Academic journal article Federal Communications Law Journal

The Copyright Dilemma Involving Online Service Providers: Problem Solved ... for Now

Academic journal article Federal Communications Law Journal

The Copyright Dilemma Involving Online Service Providers: Problem Solved ... for Now

Article excerpt

I. INTRODUCTION

Much has changed in the world of communications in the last several years. A quarter century ago, the suggestion of watching year-old motion pictures at home was almost laughable. The concept of a computer that could be manufactured to fit within a room was still taking shape. Society would not see personal computers become truly prominent until the late 1980s. The notion of an Internet or World Wide Web-sized database was unthinkable.

Times have indeed changed. Year-old movies are watched on videotape, and some computers are manufactured to fit in the palm of a hand. Gone are libraries' card catalogs, as online computer terminals have replaced them. Legal research can actually be done at home. Like it or not, the Information Age is here, and its technology is advancing at a lightning-quick rate.

With the prominence and exponential growth of the World Wide Web over the last six years(1) and the increasing ease of uploading and downloading text, graphics, and software, copyright law had found itself behind the technological times.(2) Should a company that provides Internet access (online service provider or OSP) be held directly liable for the copyright infringing acts of a customer? How would an answer to that question be altered if such a company had no idea that infringing acts were taking place?

In mid-July 1997, a bill was introduced by Representative Howard Coble of North Carolina to combat this problem.(3) Over the next year, this bill was hotly debated in subcommittee hearings, with OSPs on one side and copyright holders on the other. On October 28, 1998, the Digital Millennium Copyright Act (DMCA) was enacted into law.(4) Within it lies the "Online Copyright Infringement Liability Limitation" (Title II of the DMCA(5)), the end result of the evolution of the Coble Bill. Title II is not determinant of liability, rather it provides a defense that can be applied "if the provider is found to be liable under existing principles of law."(6) As the title of the new statute indicates (referring, albeit fifteen months early, to the "Millennium"), it is exactly what the copyright law needed to maintain its relevance in today's Internet world.

This Note begins (Part II) with a basic introduction to the tort of copyright infringement generally and as applied to OSPs prior to the passage of the DMCA. This Part concludes with an analysis of whether the copyright law, as it stood, presented a problem at all. In Part III, this Note turns to Congress's solution to the "problem"--the Digital Millennium Copyright Act. It analyzes the evolution of the DMCA from the original Coble Bill through the text of the newly enacted law. It describes the concerns on both sides of the debate and illustrates how Congress kept both viewpoints in mind when composing the final draft of the DMCA. Finally, this Note turns to Title II of the DMCA, discussing specific provisions of the new law. This Note concludes that the DMCA is not "a solution in search of a problem" at all.(7) Rather, it is a necessary amendment to the copyright law, bringing it up to date as the year 2000 draws ever closer.(8)

II. THE TORT OF COPYRIGHT INFRINGEMENT PRE-DMCA

A. Copyright Infringement Generally

Copyright infringement, briefly defined, is a violation of at least one of the six exclusive rights set out in section 106 of the Copyright Act.(9) Section 501(a) provides that should any of these rights be violated (notwithstanding defenses provided in sections 106 through 118(10)), the violating person is deemed "an infringer of the copyright or right of the author, as the case may be."(11) The policy behind the copyright law is to provide incentive to authors to create and disseminate works to the public without fear that those works will be copied and used to the credit and financial gain of someone else.

Courts divide this relatively broad definition into three categories: direct infringement, vicarious infringement, and contributory infringement. …

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