Copyright Use and Excuse on the Internet

Abstract:     
1998 ended with voluminous copyright legislation, pompously titled the "Digital Millennium Copyright Act" ["DMCA"], and intended to equip the copyright law to meet the challenges of online digital exploitation of works of authorship. 1999 and 2000 have brought some of the ensuing confrontations between copyright owners and Internet entrepreneurs to the courts. The evolving caselaw affords an initial opportunity to assess whether the copyright law as abundantly amended can indeed respond to digital networks, or whether the rapid development of the Internet inevitably outstrips Congress' and the courts' attempts to keep pace. This Article addresses recent Internet-related controversies concerning technological protection measures and copyright management information; fair use and linking; "private" copying online services; and choice of law issues posed by foreign websites accessible in the U.S.

The Internet copyright cases this Article examines call not only for interpretation of the provisions of the DMCA, but also for application of principles developed in pre-DMCA cases involving digital media and digital networks. What may make the current controversies different is the intensity of their impact on end-users. While the defendants in the current cases are generally, albeit not exclusively, commercial intermediaries, many of the practices here at issue pose the prospect of mass uncompensated copying by the public. Hence the feeling of desperation and even moral outrage that one senses pervades many of the copyright owners' actions. From the user perspective, digital media offer unparalleled opportunities to access and enjoy copyrighted works; copyright owners' endeavors to staunch the free (as in unpaid) flow of works are misguided attempts to stop the inexorable forward march of technology for the sake of preserving mastodontic business models of distribution. Certainly the Internet will compel adoption of new business models, and the sooner copyright owners adapt, the better. The tools the DMCA and copyright caselaw give copyright owners to confront copyright use on the Internet should be employed to promote broad distribution of works of authorship at reasonable, and variable, prices. If copyright owners instead wield these tools to enhance control without facilitating dissemination, we can expect to see courts expand the zones of excused uses, whether or not the excuses are doctrinally persuasive. Copyright owners cannot, and should not, control every Internet use, but neither should every use prompt an excuse, lest we undermine the ability of copyright owners, and especially of individual creators, to make a living from their creativity.

Note: This is a revised version of an article earlier posted to SSRN. The revision takes account of the 9th Circuit "Napster" decision rendered following the posting of the original version.

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