The Problem and the Solution: Using the Internet to Resolve Internet Copyright Disputes

• Citation: Vol. 24 No. 3
• Publication year: 2010

Georgia State University Law Review

Volume 24 j 5

Issue 3 Spring 2008

3-21-2012

The Problem and the Solution: Using the Internet to Resolve Internet Copyright Disputes

Ted Solley

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Recommended Citation

Solley, Ted (2007) "The Problem and the Solution: Using the Internet to Resolve Internet Copyright Disputes," Georgia State

University Law Review: Vol. 24: Iss. 3, Article 5.

Available at: http://digitalarchive.gsu.edu/gsulr/vol24/iss3/5

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THE PROBLEM AND THE SOLUTION: USING THE INTERNET TO RESOLVE INTERNET COPYRIGHT

DISPUTES

Introduction

The Internet poses a fundamental challenge to copyright protection worldwide because "[t]he foreign market is no longer a serial extension of the domestic market; they are one and the same."¹ Intellectual property industries blame worldwide piracy, particularly Internet-related piracy, for billions of dollars in annual losses: the Motion Picture Association of America estimates 2005 losses of $2.3 billion from Internet piracy alone.² "In China, 90% of available music and movies are pirated copies."³

Because the Internet renders works of authorship "pervasively and simultaneously accessible throughout the world,"⁴ international copyright law and Internet copyright law are inextricably linked.⁵ The Internet's explosive growth demonstrates that current legal regimes are ill equipped to handle the corresponding explosion of copyright infringement.⁶

1. Graeme B. Dinwoodie, A New Copyright Order: Why National Courts Should Create Global Norms, 149 U. Pa. L. REV. 469, 479 (2000).

2. MPAA, Internet Piracy, http://www.mpaa.org/piracy_intemet.asp (last visited Mar. 24, 2008); see also RIAA, Piracy: Online and On the Street, http://www.riaa.com/physicalpiracy.php (estimating annual economic losses of $12.5 billion due to global music piracy) (last visited Mar. 24, 2008); Second Annual BSA and IDC Global Software Piracy Study 9 (2005), http://w3.bsa.org/globalstudy/upload/2005-Global-Study-English.pdf (estimating over $32 billion of illegal software installation in 2004).

3. Susan Butler, Crackdown in China: U.S. Eyes Baidu Copyright Suits, billboard, Oct. 1, 2005, at 6, available at http://www.allbusiness.com/retail-trade/miscellaneous-retail-retail-stores-not/4555325-1 .html (describing a Chinese crackdown to protect music industry copyrights).

4. Jane C. Ginsburg, Global Use/Territorial Rights: Private International Law Questions of the Global Information Infrastructure, 42 J. copyright soc'y U.S.A. 318, 319 (1995).

5. Silvia Plenter, Choice of Law Rules for Copyright Infringements in the Global Information Infrastructure: A Never-ending Story?, 23(7) eur. intell. prop. REV. 313, 313 (2001) (noting that "because of the trans-national character of the [Internet], an increasing number of international copyright questions also arise.").

6. Andreas P. Reindl, Choosing Law in Cyberspace: Copyright Conflicts on Global Networks, 19 mich. J. Int'L L. 799, 800 (1998) ("[G]lobal, simultaneous exploitation of works of art and literature on digital networks conflicts sharply with the current system of international copyright protection . . . ."); see also Ginsburg, supra note 4, at 319 (arguing that the Internet undermines basic premises of international copyright law); Michael J. O'Sullivan, Note, International Copyright: Protection for

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Nearly every nation is committed to international treaties and organizations that purport to govern copyright protection.⁷ However, "[a]s a result of its backward-looking character, public international lawmaking adopts a codifying rather than dynamic character."⁸ Thus, there is increasing need for a dynamic dispute resolution system that is available internationally to enable copyright holders to protect their interests from being infringed on the Internet, whether domestically or internationally.⁹ To succeed, such a forum must be economical, efficient, internationally available, and consistent, in order to further the original principles of copyright protection (rewarding creators and benefiting the public) and to support economic and social development.¹⁰

Part I of this Note briefly reviews the historical development of copyright law, focusing on its territorial nature and the resulting obstacles to harmonizing international law.¹¹ Part II then discusses how American courts struggle with the structural challenges created by the Internet, and the resulting unsettled law and legal uncertainty.¹² Part III evaluates current choice of law theories.¹³ In the absence of an existing solution, Part IV proposes the creation of a new online forum specifically for resolution of Internet copyright disputes.¹⁴

Copyright Holders in the Internet Age, 13 N.Y. Int'L L. Rev. 1, 8-9 (2000) ("Because the Internet allows access to copyrighted works with a single keystroke, immediate advancements are necessary in the realm of copyright law.").

7. See, e.g., Berne Convention for the Protection of Literary and Artistic Property (Berne Convention), Sept. 9, 1886, 828 U.N.T.S. 221 (as amended); Convention Establishing the World Intellectual Property Organization (WIPO), July 14, 1967, 21 U.S.T. 1770, 828 U.N.T.S. 3; Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marakesh Agreement Establishing the World Trade Organization, 33 I.L.M. 1197 (1994) [hereinafter TRIPs]; Ginsburg, supra note 4, at 319 (defining national treatment principle of international law as "non discrimination between domestic and foreign works from member countries.").

8. Dinwoodie, supra note 1, at 472.

9. See id. at 483 ("The rapidity of current technological change, promoted in particular by widespread popular use of the [I]ntemet, requires a copyright lawmaking process receptive to constant adaptation.").

10. See discussion infra Part IV.

11. See infra Part I.

12. See infra PartU.

13. See infra Part III.

14. See infra Part IV.

2008] THE PROBLEM AND THE SOLUTION 815

I. "Copyright is Territorially-based ... Cyberspace is Not"¹⁵

"It is well established that copyright laws generally do not have extraterritorial application."¹⁶ In the Internet context, this principle raises several difficult issues. When works are uploaded, downloaded, or transmitted simultaneously via computers in multiple countries (which may have little or no significant relation to the actual creation or publication of the works themselves), it is difficult

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to determine a work's country of origin. Determining a work's country of origin affects the choice of applicable law, which in turn determines whether the work is entitled to copyright protection, who has ownership rights, and the substantive content of those rights.¹⁹ However, because cyberspace is not its own jurisdiction, legal authority to settle copyright disputes must be derived from individual

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nations.

A. Copyright Law Developed Nationally

Although international agreements have been in place since 1886,²¹ copyright protection developed primarily as national law.²² In the United States, copyright protection is available pursuant to the Constitution granting Congress 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

15. Jane C. Ginsburg, The Cyberian Captivity of Copyright: Territoriality and Authors' Rights in a Networked World, 20 Santa Clara computer & High tech. L.J. 185, 185 (2003).

16. Update Art, Inc. v. Modiin Publ'g, Ltd., 843 F.2d 67, 73 (2d Cir. 1988).

17. See infra Part I.

18. Ginsburg, supra note 15, at 187.

19. Id. at 187-88.

20. Id. at 187.

21. Beme Convention for the Protection of Literary and Artistic Property (Berne Convention), Sept. 9,1886, 828 U.N.T.S. 221 (as amended).

22. See infra Part LA.

816 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 24:813

Discoveries."²³ Since 1790, Congress has passed a series of Acts consistently expanding copyright protection.²⁴

Until the late 19th Century, the United States granted copyright protection only to works created and published within the U.S. Even under the 1891 Act, it was difficult for foreign authors to satisfy the statutory requirements necessary for protection²⁶ Problems for foreign rights holders in American courts persist today. Other nations' copyright laws developed along similar paths, focusing on

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national interests rather than international standards.

Under the Berne Convention, member nations commit to minimum standards of copyright protection and to the national treatment principle—"if the law of the country of infringement applies to the scope of substantive copyright protection, that law will be applied uniformly to foreign and domestic authors" —but the Convention does not itself create an international copyright law.³⁰ Rather, "the principle of territoriality upon which the Berne Convention is

23. U.S. const, art. I, § 8, cl. 8.

24. See, e.g., Copyright Act of May 31, 1790, 1 Stat. 124 (1790); Act of Apr. 29, 1802, 2 Stat. 171 (1802) (adding protection for prints); Act of Feb. 3, 1831, ch. 16, 4 Stat. 436 (1831) (adding protection for musical compositions); Copyright Act of 1865, 13 Stat. 540 (1865) (adding protection for photographs); Copyright Act of 1909, 35 Stat. 1075 (1909) (granting protection upon publication rather than at time of filing, extending renewal term); Copyright Act of 1976, 17 U.S.C. §§ 101-1332 (2000); see also Eldred v. Ashcroft, 537 U.S. 186, 194-96 (2003) (discussing history of copyright term extensions).

25. Barbara A. Ringer, The Role of the United Slates in International...