The Internet is becoming an increasingly prevalent medium for personal communication and an essential means of commerce. As it grows, the unfortunate byproducts of traditional commercial and personal interactions become more and more prevalent on-line.

Ever more business deals (ranging from simple purchases of goods to complicated contracts) are done on the net. Some of those business deals go awry, spawning business litigation. Various forms of harassment, slander, fraud, and other "informational" torts and crimes may be committed on the Internet. Copyright infringement abounds on the Internet.

When legal problems arise on-line, who should bear the cost of liability? Should liability lie purely with the individual or entity whose action, or failure to act, was directly related to the event -- the so-called "bad actor?"  Should it lie with individuals, organizations, or institutions that contributed to the injury or simply provided the "bad actor" access to the Internet?

Since our overarching goal is to examine problems related to intellectual property in cyberspace, this module will focus on the specific problem of the liability of Internet Service Providers for copyright violations on the Internet.(1)

First of all, what is an Internet Service Provider, or ISP?  Much of the literature on this subject draws subtle but important distinctions between ISPs, On-Line Service Providers (OSPs), Bulletin Board Systems (BBSs), et cetera.  In order to simplify the discussion, the term ISP will be used in this module to cover a wide range of companies and organizations that provide their customers, or "clients," with access to the Internet.  ISPs may be large or small.  AOL, with millions of clients, is an ISP.  So is a local "mom-'n-pop" operation with only a few clients.

As part of their services, ISPs often give their clients the means to make documents available over the Internet to the public at large.  For example, an ISP may provide its clients with more than just an email account and access to the web; it may give them the right to upload files (including web pages) to the ISP's publicly accessible servers.  These files may then be accessed -- and, by necessity, copied -- by members of the general population.

Problems arise, as one might expect, when the clients abuse this privilege and post material that violates the copyright laws. Why would the copyright holders in such situations sue the ISP rather than the person directly responsible for the infringement?  There are two main reasons, and they are fairly straightforward.  First, it's hard to sue someone if you can't find her.  Many ISPs are corporate entities with fixed places of business, whereas clients who post infringing materials may be mobile or otherwise difficult to track down.  The ISP is thus usually much easier to find than the individual who posted the allegedly infringing material.   Second, the infringers are likely to be "judgment-proof" -- meaning that they lack the financial resources to pay a substantial liability judgment. Therefore, copyright holders commonly target ISPs because they almost always have more money than the individual client who allegedly posted the copyright infringement.  This may not be true for a mom-'n-pop ISP, but the bigger players (such as AOL, Netcom, et cetera) certainly qualify as "deep pockets."

How might an ISP react to the threat of copyright liability?  One response might be to police aggressively its servers for copyright infringements.  Unfortunately, systematic policing of client content could be very unpopular with those clients who are concerned about maintaining a level of privacy and freedom from on-line censorship.  Additionally, such a strategy would be difficult to execute.  The ISP may have so much information on its servers that, even with the assistance of technologies designed specifically to help parse the information, reviewing it regularly would be problematic and costly.  Even if the ISP could review the data with regularity, how would it be able to identify copyright-infringing material?  Aside from flagrant cases (e.g., a web page boldly inviting visitors to download a free copy of Microsoft Word), it is difficult for an ISP manager (or search engine) to know whether material is copyright-protected and being used without authorization simply by looking at it.  As a result, the ISP may end up either failing to remove copyright-infringing material or overzealously removing material that looks infringing but is not.  The former scenario leaves the ISP open to suit, while the latter raises concerns of censorship.

ISPs may also attempt to avoid liability by demanding indemnification agreements from their clients. In other words, the ISP may require each client to sign a contract assuming all responsibility for any copyright infringement engaged in by the client.   While such indemnities may reduce the risk of liability, they are not ironclad and do not eliminate the risk altogether.

What does this mean for the average Internet user?  The conventional analysis goes as follows: because copyright infringement is hard to eliminate through self-policing, ISPs face an "unavoidable" risk of liability for copyright infringement.  In other words, they face a risk that they cannot entirely eliminate up-front through cost-effective means.  Smaller ISPs may be forced out of business entirely if the liability risk is too great.  Larger ISPs that are better positioned to prepare for the liability risk would have to set aside funds for lawyers, settlements and judgments.  Alternatively, these ISPs may choose to purchase some form of liability insurance.  Either strategy costs money.  Those costs will eventually be passed on to consumers, making the cost of Internet access higher for everyone.

Thus, the bedrock beneath the argument for removing liability from ISPs for copyright infringement centers on the perceived unfairness in holding unwitting ISPs liable for the illegal conduct of their clients, the danger that liability will cause ISPs to exercise restrictive control on client postings in a manner threatening open on-line discourse, and on the bottom-line result of increased cost for Internet access passed on to the average user.

On the flip side, a failure to hold ISPs liable for infringements by their clients may undermine the quality of material available on the net -- and off the net.  Owners of copyrighted works argue that instantaneous and unredressable digital piracy would reduce their incentive to produce these works.  The result would be a "cheap" culture -- not "cheap" in the pejorative manner that highbrow commentators use to describe popular culture, but "cheap" in the sense that the only works worth producing would be ones that cost very little to make, or where the costs could somehow be recouped through performance or the cult of personality.  The Grateful Dead (providing their fans with essentially "free" content while paying the bills through the endless juggernaut of a roadshow) would be the archetype for working artists, cinema would fast become hopelessly verite, news would become a self referential chorus of Drudge reports (perhaps it is so already), reclusive artists such as Thomas Pynchon would have to find day jobs, et cetera.  Not an entirely awful world, perhaps, but a very different one indeed.

In an effort to limit the potential liability for ISPs while avoiding a meltdown in copyright protection on-line, last October Congress passed the Digital Millennium Copyright Act (DMCA), discussed below.  Empirical evidence of its effect, if any, on ISP liability and copyright protection will take time to develop.  Nonetheless, this module will introduce a basic picture of ISP liability prior to the DMCA, briefly describe the DMCA itself, and invite you to speculate concerning what changes, if any, it will bring.
 

BIG makes money through a combination of fees charged to clients and advertising revenue.  The fees you charge clients depend on the amount of service they want.  Clients who want to put web pages on your servers are charged a flat monthly fee for each page under 100Kb, and an additional $.01 for each kilobyte over 100Kb.  The advertising revenues come mainly from banner ads.  Anyone who visits a client web page will see at least one banner ad.  Increased traffic to any particular web page eventually results in increased ad revenue.

One day, you receive a letter from I.N. Housecounsel, a lawyer for the Church of Humanitology. It states, in pertinent part:

"It has come to our attention that one of your clients, Mr. DeBunker, has posted a web page that is very critical of Humanitology on one of your servers. Of course, we have great respect for his First Amendment right to criticize our Church. However, Mr. DeBunker has apparently decided to post verbatim the entire contents of one of our publications, "The Secrets of Highly Intrepid Humanitologists." This publication is strictly guarded by the Church and is only made available to Humanitologists at a cost of $7,000 per copy. In order to avoid the expense of needless litigation, kindly:

1. Remove this publication from your servers,
2. Forward a check to us for ($7,000) x (the number of people who have downloaded the publication from your servers)
3. Give us your server logs so that we may discern who has visited Mr. DeBunker's copyright-infringing web page and stamp out this runaway act of piracy.

You take a very deep breath, and call your cardiologist. Afterwards, you call your chief technology wonk, Bing the Server King. After checking around, Bing informs you that:
 

1. The offending publication is indeed on DeBunker's page, which is on a BIG server.
2. DeBunker created the page seven months ago, and hasn't changed it since.  The size of the page is 120Kb.
3. DeBunker's web page is popular. The server logs show that the page has been visited 7,000 times since its creation.
4. No one in BIG knew it was there. DeBunker paid his bills on time, and thus had a carte blanche right to upload to your servers. You guys don't snoop on clients -- that's a cornerstone of your business philosophy.
5. Another cornerstone of your business philosophy is that your clients shouldn't do anything that'll get you in trouble. This is why every contract with every client (including DeBunker) includes a section that says "By the way, don't do anything illegal on our servers.  If you do, we reserve the right to remove any illegal stuff you put there.  We bear no liability for anything illegal that you do, and you hereby indemnify us from any liability resulting from illegal things that you may do."

A (Very) Basic Copyright Law Primer(2)

Federal statutory copyright law is explicitly authorized by the United States Constitution.(3) Copyright law gives authors the right to protect their original expressive works, fixed in tangible form, from duplication.(4) However, ideas themselves are not protected.(5) Thus, a novel such as "Catcher in the Rye" may not be duplicated in whole or in substantial part without permission. However, any writer could decide, without need of J.D. Salinger's permission, to compose a story written in first person narrative about a disaffected young man from a wealthy family who goes on a personal odyssey after flunking out of a New York-area preparatory school.

Furthermore, some duplication of copyrighted works may be privileged as "fair use." The doctrine of fair use excuses some copying (but usually not extensive copying, or the copying of a work in its entirety) in the interest of education and comment. Thus, for example, a book review of "Catcher in the Rye" that quoted liberally from the text would not be a violation of copyright. The use of the novel's text in the review would be privileged.(6)

In short, copyright law is designed with the dual goal of protecting the author from piracy -- thus giving her an incentive to create and to distribute her creations -- while allowing others to freely build on the ideas embodied in the author's expression.(7)

Copyright law, of course, is much more complicated than this brief description of its basics. However, when it comes to ISP liability for copyright infringement, the finer points of copyright law are generally not in issue. The typical case of copyright infringement on the net involves a clearly copyrightable work " such as an article or book, a picture, a piece of software, or a musical recording"(8) duplicated wholesale and made publicly available without authorization from the work's owner.  Fair use defenses are very difficult to make in these situations.

What role does the ISP play here?  ISPs don't usually supervise the activities of their clients, but they do provide the tools that their clients may use to copy the protected work and make it publicly available. Thus, the ISPs servers and resources are being used to duplicate and distribute the infringement but the ISP itself often has no idea that this is happening.
 

Copyright Law and Unintentional Infringers
 

Copyright owners have the exclusive right to reproduce, distribute and display their copyrighted work.(9) Anyone who violates one of these exclusive rights is liable for infringement, even if they did so unwittingly or unintentionally.(10)

Why penalize unwitting or unintentional infringers? The primary justifications are twofold. First, even unintentional infringers deprive copyright owners of the value of their copyrights, and thus the owners should be compensated. Second, it is extraordinarily difficult to show intent or knowledge. Therefore, copyright owners would have a hard time enforcing their rights and infringers would have an easier road to absolution by simply mounting a "didn't know the gun was loaded" defense. (11)

Thus, if an ISP itself puts infringing material onto the Internet, it is liable regardless of its intent.  But what if the ISP merely provides the means by which one of its clients puts the infringement onto the Internet?

There are two main avenues by which an ISP would still be liable, even though the the "actual" infringement was done by the client.  These avenues are not explicitly spelled out in the copyright statute, but have developed over time in federal court decisions concerning copyright liability.

The first avenue is "contributory infringement," which occurs when a person either (1) induces another person to infringe the copyright or (2) materially contributes to the infringing activities of another person.  Thus, an ISP that encouraged or solicited its clients to post material that was infringing would be liable for contributory infringement, even though the clients did the actual posting.  It does not matter whether the ISP knows that its request will result in infringement.  For example, suppose an ISP operator (who happens to be a big Elvis fan) mistakenly assumes that copyrights expire when the copyright holder dies.   The operator sends a message to clients asking them to post audio files of their favorite Elvis songs.  Though unintentional, the operator's activities constitute contributory infringement.

The second avenue is "vicarious liability."  Vicarious liability occurs when (1) an infringement exists, (2) a person has the right and ability to control or supervise the infringing activity, and (3) the person profits from the infringing activity.  None of these elements require that the vicariously liable person have actual knowledge of the infringing activity.

The ISP as Unintentional (but Liable) Infringer
 

Under theories of vicarious liability or contributory infringement, ISPs that allow clients to place unauthorized, copyrighted information on the Internet might be liable for infringement, even though their only contribution to the infringement was the provision of computer equipment used by others to make and distribute unauthorized copies. (12) This seems harsh " it would be almost unthinkable to hold a pen manufacturer liable for infringement committed using one of her pens, or the paper mill from whence came the paper used to produce the infringing copies. However, unlike pen manufacturers or paper mills, ISPs have active and continuing control over the means to store and transmit the pirated information to wide audiences. They have the ability to shut down infringements immediately, given notice of them.

Because the Internet's exploding popularity is a relatively recent phenomenon, there have not been a large number of court decisions concerning ISP liability for copyright infringement.  (That is not to say that there have been few lawsuits alleging ISP liability for infringement -- the vast majority of lawsuits settle before reaching a decision).  What follows is a brief history of how courts have attempted to apply copyright principles to the issue of ISP liability prior to the passage of the Digital Millennium Copyright Act, or DMCA (discussed in the following section).

In 1993, a preliminary injunction was issued against a bulletin board operator allowed unauthorized Playboy photographs to be uploaded and downloaded from his system.  SeePlayboy Enterprises, Inc. v. Frena, 839 F. Supp. 1552 (M.D.Fla. 1993) <http://www.jmls.edu/cyber/cases/frena.txt>.   Although the defendant argued that he was unaware of the infringement, never uploaded the photographs himself and removed them upon notice from Playboy, the court found that the defendant directly infringed Playboy's copyright.  One year later, another bulletin board operator was found liable for copyright infringement.  Unlike the Playboy case, this operator directly solicited clients to upload Sega video games onto his system.  See Sega Enterprises Ltd. v. MAPHIA, 857 F. Supp. 679 (N.D. Cal. 1994) at <http://www.jmls.edu/cyber/cases/sega.txt>. In both Frena and Sega, the courts held that the bulletin board operators could be found liable regardless of whether or not the copying was intentional. Also, in both cases, the "actual" infringement was committed by the clients.

One of the most important recent decision on ISP liability for copyright infringement is Religious Technology Center v. Netcom Online Communication Services, Inc., 907 F.Supp. 1361 (N.D. Cal. 1995) at <http://www.jmls.edu/cyber/cases/netcom.txt>.   In that case, the Federal District Court for the Northern District of California was asked to evaluate whether Netcom could be held liable for materials posted by one of its clients.  These materials contained copies of Church documents and thus allegedly infringed copyrights held by the Church of Scientology.  The court decided three important issues.  First, Netcom could not be held directly liable for any infringing material posted by the client since Netcom itself did not upload the material.  In short, the direct infringer was the client who did the uploading, not the ISP that provided the tools to do so.  This part of the decision seemed to be flatly reject the line taken in Frena.  Second, the court also decided that there wasn't enough of a link between the infringing activity and Netcom's finances to hold Netcom vicariously liable.  Third, although the court let Netcom off the hook for direct infringement and vicarious liability, the court refused to rule out the possibility that Netcom was liable for contributory infringement, leaving the question of whether Netcom encouraged the client to post infringing materials open for trial.  (No trial ever occurred because the case settled).

Please follow the hyperlinks indicated above and read the decisions in Frena, Sega, and Netcom.  Both Frena and Sega concerned claims of copyright and trademark infringement -- you need only read the parts of the decisions that outline the facts and discuss the copyright infringement claims.  (If you don't have legal training and find it difficult to figure out what the judges are saying, it may be helpful to start by reading Netcom first.  In Netcom, the judge takes a moment to explain the Frena and Sega decisions, and this discussion may be helpful to you.)

...And then came the Digital Millennium Copyright Act
 

The 105th Congress attempted to address the competing concerns of ISPs and copyright owners when it passed the Digital Millennium Copyright Act.

The Digital Millennium Copyright Act (DMCA) (H.R. 2281) was intended to implement the World Intellectual Property Organization (WIPO) Copyright Treaty and Performances and Phonograms Treaty.  (The United States often amends its domestic copyright law to include WIPO treaty provisions.) The DMCA was signed into law on October 28, 1998. Title II addresses the liability of online providers. (13) It generally limits liability of Internet service providers for a range of activities, including transitory digital network communications(14), system caching, (15) unwittingly linking or referring users to sites containing infringing materials, (16) and the unwitting storage of copyright-violating material on their systems. (17)

Focusing specifically on the latter phenomenon, the DMCA provides that:

[a] service provider shall not be liable . . . for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider

• (A)
• (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
• (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
• (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
• (B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
• (C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity. (18)

Filing an intentionally misleading claim of infringement, or an intentionally misleading response that infringing material has been removed, is penalized under the Act.(21) The Act also limits the liability of ISPs who take down the allegedly infringing material in response to a request from a copyright owner, (22) and provides the copyright owner with a subpoena power to force ISPs to divulge the identity of the client responsible for the infringement. (23)

The term "service provider" as used in the text above is defined to include "provider[s] of online services or network access, or the operator of facilities therefor," and entities "offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received." (24)

Jonathan Band, a lawyer in Washington D.C., has written a helpful memo on the DMCA entitled The Digital Millennium Copyright Act.  Please read the section of his memorandum on Title II of the Millennium Act by following this URL: <http://www.ari.net/dfc/html/jb-memo.html#TITLE II>

Excerpts from the Legislative History of the Digital Millennium Copyright Act
 

"[W]e need this measure to stop an epidemic of illegal copying of protected works--such as movies, books, musical recordings, and software--and to limit, in a balanced and thoughtful way, the infringement liability of online service providers." Sen. Kohl, Senate Floor Remarks.

"Having heard directly from a major trade association representing professional servicers, I am pleased we could include such strong language so that they can go about their business without fear of facing crippling liability." Sen. Ashcroft, Senate Floor Remarks.

"Title II preserves strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital networked environment. At the same time, it provides greater certainty to service providers concerning their legal exposure for infringements that may occur in the course of their activities." Conference Report, H.R. 2281 p. 72

"This legislation is not intended to discourage the service provider from monitoring its service for infringing material. Courts should not conclude that the service provider loses eligibility for limitations on liability under section 512 solely because it engaged in a monitoring program." Conference Report, H.R. 2281 p. 73

"Litigation concerning on-line matters will occur with greater frequency as the industry continues to expand. Judicial resolutions may be the only avenue for companies and individuals to clear the Internet's murky waters. In civil matters, increased litigation will equate to greater litigation costs and an increase in potential liability for Internet access providers, the deep pockets of Cyberspace. . . . Therefore, any legislation passed by Congress must include a "knowledge" element to import liability upon access providers. It remains unclear whether the judiciary will interpret this knowledge requirement broadly or narrowly."
    -- Marc L. Caden & Stephanie E. Lucas, Accidents On the Information Superhighway: On-Line Liability And Regulation, 2 Richmond J. of L. & Tech. issue 1 par. 101 (1996), at <http://www.urich.edu/~jolt/v2i1/caden_lucas.html>

"[I]t is difficult to identify jurisprudence which makes the issue of on-line liability a real problem as opposed to a perceived problem. There certainly seems to be no chilling effect on the growth of the Internet. It was reported in a Senate hearing earlier this month that Internet computer servers have grown from just over 200 in 1981 to 16 million today. We are not aware of any flood of lawsuits that would undercut this strong growth of the Internet. We are aware of only a dozen or so decisions dealing with copyright liability on the Internet, many involving operators of bulletin boards. We are not aware that a single [ISP] has ever been found liable for copyright infringement on the Internet. . . . Do we have a solution in search of a problem? "
    -- Mike Kirk, American Intellectual Property Law Association, H.R. 2281 and H.R. 2180 Hearings before House Courts and Intellectual Property Subcommittee (Sep.16, 1997), at <http://www.house.gov/judiciary/4019.htm>

Which statement do you feel is more accurate?  Are both statements inaccurate?  Write a brief essay supporting one of the above statements (or arguing that neither statement is supportable).

The Teaching Fellow for your small section will contact you with directions for submitting your assignment.
 

• What effect do you think it will have with respect to the issue of ISP liability?
• Based on your reading of the Case Study, RTC v. Netcom, and the DMCA, how would the Case Study turn out in a pre-DMCA world?  In a post-DMCA world?
• Is there a chance that ISPs will become deluged with notices of alleged copyright infringements on their machines?
• What if many of the allegations turn out to be wrong, but not so wrong that the ISP could make a case for deception under the Act?
• Should the ISP alone bear the cost of ensuring compliance?  Should those costs be born by the alleging party if the allegation turns out to be untrue (but not so untrue as to be a deceptive claim under the DMCA)?
• Most of the commentary in the legislative history indicates that the legislators were very concerned with reducing the liability of ISPs. Did they pay adequate enough attention to the interests of copyright holders?
• Did the legislation do enough to reduce ISP liability? Should ISP liability for copyright infringement be entirely eliminated?
• The limitation of liability applies only to ISPs that take down materials in response to requests. Will this encourage ISPs to create "delete now, ask questions later" policies?
• Is the subpoena power created under this Act a threat to privacy on-line?

• On the DMCA
• To read the text of the DMCA, the conference report and other portions of the legislative history, see http://www.hrrc.org/DMCA-leg-hist.html. This page is maintained by the Home Recording Rights Coalition (HRRC), an advocacy group organized "to protect the right to use VCRs, audio recorders and computers for private, non-commercial purposes."
• http://www.ari.net/dfc/html/2180.html, maintained by the Digital Future Coalition, provides background materials on the history of the On-Line Copyright Liability Limitation Act, which started life as a separate piece of legislation but was eventually folded into the DMCA.
• Comments by interested parties on the On-Line Copyright Liability Limitation Act (these comments were made a year prior to the passage of the DMCA):
• Ronald G. Dunn, Information Industry Association, H.R. 2281 and H.R. 2180 Hearings before House Courts and Intellectual Property Subcommittee (Sep.16, 1997), at <http://www.house.gov/judiciary/4007.htm>
• Roy Neel, United States Telephone Association, H.R. 2281 and H.R. 2180 Hearings before House Courts and Intellectual Property Subcommittee (Sep.16, 1997), at <http://www.house.gov/judiciary/4006.htm>
• The Honorable Bruce Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks, H.R. 2281 and H.R. 2180 Hearings before House Courts and Intellectual Property Subcommittee (Sep.16, 1997), at <http://www.house.gov/judiciary/40001.htm>
• Mike Kirk, American Intellectual Property Association, H.R. 2281 and H.R. 2180 Hearings before House Courts and Intellectual Property Subcommittee (Sep.16, 1997), at <http://www.house.gov/judiciary/4019.htm>
• On General Issues related to ISP liability
• Marc L. Caden & Stephanie E. Lucas, Accidents On the Information Superhighway: On-Line Liability And Regulation, 2 Richmond J. of L. & Tech. issue 1 (1996), at <http://www.urich.edu/~jolt/v2i1/caden_lucas.html> (focusing on prominent cases of ISP liability for electronic transmission as part of a general analysis of Internet regulation)
• David J. Loundy, E-Law 2.0: Computer Information Systems Law and System : Operator Liability Revisited, at <http://www.murdoch.edu.au/elaw/issues/v1n3/loundy.txt> (discussing how ISP liability for on-line conduct of its clients resembles that of a press, publisher, common carrier, et cetera  --  see especially section IX., entitled "Liability for Computer Information System Content ")
• Mark C. Mccarthy, Censorship in Electronic Information (Sep. 25 1996), at <http://sunsite.unc.edu/maggot/censorship/> (arguing that vicarious liability of service providers encourages censorship)
• Kurt B. Opsahl, Freezing Rain on the Information Superhighway: Protecting Internet Service Providers from Vicarious Liability (Apr. 1, 1996) (Rough Draft), at <http://www.etheria.com/opsahl/Home/cmnt.html> (arguing for the broad removal of liability from ISPs)
• David G. Post, Anarchy, State, and the Internet: An Essay on Law-Making in Cyberspace, 1995 J. Online L. art. 3, at <http://warthog.cc.wm.edu/law/publications/jol/post.html> (explaining that the rules governing on-line behavior will evolve over time on the Internet in a free-market fashion, and will not simply be a restatement of laws that exist in the "real" world)
• John P. Barlow, The Economy of Ideas, A Framework for Rethinking Patents and Copyrights in the Digital Age (Everything You Know About Intellectual Property is Wrong), WIRED, Mar. 1994, at <http://www.wired.com/wired/archive/2.03/economy.ideas.html> (comparing the Internet to the frontier west where the people made their own laws).  If you have trouble accessing this page directly, go to http://www.wired.com/wired/ and browse the archives for issue 2.03.
• Pamela Samuelson, Copyright, Digital Data, And Fair Use In Digital Networked Environments (1994) (see particularly the section on "Technological and Contractual Means For Overcoming Digital Replicability"), at <http://www.droit.umontreal.ca/crdp/en/equipes/technologie/conferences/ae/samuelson.html> (explaining that it is still too early to tell what effect digital technologies and the Internet will have on copyright law)
• John Perry Barlow, Selling Wine Without Bottles: The Economy of Mind on the Global Net, at <http://www.eff.org/pub/Publications/John_Perry_Barlow/HTML/idea_economy_article.html> (arguing that traditional intellectual property law is poorly fitted to deal with the new realities of the Internet.
• Charles J. Meyer, National and International Copyright Liability for Electronic System Operators, 2 Global Legal Studies J. no. 2, at <http://www.law.indiana.edu/glsj/vol2/no2/meyer.html>  (examining the difficulties inherent in balancing the interests of ISPs and copyright holders)
• Useful Off-line Resources
• Joan Gilsdorf, Comment, Copyright Liability Of On-Line Service Providers, 66 U. Cin. L. Rev. 619 (1998) (examining the scope of OSP liability, pre DMCA, in light of recent court decisions and recommendations made by the Clinton administration's Working Group on Intellectual Property Rights.)
• Niva Elkin-Koren, Copyright Law and Social Dialogue on the Information Superhighway: The Case Against Copyright Liability of Bulletin Board Operators, 13 Cardozo Arts & Ent. L.J. 345 (1995) (arguing that the imposition of copyright liability on ISPs threatens the "democratization" of the Internet and stimulates undesirable centralized control of content on the Internet)
• Jane C. Ginsburg, Putting Cars on the "Information Superhighway": Authors, Exploiters, and Copyright in Cyberspace, 95 Colum. L. Rev. 1466 (1995) (noting that authors will need assurances that their works will be protected on the Internet, and that with such assurances the Internet could provide entirely novel forms of artistic creation)
• I. Trotter Hardy, The Proper Legal Regime for "Cyberspace," 55 U. Pitt. L. Rev. 993, 1002-08 (1994) (characterizing the problem of ISP liability for copyright infringement as one for which "real world" analogies fall short)
• Raymond T. Nimmer & Patricia Ann Krauthaus, Copyright on the Information Superhighway: Requiem for a Middleweight, 6 Stan. L. & Pol'y Rev. 25 (1994) (arguing that Internet users and content providers need a property concept beyond copyright -- they need a property right whose limitations address the ability to control access to information resources on-line)
• David J. Loundy, E-Law: Legal Issues Affecting Computer Information Systems and System Operator Liability, 3 Alb. L.J. Sci. & Tech. 79 (1993) (arguing that ISP liability will be a function of the analogies chosen by courts in their efforts to comprehend the radically different world of on-line conduct)

1. This unit focuses on copyright infringement because it is squarely an intellectual property problem, whereas other potential sources of liability are chiefly problems of tort and contract. (Of course, the distinction isn't airtight " copyright infringement is itself a tort, and defamation or slander can be rationalized as the theft or damage of an intellectual property of sorts, namely ones reputation and goodwill.) Beyond this doctrinal concern, it is useful to isolate and study the problem of copyright infringement on the Internet because the alleged economic costs of it are staggering. See William J. Cook, Be Wary of Internet Casting Shadows on Copyright Holders, Chicago Law., Apr. 1996, at 60, 60 (restating testimony given before the U.S. House Judiciary Committee), who cites a federal estimate of ten billion dollars lost annually due to data theft in the U.S. alone. While this may include some losses due to the unauthorized publication of trade secrets, it is almost certain that copyright infringement accounts for a significant share of that figure, and even more losses worldwide.  (return to text)
2. For a fairly comprehensive set of primers on copyright, trademark, patent, and other bodies of intellectual property law, visit the primer section of the library. Furthermore, the Legal Information Institute at Cornell Law School maintains a web site with a very helpful introduction to copyright law, complete with links to useful materials, at http://www.law.cornell.edu/topics/copyright.html. (return to text)
3. See U.S. Const. art. I, 8, cl. 8 (giving Congress the power "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."). (return to text)
4. Copyright protection extends to "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated." 17 U.S.C. 102(a). A document or image stored in electronic memory counts as a work fixed in a tangible medium.  (return to text)
5. No "idea, procedure, process, system, method of operation, concept, principle, or discovery" may be copyright protected. 17 U.S.C. 102(b).  (return to text)
6. See 17 U.S.C. sec 107. See also "Fair Use in the Electronic Age," available at http://arl.cni.org/scomm/copyright/uses.html.  (return to text)
7. Feist Publications, Inc. v. Rural Telephone Serv. Co., 499 U.S. 340, 349-50 (1991).  (return to text)
8. All of these are well recognized copyrightable works, including software. See 17 U.S.C. 102(b).   (return to text)
9. 17 U.S.C. 106 (1994). The Copyright Act gives copyright owners the exclusive rights to: (1) reproduce the copyrighted work, (2) prepare derivative works based on the copyrighted work, (3) distribute copies of the copyrighted work to the public, (4) perform the copyrighted work publicly, (5) display the copyrighted work publicly, and (6) perform the copyrighted work publicly by digital audio transmission if the work is a sound recording. See id.  (return to text)
10. See 17 U.S.C. 106(1)-(3), (5), 501(a) (1994). See also David Halbreich et al., Intellectual Property on the Internet: Surfing Through Liability and Coverage Issues, Mealey's Litig. Rep.: Emerging Ins. Disputes, Nov. 14, 1996, at 21, 25. Prior to the passage of the Digital Millennium Copyright Act, innocent intent would not relieve liability but was taken into consideration when determining damages. See Bruce A. Lehman (Chair), Intellectual Property and the National Information Infrastructure, The Report of the Working Group on Intellectual Property Rights 115 (1995) (The "White Paper").  (return to text)
11. See William J. Cook, Be Wary of Internet Casting Shadows on Copyright Holders, Chicago Law., Apr. 1996, at 60, 60 (restating testimony given before the U.S. House Judiciary Committee).   (return to text)
12. See David Halbreich et al., Intellectual Property on the Internet: Surfing Through Liability and Coverage Issues, Mealey's Litig. Rep.: Emerging Ins. Disputes, Nov. 14, 1996, at 20, 25-26.  "The absence of such express language in the copyright statute does not preclude the imposition of liability for copyright infringement on certain parties who have not themselves engaged in infringing activity. 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).   (return to text)
13. Title II of the DMCA is known as the Online Copyright Infringement Liability Limitation Act (OCILLA). It was a separately proposed piece of legislation that was eventually folded into the DMCA.   (return to text)
14. DMCA § 512(a).   (return to text)
15. DMCA § 512(b).   (return to text)
16. DMCA § 512(d).   (return to text)
17. DMCA § 512(c).   (return to text)
18. DMCA § 512(c)(1).   (return to text)
19. DMCA § 512(c)(2).   (return to text)
20. DMCA § 512(d).   (return to text)
21. DMCA § 512(f).   (return to text)
22. DMCA § 512(g).   (return to text)
23. DMCA § 512(h).   (return to text)
24. DMCA § 512(k)(1)A and B.   (return to text)

G. Teran 2/11/99

Please email gteran@law.harvard.edu with comments or questions