SECOND INTERNATIONAL HARVARD CONFERENCE ON INTERNET & SOCIETY  may 26-29, 1998

Condemned to Repeat the Past: The Reemergence of Misappropriation and Other Common Law Theories of Protection for Intellectual Property by Bruce P. Keller http://jolt.law.harvard.edu/articles/11hjolt401.html Article Abstract: One year ago, the Washington Post, CNN, and four other prominent media organizations discovered that news reports they gathered, prepared, and presented to the public at great expense were being pirated. An entity known as Total News—which independently gathered no news—had created a World Wide Web site that provided one-click access to the content of web sites created and maintained by well-known news organizations, including The Washington Post and CNN. When accessed through Total News' site, however, these other popular sites had to be viewed through a Total News frame, which divided a user's computer screen into sections that featured banner advertisements for Total News advertisers at the bottom and a vertical row of hot links to still other news sites on the side. Although the Total News site incorporated verbatim the content of news reports published by others, Total News claimed, inter alia, that because it did not cache, or otherwise create any "copies" of the copyrighted material posted by the news organizations on their respective sites, none of the exclusive rights enjoyed by The Washington Post and others under section 106 of the Copyright Act-protections against reproduction, adaptation, publication, performance and display-had been violated. The news publishers disagreed, contending that, either on a direct or a contributory basis, Total News was infringing several of those rights. Bruce Keller is a partner with the law firm of Debevoise & Plimpton, New York, NY. He is a panelist at the Harvard Conference on Internet & Society, May 26-29, Cambridge, MA.