Copyrights in Cyberspace: A Roundup of Recent Cases
Rustad, Michael L., Bodi, Kip, Gag, Jesse, Lindsay, Jack, McVay, Stephanie, Perrone, Brooke, Rice, Nathaniel, The Journal of High Technology Law
Cite as 12 J. High Tech. L. 106 (2011)
Decades from now, we will remember 2010 for the BP oil spill and the year 2011 because of a slow recovery from the steepest economic downturn since the Great Depression of the 1930s. (1) Nevertheless, it is reasonably certain that intellectual property (IP) lawyers will still remember some of the remarkable copyright cases included in this roundup of cyberspace-related cases. For the past two decades, copyright law has been accommodating to the digital age. While the World Wide Web did not become part of mainstream American culture until the mid-1990s, the widespread use of the Internet dramatically changed the course of copyright law.
The World Wide Web continues to enable copyright infringement on a scale unfathomable in the 1980s and 1990s. In October 2011, the U.S. Copyright Office released its strategic plan that prioritized its activities for the next two years. One Copyright Office priority is the "feasibility and facilitation of the mass digitization of books, outside the context of Google's private effort." (2) Google Book Search already enables users around the world to access millions of books from the world's finest libraries at the click of a mouse. (3) Among the U.S. Copyright Office's call for legislative action is to find new ways to deter 'rogue websites' that enable widespread copyright infringement of copyrighted works, "particularly motion pictures, television programs, books, and software." (4) Another legislative priority is to ramp up "criminal penalties for unauthorized online streaming of content." (5) The U.S. Copyright Office also calls for "amending federal law to give librarians and archivists more support in their efforts to deal with digital content." (6) The priority of restraining widespread infringement on the Internet is a top priority for copyright owners around the world. This Article is a roundup of how Internet-related cases decided in the past two years continue to reshape the contours of copyright law.
II. A Roundup of Internet-Related Copyright Developments
In 1990, a court for the first time mentioned the word, "Internet" in a judicial opinion in United States v. Morris, (7) where the Second Circuit upheld a graduate student's conviction under the Computer Fraud and Abuse Act for releasing a worm that caused hundreds of educational and military computers to crash. (8) The first copyright infringement cases with implications for the Internet were decided shortly before the World Wide Web became part of the common currency. (9) In Atari Games v. Nintendo, (10) the court found that a computer program that locked out unauthorized cartridges out of a Nintendo game system contained protectable forms of expression. (11) In Sega Enterprises Ltd. v. Maphia, (12) a California federal court found an electronic bulletin board liable where subscribers downloaded copyrighted computer games without permission of the copyright owner. (13) The court issued an injunction ordering the operator of the bulletin board to stop enabling subscribers to copy Sega's game. (14) This decision had great implications for the Internet because it created a swirl of uncertainty about whether administrative Internet activities such as caching or viewing content constituted copyright infringement.
The year 1995 marked the first time a court considered whether an Internet Service Provider (ISP) could be found secondarily liable for permitting infringing material to be posted on its website. (15) The bellwether case regarding Internet-related copyright infringement was decided a decade later. In Metro-Goldwin-Mayer Studios, Inc. v. Grokster, Ltd., (16) the U.S. Supreme Court unanimously held that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. …