Advanced Copyright Issues On The Internet

1. INTRODUCTION

   Over the years, the Internet has become the basic foundational infrastructure for the global movement of data of all kinds. With continued growth at a phenomenal rate, the Internet has moved from a quiet means of communication among academic and scientific research circles into ubiquity in both the commercial arena and private homes. The Internet is now a major global data pipeline through which large amounts of intellectual property are moved. As this pipeline is increasingly used in the mainstream of commerce to sell and deliver creative content and information across transnational borders, issues of intellectual property protection for the material available on and through the Internet have taken on great importance.

   Copyright law provides one of the most important forms of intellectual property protection on the Internet for at least two reasons. First, much of the material that moves in commerce on the Internet is works of authorship, such as musical works, multimedia works, audiovisual works, movies, software, database information and the like, which are within the usual subject matter of copyright. Second, because the very nature of an electronic online medium requires that data be "copied" as it is transmitted through the various nodes of the network, copyright rights are obviously at issue.

   Traditional copyright law was designed to deal primarily with the creation, distribution and sale of protected works in tangible copies.1 In a world of tangible distribution, it is generally easy to know when a "copy" has been made. The nature of the Internet, however, is such that it is often difficult to know precisely whether a "copy" of a work has been made and, if so, where it resides at any given time within the network. As described further below, information is sent through the Internet using a technology known as "packet switching," in which data is broken up into smaller units, or "packets," and the packets are sent as discrete units. As these packets pass through the random access memory (RAM) of each interim computer node on the network, are "copies" of the work being made?

   The case of MAI Systems Corp. v. Peak Computer2 held that loading a computer program into the RAM of a computer constituted the making of a "copy" within the purview of copyright law. This case has been followed by a number of other courts. Under the rationale of this case, a "copy" may be created under United States law at each stage of transmission of a work through the Internet. The language of two treaties discussed extensively in this paper - the WIPO Copyright Treaty3 and the WIPO Performances and Phonograms Treaty4 - leave unclear the crucial question whether the MAI approach will be internationalized. In any event, these two treaties would strengthen copyright holders' rights of "distribution" and would create new rights of "making available to the public" a copyrighted work, both of which are implicated by transmissions through the Internet nearly as broadly as the right of reproduction.

   The ubiquitous nature of "copying" in the course of physical transmission gives the copyright owner potentially very strong rights with respect to the movement of copyrighted material through the Internet, and has moved copyright to the center of attention as a form of intellectual property on the Internet. If the law categorizes all interim and received transmissions as "copies" for copyright law purposes, or treats all such transmissions as falling within the right of distribution of the copyright owner, then activities that have been permissible with respect to traditional tangible copies of works, such as browsing and transfer, may now fall within the control of the copyright holder.

   This paper discusses the multitude of areas in which copyright issues arise in an online context. Although the issues will, for simplicity of reference, be discussed in the context of the Internet, the analysis applies to any form of online usage of copyrighted works. Part II of this paper discusses the various copyright rights that may be implicated by transmissions and use of works on the Internet, including new rights and remedies, as well as certain limitations on liability for online service providers afforded under federal statutes. Part III then analyzes the application of those rights to various activities on the Internet, such as browsing, caching, operation of an online service or bulletin board, linking to other sites, creation of derivative works, and resale or subsequent transfer of works downloaded from the Internet. Part III also analyzes the application of the fair use doctrine and the implied license doctrine to various Internet activities. Because the law is still developing with respect to many of these issues, a great deal of uncertainty is likely to exist as the issues are worked out over time through the courts and the various relevant legislative bodies and industry organizations.

2. RIGHTS IMPLICATED BY TRANSMISSION AND USE OF WORKS ON THE INTERNET

   This Part discusses the various rights of the copyright holder - the right of reproduction, the right of public performance, the right of public display, the right of public distribution, the right of importation, and the new rights of transmission and access - that are implicated by the transmission and use of works on the Internet.

   1. The Right of Reproduction

   The single most important copyright right implicated by the transmission and use of works on the Internet is the right of reproduction. As elaborated below, if the law categorizes all interim and received transmissions as "copies" for copyright law purposes, then a broad range of ordinary activities on the Internet, such as browsing, caching, and access of information, may fall within the copyright holder's monopoly rights.

   1. The Ubiquitous Nature of "Copies" on the Internet

      Under current technology, information is transmitted through the Internet using a technique known broadly as "packet switching." Specifically, data to be transmitted through the network is broken up into smaller units or "packets" of information, which are in effect labeled as to their proper order. The packets are then sent through the network as discrete units, often through multiple different paths and often at different times. As the packets are released and forwarded through the network, each "router" computer makes a temporary (ephemeral) copy of each packet and transmits it to the next router according to the best path available at that instant, until it arrives at its destination. The packets, which frequently do not arrive in sequential order, are then "reassembled" at the receiving...