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Surfers and
Beach Owners: The Application of Copyright Law to the Internet
III. Previous State of the Law
The Copyright Act
Copyright is a form of protection provided by Title
17 of the U.S. Code ("Copyright Act"). 
The Copyright Act covers "original works of authorship" including:
literary works; dramatic works; musical works; pantomime and choreographic
works; pictorial, graphic and sculptural works; motion picture and other
audiovisual works; sound recordings; and architectural works.
The scope of the statute's protection extends to both published and unpublished
works.
Copyright law does not protect works that have not been fixed in a tangible
form of expression. It also does not protect ideas and works consisting
entirely of information.
Exclusive rights in copyrighted works
Section 106
of the Copyright Act enumerates the exclusive rights given to a copyright
owner: (1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work; (3) to
distribute copies or phonorecords of the copyrighted work; (4) to publicly
perform certain types of copyrighted work; (5) to publicly display certain
types of copyrighted work; and (6) in the case of sound recordings, to
perform the copyrighted work publicly by means of a digital audio transmission. 
Limitations on exclusive rights
The exclusive rights enumerated in §
106 are not absolute. One of the major limitations on them, available
as a defense in copyright infringement litigation is "fair use." The fair use of a copyrighted
work, including such use by reproduction in copies or phonorecords or
by any other means specified, 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 of a work in a particular case is a fair
use, courts consider four factors: (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.
Duration of copyright
Copyright exists in a work from the time it is created in fixed form. Thus, copyright is secured
automatically upon creation. Publication or notice is no longer required
to establish entitlement.
The copyright in a work becomes the property of the author, and only the
author or those deriving their rights through the author can rightfully
claim copyright.
Works originally created on or after January 1, 1978 have a copyright
term extending 70 years after the author's death.
For works originally created and published or registered before January
1, 1978, the copyright endures for a first term of 28 years from the date
it was secured. During
the last year of the first term, the copyright is eligible for a renewal
term of 47 years. In 1998 this renewal term was extended by an additional
20 years, bring the full term of renewal for pre-1978 copyrights to95
years.
Registration of copyright
While registration of copyright is not required, it does provide prima
facie evidence of the validity of the copyright. Registration is necessary
(for works of U.S. origin) before an infringement suit can be brought.
Copyright infringement
To sustain a claim of copyright infringement, a plaintiff must demonstrate
first that a copyrighted work was actually copied, and second, that the
copying amounted to an improper or unlawful appropriation. Infringement can be direct,
contributory, or vicarious. A defendant is liable for contributory infringement
if he or she, with "knowledge of the infringing activity, induces,
causes or materially contributes to the infringing conduct of another." A
defendant is liable for vicarious liability if he or she "has the
right and ability to supervise the infringing activity and also has a
direct financial interest in such activities."
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