Prepared by Maryjane O'Halloran

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Table of contents

1. Introduction

1. Brief history of the issues
2. Glossary of terms

1. Legal information sources

1. Primary sources

1. Constitution

2. Statutes

3. Case Law: Frequently Cited Cases

B. Secondary Sources

1. Encyclopedias

2. Looseleafs and Treatises

3. Annotated Law Reports

4. Law Reviews and Journals

1. Interdisciplinary Information Sources

1. Books
2. Articles
3. Websites

1. Organizations

 Introduction

A.  brief history of the issues

Copyright law in the United States is old. The First U.S. Copyright Act: "An Act for the Encouragement of Learning, by securing the Copies of Maps, Charts and Books, to the Authors and Proprietors of such Copies, during the Times therein mentioned" was signed into law by George Washington on May 31, 1790. This act was the first copyright act to protect books, maps and other original materials. Rights were granted only to citizens of the United States, a policy that continued until 1891. Passage was due mainly to Noah Webster who worked unceasingly on its behalf.

In the last hundred years, the U.S. had used the Copyright Law of 1919. Difficulties in applying this law in the courts began a revision process that lasted ten years. This resulted in the Copyright Law of 1976. Unfortunately by the time this law was implemented, it was outdated. One of the most pressing problems in copyright law today is the Internet and copyright infringement.

The Internet had a rather modest beginning back in 1969 when, at the request of the US military, four computers were networked together. The original purpose of ARPANET, as the resulting network was called, was to develop a military research network that could survive a nuclear strike. that ARPANET, As ARPANET grew it increasingly became dominated by university researchers. As a result of this the military traffic was moved to a new network, MILNET, with the two networks referred to together as DARPANET. Then in the 80's, the US National Science Foundation networked their five supercomputer centers, the resulting network was called NSFNET. The 80's saw other publicly and privately funded networks come into being; USENET, BITNET, CSNET, NASA Science Internet, and the UUCP network. Starting in 1990, these networks were "internetworked" to form the Internet. In 1991, the ban on commercial traffic was lifted. Although controversial, the lifting of that ban contributed to the Internet's recent explosive growth. (See timeline Of the development of the Internet: History of the Internet ).

The issue of copyright and intellectual property rights as they relate to the Internet and the Web is fairly recent. There is no difference between copying a book or copying information found on a web site. However, there is a great deal of copyright infringement on the Web because the technology makes it so easy, the law is unclear and antiquated about many of the issues, and most users are uniformed about what information is copyright protected.

B. Glossary of Terms

Bulletin Board System, (BBS),a system that lets users read messages of others and post their own. Usually these systems were available by direct modem dial-up connection. Precursor to Usenet, but still available in many areas. Files are available for download on these systems.

Domain Name, a name given to a host computer on the Internet.

File Transfer Protocol, (FTP), a part of a software program that allows user to send files from one computer to another on the Internet.

Hypertext, interactive text or images that allow the users to jump to another place on the Web

HyperText Markup Language, (HTML), a hypertext Internet protocol which could communicate the graphic information on the Internet; the language with which hypertext documents are written for the Web.

HyperText Transfer Protocol, (HTTP), a type of network protocol which is used to allow computers to talk to each other and retrieve information from the Net.

Internet (Net) to refer to the physical structure of the Net, including client and server computers and the phone lines that connect everything; includes all of the WANs in the world

Internet Service Provider, (ISP), a connection to the Internet. User uses an ISP to connect onto the Internet every time he logs on.

Local Area Network, (LAN), a group of computers connected within a geographical location.

Protocol, a set of rules that defines how computers transmit information to each other which allows different types of computer and software programs to communicate.

Uniform Resource Locator (URL) the location of a document or piece of information

Wide World Web, (Web), a system of accessing information on the Internet; connection to the collection of sites and the information that can be accessed when one is using the Internet.

Wide Area Network (WAN), two or more LANs connected

1. Legal Information sources

1. Primary Sources

1. Constitution of the United

http://www.scruz.net/~jds/jon/US-Constitution.htm - 1.8

Article 1, § 8

To 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;

2. Statutes

United States Code

http://www4.law.cornell.edu/uscode/17/

Title 17 of the United States Code contains The Copyright Act of 1976

17 USC Chapter 1: Subject Matter and Scope of Copyright

http://www4.law.cornell.edu/uscode/17/ch1.html

17 USC § 101 Definitions

17 USC § 107 Limitations on exclusive rights: Fair Use

17, § 1201 Circumvention of copyright systems

protection http://www4.law.cornell.edu/uscode/17/1201.html

17, § 1205 Violations regarding circumvention of technological measures

http://www4.law.cornell.edu/uscode/17/1205.html

A Copyright Office companion site, Copyright Legislation, aids in bringing the Copyright Act up-to-date.

 

No Electronic Theft Act, 18 U.S.C. 2311 (1996)

On December 16, President Clinton signed HR 2265, a bill that creates stiff criminal penalities for the willful copyright infringement by electronic or other means.

 Public Law 105-304

1998 Digital Millennium Copyright Act, , 17 U.S.C. 512 (1998)

On October 28, 1998, President Clinton signed the Digital Millennium Act H.R.2281. This act was designed to increase the protection given to copyrighted works on the internet. The law makes it illegal to circumvent technological measures that lock access to copyrighted works and to distribute false information about a work such as the identity of its author and conditions for use. This act amends the U.s. Copyright act to conform to two international treaties from the World Intellectual Property Organization.

World Intellectual Property Organization: http://www.wipo.org/eng/diplconf/6dc_sta.htm

Public Law 105-298 / S. 505

Sonny Bono Term Extension Act,

Signed into law by President Clinton on October 27, 1998. This act on extends the duration of copyright by 20 years. For example, a work created or after January 1 1978 is protected for the life of the author plus 70 years.

Public Law 104-98 / H.R. 1295

Federal Trademark Dilution Act of 1995 Written as a trademark and copyright protection. Approved Jan. 16, 1996; 109 Stat. 985 (1996)

HR 3531 Database Investment and Intellectual Property Antipiracy Act of 1996 Introduced May 23 by Rep. Carlos Moorhead (R-CA) and referred to the Committee on the Judiciary.

 HR 2652, Collections of Information Antipiracy Act Introduced October 9, 1997 by Rep. Coble. Passed House May 19, 1998. Currently in Senate Committee on the Judiciary

3. Treaties

Berne Convention - the 1971 Paris Text of the Berne Convention for the Protection of Literary and Artistic Works. The U.S. is party to this version of the treaty.

UCC - The 1971 Paris Text of the Universal Copyright Convention. The U.S. is party to this version of the treaty

3. Case Law: Frequently cited cases

1. Bulletin Board Services (BBS)

Playboy Enters Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993)

A BBS owner knowingly allowed the uploading of copyrighted images for downloading by other customers was found liable for copyright infringement. Frena did not make the copies himself, but supplied a product containing unauthorized copies of a copyrighted work.

Sega Enters., Ltd. v. Maphia, 948 F. Supp. 923 (N.D. Cal. 1996)

Defendant Sherman was the operator of the BBS Maphia and charged a feefor membership that allowed members to access stored copies of video games; he also sold video copiers, "Super Magic Drives". Although the court did not find Sherman directly liable, but because his role in copying and encouragement and seeking profit the court found him to be liable for contributory infringement.

b. Criminal Infringement and Liability

United States v. LaMacchia, 871 F. Supp. 535

David LaMacchia, a twenty-one year old student at the Massachusetts Institute of Technology (MIT), used MIT's computer network to gain entree to the Internet. LaMacchia set up an electronic bulletin board and encouraged users to upload popular computer games and software applications. LaMacchia was indicted, but the case was thrown out before the trial because he had not made a profit which eliminated the use of the criminal copyright law. The judge felt that the prosecutor could not justify use of the 1952 Wire Fraud law. The No Electronic Theft Act was intended to reverse

the result of this case in which electronic copyright piracy is committed without profit motive.

3. Domain names and Trademarks

Panavision L.P. v. Toeppen, 945 F. Supp. 1296 (CD Cal. 1996)

The court held that a trademark pirate who developed a scheme to register a domain name using a trademark of another party and then to sell that domain name to the trademark holder could be held liable for trademark dilution under federal and California law.

Cardservice Int’l., Inc. v. McGee, 950 F. Supp. 737 (E.D. Va. 1997)

The court held that a domain name of "cardservice.com" infringed the registered trademark "Cardservice International" where the name used in a domain name involving a site that offered the same type of product as the trademark holder’s site. The competing domain name duplicated the trademark and was more than just an address.

4. Downloading and Using Contents

Fiest Publications, Inc. v. Rural Tele. Serv. Co., 499 U.S. 340 (1992)

A telephone utility brought copyright infringement action against a publisher of an area-wide telephone directory for publisher’s use of listings in the utility’s white pages. The court held that telephone listings were not sufficiently original to qualify for copyright protection. This case suggests that database compilations will not be protected by copyright law.

ProCD, Inc. v. Zeidenberg and Silken Mountain Web Servs., 908 F. Supp. 640 (W.D. Wisc. 1996)

Summary judgement granted in favor of defendants in case alleging copyright infringement by downloading of telephone listings contained on plaintiff’s CD-ROM. The court held that copyright protection extended to plaintiff’s software, bur did not extend to telephone listings stored on the CD-ROM discs and made available to Internet users by placing the data onto an Internet host computer. The court found that defendants used the protected software for their own individual purposes, consistent with plaintiff’s copyright and distributed only unprotected data.

e. Fair Use Online and in Databases

Religious Tech. Ctr. v. Netcom On-Line Communications Services, Inc., 907 F. Supp. 1361 (N.D. Cal 1995)

The Church of Scientology brought action against the operator of a computer bulletin board service ("BBS") and Internet service provider ("ISP"), seeking to hold defendants liable for copyright infringement committed by a BBS subscriber. Defendant, Netcom, the ISP, asserted the fair use defense. The court held that fact issues precluded summary judgement on the access provider’s fair use defense.

A number of cases have been brought by the church of scientology against persons who have posted portions of the teachings of L. Ron Hubbard on Web pages:

Religious Tech. Ctr. v. F.A.C.T. Net, Inc., 901 F. Supp. 1519 (D. Col. 1995) Court found that the internet postings could be considered as having been made for the purpose of criticism, comment, or research falling within the fair use doctrine.

Religious Tech. Ctr. v. Lerma, 897 F. Supp. 260 (E.D. Va., 1995)

Court accepted the defendant’s fair use defense.

Religious Tech. Ctr. v. Ward, No. 96-20207 (N.D. Cal. March 21, 1996)

Church obtained a TRO against an individual who solicited copies of church teaching on the Internet and published them on-line.

Religious Tech. CTR. v. Henson, 1999 U.S. App. LEXIS 11828

The district court granted RTC's motion for summary judgment on the grounds that Henson had infringed copyright by displaying the work over the Internet, and that Henson had no valid defense because Henson's copying was not a fair use.

Storm Impact, Inc. v. Software of the Month Club, 13 F. Supp. 2d 782, (N.D. Ill. 1998)

Storm Impact distributes its software as "shareware" which gives the user the opportunity to use the product and try it out before buying. Storm Impact’s shareware programs contain a restriction that a charge cannot be made for copies or a profit made from the software and its distribution, but a monthly fee was charged to the members. Software of the Month Club’s copying and distribution was held not to constitute fair use.

6. Texas Cases

Playboy Enters., Inc. v. Webbworld, Inc., 991 F. Supp. 543 (N.D. Tex. 1997)

Allowing subscribers to view copyrighted works constituted "display" of those workd within meaning of Copyright Act, despite claim that no image exsisted until a subscriber downloaded it. However, ISP made it available for decoding as image file by subscribers’ browser software.

Central Point Software, Inc. v. Nugent, 903 F. Supp. 1057 (E.D. Tex. 1995)

Statutory damages in the amount of $10,000 per work would be imposed on operator of BBS that posted copyrighted works for downloading, where operator profited from violations by charging subscribers to BBS a monthly registration fee.

B. Secondary Sources

1. Encyclopedias

1. American Juriprudence

18 Am. Jur. 2d, Copyright and Literary Property, § 50 Computers and Computer Programs, § 41, 50-52, 72 Compilations, Collective and Derivative Works, § Fair Use Doctrine 83, 85, 86,

b. Corpus Juris Secundum

18 CJS § 12 Computer programs, §17 Sound recordings, §20 Compilations and Derivative Works, §31 Duration of Copyright, §41 Infringement in general, §45 Fair Use in General

c. 'Lectric Lawcopedia : Trademarks and Copyrights

2 . Looseleafs and Treatises

1. Raymond Nimmer, The Law of Computer Technology. West Group 3^rd, 1997 and Supplement 1999.
2. John W. Hazzard, Law in Business and Practice. West Group 3^rd, 1999.

3. Annotated Law Reviews

a. Deborah F. Buckman. Annotation. Liability as Vicarious or Contributory Infringer Under Lanham Act-Modern Cases. 152 A.L.R. Fed. 573 (1999) Deals with contributory liability against an internet domain name registrar that had accepted registrations of internet domain names that were identical or markedly similar.

b. Jason H. Eaton, Annotation, Effect of Use, or Alleged Use, of Internet on Personal Jurisdiction in, or Venue of, Federal Court Case. 155 A.L.R. Fed. 535 (1999)

c. Romualdo P. Eclavea ,Annotation. Liability as "Vicarious" or "Contributory" Infringer Under Federal Copyright Act. 14 A.L.R. Fed. 825 (1999). Clarifies two legal terms.

d. H. D. McElreath. Annotation, Application of "De Minimis Non Curat Lex" to Copyright Infringement Claims. 150 A.L.R. Fed. 661 (1999) Deals with documents of the Church of Scientology copied on to the Internet.

4. Law reviews and Journals

• Note: Due the timely nature of copyright and Internet issues, only articles published in 1999 are listed.

Copyright laws and legislation dealing with the Internet:

David Allweiss, Copyright infringement on the Internet: can the wild, wild west be tamed? 15 Touro Law Review 1005-1052 (1999)

Robert G. Gibbons & Lisa Ferri, The legal war against cyberspace piracy. 222 New York Law Journal 1 (1999)

Jane C. Ginsberg, Copyright legislation for the "digital" millennium. 23 Columbia-VLA Journal of Law & the Arts 137-179 (1999)

Trotter Hardy, Copyright and "new use" technologies (The Internet and the Law). 23 Nova Law Review 659-705 (1999)

Fair Use and Copyright:

Paul D. Amrozowicz, When law, science, and technology collide: copyright issues on the Internet. 81 Journal of the Patent and Trademark Office Society 81-116 (1999)

Stephen Manes, Surfing and stealing: an author’s perspective (Horace S. Manges Lecture). 23 Columbia-VLA Journal and Law & the Arts 127-135 (1999)

Intellectual Property:

Jane C. Ginsberg, The cyberian captivity of copyright: territoriality and authors’ right in a networked world. 15 Santa Clara Computer and High-Technology Law Journal 347-361 (1999)

Don W. Martens & Stacey R. Halpern, Copyright law in cyberspace (Intellectual property in the media). 27 International Business Lawyer 151(11) (1999)

Internet and Music Copyright:

Michelle Knight, Volume turns up on MP3 debate (Technology to transmit music on the Internet. 222 New York Law Journal 56 (1999)

Jennifer Markiewicz, Seeking shelter from the MP3 Storm: How far does the Digital Millennium Copyright Act online service provider liability reach? 7 CommLaw Conspectus 423-445 (1999)

Internet Service Providers:

Christian C. M. Beams, Copyright dilemma involving online service providers: problems solved …for now. 51 Federal Communication Law Journal 823 (1999)

Steven Halpren, New protection for Internet services providers: analysis of "the Online Copyright Infringement Liability Limitation Act" 23 Seton Hall Legislative Journal 359-408 (1999)

Michelle Ravn, Navigating terra incognita: why the Digital Millennium Copyright Act was needed to chart the course of online service provider liability for copyright infringement. 60 Ohio State Law Journal 755-798 (1999)

1. Interdisciplinary Information Sources

A. Books

Robert L. Baud & Lewis Kurlantzick, Copyright Duration. San Francisco: Austin & Winfield Publishers, 1999. Outlines duration and new laws.

Cheryl Besnenjak. Copyright Plain & Simple. Franklin Lakes, New Jersey: Career Press, 1997. Explains copyright law for the layman and non-specialist.

Bernard Galler, Software and Intellectual Property Protection: Copyright and Patent Issues for Computer and Legal Professionals. Westport, Conneticut: Quorum Books, 1994. Concentrates on intellectual issues and technology.

Robert B. Gelman, et al. Protecting Yourself Online. San Francisco: HarperEdge, 1998. Offers advice in copyright protection for publishing and obtaining information online.

Curtis E. A. Karnow, Futures Codes: Essays in Advanced Computer Technology and the Law. Boston: Artech, 1997. Current information for legal professionals and use of technology.

Marshall Leaffer, Understanding Copyright Law. New York: Matthew Bender, 1995.

Software and Intellectual Property Protection: Copyright and Patent Issues for Computer and Legal Professionals. Westport, Connecticut. Intrepretations of copyright law; special section dealing with the Internet and online material.

Lewis C. Lee & Scott Davidson. Intellectual Property for the Internet. New York: John Wiley & Sons, Inc., 1999. Internet rulings and copyright issues that are very timely.

Jonathan Rosenoer, CyberLaw: the Law of the Internet. New York: Springer-Verlag, 1996.

David F. Simon. Computer Law Handbook. Philadelphia: ALI-ABA, 1990.

Thomas J. Smedinghoff, ed. Online Law. New York: Addison-Wesley Developers Press, 1995.

B. Articles

Nikhil Hutheesing, The Web Plays On. 162 Forbes 51-51. 16 November 1998. Discusses the problems of music distribution and playing in connection with new digital technology.

Mark Radcliff, The Technical Provisions of the DMCA. Copyright World, May, 1999. Information concerning Digital Millenium Copyright Act.

Roy Tennant. Copyright and Intellectual Property. 4 Library Journal 34-36. August 1999. Issues of computer technology and intellectual property.

C. Websites

U.S. Copyright Office : http://lcweb.loc.gov/copyright/

The Copyright Office provides basic information on copyright, information on copyright registration, guides to searching the copyright status of works, and texts of selected copyright office circulars and announcements.

Copyright, Intellectual Property Rights, and Licensing Issues: http://sunsite.berkeley.edu/Copyright/

The Berkley Digital Library Sunsite offers links to lots of Internet sites with information about copyright. Emphasis is on copyright as it applies to electronic publications. Resource links are in these categories; current awareness; reference; organizations; initiatives and projects; articles and papers; policy examples and court opinions

When Works Pass Into the Public Domain http://www.unc.edu/~unclng/public-d.htm

A one page chart showing how a copyrighted work is protected and the corresponding time period

Copyright Permission Pages: http://www.law.wfu.edu/library/copyright

Copyright Clearance Center: http://www.copyright.com/

Copyright Resources: http://www.copyright-resources.com/

Copyright Website: http://www.benedict.com/

SUL: Copyright & Fair Use: http://fairuse.stanford.edu/

Library Copyright Guidelines: http://www.fairuse.stanford.edu/library/

Copyright Management Center: http://www.utsystem.edu/OGC/IntellectualProperty/cprtindx.htm

Copyright Resource Page: http://www.aimnet.com/~carroll/copyright/faq-home.html

10 Big Myths about Copyright Explained: http://www.clari.net/brad/copymyths.html

 

IV. Organizations

A. Copyright User (Fair Use) Advocacy Groups

The Digital Future Coalition http://www.dfc.org//

"The Digital Future Coalition (DFC) is committed to striking an appropriate balance in law and public policy between protecting intellectual property and affording public access to it." Members include the American Library Association, National Education Association, and American Association of School Administrators. Click "Media" to access the DFC Media Center.

American Library Association: Washington Office http://www.ala.org/washoff/index.html

"The ALA Washington Office is charged with following and influencing policy issues, legislation, and regulations of importance to the library field and its publics." Of interest are the Legislative Alert and (Current) Issues sections.

The Association of Research Libraries: Copyright and Intellectual Property

The ARL Working Group on Copyright Issues monitors copyright legislation of concern to research libraries. See the Copyright Legislation Alert and Updates/E-News sections.

EFFWeb - The Electronic Frontier Foundation

"The Electronic Frontier Foundation is a non-profit organization working in the public interest to protect privacy, free expression, and democracy online."

B. Copyright Owner Advocacy Groups

The Creative Incentive Coalition

"CIC's shaping principle is this: to be a clear voice in support of the vigorous application of copyright law in the NII (National Information Infrastructure), and to provide constructive advocacy and supportive information to those who believe in the importance of this fundamental principle." CIC members include the Association of American Publishers and the Software Publishers Association. See the News and Action Center sections to keep current with the CIC perspective.

Software Publishers Association: Government Affairs

"The Software Publishers Association (SPA) seeks to promote and protect the computer software industry in legal and policy debates by lobbying government officials, organizing grass roots activism and participating in landmark legal decisions." Members include Apple, IBM, Compaq, and Microsoft.

BMI - Government Relations http://bmi.com/legislation/

An updater on legislative activities affecting copyright and intellectual property from BMI, the music licensing organization.

_Hlk469997608May be viewed on the WWW for animated graphics @ http://dsomic.tripod.com/paper.htm

  

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 Prepared for Dr. Yvonne Chandler

SLIS 5647

University of North Texas

School of Library and Information Science