number of

works for which first sale or fair use makes sense, goes the

argument, then Congress should reconsider the scope and

principles that underlie those doctrines and change them to

preserve the same broad scope of first sale and fair use that we

have presently with print technologies. Note that the principle

undergirding this argument is the belief that the proper balance

between authors and users is a matter for Congress to establish,

and the belief that Congress has done so in past enactments.

Those who tend not to accept this argument tend to believe that

the proper balance of interests is not to be achieved by Congress,

but rather by individuals, on a transaction-by-transaction basis. If

one adheres to this view, one concludes that whatever balance of

interests is currently reflected in typical copyright transactions is

much more the product of business practicalities and the current

state of technology than it is of any conscious policy of Congress.

 

261 See generally Wendy Gordon, Fair Use as Market Failure: A Structural and

Economic Analysis of the Betamax Case and its Predecessors, 82 COLUM. L.REV. 1600

(1982).

Contrary view
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Congress’s conscious policy would have been to establish the

general framework of copyright rights.

Thus, according to this different view, if metered pricing

establishes a system of information access that changes the scope

of fair use or makes the first sale doctrine less appropriate, those

changes are not objectionable. Rather, they simply mean that

changes in technology may bring about new realities. Moreover, if

users want to continue to buy books for which they can exercise

their first sale rights, the argument goes, they are free to do so. If

enough people continue to prefer books to electronic access—

perhaps in part because of the wider scope of first sale and fair

use with books—then publishers will be happy to continue to

supply books.

Notice that the principle undergirding this argument is the belief

that the proper balance between authors and users is a matter for

private parties, in individual transactions between authors and

users, to establish.

Filtering

Concerns over the content of the Internet often center on

pornography and the protection of children from material that

their parents consider inappropriate. These concerns have given

rise to an array of “filtering” technologies. Filtering technologies,

or “filters,” consist of computer software that screens all material

received over computer communications lines for specified

criteria. The criteria might be the presence of certain key words; or

the presence or absence of certain previously identified Internet

addresses; or anything else that the developers of filters might

design. The point of filters, of course, is to screen out unwanted

Internet information, or to screen “in” (i.e., only permit) desired

information.

Though filters originally were conceived as a defense against

pornography, they can also be used for other purposes. One such
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purpose is the selection of content on the basis of a user’s interest

in order to create “personalized newspapers.” Another is the

elimination of advertising.

Filters may also raise copyright issues that are roughly similar to

those raised by framing technology.

Take this hypothetical example. Suppose there were a Web site,

alpha.org, that was a heavily visited site for general information; it

contained no pornography or material that was in any way

objectionable. It did, however, contain advertisements. These

advertisements were carefully located on the various pages of the

alpha.com site in ways calculated to catch the eye and attention of

site visitors.

Suppose a filtering company sells a software filter that can be set

to recognize Web site advertisements and either delete them

entirely—causing the other elements on the page to slide up and

fill in the gaps—or replace them either with blanks or pictures or

other materials unrelated to the deleted ads. A user buys this

filtering software and uses it to eliminate the advertisements

when viewing the alpha.com site.

Web pages like those at the hypothetical alpha.com are

copyrightable subject matter: they contain literary works in the

form of textual material and often contain pictorial or graphic

works in the form of images, photographs, drawings, and the like.

The filtering software in this example is altering the Web pages

that it filters. Does this alteration amount to the unauthorized

preparation of a derivative work?262 If so, is the preparation

 

262 17 U.S.C. § 106(2) gives copyright owners the exclusive right to prepare

“derivative works”, defined in § 101 as

(continued next page)
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nevertheless a fair use by the individual user? Is the producer of

the filtering software liable under any theories of direct or indirect

infringement liability?263

 

work[s] based upon one or more preexisting works, such as a

translation, musical arrangement, dramatization, fictionalization,

motion picture version, sound recording, art reproduction,

abridgment, condensation, or any other form in which a work may

be recast, transformed, or adapted. A work consisting of editorial

revisions, annotations, elaborations, or other modifications which,

as a whole, represent an original work of authorship, is a

“derivative work.”

263 Direct and indirect, or “secondary,” liability are discussed in the section

titled Intermediaries’ liability, at page 133.
Copyright and other laws





5.3 Copyright and other laws

Fundamentally different technologies are often governed by

fundamentally different sets of legal principles. Until fairly

recently, information technologies have differed from each other

in fundamental ways and hence have been governed by different

legal principles. Books, to take one example, are quite different

from radio broadcasts in both their underlying technologies

(printing press and paper versus broadcasting over the radiofrequency spectrum) and in the way the different industries are

structured as businesses. The book business depends on the

production and distribution of tangible objects that are sold on a

per-unit basis. The radio business depends on delivering a service

at no charge to the end user, but with revenue earned from

advertising.

Not surprisingly, the legal principles that govern these two

industries and technologies are different as well: the book

business is largely governed by general copyright principles. The

radio business is subject to copyright principles (radio programs

and music are copyrightable subject matter), but is even more

strongly affected by the regulations of the Federal

Communications Commission, regulations designed to promote

the FCC’s determination of public interest.

Today we witness the phenomenon of technological

“convergence”—the fact that many forms of communication, once

quite separate in their technological origins, are becoming simply

different facets of a single stream of digitized information bits.

Both “books” and “radio” can today be delivered over the same

digital networks such as the Internet.

Motion pictures and phonograph records also illustrate the point.

Motion pictures originated with celluloid film; phonograph

records originated on wax cylinders and wax disks. The idea of
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putting sound on motion pictures took years to develop, and

when it was done, it was done with what were in effect still

separate technologies, but that coexisted on the same strip of

celluloid film.

Today, computers can easily turn motion pictures and sound and

radio and television and books into a stream of digital impulses,

all of which can be transmitted and stored using the same media.

To be sure, different computer programs may be required to “play

back” these different digital streams, so in this sense text, sound,

motion pictures, etc. still remain different technologies at some

level. But much of the legal regime that has surrounded different

technologies in the past has dealt with other differences than

these: differences between the printed press and the broadcast

press, for example, have been based on assumptions of limited

bandwidth available to the latter.264 “Limited bandwidth” is no

longer a concept that makes sense applied to digital streams of

text and audio transmitted over the Internet.265

The phenomenon of convergence implies that formerly

independent bodies of law like copyright and communications

law may no longer operate so independently. This section

addresses several such possibilities, some perhaps more obvious

(the relation of copyright law to communications law, e.g.), than

others (the relation of copyright law to bailment law, e.g.).

 

264 Compare Miami Herald v. Tornillo, 418 U.S. 241 (1974) with Red Lion

Broadcasting Co. v. FCC, 395 U.S. 367 (1969) and FCC v. Pacifica Foundation,

438 U.S. 726 (1978).

265 Reno v. American Civil Liberties Union, 521 U.S. 1, 46, (1997) (“Finally,

unlike the conditions that prevailed when Congress first authorized regulation

of the broadcast spectrum, the Internet can hardly be considered a ‘scarce’

expressive commodity. It provides relatively unlimited, low-cost capacity for

communication of all kinds. The Government estimates that ‘[a]s many as 40

million people use the Internet today, and that figure is expected to grow to 200

million by 1999.’”).
Copyright and other laws





Copyright and communications law

Television and cable broadcasting are governed by a complex

combination of communications regulations under the oversight

of the FCC, and copyright law, the latter mostly under sections

111 and 119 of the Copyright Act. This system, though

complicated, is in place and working. Rights in content are

generally copyright rights; the right to broadcast or transmit a

television program is, however, generally controlled as a matter of

communications law.

The issues here arise for familiar reasons: detailed provisions of

the statute were enacted in response to a given technology and

the industry that made use of it; when the technology and the

industry players evolve, it becomes increasingly difficult to

determine Congress’s intent. At times, Congress makes statutory

amendments; at times courts or agencies are forced to interpret

provisions written for an earlier day. In the case of

communications, section 111 of the Copyright Act was designed

for television and cable TV as it existed in the 1970’s. Judicial

interpretations have extended the concepts in some instances. In

1984, for example, a court determined that passive satellite

carriers were to be given the same treatment as cable systems.266

Statutory amendments have also been relied on to keep pace with

television technology: in 1994, for example, the definition of

“cable system” was extended to include carriage by

“microwave.”267 Administrative regulations have also been used,

 

266 Hubbard Broadcasting, Inc. v Southern Satellite Systems, Inc., 593

F. Supp. 808 (DC Minn 1984), affd 777 F.2d 393 (8th Cir. 1985), cert denied, 479 U.S.

1005 (1986), reh. denied, 479 U.S. 1070 (1987), reh. denied, 488 U.S. 961 (1988).

267 Satellite Home Viewer Act of 1994, Pub. L. No. 103-369 (codified at 17

U.S.C. § 111).
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as when the Copyright Office provided clarification of the

definition of “cable system.”268

For the most part, though, sections 111 and 119 are premised on a

particular industry structure: broadcast television stations

regulated by the FCC, whose signals are picked up and retransmitted by cable or satellite carriers. The Internet also carries

video signals, however, and this fact alters the underlying

premises of the Copyright Act provisions.

Suppose an enterprising individual decides to pick up a television

broadcast signal on an ordinary television, digitize it, and send it

back out over the Internet. This would not be particularly hard or

expensive to do today, and certainly will be easier and cheaper

tomorrow. The individual would be surprised to learn that he or

she might have become a “cable system” by definition:

A “cable system” is a facility, located in any

State, Territory, Trust Territory, or Possession,

that in whole or in part receives signals

transmitted or programs broadcast by one or

more television broadcast stations licensed by

the Federal Communications Commission, and

makes secondary transmissions of such signals

or programs by wires, cables, microwave, or

other communications channels to subscribing

members of the public who pay for such

service.269

This provision might be interpreted such that “subscribing

members of the public” meant “cable subscribers” in today’s

 

268 62 Fed. Reg. 18,705 – 18,710 (1997) (to be codified at 37 C.F.R. § 201) (“The

Copyright Office of the Library of Congress is adopting final regulations

recognizing that satellite master antenna television (SMATV) systems are eligible

as cable systems under section 111 of the Copyright Act to obtain a compulsory

license to retransmit broadcast signals to their subscribers. The regulations

provide guidance as to who should file and how to report distant signals.”).

269 Copyright Act, § 111(f).
Copyright and other laws





sense; in that case, perhaps “Internet subscribers” would be

considered not to fit the definition, and therefore the individual

re-transmitter would not be a “cable system.”

On the other hand, what about the Online Service Provider that

carried the individual’s re-transmission? Such an entity would

appear to “receive[] signals transmitted or programs broadcast by

one or more television broadcast stations licensed by the Federal

Communications Commission, and make[] secondary

transmissions of such signals or programs.” The OSP also receives

subscription fees for its services. Would that mean that the OSP

must make a payment for a compulsory license, just as existing

cable systems are required to pay under section 111(d)(1)(B)?270

Would it mean that an OSP who affirmatively sought to pay such

a fee must be allowed to carry television signals? Would such an

OSP fall under the jurisdiction of the FCC?

Already several radio stations are “broadcasting” their programs

over the Internet; increasingly, so are television stations.271

Technologically, it is quite possible to do both today, though a

live video signal requires so much more capacity than radio’s

audio signals that such video “broadcasts” are often

unsatisfactory. Soon they may not be so unsatisfactory, however.

Suppose that the capacity of the Internet improves just enough, or

 

270 “(i) 0.675 of 1 per centum of such gross receipts for the privilege of

further transmitting any nonnetwork programming of a primary transmitter in

whole or in part beyond the local service area of such primary transmitter, such

amount to be applied against the fee, if any, payable pursuant to paragraphs (ii)

through (iv); (ii) 0.675 of 1 per centum of such gross receipts for the first distant

signal equivalent; (iii) 0.425 of 1 per centum of such gross receipts for each of the

second, third, and fourth distant signal equivalents; (iv) 0.2 of 1 per centum of

such gross receipts for the fifth distant signal equivalent and each additional

distant signal equivalent thereafter; ...”

271 Lists of live video sources are available at several places, including

<http://midibiz.w1.com/stream/stream.htm> and the RealPlayer site,

<http://www.timecast.com/events/rvstationsf.html> as of September 6, 1997.

See generally Jeff Caruso and Kate Gerwig, Is The Internet Ready For Broadcast?,

INTERNETWEEK, February 23, 1998.
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the technology of video compression improves just enough, that

television stations decide to transmit their signals over the

Internet as well as—or in lieu of—their regular broadcasts over

the “ether.” We might call such transmissions “netcasts.”

Assuming that the FCC did not affirmatively waive or withdraw

its jurisdiction over such television stations, the mere fact of the

stations’ netcasting their programs could immediately turn every

part of the Internet carrying the signals into “cable systems” by

the definition of “cable system” above. That is, any computer or

other switching equipment owner that performed packetswitching services on the Internet would be “a facility ... that in

whole or in part receives signals transmitted ... by one or more

television broadcast stations licensed by the Federal

Communications Commission, and makes secondary

transmissions of such signals or programs by wires, cables,

microwave, or other communications channels to subscribing

members of the public who pay for such service.”272 Note that the

definition only requires that there exist members of the public

who pay for a subscription to such services; it does not require

that the subscription or payment be made directly to any

particular one of the packet-switching intermediate computers on

the Internet.

Because of the packet-switched architecture of the Internet, it is

impossible for one who transmits a communication to know over

what parts of the Internet the communication will be carried. The

result could be either that every part of the Internet—including,

e.g., most American universities—became a “cable system” by

definition, or else that different computers on the Internet would

become cable systems for the duration of their carrying a

television signal, and then cease being a cable system whenever

they were not carrying such a signal. They would each owe a

compulsory license fee, a fee based on a complex calculation

 

272 Copyright Act § 111(f).
Copyright and other laws





involving the carriage of “programs in whole or in part” and

“distant signal equivalents” and “non-network programming”

and the like. Nearly all of these calculations would be impossible

for an entity owning a computer on the Internet to calculate.

Without question, this result would be extremely awkward and

clearly not what Congress had in mind when it enacted section

111. Yet, that is how the language of the statute appears to apply,

leaving a situation in which courts or regulatory agencies may

have to ignore a statute’s plain wording in order to avoid

unreasonable results.

One reason cable and broadcasting regulations are so complicated

is that before the 1976 Act, cable operators were not considered to

infringe copyright rights when they picked up and re-transmitted

television broadcasts.273 The Supreme Court had determined that

cable carriage did not constitute a public performance of the

copyrighted programs being carried.274 That decision allowed

cable systems to bring in programming from far away and cablecast it locally in competition with local broadcasters. This result

seemed unfair to local broadcasters, who were paying syndication

fees to national networks, only to find themselves in competition

with cable companies cablecasting the same programs without

paying the same fees—and often with a better quality signal to

boot.

The Federal Communications Commission therefore set up a

regulatory regime outside of copyright that governed the

 

273 See Stanley M. Besen and Robert W. Crandall, The Deregulation of Cable

Television, 44 L. & CONTEMP. PROBS. 77, 91 (1981) (noting that the then-General

Counsel to the FCC, Henry Geller, believed that had the courts declared cable

carriage to infringe copyright performance rights, the FCC would have

“relax[ed] or eliminate[d] its distant signal rules.”).

274 See Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390

(1968); Teleprompter Corp. v. Columbia Broadcasting Sys., Inc., 415 U.S. 394

(1974). See the further discussion of these cases in the section titled Cable, at page

252.

Analysis
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retransmission practice.275 The rights inhered not in the content

being broadcast, but in the act of broadcasting itself. In short, a

parallel set of rights was created to deal with a situation in which

copyright rights were found not to apply. But copyright was not

eliminated in television programs. To the contrary, such programs

are clearly copyrightable as “audio visual works.” For many

purposes, then, such as the right to produce a video-taped version

of a television series, copyright rights in television content will

govern the transaction. Yet for other purposes, namely broad- and

cablecasting, the rights involved are a complex mixture of

copyright law, communications law, and FCC regulations.

Copyright and bailment law

One thing the WWW seems to promote is a reliance on

information that is physically stored elsewhere. Research on the

Web means finding computerized information that is stored on

someone else’s computer. This much is quite conventional and

well understood today. Interesting evolutions of this basic

concept are underway. It is possible already, for example, to use

another computer for back-up storage of one’s own data. The

notion is that most users do not conscientiously back up their own

files onto a floppy disk or tape or other mechanism; so a

commercial service can arise that provides automatic back-ups

over the Internet.276 This situation is the opposite of conducting

research to find information created by others; it is the placement

of one’s own information elsewhere, in the hands of another.

 

275 See Besen and Crandall, supra note 273, at 92-93.

276 See James Karney, Online Storage Services Provide A Virtual Vault for Your

Data, PC WORLD, October 8, 1996, at p. 50 (describing two commercial products,

WebStor from the McAfee Associates, Inc., and Surefind from Surefind

Information Inc. Both provide a way for Internet users to back up information on

other sites on the network for a monthly fee of about $10.
Copyright and other laws





The situation immediately invokes the common law of bailment.

A commercial site that retained information on behalf of others

would be a bailee. That would be true if “information” were

considered “property” under the common law, as certainly seems

the case.277 So the possibility exists that the law of bailment might

come into play. Among other issues that might arise: the storage

company “scrambles” the stored data making all or part of it

useless; the storage company loses the data through accidental

erasure; the storage company goes out of business and the data

can no longer be located; the storage company accidentally

discloses data to the wrong party; and so on.

Are these actions redressable by copyright law? By bailment law?

Does copyright preempt bailment law on this point? Does the

answer turn on whether the information is in fact copyrightable

or not?

Another twist on this scenario might occur this way. An

information supplier sells or licenses a software package to an end

user. The package might be computer software in the usual sense

of a word processor or spread sheet program, etc., or it might be

mostly data, as an encyclopedia, or anything that is intended to be

stored on the purchasing user’s own hard disk. Suppose the seller

conditions the sale on the user’s agreement that the user will

 

277 See, e.g., the House Report on extending copyright to dramatic works in

1897, H.R. Rep. No. 1191, pp. 2-3 (because American playwrights have produced

works “that have brought credit to us as a nation, [and] constitute property in the

fullest and best sense of the term, there would seem to be no good reason why

this species of literary production should not be surrounded by the same

measure of protection as is accorded to other classes of property.”) (emphasis

added); Dowling v. U.S. 473 U.S. 207, 216 (1985) (“Thus, the property rights of a

copyright holder have a character distinct from the possessory interest of the

owner of simple ‘goods, wares, [or] merchandise,’ for the copyright holder's

dominion is subjected to precisely defined limits.”) (emphasis added); Harper &

Row, Publishers, Inc., v. Nation Enterprises, 471 U.S. 539, 555 (1985) (“The

author's control of first public distribution implicates not only his personal

interest in creative control but his property interest in exploitation of

prepublication rights, which are valuable in themselves and serve as a valuable

adjunct to publicity and marketing”) (emphasis added).
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agree to try out the product for some defined period of time--that

is, that the user will not remove the program from the hard disk

for that time. This is the bailment situation “in reverse,” where the

buyer becomes, in effect, the bailee. Would such an agreement be

based on any copyright rights? Would it be enforceable as a

matter of contract law, or would copyright preempt any attempt

to enforce the contract? If so, would copyright itself allow the

seller to have a remedy?

All these bailment situations have some sort of analog with

physical goods being held by a bailee, so in that sense they are not

unprecedented. But what makes the situation with stored

information interesting is both the novelty of application for

bailment law, and even more, the possibility that the Copyright

Act’s section 301 might preempt bailment law. If so, then the

Copyright Act will have to be interpreted to answer questions

such as: does copyright ownership of information include the

right to prevent that information from being damaged or

destroyed?278

Traditionally, copyright in the U.S. has not included such rights.

They tend to fall under the rubric of “moral rights” and be

affiliated with European and other nations’ systems of copyright

law. But more and more we are harmonizing our intellectual

property laws with those of other countries. Specifically, we have

included a few, modest, “moral rights” in our copyright law with

 

278 The situation here discussed has some similarity to the question whether

ownership of copyright reproduction rights confers the authority to demand

physical possession of a copy of a work in order to effect one’s reproduction

right. See Community For Creative Non-Violence V. Reid, 1991 U.S. Dist. LEXIS

20227; COPY. L. REP. (CCH) P26,860 (D.C. D.C. 1991) (issuing order permitting

sculptor Reid to have temporary access to a sculpture physically in the

possession of CCNV for the purpose of making a mold, following the decision in

Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), affirming 846

F.2d 1485 (D.C. Cir. 1988)).
Copyright and other laws





regard to “works of visual art,” as already discussed.279 In terms,

such rules would not apply to, for example, information in the

form of a file of text. But such a file, stored off-site with a

commercial company, could easily be an image or drawing or

otherwise fit—or arguably fit, which raises another interesting

question of statutory interpretation280—within the Act’s definition

of “work of visual art.”

Other instances of dispersed storage are possible. A popular

notion these days is that not just “information,” but executable

computer software, may be stored at dispersed locations around

the Internet. One possible future is that users will have no more

than a bare-bones set of communications programs stored on a

local computer. Whenever the user needs to do anything, like

word processing or spreadsheet manipulation, the user will access

the WWW and “pull down” for short-term use, whatever bits and

pieces of software are needed to accomplish what the user wants

to do. This would likely entail “pulling down” software in small

components, each of which performs some small function.

For example, if the user desired to do word processing, a

rudimentary word processing program would be downloaded on

the spot from a Web site somewhere. Whenever a more

sophisticated function were needed, say a search and replace

function, that function would be downloaded automatically as

another component. The running of a spelling check might result

in the downloading of yet another component for spelling, and so

on.

 

279 See the discussion in the section titled Works of visual art, at page 183.

Note that the United States also provides some “moral rights” under other

bodies of law, such as unfair competition, especially the Lanham Act’s section

43(a), which proscribes false designations of origin.

280 See the prior discussion in the section titled Works of visual art, at page

183.

“Pull-down-asneeded” software

components
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The advantage of this approach to computer software is that the

user can always have the latest versions (if desired), and will also

only pay for those components actually used. If a given user never

used the “equation editor” in word processing, e.g., the user

would never download that component and hence would never

have to pay for it. Spelling checkers could similarly be customized

for different applications. If a user were writing a legal brief, a

“legal brief” spelling checker could be downloaded; if writing a

letter to a friend, a “letter to friends” spelling checker could be

downloaded.

The disadvantage of this approach is the potential for delay. With

the current implementation of the WWW, signing on to the

Internet and finding the software one wanted and accessing and

downloading it would almost certainly be intolerably slow for

most people. But that situation could easily change tomorrow:

bandwidth is likely to improve; services are likely to be

differentially priced, making higher quality of service a possibility

for those who are willing to pay for it; and so on.

If this mechanism for software “distribution” were to come into

being, what copyright consequences would ensue? The pulldown-as-needed model might alleviate some of the concern that

software producers feel about wide-spread copying of their

products. Rather than selling “products” as such which, once they

reach the hands of consumers, are generally easy to copy, a

software company would be selling a service: access to the latest

and most appropriate software components. That access would

likely be on a subscription basis, and would replace the sale of

individual packages with periodic updates. The availability of a

constantly changing database of software components, accessible

only over a communications link and only on a subscription basis,

would make copying the software much harder than if it were a

static, stand-alone package.
Copyright and other laws





Copyright and contract law

The pull-down model may also give rise to questions about

liability for the failure to supply needed software components

when they were needed. On the one hand, the issue might be

solely one of contract, likely arising under the new UCC Article

2B if it is adopted.281 The terms of a subscription agreement would

be such a contract, much as users contract with an online services

company for services. If the contract called for needed

components to be available on such-and-such terms, the only

issue between user and servicing company would be whether

those terms were satisfied, or how those terms should be

interpreted. But in any event, contract law, not copyright law,

would be invoked to answer the questions.

On the other hand, we have not fully resolved the matter of

copyright preemption of contract law.282 The particular problem

often centers on the boilerplate agreements printed on software

packages. Often these agreements are contained inside the

package where they are not visible from the outside at the time of

purchase. Since many software packages come to market encased

 

281 Most UCC 2B drafts seen by the author have contained a definition of

“access contract” similar to this one from the September, 1997, draft: “’Access

contract’ means a contract for electronic access to a resource containing

information ... .” In turn “information” is defined to include computer

programs. The February, 1998, draft revises the definition slightly, but would

still govern contracts for “pull-down” software components as they are

described in the text: “’Access contract’ means a contract for electronic access to,

or electronic information from, a separate electronic resource or facility

containing information.” UCC 2B, Section 2B-102, Definitions, at 20 (February

1998) (emphasis in original to show changes from previous draft). See generally

the discussion in the section titled Copyright and the Uniform Commercial Code, at

page 231.

282 See, e.g., I. Trotter Hardy, Contracts, Copyright and Preemption in a Digital

World, 1995 RICHMOND JOURNAL OF LAW AND TECHNOLOGY,

<http://www.urich.edu/~jolt/v1i1/hardy.html> (April 1995). See also sources

cited supra, note 181.
Tomorrow’s Issues





in a clear plastic wrapper or “shrink wrap,”283 these contracts are

often termed “shrink wrap contracts.” The Seventh Circuit has

held that a shrink-wrap contract for software was to be

interpreted as a valid contract, not preempted by copyright.284 But

an earlier case in the Fifth Circuit, Vault Corp. v. Quaid Software

Ltd.,285 held that a state statute validating the terms of a shrink

wrap license was preempted by copyright law.

However these cases may play out in the future, there is at least a

possibility that some contract terms that take the form of “shrink

wrap” licenses might be preempted.

How would this doctrine apply to accessing software components

from a Web site? Such arrangements are like subscription

services, where the contracts are likely to be less of a shrink wrap

and more of a standard contract as one might sign with an OSP or

for that matter, a magazine company for a subscription. But that is

not the only possible model of component software access. As

with factual data like the location of restaurants,286 another model

is the ad hoc arrangement: a user with no previous agreements

with a software producer might discover a need for a certain

software component “on the fly,” so to speak. The user might

then request some form of software to travel out over the Web to

locate and download the appropriate software component.

If the software component were in fact obtained in that fashion,

the supplying software company would almost certainly include

the terms and conditions of use as part of a boilerplate document

 

283 The “wrap” obviously refers to the plastic wrapper. The “shrink” part of

the term comes from the type of plastic used: it is applied a bit loosely during

manufacturing, whereupon it is exposed to a heat source that causes the plastic

to shrink and thereafter fit snugly on the cardboard packaging material.

284 ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996).

285 847 F.2d 255 (5th Cir. 1988).

286 See the discussion in the section titled Factual information, at page 164.

“Web wrap” or “click

wrap” contracts
Copyright and other laws





somewhere.287 That document would likely reside on the

company’s supplying Web server computer, where it would

receive about the same attention from an accessing user as a

shrink wrap license inside a cardboard box receives from a buyer.

If so, then it is equally possible that such Web-based contracts,

which these days are being called “Web wrap” or “click wrap”

contracts, could be preempted by copyright law. The issue has

arisen explicitly in the effort to revise the Uniform Commercial

Code to include a section, Article 2B, dealing with licenses of

information products. Article 2B is addressed in the very next

section.

Copyright and the Uniform

Commercial Code

Parallel to the Copyright Office’s project Looking Forward,

members of a working group from the American Law Institute

and the National Conference of Commissioners on Uniform State

Laws have been developing a proposed modification to the

Uniform Commercial Code. The proposal calls for a new section,

Article 2B, that would deal with license transactions in

information and software.

Obviously, “information and software” are part of the subject

matter of copyright law; that fact raises the possibility of

inconsistency between the new UCC provision and existing or

future copyright enactments.

 

287 Here is one typical boilerplate warning on a Web site, appended to a

copyright notice: “© 1996, 1997 Scientific American, Inc. All rights reserved. No

part of this material may be reproduced, translated, transmitted, framed or

stored in a retrieval system for public or private use without the written

permission of the publisher.” From <http://www.sciam.com/index.html> as of

October 20, 1997. Note that the language prohibits “framing,” a subject discussed

elsewhere in this Report. See the discussion in the section titled In-line linking and

framing, at page 171.
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As with copyright law and the common law of contracts, in

principle, no conflict should arise. Reduced to their essentials,

copyright law and the Uniform Commercial Code are

complementary, not contradictory, bodies of law. Copyright law

creates a form of property rights in information. Contract law

specifies the terms of contracts relative to that property. Just as a

rental car agreement and the rules of personal property

ownership over cars would not normally conflict, so copyright

and the new UCC law, if adopted, would not necessarily conflict

either.288

For the most part, the two bodies of law do seem to be

complementary, and deliberately so: at one point, the draft’s

Section 2B-312(b) said that:

If technical or scientific information is

developed during the performance of the

agreement, to the extent that federal intellectual

property law does not control, the following rules

apply ... . 289

This language allows for the possibility that federal laws like

copyright might govern a situation, and if they do, they would

prevail. Only if they did not would the terms of the UCC

provision apply. That is one mechanism for ensuring that

different areas of law remain in their separate spheres without

problems of overlap.

Later versions of the draft have taken a different approach to

reconciling any potential conflict between copyright and

commercial law. The provision just quoted was later revised to

read:

 

288 UCC 2B draft dated February, 1998, notes in a preliminary section on

Intellectual Property Overlay that “A contract defines rights between parties to the

agreement, while a property right creates rights against all the world. They are

not equivalent.” February, 1998 Draft, at 15 (emphasis in original).

289 UCC 2B draft dated January 20, 1997 (emphasis added).
Copyright and other laws





If technical or scientific information is

developed during the performance of the

agreement, as between the parties, the following

rules apply ... .290

Again, the provision is designed to prevent any conflict between

federal copyright law—which applies to those who are not a party

to a contractual transaction—and the UCC law of the states,

which would apply only to the parties to a contract.

Still later a new provision was added to the draft explicitly

referring to the possibility of federal preemption of contract law:

A provision of this article which [sic] is

preempted by federal law is unenforceable to

the extent of such preemption.291

The Reporter’s notes explain that the possible preemption of an

Article 2B provision is itself an issue of federal, not state, law:

The basic principle of preemption is

supplemented in licensing law by the fact that

federal competition, antitrust, and intellectual

property rules provide a basis for courts to

monitor some practices in licensing ... . State

law cannot control or alter those rulings. They

involve determinations about federal law and

policy that go beyond state law. Article 2B

takes no position on the complex competition,

social policy and other issues present here. It

simply sets out basic contract principles

governing the contractual relationship in

information transactions. It governs the

contractual relationship, [whereas] federal law

and policy determines whether a particular

 

290 UCC 2B draft dated May 5, 1997 (emphasis added).

291 UCC 2B draft dated September 25, 1997 Section 2B-105. This section was

unchanged as of the February, 1998, draft.
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contract in a particular setting is barred by

federal law.292

This language explains that the existence and resolution of any

conflict between copyright and contract law is itself an issue of

federal law. As a federal law issue, such conflicts cannot be

resolved in a state law like the Uniform Commercial Code.

Other provisions, as proposed, may be less successful in avoiding

conflict. One draft of proposed section 2B-307 offers rules on the

interpretation of information license transactions. The meaning of

the entire provision is not obvious on a first reading:

A license grants all rights expressly described

and all rights within the licensor’s control

during the duration of the license which [sic]

are necessary to use the rights expressly

granted in the ordinary course in the manner

anticipated by the parties at the time of the

agreement. A license contains an implied

limitation that the licensee will not exceed the

scope of the grant. Use of the information in a

manner that was not expressly granted or

withheld exceeds this implied limitation

unless the use was necessary to the granted

uses or would be legally permitted in the

absence of the implied limitation.293

 

292 Reporter’s Note to UCC Section 2B-105, draft dated September 25, 1997.

293 UCC 2B draft dated September 25, 1997 (Section 2B-307). The February,

1998, draft contained essentially similar language: “A license grants all rights

expressly described and all rights within the licensor’s control during the

duration of the license which [sic] are necessary in the ordinary course to use the

expressly granted rights. A license contains an implied limitation that the

licensee will not exceed the grant. Use of the information in a manner that was

neither expressly granted nor expressly withheld does not breach this implied

limitation if the use was necessary to the expressly granted uses, or would be

legally permitted in the absence of the implied limitation.”
Copyright and other laws





The Reporter’s notes help to make clear what might otherwise be

difficult to draw out of the last sentence. The provision explains

that licenses impliedly restrict the licensee from making any uses

of information different from those that are within the scope of

the license. If a use of the licensed information is possible that is

neither expressly granted nor expressly withheld, the provision

creates a presumption that the use may not be made, subject to

two exceptions. The licensee may make that unspecified use if

first, the unspecified use is necessary to enable the expressly

granted uses; or if second, the unspecified use is otherwise legally

permitted. The reporter’s notes to this section give “fair use under

copyright law” as an example of a use that might “otherwise be

legally permitted.”294

This seems to pose no issue for copyright law, but the issue is

inherent in the negative implications of the provision. The section

deals with implied conditions—that is, the interpretation of a

license contract that does not expressly specify anything about a

particular use of the licensed information. The implication is that

uses “otherwise legally permitted,” such as fair use, would not be

permitted if they are expressly disclaimed. In short, the proposed

section embodies a concept that is subject to some disagreement

in the copyright community: that the scope of fair use may be

eliminated by a license contract, even a “shrink-wrap” or “click

wrap” license contract.

At bottom, the issue of tension between contract law such as the

UCC on the one hand, and copyright law on the other, can be

explained this way:

 

294 “[T]he implied limitation is not exceeded if the use would have been

permitted by law in the absence of the implied limitation. Thus, scholarly use of

a direct quotation from a licensed text not covered by confidentiality restrictions

would likely be a fair use and would not conflict with the implied limitations.”

Reporter’s notes following section 2B-307 (September 25, 1997 draft) (emphasis

in original).
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As the February, 1998, UCC-2B draft notes, property law provides

ownership rights. Contract law governs the terms on which

ownership rights are waived. If federal law is the source of

property rights, and state law the source of contract rights, no

conflict arises. In general, that is the case: federal copyright law

provides a property right in information; contract law governs the

terms on which those rights are waived by their owner. But if

copyright law defines more than just ownership rights—if it also

defines the terms on which ownership rights are waived by their

owner—then federal law is to some extent a form of contract law.

And to that extent, this form of federal “contract” law may well

conflict with state contract law.

The difficulty here, and the source of arguments among various

copyright interest groups, is that parts of the copyright law like

the fair use provision can be viewed as a limit either on property

rights, or on contract terms. If viewed as the former, no conflicts

are created with the UCC-2B’s section 2-307. If viewed as the

latter, copyright law might preempt the section in some contexts.




6. Analysis

Even though the Internet is new and poses new challenges for our

copyright law, “technology” as such and a constant change in

technology are certainly not new. To the contrary, inventors and

innovators and entrepreneurs have been changing the landscape

of American life ever since the country’s founding. Not

surprisingly, copyright law has had to accommodate new

technologies repeatedly over the two centuries of its existence.

The previous sections of this Report have focused on particular

Internet technologies and the copyright issues those technologies

raise. This section looks back in time to earlier technologies and

copyright issues. With the perspective of history, one can see that

the intersection of copyright law and new technologies gives rise

to broadly similar issues time and time again. Those issues, or

“patterns” as this Report calls them, can be summarized as issues

of new copyright subject matter, new uses of existing copyrighted

works, and decentralized infringement.

This final section of the Report describes these recurring patterns

and puts Internet and copyright issues within their context.
Analysis





6.1 Three Patterns of Copyright and

New Technology

Changes in technologies have historically given rise to new

copyright issues. In looking over a number of past and present

technology-related copyright questions, one can see that the

changes, whether raised by interpretative difficulties, or changing

factual assumptions, or for any other reason, tend to fall into a

few familiar patterns. The most frequent patterns are three:

1. New subject matter questions

2. New use questions

3. Decentralized infringement questions

New subject matter

Some technologies create a new type or a new medium of

expression. They give rise to the “subject matter” question: should

the new type of expression, or the expression that is recorded in a

new medium, fall within copyright’s subject matter—i.e., be

appropriate for copyright’s protection?

The question really applies in two different contexts. The first is

that of a new form of “work” that exists regardless of the medium

of its fixation. “Sound recordings,” for example, can exist in a

variety of media: phonograph records and piano rolls from the

turn of the century; audio CDs; computer hard disks; etc. The

second context is that of the medium itself. If “music” in sheet

music form is copyrightable, then is music when it is recorded on

a phonograph? As we will see, this second question has largely

been resolved today under the 1976 Act, though the first question

has not been.
Three Patterns of Copyright and New Technology





Throughout its 200-year history, copyright law has seen a steadily

expanding list of copyrightable “subject matter”—things that

were determined, by judicial interpretation or by statute, to be

appropriate for protection under copyright. The first copyright

statute, enacted in 1790, included simply “maps, charts, and

books” within its protection.295 Today’s copyright law has seen

protection extended to musical works, dramatic works, sound

recordings, works of pantomime, computer programs, computer

screen displays, architectural works, and more.

These subject matter expansions have arisen for different reasons.

Some were necessary to accommodate truly new technologies:

photography, for example, was a relatively new medium when

Congress determined to add “photographic prints” as a distinct

category of copyrightable work in 1865.296 Other expansions have

not been in response to technological changes, but to changing

perceptions of existing technologies or of the need for their

protection. Musical compositions, for example, have been with us

for a very long time; yet, they were subsumed under the

copyright category of “books” until being added explicitly to the

statute as copyrightable subject matter in 1831.297 Similarly, the

right to perform dramatic works—also of ancient origin—was not

given explicit copyright protection until 1856.298

 

295 Act of May 31, 1790, 1st Cong., 2d Sess., 1 Stat. 124.

296 Act of March 3, 1865, 38th Cong., 2nd Sess., 13 Stat. 540. See CONG. GLOBE,

38th Cong., 2nd Sess. 1337 (1865).

297 Act of Feb. 3, 1831, 21st Cong., 2d Sess., 4 Stat. 436. Protection was

available from the very first Copyright Act for “books.” Composers who sought

protection for sheet music could therefore register their music as a “book.”

298 See 11 Stat. 138 (1859).
Analysis





New use of existing works

Second, some technologies create a new way of using existing

copyrighted works. These technologies give rise to the “new use”

question: does the new use of an existing copyrighted work

infringe the author’s rights? For example, musical compositions as

such were copyrightable after 1831, well before the advent of

radio in the 1920’s. When radio stations began playing musical

compositions “on the air,” however, litigation soon arose over

whether such a playing constituted a “performance for profit” of

the composition—and hence a copyright infringement under the

1909 Act.

The situation was precisely the same with the arrival of cable

television in the 1960’s. Cable television began as a means of

strengthening the signal of distant broadcast stations, especially

in the valleys of mountainous areas. These cable stations picked

up broadcast signals from the airwaves and passed them along to

cable subscribers without seeking permission from the broadcast

stations or paying royalties. Again, litigation arose over whether

such re-transmission by cable constituted a “public performance”

within the scope of the copyright owner’s rights.

“Decentralized infringement”

Finally, some technologies neither create new forms of expression

nor allow new ways of using existing expression, but rather make

methods of infringement far cheaper than before and harder for

copyright owners to discover. This sort of technological

development raises what can be called the issue of “decentralized

infringement.”

The photocopier and the video recorder are obvious examples of

dramatically lowered cost of making copies of paper documents

and television programs. The advent of 8-track audio cassette

technology in the 1960’s gave rise to a bootleg industry for
Three Patterns of Copyright and New Technology





copying and selling the tapes. Making such copies was lawful

under federal law until 1972.299 Similarly, the rise of digital

technologies has made copying far cheaper and more widespread

than was once the case. The issue here is: how should copyright

law respond? Should these decentralized infringements be

declared no longer infringing? A fair use? Should copyright

owners assert their rights when they can, and let the undetected

infringements continue?

 

299 See Pub. L. No. 92-140, 85 Stat. 391 (1971); see also Goldstein v. California,

412 U. S. 546 (1973) (discussing California’s state law approach to the problem).
Analysis





Another pattern: contract

interpretation

These three types of issues are not the only ones that are worth

thinking about. Another recurring theme in the history of

copyright and new technology is the difficulty of contract

interpretation. It often happens, for example, that as technology

changes, the parties to copyright licensing agreements disagree

over how the contract applies to the new technology. For

example, a contract that granted “dramatic rights” in 1880—

before the invention of the motion picture—might cause a dispute

over whether the granted rights include “motion picture rights”

some twenty years later, when motion pictures had been

invented;300 or a grant of “motion picture rights” in 1923, when

“talkies” were not commercially viable, included the right to

make a talking version of the movie years later, when they

were;301 or a grant of rights in 1939 to include an orchestra’s

performance in a “feature picture” might cause a dispute fifty

years later over whether that clause included distribution in the

form of “video cassettes;”302 or a grant of publication rights in

free-lance articles for newspapers and magazines between 1990

and 1993 might cause a dispute in 1997 over whether inclusion of

the articles’ text in electronic databases was within the publishers’

right to revise “collective works.”303

 

300 See Kalem Company v. Harper Brothers, 222 U.S. 55 (1911); see also G.

Ricordi & Co. v. Paramount Pictures, Inc., 89 F.2d 469 (2d Cir. 1951) (dramatic

rights granted in 1901, before movies were widely popular).

301 See L. C. Page & Co., Inc. v. Fox Film Corp., 83 F.2d 196 (2d Cir. 1936).

302 See Philadelphia Orch. Ass’n v. Walt Disney Co., 821 F. Supp. 341

(E.D.Pa. 1993).

303 See Tasini v. New York Times Co., 93 Civ. 8678 (S.D.N.Y. Aug. 13, 1997),

1997 U.S. Dist. LEXIS 11988.
Three Patterns of Copyright and New Technology





These issues are troublesome and often expensive for the parties

to resolve, but they tend to be self-correcting. They are matters of

contract, not of overall law or policy, and parties to future

contracts can adapt those contracts to changing times.

The focus of this Report is on matters important to the

government’s policy-making function; the Report therefore does

not address issues of contract interpretation, even though they are

issues that arise because of new technology.
Analysis





6.2 History and Analysis of the Three

Patterns

In each of these problem areas—subject matter, rights, and

decentralized activities—our legal system has shown a variety of

responses.

Subject matter: issues

The issue of photography as a new type of copyrightable subject

matter was litigated in 1866;304 the court concluded that

photographs did not fit within any of the existing categories of

protectible subject matter and hence were not copyrightable.305

The decision was moot, however, because by the time the court

decided the case, on the basis of facts that had arisen a few years

earlier, Congress had extended protection to photography as

copyrightable subject matter through a legislative enactment.306

The enactment appears to have generated almost no commentary

or argument in Congress.307

The status of motion pictures as a subject matter of copyright was

first resolved not by Congress but by court decision, a decision in

which protection was extended by analogy to the already-

 

304 Wood v. Abbott, 30 F. Cas. 424 (S.D.N.Y. 1866).

305 Wood, 30 F. Cas. at 425.

306 Act of March 3, 1865, 38th Cong., 2nd Sess., 13 Stat. 540.

307 Senator Edgar Cowan first reported a bill to include photography within

copyright's subject matter, Senate Bill No. 468, on February 22, 1865; the bill was

promptly passed. See CONG. GLOBE, 38th Cong., 2nd Sess. 981 (1865). About a

week later, the same bill was passed by the House without objection. See CONG.

GLOBE, 38th Cong., 2nd Sess., 1337 (1865). The next day, March 3, 1865, President

Lincoln signed it into law. See CONG. GLOBE, 38th Cong., 2nd Sess., 1337 (1865).
History and Analysis of the Three Patterns





protected subject matter of still photographs.308 The court

concluded that a movie was essentially a long—a very long—

photograph.

Sound recordings as copyrightable subject matter generated

enormous controversy during the 1905 and 1906 hearings on what

became the 1909 Act.309 At issue then were piano rolls and

phonograph records. Were such fixations of sounds

copyrightable? The debate was strident enough that nothing was

done under copyright law to protect sound recordings until

1971.310 That protection was continued under the 1976 general

revision, though with certain limitations not applicable to other

subject matter.311

Much attention was focused on the subject matter question in the

1976 revision, with the goal of trying to craft a statute that would

not require frequent amendments as technology continued to

evolve. For the problem of recurring inventions of new media of

fixation, this effort was largely successful. The approach used was

that of “generalizing” copyright’s subject matter to make it

independent of any particular medium of expression. We have

moved over the last 200 years from a Copyright Act that protected

“maps, charts, and books,”312 a list that as noted emphasizes

tangible media, to today’s Act that protects “works of

 

308 Edison v. Lubin, 122 F. 240 (3d Cir. 1903). Congress later amended the

Act to provide explicit recognition of motion pictures as part of copyright’s

subject matter. See Act of August 24, 1912, 37 Stat. 488.

309 See Revision of Copyright Laws: Hearings Before the Joint Committee on

Patents, 59th Cong., 1st Sess., (June 1906), reprinted in E. FULTON BRYLAWSKI, 4

LEGISLATIVE HISTORY OF THE 1909 COPYRIGHT ACT, Part H (1976) [hereinafter

BRYLAWSKI].

310 See 1971 amendments to the Copyright Act, supra note 299.

311 Authors of sound recordings, unlike other authors, have no right to

control the public performance of their works, 17 U.S.C. §§ 114, 115, other than a

narrowly defined right in relation to digital audio transmission. 17 U.S.C. § 1001

et seq.

312 See the first federal copyright law, supra note 295.
Analysis





authorship,” a phrase chosen to emphasize the abstract “work”

rather than the medium in which the work is embodied. By

leaving copyright’s subject matter as an abstraction, today’s

statute accommodates tomorrow’s new media of fixation, whether

“now known or later developed,”313 more easily than almost any

other issue raised by new technology.

Subject matter: analysis

“More easily” does not mean “with no difficulty whatsoever.”

Even under the 1976 Act, subject matter issues that spring from

new media of fixation have not always been resolved as cleanly

and simply as the statutory language suggests. Notably in the

1980’s, it took a major, highly contested case, Apple Computer v.

Franklin Computer Corporation,314 to determine that although

computer programs written on paper or on a disk were the subject

matter of copyright, so were computer programs fixed in readonly memory. One would have thought that the “mediumneutral” design of the 1976 Act would have made this an easy

answer to reach.

But in general, questions about new subject matter that arise from

new media of fixation are likely to be less difficult than other

issues, namely the development of new types or categories of

subject matter. Perhaps the best recent illustration of this problem

was the First Circuit’s decision in Lotus v. Borland,315 a case

involving the question of extending protection to the menu

command structure of a computer program.

The court’s analysis centered on the idea-expression dichotomy,

and particularly on whether the menu hierarchy was a “method

 

313 17 U.S.C. § 102(a).

314 714 F.2d 1240 (3rd Cir. 1983).

315 Lotus Development Corp. v. Borland International, Inc., 49 F.3d 807 (1st

Cir. 1995), affirmed by an equally divided Court, 516 U.S. 233 (1996).
History and Analysis of the Three Patterns





of operation.”316 But for purposes of this Report, the case can also

be characterized as one in which the “thing” in question was a

“work of authorship,” but did not clearly fall within one of the

existing categories of protectible works, even the most applicable

one of “literary works.”317

We can certainly treat a menu command structure as a “work of

authorship” because it was created by human beings exercising

originality, choice, selection, and the like.318 The command

structure was not as clearly a “literary work,” however. The

argument against its being one rests on arguing that “literary

work” has acquired some sort of gloss—perhaps that a literary

work is “linear”—appears in left-to-right or top-to-bottom

sequence.319 A menu command structure is not linear; it is

hierarchical and rarely appears to its users even as a complete

hierarchy. It has a kind of three-dimensional quality to it that

makes it seem quite different from more traditional “literary

works.” On the other hand, the menu command structure can be

described in words, numbers, or other indicia;320 or it can be

 

316 The Court concluded that the Lotus 1-2-3 menu hierarchy was a “method

of operation” and was hence not copyrightable. Lotus Development Corp., 49

F.3d at 815.

317 In the actual case, the court did not address the issue whether the menu

command structure was a “literary work” or a “work of authorship” generally.

The closest it came was an implication that the menu hierarchy might be

“original expression,” therefore further implying that the hierarchy might also

be an original work of authorship: “[W]hile original expression is necessary for

copyright protection, we do not think that it is alone sufficient. Courts must still

inquire whether original expression falls within one of the categories foreclosed

from copyright protection by § 102(b), such as being a ‘method of operation.’” 49

F.3d at 818

318 The author does not argue that his analysis is “correct” and certainly not

that the court’s analysis the case was “wrong.” The analysis is put forward

instead to make a point about the case—and by extension, the broader problems

of copyright and new technology—by putting it in a perspective that happens to

be different from that of the court’s.

319 This gloss of “linearity” is not identified in any literature of which the

author is aware.

320 17 U.S.C. § 101, definition of “literary work.”
Analysis





assimilated to a pictorial or architectural drawing in the form of

words on a flow chart. Thus, one can also argue that menu

structures do fit comfortably within the category of literary works.

Lotus can be seen as falling in between the cracks of the subject

matter definition: a “work” but not clearly a “literary work.” As

such an in-between case, Lotus was destined to give the courts

interpretative trouble in spite of the high level of generality that

the 1976 Act gives to the concept of “work of authorship.”

New uses: issues

For new uses, our legal system has responded in a variety of

ways, but we have never developed a highly general strategy for

dealing with new uses in the way that we have for dealing with

new subject matter. An informal look at the history of new uses

shows that they have always been more contested and

controversial than the subject matter question, even before the

1976 Act’s divorce of “work” from “medium” made the latter

issue easier to resolve. We have a number of examples.

New uses of music

Both the phonograph (and piano rolls) at the beginning of the 20th

century, and radio around the 1920’s, were new means of using

existing works: musical compositions. We can look at both,

starting with the phonograph.

Composers of the 1900’s era wanted to be able to collect royalties

from phonograph and piano roll companies that hired orchestras

to record their compositions. The law at that time did not give

them the right to do so. The issue was cast in the form of a

decision whether or not the new use constituted an unauthorized

“copy” of the existing work.
History and Analysis of the Three Patterns





The argument whether it should be considered a copy arose

during the Congressional hearings leading up to the 1909 Act.321

Debates in the hearings were long and rancorous, with enormous

amounts of testimony and debate over that single issue. At the

time, composers’ primary source of income was apparently the

sale of sheet music to individuals and to orchestras and bands for

live performances. “Music in the home” meant a family member

playing the piano live, using sheet music of the latest popular

tunes or classics. Popular composers like Victor Herbert and John

Philip Sousa made large sums of money from these sheet music

sales.322 Consequently, nearly all participants on both sides of the

debate focused on sheet music sales: whether a composers’ right

to control the making of recordings would help or hurt

composers’ income from the sale of sheet music.323

The debate was resolved by a compromise in the form of a

“compulsory license,”324 but the essential lesson of the story is

that the sheet music market for home sales eventually dried up,

 

321 Three hearings took place, in June of 1906; again in December of that

year; and finally, in March of 1908. See REVISION OF COPYRIGHT LAWS: HEARINGS

BEFORE THE JOINT COMMITTEE ON PATENTS, 59th Cong., 2d Sess., (June 1906),

reprinted in 4 BRYLAWSKI, supra note 309, Part H at 102 (1976); REVISION OF

COPYRIGHT LAWS: HEARINGS BEFORE THE JOINT COMMITTEE ON PATENTS, 59th Cong.,

2d Sess., (Dec. 1906), reprinted in 4 BRYLAWSKI, supra note 309, Part J (1976);

REVISION OF COPYRIGHT LAWS: HEARINGS BEFORE THE JOINT COMMITTEE ON PATENTS,

60th Cong., 1st Sess., (Mar. 1908), reprinted in 5 BRYLAWSKI, supra note 309, Part K

(1976).

322 Sousa was described by one witness at the hearings as someone who

“bestrode the musical world like a colossus.” 4 BRYLAWSKI, supra note 309, Part H

at 145 (statement of S. T. Cameron representing the American Graphophone

Company). Sousa himself noted that “You can take any catalogue of records of

any talking machine company in this country and you will find from 20 to 100 of

my compositions on it.” 4 BRYLAWSKI, supra note 309, Part H at 24 (statement of

composer John Philip Sousa).

323 See, e.g., 4 BRYLAWSKI, supra note 309, Part H at 333 (statement of Paul H.

Cromelin, representing the Columbia Phonograph Company) (“We claim,

gentlemen, that there has been no more potent influence than the talking

machine and the piano player and these various mechanical devices in bringing

about [an increase in sheet music sales of 163 percent in six years].”).

324 Act of March 4, 1909, 35 Stat. 1075, § 1(e).

Compulsory license

resolution
Analysis





more or less killed off by the phonograph and the soon-to-be

invented medium of radio.325 Certainly today, the market for

“music in the home” is satisfied by sales of recorded music (CD’s,

tapes, etc.) that exceed by orders of magnitude the market for

sheet music sales.

Radio

Radio has a different history. As with the advent of the

phonograph, the advent of radio marked a new use of existing

musical compositions. Again, not surprisingly, composers wanted

the right to demand royalties from radio broadcasts of their

music. The first battleground was in the courts, not in Congress.

The Copyright Act of 1909 had consumed enormous

Congressional energies and had been enacted with great fanfare.

Had radio existed at the time, it doubtless would have consumed

even more Congressional time and attention. But as it was, the

issue whether radio infringed the rights of the composer’s whose

music it played arose a bit later, the first case, M. Witmark & Sons

v. L. Bamberger & Co., appearing in a New Jersey court in 1923.326

The question at that time centered on whether radio airplay of

music was “for profit.” The statute granted composers a right to

license “public performances for profit.”327 That playing a song

over the radio constituted a public performance was not in

 

325 By 1924, roughly 7 to 8 million phonographs were in use, compared with

about 5 million pianos and less than a million player pianos. COPYRIGHTS:

HEARINGS ON H.R. 6250 AND H.R. 9137 BEFORE THE COMM. ON PATENTS, 68th

Cong., 1st Sess. 168 (1924) (Statement of E.C. Mills). Later, it was radio that

nearly drove the phonograph recording business out of business. See ROLAND

GELATT, THE FABULOUS PHONOGRAPH: FROM EDISON TO STEREO 265 (1965) (“by

January 1933, the record business in America was practically extinct”).

326 M. Witmark & Sons v. L. Bamberger & Co., 291 F. 776 (D.N.J. 1923).

327 1909 Act, § 1(e) (Composers “have the exclusive right ... [t]o perform the

copyrighted work publicly for profit ... .”).
History and Analysis of the Three Patterns





question;328 the contention was over whether such a performance

was “for profit,” given that radio stations then, as today, did not

charge their listeners a fee. The court held that radio airplay of

music was “for profit,” inasmuch as the radio station in question

was set up and operated by a department store that advertised

itself on the radio and that sold radios and similar equipment.329

Legislation to provide immunity to radio stations, premised on

assumptions that radio stations were operated for good will

purposes and had no means of obtaining revenue, was introduced

in Congress shortly after the Witmark case, in 1924.330 The

sponsor, Senator Dill, argued that listeners would never tolerate

advertising on the radio and hence that “Congress ought to

encourage free radio to the great masses of our people by

providing that th[e] copyright law should not apply.”331 Dill

feared that, if radio broadcasters were forced to pay copyright

fees, “good up-to-date music” would be driven off the air or little

stations would be driven out of business.332

The bill did not pass. Less than two years later, further hearings

showed that in that short intervening time, seventy percent of all

 

328 Although the Witmark court did not treat the issue of whether radio

broadcasts were public performances as an open question, the issue was in fact

litigated a few years later in Jerome H. Remick & Co. v. American Automobile

Accessories Co., 5 F.2d 411 (6th Cir. 1925) (finding that radio broadcasts were a

“public performance”).

329 Witmark, 291 F. at 779.

330 See TO AMEND THE COPYRIGHT ACT: HEARINGS ON S. 2600 BEFORE THE

SUBCOMM. OF THE COMM. ON PATENTS, 68th Cong., 1st Sess. 1 (1924).

331 TO AMEND THE COPYRIGHT ACT: HEARINGS ON S. 2600 BEFORE THE

SUBCOMM. OF THE COMM. ON PATENTS, 68th Cong., 1st Sess. 4 (1924).

332 TO AMEND THE COPYRIGHT ACT: HEARINGS ON S. 2600 BEFORE THE

SUBCOMM. OF THE COMM. ON PATENTS, 68th Cong., 1st Sess. 5 (1924).
Analysis





radio broadcasts had begun carrying paid-for advertising that

generated cash income to the stations.333

Since the Witmark decision and the failure of various bills of the

day to attain majority support, radio stations have been subject to

a requirement for obtaining licenses to broadcast copyrighted

music. In practice, the licensing is handled through musical

licensing collectives like ASCAP and BMI.

Cable

Other technologies help to fill out the picture of diverse

treatments of different new uses of copyrighted works. Cable

television334 arose as a way of bringing broadcast television to a

wider audience. Rural homes in the 1950’s, especially those in

valleys or on the far side of mountains, were often unable to

receive television signals with sufficient clarity.

It seemed a logical improvement for someone to erect a large

receiving antenna on, say, the top of a mountain, and “pipe” the

received signal along a wire cable to those rural homes. Even the

early name for cable reveals these origins. The first term coined

was “CATV,” which stood for “Community Antenna

Television.”335 Quite simple in concept, the idea of bringing

television signals over a wire instead of through the air, was

novel. Initially it was seen as merely an adjunct to or extension of

 

333 TO AMEND THE COPYRIGHT ACT: JOINT HEARINGS ON S. 2328 AND H.R. 10353

BEFORE THE COMM. ON PATENTS, 69th Cong., 1st Sess. 5 (1926).

334 Parts of the discussion of cable television have been drawn from I. Trotter

Hardy, Computer RAM “Copies:” Hit or Myth? Historical Perspectives on Caching as

a Microcosm of Current Copyright Concerns, supra note 104.

335 See Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 391

(1968). See also MARY ALICE MAYER PHILLIPS, CATV: A HISTORY OF COMMUNITY

ANTENNA TELEVISION 4 (1972).
History and Analysis of the Three Patterns





broadcast television.336 But it was successful, and the cable

industry began to grow.

Not surprisingly, the copyright owners of the television programs

being picked up by cable receiving antennas and transmitted to

additional homes began to demand royalty payments from the

cable companies. These demands were refused; lawsuits for

copyright infringement followed shortly thereafter. Two similar

cases involving these facts reached the U.S. Supreme Court a few

years apart, in the Fortnightly337 and Teleprompter338 cases.

The issue in both cases was whether a cable station that, without

authorization, received and further transmitted a copyrighted

program should be held to be a copyright infringer.339 Plaintiff’s

theory was that such a transmission constituted a “performance”

of the copyrighted works. As the performances were to the public

and for profit (cable companies were not, to put it in Justice

Holmes’s famous words, “eleemosynary institutions”340), and

were accomplished without permission or royalties, plaintiffs

argued that they infringed their copyright rights.

 

336 See Fortnightly, 392 U.S. at 399 (“Essentially, a CATV system no more than

enhances the viewer’s capacity to receive the broadcaster’s signals ... .”) and 400

(“Broadcasters procure programs and propagate them to the public; CATV

systems receive programs that have been released to the public and carry them

by private channels to additional viewers.”).

337 Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968).

338 Teleprompter Corp. v. Columbia Broadcasting Sys., Inc., 415 U.S.. 394

(1974).

339 Fortnightly dealt with broadcast signals picked up from the local area and

transmitted over cable. Teleprompter dealt with broadcast signals picked up from

distant markets. For purposes of the discussion in this report, both raise the same

issues.

340 Herbert v. Shanley, 242 U.S. 591 (1917). One early cable system was

created by John Walson, part owner of an appliance store, in 1948 to boost sales

of television sets in the local, rural area. Initially given away, this cable service

proved so popular that the very next year, 1949, Walson began charging $100

installation fee and $2 per month. PHILLIPS, supra note 335, at 8-9.
Analysis





The defendant cable companies argued, quite straightforwardly,

that merely by picking up a signal and passing it on, they did not

“perform” anything.341

The Supreme Court found for the defendant cable companies,

determining that cable systems did not “perform” the shows they

transmitted. This conclusion was founded largely on the

reasoning that cable companies were merely passive carriers342

that did not rise to the level of “performing” in the ordinary sense

of that term—or as the Court put it, “Broadcasters perform.

Viewers do not perform.”343 The Court viewed cable as merely an

extension of broadcast television: it noted that cable systems

“have nothing to do with sponsors, program content or

arrangement. They sell community antenna service to a segment

of the public for which [broadcasters’] programs were intended

but which is not able, because of location or topographical

 

341 “The petitioner maintains that its CATV systems did not ‘perform’ the

copyrighted works at all.” Fortnightly, 392 U.S. at 394.

342 Note that the cable companies were not "passive carriers" as that term is

often used in connection with telephone companies or Internet Service Providers.

In the latter cases, the carrier is in a contractual relation with the sender of the

information in question. With the cable companies, there was no contractual

relation with the sender—the broadcasting companies—at all. In addition, cable

companies have the ability to choose what signals to receive and re-transmit, and

to what audiences they will perform the retransmission.

343 Fortnightly, 392 U.S. at 398. The Court announced that it would not

simply look to the ordinary meaning of the word “perform,” noting instead that

“at the outset it is clear that the petitioner's systems did not ‘perform’ the

respondent's copyrighted works in any conventional sense of that term, or in any

manner envisaged by the Congress that enacted the law in 1909. But our inquiry

cannot be limited to ordinary meaning and legislative history ... .” Fortnightly,

392 U.S. at 395 (footnotes omitted). But in fact, the majority opinion largely did

limit itself to ordinary meaning, especially in concluding that: “Broadcasters

perform. Viewers do not perform. Thus, while both broadcaster and viewer play

crucial roles in the total television process, a line is drawn between them. One is

treated as active performer; the other, as passive beneficiary.” Fortnightly, 392

U.S. at 398-99 (footnotes omitted).

Conclusion: no

liability
History and Analysis of the Three Patterns





condition, to receive them without rebroadcast or other relay

service by community antennae ....”344

The cable industry did not long remain merely an adjunct to

broadcast television. Although its growth has been heavily

influenced by a variety of FCC rulings so that we cannot ascertain

what “pure” economic and “pure” copyright forces might have

brought about, we can say at least that when Congress revised the

Copyright Act in 1976, the cable industry was a major economic

force. By roughly the mid-1970’s, nearly 3500 cable operators

served 7700 communities, reaching 10.8 million homes and

earning revenues of $770 million.345 Cable was well beyond the

point of simply extending existing broadcast signals to a wider

and rural audience. It had become an alternative network,

competing with broadcast networks346—and for that matter,

growing much more rapidly in urban, affluent areas than among

the rural poor.347

Very much as had happened with recorded sound a generation

earlier, debates over cable’s copyright obligations raged back and

forth during the negotiations, studies, and hearings on the 1976

Act.348 In the end, as with the phonograph, a compromise was

reached: cable companies would pay a royalty, but the royalty

 

344 Fortnightly, 392 U.S. at 401.

345 H.R. Rep. No. 94-1476 at 88.

346 II PAUL GOLDSTEIN, COPYRIGHT, supra note 108, § 5.8.2 at p. 642.

347 See PHILLIPS, supra note 335, at 171-72 (“industry leaders have recently

expressed concern for a neglected sector of the American public—the rural

dweller.”) (emphasis added; statement published in 1972).

348 See Jessica D. Litman, Copyright Legislation and Technological Change, 68

ORE. L.REV. 275, 332 (1989) (“It took eleven years and the combined efforts of the

Copyright Office, the bar associations, the House and Senate Subcommittees, the

FCC, and the White House Office of Telecommunications Policy to force

interested parties to reach an agreement on the revision bill’s treatment of cable

television.”).

Cable grew big
Analysis





would be fixed by Congress and copyright owners would have no

choice but to accept that royalty.349

New uses: analysis

Why so many dilemmas over new uses? In part the issues arise so

often because the 1976 Act deals with “new uses” in the form of

copyright “rights,” and these rights are defined in terms of

current technologies to a far greater extent than copyright’s

subject matter is defined. One early question that arose with

regard to the World Wide Web, for example, was whether

“posting” a document on an Internet-connected machine is a

“public distribution,” or the making of copies, or the contribution

to the making of copies, etc. One reason we have to struggle with

that factual setting is that the notion of “copying” or

“distributing” is premised on some sort of physical medium—

whereas copyright’s notion of subject matter is not similarly

premised.

These past “new use” technologies350 show that different

technologies receive different legal treatment regarding the

question whether the new use infringes copyrights. Of the three

illustrations of the phonograph, radio, and cable television, all

were exemplified by an initial few years of no infringement

liability—the years before any infringement suits were filed, or

before Congress enacted legislation. After that, they differ. Radio

from early on was subject to private contractual arrangements

under a regime of normal copyright liability, established by

judicial decision. Phonograph recording was heavily debated in

Congress, and was subjected to a compulsory license. Cable

 

349 See Jessica D. Litman, Copyright, Compromise, and Legislative History, 72

CORNELL L.REV. 857 (1987). See also the current statute, codified at 17 U.S.C. § 111.

350 The author has chosen industries that he thinks are representative of

various approaches taken. The list is not intended to be exhaustive or statistically

significant.
History and Analysis of the Three Patterns





television was found to bear no infringement liability by the

Supreme Court, and then fell under a compulsory license regime

adopted by Congress in the 1976 Act.

Despite these differing legal outcomes, the new use issue unfolds

in a surprisingly predictable way. When a new use of copyrighted

works arises, made possible by some technological development,

the debate over requiring that new-use industry to pay royalties

takes about the same form each time. On the one hand will be the

copyright owners’ arguments that “this is my music / writing /

software / computer interface / etc., I own it, and I should have a

right to a share of the money that others make from its use.” On

the other will be the argument that “these works are already in

existence, we are simply promoting the sales of your works in

other markets, and consequently no further incentive in the form

of a right to receive royalties is necessary.” And if the facts

support the claim, the additional argument may be made that “we

have already paid for the use in some existing medium.”

Representatives of the phonograph recording industries in the

1900’s strongly argued to Congress that records merely served as

advertising for the sheet music market;351 radio station owners in

the 1920’s argued that radio served similarly to advertise the sales

of sheet music;352 library photocopying of journal articles in the

1950’s and 1960’s was described by some as primarily an

advertisement for the journals;353 the Supreme Court found that

 

351 See text accompanying note 323, supra.

352 See TO AMEND THE COPYRIGHT ACT: HEARINGS ON S. 2600 BEFORE THE

SUBCOMM. OF THE COMM. ON PATENTS, 68th Cong., 1st Sess. 31-32 (1924)

(statement of Charles H. Tuttle of the National Association of Broadcasters).

353 John C. Koepke, Assessment of Documentation Practices in Reprography, in

REPROGRAPHY AND COPYRIGHT LAW 50, 53 (Lowell H. Hattery and George P. Bush,

eds. 1963) (“The small journal will tell you that photoduplication actually

increases its circulation rather than decreases it. ... We have talked to many

librarians who have told us that, after seven or eight requests for an article that

may have appeared in a rather obscure journal, they have found it desirable to

begin to subscribe to the journal ... .”).
Analysis





cable television in the late 1960’s merely promoted broadcast

television;354 more recently, representatives of a World Wide Web

news site argued that “framing” others’ web sites benefited the

sites framed.355

Unfortunately, these arguments about incentives miss the mark.

The question is not whether an incentive is necessary when works

of authorship like music already exist and a technology like the

phonograph or radio or cable television is new. The question is

rather whether the new technology will grow sufficiently

important that it will displace existing uses—the uses that do

generate royalty income and hence provide a present incentive. If

the new use industry ends up displacing present uses, then a new

incentive in the form of royalties from the new industry’s use will

be needed. If it does not, then a new incentive is not needed.

The problem, of course, is that without foresight, neither Congress

nor the courts can know which growth path a new-use industry is

likely to follow. Will the new use remain forever an aside to some

existing market, potentially356 only a minor source of income to

copyright owners; or will it outgrow and dominate that existing

market, potentially becoming the major source of income for

copyright owners; or something in between?

The problem therefore reduces itself to a familiar one: decisionmaking under uncertainty. The decision-maker must approach a

copyright new use question with the understanding that accurate

predictions of the future are impossible.

 

354 See note 336 and accompanying text, supra.

355 “’A lot of news organizations are very pleased by what [TotalNews is]

doing,’ because TotalNews generates more visitors to their sites, said Lisa

Farringer, a Washington attorney representing TotalNews.” David S. Hilzenrath,

THE WASHINGTON POST, Feb. 11, 1997, Tuesday, Final Edition, at D01.

356 The new use is only “potentially” a source of income because whether it

is or is not an actual source depends on how the copyright issues are decided.

The right question

about incentives
History and Analysis of the Three Patterns





Decentralized infringement: issues

For decentralized infringement, the history is much the same as

with new subject matter and new uses questions: different

technologies have received different responses.

The decentralization issue often springs from changing costs that

make certain uses of works so cheap that they are no longer

centralized and hence no longer “visible” or readily controllable

by copyright owners. But it is not just advances in technology that

can bring about this situation. In the 19th century, for example, it

was common for “hit-and-run” theater troupes to travel to small

towns in the United States and give unauthorized play

performances. The technology of communications and

transportation—in those pre-telephone, pre-airplane days—was

such that it was hard for a rights organization in, say, New York,

to learn of a traveling troupe performing for one or two days at a

small town in the Midwest in time to do anything about it. As a

House Report noted in 1894, in regard to the “professional play

pirate”: “It is difficult and in many cases impossible to serve him

with injunctions and court orders, because of his migratory habits;

and as he is in almost every instance entirely without attachable

means, it is impossible to satisfy a money judgment against him,

however culpable he may be, and whatever injury he may have

occasioned to the author or owner.”357

Eventually, Congress responded to these hit-and-run drama

performances with an amendment to the Act that sharply

increased the penalties for infringement of dramatic works,

hoping perhaps to provide greater deterrence through greater

punishment.358

 

357 H.R. Rep. No. 1191-53, at 2 (1894).

358 See H.R. Rep. No. 1191-53, at 2 (1894).
Analysis





More commonly, the situation does, however, relate to advances

in technology. Photocopy machines in the 1950’s and 1960’s make

such an example. Much debate went on in CONTU over

photocopying’s significance for copyright law.359

Private guidelines

One result of the deliberations over photocopying was that

Congress essentially immunized certain actors—principally

libraries—for providing photocopy machines, as long as the

requisite notice about copyright was clearly posted. It left the

liability of individuals who make photocopies to be assessed on a

case-by-case basis as a matter of fair use. Additional guidelines

came as a result of private bargaining between affected interest

groups in the form of the “educational fair use guidelines.”360 In

essence, these guideline constitute a kind of “promise” or

“assurance” from various copyright owners that if various

copyright consumers (like “educational institutions”) make no

more than some defined amount of copying of copyrighted

works, the owners will not sue for infringement. The agreements

do not have the force of law and are not legally binding361—

certainly not on any organizations that were not a party to the

discussions. Moreover, they say nothing about the results of

copying that exceeds the guidelines: such copying may or may

not constitute a fair use of the works in question.362

 

359 See CONTU REPORT, supra note 232, at 47-78.

360 AD HOC COMMITTEE ON COPYRIGHT LAW REVISION, AUTHORS LEAGUE OF

AMERICA, AND ASSOCIATION OF AMERICAN PUBLISHERS, INC., AGREEMENT ON

GUIDELINES FOR CLASSROOM COPYING IN NOT-FOR-PROFIT EDUCATIONAL

INSTITUTIONS WITH RESPECT TO BOOKS AND PERIODICALS, reprinted in HOUSE REPORT

at 68ff [hereinafter CLASSROOM GUIDELINES].

361 Marcus v. Rowley, 695 F.2d 1171, 1178 (9th Cir. 1983).

362 “There may be instances in which copying which [sic] does not fall

within the guidelines stated below may nonetheless be permitted under the

criteria of fair use.” CLASSROOM GUIDELINES at 68.
History and Analysis of the Three Patterns





Several comparable negotiations among interested parties have

been going on in response to the digital age. These groups meet

under the umbrella term “CONFU,” for “CONference on Fair

Use.”363 Separate CONFU groups have been addressing

guidelines for use of copyrighted works in several contexts:

“Digital Images,” “Distance learning,” “Electronic Reserves,”

“Multimedia,” “Interlibrary Loans,” and “Use of Software in

Libraries.”364

Statutory immunization and compulsory license

The recording of music, such a major area of controversy in the

1909 Act revision, has also been a major issue even under the 1976

Act. The advent of home audio taping equipment is a classic case

of new technology making decentralized infringements readily

possible. At first, the question was one of new subject matter:

sound recordings as such—as distinct from the music the

recordings contained—were not copyrightable. Lack of subject

matter protection gave rise to the phenomenon of “bootleg” audio

tapes. In 1971, Congress amended the Act to extend protection to

sound recordings as copyrightable subject matter in direct

response to that problem.365 But the decentralized infringement

issue was lurking in the background, as the cost of home audio

taping fell.

 

363 Helpful information on CONFU can be found at the PTO web site:

<http://www.uspto.gov/web/offices/dcom/olia/confu/> as of October 18,

1997.

364 See

<http://www.uspto.gov/web/offices/dcom/olia/confu/conclutoc.html> as of

October 18, 1997.

365 See House Report on the Sound Recording Amendment of 1971, H.R. REP.

NO. 487, at 2 (1971) (“Existing Federal copyright law ... protects the owners of

copyright in musical works ... but there is no Federal protection of sound

recordings, as such. As a result, so-called ‘record pirates’ ... can and do engage

in widespread unauthorized reproduction of phonograph records and tapes

without violating Federal copyright law.”).
Analysis





The issue surfaced in Congress when digital audio recording was

developed along with an accompanying fear by music copyright

owners that widespread “perfect” copying of music would soon

follow. After much debate, Congress settled on the imposition of

royalty on the importation or sale of digital audio recording

devices and on blank digital tapes.366 An arbitration panel then

allocates this royalty “pool”, 367 much as is done with cable

television.368

Fair use versus contributory infringement

Decentralized infringement has sometimes created a tension

between the doctrines of fair use on the one hand, and

contributory infringement and its cousin, vicarious infringement,

on the other. Suppose, for example, a new type of machine were

invented that brought about a sudden decrease in the cost of high

quality book printing and binding. This new machine, let us say,

allowed individuals to make copies of books in their homes—not

only to duplicate individual pages of books, but also neatly to

size, trim, stitch, and bind them complete with an attractive paper

dust jacket. Assuming that this hypothetical new machine

encouraged individuals to begin to copy books at home with

increasing frequency, as it likely would, we would see a new

instance of decentralized infringement.

What would authorized publishers do? It would be difficult for

them to bring a legal action against the individuals involved: it

would be hard to identify them, for one thing; it would be a bad

form of public relations; relief in the form of damages would

 

366 See 17 U.S.C. §§ 1003, 1004.

367 See 17 U.S.C. § 1007. Cable compulsory licensing revenues are allocated

as prescribed under 17 U.S.C. § 111(d).

368 The division of the tax on blank tapes is specified in more detail than is

the division of royalties from the cable television industry. Cp. 17 U.S.C.

§ 111(d)(3) with § 1006(b)(1) and (2).
History and Analysis of the Three Patterns





likely be too small to justify the litigation; and injunctive relief

would run only against the parties to the action, not against

others.

Very likely, then, publishers would proceed not against the

individuals using the machine in their homes, but rather against

the manufacturer or seller of the new machines. The grounds for

suit would be contributory infringement: the seller of the machine

was contributing to the infringement of copyright by others. The

significance of this response to decentralized infringement is that

it makes use of the contributory infringement doctrine to bring

about a “re-centralization” of the infringement, from large

numbers of private individuals back to one or a few identifiable

sellers. The seller would undoubtedly raise the defense that

copying books at home for personal use is a fair use.

Of course, this has not happened with books, but essentially this

situation has arisen with other technologies such as video

recording devices—today’s VCR. In the case of VCRs, the Sony369

decision found that making tapes of free broadcast television

shows at home to watch later and then erase was a fair use. The

Supreme Court concluded that because the conduct was a fair use,

it was not directly infringing, and because there was no direct

infringement, the manufacturers of the video tape machines could

not be liable for contributing to anyone’s infringement.

Other decisions on other facts have come out differently. In one

case,370 a defendant offered the services of selling blank audio

tapes of a length specified by each customer. Ordinarily, one

would not expect the sale of blank tapes to constitute any sort of

infringement, direct or contributory. But facts brought out in the

case showed that tapes of non-standard length were only used for

 

369 Sony Corp. v. Universal City Studios. Inc, 464 U.S. 417 (1984).

370 A&M Records, Inc. v. General Audio Video Cassettes, Inc., 948 F. Supp.

1449, 1461-62 (C.D. Cal. 1996).
Analysis





one purpose: to produce bootleg copies of commercially recorded

music. The court found that the customers’ taping was an

infringement, and consequently that the seller of the blank tapes

was liable for contributory infringement.

Quite similarly, contributory infringement has emerged as a factor

in cases involving online service providers. More detailed

discussion of the doctrines of contributory infringement and

vicarious liability can be found in the section of this Report that

discusses Intermediaries’ liability, at page 133.

Decentralized infringement: analysis

The issues surrounding decentralized infringement are two: first,

that enforcing an owner’s copyrights is difficult; and second,

members of the public often perceive that anything they can do in

the privacy of their homes, for non-commercial purposes, must be

lawful.

Do nothing

One response to this situation is to do nothing. If it is practically

impossible for a copyright owner to enforce rights against

individuals, then the owner will not try to enforce them. If

individuals think what they are doing is lawful, and copyright

owners are not seeking to enforce rights against such individuals,

then there may be no need for anybody to do anything.

To a great extent, this has been the response to many instances of

decentralized infringement. Private guidelines about the

educational uses of photocopies, for example, do not apply to

individuals outside the educational environment; individuals

continue to copy small amounts of printed materials; courts have

not definitively determined that such copies are a fair use or are

infringing; consequently we are living with much decentralized

infringement by photocopy machine and that’s that. Similarly,
History and Analysis of the Three Patterns





home taping of music before the 1992 amendments to the

Copyright Act371 was a situation of decentralized infringement

that no authoritative decision had ever ruled to be a fair use or

infringing.

“Doing nothing” about an issue sounds almost un-American, but

there is much to be said for it in the context of copyright and new

technology. Technology changes rapidly; a court decision or a

statutory response that is apt today may be inapt or irrelevant

tomorrow. Waiting until things “settle down” may often be

appropriate.

Increase penalties

Another response is that of the 19th century Congress responding

to theater troupes: increase the penalty for infringement to such a

level that the occasionally punished individual serves as an

“example” for others. This sounds harsh, but it is nonetheless a

common response of legal systems to any situation in which

monitoring and enforcement are difficult.372 Stiff jail sentences for

individual drug offenses—as opposed to large-scale distribution

or sales—might be an example: drug offenses such as possession

by individuals are notoriously difficult to detect.

With decentralized infringement of copyrights, however, the

“offenders” are not likely to see themselves or other similar

citizens as “wrong-doers” in any serious way. The imposition of

stiff punishments for decentralized infringement of copyright,

 

371 Pub. L. No. 102-563, 106 Stat. 4237 (1992) (codified as amended at 17

U.S.C. §§ 1001-1010).

372 See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 230 (1992) (citing the

imposition of death by boiling in oil for the difficult-to-detect crime of poisoning

in the middle ages, and hanging for horse thievery in 19th century America); see

generally Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL.

ECON. 169 (1968).
Analysis





though far from out of the question, might therefore be politically

difficult.

Educate the public

“Public education” is another response. Many of those

interviewed during project Looking Forward who are or represent

copyright owners spoke of the need to educate the public about

copyright.373 The National Information Infrastructure Task Force’s

White Paper contained a substantial section dealing with the issue

of public education specifically.374 There is much to be said in the

abstract about educating the public about copyright principles. It

is hard to argue against the public’s becoming more

knowledgeable about any area of legal rules that affects their

behavior.

In some sense, educating the public in this way constitutes an

acknowledgement that when “everyone becomes a publisher,”375

then everyone has to learn the rules of publishing. Such a

conclusion would not be unprecedented. Before the development

of automobiles, horses were a major form of transportation. When

cars were first invented, they were few in number and driven by a

small percentage of the population. Eventually, though,

“everyone” became a car driver. When that happened, we did not

insist that people continue to follow the rules appropriate for

 

373 Indeed, education about copyright and the Internet may be easier

today than it was, thanks to the Internet itself. It is straightforward and

inexpensive to post information about policies, including copyright policies,

and many organizations do so. See e.g. GEORGIA HARPER, UNIVERSITY OF

TEXAS SYSTEM, OFFICE OF GENERAL COUNSEL, COPYRIGHT LAW IN THE

ELECTRONIC ENVIRONMENT, available from

<http://www.utsystem.edu/OGC/IntellectualProperty/lib_fac.htm> as of

December 17, 1996.

374 WHITE PAPER supra note 90, at 201-210.

375 That “everyone might become a publisher” does not imply that

commercial publishers will fade away. But it is certainly true that “everyone”

has the capability of reaching millions of other people using the Internet.
History and Analysis of the Three Patterns





riding horses; rather, when everyone became a driver, everyone

had to follow the rules appropriate to driving. Analogies are

never perfect, but as with driving, one could argue that when

everyone is a publisher, everyone should follow the rules of

publishing. Those rules include copyright.

Make it lawful

A widely offered counter-argument is that when everyone begins

to engage in certain conduct, and feels that that conduct is or

ought to be lawful, then the law should change to make that

conduct lawful. This is a kind of “throwing in the towel” and

saying that if nothing can be done to stop certain conduct, like

“home copying,” then the wisest course is to accept what cannot

be changed and declare the conduct to be lawful. Behind this

argument is also the belief that declaring conduct that cannot be

stopped to be unlawful has the effect of encouraging disrespect

for the law generally and is affirmatively a bad idea.

Yet, we do not reach this conclusion in many other areas of public

life. We accept the existence of widespread traffic violations but

continue to insist that they are still violations. In part, this is

because changing the traffic rules to reflect what many people

actually do might have the effect of changing what people

actually do. That many people exceed the speed limit, for

example, is not a good argument for eliminating speed limits; if

one were to eliminate them, more people would speed than do

now and the result might be highways that are less safe than

otherwise.

If decentralized copyright infringement were declared lawful,

what change in behavior might we see? Would the resulting new

behavior, if any, be harmful?

Many people would answer: nothing would change. Circulating

others’ e-mail messages is done today, e.g., even if it is technically

an infringement; if it were legalized tomorrow—according to this

Behavior changes
Analysis





argument—the only difference would be that millions of Internet

users would no longer be in possible violation of copyright.

Similar arguments could be made about home taping of music,

the copying of others’ Web sites, and so on.

This argument may be correct as far as it goes, but it misses an

important point. The changed behavior that one should be

concerned with is any relevant person’s behavior, not just that of

the individuals who first come to mind.

Suppose that Congress declared, to take a quick example, that all

e-mail was in the public domain. Those who presently circulate

others’ e-mail messages (and lots of people do) would no longer

be technical infringers of copyright; the issue of “fair use” would

no longer need to be considered, because a prima facie case of

infringement could not be made out in the first place.

What else might happen? Perhaps businesses would start up to

intercept private e-mail in order to create searchable libraries of email messages. That might mean that every trivial e-mail message

anyone ever sent would become a permanent record, open to

public review and scrutiny. Whether that would be good or bad,

it would be a change in the behavior of someone—the start-up

business—even though not the individuals that we might first

think about in fashioning some sort of new rule.

This same issue has echoes in the recent Michigan Document

(“MDS”) case376 and related cases.377 In MDS, educators assembled

compilations of copyrighted materials and had them reproduced

for students by a professional copy shop. In a suit by copyright

owners against the copy shop, the district court found this

 

376 Princeton Univ. Press v. Michigan Doc. Servs., Inc., 855 F. Supp. 905 (E.D.

Mich. 1994), rev’d, Princeton Univ. Press v. Michigan Doc. Servs., 74 F.3d 1512

(6th Cir.), reh’g en banc and opinion vacated, Princeton Univ. Press v. Michigan

Doc. Servs., 74 F.3d 1528 (6th Cir.), aff’d 99 F.3d 1381 (6th Cir. 1996).

377 E.g., Basic Books v. Kinko’s Graphics, 758 F.Supp. 1522 (S.D.N.Y. 1991).
History and Analysis of the Three Patterns





conduct not to be a fair use. The Court of Appeals reversed,

finding that is was a fair use. The entire court reversed again in an

en banc opinion that found the activity not to be a fair use.378

For this Report’s purposes, it is not necessary to say that one or

the other opinions was right or wrong. The case overall helps to

illustrate a point about decentralized infringement. Assume that

individual students make compilation copies for themselves “all

the time.” That is, let us assume that this is a classic case of

decentralized infringement. Should we declare the conduct

lawful, on the grounds that “everybody does it all the time?”

There is certainly an argument for doing so, and doing so

comports with many people’s intuitive sense about what is or is

not “wrongful.”

On the other hand, a declaration that the students’ conduct is

lawful may bring about a change in behavior—not necessarily

that of the students, but rather of others: professors, for one, or

commercial copy shops for another. Under a rule of no liability,

professors may be more willing to assign compilations, and copy

shops more willing to make the copies, than they might otherwise

have been under a rule of liability. If that were to happen, it

would mean that individual copying is a situation in which a

change in the rules might inadvertently change behavior—albeit

that of others than first identified.

Technological responses

A great deal of the response to decentralized infringement is not

legal at all: it is technological. Copyright owners often attempt to

make unauthorized uses harder or more expensive through

implementation of technological protection measures.

 

378 See Princeton Univ. Press, 99 F.3d 1381, note 376 supra.
Analysis





Such responses might include deliberate decisions such as adding

some form of “copy protection” to computer video games so that

an original disk must be present for the game to operate, or

printing text on red-colored paper to reduce the quality of

photocopies, or “scrambling” satellite signals so that would-be

viewers must buy a “descrambler” box to see the programs.

Other responses may simply take advantage, deliberately or by

happenstance, of “natural” technological restrictions on

unauthorized uses. For example, the National Geographic magazine

is printed on extremely high quality, coated paper, which

provides excellent reproduction of photographs. Unauthorized

copies of the magazine on ordinary photocopy machines would

not constitute much of a substitute for the originals because the

inexpensive reproduction technology of photocopying today is

vastly inferior to the Geographic’s high quality printing.

It is sometimes thought that the amount of Internet copying is

related to the fact that digital works can be “perfectly” copied,

and at low or trivial cost. Digital works are said to stand in

marked contrast to “analog” works, which cannot be perfectly

copied. Hence, it is said, copyright faces grave difficulty in

adapting to the digital world. There is some truth to this contrast

in the two types of works, to be sure, but much less truth than is

commonly realized. The implications of this observation—that

digital and analog works are less different than often thought—

for tomorrow’s copyright issues are substantial.

A typical analog work would be a cassette tape with music

recorded on it. When that tape is copied, the quality of the second

tape is lower than the original tape. If that second tape is itself

copied, the quality of the third tape will be even lower. The same

thing happens when one photocopies a page of text: the first copy

is likely to be quite clear, but a second one will be a little worse, a

third one even worse, and so on. Every generation of copy is

inferior to the one that preceded it.
History and Analysis of the Three Patterns





But take a digital work like computer program residing on a

computer hard disk. If it can be copied at all, the copy will not

have degraded one iota, but will be exactly like the original in

every way—a perfect substitute for the original. Second and third

and fourth generation copies will also be perfect substitutes.

The assertion that digital and analog works differ radically

because the former can be perfectly copied misses the mark. For

purposes of copyright law, the perfection of copies is not the

point. The point is the cost of making an adequate copy. The

difference between digital and analog works is therefore not one

of technology, but of economics: the time and trouble and expense

of making an adequate copy. The following discussion will

collapse the notions of “time and trouble and expense” into the

single term “cost,” with the caveat that “time and trouble” are as

much a part of “cost” as any actual dollar outlay.

The difference between analog and digital works matters because

often the cost of making an adequate copy of each type of work is

quite different. As in the example of the photocopies and audio

tapes mentioned already, analog copies seem to “go downhill”

rapidly in quality. But just how rapidly depends not only on the

analog nature of the medium, but on the quality and

sophistication of the recording equipment used in making both

the original and the copies. Very high quality analog recording

equipment may be able to make several more generations of

useful copies of a tape than lower quality equipment. If these

copies are adequate for one’s purposes and inexpensive, they can

be “perfect enough,” even though in analog form.

Textual material makes, however, a better example. Can a book—

a traditional, paper-and-ink-book—be perfectly copied? Of course

it can. Publishers do it all the time: they produce books in

thousands of copies for sale. And every one of those books is a

“perfect” copy—perfectly substitutable for any other copy.

Difference between

analog and digital not

inherent

Difference lies in cost

of copying
Analysis





Anyone can make a similarly perfect copy of the same book. All

that is necessary is to hire someone to set the type or scan or key

in the text; to proof-read and correct the resulting text file; to hire

someone to use a word processor or page layout program to

arrange the layout; to print the text out; to hire someone to make

whatever photo-offset or other process “master” copy is necessary

from the printed pages; to hire a printer to print the book; to hire

someone else if needed to stitch and bind the book into a cover;

and so on. The technology of paper-and-ink books, in short, does

not prevent anyone from making a perfect copy of a book. Indeed,

the publishing industry depends on the fact that publishing

technology allows the making of multiple perfect copies. It is

rather the cost of making such copies that stops most

unauthorized individuals from doing so (and perhaps the threat

of being sued—another kind of cost).

Again, for copyright purposes, the differences between digital

and analog works is not due to any inherent quality of these two

types of media, but is a simple function of the cost of copying.

And a crucial corollary to that point is this: if something—a legal

regime, a technology, a business model, or anything else—has the

effect of raising the cost of copying digital works, then other

things being equal, the difference between such a work and the

same work in analog form will go down.

What would make the cost of copying digital works go up?

One obvious thing is encryption, coupled with a proprietary

viewer. Both topics have been discussed under the headings

Encryption, at page 61, and Proprietary viewers, at page 76.

Other technologies will also undoubtedly arise that raise the cost

of copying digital works. Even the nature of the World Wide Web

today imposes higher copying costs than is often realized. Typical

Web documents are “dispersed”: they have many links to graphic

images, for example. Copying an entire page with one button

press is often not possible: a single button press will save a

What happens if

copying costs go up?
History and Analysis of the Three Patterns





document’s “skeleton,” but not all the separate files that contain

graphic images.

For example, here is a screen capture of a popular audio site on

the World Wide Web as it appears from a Web browser:

Figure 15: Screen capture from <http://www.audionet.com>, showing the

site as it normally appeared on November 11, 1996.

If one attempts to save this page with a single keystroke,379 to

one’s own desktop computer, many of the graphic images, which

are stored on the original site in separate files, will not be saved.

The result will be that the structure of the page, and some of its

text, will be saved but many of the images will not be. With the

particular example page just shown, the result of saving the page

with a “single keystroke” is shown in the following illustration.

 

379 By using the “File—SaveAs” command.
Analysis





Figure 16: Screen capture of the Web page in Figure 15 saved with a “single button

press” (actually using a browser’s “File Save As” menu command and reloaded into

the browser as a file from the author’s disk storage).

One can, with more keystrokes or with special software, save all

of the graphic images as well. This example is not meant to show

that capturing all elements of a Web page is impossible—it is not.

Rather, this example shows how the World-Wide Web encourages

the assembling of computerized information from different

computers and files within those computers. Pages that consist of

a variety of materials that only appear to be co-located on a single

virtual “page” constitute a type of compound or “dispersed”

document. These documents are harder to copy than simple

documents for which all information is located in a single file on a

single computer.

The recent attention paid to the “Java” programming language

also shows that information on the WWW is not always available

for “one click” downloading. Java is a programming language

designed with the World Wide Web in mind. It contains simple

JAVA programs
History and Analysis of the Three Patterns





and concise ways of describing many of the things that owners of

World Wide Web sites would be likely to want to do: create small

animated graphic images or scroll text in a moving banner across

the page, for example.

A World Wide Web page created with Java is not just an

unchanging set of text and graphic images, to be displayed to

anyone who requests it, like a book on a library shelf. A Javacreated Web page is actually a container for one or more Java

programs. These programs can take different action, depending

on who the user is who is viewing the page, or how that user

answers different questions. The “page” can therefore look very

different to different people because the display is created “on the

fly” and does not exist as a static entity.

Indeed, one complaint of software users about dynamicallycreated pages that have been generated by Java programs is that

some generations of Web browsers have no mechanism to print

out the page on paper.380 Such technologies as Java therefore can

serve to raise the cost of making perfect copies and consequently

to reduce the difference between analog and digital works.

Many of the new technologies discussed earlier381 serve as

technological methods of raising the cost of making unauthorized

uses of copyrighted works and hence as responses to the issue of

decentralized infringement.

To the extent that these technologies—encryption, watermarks,

digital objects, proprietary viewers, and the like—raise the cost of

unauthorized uses above the benefits of such uses, the

 

380 See Ed Scannell, Net-It product supports full printing under Java,

INFOWORLD, posted August 29, 1997, at <http://www.infoworld.com/cgibin/displayStory.pl?970829.wnetit.htm> (“Corporate users recently have been

complaining about their inability to print graphical elements of documents from

[certain] Java-based applets”).

381 See the discussion in the section titled How the Internet Will Work

Tomorrow, in particular the section titled Mechanics, at page 54.
Analysis





technologies will lessen the extent of decentralized infringements.

Even micro-payments that allow finely grained metering of

information transactions (the “half-a-penny per page-viewed”

concept) are a response to decentralized infringement. By sharply

reducing the cost of authorized uses of copyrighted works, micro

payments serve to make the cost of unauthorized viewing

relatively much larger. Hence, such payment schemes serve to

increase the (relative) cost of infringement and therefore tend to

reduce the amount and extent of such infringements.

Summary and conclusion on

decentralized infringement

Technological or social changes sometimes bring about a situation

in which the cost of engaging in behavior defined as copyright

infringement goes sharply down. When that happens, the

incidence of the behavior may well go sharply up. Phenomena

like travelling 19th century theater troupes and technologies like

jukeboxes, photocopying, and home audio tape recording all fit

that description.

Our legal system has historically responded in a variety of ways,

from greatly increased punishments to serve as a deterrent, to

compulsory licenses with royalties set by Congress, to voluntary

private guidelines. Other approaches include a judicial holding

that such conduct is a fair use or impliedly licensed; greater

efforts at public education about copyright; legislation to declare

the conduct no longer to be infringing; and the development of

new technologies like encryption to make unauthorized use of

copyrighted materials harder or more costly.
Copyright in a rapidly changing environment





6.3 Copyright in a rapidly changing

environment

Will copyright decrease in importance in tomorrow’s world of

digital communications? The assertion that it will is made not

only by some who are not lawyers or copyright experts, but also

by some who are. It is worth trying to understand what this

means.

One assumption underlying this view is that the Internet

encourages new business models for authors. These new models

depend not on selling discrete units of information—the older

models—but on giving away such units in order to sell access to

other forms of information or other products or services

altogether.382

 

382 See, e.g., Esther Dyson, Intellectual Value, WIRED magazine no. 3.07,

available as of October 5, 1997 from

<http://wwww.wired.com/wired/3.07/features/dyson.html> (“Intellectual

property that can be copied easily likely will be copied. It will be copied so easily

and efficiently that much of it will be distributed free in order to attract attention

or create desire for follow-up services that can be charged for.”) (quoting from

the December, 1994 issue of Dyson’s Release 1.0, itself available as of October 5,

1997 from <http://www.edventure.com/release1/1294.html#youknowme>).

But see Dyson’s own limitation on others’ use of her own intellectual property:

“Occasionally it makes sense to put materials into the public space to foster and

participate in the discussion of important issues. We encourage distribution of

this document, but do ask for fair use: Don't remove our name from our words

when you quote or reproduce them, don't change them and don't impair our

ability to make a living with them.” Available as of October 5, 1997 from

<http://www.edventure.com/release1/1294.html>.
Analysis





For example, both the Microsoft and Netscape corporations

essentially give away383 their competing, and very sophisticated,

software “browsers”: the “Internet Explorer” and “Navigator,”

respectively. These are the tools that enable one to access the

World Wide Web and see all the multi-media enhancements that

are evolving on Web sites: elaborate typography, graphics,

animation, sound, and so on. A great deal of other software is also

given away by various vendors, sometimes in the form of “trial”

versions, but even as enhancements to existing products or as

stand-alone products that are meant for permanent, free use.

In addition, yet other business models may also arise. It might be

possible, for instance, for a software company to give away a

major software product as long as it can sell something else to

accompany that give-away. This “something else” might be a

reference manual and user guide that are published on paper and

have all the copyright attributes and protection that books on

paper have traditionally had. Or the company might sell service

and support to those who choose to pay for it. Or software

companies might give away the initial product but charge a

subscription fee for continued updates as well as technical

support.

New business models might mean that authors would rely less on

copyright law in the future than they have in the recent past. But

there are two important responses to this observation. First, the

future is not predictable. Second, even if new business models

mean less direct reliance, does it follow that Congress or the

 

383 Microsoft gives its browser software away currently; Netscape sells a

version of its browser, but also provides free downloads of various versions.

Upcoming releases of a number of Microsoft products will apparently

incorporate Web access tools as integral parts of other pieces of software—or

would incorporate them if the incorporation is not barred by a court for reasons

of antitrust concerns. If one buys these other packages, such as the Microsoft

Office family of products, Web browser capability will come along with the

package. This will apparently also be true of other similar software packages,

such as Corel’s office suite, and may well prove true for others like the

IBM/Lotus “SmartSuite” product line.

New business models
Copyright in a rapidly changing environment





Copyright Office needs to do something? Or should refrain from

doing something?

The conclusion that copyright is less necessary in tomorrow’s

digital world rests on a crucial assumption about the future

evolution of the Internet and digital technology, namely, that the

digital world will continue to evolve in the direction that some

parts of the digital world seem to be evolving now. It is true that

some software is now being given away, as the browser software

example shows. But the assumption about copyright’s role in the

future is an assumption that giving away software will continue

as a desirable practice for the indefinite future. Can we

confidently predict that future?

The Internet and its growth and importance today were largely

unpredicted developments. Few people ten years ago, or even five

years ago, foresaw what is so often and accurately termed the

“explosion” of Internet technology, with the emergence of worldwide e-mail for ordinary citizens,384 access to libraries and

information around the globe, and the like. Even more, the rise of

the World Wide Web, based on hypertext linking, was entirely

unforeseen just a few years ago.385 Yet it is that wholly unforeseen

development of WWW technology that has fueled the Internet’s

explosion and led to the current predictions about the decline of

copyright’s importance.

 

384 Academics, especially scientists, were making use of some of these

Internet capabilities years earlier than others.

385 Vannevar Bush’s visionary thinking in 1945 about hypertext (see

Vannevar Bush, As We May Think, ATLANTIC MONTHLY, no. 176, pp. 101-108, July

1945) is not relevant here because it did not occur at a time in which a

mechanism to implement the vision existed. Besides, it would be inaccurate to

say that before 1945, the WWW was unforeseen, but that after that large

segments of the population expected its creation. As a practical matter, then, it is

fair to say that the Web was unpredicted even a very few years before its

invention, and that the degree of color, sound, animation and the like that we see

today was unpredicted even for some time after that invention.

Decreasing reliance

on copyright?
Analysis





Even if these unforeseen developments account for new business

models, and even if less reliance on copyright is a result, how do

we know that even newer unforeseen developments will not

happen again? We should not be optimistic about our ability to

foresee the future evolution of technology, especially Internetrelated technology. It may be possible, as this Report has tried to

do, to examine current technology research and current

developments in technology to predict their copyright

consequences in the short-term future. It is another thing entirely

to try to predict technologies that are not known or being worked

on today.

A world of revolutionary change has been taking place in digital

communications over the last decade; there is no reason to think

that revolutionary change cannot happen in the next decade. In

short, it is ironic that many people, having utterly failed to foresee

the current state of technology today and the role of copyright in

that state, conclude that they can foresee the state of technology

tomorrow and the role of copyright in that state.

It is not just technology that is hard to predict. The public’s needs

and desires are also unpredictable, and that calls for flexibility.

We can use computer software as an example. Public demand

may swing the software industry toward a model of give-away

software, with payment being made for technical support or

printed manuals. If that happened, the copyright on software as

such might assume decreased importance to the software

industry.

But it is equally true that public demand might swing toward

software that is so easy to use that it required no technical support

and no manuals. If that happened, copyright on software as such

would assume increased importance.

Much of the discussion of new models also focuses on the

computer software industry specifically. The idea that software

may be given away, with payment made for manuals, technical
Copyright in a rapidly changing environment





support, upgrades, and the like is plausible—although there is no

sign that this is actually happening for more than a tiny fraction

of all commercial software. But that argument in terms only

applies to computer software and perhaps only to some software.

Computer software itself is but a fraction of the market for

copyrightable material. Though anything could happen, it does

not seem likely at present that new business models will allow

movie producers, for example, to give away their movies and

make money by selling manuals and technical support. Or that

music producers could do so, or the producers of computerized

clip art, or any of scores of other information producers for which

“technical support” or any other collateral service is not a useful

offering.

To sum it up, the importance of copyright is not nearly so much

that it has served in the past as “the” way that producers of

information products earn revenue. Copyright’s significance is

rather that it continues to give producers a choice of what to

produce and a choice of business models to sustain that

production. A copyright possessed by an owner can be either

asserted or waived as the public demand dictates. A copyright not

possessed can only be “waived,” as it were—it can not be

unilaterally created even if the public’s desires make the assertion

of copyright desirable. Copyright owners, in short, may choose to

produce things for which copyright is important, or they may

choose to produce other kinds of things. In a changing world, the

preservation of these choices is helpful to the public.

Therefore, even if it turns out that copyright protection is less

important for some information products in the future, that fact

by itself does not support an argument that the copyright statute

should be changed.

Copyright as

preserving choices




7. Conclusion

The Internet is a loose collection of computers and standards that

permits worldwide transmission of digital information. “Digital

information” can be almost any kind of information: text,

pictures, music, motion pictures, television broadcasts, music, and

so on. All of these things exist and are being circulated over the

Internet; all are subject to copyright protection. Because the

Internet and digital technologies permit new ways of creating,

using, and duplicating works of authorship, they raise new issues

for copyright law.

Understanding those issues requires some understanding of

Internet technology generally, and of particular technologies

especially relevant to copyright law. The significant points about

computer networks generally are that they handle digital

information of any sort; and that they break up transmitted

information into small “packets” that are routed through many

different computers under the control of many different people

and organizations.
Conclusion





Particular technologies of importance to copyright include:

Electronic Copyright Management Systems—methods of

making digital works either harder to copy or easier to license or

both. They can take many forms, but a common form is that of a

“digital object.”

Digital objects—a work of information that has been bundled in

a kind of “wrapper” or “envelope.” This wrapper or envelope

contains information about the rest of the contents, such as an

abstract or the terms and conditions for use of the contents.

Typically, some form of encryption protects the contents.

Encryption— a means of encoding information so that it cannot

be read or used without the proper key.

Proprietary viewer—a computer program that keeps a digital

object always under its control, allowing it to be used only in

ways that have been authorized.

Watermarks—an alteration to a digital work like an image or

photograph or motion picture that is unnoticeable to the human

eye, but that contains identifying information like the name of the

copyright owner, the rightful possessor, the terms and conditions

of use, etc.

Dispersed works—works that are difficult to duplicate because

they consist of different parts and pieces located in different files

and on different computers, or because they are created “on the

fly” by computer programs.

Today’s Legal Issues

A number of copyright issues are well known, though not

necessarily well settled. Among them are these:

Does posting information on a Web site constitute “publication?”
Tomorrow’s Issues





Does temporary storage, called “caching,” constitute an

infringement of copyright? Is it a fair use, or impliedly licensed?

How should intermediaries like online service providers be

treated for copyright purposes?

Should copyright law respond to the existence of widespread

copying of digital materials? If so, how?

Tomorrow’s Issues

Other issues are less well known, but rapidly arising. They range

from minor and technical issues of interpretation, to more

fundamental policy questions. They include:

When “public” is defined in relation to “places,” can the online

world be a “place?”

How should the Copyright Office or courts handle questions of

what exactly is copyrighted about constantly changing, constantly

updated information on Web sites?

When a large part of the value of information may be in its factual

accuracy, and facts are not copyrighted, how will lines be drawn

between original and unoriginal factual expression?

Can computerized representations of oneself, often called

“agents” or “avatars,” be copyrighted?

Should Internet radio and television be treated for copyright

purposes the way broadcast radio and television are treated? Or

the way cable television is treated? Or the way books and printed

matter are treated?

Does it infringe any copyright rights to include part of someone’s

WWW site within a border or “frame” on one’s own site?
Conclusion





Should the right to authorize be interpreted as identical to the

right to prevent contributory infringement?

Can works of visual art include digital works, when the definition

of “visual art” is derived from tangible media?

When another’s computer requests information from one’s own

computer, or attempts to send unwanted e-mail to one’s own

computer, does that process initiate an unauthorized copying of

computer software and hence a copyright infringement?

Does a movement from “bulk” pricing for information access, like

that done traditionally for books or movies, toward a more finely

grained pricing “per byte” or “per second” imply the need for

changes to copyright law?

Will computer-generated works grow in sophistication enough

that serious questions will arise over the degree of their human

creativity and hence copyrightability?

Will the Internet facilitate collaboration among ever-larger

numbers of authors in a way that makes determining copyright

authorship problematical?

Do unauthorized Internet archives and repositories infringe any

copyrights? Or are they a fair use or impliedly licensed?

Do search sites that contain enough indexing information to

reconstruct entire Web sites and other works infringe any

copyrights? Or are they a fair use or impliedly licensed?

If information can be measured in very small units—very finely

“metered”—does that metering implicate any issues of copyright

law or policy?

Will the use of software “filters” to delete, re-arrange, or reposition information from a variety of sources implicate copyright

law’s right to make derivative works?
Three patterns of copyright and new technology





To some extent, copyright law is based on the notion of

information as something that can be exchanged. Other

information laws like broadcasting are based more on the act of

distributing information. What happens at the intersection when

“distributing information” and “broadcasting” seem to be

converging?

Does copyright’s creation of a form of “property” rights conflict

with other property-based legal rights like bailment law?

Will state contract law, in particular the proposed Uniform

Commercial Code section 2B on software licensing, conflict with

any copyright rights?

Three patterns of copyright and new

technology

Copyright law has a long history of accommodation to new

technologies. The need for accommodation almost invariably

appears in the form of three “patterns” of issues: new subject

matter, new uses, and decentralized infringement.

If a technology creates a new medium of expression, or a new

type of expression, it raises the subject matter issue: should the

new medium or new expression be copyrightable? The 1976 Act

generalized the concept of subject matter to “works of

authorship” rather than “media,” so that new media as such

rarely raise this issue today. New types of expression like a

computer program’s menu command structure continue to raise

subject matter issues, however.

Many technologies create a new way of using existing

copyrighted works. These technologies give rise to the “new use”

question: does the new use of an existing copyrighted work

infringe the author’s rights? Because copyright rights have always

been, and still remain, defined in terms of current media and
Conclusion





current methods of exploitation, the development of new media

and new methods continues to plague copyright policy makers.

One crucial question about a new use technology is whether it

will eventually eclipse or supplant some existing uses.

Unfortunately, that question requires predictions about

technology, business, and consumer tastes that are difficult to

make.

Finally, many technologies sharply lower the cost and

inconvenience of making unauthorized uses of copyrighted

works. Technologies like photocopying, home audio taping, and

personal computers are good illustrations. This development, here

labeled “decentralized infringement,” increases the amount of

unauthorized use and simultaneously makes the identification or

monitoring of the actors involved difficult. Commonly the

development raises, and creates some tension between, the

doctrines of fair use and contributory infringement. It also spurs

technological developments like encryption, watermarks, and so

on, the purpose of which is to re-raise the cost or inconvenience of

making unauthorized uses.

Arguments that digital works are fundamentally different from

analog works depend on an assumption that digital works are

easily and cheaply copied; hence these arguments invoke the

issue of decentralized infringement. For copyright purposes,

however, the differences between digital and analog works is not

one of technology, but of the cost of unauthorized uses. If

technological developments raise the cost or inconvenience of

making unauthorized uses of digital works, the differences

between analog and digital works will be reduced proportionally.
Copyright in a rapidly changing environment





Copyright in a rapidly changing

environment

Copyright protection is sometimes thought to be contingent on

particular business models such as the sale of tangible copies of

works. In circumstances where technology facilitates other

models, such as advertising-supported Web sites, copyright may

seem less important. By itself, however, this observation does not

support arguments for changes to copyright law. Moreover, the

contours of new technologies are not easily foreseen—and

consequently neither are the business models appropriate to those

technologies. Copyright in a rapidly changing technological

environment therefore functions less to support a particular

business model than it does to support the ability of future

copyright owners to choose the appropriate business model,

whatever that may prove to be.




8. Appendices

Three appendices follow. The first is a list of (and an expression of

deepest thanks to) the people who participated in project Looking

Forward as interviewees or conference attendees.

The second is a list of the presentations that the author made in

connection with the project.

Finally, appendix three is a short glossary of terms used in this

Report.




8.1 People interviewed

During the course of project Looking Forward many people very

generously spent time talking with me and members of the

Copyright Office about the Internet and copyright. I am

exceedingly grateful to them and hereby repeat my private thanks

to them in this more public forum: thank you.

Some of them met with me individually; others attended one of

the three focus group sessions held with other members of the

Copyright Office; some spoke with me by phone; others, not here

identified, made helpful comments on various presentations

concerning the project. The focus groups meetings took place on

September 13, 1996 (Stanford University, Palo Alto, California);

October 23, 1996 (the Copyright Office, Washington, D.C.); and

from November 4 – 15 (an electronic conference with individuals

from around the country).

This Report reflects my views alone, however, not those of any of

the people who participated in these conversations.

Listed alphabetically, with their affiliation at the time, they are:

1. Allan Adler (Association of American

Publishers)

2. Nick Anthony (Recording Industry Association

of America)

3. Fritz Attaway (Motion Picture Association of

America)

4. Stanley M. Besen (Vice President, Charles River

Associates, Inc.)

5. Marjory Blumenthal (Computer Science and

Technology Board, National Research Council)
Appendix 1





6. Scott Bradner (Computer Science, Harvard

University)

7. Timothy J. Brennan (Senior Economist, Council

of Economic Advisors, Executive Office of the

President)

8. Jack Brown (Brown & Baine)

9. Dan Burk (Assistant Professor, Seton Hall Law

School)

10. Kaye Caldwell (President, Software Industry

Coalition)

11. Scott Carr (DigiMarc Corporation)

12. Tim D. Casey (MCI)

13. Edward Cavazos (Andrews & Kurth, LLP)

14. Vint Cerf (MCI)

15. Julie Cohen (Assistant Professor of Law,

University of Pittsburgh)

16. Kenneth D. Crews (Associate Professor and

Director of the Copyright Management Center,

Indiana University School of Law)

17. Jeff Crigler (Cryptolope Project, IBM)

18. G. Gervaise Davis III (Davis & Schroeder)

19. Dan Duncan (Information Industry

Association)

20. Jim Dunstan (Haley Bader & Potts PLC)

21. Jesse Feder (Policy Planning Advisor, U.S.

Copyright Office)

22. Kelly L. Frey (Director of Strategic

Development, Copyright Clearance Center)

23. Jordan Glogau (IP2, CopySite)

24. Jonathan Hart (Dow, Lohnes & Albertson)
People interviewed





25. Peter Harter (Netscape Corp.)

26. Don Heath (President and CEO, the Internet

Society)

27. Brady Hoak

28. Liz Hogan (MCI)

29. David R. Johnson (President and Chief

Executive Officer, Counsel Connect)

30. Andrew Johnson-Laird (Johnson-Laird Inc.)

31. Brian Kahin (Counsel, Interactive Multimedia

Association, and John F. Kennedy School of

Government)

32. Robert E. Kahn (President, Corporation for

National Research Initiatives)

33. Tom Kalil (Executive Office of the President)

34. Ivan P. Kaminow (IEEE Congressional Fellow

Committee on Science, U.S. House of

Representatives)

35. Robert A. Kreiss (Professor and Director,

Program in Law & Technology University of

Dayton School of Law)

36. Bruce Lehman (Assistant Secretary of

Commerce and Commissioner of Patents and

Trademarks)

37. Mark Lemley (Professor of Law, The University

of Texas School of Law)

38. Larry Lessig (Professor of Law, University of

Chicago Law School)

39. Mary Levering (Associate Register for National

Copyright Programs, U.S. Copyright Office)

40. Melissa Smith Levine (Legal Advisor, National

Digital Library Project, Library of Congress)
Appendix 1





41. Jessica Litman (Professor of Law, Wayne State

University Law School)

42. Patrice Lyons (Offices of Patrice Lyons, PC)

43. Mark Manasse (Research Staff, Digital Systems

Research Center)

44. Susan Mann (National Music Publishers

Association)

45. William Marmon (MCI)

46. J.D. Marple (Business Software Alliance)

47. Tim May

48. Steve Metalitz (Smith & Metalitz)

49. Don Mitchell (National Science Foundation)

50. Michael R. Nelson (Special Assistant,

Information Technology, Office of Science and

Technology Policy)

51. Ray Nimmer (Leonard Childs Professor of Law,

University of Houston Law Center)

52. Susan Nycum (Baker & McKenzie)

53. Ron Palenski (Gordon & Glickson)

54. Maria Pallante (Policy Planning Advisor, U.S.

Copyright Office)

55. Shira Perlmutter (Associate Register for Policy

& International Affairs, U.S. Copyright Office)

56. Chris Pesce (CORBIS Licensing)

57. Marybeth Peters (Register of Copyrights, U.S.

Copyright Office)

58. Joseph C. Pistritto (Vice-President, Systems

Engineering, PointCast)

59. John Podesta (Visiting Professor of Law

Georgetown University Law Center)
People interviewed





60. David Post (Visiting Associate Professor of

Law, Georgetown University Law Center)

61. Margaret J. Radin (Professor of Law, Stanford

University Law School)

62. Joseph Reagle (MIT W3 Consortium)

63. Paul Resnick (AT&T)

64. Carol Risher (Association of American

Publishers)

65. Eric Roberts (Professor, Computer Science

Department, Stanford University)

66. Paul Russinoff (Recording Industry Association

of America)

67. Tony Rutkowski (Vice President, Internet

Business Development, General Magic, Inc.)

68. Pamela Samuelson (Professor, School of

Information Management and Systems and

School of Law, University of California at

Berkeley)

69. Charles Sanders (Harry Fox Agency)

70. Eric Schwartz (Proskauer, Rose)

71. William I. Schwartz (Morrison & Foerster LLP)

72. Cary Sherman (Arnold & Porter)

73. Emery Simon (Executive Director, Business

Software Alliance/APSI)

74. Eric Smith (International Intellectual Property

Alliance)

75. Oliver Smoot (Executive Vice President,

Information Technology Industry Council)

76. Virginia Sorkin (Library of Congress)

77. Terri Southwick (Law Offices of Terri

Southwick)
Appendix 1





78. Marcia Kemp Sterling (Vice-President, Bus.

Dev’l, and General Counsel, AutoDesk)

79. Carlton Stockton (MCI)

80. Hal Varian (Dean and Professor, School of

Information Management and Systems,

University of California at Berkeley)

81. Jim Warren

82. Wendy Wechsler (Walt Disney)

83. Jonathan Whitehead (Recording Industry

Association of America)

84. Terry Winograd (Professor of Computer

Science, Stanford University)

85. David Wittenstein (Dow, Lohnes, & Albertson)




8.2 Presentations

1. Library of Congress personnel (July 30, 1996)

2. The Center for Innovative Technology (“All Hands”

meeting) (August 5, 1996)

3. Visiting Russian Librarians at the Library of Congress

(October 17, 1996)

4. Dayton University Conference (November 2, 1996)

5. Copyright Office Speaks seminar (November 7, 1996)

6. The Copyright Society of the USA, Washington

Chapter (November 13, 1996)

7. William and Mary law school alumni (December 3,

1996)

8. Virginia Bar Association Intellectual Property section

(January, 1997)




8.3 Glossary

Browser: A computer program designed to access

computers on the World Wide Web—that is, computers

that use the HTTP communications standard.

Caching: A technique for temporarily storing information

that is or might be sent from one point to another over the

Internet. The point of the temporary storage is typically to

speed access to the information. This can happen either

because the “cache” is stored on a computer that is closer

to the end user than the original source of the information,

or that is more powerful than the original source

computer, or contains more access ports, or for any other

reason.

Cyberspace: A metaphorical allusion to communications

conducted over computer networks, especially the

Internet.

Digital object: A unit of information that has been

bounded and identified in a way that renders it easy to

index, locate, use, and exchange. The technique for doing

so usually creates the “object” in two parts: encrypted

contents (the “inner” part), and an unencrypted

description (the “outer” or “wrapper” part). The

“wrapper” typically describes the contents and specifies

any conditions for use of the contents.

Digital signature: A technique for authenticating the

sender of digital information. The technique relies on a

mathematical calculation done on the contents of a unit of

information to produce a unique number. If subsequent

identical calculations produce the same number, then the

information contents have not been altered.
Appendix 3





Framing: The use of hypertext links to information on the

World Wide Web in a way that makes that information

appear to be located on a computer other than the one it is

actually located on. The technique causes the display of

information from one site to appear surrounded by the

display of a second site. The information (graphics, text,

etc.) from the first second site appears to be “framed” by

the second site.

HTTP: See “World Wide Web,” below.

Hypertext: A method of creating links from one

information source to another. Originally it was used as a

means for connecting information in textual form to other

information in textual form—one document to another,

and another, and another, etc.—hence the term

hyperTEXT. Today the technique is to link together a

variety of different kinds of information, not just text, but

the term persists.

In-line linking: Another term for “framing.”

Internet: A world-wide collection of computers owned by

different people in different places that can communicate

digital information to one another using one or more of

several communications standards. The Internet is not a

“thing,” but a loose affiliation of computers that share

communications standards.

Intranet: The use of Internet communications standards

for the transmission of digital information within a

company or organization.

Java: A programming language that makes it easy to

program certain actions that are frequently called for on

the World Wide Web. Other programming languages can

do the same things a Java program can, but using Java

often requires far less programming labor.
Glossary





Search engines: Computer programs that continually or

regularly examine large numbers of sites on the World

Wide Web and index their contents. The results—the

indexes—are commonly made available to the public at

Web sites designed for that purpose, called “search sites.”

Often the terms “search sites” and “search engines” are

used interchangeably.

Server: A computer used to store information that is

designed for retrieval by others. A “Web server” is a

computer that serves as a host for information that can be

accessed over the World Wide Web.

Super distribution: A concept for allowing end users

(consumers) to distribute digital works directly to other

end users in a way that allows a third-party copyright

owner to earn royalties (if desired). “Super” distribution is

intended to contrast with “normal” distribution, which

depends on a central facility like a store to distribute items

and to track sales for royalty purposes.

URL: Universal resource locator. A standard way of

identifying a computer file name, the computer on which

it resides, and the communications standard that can be

used to interact with that file. URLs look like this example:

<http://www.wm.edu/law/publications/jol>

(the angle brackets are a convention of print publications

to mark off the URL itself from surrounding punctuation).

The “http” indicates “hypertext transport protocol,” which

is the communications standard for most World Wide

Web communication. Other communications standards

include “ftp” and “gopher,” which lead to URLs that look

like <gopher://acme.com> and

<ftp://somewhere.something.org>.

Watermarking: A technique for subtly altering a small

percentage of the bits that make up a digital work. The
Appendix 3





alteration is invisible or nearly so to the human eye, but

can be detected by computer programs designed for that

purpose. To be invisible, the alteration must be to a work

for which a small change is not noticeable or crucial: in

practice, that means watermarks are used on images and

sounds, as opposed to text. The alteration itself can contain

information such as names, addresses, numbers, etc.

Typically the purpose of the watermark is to contain an

author’s or copyright owner’s name, or the means of

contacting an owner or agent to gain permission for

certain uses, etc.

World Wide Web: All the computers and their contents

that can be accessed using a particular Internet

communications standard, namely “HTTP” or the

HyperText Transport Protocol. Often used interchangeably with the term “Internet” because so much of

the Internet is commonly accessed by means of this

standard.

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