Copyright law tackles yet another challenge: the electronic frontier of the World Wide Web.

• Author: Major, April Mara

1. INTRODUCTION

   The Internet has seen an explosion of popularity over the past few years. Government workers and university scholars of yesterday's Internet must now share today's Information Superhighway with big business, commercial industry, and hundreds of thousands of recreational users. With the growing popularity of the Internet, incidents of online fraud, theft, piracy, and infringement have grown correspondingly.

   Confronted with today's Internet revolution, yesterday's law has often proven inadequate in addressing online regulation. Applying well-established legal doctrine to the National Information Infrastructure(1) can be like forcing a square peg into a round hole. Accordingly, the necessity of online regulation requires that lawmakers be flexible and innovative in their approach to preventing and remedying legal injuries that have been cognizable in other contexts for decades.(2)

   Copyright law presents a unique difficulty. Although United States copyright law(3) has traditionally been flexible enough to accommodate innovative technologies,(4) the Internet, and particularly the World Wide Web, presents novel problems because the applicable technology makes copyright infringement as easy as pointing and clicking.

   The central issue of this article is whether present copyright law can accommodate evolving Internet technology. Clearly, the rights of authors and content providers must be protected if the Internet is to remain a valuable information resource.(5) "Because the inherent value of an interactive information system such as the superhighway depends on the willingness of information providers to supply information resources and creative works, industry apprehension concerning the protection of intellectual property rights could deter the development of the superhighway."(6) Accordingly, the rights of authors must not be defeated by the rights of users. While most commentators and legal scholars agree that modern technologies must be regulated, there is disagreement as to the form such regulations should take. Some suggest that existing copyright law need only be amended.(7) Others urge that it be scrapped altogether.(8)

   The first section of this article discusses the technology of the World Wide Web ("the Web") and illustrates the importance of analyzing copyright law in light of the Internet's new electronic publishing form. The next section addresses (1) the exclusive copyrights of authors(9) on the Web; (2) the types of content that are protected; (3) the activities of publishers and users that constitute infringement of protected works; and (4) the user's potential defenses to infringement.

2. THE TECHNOLOGY OF ELECTRONIC PUBLISHING

   A. The World Wide Web

   The World Wide Web(10) is one of the most successful media for electronic publishing. It provides a means of accessing the resources on the Internet without requiring the user to know how those resources are stored and transmitted.(11) Additionally, Hypertext(12) and hypermedia(13) are features that make the Web particularly easy to navigate and that provide such attractive presentations of information. The user accesses the Web via a graphical interface called a "Web browser" that allows maneuvering from site to site by pointing and clicking. The Web thereby accommodates users who are familiar with mouse-driven, windows-type software.(14)

   Electronic publishing on the Web makes use of Hypertext Transfer Protocol ("HTTP")(15) to link computers connected to the Internet.(16) To access a document on the Web, the user must connect to the "Web server"(17) that stores the document.(18) Once connected to the Web server, the user is presented with the first page of the hypertext document called a "home page."(19) Home pages provide hypertext links to subsequent Web pages.(20) When the user directs his Web browser to view a particular Web page, the browser retrieves a copy of the file from the Web server on which the file is stored.(21) The browser accomplishes the retrieval by employing an external hypertext link, which in turn provides a Uniform Resource Locator CURL"), that is, a specific, numeric address, for the file.(22)

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   When a Web server accesses a Web page, a new Transmission Control Protocol ("TCP")(23) connection takes place.(24) Furthermore, a separate TCP connection is created by each inline graphic in a Web document when contact is made with the server that holds that graphic.(25) Thus, when a user requests a single Web document, multiple TCP requests are made to the same or different Web servers.(26) Each TCP connection retrieves a copy of the specified file, regardless of whether the file is composed of text or images.(27) Additionally, when the user selects a hypertext link, a copy of the linked page is transmitted.(28) Although the whole process is transparent to the user, when a browser links to a file on the local or a remote Web server, the file is actually downloaded and stored into the memory of the user's computer until he begins a new session.(29)

   To locate a requested Web page, the Web browser directs a series of bilateral connections.(30)

   URLs uniquely identify each file on the Web by specifying its

   name, what server it's stored on, and where it is in the server's

   directory structure. Entering a URL directly into [the] browser

   or clicking on a hyperlink with an associated URL initiates a

   communications session that (when successful) ultimately

   brings that unique file to [the user computer].(31)

   The Web browser begins by connecting to the Domain Name Server. The Domain Name System is a specialized server which receives the requested URL from the user and then returns the corresponding Internet Protocol ("IP") address to the user's browser.(32) The Web browser then establishes a connection with the remote server. The browser sends the user's IP address within the outbound request for information, thereby enabling distant information to be routed back to the user's computer.(33)

   B. Electronic Publishing versus Traditional Print Publishing

   The Internet vastly increases the ability of users to obtain information.(34) The Web far surpasses the capabilities of traditional print media, as it provides easily downloaded and manipulatable information, dynamic Web pages, and larger immediate audiences.(35) Indeed, the Internet provides virtually instantaneous transmission of information via a collection of networks that span the world.. These unique characteristics must be considered when applying copyright law to the Web.(36)

   Electronic publishing also differs from traditional print publishing because it is non-linear. That is electronic publishing allows the user to take any number of paths through a hypertext document by selecting different hypertext links.

   Information and knowledge in digital form... are not sequential.

   They are linked rather than contained. Digital information,

   the defining structure of which is the database, has a boundarylessness

   about it that invites users... to impose their own organizing

   principles in searching for information .... In addition,

   no sense of artifactual permanence exists in digital works

   which exist today on a network and may be revised or gone entirely

   tomorrow .... The digitalization of information serves as

   a leveler, encouraging the mixing and matching of what were

   previously discrete formats.(37)

   Stated differently, electronic publishing embodies a quality absent from most print publishing: with Web pages, no static path must be taken.(38)

   Another dynamic quality of digital information is the flexibility and ease of editing, updating, and changing material.(39) The HTTP server acts as a traditional database, allowing those with proper permission to access, edit, or move the Web files as often as desired while incurring virtually none of the cost that there would be, for example, in republishing a book.(40) Similarly, the economies of electronic publishing are easily contrasted with that of print publishing. The costs of electronic publishing are limited to the labor of creating and maintaining a Web page.(41) These costs are minimal in comparison to traditional print publishing.(42) Finally, the substantial cost of disseminating a book dwarfs the negligible cost of publishing a Web page, which, moreover, is instantly available to the world's digital community.

   Despite the apparent advantages of Web publishing, there will be no incentive to disseminate high-quality, original works if authors are not assured of their copyrights. Authors must be provided full protection of their copyrighted expression when it is published on the Web. Admittedly, considering the significant differences between Web publishing and traditional print publishing, the challenges in applying current copyright law to Web technology are manifest. Nonetheless, the vitality of the new information infrastructure rests upon doing just that.

3. COPYRIGHTS ON THE WEB

   A. In General

   The basis of Federal Copyright Law is rooted in the United States Constitution which provides that "Congress shall have 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."(43) Aptly, it has been noted that "[i]n essence, copyright is the right of an author to control the reproduction of his intellectual creation."(44)

   Accordingly, the United States Supreme Court has recognized that copyright protection draws upon economic incentives to ensure the continuing innovation and promulgation of creative works:

   The economic philosophy behind the clause empowering Congress

   to grant patents and copyrights is the conviction that encouragement

   of individual effort by personal gain is the best

   way to advance public welfare through the talents of authors and

   inventors in the "Science and useful Arts." Sacrificial days devoted

   to such creative activities deserve rewards commensurate

   with the...