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2.3.4.5.6.7.8.(iii)Stockwire Research Group v. Lebed(iv)Stockart.com v. Engle(v)Granger v. One Call Lender Services(vi)Pacific Stock v. MacArthur & Co.(vii)Agence France Presse v. Morel(3)Jurisdictional Issues – Blueport Co. v. United States(d)Alternative Approaches to the DMCA That Did Not Pass(e)The Battle Between Content Owners and Technology Companies OverBuilt-In Technological MeasuresAnticircumvention Provisions Under the European Copyright DirectiveAnti-Circumvention Provisions in Other Foreign CountriesFair Use(a)United States Legislation That Did Not Pass(b)The European Copyright DirectiveExpansion of Library/Archives ExemptionsDistance EducationCopying in the Course of Computer Maintenance or RepairOther Provisions of the DMCA(a)Evaluation of Impact of Copyright Law on Electronic Commerce(b)Clarification of the Authority of the Copyright Office(c)Ephemeral Recordings(d)Statutory Licenses With Respect to Performances of SoundRecordings(e)Assumption of Contractual Obligations Related to Transfers of Rightsin Motion Pictures(f)Protection of Certain Industrial Designs(1)Protection of Designs Embodied in Useful Articles(2)Originality(3)Exclusions from Protection(4)Adaptations of Unprotectable Elements(5)Duration of Protection and Design Notice(6)Rights of a Design Owner and Limitations(7)Standard of Infringement(8)Benefit of Foreign Filing Date(9)Vesting and Transfer of Ownership(10)Remedies of Injunctive Relief, Damages, Attorneys’ Fees andDestruction(11)Private Rights of Action Against Pirated Designs(12)Relation to Design Patents and Retroactive Effect(g)Limitation of Liability of Online Service Providers(h)Subpoenas to Service Providers(1)Jurisdictional Issues(2)RIAA v. Verizon Internet Services(3)The Charter Communications Litigation(4)Fatwallet v. Best 46346347347347347348348351352

(5)In re Subpoena to University of North Carolina at Chapel Hill(6)Subpoenas in John Doe Actions(7)Interscope Records v. Does 1-7(8)In re Maximized Living9.Proposed Limitation of Scope of Shrinkwrap and Clickwrap Licenses ThatDid Not PassIII.APPLICATION OF COPYRIGHT RIGHTS TO SPECIFIC ACTS ON g3581.Types of Caching2.The Detriments of Caching3.The Netcom Case and Application of the Fair Use Doctrine(a)Purpose and Character of the Use(b)Nature of the Copyrighted Work(c)Amount and Substantiality of the Portion Used(d)Effect of Use on the Potential Market4.Cases Adjudicating Caching Under the Fair Use and Implied LicenseDoctrines(a)Field v. Google(b)Perfect 10 v. Google (aka Perfect 10 v. Amazon)(c)Ticketmaster L.L.C. v. RMG Technologies, Inc.(d)Parker v. Yahoo!, Inc.5.Other Caching Cases(a)Facebook v. Power VenturesC.Liability of Online Service Providers3583593613613623623631.Direct Liability(a)Louis Vuitton v. Akanoc Solutions(b)Flava Works v. Gunter(c)UMG Recording v. Escape Media2.Contributory Liability(a)The Netcom Case(b)The MAPHIA Case(c)The Peer-to-Peer Filing Sharing Cases(1)The Napster Cases(2)The Scour.com Lawsuit(3)The Aimster/Madster Lawsuits(4)The StreamCast/Kazaa/Grokster Lawsuits(5)The Supreme Court’s Grokster Decision(6)The Grokster Decision on Remand(i)The Ruling on Liability(ii)The Permanent Injunction(7)The Audiogalaxy 78379379414415421428443443447450

(8)The Hummer Winblad/Bertelsmann Litigation(9)Arista Records v. Lime Group(d)The CoStar Case(e)Ellison v. Robertson(f)Perfect 10 v. Cybernet Ventures(g)Perfect 10 v. Visa International(h)Parker v. Google(i)MDY Industries v. Blizzard Entertainment(j)Louis Vuitton v. Akanoc Solutions, Inc.(k)Arista Records v. Usenet.com(l)Hermeris v. Brandenburg(m)Flava Works v. Gunter(n)Perfect 10 v. Giganews(o)Masck v. Sports Illustrated(p)UMG Recording v. Escape Media(q)Fox Broadcasting v. Dish Network(r)Summary3.Vicarious Liability(a)The Netcom Case and its Progeny(b)The Napster Cases(c)Ellison v. Robertson(d)Perfect 10 v. Cybernet Ventures(e)The Aimster/Madster Lawsuits(f)The StreamCast/Kazaa/Grokster Lawsuits(g)Perfect 10 v. Visa International(h)Parker v. Google(i)Louis Vuitton v. Akanoc Solutions(j)Live Face on Web v. Howard Stern Productions(k)Arista Records v. Usenet.com(l)Corbis v. Starr(m)Arista Records v. Lime Group(n)Hermeris v. Brandenburg(o)Luvdarts v. AT&T Mobility(p)Flava Works v. Gunter(q)Perfect 10 v. Giganews(r)Masck v. Sports Illustrated(s)Disney Enterprises v. Hotfile(t)UMG Recording v. Escape Media(u)Gardner v. CafePress4.Inducement Liability(a)The Supreme Court’s Grokster Decision(b)Arista Records v. Usenet.com(c)Columbia Pictures v. Fung(d)Arista Records v. Lime Group(e)Flava Works v. Gunter- 10 489490490490491491491491491492498503

(f)Disney Enterprises v. Hotfile(g)UMG Recording v. Escape Media5.Adequacy of Pleadings of Secondary Liability Against Service Providers(a)Miller v. Facebook(b)Williams v. Scribd6.Limitations of Liability of Online Service Providers in the DMCA(a)History of the Various Legislative Efforts(b)The OSP Liability Provisions of the DMCA(1)Safe Harbors – Definition of a “Service Provider”(i)Acting as a Mere Conduit for Infringing Information –Section 512(a)a.The Napster Caseb.Ellison v. Robertsonc.The Aimster/Madster Lawsuitsd.Perfect 10 v. CCBille.Columbia Pictures v. Fungf.American Broadcasting v. Aereo(ii)Caching – Section 512(b)a.Field v. Googleb.Parker v. Googlec.Perfect 10 v. Google(iii)Innocent Storage of Infringing Information – Section512(c)a.The ALS Scan Case – What Constitutes a“Substantially” Compliant Noticeb.Hendrickson v. eBayc.CoStar v. LoopNetd.Perfect 10 v. Cybernet Venturese.The Aimster/Madster Lawsuitsf.Hendrickson v. Amazon.comg.Rossi v. MPAAh.Perfect 10 v. CCBilli.Corbis Corp. v. Amazon.com, Inc.j.Tur v. YouTube, Inc.k.Io Group v. Veoh Networksl.UMG Recordings v. Veoh Networksm.Perfect 10 v. Amazonn.Louis Vuitton v. Akanoc Solutionso.Viacom v. YouTubep.Perfect 10 v. Googleq.Wolk v. Kodak Imaging Networkr.Arista Records v. Myxers.Flava Works v. Guntert.Capitol Records v. MP3tunesu.Obodai v. Demand Media- 11 587588589600601604608608617

(2)(3)(4)(5)(6)(7)v.Agence France Presse v. Morelw.Columbia Pictures v. Fungx.Disney Enterprises v. Hotfiley.Capitol Records v. Vimeoz.Perfect 10 v. Giganews(iv)Referral or Linking to Infringing Material (InformationLocation Tools) – Section 512(d)a.The Napster Caseb.Perfect 10 v. Cybernet Venturesc.The MP3Board Cased.The Aimster/Madster Lawsuitse.The Diebold Lawsuitf.Perfect 10 v. CCBillg.Columbia Pictures v. Fungh.Perfect 10 v. Googlei.Perfect 10 v. YandexGeneral Requirements for Limitations of LiabilitySpecial Provisions for Nonprofit Educational InstitutionsFiling of False DMCA Notices – Section 512(f)(i)Rossi v. MPAA(ii)Online Policy Group v. Diebold, Inc.(iii)Dudnikov v. MGA Entertainment(iv)Novotny v. Chapman(v)BioSafe-One, Inc. v. Hawks(vi)Lenz v. Universal Music Corp.(vii)UMG Recordings v. Augusto(viii)Capitol Records v. MP3tunes(ix)Brave New Films v. Weiner(x)Cabell v. Zimmerman(xi)Design Furnishings v. Zen Path(xii)Amaretto Ranch Breedables v. Ozimals(xiii)Shropshire v. Canning(xiv)Rock River Communications v. Universal Music Group(xv)Smith v. Summit Entertainment(xvi)Ouellette v. Viacom(xvii)Tuteur v. Crosley-Corcoran(xviii)Flava Works v. Gunter(xix)Disney Enterprises v. Hotfile(xx)Flynn v. Siren-Bookstrand(xxi)Crossfit v. Alvies (based on a trademark claim under theDMCA)Other ProvisionsInjunctions Against Service ProvidersDesignation of Agent to Receive Notification of ClaimedInfringement- 12 664665667667669669670671671

(i)CoStar v. Loopnet(ii)Wolk v. Kodak Imaging Network(iii)Perfect 10 v. Yandex(iv)Oppenheimer v. Allvoices(8)Whether the Safe Harbors Apply to Pre-1972 Sound Recordings7.Limitations of Liability of Online Service Providers under theCommunications Decency Act(a)Stoner v. eBay(b)Perfect 10 v. CCBill8.Secondary Liability of Investors(a)The Hummer Winblad/Bertelsmann Litigation(b)UMG Recordings v. Veoh Networks9.Class ActionsD.Linking and Framing6726736736746741.The Shetland Times Case2.The Total News Case3.The Seattle Sidewalk Case4.The Futuredontics Case5.The Bernstein Case6.The Intellectual Reserve Case7.Ticketmaster v. Tickets.com8.The MP3Board Case9.Kelly v. Arriba Soft10.Batesville Services, Inc. v. Funeral Depot, Inc.11.Live Nation Sports v. Davis12.Perfect 10 v. Google (aka Perfect 10 v. Amazon)13.Pearson Education v. IshayevE.Streaming and 6991.The Digital Performance Right – The Section 114(d)(1) Exemption andStreaming by FCC-Licensed Broadcasters2.The Digital Performance Right – Statutory Licenses Under Section 114 forCertain Nonsubscription and Subscription Services(a)Preexisting Subscription Services(b)Eligible Nonsubscription Services (Webcasters)(c)New Subscription Services3.The Digital Performance Right – What Constitutes an “Interactive” Service(a)Arista Records v. Launch Media4.The Reproduction Right – Mechanical Licenses andStreaming/Downloading(a)Applicability of the Section 115 Compulsory License to Streaming(b)The Copyright Office’s Position – The 2001 DMCA Report andComment Proceedings(c)The NMPA/HFA/RIAA Agreement of 2001(d)The Interactive Streaming and Limited Download Agreement of 2008- 13 30731734736

(e)2008 Interim Regulation re Compulsory DPD License(f)Applicability of the Section 115 Compulsory License to Ringtones(g)Subsequent Determinations of Compulsory License Rates by the CRB5.The Section 111 Compulsory License for Cable Systems(a)WPIX v. ivi(b)CBS v. FilmOn(c)American Broadcasting v. Aereo6.International Licensing EffortsF.First Sales in Electronic Commerce7377387397407407407417417411.Capitol Records v. ReDigiG.Pop-Up Advertising7447451.The Gator Litigations2.The WhenU Litigations(a)U-Haul v. WhenU.com(b)Wells Fargo v. WhenU.com(c)1-800 Contacts v. WhenU.com3.The MetroGuide Litigation4.The D Squared Litigation5.International DecisionsH.Harvesting of Web Data7457467477487507537537547541.The FatWallet Dispute2.Nautical Solutions Marketing v. Boats.com3.Craigslist v. 3TapsIV.CONCLUSION- 14 -754754755756

ADVANCED COPYRIGHT ISSUES ON THE INTERNETI.INTRODUCTIONOver the years, the Internet has become the basic foundational infrastructure for theglobal movement of data of all kinds. With continued growth at a phenomenal rate, the Internethas moved from a quiet means of communication among academic and scientific research circlesinto ubiquity in both the commercial arena and private homes. The Internet is now a majorglobal data pipeline through which large amounts of intellectual property are moved. As thispipeline is increasingly used in the mainstream of commerce to sell and deliver creative contentand information across transnational borders, issues of intellectual property protection for thematerial available on and through the Internet have taken on great importance.Copyright law provides one of the most important forms of intellectual propertyprotection on the Internet for at least two reasons. First, much of the material that moves incommerce on the Internet is works of authorship, such as musical works, multimedia works,audiovisual works, movies, software, database information and the like, which are within theusual subject matter of copyright. Second, because the very nature of an electronic onlinemedium requires that data be “copied” as it is transmitted through the various nodes of thenetwork, copyright rights are obviously at issue.Traditional copyright law was designed to deal primarily with the creation, distributionand sale of protected works in tangible copies.1 In a world of tangible distribution, it is generallyeasy to know when a “copy” has been made. The nature of the Internet, however, is such that itis often difficult to know precisely whether a “copy” of a work has been made and, if so, where itresides at any given time within the network. As described further below, information is sentthrough the Internet using a technology known as “packet switching,” in which data is broken upinto smaller units, or “packets,” and the packets are sent as discrete units. As these packets passthrough the random access memory (RAM) of each interim computer node on the network, are“copies” of the work being made?The case of MAI Systems Corp. v. Peak Computer2 held that loading a computer programinto the RAM of a computer constituted the making of a “copy” within the purview of copyrightlaw. This case has been followed by a number of other courts. Under the rationale of this case, a“copy” may be created under United States law at each stage of transmission of a work throughthe Internet. The language of two treaties discussed extensively in this paper – the WIPOCopyright Treaty3 and the WIPO Performances and Phonograms Treaty4 – leave unclear the1For example, under United States law, copyright protection subsists only in “works of authorship fixed in anytangible medium of expression, now known or later developed, from which they can be perceived, reproduced,or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102(a).2991 F.2d 511 (9th Cir. 1993), cert. dismissed, 114 S. Ct. 672 (1994).3World Intellectual Property Organization Copyright Treaty, Apr. 12, 1997, S. Treaty Doc. No. 105-17 (1997).- 13 -

crucial question whether the MAI approach will be internationalized. In any event, these twotreaties would strengthen copyright holders’ rights of “distribution” and would create new rightsof “making available to the public” a copyrighted work, both of which are implicated bytransmissions through the Internet nearly as broadly as the right of reproduction.The ubiquitous nature of “copying” in the course of physical transmission gives thecopyright owner potentially very strong rights with respect to the movement of copyrightedmaterial through the Internet, and has moved copyright to the center of attention as a form ofintellectual property on the Internet. If the law categorizes all interim and received transmissionsas “copies” for copyright law purposes, or treats all such transmissions as falling within the rightof distribution of the copyright owner, then activities that have been permissible with respect totraditional tangible copies of works, such as browsing and transfer, may now fall within thecontrol of the copyright holder.This work discusses the multitude of areas in which copyright issues arise in an onlinecontext. Although the issues will, for simplicity of reference, be discussed in the context of theInternet, the analysis applies to any form of online usage of copyrighted works. Part II of thiswork discusses the various copyright rights that may be implicated by transmissions and use ofworks on the Internet, including new rights and remedies, as well as certain limitations onliability for online service providers afforded under federal statutes. Part III then analyzes theapplication of those rights to various activities on the Internet, such as browsing, caching,operation of an online service or bulletin board, linking to other sites, creation of derivativeworks, and resale or subsequent transfer of works downloaded from the Internet. Part III alsoanalyzes the application of the fair use doctrine and the implied license doctrine to variousInternet activities. Because the law is still developing with respect to many of these issues,considerable uncertainty is likely to exist as the issues are worked out over time through thecourts and the various relevant legislative bodies and industry organizations.II.RIGHTS IMPLICATED BY TRANSMISSION AND USEOF WORKS ON THE INTERNETThis Part discusses the various rights of the copyright holder – the right of reproduction,the right of public performance, the right of public display, the right of public distribution, theright of importation, and the new rights of transmission and access – that are implicated by thetransmission and use of works on the Internet.A. The Right of ReproductionThe single most important copyright right implicated by the transmission and use ofworks on the Internet is the right of reproduction. As elaborated below, if the law categorizes allinterim and received transmissions as “copies” for copyright law purposes, then a broad range of4World Intellectual Property Organization Performances and Phonograms Treaty, Apr. 12, 1997, S. Treaty Doc.No. 105-17 (1997).- 14 -

ordinary activities on the Internet, such as browsing, caching, and access of information, may fallwithin the copyright holder’s monopoly rights.1.The Ubiquitous Nature of “Copies” on the InternetUnder current technology, information is transmitted through the Internet using atechnique known broadly as “packet switching.” Specifically, data to be transmitted through thenetwork is broken up into smaller units or “packets” of information, which are in effect labeledas to their proper order. The packets are then sent through the network as discrete units, oftenthrough multiple different paths and often at different times. As the packets are released andforwarded through the network, each “router” computer makes a temporary (ephemeral) copy ofeach packet and transmits it to the next router according to the best path available at that instant,until it arrives at its destination. The packets, which frequently do not arrive in sequential order,are then “reassembled” at the receiving end into proper order to reconstruct the data that wassent.5 Thus, only certain subsets (packets) of the data being transmitted are passing through theRAM of a node computer at any given time, although a complete copy of the transmitted datamay be created and/or stored at the ultimate destination computer, either in the destinationcomputer’s RAM, on its hard disk, or in portions of both.To illustrate the number of interim “copies,” in whole or in part, that may be made whentransmitting a work through the Internet, consider the example of downloading a picture from awebsite. During the course of such transmission, no less than seven interim copies of the picturemay be made: the modem at the receiving and transmitting computers will buffer each byte ofdata, as will the router, the receiving computer itself (in RAM), the Web browser, the videodecompression chip, and the video display board.6 These copies are in addition to the one thatmay be stored on the recipient computer’s hard disk.72.Whether Images of Data Stored in RAM Qualify as “Copies”Do these interim and final copies of a work (many of which are only partial) beingtransmitted through the Internet qual

Gordon v. Nextel Communications 308 d. Monotype Imaging, Inc. v. Bitstream Inc. 310 e. Keogh v. Big Lots Corp. 311 f. Goldman v. Healthcare Management Systems 312 g. Thomas M Gilbert Architects v. Accent Builders 312 h. Banxcorp v. Costco 312 i. Agence France Presse v. Morel 313 j. Scholz Design v. Custom Homes 314 k.