OUTLINE OF U.S. COPYRIGHT LAW
BY DOUGLAS J. MASSON
I. HISTORY

            A. England

            Copyright law is a creation of the print era.[1] Before Gutenberg invented the printing press around 1430, there was no need for copyright laws because copying was prohibitively difficult and, without a practical means of mass production, there was no economic interest which might have encouraged legal protection.[2] Furthermore, literature was held to be part of a commonfund of knowledge.[3]

            After the introduction of the printing press in England in 1476, but before the enactment of the Statute of Anne[4] (the first "modern" Anglo-Saxon copyright law) in 1709, licensing acts performed the function of copyright law. The Charter of the Stationers' Company was granted in 1556 by Philip and Mary, the Roman Catholic successors to Henry VIII's Protestant son, Edward VI. The Charter authorized the stationers to make "ordinances, provisions, and statutes" for "the art or mistery of [s]tationery," as well as the power to search out illegal presses and books and things, allowing them to "[seize, take, or burn] the foresaid books or things, or any of them printed or to be printed contrary to the form of any statute, act, or proclamation . . . ."[5] These licensing acts served as a form of political censorship and trade regulation. The monarchy used a guild, a medieval economic institution, as an instrument, to censor the heresy and sedition made possible by the printing press.[6]

            In 1709, the Statute of Anne was enacted and copyright law became less a tool of the state and more a tool of authors and publishers.[7] Such a development reflected both an increasing respect for the rights of the authors as well as the growing economic opportunity of authors' creations.[8] It also specified that the time for which authors hold their copyrights are limited and specified by its title, Act for the Encouragement of Learning, that a well-informed public was an underlying motivation for copyright.[9] 

            B. United States

            The authority of Congress to pass copyright laws is grounded in Article I, Section 8, Clause 8 of the U. S. Constitution which says, "The 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."[10]  Congress exercised this authority soon after the adoption of the Constitution by enacting the Copyright Act of 1790, entitled “an act for the encouragement of learning, by securing the copies of maps, charts and books, to the authors and proprietors of such copies, during the times therein mentioned."[11] In 1790, the basic term of protection was 14 years from the date of filing, with the possibility of renewal for an additional 14 years.[12] Copyright laws were also passed in 1831 and 1909 before its last major revision was adopted in the form of the Copyright Act of 1976 ("Copyright Act").[13]

            The balance between author's rights and the public dissemination of  creative works struck in the Statute of Anne was transplanted to the U.S. in the Copyright Acts. In addition to allowing works to pass into the public domain after a certain period of time, public dissemination was further encouraged through the doctrine of fair use. The fair use exception to an authorís copyrights, which allows use of a work that would otherwise be a copyright violation based on "nature and objects of selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale or diminish the profits, or supersede the objects, of the original work." was incorporated into U.S. law most prominently by the case of Folsom v. Marsh[14] in which the owners of some of George Washington's private letters objected to the use of those letters in the creation of a fictionalized biography of the President.

         II. CURRENT COPYRIGHT LAW

            A. General

            The federal copyright act specifies that copyright law in the United States is governed solely by the copyright act, thereby preempting attempts to govern copyright through any other law.[15] The act specifies that the common law and state law are prohibited from granting rights that fall within the scope of federal copyright.[16] State law is, therefore, preempted from granting alternate or additional rights concerning an original work of authorship fixed in a tangible medium of expression where that alternate or additional right would be "equivalent" to that provided by copyright.[17] 

            Protection of U.S. Copyright law is broad, extending to all unpublished works regardless of where or by whom they are created, works that are first published by an author who is a citizen of or resides in the United States, works that are first published in the United States, and works that are first published by an author who is a citizen of or residing in a nation that is party to a copyright treaty to which the United States is also a party.[18]

            "Copyright protection subsists . . . in original works of authorship fixed in any tangible 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."[19] Works of authorship include literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; and sound recordings.[20]

            B. Requirements for protection

            There are three requirements for copyright protection: originality, creativity, and fixation. The originality requirement mandates that the work be an independent creation, meaning simply that it cannot have been copied.[21] "Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity."[22] This standard is much less rigorous than that of patent law which requires not only that there be an independent creation but that it also be novel, not known or practiced previously.[23]In theory, under copyright law, if an independently created work happened to be an exact duplicate of a previously existing work, the new work would not constitute an infringement.[24]

            To satisfy the creativity requirement a work need only have a de minimis amount of creativity.[25] Courts have found sufficient originality in such banal creations as the label on a box of cake which simply depicts pictures of cakes.[26] Though the creativity standard is very low, there are still limits on what will fulfill the requirement. For example, originality was not found to exist in fragmentary words or phrases.[27]

            In Feist v. Rural Telephone, a case involving the question of whether Rural Telephone's telephone directory was entitled to copyright protection, the Supreme Court held that the facts in the directory, the names and telephone numbers, were not created by Rural and therefore did not satisfy the originality requirement. The Court further held that "the way in which Rural selected, coordinated, and arranged those facts is not original in any way. Rural's selection of listings - subscribers' names, towns, and telephone numbers - could not be more obvious, and lacks the modicum of creativity necessary to transform mere selection into copyrightable expression. In fact, it is plausible to conclude that Rural did not truly "select" to publish its subscribers' names and telephone numbers, since it was required to do so by state law. Moreover, there is nothing remotely creative about arranging names alphabetically in a white pages directory. It is an age-old practice, firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course."[28]

            Finally, the fixation requirement is similarly broad in that it allows for fixation even in media not yet developed. "[I]t makes no difference what the form, manner, or medium of fixation may be--whether it is in words, numbers, notes, sounds, pictures, or any other graphic or symbolic indicia, whether embodied in a physical object in written, printed, photographic, sculptural, punched, magnetic, or any other stable form, and whether it is capable of perception directly or by means of any machine or device."[29]

            Although the form of fixation is flexible, such things as an extemporaneous speech or a live street performance by a musician is not fixed in a tangible medium and is, therefore, not copyrightable. However, transmission via a broadcast network or the Internet with simultaneous fixation by tape machine or in the RAM or hard-drive of a computer is sufficiently fixed for purposes of copyright protection.[30]

            The fixation requirement was an elegant solution in the era of the printing press for the problem of how to go about protecting something so ephemeral as expression. Instead of having to come to grips with the transitory expression, the law could simply focus on the forms in which the expression was fixed. However, in the digital age, the media in which expression is fixed is becoming more fluid and more difficult to police. As John Perry Barlow wrote, "[s]o far we have placed all of our intellectual [property] protection on the containers and not on the contents. And one of the side effects of digital technology is that it makes those containers irrelevant. Books, CDs, filmstrips--whatever--don't need to exist anymore in order to get ideas out. So whereas we thought we have been in the wine business, suddenly we realized all along we've been in the bottling business."[31]

            Copyright protection arises as soon as the creative, original work of authorship is fixed in a tangible form.

            C. Uncopyrightable Works

            Certain works are not copyrightable. Works produced by federal government officers and employees, federal statutes and rules for example, are not protected.[32] Furthermore, copyright does not extend to an idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.[33] It is the manner in which the idea is expressed, not the idea itself, which is protected. For example, copyright protection is extended to pictorial, graphic, and sculptural works,[34] but the definition of pictorial, graphic, and sculptural works states that such works "shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; 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."[35] So, the design of an ordinary belt buckle is not copyrightable whereas the unique elements of a belt buckle that is novel in some way are copyrightable. The dividing line between utilitarian and original, creative expression is not always an easy one to draw.[36]

            D. Exclusive Rights

            Copyright law grants the owner of a copyright certain exclusive rights.[37] These rights are the right to reproduce the copyrighted work in copies or phonorecords; to prepare derivative works based upon the copyrighted work;  to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and in the case of 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, to display the copyrighted work publicly.[38]

            i. Reproduction Right

            The most basic right is the right of reproduction.[39] This right is implicated when a work or a portion of a work is reproduced for more than a "transitory duration" in any tangible medium of expression. Therefore you could reproduce a story by reading it aloud in a private setting (so as not to implicate the public performance right) but not reproduce it in other ways.

            ii. Derivative Works

            The next exclusive right is the right to prepare derivative works, the adaptation right.[40] 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 [the underlying] work may be recast, transformed, or adapted."[41] The purpose of the adaptation right is to allow the copyright owner to control more than simply verbatim forms of copying.

            iii. Distribution Right

            The copyright owner has the exclusive right to "distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending."[42] The distribution prohibits a person from distributing unauthorized copies evenif that distributor did not make the copies himself. It is important to note, however, the "first sale doctrine", codified in 17 U.S.C. 109(a) allows the owner of a particular lawfully made copy of a work to "sell or otherwise dispose of the possession of that copy[.]"[43]

            The distribution right is  an especially important right with regard to the Internet, since the person who distributes a document on the World Wide Web does not necessarily make a copy. In a 1995 case, where an individual put a document copyrighted by the Church of Scientology through a bulletin board system that was provided Internet access by Netcom, the 9th Circuit Court of Appeals held that Netcom had not violated the distribution rights because Netcom's involvement was automated, incidental, and temporary, it was not directly infringing the Scientologists' copyright.[44] In Sega Enterprises, Ltd. v. MAPHIA, a bulletin board operator was found not to be liable for direct infringement of the distribution right for allowing users to upload and download copyrighted Sega video games.[45] These cases suggest it is the person who places the document on the server who is liable for direct infringement of the distribution right.[46]

            iv. Public Performance and Display Rights.

            The copyright owner has the exclusive right to display or perform a work publicly.[47] To perform or display a work "publicly" means-  "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, to transmit or otherwise communicate a performance or display of the work 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."[48]

            E. Infringement

            Copyright infringement can be either direct or indirect. It is worth noting that, contrary to recent rhetoric on the part of certain parties, copyright infringement is quite distinct from theft.[49]

            i. Direct infringement.

            Someone, other than the copyright owner, who engages in activity that is exclusively the right of the copyright owner without the owner's permission is engaging in copyright infringement unless the other person's use fits into one of the limitations on the owner's exclusive rights.[50] In addition to infringement by means of violating one of the exclusive rights set forth in 17 U.S.C. 106, unauthorized importation and distribution of certain works may also constitute infringement.[51]

            ii. Indirect Infringement

            Even if a person is not engaging in direct infringement of copyright, the person can be found to be liable for contributory or vicarious infringement under certain circumstances. "Although the Copyright Act does not expressly impose liability on anyone other than direct infringers, courts have long recognized that in certain circumstances, vicarious or contributory liability will be imposed." [52] It is axiomatic that, in order for one to be liable for indirect infringement, there must be an underlying direct infringement. This was an issue in the Napster case.[53] Napster argued that it did not make any infringing copies itself. It further argued that to the extent its users were making copies of copyrighted works, those users were entitled to do so under the American Home Recording Act of 1992.[54] Specifically, Napster argued, noncommercial sharing of music among individuals is common, legal, accepted, and protected under 17 U.S.C. 1008.[55] The trial court ruled against Napster on this argument, but the question is being appealed at the moment. If Napster's interpretation of the AHRA were deemed correct then even though its service enables copying of copyrighted materials on a large scale, the company would not be liable for indirect infringement for the very simple reason that there is no underlying infringement.

            (a) Vicarious Liability

            The concept of vicarious copyright liability was developed in the Second Circuit as an outgrowth of the agency principles of respondeat superior. The landmark case on vicarious liability for sales of counterfeit recordings is Shapiro Bernstein and Co. v. H. L. Green Co. [56] The doctrine was taken from the so-called "dance hall cases," in which the operator of an entertainment venue was held liable for infringing performances when the operator (1) could control the premises and (2) obtained a direct financial benefit from the audience, who paid to enjoy the infringing performance.[57] The rule was later articulated as being that one may be vicariously liable if he has the right and ability to control the infringing activity and also has a direct financial interest in the activity.[58]  The issue of contributory infringement was raised in the Netcom case.[59] In that case, the court held that there was a question of fact as to whether Netcom, the BBS operator, had the right and ability to control its user's infringing behavior. Despite Netcom's assertion that it did not have the right to control its users' postings before they occur and its assertion that it could not possibly screen messages before they are posted given the speed and volume of the data that goes through its system, the court in that case found there was enough evidence for a finder of fact to conclude Netcom did possess the requisite control due to its user policy which allowed for Netcom to take remedial action against user abuses, due to evidence that Netcom had taken actions to suspend users on over 1,000 occasions for commercial advertising, posting obscene materials, and off-topic postings, and due to evidence that it would be possible for Netcom to screen for certain words or postings from specific users.[60] The court found, however, there was no vicarious infringement by Netcom because there was no direct financial benefit to Netcom because of the infringing activity of its user.[61]

            (b) Contributory Infringement

            Contributory infringement originates in tort law and stems from the notion that one who directly contributes to another's infringement should be held accountable.[62] "[O]ne who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a 'contributory' infringer."[63] The issue of contributory infringement was raised in the Netcom case.[64] In that case, the court held that there was a question of fact as to whether Netcom, the BBS operator, knew its customer was infringing the plaintiff's work. The plaintiff sent a letter to Netcom alleging that Netcom's customer was infringing the plaintiff's copyright, but contributory liability could not be established unless the plaintiff could prove that Netcom knew or should of known that its customer's use constituted infringement. Such knowledge will be difficult to prove where there is at least a colorable claim of fair use. "Where a BBS operator cannot reasonably verify a claim of infringement, either because of a possible fair use defense, the lack of copyright notices on the copies, or the copyright holder's failure to provide the necessary documentation to show that there is a likely infringement, the operator's lack of knowledge will be found reasonable and there will be no liability for contributory infringement for allowing the continued distribution of the works on its system."[65]

            Where a defendant has knowledge of the primary infringer's infringing activities, it will be liable if it "induces, causes or materially contributes to the infringing conduct of" the primary infringer.[66] Such participation must be substantial.[67] The court reasoned that providing a service that allowed for the automatic distribution of Usenet postings where such service remained largely under the service provider's control constituted substantial participation. It therefore held, it was fair to hold Netcom liable "assuming Netcom is able to take simple measures to prevent further damage to plaintiffs' copyrighted works … for contributory infringement where Netcom has knowledge of [its customer's] infringing postings yet continues to aid in the accomplishment of [its customer's] purpose of publicly distributing the postings."[68]

            F. Limitations on Exclusive Rights

            The Copyright Act imposes certain limitations on the exclusive rights of the copyright holder, most significantly the fair use limitation, but also limitations such as those involving libraries and archives, the first sale doctrine, performances and public displays by schools, religious organizations, and charitable organizations, archival copies of computer programs, and noncommercial copying of music.

            i. Fair Use.

            The fair use exception is the biggest exception to the copyright protections on a work. "[T]he fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work."[69]

            An allegedly infringing use that is commercial is likely to draw the most scrutiny. The effect of a use on the market of the copyrighted work is the most important factor in determining whether the use is fair. That being said, there are no bright line rules to determining what is a fair use and what is not. The determination is to be made on a case by case basis.[70] "The text [of the fair use section of the copyright act] employs the terms "including" and "such as" in the preamble paragraph to indicate the "illustrative and not limitative" function of the examples given, which thus provide only general guidance about the sorts of copying that courts and Congress most commonly had found to be fair uses. Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright."[71]

            In Harper Row v. Nation Enterprises, the Supreme Court found that Nation Enterprises publication of  1,900 words of a manuscript by former President Gerald Ford did not constitute fair use based on the fact that the copyrighted work was theretofore unpublished, the use was commercial in nature, and the use was essentially competing in the same market as would the original and, therefore, would have a negative impact on the market of the copyrighted work.[72]

            On the other hand, neither commercial use nor extensive copying necessarily dictate against a finding of fair use. In Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), the Supreme Court found fair use despite extensive copying of Roy Orbison's song Oh, Pretty Woman by 2 Live Crew in their song Pretty Woman.[73]  The 2 Live Crew song took a substantialamount from the original for a commercial purpose, but extensive copying was arguably necessary to accomplish the song's purpose of parodying the orginal and, furthermore, the allegedly infringing use was not likely to have a substantial impact on the market of the original.[74]

            ii. Archival copies

            A library or archives may reproduce no more than one copy of a work if  the reproduction or distribution is made without any purpose of direct or indirect commercial advantage; (2) the collections of the library or archives are open to the public (or available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field); and (3) the reproduction or distribution of the work includes a notice of copyright that appears on the copy, or includes a legend stating that the work may be protected by copyright.[75]

            iii. First Sale Doctrine

            Under the First Sale Doctrine, codified in 17 U.S.C. 109, allows the owner of a particular copy to sell that copy without the permission of the copyright owner,[76] to display that copy one image at a time.[77] However, an owner of a copy of a computer program or of a phonorecord may not  lease that copy for direct or indirect commercial advantage.[78] A nonprofit library or educational institution may, however, lend phonorecords.[79] A nonprofit library may, under certain circumstances lend computer programs as well.[80]

            iv. Performances and displays by educational, religious, and nonprofit institutions

            Performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution or by transmission for educational purposes is not copyright infringement.[81] Nor is  performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly.[82] Under certain circumstances, "performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers" is permissible.[83] Other exceptions are made for private, home transmissions,[84] transmissions by small businesses,[85] performance of nondramatic musical works by nonprofit horticultural or agricultural organizations,[86] performances by music stores or video stores intended to promote sales of the audio or video products,[87] performances or transmissions designed to aid the handicapped,[88] and certain performances for the benefit of nonprofit veteranís or fraternal organizations.[89]

            v. Archival Copies of Computer Programs

            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 if (1) the new copy or adaptation is created as an essential step in the use of the computer program in conjunction with a machine, or (2) the 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.[90]        

            Any exact copies prepared under this exception 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.[91]

            vi. Recording Devices and Noncommercial Copying of Musical Recordings

            17 U.S.C. 1008 is technically a limitation on the ability of a copyright holder to bring suit rather than a limitation on an exclusive right. It provides that "no action may be brought . . . alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings."[92]

            G. Duration

            Copyright in a work created on or after January 1, 1978, subsists from its creation and, generally, endures for a term consisting of the life of the author and 70 year after the author's death.[93] In the case of a joint work prepared by two or more authors who did not work for hire, the copyright endures for a term consisting of the life of the last surviving author and 70 years after such last surviving author's death.[94] In the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first.[95] After a period of 95 years from the year of first publication of a work, or a period of 120 years from the year of its creation, whichever expires first, a person who obtains a certified report indicating that the records of  the Copyright Office disclose nothing to indicate that the author of the work is living, or died less than 70 years before, is entitled to the benefit of a presumption that the author has been dead for at least 70 years.[96] Copyright in a work created before January 1, 1978, but not theretofore in the public domain or copyrighted, subsists from January 1, 1978, and endures for the term of a copyrighted work created on or after January 1, 1978.[97] A term of copyright runs to the end of the year in which it expires.[98]

            Works created before 1978 were essentially granted a copyright term of 75 years from the date of their creation.[99] The 75 years was extended to 95 years by the Sony Bono Copyright Extension Act.[100] (This has been referred to as a true Mickey Mouse law benefitting as it does the Disney Corporation. The first Mickey Mouse cartoon was set to enter the public domain in 2003, and characters such as Donald Duck and Goofy would have followed shortly after.)[101]

            H. Ownership

            Ownership in copyright is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of copyright does not transfer ownership of any material object and vice versa.[102]

            Copyright in a work vests initially in the author or authors of the work. The authors of a joint work are co-owner of copyright in the work.[103]   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".[104] To constitute a joint authorship, each person's contribution must constitute copyrightable authorship (eg creativity, originality, fixation rather than merely contributing ideas).[105] Authors of a joint work hold undivided interests in it, that is partial ownership of the entire copyright, despite any differences in each authorís contribution.[106] Each author of a joint work maintains the right to use or license the work subject only to accounting to the other co-owner.[107]

            However, in the case of a work made for hire, the employer or person for whom the work was prepared is considered to be the author and, unless the parties have explicitly agreed otherwise in a document signed by both parties, the employer or other person owns all of the rights in the work.[108]

            A work made for hire is a work prepared by an employee within the scope of his or her employment.[109] Also included in the definition of "work for hire" are works specially ordered or commissioned: (1) as a contribution to a collective work, (2) as a part of a motion picture or other audiovisual work, (3) as a sound recording, (4) as a translation, (5) as a supplementary work, (6) as a compilation, (7) as an instructional text, (8) as a test, or (9) as an atlas if the parties expressly agree in a written instrument signed by them that the work shall be considered to be a work for hire.[110]

            With regard to a collective work, copyright in each separate contribution is distinct from the copyright in the work as a whole. The copyright in each contribution vests initially in the author of the contribution. In the absence of an express transfer of the copyright or any of the rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work.[111]  

            A transfer in copyright ownership, other than by operation of law, is not valid unless it is done by means of a writing signed by the owner of the rights conveyed.[112] The writing requirement applies to transfers of exclusive rights but not to nonexclusive rights.[113]

            A transfer of ownership recorded with the Copyright Office gives all persons constructive notice of the transfer. If there are two conflicting transfers, the one executed first prevails regardless of the order in which the transfers were recorded with the Copyright Office if the first transfer is recorded within two months of the transfer. If the first is recorded more than two months after the transfer, the first still prevails unless the second transfer is recorded first and was taken in good faith for valuable consideration without knowledge of the earlier transfer.[114] A nonexclusive license prevails over a conflicting transfer of copyright ownership if evidenced by a signed written instrument and the license was taken before the transfer or in good faith before recordation of the transfer and without notice.[115]

            Whether a work was a work for hire or merely a work in which rights were transferred by the author to someone else is important, among other reasons, because of the right of an author to terminate transfers and licenses. Subject to various factors, in the case of any work other than a work made for hire, an author is entitled to terminate the grant of a transfer or license of copyright executed by the author on or after January 1, 1978.[116] The author may terminate the grant during a five year period beginning 35 years from the date of the execution of the grant or, if the grant covers the publication of the work, 35 years from the date of publication or 40 years from the grant, whichever is earlier.[117] The termination is effected by serving notice upon the grantee of the author's intent to terminate the grant. The notice must state the date of the termination and must be served upon the grantor not less than two years but not more than 10 years prior to the termination.[118] 

            It is also important to be clear about whether an independent contractor is making a work for hire or merely transferring some rights in the work. If the contractor is transferring some rights, it's important to set forth exactly what those rights are. For example, in a recent  case, the Massachusetts District court determined that a software designer creating codes as an independent contractor who had not entered into a work for hire agreement was likely to be able to show he had retained  the exclusive right to reproduce the codes and prepare derivative works while the corporation he was contracting with obtained only the exclusive right to distribute copies of the code contained in the software library.[119]

            I. Notice, Deposit, & Registration

            If notice of copyright is provided in a manner that complies with certain specifications, a defense of "innocent infringement" will be unavailable to a person who is alleged to have infringed copyright.[120] Examples of sufficient notice include a software program where notice was included in ASCII,[121] on the boot-up screen,[122] and on the initial screen in the Print Shop program.[123] However, a copyright notice that appeared randomly and infrequently during a video game was deemed to be insufficient.[124] For works created prior to March 1, 1989, failure to provide sufficient notice of copyright placed a work in the public domain.[125] One of the amendments to the copyright law implementing the Berne Convention made the copyright notice provision permissive rather than mandatory and, therefore, failure to place notice of copyright on the work no longer places a work in the public domain.[126]

            Where a work lacks notice and where an infringer is able to prove that (s)he was misled by the lack of notice, the infringer is not liable for statutory or actual damages sustained by the copyright owner prior to the infringer having been given notice of copyright.[127] A court may, however, award in its discretion some or all of the profits made by the infringer as a result of the infringement.[128]

            The copyright owner of a published work (or person owning the exclusive right of publication) is required to deposit two complete copies of a work with the Copyright Office for the use or disposition of the Library of Congress.[129]The Register of Copyrights may exempt, by regulation, any categories of material from the deposit requirements or require the deposit of only one copy.[130] After publication, the Register of Copyrights may make a written demand for the required deposit and failure to comply with the demand within three months of the demand makes the copyright owner liable for a fine of up to $250 plus the retail price of the copies or cost to the Library of Congress of obtaining the copies.[131] A fine of up to $2,500 may be levied if the failure to comply is willful.[132] The deposit requirements are not, however, a condition of copyright protection.[133] The Copyright Office is currently developing the "Copyright Office Electronic Registration Recordation and Deposit System" (CORDS) which is intended to be "a system for copyright registration and recordation with copyright applications, copies of works, and copyright related documents transmitted in digital form over communications networks such as the Internet."[134] Currently, however, deposits have to be accomplished by mail or other physical deposit. A description of the deposit system can be found in the Copyright Office's Circular 7D.[135]

            A copyright owner may register the copyrighted work. To register a work, the owner must deposit with the Library of Congress one copy in the case of an unpublished work, a work published outside of the United States, or a contribution to a collective work, or  two copies in the case of a work published in the United States,[136] along with an application,[137] and a fee of $20 plus adjustments made by the Copyright Office under specified circumstances.[138] (The fee is currently set at $30).[139]  The Register of Copyrights is required to review the material deposited by an applicant to determine whether it constitutes copyrightable material. If it does, the Register is required to issue a certificate of registration. A certificate of registration constitutes prima facie evidence of the validity of the copyright.[140] If the Register denies an application, the Register is required to notify the applicant in writing of the reasons for the denial.[141] Registration is required before a copyright owner may bring an action for an alleged infringement of a work whose country of origin is the United States. It is not necessary that the work have been registered prior to the alleged infringement. In the case of works that are denied registration because the Register has deemed them not to be subject to copyright, the person alleging infringement is required to serve a copy of the complaint on the Register to initiate an infringement suit.[142] Furthermore, a copyright owner is not eligible to receive damages or attorney's fees for infringement commencing before the effective date of a copyright registration.[143] This ineligibility does not apply if the work is registered within three months of publication.[144]

            J. Remedies

            There are several remedies available to a copyright owner when a person has been found to have infringed the owner's rights. Any court with jurisdiction over copyright is entitled to issue an injunction it may deem reasonable to prevent or restrain infringement of copyright.[145] A court may order allegedly infringing copies and tools used to make copies impounded while an action is pending.[146] A copyright owner that has proven infringement is entitled to the owner's actual damages and the infringer's profits or, in the alternative, statutory damages of between $750 and $30,000 as the court, in its discretion, deems just. This amount may be lowered to as little as $200 if the court determinesthe infringer had no reason to know he was infringing or raised to as much as $150,000 if the infringement is found to be wilfull.[147] With the exceptions noted above, a court may also award costs and a reasonable attorneyís fee to the prevailing party.[148]

            Criminal penalties are also available for persons who wilfully infringe a a copyright either for commercial advantage[149] or by reproducing or distributing copies of one or more works within a 180 day period with a value of more than $1,000.[150] Persons who fraudulently place a copyright notice, fraudulently removes a copyright notice, or falsely represents a material fact in a copyright application is subject to a $2,500 fine.[151]

            There is a three year statute of limitation with regard to civil actions of copyright infringement and a five year statute of limitation with regard to criminal actions.[152]

            K. Digital Millenium Copyright Act of 1998

            In 1998, the Digital Millenium Copyright Act (DMCA) was passed. It contained provisions that prohibited the manufacture, sale, or use of devices or services that circumvent measures that prevent unauthorized access to copyrighted materials and the manufacture or sale of devices or services that circumvent measures that prevent unauthorized copying of copyrighted materials.[153] It also contained provisions designed to protect copyright management information[154] as well as provisions that limit the liability of online service providers.[155]

            i. Anticircumvention Provision

            Effective October 28, 2000, the DMCA prohibits making, selling, or using devices or services that are primarily used to circumvent technological measures designed to control access to copyrighted material.[156] The DMCA also prohibits making or selling devices or services that are primarily used to circumvent technological measures designed to control copying copyrighted material.[157] The actual circumvention of measures designed to control copying is not prohibited because of a concern that this would diminish the ability of the public to take advantage of fair use and other limitations on a copyright owner's exclusive rights.[158]

            Manufacturers of electronic, telecommunications, or computing equipment are not required to design products to affirmative respond to a particular technological measure except that analog VCRs must be designed to conform to the Macrovision anticopying mechanism. Rights holders are prohibited from applying Macrovision to free television and basic and extended basic tier cable broadcasts.[159]

            Governmental activities such as law enforcement and intelligence activities are not subject to the anticircumvention provisions.[160] Exemptions from the anticircumvention provisions may also be made through administrative rulemaking by the Librarian of Congress upon the recommendation of the Register of Copyright for classes of work likely to be adversely affected by virtue of the prohibitions.[161] Nonprofit libraries, archives, and educational institutions are exempted for the purpose of circumventing solely to determine whether to obtain an authorized copy of the work.[162] A person who has lawfully obtained the right to use a copy of a computer program may circumvent an access control measure for the sole purpose of identifying and analyzing elements of the program necessary to achieve interoperability with other programs to the extent the acts of identification and analysis do not otherwise constitute a violation of copyright.[163] The encryption research exception allows circumvention to identify flaws and vulnerabilities of encryption technologies if the person lawfully obtained an encrypted copy of the published work, the circumvention is necessary to conduct the encryption research, the person made a good faith attempt to obtain authorization before the circumvention, and the act does not otherwise violate copyright law.[164] When considering whether a component or part is in violation of the anticircumvention provisions, a court may consider whether the component or part has the sole purpose of preventing the access of minors to materials on the Internet.[165] The DMCA also permits circumvention where the act of circumvention has the sole effect of identifying and disabling the ability of a technological measure or the work it protects to collect or disseminate personally identifying information about a person's online activities.[166] And, finally, circumvention is allowed for the purpose of testing the security of a computer, computer system, or network with the authorization of the owner or operator of the computer, computer system, or network.[167]

            ii. Copyright Management Information

            The DMCA prohibits a person from knowingly providing or distributing copyright management information that is false with the intent to induce, enable, facilitate, or conceal infringement. Intentionally removing or altering copyright management information or distributing copyright management information knowing that the information has been removed or altered is also prohibited if the person knows or should know that the prohibited activity will induce, enable, facilitate, or conceal an infringement.[168] Copyright Management Information includes information that identifies the work, the author, the copyright owner, and terms and conditions of use. It does not include personally identifying information about the user of a work.[169]

            A general exemption is provided for law enforcement, intelligence, and other governmental activities.[170] There are also limitations on liability for broadcast stations and cable systems where there was no intent to enable, facilitate, or conceal infringement.[171]

            A willful first offense for violating the anticircumvention provisions or copyright management information provisions for commercial gain can bring a $500,000 fine and up to a five year jail sentence.[172]

            iii. Limitation on Liability for Online Service Providers

            The DMCA creates four new limitations on liability for copyright infringement by online service providers. The limitations apply to four categories of conduct by a service provider: transitory communications; system caching; storage of information on systems or networks at direction of users; and information location tools.[173] The determination of whether a service provider qualifies for one of the limitations does not have a bearing upon whether it is eligible for the others.[174] The section also provides a method whereby copyright owners can obtain a subpoena ordering a service provider to disclose the identity of a subscriber.[175]

            (a) General Qualification Requirements

            To be eligible for any of the limitations, a service provider must adopt and reasonably implement a policy of terminating the accounts of subscribers who are repeat infringers and  accommodate and not interfere with measures copyright owners use to identify or protect works where those measures meet certain specifications.[176] For the purpose of the transitory communications limitation, a service provider is an entity that transmits, routes, and provides connections for digital, online communications between points specified by the user without modification of the material's content.[177] For the other exceptions, a service provider is a provider of online services or network access or the operator of facilities therefore.[178]

            (b) Transitory Communications Limitation

            This provision limits the liability of service providers in circumstances where the provider merely acts as a data conduit, transmitting digital information from one point on a network to another at someone else's request. To qualify for this limitation, the service provider's activities must meet the following conditions:

            * The transmission must be initiated by a person other than the provider.

            *The transmission, routing, provision of connections, or copying must be carried out by an automatic technical process without selection of material by the service provider. 

            * The service provider must not determine the recipients of the material.

            * Any intermediate copies must not ordinarily be accessible to anyone other than anticipated recipients, and must not be retained for longer than reasonably necessary.

            * The material must be transmitted with no modification to its content.[179]

            (c) Limitation for System Caching

            This provision limits liability for service providers for caching copies, a practice that helps reduce bandwidth requirements for a service provider. "The limitation applies to acts of intermediate and temporary storage, when carried out through an automatic technical process for the purpose of making the material available to subscribers who subsequently request it."[180] However, the content may not be modified; the provider must comply with rules about refreshing material, replacing retained copies of material with material from the original location; when specified in accordance with a generally accepted industry standard data communication protocol, the provider may not interfere with technology designed to return "hit" information to the original site if the technology meets certain requirements; the provider may not make the material available to those who would not otherwise have access to it; and, once notified of material that was posted without the copyright owner's authorization, the provider must remove the material.[181]

            (d) Limitation for Information Residing on a System at the Direction of Users

            This provision limits the liability of a service provider for infringing material stored on a system at the direction of a user. To be eligible, a service provider must have less than a requisite amount of knowledge, must not have a financial benefit directly attributable to the infringement if the provider has the right and ability to control the infringing activity, and must expeditiously take down or block access to material upon being notified in the specified manner of an alleged infringement.[182]

            The service provider must also have filed with the Copyright Office a designation of an agent to receive notice of claimed infringement.[183]  To protect against the possibility of erroneous or fraudulent notifications of infringement, the service provider is required to notify the subscriber it has removed or disabled the material. If the subscriber provides a counternotification in the specified manner that the material should not have been removed, the service provider is required to replace or reactivate the material within 10 to 14 business days after receiving notification.[184]

            Penalties are provided for knowing material misrepresentations of notification or counternotification. The penalties provide for damages, costs, and attorneys fees.[185]

            (e) Limitation for Information Location Tools

            This provision limits liability for referring or linking users to a site that contains infringing material by using information location tools. The provision applies if the provider lacks a certain requisite knowledge that the material is infringing, the provider does not receive a direct financial benefit from the infringing activity if the provider has the right and ability to control the infringing activity, and upon receiving notification the provider must expeditiously block or remove access to the material.[186] The provisions guarding against fraudulent notification or counternotification for information residing on a system at the direction of a user applies to the information location tool limitation as well.[187]

            (f) Special Rules for Nonprofit Educational Institutions

            The DMCA makes an exception for nonprofit educational institutions that limits the effect a faculty member or graduate student employee can have on the educational institution's eligibility for one of the limitations on liability for online service providers. In the case of the transitory communications limitation and the system caching limitation, such a faculty member or graduate student is considered to be "a person other than the institution" while in the case of the other limitations, the knowledge of the faculty member or graduate student is not attributed to the educational institution.[188] This exception is available if: (1) the infringing activity does not involve providing online access to course materials required or recommended during the past three years; (2) the institution has not received more than twonotifications in the past three years of infringement by the faculty member or graduate student; and (3) the institution provides all of its users with informational materials describing and promoting compliance with copyright law.[189]

            iv. DVDCCA

            On August 17, 2000, Judge Kaplan of the Southern District of New York issued an opinion on the DMCA in the case of Universal Studios, Inc. v. Remeirdes.[190] The case involved  a system used by the Motion Picture Association of America (MPAA) to encrypt "digital versatile disks" (DVDs) known as Content Scramble System (CSS). Computer programmers designed a program that decrypted the system called DeCSS which allowed individuals to circumvent the encryption. DeCSS made it possible for individuals to copy DVDs as well as to view a DVD on a DVD player that had not been licensed by the MPAA. The most noteworthy defendant was Eric Corley. Corley is commonly known by his pseudonym Emmanuel Goldstein, a nod to the fictional underground leader in George Orwell's 1984. Corley publishes a web 'zine called 2600 along with a corresponding web site. After DeCSS was released, Corley posted the source and object code to the 2600 web site along with a list of links to other mirror sites that purported to house the DeCSS code. 

            The court analyzed the effect of Corley's actions as twofold. "First, the availability of DeCSS on the Internet effectively has compromised plaintiffs' system of copyright protection for DVDs, requiring them either to tolerate increased piracy or to expend resources to develop and implement a replacement system unless the availability of DeCSS is terminated. It is analogous to the publication of a bank vault combination in a national newspaper. Even if no one uses the combination to open the vault, its mere publication has the effect of defeating the bankís security system, forcing the bank to reprogram the lock."[191] Second, the potential of DeCSS to allow decryption, copying, and distribution over the Internet could threaten the revenue from sales of DVDs by the copyright holders as well as impeding as yet undeveloped initiatives the motion picture industry could possibly undertake to distribute motion pictures in digital form.[192]

            For posting the DeCSS code and linking to other sites that distributed the code, the defendant was accused of violating 17 U.S.C. 1201(a)(2), which  prohibits, in the court's words, "creating and making available certain technologies . . . developed or advertised to defeat technological protections against unauthorized access to a work."[193] The court reasoned that DeCSS was clearly "a means of circumventing a technological access control measure" and, therefore, that if DeCSS fell within one of the three prohibited categories (primarily designed or produced to circumvent access, limited commercially significant purpose other than access circumvention, or marketed for the purpose of circumvention) it would be prohibited.[194]  By admission of the defendants (and suggested by the name DeCSS), the purpose of DeCSS is to circumvent CSS and, therefore, it violates 17 U.S.C. 1201(a)(2)(A).

            The court, therefore, found it immaterial that DeCSS was arguably the only way to develop a DVD player that ran on the Linux operating system. The copyright law was not concerned with whether its effect was to prohibit a viable DVD player for Linux. The court found that the interoperability exception to the anticircumvention provisions was unavailable because the defendants "did not post DeCSS 'solely' to achieve interoperability with Linux or anything else."[195] The court found defendant did not fall under the encryption exception because there was no good faith attempt to obtain authorization, among other things, and did not fall under the security testing exception for similar reasons.[196]

            The court also found that no fair use exception was available to the defendants because there is no fair use exception to the access anticircumvention provisions, particularly the provisions prohibiting trafficking in anticircumvention products.[197] Fair use applies to exceptions to the exclusive rights of authors. The anticircumvention prohibition is, at least as the statute is drafted, something distinct from the exclusive rights.

            The court found a clear violation, not only in the actual code posted to the 2600 site, but also in the links that allowed for the "automatic download" of DeCSS,[198] making the potentially far reaching statement that in such cases "[d]efendants are engaged in the functional equivalent of transferring the DeCSS code to the user themselves."[199] The court found links to web pages that display nothing more than the DeCSS and no other content a slightly tougher question but still a scenario in which the defendant is liable.[200] The court did not, however, believe liability would be found if the defendants were merely linking to a  page in which many things other than DeCSS were posted.[201]

            The court considered the First Amendment implications of the anti-trafficking provisions of the DMCA. "DeCSS, like any other computer program, is a series of instructions that causes a computer to perform a particular sequence of tasks which, in the aggregate, decrypt CSS-protected files. Thus, it has a distinctly functional, non-speech aspect in addition to reflecting the thoughts of the programmers. It enables anyone who receives it and who has a modicum of computer skills to circumvent plaintiffs' access control system."[202] Due to the functional nature of DeCSS, the court found that the DMCA, which the court asserts is content neutral, was an appropriate exercise of  power in that it was meant to accomplish a goal Congress deemed important, that of protecting copyrighted materials from anticircumvention technologies.[203] However, the discussion of the court on the subject suggests that the First Amendment should not be allowed to apply because if the First Amendment were allowed to trump the anti-trafficking portions of the DMCA, it would be impossible as a practical matter to protect copyright owners' rights in works that find their way online. To make its point, the court compares circumvention technology to a disease noting the exception that in this case, the diseased individuals do not suffer from their sickness and are not, therefore, driven to seek treatment.[204] The court also found that links are in large part functional as opposed to expressive and, therefore, the First Amendment does not demand their regulation be subjected to heightened scrutiny. With regard to the DMCA, the courtenunciated the following rule with regard to the anticircumvention provisions' regulation of links: "[T]here may be no injunction against, nor liability for, linking to a site containing circumvention technology, the offering of which is unlawful under the DMCA, absent clear and convincing evidence that those responsible for the link (a) know at the relevant time that the offending material is on the linked-to site, (b) know that it is circumvention technology that may not lawfully be offered, and (c) create or maintain the link for the purpose of disseminating that technology."[205]

            The court, therefore, held that the defendants had violated the DMCA and that the DMCA did not violate the First Amendment.

            v. Napster

            The Napster case[206] involved Napster, a company that provided software that allows peer-to-peer file sharing, meaning one personal computer user has access to the files residing on the computer of another user. Napster also provides a centralized listing service that allows a user to determine which files another user has made accessible. Napster is used primarily to exchange music in the MP3 format. The Recording Industry Association of America (RIAA) filed suit against Napster asserting that it was contributorily and vicariously liable for copyright infringement because its product facilitated copyright infringement on a wide scale.

            Among its defenses, Napster asserted that its users were not, for the most part, infringing due to the American Home Recording Act which allows for noncommercial copying (discussed above) and also asserted that it was an online service provider that fell into the transitory communications or possibly the information location tool limitation on liability of the DMCA.

            The RIAA contested these assertions arguing that Napster was not an online service provider nor did it fall into one of the safe harbors.

            The language of subsection 512(a) makes the safe harbor applicable, as a threshold matter, to service providers "transmitting, routing or providing connections for, material through a system or network controlled or operated by or for the service provider . . . ."[207] Because users' files do not pass through Napster's system or network, the court held that the transitory communications safe harbor was not available to Napster.[208] Even if the court had deemed the safe harbor available to Napster, Napster's argument would have failed because Napster failed to adopt, reasonably implement, and inform subscribers of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers as required for any safe harbor to apply  under 17 U.S.C. 512(i).[209]