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76. See generally 17 U.S.C. §§ 107 - 120 (1988 & Supp. V 1993). See, e.g., 17 U.S.C. § 118 (1988 & Supp. V 1993) (compulsory license is available for the use of certain published works in connection with noncommercial broadcasting).
77. 17 U.S.C. § 101 (1988) (definition of "publication").
78. See HOUSE REPORT at 138, reprinted in 1976 U.S.C.C.A.N. 5754. See also discussion of transmissions and the "distribution" of copies infra pp. 67-69, 217-20.
79. See, e.g., Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir.), supplemented, reh'g denied, 818 F.2d 252, cert. denied, 484 U.S. 890 (1987) (copyrighted letters did not lose unpublished status by placement in library); WPOW, Inc. v. MRLJ Enterprises, 584 F. Supp. 132 (D.D.C. 1984) (filing of work with federal agency did not constitute publication).
80. See 1 M. NIMMER & D. NIMMER, NIMMER ON COPYRIGHT § 4.04 (1994) (hereinafter NIMMER ON COPYRIGHT). In a couple of aspects, the concept of publication was broadened to include the authorization of offers to distribute copies in a commercial setting and the distribution to certain middlemen, such as retailers, motion picture exhibitors and television stations. See Paramount Pictures Corp. v. Rubinowitz, 217 U.S.P.Q. 48, 50 (E.D.N.Y. 1981) (discussing evolution of definition of publication); National Broadcasting Co., Inc. v. Sonneborn, 630 F. Supp. 524, 532-33 (D. Conn. 1985).
81. See 1 NIMMER ON COPYRIGHT § 4.13[B]; Kunycia v. Melville Realty Co. Inc., 755 F. Supp. 566, 574 (S.D.N.Y. 1990).
82. See White v. Kimmell, 193 F.2d 744, 746-47 (9th Cir. 1952). Before the notice requirement was eliminated, the Copyright Act generally provided for the invalidation of the copyright in a work if copies of the work were distributed to the public, under the authority of the copyright owner, without a copyright notice. In virtually all instances where limited publication was applied, the distribution was noncommercial in nature.
83. See Academy of Motion Picture Arts and Sciences v. Creative House Promotions, Inc., 944 F.2d 1446, 1451-54 (9th Cir. 1991) (distribution of personalized Oscar statuettes to select group of distinguished artists constituted limited publication); Lish v. Harper's Magazine Found., 807 F. Supp. 1090, 1102 (S.D.N.Y. 1992) (letter distributed to members of class remained unpublished).
84. See 37 C.F.R. § 202.1(a) (1994); see also, e.g., Takeall v. PepsiCo Inc., 29 U.S.P.Q.2d 1913, 1918 (4th Cir. 1993) (unpublished) (holding phrase "You Got the Right One, Uh-Huh" is not copyrightable and, thus, was not infringed by commercial using phrase "You Got the Right One Baby, Uh-Huh"). While short phrases may not be copyrightable standing alone, they may be protected as part of a larger, copyrighted work. See, e.g., Dawn Assocs . v. Links, 203 U.S.P.Q. 831, 835 (N.D. Ill. 1978) (holding phrase "When there is no room in hell . . . the dead will walk the earth" to be an integral part of a copyrighted advertisement, and defendant's unauthorized use of it demonstrated likelihood of success on the merits of infringement suit); Grand Upright Music Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182, 183-85 (S.D.N.Y. 1991) (finding lyric "alone again" to be protected as part of a copyrighted work and infringed by defendant rap artist's "sampling"). Short phrases may also be eligible for trademark protection if used to identify goods or services.
85. In Mazer v. Stein, the Supreme Court held that works of art which are incorporated into the design of useful articles, but which can stand by themselves as art works separate from the useful articles, are copyrightable. See 347 U.S. 201, 214-17 (1954). See also 17 U.S.C. § 101 (defining "useful article" as "an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information); 17 U.S.C. § 101 (in the definition of "pictorial, graphic, and sculptural works" noting that "the design of a useful article . . . shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article"). The House Report indicates that the required separability may be physical or conceptual. See HOUSE REPORT at 55, reprinted in 1976 U.S.C.C.A.N. 5668; see also Kieselstein-Cord v. Accessories By Pearl, Inc., 632 F.2d 989, 993 (2d Cir. 1980).
86. 17 U.S.C. § 102(b) (1988); see Feist, supra note 36, at 359 ("facts contained in existing works may be freely copied"); Harper & Row, supra note 34, at 547 ("no author may copyright facts or ideas").
87. The ideas are not protected; the expression is. Baker v. Seldon, 101 U.S. 99, 103 (1879); Beal v. Paramount Pictures Corp., 20 F.3d 454, 458-59 (11th Cir.), cert. denied, 115 S. Ct. 675 (1994); see also Harper & Row, supra note 34, at 547-48 ("copyright is limited to those aspects of the work -- termed 'expression' -- that display the stamp of the author's originality"). The line between idea and expression is not easy to draw. The distinction is not that one is fixed and the other is not -- they are both fixed in the copyrighted work of authorship. At some point, the idea becomes detailed enough to constitute expression. Judge Learned Hand explained:
Upon any work . . . a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the [work] is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the [author] could prevent the use of his "ideas," to which, apart from their expression, his property is never extended.
Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930).
88. Harper & Row, supra note 34, at 548.
89. Feist, supra note 36, at 349-50 (citing Harper & Row, supra note 34, at 556-57).
90. Feist, supra note 36, at 349-50.
91. 17 U.S.C. § 105 (1988). There are limited exceptions to this noncopyrightability provision. For instance, the Secretary of Commerce is authorized to secure copyright on behalf of the United States "in all or any part of any standard reference data which he prepares or makes available" under the Standard Reference Data Program. See 15 U.S.C. § 290(e) (1988). Works of the U.S. Postal Service, such as designs on postage stamps, are also copyrightable by the Postal Service. See HOUSE REPORT at 60, reprinted in 1976 U.S.C.C.A.N. 5674 ("the Postal Service could . . . use the copyright law to prevent the reproduction of postage stamp designs for private or commercial non-postal services"). Copyright interests transferred to the U.S. Government by assignment, bequest or otherwise may be held and enforced by it. See 17 U.S.C. § 105 (1988).
92. A work of the U.S. Government is a work "prepared by an officer or employee of the United States Government as part of that person's official duties." 17 U.S.C. § 101 (definition of "work of the United States Government"). Although the wording of this definition is not identical to that of a "work made for hire," the concepts "are intended to be construed in the same way." HOUSE REPORT at 58, reprinted in 1976 U.S.C.C.A.N. 5672. See discussion of works made for hire infra notes 134-36 and accompanying text.
93. See HOUSE REPORT at 59, reprinted in 1976 U.S.C.C.A.N. 5672.
94. 17 U.S.C. § 102(a) (1988 & Supp. V 1993).
95. 17 U.S.C. § 101 (1988) (definition of "literary works").
96. Following the recommendation of CONTU, Congress amended the Copyright Act in 1980 to recognize that computer programs are protected works. See Act of December 12, 1980, Pub. L. 96-517, 1980 U.S.C.C.A.N. (94 Stat.) 3015, 3028. "Computer programs" are defined as a "set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result." See 17 U.S.C. § 101 (1988 & Supp. V 1993).
97. See HOUSE REPORT at 54, reprinted in 1976 U.S.C.C.A.N. 5667.
98. Congress did not define the term "musical work" in the statute based on the assumption that the term had a "fairly settled" meaning. See HOUSE REPORT at 53, reprinted in 1976 U.S.C.C.A.N. 5666-67.
99. A phonorecord generally embodies two works -- a musical work (or, in the case of spoken word recordings, a literary work) and a sound recording. Musical works available through services on the NII may also be the subject of Musical Instrument Digital Interface ("MIDI") recordings. A MIDI is a data stream between a musical unit in a computer and a music-producing instrument. The data stream instructs the instrument, such as a synthesizer, on what notes to play.
100. See H. ABRAMS, THE LAW OF COPYRIGHT § 204[C][3][b][iv] (1993). The term "dramatic works" is not defined in the Act. See HOUSE REPORT at 53, reprinted in 1976 U.S.C.C.A.N. 5666-67.
101. Congress also declined to define the terms "pantomimes" and "choreographic works," again relying on "fairly settled meanings." See HOUSE REPORT at 53, reprinted in 1976 U.S.C.C.A.N. 5666-67.
102. 17 U.S.C. § 101 (1988) (definition of "pictorial, graphic, and sculptural works").
103. Mazer v. Stein, 347 U.S. 201, 214-17 (1954); see supra note 85.
104. 17 U.S.C. § 101 (1988) (definition of "audiovisual works").
105. 17 U.S.C. § 101 (1988) (definition of "motion pictures").
106. See HOUSE REPORT at 56, reprinted in 1976 U.S.C.C.A.N. 5669.
107. See 17 U.S.C. § 101 (1988) (definition of "sound recordings").
108. The sounds accompanying an audiovisual work are specifically excluded from the definition of sound recordings. See id.
109. 17 U.S.C. § 101 (Supp. V 1993) (definition of "architectural work"). The category of architectural works was added in 1990 by the Architectural Works Copyright Protection Act, Public Law 101-650, 1990 U.S.C.C.A.N. (104 Stat.) 5089, 5133.
110. Id.
111. 17 U.S.C. § 101 (1988) (definition of "compilation"). A "collective work," which is one kind of "compilation," is "a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole." 17 U.S.C. § 101 (1988) (definition of "collective work").
112. 17 U.S.C. § 101 (1988) (definition of "derivative work").
113. See id.
114. See 17 U.S.C. § 103(a) (1988).
115. 17 U.S.C. § 103(b) (1988).
116. Id.
117. See Feist, supra note 36, at 350-51 (alphabetical "arrangement" of comprehensive list of telephone subscribers not sufficiently "original" and therefore noncopyrightable); see also supra pp. 32-34 (discussion of the noncopyrightability of facts).
118. See Feist, supra note 36, at 354 ("to accord copyright protection on this basis alone distorts basic copyright principles in that it creates a monopoly in public domain materials without the necessary justification of protecting and encouraging the creation of 'writings' by 'authors'").
119. The embodiment of two or more different types of works in one medium is not a new concept. For instance, a book may contain both a literary work and pictorial works. A compact disc may contain a musical work and a sound recording.
120. A true "multimedia" work would be one in which several material objects, such as a book, a videocassette and an audiocassette, are bundled into one product.
121. See discussion of compilations supra pp. 40-41.
122. While expressly protected under the Copyright Act, the category of "compilations" is not a particularly useful subject matter category. Works in any of the eight enumerated categories of protectible subject matter outlined above may take the form of a compilation, and a protectible compilation must fit into one or more of the subject matter categories. "A compilation or derivative work is copyrightable if it represents an 'original work of authorship' and falls within one or more of the categories listed in section 102." HOUSE REPORT at 57, reprinted in 1976 U.S.C.C.A.N. 5670 (emphasis added).
123. The list "sets out the general area of copyrightable subject matter, but with sufficient flexibility to free the courts from rigid or outmoded concepts of the scope of particular categories." HOUSE REPORT at 53, reprinted in 1976 U.S.C.C.A.N. 5666.
124. HOUSE REPORT at 53, reprinted in 1976 U.S.C.C.A.N. 5666. Indeed, Congress amended the Copyright Act in 1990 to add "architectural works" as a category of protectible works. See supra note 109.
125. It should be noted that the Copyright Office classifies works into four broad categories for purposes of registration: nondramatic literary works, works of performing arts, works of visual arts, and sound recordings. See 37 C.F.R. § 202.3(b)(i)-(iv) (1994). The Copyright Office notes that in cases "where a work contains elements of authorship in which copyright is claimed which fall into two or more classes, the application should be submitted in the class most appropriate to the type of authorship that predominates in the work as a whole." See 37 C.F.R. § 202.3(b)(2) (1994). However, the Copyright Act makes clear that the Copyright Office classification of works for purposes of registration "has no significance with respect to the subject matter of copyright or the exclusive rights provided." See 17 U.S.C. § 408(c)(1) (1988); see also HOUSE REPORT at 153, reprinted in 1976 U.S.C.C.A.N. 5769 ("[i]t is important that the statutory provisions setting forth the subject matter of copyright be kept entirely separate from any classification of copyrightable works for practical administrative purposes").
126. See 17 U.S.C. § 106(4),(5) (1988 & Supp. V 1993). The public performance right is limited to literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works. The public display right is limited to literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work. Id.
127. See, e.g., 17 U.S.C. § 108(h) (1988) (limitation not applicable to musical works, pictorial, graphic or sculptural works, or motion pictures or other audiovisual works other than audiovisual works dealing with news); 17 U.S.C. § 109(b) (Supp. V 1993) (certain limitations not applicable to sound recordings and musical works embodied in sound recordings or to computer programs); 17 U.S.C. § 110(4) (1988) (limitation applicable only to nondramatic literary or musical works); 17 U.S.C § 110(8) (1988) (limitation applicable only to nondramatic literary works); 17 U.S.C. § 110(9) (1988) (limitation applicable only to dramatic literary works); 17 U.S.C. § 112(a) (1988) (limitation not applicable to motion pictures or other audiovisual works); 17 U.S.C. § 113 (1988 & Supp. V 1993) (limitation applicable only to pictorial, graphic, or sculptural works); 17 U.S.C. § 114 (1988) (limitation applicable only to sound recordings); 17 U.S.C. § 115 (1988) (limitation applicable only to nondramatic musical works); and 17 U.S.C. § 120 (Supp. V 1993) (limitation applicable only to architectural works).
128. See 17 U.S.C. § 101 (1988) (definition of "literary works") (emphasis added).
129. The definition of "sound recordings" explicitly excludes from the category of sound recordings musical, spoken or other sounds "accompanying a motion picture or other audiovisual work . . . ." See 17 U.S.C. § 101 (1988) (definition of "sound recordings"). The definition of "audiovisual works" also expressly includes any "accompanying sounds." See 17 U.S.C. § 101 (1988) (definition of "audiovisual works").
130. Audiovisual works are "works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment . . . ." 17 U.S.C. § 101 (1988) (definition of "audiovisual works").
131. Categories are "overlapping in the sense that a work falling within one class may encompass works coming within some or all of the other categories." HOUSE REPORT at 53, reprinted in 1976 U.S.C.C.A.N. 5666.
132. 17 U.S.C. § 201(a) (1988).
133. Id. A "joint work" is "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole." 17 U.S.C. § 101 (1988) (definition of "joint work").
134. See 17 U.S.C. § 201(b) (1988). This legal conclusion may only be altered by the parties in a written instrument signed by them expressly agreeing otherwise. Id.
135. The Copyright Act does not define "employee." In 1989, the Supreme Court held that an employment relationship determination for copyright purposes should be made by reference to the "general common law of agency." See Community for Creative Non-Violence v. Reid, 490 U.S. 730, 740-41 (1989). The central question in an agency law inquiry is whether the hiring party has the "right to control the manner and means by which the product is accomplished." Id. at 751. The factors to be considered include the skill required, the source of the instrumentalities and tools used in creating the work, where the work was created, the duration of the relationship between the parties, whether the hiring party has the right to assign additional projects to the hired party, the method of payment, the extent of the hired party's discretion over when and how long to work, the hired party's role in hiring and paying assistants, whether the hiring party is in business and whether the work is part of the regular business of the hiring party, the provision of employee benefits, and the tax treatment of the hired party. Id. at 751-52. The Court did not specify any factors that should be weighed more heavily than others, but made clear that an "employee" under the Copyright Act is not limited to a formal, salaried employee.
136. To qualify as a work made for hire under the second prong, the work must be specially ordered or commissioned for use as (1) a contribution to a collective work, (2) part of an audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test or (9) an atlas. 17 U.S.C. § 101 (1988) (definition of "work made for hire").
137. See 17 U.S.C. § 202 (1988).
138. Id.
139. See 17 U.S.C. § 201(d)(1) (1988) ("ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession").
140. 17 U.S.C. § 204(a) (1988). An exclusive license is considered a transfer of copyright and, therefore, must be in writing. Although an exclusive license may be limited in time, place or scope, it nevertheless extends the benefits of copyright ownership with respect to the rights granted to the licensee for the duration of the license. The rights of a copyright owner may also be licensed on a nonexclusive basis to one or more licensees. The Copyright Act does not require nonexclusive licenses to be in writing.
141. 17 U.S.C. § 101 (1988) (definition of "transfer of copyright ownership"). With the exception of transfers by operation of law, all transfers of copyright ownership must be in writing. 17 U.S.C. § 204(a) (1988) ("transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent").
142. See 17 U.S.C. § 204(a) (1988).
143. See discussion of the exclusive rights of a copyright owner infra pp. 63- 72.
144. See 17 U.S.C. § 201(d)(2) (1988); 17 U.S.C. § 101 (1988) (definition of "copyright owner").
145. See 17 U.S.C. § 203(a) (1988); see also 17 U.S.C. § 304(c) (1988 & Supp. V 1993).
146. 17 U.S.C. § 203(a)(5) (1988) ("[t]ermination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant").
147. See 17 U.S.C. § 203(a) (1988).
148. See 17 U.S.C. § 501(b) (1988) ("legal or beneficial owner of an exclusive right under a copyright is entitled . . . to institute an action for any infringement of that particular right committed while he or she is the owner of it"). In certain circumstances, television broadcast stations and others are treated as legal or beneficial owners and may bring actions for infringement by cable systems and satellite carriers. See 17 U.S.C. § 501(c), (d), (e) (1988).
149. However, like exclusive licenses, nonexclusive licenses may be terminated 35 years after the effective date of the license. See 17 U.S.C. §§ 203(a) (1988), 304(c) (1988 & Supp. V 1993).
150. For example, a user could decide to participate in a licensing program covering all copies made, for a nominal fee per copy, rather than to indulge in the record-keeping necessary to determine which copies are subject to a licensing fee and which are fair use. Copyright owners may not be allowed, however, to seek to increase the term of protection without implicating the doctrine of copyright misuse. Cf. Saturday Evening Post Co. v. Rumbleseat Press, Inc., 816 F.2d 1191, 1200 (7th Cir. 1987) (claims of misuse must be judged by antitrust standards); Lasercomb America, Inc. v. Reynolds, 911 F.2d 970, 979 (4th Cir. 1990) (contract purporting to license copyright for 99 years rendered copyright owner guilty of copyright misuse). The doctrine of copyright misuse might be implicated in other situations where the scope of protection is significantly expanded.
151. HOUSE REPORT at 79, reprinted in 1976 U.S.C.C.A.N. 5693.
152. See, e.g., Harper Bros. v. Klaw, 232 F. 609 (S.D.N.Y. 1916) (license to dramatize "Ben Hur" in a play did not include right to produce a movie, but licensor enjoined from producing movie because licensee's right to produce a play would be harmed by licensor's production of a movie); L.C. Page & Co. v. Fox Film Corp., 83 F.2d 196 (2d Cir. 1936) (grant of exclusive "moving picture" rights embraced technical improvements in movies that might be developed during the term of the license; thus, license held to cover "talkies"); Bartsch v. Metro-Goldwyn-Mayer, Inc., 391 F.2d 150 (2d Cir.), cert. denied, 393 U.S. 826 (1968) (1930 license of film rights in a play, when television was a known technology but its full impact not yet realized, included television rights; as experienced businessman, licensor had reason to know of new technology's potential and had burden of negotiating exception).
153. See, e.g., 17 U.S.C. § 111 (1988 & Supp. V 1993). The cable compulsory license was enacted to reduce the need for negotiations among thousands of program copyright owners and hundreds of cable systems for the right to retransmit the copyrighted programs that are included in the broadcast signals retransmitted by cable systems.
154. See discussion of on-line transactions infra pp. 53-59.
155. See discussion infra pp. 191-92, 235-36.
156. Library subscription costs for print journals have for many years been two or more times those for individual subscriptions. This additional cost has been assumed by some to permit use of the material by the library's patrons. Licenses would serve to convert this assumption to explicit terms that could be negotiated, avoiding misunderstandings and litigation.
157. See generally Information Infrastructure Task Force, Committee on Applications and Technology, Putting the Information Infrastructure to Work, 25- 40 (May 1994).
158. See discussion infra pp. 192-94; see generally Uniform Commercial Code, Art. 4A (1990); K. Epper, Money Creators: Point of Sale Pioneer Setting Sail on the Internet, The American Banker 14 (Feb. 10, 1995).
159. B. WRIGHT, THE LAW OF ELECTRONIC COMMERCE 235 (1991 & Supp. 1994) (hereinafter WRIGHT).
160. See J. CALAMARI & J. PERILLO, THE LAW OF CONTRACTS 25 (3d ed. 1987) (hereinafter CALAMARI & PERILLO).
161. In Corinthian Pharmaceutical v. Lederle Laboratories, the court found that the "automated, ministerial act" of a seller issuing an electronic order tracking number to a purchaser's on-line purchase order did not constitute assent or acceptance by the seller. See 724 F. Supp. 605, 610 (S.D. Ind. 1989); see also WRIGHT, supra note 159, at 236 (1991); Electronic Messaging Task Force, The Commercial Use of Electronic Data Interchange -- A Report and Model Trading Partner Agreement, A.B.A. Sec. Bus. Law, reprinted from 45 BUS. LAW 1647 (1990) (hereinafter A.B.A. Report or A.B.A. Model Agreement).
162. See Step-Saver Data Systems, Inc. v. Wyse Technology, 939 F.2d 91 (3d Cir. 1991).
163. See id. at 96 n.7.
164. See Standard Oil Co. v. Perkins, 347 F.2d 379, 385 n.5 (9th Cir. 1965).
165. Compare D. Johnson & K. Marks, Mapping Electronic Data Communications onto Existing Legal Metaphors: Should We Let Our Conscience (and Our Contracts) be Our Guide?, 38 VILL. L. REV. 487, 488-89 (1993) with Note, Offers Users Can't Refuse: Shrink-Wrap License Agreements as Enforceable Adhesion Contracts, 10 CARDOZO L. REV. 2105, 2120 (1989).
166. See RESTATEMENT (SECOND) OF CONTRACTS § 211 (1981).
167. Compare Step-Saver, supra note 162, at 99 with Arizona Retail Systems v. Software Link, 831 F. Supp. 759 (D. Ariz. 1993).
168. See Step-Saver, supra note 162, at 99; see also J. Peys, Comment, Commercial Law -- The Enforceability of Computer "Box-Top" License Agreements Under the U.C.C., 7 WHITTIER L. REV. 881, 885-92 (1985).
169. See ILL. REV. STAT. ch. 29, para. 801-08 (1986); LA. REV. STAT. §§ 51:1961-66 (1987). The Louisiana statute was declared partially invalid in a controversial decision in Vault Corp. v. Quaid Software, Ltd. because the court found that it impinged on "rights" under the U.S. copyright laws, and was therefore preempted. See 847 F.2d 255, 270 (5th Cir. 1988).
170. See RESTATEMENT (SECOND) OF CONTRACTS § 131 (1981). Signed writings are also required for exclusive licenses and assignments under the Copyright Act. See 17 U.S.C. § 204 (1988).
171. See WRIGHT, supra note 159, at 274 (1991).
172. See U.C.C. § 1-102(2)(b) (1990).
173. U.C.C. § 2-204 (1990).
174. Id. at § 2-206 (1990).
175. See U.C.C. § 2-207 (1990).
176. The U.C.C. contains a Statute of Frauds which raises the same questions as common law concerning whether a purely electronic contract can meet the writing and signature requirements. However, the U.C.C. Statute of Frauds includes exceptions to the requirements -- for specially manufactured goods not suitable for sale to others which the seller has begun to manufacture, and for goods that have been received and accepted. See U.C.C. § 2-201(2), (3) (1990).
177. See U.C.C. § 1-205(1), (2) (1990).
178. See U.C.C. §§ 2-105(2), 716(3) (1990). See D. Frisch, Symposium: The Revision of the Uniform Commercial Code, 35 WM. & MARY L. REV. 1691, 1729 (1994).
179. See U.C.C. § 1-102 (1990). But see CALAMARI & PERILLO, supra note 160, at 16; Step Saver, supra note 162, at 94; Advent Systems Ltd. v. Unisys Corp., 925 F.2d 670 (3d Cir. 1991).
180. See supra notes 160-71 and accompanying text.
181. See R. Nimmer, Symposium: The Revision of Article 2 of the Uniform Commercial Code, 35 WM. & MARY L. REV. 1337, 1341-50 (1994).
182. See 17 U.S.C. § 301 (1988).
183. See 17 U.S.C. § 302(a) (1988). The terms of protection for works created before January 1, 1978 (the effective date of the 1976 revisions to the Copyright Act) are set forth in Sections 303 and 304 of the Act. See 17 U.S.C. §§ 303, 304 (1988 & Supp. V 1993). Bills introduced in the 104th Congress would extend by 20 years the term of protection for all works. See S. 483, 104th Cong., 1st Sess. (1995); H.R. 989, 104th Cong., 1st Sess. (1995). A directive adopted by the Council of Ministers of the European Union requires all EU member states to provide a term of protection for copyrighted works of life of the author plus 70 years. Although a number of member states have yet to enact legislation extending terms, the obligations of the directive were to go into effect on July 1, 1995. See Council Directive 7831/93 of 13 July 1993 on Harmonizing the Term of Protection of Copyright and Certain Related Rights.
184. 17 U.S.C. § 302(b) (1988).
185. 17 U.S.C. § 302(c) (1988). The term for anonymous or pseudonymous works differs if the identity of one or more of the authors is revealed before the end of the term of protection. See id.
186. The public domain is the legal status of works whose term of copyright protection has ended or which are not protected for other reasons, such as the noncopyrightability of the subject matter.
187. See Act of October 31, 1988, Pub. L. 100-568, 1988 U.S.C.C.A.N. (102 Stat.) 2853, 2857. Copyright notice is still required on copies and phonorecords of works publicly distributed prior to March 1, 1989, the effective date of the Act.
188. 17 U.S.C. § 401(a) (1988) (emphasis added). The copyright owner of a sound recording may also place a notice of copyright on publicly distributed phonorecords of the sound recording. 17 U.S.C. § 402(b) (1988).
189. See 17 U.S.C. §§ 401(b), 402(b) (1988).
190. See 17 U.S.C. § 407 (1988).
191. See 17 U.S.C. § 407(c) (1988); see also 37 C.F.R. § 202.19(e) (1994).
192. See 17 U.S.C. § 407(d) (1988).
193. 17 U.S.C. § 408(a) (Supp. V 1993).
194. 17 U.S.C. § 411(a) (Supp. V 1993). Registration is required before a suit for infringement may be brought for works of U.S. origin and for foreign works from countries which are not members of the Berne Convention.
195. See 17 U.S.C. § 408 (a), (b) (1988 & Supp. V 1993). Only one copy of the work is required for certain types of works, including unpublished works.
196. 17 U.S.C. § 408(b) (1988).
197. 17 U.S.C. § 410(c) (1988); Bibbero Systems, Inc. v. Colwell Systems, Inc., 893 F.2d 1104, 1106 (9th Cir. 1990). The weight to be accorded a certificate when registration has been made more than five years from the date of first publication is within the discretion of the court. 17 U.S.C. § 410(c) (1988).
198. See 17 U.S.C. § 412 (1988 & Supp. V 1993).
199. The Berne Convention prohibits member states from conditioning copyright protection for works of Berne nationals on the compliance with formalities. See Article 5 of the Berne Convention infra note 439.
200. 17 U.S.C. § 106 (1988 & Supp. V 1993). Section 106(A) grants additional rights for certain works of visual art in single copies or limited editions. The development of the NII does not raise unique issues with respect to those rights. See 17 U.S.C. § 106(A) (Supp. V 1993).
201. See 17 U.S.C. § 101 (1988) (definitions of "copies" and "phonorecords").
202. In 1978, the CONTU Final Report noted, "[T]he application of principles already embodied in the language of the [current] copyright law achieves the desired substantive legal protection for copyrighted works which exist in machine-readable form. The introduction of a work into a computer memory would, consistent with the [current] law, be a reproduction of the work, one of the exclusive rights of the copyright proprietor." CONTU Final Report at 40. See also MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 519 (9th Cir. 1993), cert. denied, 114 S. Ct. 671 (1994); Vault Corp. v. Quaid Software Ltd., 847 F.2d 255, 260 (5th Cir. 1988); Advanced Computer Services v. MAI Systems Corp., 845 F. Supp. 356 (E.D. Va. 1994); Triad Systems Corp. v. Southeastern Express Co., 1994 U.S. Dist. LEXIS 5390 (N.D. Cal. March 18, 1994); 2 NIMMER ON COPYRIGHT § 8.08[A] (1994).
203. That copying has occurred does not necessarily mean that infringement has occurred. When copying is (1) authorized by the copyright owner, (2) exempt from liability as a fair use, (3) otherwise exempt under the provisions of Sections 108-119 or Chapter 10 of the Copyright Act, or (4) of such a small amount as to be de minimis, then there is no infringement liability.
204. See, e.g., MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 519 (9th Cir. 1993). (While this court's determination with respect to fair use may be open to question, its holding that booting a PC involves copying the operating system seems quite unexceptional.)
205. For example, if an author transfers a file (such as a manuscript) to a publisher with an Internet account, copies will typically, at a minimum, be made (a) in the author's Internet server, (b) in the publisher's Internet server, (c) in the publisher's local area network server, and (d) in the editor's microcomputer. It has been suggested that such "copying" of files in intermediate servers is only of transitory duration and consequently not covered by the reproduction right. However, it is clear that if the "copy" exists for more than a period of transitory duration, the reproduction right is implicated. Whether such reproduction is an infringement would be a separate determination.
206. See 17 U.S.C. § 106(2) (1988). "A 'derivative work' is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a 'derivative work.'" 17 U.S.C. § 101 (1988) (definition of "derivative work").
207. 17 U.S.C. § 109(a) (1988). See discussion infra pp. 90-95.
208. See discussion of rental rights for computer programs and sound recordings infra p. 91.
209. Furthermore, with respect to international distributions, Section 602 of the Copyright Act makes unauthorized importations a violation of the distribution right. See discussion infra pp. 107-09.
210. The court elsewhere in its opinion, in a small but perhaps significant deviation from conventional usage, appears to use "implicate" to mean "infringe" rather than "involve."
211. 839 F. Supp. 1552 (M.D. Fla. 1993).
212. Id. at 1556.
213. Whether such reproduction was legally performed by the subscriber, the BBS operator, or both is not clear.
214. Owners of copyrights in computer programs and sound recordings have the right to control post-first-sale rentals of copies of their works; owners of copyrights in other works do not. See 17 U.S.C. § 109 (1988 & Supp. V 1993). This inconsistency may be important in the NII context, particularly with respect to "multimedia works" that are neither expressly nor self-evidently in any particular category of copyrighted work (and whose treatment under various exemptions and special provisions may thus be unclear). See discussion of multimedia works supra pp. 41-45.
215. See discussion of contributory infringement and vicarious liability infra pp. 109-14.
216. 857 F. Supp. 679 (N.D. Cal. 1994).
217. See 17 U.S.C. § 106(4) (1988).
218. "To 'perform' a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible." 17 U.S.C. § 101 (1988) (definition of "perform").
219. To perform or display a work "publicly" means --
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
17 U.S.C. § 101 (1988) (definition of "publicly").
220. See 17 U.S.C. § 110 (1988).
221. The current law addresses only transmissions of "performances" and "displays."
222. See, e.g., Columbia Pictures Indus. v. Redd Horne, Inc., 749 F.2d 154 (3d Cir. 1984) (video store operator liable for public performance violation where he rented tapes of motion pictures to customers and provided semi-private screening rooms where the tapes could be viewed); Columbia Pictures Indus. v. Aveco, Inc., 800 F.2d 59 (3d Cir. 1986) (same result where customers also rented rooms for viewing); On Command Video Corp. v. Columbia Pictures Indus., 777 F. Supp. 787 (N.D. Cal. 1991) (infringement found where hotel guests in rooms selected tapes to be played on remotely controlled console in hotel basement with signal then sent to rooms).
223. 17 U.S.C. § 101 (1988 & Supp. V 1993) (definition of "display").
224. See discussion of Playboy case supra pp. 68-69 and infra pp. 81, 120-21.
225. Of course, to the extent that such lists or menus are protectible under the Copyright Act, the authors of such lists would have the exclusive right to publicly display them.
226. The copyright law's legislative history, describing the introduction of the display right, distinguishes displays "on a screen or tube" from reproductions. This language, written before the advent of the personal computer, applies easily to displays with which Congress was familiar in 1976 (those rendered by broadcast television receivers), but is inapplicable to digital "browsing" where the law itself clearly -- without resort to explanatory Congressional language -- defines such acts as implicating the display and reproduction rights.
227. Although sometimes referred to as "rights" of the users of copyrighted works, "fair use" and other exemptions from infringement liability are actually limitations on the rights of the copyright owners. Thus, as a technical matter, users are not granted affirmative "rights" under the Copyright Act; rather, copyright owners' rights are limited by exempting certain uses from liability. It has been argued, however, that the Copyright Act would be unconstitutional if such limitations did not exist, as they reduce First Amendment and other concerns. Others have argued that fair use is an anachronism with no role to play in the context of the NII.
228. See 17 U.S.C. § 107 (1988 & Supp. V 1993). The judicially created doctrine, although now codified in the Copyright Act, has been described as "so flexible as virtually to defy definition." See Time Inc . v. Bernard Geis Assoc., 293 F. Supp. 130, 144 (S.D.N.Y. 1968).
229. Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164, 1177 (1994). As an affirmative defense, the burdens of persuasion and coming forward with evidence both must be carried by defendants to avoid liability (i.e., a copyright owner need not prove an accused use not fair, but, rather, the defendant must prove its fairness).
230. Id.
231. See id.
232. 17 U.S.C. § 107 (1988 & Supp. V 1993).
233. Harper & Row, supra note 34, at 561.
234. Justice Story stated that courts should "look to the nature and the objects of the selections made, the quantity and value of the material used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work." Folsom v. Marsh, 9 F. Cas. 342, 348 (C.C.D. Mass. 1841) (No. 4,901).
235 .See Sony, supra note 22, at 456 (videotaping by individuals at home of off the- air television broadcast programming for purpose of "time-shifting" -- as distinguished from "librarying" -- held fair use).
236. See Stewart v. Abend, 495 U.S. 207, 216 (1990) (theatrical and television distribution of motion picture over objection of owner of renewal copyright in underlying short story held infringing); Harper & Row, supra note 34, at 569 ("Nation" magazine's scoop of "Time" magazine's first serial rights in President Ford's memoirs held infringing, notwithstanding newsworthiness of the account of the Nixon pardon set out therein).
237. See Campbell, supra note 229, at 1177-79 (parodic lyrics of popular song not per se unfair by virtue of commercial purpose of parody; case remanded for further factual determination).
238. See 464 U.S. at 451. The subsequent Campbell decision indicates that the presumption is strongest in cases of "mere duplication" and weakest when a second commercial comer makes a transformative use and creates a derivative work. See Campbell, supra note 229, at 1177.
239. Congress has expressly declined to enact a specific exemption from copyright liability for educational uses. See HOUSE REPORT at 66-67, reprinted in 1976 U.S.C.C.A.N. 5680. Cases holding reproduction of an entire work as a fair use are few. In Haberman v. Hustler Magazine, Inc., 626 F. Supp. 201, 212 (D. Mass. 1986) a magazine’s reproduction of an artist's post cards was found to be fair use because there was no market harm.
240. The consequences of denying a fair use defense in certain legitimate educational contexts are far smaller than in the commercial context. Under the provisions of Section 504(c)(2), statutory damages (damages that may be imposed without proof of the quantum of actual harm to the copyright owner) may not be imposed against a nonprofit educational institution, its employees or agents -- when acting within the scope of their employment -- in respect of copying that they performed with reasonably based grounds for believing the copying was fair use. 17 U.S.C. § 504(c)(2) (1988).
241. Marcus v. Rowley, 695 F.2d 1171 (9th Cir. 1983).
242. Encyclopaedia Britannica Educ. Corp. v. Crooks, 558 F. Supp. 1247 (W.D.N.Y. 1983).
243. Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991).
244. See Twin Peaks Prods., Inc. v. Publications Int'l, Ltd., 996 F.2d 1366, 1376 (2d Cir. 1993).
245. See New Era Publications Int'l, ApS v. Henry Holt & Co., 873 F.2d 576 (2d Cir. 1989), cert. denied, 493 U.S. 1094 (1990).
246. See National Rifle Ass'n v. Handgun Control Fed'n, 15 F.3d 559, 562 (6th Cir. 1994).
247. See New Era Publications Int'l, ApS v. Carol Publishing Group, 904 F.2d 152, 157 (2d Cir. 1990).
248. See Harper & Row, supra note 34, at 569 (taking of some 300 words held infringing).
249. 3 NIMMER ON COPYRIGHT § 13.05[A] (1993) (footnotes omitted).
250. See Stewart v. Abend, supra note 236, at 238.
251. Cf. American Geophysical Union v. Texaco, Inc., 37 F.3d 881, 895 (2d Cir. 1994) ("analysis under the fourth factor must focus on the effect of [defendant's] photocopying upon the potential market for or value of these individual articles"); Salinger v. Random House, Inc., 811 F.2d 90, 99 (2d Cir.), cert. denied, 484 U.S. 890 (1987) (protecting potential market for author's letters notwithstanding author's profound disinclination ever to publish them).
252. See Sony, supra note 22, at 443-47 (plaintiffs "failed to carry their burden with regard to [the harm of] time-shifting . . . . Harm from time-shifting is speculative and, at best, minimal").
253. See Harper & Row, supra note 34, at 562.
254. See Stewart v. Abend, supra note 236, at 238.
255. See Campbell, supra note 229, at 1173.
256. The inability of our common law system to provide guidance covering every possible permutation of behavior is not necessarily a weakness. By permitting courts to reach decisions on a case-by-case basis, our system permits both necessary gap-filling and jurisprudential evolution without requiring repeated pleas to Congress for additional elaboration.
257. See supra notes 210-16 and accompanying text (discussing Playboy and MAPHIA decisions).
258. Playboy, supra note 211, at 1558.
259. MAPHIA, supra note 216.
260. MAPHIA, supra note 216, at 688.
261. See infra pp. 83-84.
26.2 802 F. Supp. 1 (S.D.N.Y. 1992), aff'd, 37 F.3d 881, 892 (2d Cir. 1994). The Court of Appeals noted, with respect to Texaco's argument that such photocopying was "reasonable and customary," that "whatever validity this argument might have had before the advent of . . . photocopying licensing . . . the argument today is insubstantial." This suggests that, together with Section 108's proscription on most "systematic" photocopying (discussed below), the precedential value of Williams & Wilkins Co. v. United States, 487 F.2d 1345 (Ct. Cl. 1973) (Federal libraries not liable for infringement where no licensing option existed as between full price subscription to scientific journals and holding of fair use) may be reduced.
263. Existing guidelines cover certain copying by and for teachers in the classroom context, the copying of music for educational purposes, the copying of relatively recent journal articles by one library for another, and the off-air videotaping of educational broadcast materials.
264. See HOUSE REPORT at 68-74, reprinted in 1976 U.S.C.C.A.N. 5681-88.
265. See discussion of the Working Group’s proposed amendments to Section 108 infra pp. 225-27.
266. The laws of economics and physics protect producers of equipment and tangible supplies to a greater extent than copyright owners. A university, for example, has little choice but to pay to acquire photocopy equipment, computers, paper and diskettes. It may, however, seek subsidization from copyright owners by arguing that its copying and distribution of their works should, as a fair use, not be compensated.
267. Hereinafter, the term "library" will be used to refer to a library or archives, or any of its employees acting within the scope of their employment.
268. See 17 U.S.C. § 108(a) (1988). Section 108 limitations are additional exemptions provided specifically for certain libraries. Libraries, of course, may also take advantage of fair use privileges or any other exemptions to the Copyright Act (see 17 U.S.C. § 108(f)(4) (1988)), but the exemptions in Section 108 generally exceed fair use. See generally Report of the Register of Copyrights on Library Reproduction of Copyrighted Works (1983).
269. See 17 U.S.C. § 108(a) (1988).
270. See 17 U.S.C. § 108(g) (1988).
271. 17 U.S.C. § 108(h) (1988).
272. See 17 U.S.C. § 108(b) (1988).
273. HOUSE REPORT at 75, reprinted in 1976 U.S.C.C.A.N. 5689.
274. 17 U.S.C. § 108(c) (1988); see HOUSE REPORT at 75, reprinted in 1976 U.S.C.C.A.N. 5689.
275. 17 U.S.C. § 108(d) (1988).
276. Id.
277. 17 U.S.C. § 108(e) (1988).
278. Id.
279. See 17 U.S.C. § 108(f)(3) (1988).
280. 17 U.S.C. § 108(g)(2) (1988).
281. See H.R. REP. NO. 1733, 94th Cong., 2d Sess. 72-73 (1976), reprinted in 1976 U.S.C.C.A.N. 5810, 5813-14 (hereinafter CONFERENCE REPORT).
282. Id. at 72, reprinted in 1976 U.S.C.C.A.N. 5813.
283. See discussion supra pp. 87-88.
284. See discussion supra pp. 87-88.
285. See T.B. Harms Co. v. Jem Records, Inc., 655 F. Supp. 1575, 1582 (D.N.J. 1987); Columbia Pictures Indus., Inc. v. Aveco, Inc., 612 F. Supp. 315, 319-20 (M.D. Pa. 1985), aff'd, 800 F.2d 59 (3d Cir. 1986).
286. 17 U.S.C. § 109(a) (1988).
287. See 17 U.S.C. § 109(b)(1)(A) (Supp. V 1993). The prohibition with respect to record rental does not apply to nonprofit libraries or nonprofit educational institutions for nonprofit purposes. Id. In addition, a nonprofit educational institution may transfer possession of a lawfully made copy of a computer program to another nonprofit educational institution or to faculty, staff and students. Id. Nonprofit libraries may also lend a computer program for nonprofit purposes if each copy has a copyright warning affixed to the package. 17 U.S.C. § 109(b)(2)(A) (Supp. V 1993). The prohibition with respect to computer program rental does not apply to a computer program "which is embodied in a machine or product and which cannot be copied during the ordinary operation or use of the machine or product" or "a computer program embodied in or used in conjunction with a limited purpose computer that is designed for playing video games and may be designed for other purposes." 17 U.S.C. § 109(b)(1)(B) (Supp. V 1993).
288. K. Corsello, The Computer Software Rental Amendments Act of 1990: Another Bend in the First Sale Doctrine, 41 CATH. U. L. REV. 177, 192 (1991).
289. See H.R. REP. NO. 98-987, 98th Cong., 2d Sess. 2 (1984), reprinted in 1984 U.S.C.C.A.N. 2898, 2899 (justifying the Record Rental Amendment of 1984).
290. See 17 U.S.C. § 109(a) (1988) ("the owner of a particular copy or phonorecord . . . is entitled . . . to sell or otherwise dispose of the possession of that copy or phonorecord"); HOUSE REPORT at 79, reprinted in 1976 U.S.C.C.A.N. 5693 (under the first sale doctrine in Section 109 "the copyright owner's exclusive right of public distribution would have no effect upon anyone who owns 'a particular copy or phonorecord lawfully made under this title' and who wishes to transfer it to someone else . . .") See also, e.g., Columbia Pictures Indus. v. Redd Horne, Inc., 749 F.2d 154, 159 (3d Cir. 1984) ("first sale doctrine prevents the copyright owner from controlling the future transfer of a particular copy once its material ownership has been transferred").
291. HOUSE REPORT at 79, reprinted in 1976 U.S.C.C.A.N. 5693 (under the first sale doctrine, "the owner of the physical copy or phonorecord cannot reproduce or perform the copyrighted work publicly without the copyright owner's consent").
292. If the reproduction is lawful under another provision of the Copyright Act, the transmission would likely not be an infringement. See infra p. 95.
293. See HOUSE REPORT at 79, reprinted in 1976 U.S.C.C.A.N. 5693.
294. 17 U.S.C. § 109(c) (1988).
295. Section 109(e) reversed the decision in Red Baron-Franklin Park, Inc. v. Taito Corp., 883 F.2d 275 (4th Cir. 1989), cert. denied, 493 U.S. 1058 (1990), which held that video games could not be operated in an arcade without the permission of the copyright owner because such operation entailed violation of the copyright owner's exclusive rights to perform and display the work publicly. Section 109(e), however, does not allow the public display or performance of any other work of authorship embodied in the audiovisual game if the copyright owner of the game is not also the copyright owner of the other work. See 17 U.S.C. § 109(e) (Supp. V 1993).
296. See discussion of rental rights with regard to phonorecords and copies of computer programs supra notes 287-89 and accompanying text.
297. See 17 U.S.C. § 110(1) (1988).
298. See 17 U.S.C. § 110(2) (1988).
299. Section 117 of the Copyright Act provides:
Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
17 U.S.C. § 117 (1988 & Supp. V 1993). Any identical copies made in accordance with Section 117 "may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program." Adaptations made may be transferred only with the authorization of the owner of the copyright in the original program. Id.
300. See 17 U.S.C. § 110(3) (1988).
301. See 17 U.S.C. § 110(6) (1988).
302. See 17 U.S.C. § 110(7) (1988).
303. See 17 U.S.C. § 110(8), (9) (1988).
304. See 17 U.S.C. § 110(10) (1988).
305. See 17 U.S.C. § 110(5) (1988).
306. See, e.g., the decision in Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975), which was essentially codified in Section 110(5) (owner of a small food establishment exempt from infringement liability for the performance of copyrighted works via a radio and four small ceiling speakers). See also Sailor Music v. The Gap Stores, Inc., 516 F. Supp. 923 (S.D.N.Y.), aff'd, 668 F.2d 84 (2d Cir. 1981), cert. denied, 456 U.S. 945 (1982); Rodgers v. Eighty Four Lumber Co., 617 F. Supp. 1021 (W.D. Pa. 1985); Springsteen v. Plaza Roller Dome, Inc., 602 F. Supp. 1113 (M.D.N.C. 1985).
307. See 17 U.S.C. § 112(a) (1988). This limitation of the copyright owner's reproduction right is applicable only if:
(1) the copy or phonorecord is retained and used solely by the transmitting organization that made it, and no further copies or phonorecords are reproduced from it; and
(2) the copy or phonorecord is used solely for the transmitting organization's own transmissions within its local service area, or for purposes of archival preservation or security; and
(3) unless preserved exclusively for archival purposes, the copy or phonorecord is destroyed within six months from the date the transmission program was first transmitted to the public.
Id.
308. See 17 U.S.C. §§ 111, 119 (1988 & Supp. V 1993). These provisions are referred to as "compulsory licenses" because under such provisions, copyright owners are compelled to grant the licenses. No license agreements are signed and the terms of such licenses are set forth in the statute; the copyright owner cannot object to the use of the work and must be satisfied with the license fees collected under the statute, which are distributed among all of the affected copyright owners by arbitrators impaneled by the Librarian of Congress.
309. The Copyright Office issued a regulation in 1992 stating that a cable system is a facility that both receives and transmits signals from within the same state. See 37 C.F.R. § 201.17(k) (1994). This ruling makes clear that Section 111 should not be applicable to any entities other than community-based cable systems. Moreover, in Satellite Broadcast Networks, Inc. v. Oman, 17 F.3d 344 (11th Cir.), cert. denied, 115 S. Ct. 88 (1994), the 11th Circuit upheld the regulation, finding it valid, enforceable and to be used by courts when determining whether a facility qualifies as a cable system. Since facilities used to transmit works through the NII will generally be inherently capable of receiving and transmitting outside any particular state, these facilities will not qualify for the cable compulsory license.
310. A "satellite carrier" is defined as "an entity that uses facilities of a satellite service licensed by the Federal Communications Commission to establish and operate a channel of communications for point-to-multipoint distribution of television station signals . . . ." See 17 U.S.C. § 119(d)(6). Unless the NII transmission occurs through a satellite service licensed by the FCC for the statutorily prescribed purposes, the compulsory license provisions would not be applicable.
311. See 17 U.S.C. § 116 (Supp. V 1993). This compulsory license may only be invoked if private negotiations fail to produce a consensual license.
312. See 17 U.S.C. § 118 (1988 & Supp. V 1993).
313. See 17 U.S.C. § 115 (1988).
314. See 17 U.S.C. § 501(a) (Supp. V 1993). Anyone who "trespasses into [the copyright owner's] exclusive domain by using or authorizing the use of the copyrighted work in one of the five ways set forth in the statute" is an infringer of the copyright. Sony, supra note 22, at 433.
315. See discussion of the scope of the exclusive rights supra at pp. 63-72. For instance, activities such as loading a work into a computer, scanning a printed work into a digital file, uploading or downloading a work between a user's computer and a BBS or other server, and transmitting a work from one computer to another may be infringements (in those cases, of the reproduction right). See, e.g., MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993) (the turning on of the computer, thereby causing the operating system to be copied into RAM, constituted an infringing reproduction of the copyrighted software); Advanced Computer Services v. MAI Systems Corp., 845 F. Supp. 356 (E.D. Va. 1994) (loading software into computer's random access memory constituted infringing reproduction); see also 2 NIMMER ON COPYRIGHT § 8.08 at 8-103 (1993) ("input of a work into a computer results in the making of a copy, and hence . . . such unauthorized input infringes the copyright owner's reproduction right").
316. The innocence or willfulness of the infringing activity may be relevant with regard to the award of statutory damages. See 17 U.S.C. § 504(c) (1988); see also discussion of remedies infra pp. 130-33.
317. See 17 U.S.C. § 106 (1988 & Supp. V 1993).
318. See HOUSE REPORT at 61, reprinted in 1976 U.S.C.C.A.N. 5674 ("references to 'copies or phonorecords' are intended [in Section 106(1)-(3)] and throughout the bill to include the singular"; "the right 'to reproduce the copyright work in copies or phonorecords' means the right to produce a material object in which the work is duplicated, transcribed, imitated, or simulated . . . "). Further evidence of the intent of Congress to make even a single act of unauthorized reproduction an infringement is found in specific exemptions created for certain single-copy uses. See, e.g., 17 U.S.C. §§ 108(a), 108(f)(2), 112(a) (1988); see also Texaco, supra note 251, at 17.
319. See, e.g., Rockford Map Publishers, Inc. v. Directory Serv. Co., 224 U.S.P.Q. 851 (C.D. Ill. 1984), aff'd, 768 F.2d 145 (7th Cir. 1985), cert. denied, 474 U.S. 1061 (1986); Sub-Contractors Register, Inc. v. McGovern's Contractors & Builders Manual, Inc., 69 F. Supp. 507, 509 (S.D.N.Y. 1946). It is common for publishers of directories and other compilations to deliberately insert mistakes into the work (such as periodically adding a fictitious name, address and phone number in a telephone directory) to detect and help establish copying. See 2 H. ABRAMS, THE LAW OF COPYRIGHT § 14.02[B][3][c], at 14-19 to 20 (1993).
