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Surfers and Beach Owners: The Application of Copyright Law to the
Internet
II. Issues and Short Answers
A. The DMCA
1. Issue: What is
the impact of the DMCA on copyright's application to Internet activity?
Short Answer: The three main aspects of the DMCA significant
to an understanding of its current and potential application to the
regulation of Internet activity are: (1) anti-circumvention legislation;
(2) anti-trafficking provisions; and (3) limitations on online copyright
infringement liability.
Anti-circumvention legislation prohibits evasion of technological measures
used to protect copyrighted works and tampering with copyright management
information.
The anti-trafficking provisions ban manufacture of, or trafficking in,
any technology that circumvents access control or copy control measures. The Online Copyright
Infringement Liability Limitation Act ("OCILLA") provides
a safe harbor which significantly limits the liability of ISPs for copyright
infringement.
B. Judicial Application of Copyright Law to Internet Activity
1.Issue: When an Internet
user employs a segment of text or a graphical item to serve as a cross-reference
between his document and a document protected by copyright, does the action
constitute copyright infringement?
Short Answer: Linking occurs when a segment of text or a graphical
item serves as a cross-reference between parts of a hypertext document
or between files or hypertext documents.
A link that points to a site containing infringing material may cause
further infringing reproductions, public performances, public distributions
and public displays 
to occur when the Internet user reaches that site and the infringing
material is downloaded and/or performed and displayed to the user following
the link. Even if the material on the destination site is not infringing,
the reproductions, distributions, and displays that occur may not be
authorized, given that the link is often established without explicit
permission from the owner of the material.
Case law suggests the possibility that permission from copyright holders
may in some cases be required for linking. However, linking itself cannot
constitute direct infringement if the server of the linking website
does not copy or otherwise process the content of the linked-to site.
2. Issue: When an Internet
user pulls in an image or text from another web page into the current
document for display does the action constitute copyright infringement?
Short Answer: Framing allows website creators to incorporate
content on remote sites wholesale into their own offerings, incorporating
that content into their own web pages in the user's browserwithout ever
terminating the connection to the original pages.
Framing may be viewed as causing an infringement on the right of reproduction,
display or performance, or may constitute the creation of an unauthorized
derivative work.
Courts have held that a copyright infringement has occurred in cases
that involve framing, on a variety of grounds.
3. Issue: When an Internet
user shares digital music files over the Internet by participating in
a file sharing system, does the sharing constitute copyright infringement
for the owner of the file sharing system?
Short Answer: Many suits have arisen recently regarding the
liability of websites that index, post links to, or actually serve,
music content. Publishing companies and their associations have filed
a variety of suits against alleged infringers for unauthorized copying
of commercial compact discs.
The best-known of these suits is A&M
Records, Inc. v. Napster, Inc.,
239 F.3d 1004 (9th Cir. 2001). Napster is a file sharing system
which allowed the transmission of MP3 files
between and among users. While discussing the relevant provisions of
the DMCA and its safe harbors for ISPs, the court held that Napster
could be liable for contributory and vicarious infringement.
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