liibulletin-ny

Special project: Internet Law   Copyright Law     • Introduction     • Issues & short answers     • Previous state of the law     • Discussion     • Future of the Law     • Authorities Cited

Surfers and Beach Owners: The Application of Copyright Law to the Internet V. Future of the Law Possible infringement liability defenses by the Internet user The DMCA attempts to provide legal tools for copyright holders to protect their property while still promoting the distribution of digital works and electronic commerce. The sparse case law to date interpreting its provisions tends to favor the owner of copyright, often holding ISPs liable for secondary infringement liability. An underlying discussion about whether such a pro-copyright holder bias hinders the Internet user is ongoing. The Internet is a major source of information, and has become a mainstream tool through which large amounts of information is shared, retrieved and delivered. While traditional copyright law was designed to deal with such activities as the reproduction, distribution and display of tangible copies, it is evident that the nature of the Internet allows for the flow of copyrighted information without creating "copies" in the conventional sense. However, if courts categorize interim and received transmission as "copies" within the meaning of copyright law, a variety of activities undertaken by Internet users - even such fundamental activities such as browsing, linking, framing, file transfer, and file sharing - might fall within the control of the copyright holder. Despite the safe harbors that have been enacted by Congress as part of the DMCA, the fair use defense has yet to be fully recognized as a defense against potential liability on behalf of Internet users. The court in Religious Tech. Ctr v. Netcom On-line Communication Servs. Inc., 907 F. Supp. 1361 (N.D. Cal. 1995) wrote in dictum that a court could likely find a fair use defense applying to end users browsing the web. However, potential infringement liability remains a concern. A line of cases dealing with peer-to-peer file sharing systems has developed post-Napster. They are likely to prove important in mapping out the fair use defense in this setting. The file sharing systems at issue in these cases allow members to share applications, text files, and images as part of an on-line community service and often focus on the community bulletin aspect of the website, rather than the file sharing aspect. So what about the surfers and beach owners? Inevitably this important new medium will require adaptation and adjustment of existing copyright law. Surfers and beach establishments will continue their struggle against beach property owners who attempt to curtail their activities. next

Prepared by Yayoi Shionoiri ('03).