Chapter Five

_________________________

 
The Internet

 

 

 

The Telegraph and Telephone

 

 

            In 1843, Morse obtained a $30,000 government grant to demonstrate his telegraph. He strung an experimental line between Baltimore and Washington, and scooped all other services on the news of the day. Within a few years, telegraph wires were hung around the country, and people got the news of the Mexican War, and later the Civil [99] War, by what one newspaperman called “the lightning wire.” By 1861, a wire linked San Francisco to New York, and everything from news to prices on the stock exchanges was instantly communicated from coast to coast.

             Laying a cable that would join America to Europe was an even more daunting task than the transcontinental cable. It required solving the problems of insulation against the hostile sea, and laying a continuous cable for thousands of miles that could not rely on relays to boost the signal and access to allow periodic repairs. After an expenditure of millions of dollars and after years of frustrating failures, including a particularly bitter experience with an 1858 cable that first seemed to work, and then went dead, Cyrus Field finally was successful in laying the first transatlantic cable on July 27, 1866.
 

 

*The invention of the telephone, see p. 129.

 

           

[101] What were the copyright implications of these new technologies? We have seen the effects of radio and television broadcasting and the adjustments such technologies brought about in copyright. But for point-to-point communication, the copyright implications were very few. For the most part, the telegraph was used to transmit breaking news, not creative works. And, unlike the other media we reviewed earlier, telephone communications generally took place between two individuals at a time, and usually involved spontaneous conversation rather than copying the creative works of others.

 

            While point-to-point telephone and even satellite communications don’t by themselves raise any particular copyright problems, try adding the telephone and satellite communications to the digital media.* Do we have a problem yet? Imagine that what’s being communicated over the telephone lines and satellite links is not individual conversations, but files of text, music, video, and computer programs, and the copyright implications are obvious.

 

*Digital media, see p. 93.

 

Internet—The Technology

 

Birth of the Internet

 

The Internet is a global communications network linking computers around the world. It was created in 1969 as ARPANet (Advanced Research Projects Agency) for the U.S. Department of Defense. The network was designed to break information into separate packets and send the packets over various routes from computer to computer, rerouting the information as necessary to circumvent the breakdown or failure of parts of the system. In the first year, there were four host computers connecting Stanford, UCLA, UC-Santa Barbara, and the University of Utah. In 1981, several academic institutions formed BITNET, a wide-area network to serve [102] the academic community. In 1990, after ARPANet and various other networks had connected over 300,000 host computers, ARPANet was decommissioned as a project of the Department of Defense and allowed to develop as a civilian enterprise.

 

            In that same year, The World was the first commercial service provider for the Internet, allowing individual subscribers to connect their computers to the system by telephone dial-up. By 1992, the number of host computers connected to the Internet surpassed 1 million; by 1998, there were nearly 50 million Internet users in the United States; and by 2000, Internet users were estimated at over 133 million in North America, and 228 million in the rest of the world.

 

Chat Rooms, Instant Messages, Phone Calls,
and Videoconferencing

 

There are some Internet uses that, like the telephone, don’t raise serious copyright concerns because they don’t usually involve the transfer of information copyrighted by others. For example, one of the popular Internet pastimes is participation in chat rooms, in which many people “chat” with each other in real time. They don’t actually talk at all, but instead type messages on their computers that pop up simultaneously on the computers of all other participants in the chat “room.” The dynamics of chat rooms can be fascinating, particularly to first-timers. Given the lag time it takes to type coherent responses, most chat rooms don’t consist of a single conversation, but are more like several conversations taking place around a common topic.

 

 

 

            Some service providers maintain hybrid systems that allow messaging at different levels simultaneously. For example, America On-line provides “town meetings” in which famous speakers can talk to thousands of subscribers simultaneously. All subscribers see what the featured guests type (or what someone types for them), but only a few of the audience responses are forwarded to the guest, in order to avoid totally flooding the guest with communications. Subscribers can be assigned “rows” of “seats” when they sign on, and their responses will be visible only to members of their own rows. The system is designed to balance the value of interactivity against the burden of communications overload.

 

            A more recent development is that of real telephony, in which users may actually talk to each other instead of just typing messages. The telephony software picks up sounds from a microphone, converts the sounds into electrical signals, and sends the signals in packets over the Internet. The recipient must have compatible software that converts the packets back into sounds and plays them on the recipient’s computer. Acceptable voice quality requires a relatively high-speed Internet connection. With sufficiently fast connections, it is also possible to connect a video camera, so that users with the proper equipment and software may see each other while they talk. This technology, called videoconferencing, can connect two subscribers, or several at once.

 

[104]    Given the tremendous amount of “bandwidth” required to send real-time video images over the Internet, it’s pretty much pushing the existing technology to send a video image to a single recipient at a time. Currently under development is a new technology known as the Multicast Backbone, or MBone, that would provide sufficient bandwidth to deliver “multicasts” to thousands of recipients at a time. The multicast would begin as a single file, and be duplicated only as it got out onto the Internet to be delivered to the many subscribers.

 

            In any event, the most common current uses of chat rooms, instant messages, telephony, and videoconferencing are to transmit spontaneous typing, talking, and gesturing. While it’s certainly possible to recite poetry or send unauthorized copies of CDs, movies or television programs, the quality of the messages, processed in real time, ranges from unacceptable to barely acceptable to acceptable, and probably doesn’t yet threaten existing methods of distributing most copyrighted works.

 

E-mail

 

The most popular use of the Internet is to send electronic mail, or e-mail. It is estimated that e-mail volume surpassed 1 trillion messages in 1995, and is approaching 7 trillion messages in the year 2000. The sender addresses text and other messages to recipients by typing in their unique e-mail addresses. The message is broken down into packets and sent over the Internet following the TCP/IP (transmission control protocol/internet protocol) standard, usually in a matter of seconds or minutes. If the recipient is on-line when the message is received, the recipient may be notified of the incoming e-mail. If the recipient is not on-line, then the message is stored in the recipient’s assigned “inbox” until the next time the recipient logs on to the recipient’s own network or service provider. At that time, the recipient may “read” the e-mail, save it for later, respond to it, delete it, or forward it to yet another recipient.
 

 

            In some ways, e-mail might be thought of as simply a very fast mail delivery service, raising no more copyright concerns than the regular mail that has existed for centuries. The difference is that with e-mail, you can send messages to dozens, hundreds, or thousands of people at a time. You can keep subscription lists of people you contact regularly. You can have people subscribe to a mailing list by sending a message indicating they [105] want to receive e-mails from a particular source or on a particular topic. And e-mail isn’t just text anymore. Most e-mail programs and services allow the sender to attach a digitized file, which can be just about anything—a picture, sound, video clip, or computer program. Given the ease with which such information can be scanned, uploaded, or otherwise input to the computer, it’s easy to see why the Internet is fast becoming the primary means of distributing information—including copyrighted works—around the world.

 

Newsgroups

 

 

            Just as in the case of e-mail, newsgroups thus allow the dissemination of messages to limitless numbers of people at one time. And just as with e-mail, the newsgroup messages may contain digital attachments that represent pictures, sound, video, and computer programs, all organized by topic to make it easy for those interested in the topic to receive the information.
 

Transferring Files

 

One of the major uses of the Internet is to transfer files from one computer to another. One way of doing this is through the Internet’s FTP, or File Transfer Protocol. An FTP site maintains a list of available files, and a computer program that allows subscribers to download the files. Because of their frequently large size, files are normally compressed in order to minimize the amount of time it takes to transfer them: they are decompressed by the user upon receipt. The files can contain anything that can be digitized—articles, forms, photographs and other images, sound, video clips, and computer programs.

           

            Keeping track of all the information available on a given topic can be a mind-boggling task. In 1991, programmers at the University of Minnesota developed a program called “Gopher,” both named after the school mascot and also suggesting what the tool does. It keeps track of collections of information and databases, allowing users to find and retrieve files on topics they want (digging through the mounds of information like a gopher). The advantage of Gopher is that it is menu-driven, so that you don’t have to know how to program in order to use it; and it is able to retrieve data stored in many different formats.

           

            Another use of the Internet is telnet, which allows a user to remotely access other computers. A student or employee can use telnet to gain access to specific computers at school or work, and run programs that reside on those computers. Or a library, for example, can set up a telnet site to allow users to run programs from within the library’s computer that will access information on that computer. Users don’t have to have or [107] download the card-catalog software to their own computers; instead, they use the library’s software running on the library’s computer.

 

            The vast information available on the Internet can also be tracked through agents (also called spiders, robots, or just 'bots). These agents are automated programs that gather information for a user without their intervention, and then make the information available when the user wants it. For example, an agent might regularly check for updated news items, particular stock information, or all recent articles on a particular topic.

 

The World Wide Web

 

 

 

[108]    The following year, Sun Microsystems introduced Java, a programming language that could be run on any type of computer. Using “applets” (small applications programs), Java allowed Web pages to incorporate true multimedia, such as animations or interactive programs. Within a few short years, major computer programs, such as word processors, began incorporating the ability to script Web pages using Java applets. Microsoft got interested in the Internet market, developed its own browser, Internet Explorer, and incorporated the browser into its new operating system so that accessing the Web was supposed to be just like accessing files on one’s own computer. (Microsoft’s actions became part of the focus of the Justice Department’s antitrust lawsuit against the company in 1998.)
 

 

How Do We Protect the Investment?

 

 

            Although the courts have begun to handle some of the resulting legal issues, they have been joined by the administration and Congress, by international copyright organizations, and by the industries themselves, all of whom have rushed in to fine-tune the law rather than wait for the courts to work it out themselves. In 1998, Congress passed and President Bill Clinton signed the Digital Millennium Copyright Act, which has reshaped [110] the contours of copyright to fit the Internet. We’ll get to some of the substance of that law in the next section. But first, let’s review the brief history that has led to the recent statutory amendments.

 

            The first volley came from the Clinton administration, in the form of a White Paper by the Working Group on Intellectual Property Rights of the Information Infrastructure Task Force. The Working Group argued that some form of legal protection for creative works on the National Information Infrastructure (NII) was necessary if the NII was to develop its full potential. (Although the Working Group talks about the NII and GII, the National and Global Information Infrastructures, which may develop in a variety of ways, I will use the term Internet  to refer to the structure in both its existing and developing forms.) However, the Working Group concluded that relatively few amendments to copyright were necessary, since basic copyright principles covered most of the major problems. Indeed, over half of the massive report was basically a copyright primer, demonstrating how the existing copyright structure was up to the task.

 

 

            There are developing technologies that can encrypt copyrighted works, or otherwise control access to them, or that can be used to keep track of uses of such works. The proposal of the Working Group was to make it illegal to circumvent such copyright protection systems, or tamper with any copyright management information. In this way, those owners of copyrighted works who want their works to be available without limitation, or who are willing to trust to their ability to enforce copyright on the Internet, are free to supply their works in a way that allows open access. But for authors, composers, artists, and record and movie companies that want to release their works only in protected formats, then the law will support their efforts.

 

            The White Paper proposals, at least as characterized by the Working Group, were for relatively modest adjustments to a law that was for the [111] most part already in place. Other parties, however, did not see it that way. For example, the Internet service providers were alarmed at some of the early cases that suggested they might be liable for infringing activities of their subscribers, and at the stance taken by the Working Group that they could be held liable under existing principles of contributory copyright infringement.* The service providers appealed to Congress for an exemption that would treat them more like telephone companies, which are not generally liable for illegal conversations that take place over their systems.

 

*Contributory liability, see p. 177.

 

            Other scholars and some users of the Internet also opposed what they saw as unprecedented intrusion into what was to them the emerging communications system of choice. They urged Congress not to define copyright too strictly, but instead to accommodate a broad range of exceptions and a broad sense that much of the communication on the Internet was protected by fair use. In any event, the proposal that was supposed to be modest ended up getting bogged down in a Congress that was getting conflicting signals from important constituencies.

 

            The debate quickly shifted into an international forum. The administration was instrumental in getting the issue addressed by the World Intellectual Property Organization (“WIPO”). Cynics would claim that the administration simply chose to take the tough Internet issues to the international forum in order to do an end run around Congress, which was not buying the administration proposals. Cynicism aside, it made a lot of sense to address the issues internationally because the problem was an international one, and America’s major trading partners were as eager for a resolution of the problems as was the United States.

 

 

            By the end of 1998, Congress passed the new law as the Digital Millennium Copyright Act. One minor problem along the way, however, was that the modest proposals had grown to approximately sixty tightly packed, single-spaced pages of definitions, clarifications, exceptions, and highly regulatory language that were nearly incomprehensible to most readers. While I’ve described some of the previous technical amendments as ones that only a lawyer could love, I know of no lawyers who love the new act. Reading it is about like reading a technical journal in a foreign language.

 

The Digital Millennium Copyright Act

 

Copyright Protection Systems and
Copyright Management Information

 

The Working Group had identified several technologies that were capable of protecting works on the Internet. For example, certain commercial on-line services, dial-up bulletin boards, and business are available only to users who identify themselves as authorized to use the services by typing in a valid user ID and password. Furthermore, encryption techniques can provide for the “scrambling” of information so that it may be decoded only by authorized users. These encryption techniques guarantee that certain transactions, such as banking or credit card transactions, are secure against anyone who might otherwise obtain access to the information as it is forwarded from computer to computer over the Internet.

 

            In addition to systems that control access, there are other systems that allow anyone to access files, but embed special information in the files. For example, [113] digital “signatures” can be used to authenticate that a particular file was sent by the proper sender, and has not been altered. A related system is digital “watermarking,” which incorporates into a file identifying information that cannot easily be dissociated from the file—so-called copyright management information about authorship, copyright ownership, date of creation, and terms and conditions of authorized uses. Using robots or spiders to prowl the Web, a copyright owner or organization can search for infringing uses of works incorporating the particular watermark.

 

            All such systems for protecting or allowing the detection of copyrighted works in digital form, primarily on the Internet, would be pointless if users simply unlocked the locked files or stripped the relevant codes. The purpose of the new WIPO treaties, and the provisions of the Digital Millennium Copyright Act, is to make it illegal to circumvent such copyright protection or copyright management information systems.

 

            However, lots of exceptions and qualifications got added in the circuitous route to passage. For example, there are elaborate definitions, clarifications, exceptions, and exceptions to exceptions, to cover law enforcement, intelligence, and other government activities; authorized encryption research and security testing; and certain “reverse engineering” to allow minor modifications in order to make computer programs run on particular systems or to assure “interoperability” with other programs, or to allow the alteration of “personally identifying information” about the user. Under the new law, libraries would be able to circumvent systems in order to determine whether they wanted to make the copies to which they are entitled under section 108 of the Act.*

 

*Library photocopying, see p. 20.

 

            Once Congress got started on the list of exceptions, its members apparently began to worry that there were some exceptions that should be in the statute that they had not yet thought about. So they set up a mechanism under which the Librarian of Congress would periodically hold hearings to determine if there were other “classes of works” that might be “adversely affected” by virtue of the protections provided in the statute. The Librarian would then have the authority to carve out new exceptions. Congress even provided a two-year grace period before enforcement of many portions of the statute, postponing actions against violators until the year 2000, to give the Librarian sufficient time to review the first set of proposed exceptions.

 
 

            It should be noted that the copyright protection systems are not solely an Internet phenomenon. The Digital Millennium Copyright Act is just as applicable to CD-ROMs or other storage media as it is to the Internet, and is designed to protect music, images, movies, and other data whether on the Internet or elsewhere. Indeed, one of the specific provisions of the amendment deals with VCRs.† The Digital Millennium [115] Copyright Act requires that manufacturers of VCRs make their machines so that they recognize and abide by copyright protection systems on certain video broadcasts and prerecorded video tapes and disks.

 

†VCRs, see p. 71.

 

Limitation of Liability for On-line Service Providers

 

One of the hottest issues for the Internet is the potential liability of on-line service providers for the infringing activities of their customers. The on-line service providers argue that they simply supply the equipment allowing users to connect to the Internet, and do not actively control, nor should they be encouraged to interfere with, the content of materials posted on their systems.* They claim that they are like telephone companies, not liable for any illegal content in the communications of their customers; or like Sony in the Betamax case,† not liable for any potentially infringing activity undertaken by customers using their equipment.

 

*Contributory liability, see p. 177.

†Betamax case, see p. 66.

 

            Others argue that the service providers are in a very different position from telephone companies or VCR manufacturers, more like publishers and radio and television broadcasters, liable for the content of the material they publish even if they do not knowingly infringe copyright. Unlike Sony in the Betamax case, the service providers frequently have the ability to control or delete the content of infringing postings or Web sites, or to block access of their customers to such sites. Since the individual infringers are frequently anonymous, or use on-line pseudonyms that make it nearly impossible to track them down, copyright infringement would be unenforceable on the Internet if the service providers were not held accountable.

 

            A handful of early cases, though very much flavored by their specific facts, found that bulletin board operators and Internet service providers could be found liable for copyright infringement for the uploading and downloading of infringing works on their systems. In some cases, it was clear that the operators and service providers were encouraging and even economically benefiting from such activity; but in other cases, operators and service providers were held liable even though they had no knowledge of the specific infringing activities. Needless to say, bulletin board [116] operators and Internet service providers became concerned about their potential liability for infringements on the Internet.

 

            In any event, the Digital Millennium Copyright Act now specifically protects the Internet service providers in several carefully described circumstances.  For example, service providers are not liable for “transitory digital network communications” that they simply forward “through an automatic technical process without selection of the material by the service provider” from a customer to its intended destination. (Service providers thus aren’t generally liable for forwarding infringing e-mail.)

 

            If a customer posts information so that it “resides on a system or network” run by the service provider, without the service provider’s knowledge that the information is infringing, then the service provider is generally not liable. The provisions are incredibly intricate; but they do exact the cooperation of the service providers to assist copyright owners in limiting copyright infringements. If the service provider is notified of a claimed infringement, the provider must generally respond “expeditiously to remove, or disable access to, the material that is claimed to be infringing.” Furthermore, a copyright owner may obtain a subpoena from an appropriate court requiring a service provider to reveal the identity of any of its subscribers accused of violating the copyright. Such procedures ought to allow the copyright owner to proceed against the proper party.

 

            Another exception protects the process know as system caching. Let’s take a look at this problem. Most computers have their own built in “caches”; that is, the computer programs, such as Web browsers, automatically [117] store copies in RAM of recently accessed images and materials, so that if the user wants to go back to a site that’s already been accessed, the images and information can be reloaded virtually instantaneously. System providers use similar caching systems. When a customer clicks on a Web page, effectively requesting the service provider to connect the customer to a specific address, the service provider usually connects directly to that location. However, for sites that are frequently accessed by lots of customers, it is faster for the service provider to set up a “cache”—a copy of the requested site—so that the cached information can be accessed more quickly.

 

            The service providers argue that such system caches speed their services, and actually reduce congestion on the Internet by allowing many requests for information to be satisfied using the provider’s cache instead of going back repeatedly to the Internet. Some copyright owners have objected that such caching systems constitute copyright infringement, since they result in the making of copies that the copyright owner does not control. Congress, however, agreed with the service providers that system caching should be allowed, by creating an exception to specifically exempt such systems.

 

            However, there are circumstances in which system caching might in fact cause harm. For example, if a Web site constantly updates material, requests for information that are satisfied by routing the request to a previously stored system cache might fail to update the information as frequently as is necessary, and result in the users’ receiving outdated information. Or if a Web site makes money by charging advertisers for the number of “hits” to the site, the use of system caching might result in an undercount in the number of hits—hits to the cache would not be recorded. Therefore, there are elaborate provisions in the new act requiring that the system providers comply with “rules concerning the refreshing, reloading, or other updating of the material when specified by the person making the material available on-line in accordance with a generally accepted industry standard data communications protocol for the system or network.”

 

[118]

Does the New Statute Work?

 

The Digital Millennium Copyright Act is not traditional copyright at all: rather, it’s a new paradigm, reinforcing the copyright protection and copyright management information systems that are adopted by the copyright owners themselves. The new act protects the package, rather than the content. It has some precursors. When Congress extended copyright protection to sound recordings,* it covered the “package” in which copyrighted music or other recorded sound might be embedded. And when Congress passed the Semiconductor Chip Protection Act,† it focused more on the package than on the content of the semiconductor chips.

 

†Semiconductor Chip Protection Act, see p. 89.

 

            The international community, in adopting the WIPO treaties, and the United States Congress, in adopting the Digital Millennium Copyright Act, were obviously concerned about the possible negative effects of digitized information. Once text, images, sound, and movies are digitized, it’s simply too easy to make copies and disseminate them around the world at the touch of a button.

 

 

*Subject matter of copyright, see chapter 6.

†Ideas, see p. 188; facts, p. 187.

‡Fair use, see p. 190.

•Duration of copyright, see p. 205.

 

            For example, what does it mean for a work to go into the public domain after the expiration of copyright if it’s still under electronic lock and key? Of course, just because a work is in the public domain, it doesn’t guarantee that the public has access to copies; copyright in unpublished letters eventually expires, but that doesn’t mean that the public will necessarily [120] get access to the works. Or if a museum has physical control over access to an artwork that’s in the public domain, it can still prevent the making of copies of the work. But now we’re going to be generating lots of works that are under a lock and key that may long outlive the life or the scope of the copyright.

 

            The whole protection system is premised upon the assumption that, if works are not subject to the safeguards provided in the new act, companies will simply not disseminate their works in digital formats; and that it is ultimately a boon to the public that works should in fact be made available in such new and useful formats. Some of the specific exceptions that were added to the Digital Millennium Copyright Act paralleled or were inspired by some of the traditional limitations on copyright, but the fit is not precise. Presumably, that’s why a procedure has been set up for periodically reviewing the system, and making additional exceptions. Whether the price we’re going to have to pay to encourage the creation and dissemination of digital works is worth it, in terms of cost, complication, and possible overreaching of protection, has yet to be determined.

 

Let’s Not Forget the Basic Principles of Copyright

 

Lest you think that the Digital Millennium Copyright Act covers all situations on the Internet, let’s take a look at a recent case that illustrates something about the fundamental nature of the Internet that makes it different from all other forms of communication.

 

            In 1996, TotalNEWS, a start-up company on the Internet, introduced one of the most useful Web sites of the year. Their Web site, reproduced on the next page (shown accessing a Fox News site), allowed “one-stop” [121] news access. From the TotalNEWS site, customers could access news, either by typing in topics and getting cross-links to hundreds of separate Web news sites on those topics, or by clicking on one of the news buttons at the left of the page to access the news reporting service of any of the news services listed. TotalNEWS maintained no news of its own, but was strictly a conduit for accessing news from the linked sites.

 

            TotalNEWS used what was known as “framing” technology to access the other sites from within a separate frame of the TotalNEWS site. For example, the illustration above right shows the way a customer would view the Fox News site on a particular day if he or she went directly to that site. As you can see, the same Fox site was reproduced on the TotalNEWS site in a “frame” that represented a portion of the TotalNEWS site; the other frames for accessing other news sites remained along the left side, and the TotalNEWS ads remained in their own frame along the bottom of the page. Customers could “move around” the Fox site within the TotalNEWS site by clicking on the arrows or margins at the right of the frame on the TotalNEWS site. There was also an option to bring the inner frame to the “front” window, in a full-sized frame, but there were no instructions on how to do this, and many people may never have figured out how to do it or even realized that it could be done.

 

            Several of the other news services sued TotalNEWS for copyright infringement. They complained that the framing technology cut off portions of their pages, so that their pages were not presented to the customers as they were designed to be presented. For example, by [122] displaying the Fox site in a smaller frame within the TotalNEWS site, the initial view cut off the Fox News ad on the right, the Fox search engine (“find what you want”), and the Fox links at the bottom of the page. The other news companies particularly objected that their sites were displayed inside a frame that contained TotalNEWS’ advertisements, sometimes covering up their own ads. Furthermore, if customers liked a particular page, and pressed the “Bookmark” button so they could come back to that page later, they were actually bookmarking the TotalNEWS site rather than the other site. For example, if a customer liked the Fox News site, pressed “Bookmark,” and later came back to the bookmarked site, he or she would be at the TotalNEWS Home page (www.TotalNEWS.com) rather than the Fox News site (www.foxnews.com)—and with the general TotalNEWS inner frame rather than the inner Fox News frame.

 

            For its part, TotalNEWS argued that it didn’t actually make a copy of the other news sites: instead, their Web site simply contained a URL (universal resource locator) address (such as www.foxnews.com) that instructed the user’s Web browser to link to the other site directly. As explained in the TotalNEWS “disclaimer,”

 

            TotalNEWS provides a link to other sites maintained by third parties. As such, for your convenience, TotalNEWS facilitates access to news and news related sites on the Internet.


            Due to the use of the frames technology on browsers that support it, even though the TotalNEWS URL might be displayed as the current URL, users are actually directly accessing the third-party Web sites. TotalNEWS does not modify, copy, reproduce, republish, transmit, upload, post, broadcast, rewrite or redistribute information found on the third-party Web sites. All data is sent from the corresponding Web site directly to the user’s browser without any intervention from TotalNEWS.

           

            Rather than contest the case, TotalNEWS agreed to stop using the framing technology; now, whenever a user clicks on a news service button, he or she “leaves” the TotalNEWS site, and is linked to the new site in a full-sized frame. In exchange, the other news companies agreed to give TotalNEWS a “linking license.” Since the case was settled, it is unclear whether such a linking license would have been required but for the settlement.

 

[123]    The case illustrates one of the features of the Internet that is bound to raise questions in the future, and which is not dealt with by the Digital Millennium Copyright Act. Once any person or company assigns a universal resource locator to a picture, or text, or any other digital file, authors of any other Web sites can use that same URL name to make the image, text, or other file appear to “exist” on their page. That is, it’s now possible to make what appear to be copies of other people’s works on one’s own Web site without having to “modify, copy, reproduce, republish, transmit, upload, post, broadcast, rewrite or redistribute” them. And if you don’t make or distribute a copy, or publicly perform or display it* (beyond the display caused by the creator’s own URL), then you haven’t infringed any copyright, have you? Well, there is still the exclusive right to make a derivative work;† and the “placement” of a work onto a different site, so that it appears different to the user, is arguably the creation of a derivative work, even if no copy is ever made.

 

*Exclusive rights of copyright, see p. 166.

 

            In another variation on the theme, some Web authors are quite careful to set up their sites in a particular sequence, so that the user sees, for example, the Home page first (explaining the company philosophy), and then particular explanations and disclaimers in a particular order before getting into the “inner” Web pages. What if someone else upsets that scheme by making links not to the company’s Home page, but to one of the inner pages? On the one hand, how can anyone complain about having “traffic” sent to their site? On the other hand, isn’t it a violation of the expectations of Web authors to have others link to their sites in such a way as to defeat their carefully structured sequence of pages?

 

            The Internet is a fascinating place, and I suspect it will be generating novel questions of law faster than Congress can possibly deal with the specifics. That’s why it’s important that the Digital Millennium Copyright Act is not the only law on the subject. Many of the issues will be decided by the parties, lawyers, and courts applying basic copyright principles of law, just as they have for years.

 

Conclusion

 

There are other provisions of the Digital Millennium Copyright Act,‡ but I think you’ve probably gotten the point by now: yes, copyright is capable of dealing with the new technology. But no, there isn’t necessarily a pretty [124] or neat solution to the problems. Even Congress seemed aware that this was only the first pass, and provided that the Register of Copyrights and other members of the Department of Commerce should report back to Congress the effects of the amendments, and any recommendations for further change. I personally lament how technical the recent copyright solutions have become. But the point is, solutions are available. The Internet is not the death knell for copyright, but simply an opportunity for modification.

 

‡Other DMCA provisions, see pp. 25 and 71.

 

            Indeed, the digital distribution of copyrighted works offers not only a threat to copyright interests, but also the seeds of a technological solution. The Digital Millennium Copyright Act protects copyright protection systems and copyright management information. The administration, Congress, the international community, and the industries themselves envision an era when the computer software and the copyright management information can provide for more efficient tracking of the use of copyrighted works, and more efficient licensing mechanisms. Technology, on balance, is neutral to copyright interests; in some ways it’s a threat, but in some ways it’s a boon, just another market to be exploited. In any event, copyright is alive and well on the Internet.

 

Return to Contents