Speed Bump on the Information Superhighway: Slowing Transmission of Digital Works to Protect Copyright Owners

AuthorKatherine Elizabeth Macdonald
Pages411-439

Page 411

The author thanks Professor John M. Church for his guidance and advice during the creation of this article. Thanks also to my fellow junior associates who assisted with editing during the Law Review Seminar, and to Professors James Bowers and Paul R. Baier for their instruction in the Law Review Seminar. Last, but certainly not least, thanks to my family for their tolerance and support during my tenure on Louisiana Law Review.

As a veteran listener at many lectures by copyright specialists over the past decade, I know it is almost obligatory for a speaker to begin by invoking the "communications revolution" of our time, then to pronounce upon the inadequacies of the present copyright act, and finally encourage all hands to cooperate in getting a Revision Bill passed.

Benjamin Kaplan1

Introduction

The copyright law of the United States traces its roots to the censorship laws of England, when publishers were most concerned about the "communications revolution" of their time: the printing press. Publishers lobbied for laws to protect their investment of printing books, and the Crown acquiesced, wanting to control what was printed and to recognize the economic gain, granting publishers a monopoly to print licensed books.2 What the publishers received from the license was a monopoly of the right to copy and distribute the manuscript.

While the current copyright protections contain some vestiges of these early laws, such as monopoly to copy, distribute, and receive damages from infringers, the original policies behind the law were markedly different from the reasons why copyright protection is extended today. In the early years of copyright, it was the publisher, not the author, who had copyright protection. Also, the first laws were as much to exert governmental censorship as they were to protect intellectual property.3 U.S. copyright law borrowed from the English, but then developed as a balancing act, attempting to harmonize the rights of the creator of the work with the rights of users of the work. Ownership and proprietorship of works abut the interests of users to comment, critique, and use works as a stepping stone for further progress.

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Today, we are still debating concerns raised by Professor Kaplan about the "communications revolution" of the 1960s: computers. Our "communications revolution" now makes it faster, easier, and cheaper to communicate around the globe, with digital technologies rapidly replacing other forms of media as the primary products in the marketplace of ideas. The Internet is the information superhighway, a distribution point for much of the digital communication. The increase in Internet usage in America is leading many businesses to develop additional distribution methods for other forms of digital information. In this era of brisk innovation, copyright law is trying to keep pace with technological advances. Congress enacted the Digital Millennium Copyright Act ("DMCA")4 in 1998 to bring U.S. law into compliance with the World Intellectual Property Organization ("WIPO") Copyright Treaty,5 and to address issues raised by digital communication. Congress intends the DMCA to be "the legal platform for launching the global digital on-line marketplace for copyrighted works."6 A significant provision of the DMCA7 prohibits circumventing access controls inserted in digitally stored works. This provision has been hotly debated because of the impact it has on traditional copyright law, especially the first sale doctrine.8 Under this doctrine, the copyright owner's exclusive right to distribute copies of the work is subject to the limitation that once the copyright owner has made the 'first sale' of the work, subsequent disposition of that copy of the work cannot be controlled by the copyright owner. This doctrine distinguishes between the property right in the intellectual property and the property right in the tangible object containing the expression of the copyrighted work. The first sale doctrine prohibits the copyright owner from interfering with the user's subsequent disposition of the tangible object.

The Copyright Office recently issued a report to Congress describing the effect of the DMCA on electronic commerce ("e- commerce").9 Analogy between distribution of works embodied in Page 413 tangible objects and works transmitted on-line led some groups to seek expansion of the first sale doctrine to include digital transmission of works.10 After public comment on the issue, the Copyright Office concluded that the first sale doctrine does not currently apply to digitally transmitted works,11 and decided against endorsing a change in the law.12 Congress should follow these recommendations, and not adopt a "digital first sale doctrine" for works that are distributed online. A "digital first sale doctrine" would require the first purchaser to simultaneously delete his copy upon retransmission to the second purchaser. This would be accomplished through either an affirmative act by the first purchaser, or by a technological feature of the digitally transmitted work. Recent events, such as the Napster and the DeCSS cases,13 show why copyright owners cannot rely on voluntary compliance with this delete requirement. Currently, adequate technology does not exist to prevent an authorized copyright user from distributing multiple copies from the authorized first sale of a digitally transmitted work. Threat of judicial remedies is often ineffective protection against pirates and private copiers. Expanding the first sale doctrine to digitally transmitted works increases the risk of copyright infringement. Limiting the first sale doctrine to traditional analog media and works stored digitally on a tangible storage medium constructs a necessary speed bump on the information superhighway.

Part I of this article outlines a history of United States copyright laws as background to understand the problem. Part II of this paper reviews the DMCA, and the changes it made to the Copyright Act. Included here is a discussion of the findings and the proposals contained in the Section 104 Report of the Copyright Office. The Internet freeware culture, digital technology and the related problems for effective copyright protection are examined in Part III. Finally, Part IV examines the first sale doctrine of copyright law, and why it should not be expanded to apply to digital works.

I Overview Of United States Copyright Law
A Policies Behind Copyright Law and Evolution of Statutory Protection

Copyright laws attempt to balance the rights of the creator against the rights of the user of the work. The rights reserved to the copyright Page 414 owner during the copyright term are the exclusive rights to reproduce, publicly perform and make adaptations for other media, including translations and other versions of the original material known as "derivative works," subject to some limitations of this exclusive right, such as fair use.14 Because of this exclusive right to reproduce the work, the copyright owner also has the right to prevent others from copying, or infringing upon the rights to exploit the work.15

In the United States, copyrights have constitutional protection in the Copyright Clause,16 which states "Congress shall have the power . . . 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." At common law, authors and inventors had copyright protection until the date of first publication, at which time the work entered the public domain.17 An infringement action could only be brought if the work was unpublished. As long as the author, or his heirs, refused to publish the work, the copyright would exist in perpetuity. To encourage authors and inventors to share their creations, statutory copyright protection was granted, the theory being that granting exclusive rights in the works promotes creativity since authors and inventors receive an economic incentive to share their works. As Samuel Johnson quipped, "No man but a blockhead ever wrote except for money."18 The Supreme Court reiterated the philosophy for balancing these competing rights of author and user, reminding us that: [C]reative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an...

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