JTLP Fall 1996 Edition

The Great Internet Panic:
How Digitization is Deforming Copyright Law
by Anne K. Fujita[1]



I. Introduction

{1} The new technology of digitization in our present "Information Age" has upset the delicate balance created and maintained by copyright law between the rights of authors, users, and the industries that collect the money. Which way the balance has tipped, what should be done about it, and how much current copyright law needs altering, are questions that receive different answers depending on to whom one talks. Some are afraid that authors will no longer be compensated for their creative efforts and will consequently refuse to create. [2] Others worry that users will lose their right to read. [3] Another concern is the moral rights of authors in an environment where works can be transformed, and some might say mutilated, with a few keystrokes. The only thing everyone seems to agree on is that our world is changing due to technology and that current copyright law as it stands cannot keep up.

{2} Amid all of this discussion of various people's rights, one distinction is often blurred. This is the distinction between authors, the people who write and create the works, and the various industries that get the works to the public: book publishers, the recording industry, film and television producers, software companies, etc., refered to in this paper collectively as publishers. It is true that on occasion these two functions are performed by the same person, as when a writer publishes with a vanity press, or when a music group makes and sell its own recording. With more advanced technology, the merging of functions becomes much easier and presumably more common. However, the reality is that in today's corporate world, the publishing, and more importantly, the money-collecting functions, are most often performed by large multi-national corporations, and these entities will probably continue to do so as we move further into the Information Age. When one looks at who is making the arguments, and who has a voice in defining the new copyright law, this domination by large multi-national corporations becomes even more apparent. [4]

{3} One of the things that perpetuates the blurring of the distinction between authors and publishers is the emphasis on economics. When economics is the issue, both are on the same side against users. Authors and publishers want greater protection for intellectual property so they can collect more money for the same product; users want less protection so they will have greater access to, and use of, the products for less money. It is true that authors and publishers have their own disputes when it comes to dividing up the money, but they are united against the user on this issue. Focusing on the moral rights of authors brings out the distinction between authors and publishers. On this issue, authors often stand alone against both users and publishers. Users may want to "borrow" an author's work or a part of it for their own, use it as an example, or as an element in a larger work. Users may want to alter the work in some way, put it in a setting that gives it a different meaning, or use it to make a point that may be repugnant to the author. Publishers are often in a position in which they want to alter an author's work, usually to make it more marketable to the public at large. A European source noted that authors and publishers are on opposite sides of the moral rights issue with the representatives of authors and performers advocating strong moral rights "while the representatives of publishers and the press, producers, broadcasters and employers were hostile." [5] Thus, there are really three distinct parties in this discussion, each with different, sometimes competing, sometimes similar interests. In this Information Age, the needs of all three parties must be considered in re-fashioning a balance of rights between these three groups.

{4} In this paper, the balance between the rights of authors, publishers and users will be explored to see how the technology affects their particular interests, and how various laws tip the balance of their rights in different directions. This paper also includes an analysis of two recent proposals for adapting copyright law to the new technology. One is a report released in September 1995 by the Working Group on Intellectual Property Rights, a subcommittee of the Clinton Administration's Information Infrastructure Task Force, titled "Intellectual Property and the National Information Infrastructure," but more commonly referred to as the "White Paper." [6] The other is the "Green Paper on Copyright and Related Rights in the Information Society," a report issued by the Commission of the European Communities, a governing body of the European Union, in July 1995. [7] The scope of this paper includes traditional works of authorship such as books, articles, ect. However, copyright law covers many other forms of media including music, film, photography, sculpture, and computer software, and with developments in technology, multi-media works combining many of these forms, as well as things not yet imagined, will be included. [8] Insofar as copyright issues applying to these areas are similar to those applied to text, the discussion will include them.

{5} However, this analysis will not address the many issues specific to certain mediums, such as music, software, or databases. Of primary concern is the flow of information between creators and users. Although the ease of information transfer on such programs such as the Internet has made copyright an international issue, generating a great amount of concern over creating an international standard, the focus will be on the laws of the United States regarding specific legal proposals, both to allow for more specific suggestions, and because it is the legal framework within which this author was trained. Part II of this paper examines the current balance of rights among authors, publishers, and users under U.S. law and traditional technology. Part III looks at how the new technology affects the balance. Part IV evaluates the proposals made by the White and Green Papers and examine their probable effect. Part V explores what the balance should be. Part VI suggests what laws are needed to achieve this.

II. What The Balance Is Now

{6} First it may be helpful to examine the current balance between the rights of authors, users, and publishers under the U.S. copyright statute [9] and conventional technology. This is not to claim that the current balance as described in the succeeding pages is in any way ideal. [10] However, it is a starting place from which we can assess the effects of the new technology.

{7} The U.S. Copyright Act provides substantial economic rights to copyright holders -- initially authors, and once sold or licensed, the various players in the publishing industry. Section 106 of the Copyright Act lists the exclusive rights granted to copyright holders. [11] These rights include the right to reproduce the copyrighted work in copies or phonorecords, [12] the right to prepare derivative works based upon the copyrighted work, [13] the right to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending, [14] the right to perform the copyrighted work publicly [15] and the right to display the copyrighted work publicly. [16] In general, for those works created after January 1, 1978, these rights last for the life of the author plus fifty years. [17] If the copyright owner's exclusive rights are infringed, [18] possible remedies include injunction, [19] impounding and disposition of infringing articles,[20] actual damages plus profits of the infringer or statutory damages, [21] and costs and attorney's fees. [22] These remedies are available even if there was no intent on the part of the infringer as copyright violation is strict liability. [23] If the infringement is willful and for the purposes of commercial advantage or private financial gain, criminal sanctions may be imposed. [24] This brief summary of several sections of the Copyright Act indicates the strength of a copyright holder's economic rights.

{8} These rights are only limited by a few exceptions designed to give users some rights. As Jessica Litman points out, there are very few provisions of the Copyright Act that address users' concerns. The preferred legal interpretation is that copyright owners' rights are absolute, and users are not allowed to invade them without permission unless their behavior falls within a statutory exception. [25] The White Paper states, "Users are not granted affirmative 'rights' under the Copyright Act; rather, copyright owners' rights are limited by exempting certain uses from liability." [26] Whatever the language, these exceptions are part of the law, and they do allow users to do certain things with copyrighted material without an owner's permission, thus limiting owners' rights in favor of users.

{9} The first, and potentially broadest of these exceptions is the fair use exception. [27] It allows copying without permission for "purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." [28] The statute lists four factors in determining whether a use is fair. They are:

  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. [29]

{10} In both the statutory language and the courts' interpretation of it, the emphasis on the economic rights of copyright owners is clear. The first factor explicitly mentions the commercial nature of the use, and in Sony Corp. v. Universal City Studios, Inc., [30] the Supreme Court declared that all commercial uses are to be presumed unfair. [31] The fourth factor which directly addresses the economic impact of the copying is often considered to be the most significant of the four. [32] In two cases involving copying and the new technology, namely, the posting of copyrighted material on bulletin board services on the Internet, the court in each case placed great weight on the economic impact of the copying to find the use infringing. In Playboy Enterprises Inc. v. Frena, the court said the issue was whether widespread incidents of conduct like the defendant's "would result in a substantially adverse impact of the potential market for or value of [Playboy's copyrighted photographs]." [33] In Sega Enterprises Ltd. v. MAPHIA, the court found that the fourth factor weighed "heavily" against a finding of fair use, stating, "should the unauthorized copying of Sega's video games by Defendants and others become widespread, there would be a substantial and immeasurable adverse effect on the market for Sega's copyrighted video game programs." [34] This illustrates that currently, the balance between authors, users, and industry is framed in economic terms, with significant priority given to copyright holders' economic rights.

{11} The second most important "user right" mentioned in the Copyright Act is the exception known as the first sale doctrine. [35] Under this doctrine, once a person has lawfully obtained a copy of a copyrighted work, she may dispose of possession of it in any way she likes without the copyright owner's permission. This allows people to lend books to their friends, give them as gifts, sell them to a used book store, etc. It is crucial for libraries, because it allows them to loan the same book to hundreds of people free of charge because they themselves are not charged. This doctrine greatly facilitates the spread of information and is very important to users, especially low and middle income users.

{12} There are further exceptions to copyright holders' exclusive rights for use by libraries and for educational uses. The library exemption allows libraries to make a single copy of a work for specified purposes including archival copies, replacement copies, articles and short excerpts for users, out-of-print works for scholarly purposes, news programs, and interlibrary loan. [36] This exemption makes it easier for libraries to do their work and is aimed at a very select group of users, although we all benefit from the availability of libraries. The educational use exemptions allow educators to "perform or display" copyrighted works in connection with teaching activities by a non-profit educational institution. [37] Other performances and displays are also exempt under this section, including those used in religious services, at non-profit veterans' organizations, and transmissions to disabled persons, all subject to various restrictions and limitations. [38] The Copyright Act also provides for compulsory licenses to cable companies and satellite transmitters. [39] Although numerous, these various specialized exemptions are very narrow and only apply to a limited number of people. From this brief summary, although not expressed in the language of rights, users do get some consideration in the current balance between authors, users and publishers.

{13} One area that generates little concern under U.S. law is the moral rights of authors. It was only in 1990 that the Copyright Act for the first time explicitly recognized any moral rights of authors. [40] This came in the form of the Visual Artists Rights Act of 1990 (VARA), [41] which gives artists certain moral rights in a visual work of art. It should be noted that the Act is very limited, because a visual work of art is defined as a "painting, drawing, print, or sculpture existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author," or a photograph produced for exhibition purposes only, and similarly limited in quantity. [42]

{14} There are a few other sections of the Copyright Act that could be construed to provide some protection for moral rights of authors, although this was not their primary intent. The broadest of these is section 106(2); the exclusive right to prepare derivative works. [43] Since the alteration of an author's work in such a way that it violates the author's right of integrity can probably be seen as the creation of a derivative work, possession of an exclusive right to prepare derivative works allows the author to prevent offensive derivative works from being created. Another is section 115(a)(2), a compulsory license section that grants the privilege of making a musical arrangement of a copyrighted musical work under certain conditions. It has a clause stating, "the arrangement shall not change the basic melody or fundamental character of the work." [44] Although this is an explicit nod to moral rights, like VARA, its application is very limited. These are the two sections cited by the Final Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention. [45] There are a few other sections that have been mentioned in the literature as possibly protecting moral rights, but any contribution they make is negligible. [46]

{15} The section of the federal trademark statute, the Lanham Act, that forbids false designations of origins of goods and false descriptions or representation of goods is also a possible source of protection for authors moral rights. [47] It was used for this purpose in Gilliam v. American Broadcasting Co., in which the Second Circuit found that the airing of a drastically cut version of Monty Python shows violated the integrity of the work. [48] Other provisions of U.S. law cited as protecting authors' moral rights include the implied covenants of fair dealing and good faith in contract law, the tort theories of unfair competition, defamation, and the rights of privacy and publicity. [49] However, this is not the conventional use of each of these theories. To prevail, one probably needs a sympathetic court.

{16} On the international scene, protection of authors' moral rights comes in the form of Article 6bis of the Berne Convention, which protects the moral rights of paternity (attribution) and integrity. It states:

(1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation. [50]

The United States became a party to this treaty in 1989. However, not everyone agrees that the U.S. is in full compliance with Article 6bis. This section is one of the main reasons for the U.S. delay in joining the Berne Convention. When the U.S. finally did join, it was under the theory that the U.S. Copyright Act should be amended as little as possible. [51] Much effort was made to show that we were already in compliance with Article 6bis, so no further changes were needed. The Final Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention concluded:

Given the substantial protection now available for the real equivalent of moral rights under statutory and common law in the U.S., the lack of uniformity in protection of other Berne nations, the absence of moral rights provisions in some of their copyright laws, and the reservation of control over remedies to each Berne country, the protection of moral rights in the United States is compatible with the Berne Convention. [52]

Although we may be technically in compliance with Article 6bis, this statement illustrates the lack of commitment to moral rights in the United States.

{17} One of the reasons this has not been a critical problem is that traditional technology provides a great deal of built-in protection for authors' moral rights. With the current technology, it is very difficult for an ordinary user, a member of the public, to violate an author's moral rights on a widespread basis. To violate an author's right of paternity in a book by disguising its true author with any degree of credibility, or to alter the text in any way by adding or deleting words or sentences, thus violating an author's right of integrity, one would have to reprint the book. Crossing out an author's name with a crayon is not going to be very convincing, and one can only do this to a few copies, so the damage will be very limited. The same applies to a video or cassette. The expense, time, and effort required to alter a work with traditional technology discourages most would be violators. Even if the violators are willing to go to the trouble, it is still difficult to disseminate the mutilated work to the public at large. This makes the initial effort of mutilation even less attractive, and prevents most mutilated works from reaching very many people. The only type of work to which this analysis does not apply is single or limited editions of works of visual art; presumably this is why Congress felt it necessary to enact VARA, but nothing that applied to mass produced or literary works. Given the difficulty to the average user of first mutilating, and then distributing, an author's work with traditional technology, the risk of it occurring is very small.

{18} Currently, the greatest danger to authors' moral rights comes from the publishing industry. This is the level at which it is easiest, and therefore most likely, to alter an author's work. However, since the author deals directly with her prospective publisher, she may retain some control over her work through a contract. It is true that usually the publisher has the greater bargaining power and the author will probably have to take whatever is dictated to her. This also occurs when an author's moral rights are protected by statute. Most statutes provide that an author can waive her moral rights, [53] putting the issue back into the realm of individual contracts. This is supported by the Green Paper's observation that even in countries that recognize moral rights, they are rarely invoked to prevent the exploitation of a work. It claimed:

The reason was that in areas where the point was a sensitive one the parties came to an arrangement which avoided such situations. In other areas, such as the cinema, the principal director had to reach agreement with the producer before the film was made, which avoided most of the problems that might otherwise have arisen at a later stage. [54]

This indicates that there were no moral rights' problems between authors and individual users, [55] which supports the theory that the traditional technology made conflicts very unlikely.

III. How The New Technology Will Affect The Balance

{19} There is no doubt that the technology of digitization will have a profound effect on copyright law. John Perry Barlow claims that, as a result of this new technology, "[e]verything we think we know about intellectual property is wrong." [56] Whether or not he is right about this, everyone does agree that digitization has shifted the balance of power among authors, users, and the publishing industry.

{20} Digitization allows copying to be done quickly, cheaply, and easily, with no loss in quality, and then distributed to (potentially) millions of people in a few seconds. Because of the new Information Superhighway, it can be done in the comfort of one's own home with just a personal computer and a modem. This gives users a tremendous advantage over the other parties by increasing the amount of information available while decreasing the cost. This has copyright holders worried, because they do not know how to harness the value of this information. When information is no longer tied to a tangible good that can be transferred from one person to another (like a book, magazine, cassette, or video), it becomes much more difficult to control its flow. As Barlow explains, with traditional technology, "the value was in the conveyance and not in the thought conveyed," or more metaphorically, "the bottle was protected, not the wine." [57] Copyright holders have always been worried about new copying technology. Photocopy machines, cassette recorders, and video recorders have all been thought to be a threat to copyright. [58] However, these methods of copying take time, cost money (minimally the raw materials: paper, blank cassettes and videos), and usually the quality of the copy is at least somewhat inferior to the original. With digitization, none of these disincentives to copy exists, which makes copyright holders afraid that users will decide to "steal" the information rather than pay for it. This creates a serious problem for those in the business of collecting money for copyrighted materials, namely the publishing industry. This problem eventually will be passed on to the authors, who will still wish to be paid for their work. So the user appears to win out on this one.

{21} Another aspect of digitization that benefits the user over the copyright holder is the ease with which works may be altered. Digitization allows a user to easily remove an author's name from a work, substituting his own name, another's, or none at all. It allows a user to alter text, insert words, delete paragraphs, etc. Other mediums, such as pictures, music and motion pictures can also be modified. This makes it much easier for users to create their "own" works, using other people's creations as a jumping off point. It is debatable whether these new works are truly creative or valuable, but there are many who would argue that they are. However, they are also very likely to violate both the copyright holder's right to prepare derivative works and the author's moral right of integrity. The potential for harm to an author's moral rights with this new technology is tremendous. [59] No longer will technical difficulties discourage people from appropriating and "improving," or even destroying another person's work. Once the changes have been made, the mutilated work can be sent out to millions of people with a few key strokes, "published" for the world to see.

{22} The Green Paper concurs in this assessment, claiming "that at the present time [with traditional technology] moral rights did not pose any real problems as far as the Internal Market was concerned," but:

With the arrival of the information society the question of moral rights is becoming more urgent than it was. Digital technology is making it easier to modify works. The Commission believes there is a need for an examination of the question whether the present lack of harmonization will continue to be acceptable in the new digital environment. [60]

{23} The group that is most hurt by this aspect of the new technology is authors. The publishing industry is harmed in a limited way, since there is some economic benefit to the right to prepare derivative works, and an author's reputation is of some concern to his publisher. However, the real danger is to the authors themselves, a group that is very poorly represented in most copyright debates when it comes to moral rights. In any situation, any group opposed to the publishers on a given issue will be poorly represented because they are poorly funded.

{24} Not all aspects of the new technology favor users. While information becomes cheaper and more readily available, it also becomes easier to track, posing a serious threat to users' privacy. The Green Paper sees digitization as an opportunity to tighten things up through monitoring. It states:

The development and spread of analogue systems of reproduction had made it impossible to control copying, and especially private copying, but the digitization of works and other protected matter means that strict control of reproduction can now be envisaged once again. [61]

{25} The theory is that with the advent of photocopy machines, cassette and video recorders, private copying [62] became practical, widespread, and untraceable, causing a certain amount of leakage in the copyright system. Because there is no way to determine who is doing the copying on a self-serve photocopy machine or a private video recorder, there is no way to stop people from doing it. [63] This leakage was something the publishing industry had to live with. [64] With digitization, this problem may be eliminated. With the appropriate technology, one can determine every time a copy of a work is made and who made it. The Green Paper suggests this information could be linked to the system used for charging for network access to facilitate revenue collection. [65] This would ensure that nothing slipped through. The White Paper suggests that this technology in combination with licensing could lead to "reduced application and scope of the fair use doctrine." [66] Not only would this shift the economic balance back to the copyright holders, and more specifically, the publishing industry, it would be a tremendous invasion of user privacy, reminiscent of George Orwell's 1984. The money-collectors would know what every user was reading and for how long. The potential for the new technology of digitization is very great, but which groups it favors is not yet clear. This will be determined to a large extent by copyright law.

IV. Two Proposals To Amend The Copyright Laws and How They Will Affect The Balance: The White and Green Papers

{26} The original intent of this article was to contrast the recommendations of the White Paper with those of the Green Paper. However, after having studied both documents leads to the conclusion that the difference between the two lies in their form of presentation (the White Paper makes concrete recommendations, the Green Paper merely raises issues [67]), and the motives behind the recommendations (the White Paper seems driven by a hope to use intellectual property to ameliorate the U.S. trade deficit, while the Green Paper is concerned with the free movement of goods and services within the European Union). The recommendations are, however, essentially and depressingly, the same.

{27} The first thing to note is that both the White and Green Papers are economically motivated, so their bias is for the publishing industry. The White Paper is concerned with realizing the "full potential" of the Internet. [68] This can be translated as "economic potential." Although it does not say so explicitly, it is hinted at in the following declaration, "unless the framework for legitimate commerce is preserved and adequate protection for copyrighted works is ensured, the vast communications network will not reach its full potential." [69] It has been suggested that the government's recent interest in copyright law stems from concern over the national trade deficit. Since we are moving from a manufacturing economy to an information based economy, the government has become interested in harnessing the economic value of information. This is a strong motivation behind the White Paper.

{28} The European Green Paper is also economically oriented, as might be expected from a report issued by an organization devoted to removing barriers to the free flow of commerce within the European Community. [70] The Green Paper's focus is on the extent of the need for harmonization in copyright law among member nations. The main concern appears to provide a uniform level of intellectual property protection, so those seeking to reap the value of their intellectual property will not be afraid to allow that property to go beyond their national borders. The Green Paper states, "Those seeking to operate in the new environment must not find themselves hemmed in by legal constraints arising from a fragmented market." [71] Apparently, "harmonization" is needed when there is a threat to the publishing industry's ability to collect its money.

{29} The most controversial aspect of the White Paper centers around its recommendation that the transmission of copies and phonorecords should fall within the exclusive distribution right of the copyright holder. [72] This is strongly criticized by Litman because she claims that it will give the copyright holder the exclusive right to control reading, since merely receiving and viewing a copyrighted work on a computer screen without permission would constitute a violation. [73] The White Paper claims that its recommendation is really just a clarification of the law, needed because traditionally, when one distributes a copy of a work, the distributor no longer retains possession, whereas when a work is transmitted by computer, a copy is retained in the transmitter's file. The assumption is that transmitting a digitized work is the modern equivalent of distributing it. Copyright law simply needs to be brought up to date.

{30} The White Paper further asserts that because the reproduction right is also implicated in every transmission, copyright holders' rights are not really being expanded. It is here, with its interpretation of the exclusive right of reproduction, where the real problem lies. According to the White Paper, "the placement of copyrighted material into a computer's memory is a reproduction of that material." [74] Yet this occurs almost every time one uses the Internet because every time something is viewed on a computer screen it is placed in the computer's Random-Access Memory (RAM), even if only for a very short period of time. [75] Unfortunately, this interpretation is not an imaginary invention of the White Paper. One court has already held that the uploading of a copyrighted work onto an Internet bulletin board service is the creation of a reproduction, [76] and Litman cites three cases that claim that a work is reproduced every time it is read into a computer's RAM. [77] The White Paper acknowledges that under this interpretation, the exclusive reproduction right "will be implicated in most NII (Internet) transactions," [78] yet it expresses no concern over this broad reach of the copyright holder's power.

{31} The White Paper's claim that copyright holders' rights are not expanded at the expense of users under this interpretation is disingenuous, for the very reason that it felt it was necessary to "clarify" the distribution right, namely, that when one transmits a work on the Internet, one retains a copy in one's own computer. Since one does not dispose of one's own copy, the first sale doctrine will not apply on the Internet. [79] No longer will one be able to share a book with a friend on the Internet, because when one loans the book to a friend, one keeps the original, thus infringing both the reproduction and distribution rights of the copyright holder. The same problem will apply to libraries. [80] One of the main sources of user rights will disappear. If we eventually reach the day when books are available only on the Internet and there is a charge for each viewing, the poor user will no longer have access to reading material.

{32} The Green Paper is a little behind the White Paper in its interpretation of the law, if not in its vision for copyright control. It devotes an entire section to arguing that "the digitization of works or other protected matter should generally fall under the reproduction right, as should such things as loading on to the central memory of a computer," [81] expressing the hope that copyright holders will then be able to "catch" every instance of private reproduction with a little universally implemented technology. Like the White Paper, the Green Paper wishes to eliminate a user exception to copyright holders rights, the exemption allowed by some European countries for private copying. The Green Paper explains that harmonization is necessary in this area so copyright holders in countries that do not allow private copying will not refuse to allow their works to be exported to countries that do.

{33} The White Paper has two more recommendations that seriously infringe on users' rights. The first is pending legislation to which the White Paper merely lends its support. This is a bill that would change the criminal offense standard from that of willful infringement for purposes of financial gain to willful infringement by reproducing or distributing copies with a retail value of $5,000 or more. [82] This bill was proposed in direct response to the case, United States v. LaMacchia, in which an MIT student published copyrighted software on Internet bulletin boards for users to download without charge. [83] Because LaMacchia was motivated by personal beliefs rather than financial gain, he could not be convicted under the current law.

{34} Another White Paper recommendation that at first glance appears to be a viable solution to serious copyright violations also infringes on user rights. The proposal is to add a new chapter to the Copyright Act that would include the following provision:

[T]o prohibit the importation, manufacture or distribution of any device,...the primary purpose or effect of which is to avoid, bypass, remove, deactivate, or otherwise circumvent, without authority of the copyright owner or the law, any [encryption or copy-protection mechanisms]. [84]

This proposal is akin to outlawing the sale of bicycle front wheels because it aids people who steal bicycles by leaving the front wheel still locked to the rack. The problem is that there are many legitimate reasons for copying a copyrighted work, not the least of which is fair use. The White Paper makes a big deal of the fact that the fair use exemption will still apply on the Internet to illustrate that users' rights are not being reduced, yet it shows no concern for ensuring that users can take advantage of the Fair Use Exemption.

{35} Another White Paper recommendation that increases one group of copyright holders' rights has been signed into law. There is now a limited public performance right for sound recordings that applies to sound recordings performed by means of subscription service digital transmissions. [85] This is less than the White Paper had hoped for; it recommended a full public performance right. [86]

{36} The White Paper does make two recommendations in favor of user rights over copyright holder rights. One is that the library exemptions be amended to allow libraries to make three copies of works in digital form for archival and preservation purposes. Under current law, the library copying exemptions do not permit digital reproduction. [87] The White Paper has a great deal to say about the importance of libraries to support this recommendation, but it completely ignores the implications of its interpretation of the reproduction right and first sale doctrine on the role of libraries discussed above. Provision to make three digital copies hardly makes up for being shut out of the Internet! The other recommendation is an exemption for reproduction for the visually impaired. [88] This is certainly to the White Paper's credit, but like most Copyright Act exemptions, it is very limited and will have little effect on the public.

{37} The only White Paper recommendation that may seriously affect the balance of rights in a positive direction is an amendment prohibiting the falsification, alteration or removal of copyright management information. [89] This sounds dangerous, but as defined by the White Paper, copyright management information only consists in the name of the author, the name of the copyright owner, and the terms and conditions for uses of the work. It does not detect every time a copy is made. The White Paper describes it as a "license plate for a work on the information superhighway;" [90] it is not a homing device. Although primarily intended to facilitate the economic concerns of copyright, this would be a strong step in protecting the moral rights of authors without infringing on users legitimate rights. Prohibiting falsification or removal of an author's name from his work directly protects his right of paternity.

{38} As might be expected, the White Paper says very little about moral rights explicitly. The issue receives less than two pages in a 238 page document, and they merely explain that U.S. Copyright law complies with Article 6bis of the Berne Convention. [91] The Green Paper does much better in this area, at least in the attention moral rights is given. It is one of the nine subjects [92] regarding copyright law that has its own section, which includes an introduction explaining how new technology is affecting moral rights, the present legal context in international and community law, an assessment of the questions from the Community viewpoint and questions to which interested parties are invited to reply. [93] Moral rights receives its own section because a previous Green Paper was criticized for not addressing the issue. [94] Thus "moral rights were among the points needing study which were listed in the Commission's work programme for 1991," and a two-day hearing on the issue was held at the end of 1992. [95] Unfortunately, the discussion is limited to examining the alternatives without suggesting any concrete solutions for protecting authors' moral rights under the new technology. The focus is on avenues other than copyright law.

{39} These alternatives are explored in the form of questions. The first question regards the need for harmonization in moral rights laws among Member nations. Although this seems like an issue limited to the European Union, it is a concern for U.S. authors on an international level. Because the Internet is international and transmission of digitized information is not limited by national boundaries, it is particularly important to protect moral rights throughout the world. However, since the U.S. is notably backward on the moral rights issue, we should attempt to take care of things at home first.

{40} The Green Paper asks whether moral rights might be resolved by contract, suggesting, "[w]hen material is placed on the network, for example, or even when it is digitized, the author might agree to certain types of modification such as dubbing, subtitling, reformatting etc." [96] According to the Green Paper, this is how moral rights issues are resolved currently. [97] The Green Paper does not address the problem of digitization, that now users, as well as publishers, are capable of mutilating works and then distributing them on a large scale. Contracts are between a few parties, usually two, not an author and millions of people he has not met.

{41} The Green Paper suggests that the very fact that the author has agreed to digitization could be taken to give rise to a presumption that he has agreed to certain modifications. [98] This is already asking authors to give up a lot, perhaps too much, and it does not address the fact that analogue works such as printed text can be scanned into a computer or typed in and thus digitized without the author's knowledge or consent.

{42} A further possibility posed by the Green Paper is that the acceptability of modifications could be defined in collective agreements between authors and performers on the one hand, and producers and publishers on the other. [99] This suggestion combines both problems of the previous two proposals. First, it leaves out users, the real threat to authors' moral rights. Second, it does not deal with authors not subject to the agreements (because they chose not to digitize their work) might still find their work in danger on the Internet.

{43} The Green Paper's final question asks whether "solutions should be negotiated globally or sector by sector (cinema, newspaper publishing, libraries, museums, etc.)?" [100] The advantage to making laws that apply globally is that all authors will be protected, not just those in selected industries. Furthermore, with the increasing ability to create multi-media works, the various industries are becoming less distinct. However, given the delicate balance between authors' moral rights and users' free speech interests. Therefore, it might be wiser to legislate sector by sector, to accommodate everyone's needs in different areas. The Green Paper's contribution to moral rights in a digitized environment is important because by exploring the issue it creates discussion, even if it does not provide any satisfactory solutions.

V. What The Balance Should Be

{44} Having criticized the suggestions of others, it is now time to decide just what should be the balance between authors, users, and publishers. Copyright is not a natural right. It is a right created by law. Because the new technology affects the balance to such a great extent, in ways never anticipated by the drafters of the Copyright Act, we cannot not use the Copyright Act, particularly its specific language, as the starting point of our analysis. Litman argues that even if the language of the Copyright Act implies that a transmission from one computer to another implicates the reproduction and distribution rights, we should abandon this interpretation on the grounds that "it is hard to make a plausible argument that Congress would have enacted a law giving copyright owners control of reading." [101]

{45} We could, like Descartes in his project to ascertain what knowledge he could be certain of, doubt all copyright law. Unlike Descartes, however, we need not search for an elusive indubitable first principle. In U.S. law we have one--the Constitution. It provides the parameters within which we must work to find the ideal balance between authors, users, and publishers. This is where our inquiry should begin. [102] The Copyright Clause says Congress has the power "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective writings and Discoveries." [103]

{46} Many have interpreted this to mean that authors and inventors must be compensated for their creative efforts or else they will refuse to create, and science and the useful arts will languish. This certainly is the position of the White Paper, which claims:

Protection of works of authorship provides the stimulus for creativity, thus leading to the availability of works of literature, culture, art and entertainment . . . . If these works are not protected, then the marketplace will not support their creation. [104]

According to the White Paper, if we do not protect intellectual property interests on the Internet, authors will not contribute to the Internet and it will have no content.

{47} The first thing to point out is that there is no proof for this theory. Litman challenges it with two very compelling counter examples, fashion design and recipes, neither of which are protected as intellectual property, yet we do not lack for creative efforts in either area. [105] The one flaw with these counter examples is that in both cases, the creativity is intermingled with a tangible product which in of itself can be sold to generate value. This is not true of intellectual property on the Internet. There are other counter examples from history that are more directly on point. Some of our greatest literature was written by proverbial starving artists who were not financially compensated for their work. Well-known examples include Percy Shelley, Edgar Allen Poe, Herman Melville, Fyodor Dostoevsky and Franz Kafka, to name but a few. Lack of financial reward did not cause these masters to be stingy with their talent or abandon it for some more lucrative pursuit.

{48} The second thing to note about the Copyright Clause is that its primary purpose is to promote the progress of science and useful arts. It is intended to benefit society as a whole and improve our culture. It was not meant to protect our gross national product. The Supreme Court states "[t]he immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic activity for the general public good." [106] If we step back from the economic frenzy that seems to drive our government and consider the Copyright Clause in conjunction with the protection of individual dignity and freedom that underlies our Constitution, it becomes clear that our goals should be quality creative works, access to those works by the general public, and privacy and dignity for all individuals.

VI. What Laws Do We Need To Achieve This Balance

{49} With these goals in mind, we must now determine how to write the laws to create the appropriate balance of author, user, and publisher rights. I do not wish to propose any model legislation. My suggestions will be general, an outgrowth of the analysis in this paper, with a recommendation that we proceed cautiously. If our goals are to facilitate the spread of quality information and protect the dignity of all individuals, the real problem becomes how to ensure freedom for the user while simultaneously time guaranteeing dignity for the author. If one forgets about the author, or simply lumps her into the category of "copyright holder," thus merging her interests with those of the various publishing industries, it is very easy to champion the user over greedy corporate interests. Current interpretation of the Copyright Act in light of new technology and the White Paper's recommendations are much too pro-owner; the user's rights are almost swallowed up. Furthermore, corporations are quite capable of taking care of themselves in the legal arena. However, the author is not so well-protected, especially in the United States, where moral rights are seen as something to pay lip service to so the rest of the world does not look down on us. The problem is that to a large extent authors' rights are opposed to those of users. Authors want to be paid for their work, users want it for free; authors insist their work remain exactly as they created it, users want to use it however they please. One could invoke the White Paper's logic here to claim that it really is in the interests of users to have strong intellectual property rights and careful monitoring to insure that these rights are not infringed upon, because without guaranteed protection, authors will not create. However, as I have already noted, this argument is not convincing. So the question is how to reconcile the problem.

{50} Since moral rights are the most threatened by the new technology, and the least protected by our laws, this is a good place to start. The White Paper's recommendation of a law that would prohibit the falsification, alteration, or removal of copyright management information which includes the name of the author is a good start. This would protect an author's right of paternity. We also need a law that would prohibit the alteration and subsequent dissemination of the content of an author's work. Some may argue that this would stifle creativity and abridge free speech rights. Clearly a balance is needed in this area. The minimum protection an author should receive is to require notification on a work stating that it has been altered, and indicating where the original can be accessed. This would at least prevent dissemination of false information, which would go a long way to protecting an author's honor and reputation. It is possible that anything further would be an abridgment of free speech rights, because a requirement that an author's work not be altered in any way that would harm his honor or reputation might prevent legitimate criticism. The standards of defamation law would not help in this area because the alteration of a work is not true or false. [107] The maximum protection an author's right of integrity could receive would have to allow for fair use, parody, political and social expression, and legitimate criticism.

{51} A major criticism of laws regulating private behavior in a digitized environment centers around enforcement. It is believed that the laws cannot be enforced without strict monitoring that would violate the privacy rights of users. However, this is less of a problem with moral rights laws. This is because something that violates a moral rights law can be proven from the work itself. One simply has to compare the accused work with the original. The problem with enforcing economic rights is that one cannot tell if a copy is lawful or infringing unless one determines how the person obtained it. There are still many problems with enforcement of moral rights laws. If a user altered both the name of the author and the content of the work, it might be impossible to prove that the new work had any connection with the original beyond coincidental similarity. However, this type of major alteration would not harm an author as much as attributing something to him that he did not create. There is also the problem of determining responsibility. Just because an altered version of an author's work shows up in a computer somewhere does not mean that the owner of the computer did the altering. They may have received it in that form from someone else. The benefit of a moral rights law is that the author would have some form of recourse in egregious cases. If the altered work were widely distributed, or simply posted on a bulletin board, the author would be able to suppress it by getting an injunction to have it removed. An injunction might have the effect of making possession of the altered work illegal after a sufficient notification period. The author should also have the remedy of posting notice of the violation and perhaps a copy of the original, if desired, free of charge, similar to a retraction in a defamation case, based on the theory that the remedy for bad speech is more speech.

{52} Although moral rights laws cannot be strictly enforced, they may go a long way to protecting those rights without actual prosecution. Most people do not want to break the law. If the benefit for doing so is not great, many people will not do it even if there is no chance of getting caught. There is much less incentive to mutilate another person's work than there is to copy it for free, especially if the cost of obtaining a lawful copy is too great. Also, people may have more respect for moral rights than economic ones. It is easier to understand why one should not mutilate another person's work or appropriate it for oneself than why one must pay for something that one believes should be free to begin with. Moral rights have a moral component. To put one's name on another person's work is plagiarism, we are already taught that this is theft. Attributing a work to someone who did not create it or changing the content of what she wrote involves the conveying of false information, otherwise known as lying. Even if a person has no hesitation about copying something for her own use or merely reading something on her computer screen, she may have some scruples about breaking the law when it also harms the dignity of another human being. The mere existence of laws upholding moral rights will help to teach people the implication of playing with someone else's work. [108] Since the new technology makes it so easy for users to become authors themselves, they will be more likely to respect the rights of others. By enacting such laws, we could protect the dignity of authors without invading the privacy of users.

{53} There are still those who will insist that some form of monitoring is necessary to enforce the laws to protect copyright holders' economic rights. [109] Given the enormous invasion of privacy this would entail, I disagree. [110] Economic rights will take care of themselves. They are already well protected under our current scheme, and even if digitization provides more incentive for unauthorized copying than photocopy machines, cassette and video recorders, it is not necessary to wring every penny of value from a piece of intellectual property. Publishers have always been very ingenious in figuring out ways to make money. They do not need the help of the laws.

{54} The film and television industries panicked at the advent of video recorders and even sued by one of the makers, [111] on the ground that all the illicit private copying would put them out of business. They lost the case and were forced to find their own solution. The video industry soon learned that if it was going to charge eighty to one hundred dollars per video, no one would buy them, and many people would pirate copies with their VCRs. When the industry lowered the price to twenty dollars, industry members found that they could sell millions and make much more money. At fifteen or twenty dollars per video, people are willing to pay for packaging, better quality, and convenience. The incentive to pirate decreases.

{55} The publishing industry's argument is that digitization is different. The quality is just as good and there is no inconvenience. However, there are several factors this argument ignores. First, not only is it cheaper for the user to copy and distribute material, it is also cheaper for the publisher. Publishing and distribution costs go down, but the potential market is much bigger - worldwide, so as much or more money can be made overall. Second, the technology does provide ways to harness value. Access to databases can be contingent on paying a fee. There are encryption methods that can only be opened if one possesses a "key." And other methods will no doubt be developed. [112] The industry argues that all of these methods can be circumvented, and once something is "out," it can be made available to the rest of the world for free. [113] This is true, but they may underestimate the user. People are willing to pay for the "genuine article," as long as it does not cost too much. No one wants a "new and improved" version of Hamlet. They want the real thing. People do not want to be duped. They are often willing to pay a lot of money for a guarantee of authenticity if there is any significant danger it is not. People already pay for brand names because they believe it is a guarantee of quality.

{56} The publishing industry must figure out new ways to market things. Some groups have already begun to do so. It may no longer be practical to think in terms of selling individual items; value on the Internet may be in the form of services. [114] Some software companies have chosen to give software away since they cannot prevent pirating. Instead, these companies charge for support services, up-grades, etc. [115] Other groups have chosen to collect revenue through advertising. Like network television, the content is free, you just have to take the advertising along with it. Another way to collect money is to charge by time rather than item. Many service providers such as CompuServe, America Online, Prodigy etc. operate in this manner, just like a long distance telephone company. Westlaw and Lexis use this method. A solution for software companies may be a method called metering, in which you "rent" the software each time you use it, so that when you access it, a meter keeps track of the time and you pay at the end of the month. Another method is that of subscription, in which you get unlimited access to anything to which you pay the subscription price. The options are only limited by the so-called laws of the market and the publishing industry's imagination, and thinking of ways to make money is the industry's business.

VII. Conclusion

{57} The White Paper claims that only a few minor changes need to be made to the Copyright Act to bring it in line with the new technology. What it fails to acknowledge is that digitization has already amended the Copyright Act without any help from Congress. The balance of rights between authors, users, and the publishing industry has already been radically altered. Authors' moral rights are in grave jeopardy, as are user rights if we do not reinterpret the reproduction right. The publishing industry is not in as much trouble as it claims, it just has more money to cry louder. Already people are figuring out ways to make money on the Internet. Before Congress rushes to save our intellectual property, it should wait to see what technology, the marketplace, and peoples imaginations can come up with. All that is really needed at this point is a few laws to protect the dignity and moral rights of authors from the worst of what digitization allows people to do.


[1] .. Anne K. Fujita, 2103 Lake Isle Court, Eugene, Oregon 97401, University of Oregon School of Law, 22 April 1996. This paper was awarded First Prize in the 1996 Nathan Burkan Memorial Competition at the University of Oregon School of Law sponsored by the American Society of Composers, Authors and Publishers. I would like to thank David Montgomery Munsey, my writing partner in the Intellectual Property Seminar to which this paper was originally presented, for his invaluable suggestions, support, and criticism. I would also like to acknowledge Professor Dominick Vetri who conducted the seminar, and Professor Keith Aoki, for many enlightening conversations on this topic.

[2] ..Information Infrastructure Task Force, Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights (1995) [hereinafter White Paper].

[3] ..Jessica Litman, The Exclusive Right to Read, 13 Cardozo Arts & Ent. L.J. 29 (1994).

[4] ..See Jessica Litman, Copyright Legislation and Technological Change, 68 Or. L. Rev. 275 (1989).

[5] ..Green Paper on Copyright and Related Rights in the Information Society, COM(95)382 final, 19 July 1995, at 66 [hereinafter Green Paper].

[6] ..White Paper, supra note 2. This is a "final report" which was issued after receiving comments on an earlier version issued in July 1994 labeled "A Preliminary Draft." See Information Infrastructure Task Force, Intellectual Property and the National Information Infrastructure: A Preliminary Draft of the Report of the Working Group on Intellectual Property Rights (1994). This earlier version is often referred to as the "Green Paper," but should not be confused with various reports issued by the Commission of the European Communities with that title. The labels are even more confusing because in the U.S. green paper is money, and that is what is behind all of these recommendations.

[7] ..Green Paper, supra note 5.

[8] ..17 U.S.C.A. Sec. 102, 103 (1994).

[9] ..The Copyright Act of 1976, 17 U.S.C.A. Sec. 101 et seq. (1994).

[10] ..See Litman, supra note 3, in which she argues that the current copyright statute is not in the public's interest, even when that interest is modestly expressed as:

Look; I'm not out to get something for nothing. I understand that authors won't write stuff if they can't get paid. I want them to make new works and I'm willing to pay them to do so. I want to encourage authors to write as many new works as they can. As for me, I want to be able to read, see, hear or download any work in captivity, and pay appropriate royalties for doing so.

13 Cardozo Arts & Ent. L.J. at 37.

[11] ..It is significant that the Copyright Act defines rights in relation to the "owner" of copyright, thus indicating the property nature of copyrights which highlights the economic interest. 17 U.S.C.A. Sec. 106 (1994).

[12] ..Id. at Sec. 106(1).

[13] ..Id. at Sec. 106(2).

[14] ..Id. at Sec. 106(3).

[15] ..Id. at Sec. 106(4). This applies to literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works.

[16] ..Id. at Sec. 106(5). This applies to literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work.

[17] ..Id. at Sec. 302(a). The law used to be twenty-eight years from the date of publication with the option to renew for another twenty-eight years. The current copyright law makes allowance for this. See Id. at Sec. 303, 304.

[18] ..See Id. at Sec. 501.

[19] ..Id. at Sec. 502.

[20] ..Id. at Sec. 503.

[21] ..Id. at Sec. 504.

[22] ..Id. at Sec. 505.

[23] .."Copyright infringement is determined without regard to the intent or the state of mind of the infringer; 'innocent' infringement is infringement nonetheless." White Paper, supra note 2, at 101.

[24] ..17 U.S.C.A. Sec. 506.

[25] ..Litman, supra note 3, at 38.

[26] ..White Paper, supra note 2, at 73 n.227.

[27] ..17 U.S.C.A. Sec. 107.

[28] ..Id.

[29] ..Id.

[30] ..Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984).

[31] ..See White Paper, supra note 2, at 76-77.

[32] ..Id. at 79-81.

[33] ..Playboy Enterprises Inc. v. Frena, 839 F.Supp. 1552, 1558 (M.D.Fla. 1993).

[34] ..Sega Enterprises Ltd. v. MAPHIA, 857 F. Supp. 679, 688 (N.D.Cal. 1994).

[35] ..17 U.S.C.A. Sec. 109(a).

[36] ..Id. at Sec. 108.

[37] ..Id. at Sec. 110.

[38] ..Id.

[39] ..Id. at Sec. 111, 119.

[40] ..Geri J. Yonover, The "Dissing" of da Vinci: The Imaginary Case of Leonardo v. Duchamp: Moral Rights, Parody, and Fair Use, 29 Val. U. L. Rev. 935, 938 (1995).

[41] ..17 U.S.C.A. Sec. 106A.

[42] ..Id. at Sec. 101. For an excellent summary of the key provisions of VARA, see Gerald Dworkin, The Moral Right of the Author: Moral Rights and the Common Law Countries, 19 Colum.-VLA J.L. & Arts 229, 259-262 (1995).

[43] ..17 U.S.C.A. Sec. 106(2).

[44] ..Id. at Sec. 115(a)(2).

[45] ..Final Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention, reprinted in Irwin Karp, United States Adherence to the Berne Convention, 249 PLI/Pat 269 (1988) [hereinafter Ad Hoc Report].

[46] ..See Yonover, supra note 40, at 962-963.

[47] ..15 U.S.C.A. Sec. 1125(a) (1976).

[48] ..Gilliam v. American Broadcasting Co., 538 F.2d 14 (2d Cir. 1976).

[49] ..For a more detailed discussion of how these theories protect authors' moral rights and cites to cases in which they have been employed, see Dworkin, supra note 42, at 233-237; Ad Hoc Report, supra note 45.

[50] ..Berne Convention for the Protection of Literary and Artistic Works, July 24, 1971 (Paris).

[51] ..See Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853 (Oct. 31, 1988), eff. Mar. 1, 1989.

[52] ..Ad Hoc Report, supra note 45, at Westlaw p. 21.

[53] ..In Canada, which protects moral rights by statute, The Copyright Act, R.S.C., ch. C-42, S 28.2 (1992) (Can.), moral rights can be waived expressly or by implication. The United Kingdom's moral rights code, Copyright, Designs and Patents Act (CPDA), 1988, SS 77-89, 94-95, 103 (Eng.), has been criticized for its excessively wide waiver provisions. Dworkin, supra note 42, at 244, 256-258. The United States' VARA also allows an artist to waive his moral rights, provided the waiver is express, specific, and written, 17 U.S.C.A. Sec. 106A(e).

[54] ..Green Paper, supra note 5, at 67.

[55] ..One cannot come to an arrangement with the general public.

[56] ..John P. Barlow, The Economy of Ideas: A Framework for Rethinking Patents & Copyrights in the Digital Age (Everything You Know About Intellectual Property is Wrong), Wired, Mar. 1994.

[57] ..Id. at 85.

[58] ..See Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984) (Television program copyright holders brought suit against VCR manufacturer on theory of contributory infringement.).

[59] ..See Jenevra Georgini, International Digital Publishing and Territorial Copyright: Is the European Union Letting Infringers Slip Through Its "Nets?", 21 Brook. J. Int'l L. 243, 272-273 (1995).

[60] ..Green Paper, supra note 5, at 67.

[61] ..Green Paper, supra note 5, at 49.

[62] ..For an interesting discussion of private copying and a claim that it has no place in cyberspace, see Jane C. Ginsburg, Putting Cars on the "Information Superhighway": Authors, Exploiters, and Copyright in Cyberspace, 95 Colum. L. Rev. 1466, 1477-1479 (1995).

[63] ..Businesses can be regulated, as is obvious if one attempts to get a copyrighted work processed behind the counter of a copy store such as Kinko's .

[64] ..It was not a serious problem for authors, they were still going to be paid for their work by publishers, the publishers simply lost a few sales. However, the volume was certainly not enough to put them out of business.

[65] ..Green Paper, supra note 5, at 79.

[66] ..White Paper, supra note 2, at 82. This is very likely, given the decision against fair use in American Geophysical Union v. Texaco Inc., 802 F. Supp. 1 (S.D.N.Y. 1992), aff'd, 37 F.3d 881, 892 (2d Cir. 1994), based in part on the court's perception that it would not have been overly burdensome to obtain a license to make photocopies from the Copyright Clearance Center. The White Paper often cites the fair use doctrine as a continuing (and adequate) protection of users' rights in cyberspace, but it is ready to throw it out at the first opportunity.

[67] .."[The European Commission's] Green Papers do not contain settled policy; they are intended to produce discussion on various areas of law and policy." Hugh C. Hansen, The Harmonization of Trademark, Copyright and Design Law in the European Community, 417 PLI/Pat 171, Westlaw p.6 (1995).

[68] ..White Paper, supra note 2, at 10.

[69] ..White Paper, supra note 2, at 16.

[70] ..Ysolde Gendreau, Copyright Harmonization In the European Union and In North America, 20 Colum.-VLA J.L. & Arts 37, 39-40 (1995).

[71] ..Green Paper, supra note 5, at 29.

[72] ..White Paper, supra note 2, at 213. To buttress this it also recommends that the definition of "transmit" be amended to include transmission of a reproduction (as opposed to just a performance or a display), that the definition of "publication" be amended to recognize that a work may be published through the distribution of copies to the public by transmission, and that prohibitions on importation be amended to reflect the fact that copyrighted works can be imported into the U.S. by transmission. White Paper, supra note 2, at 217-221.

[73] ..Litman, supra note 3, at 31-32.

[74] ..White Paper, supra note 2, at 64.

[75] ..For a helpful discussion of the issue of fixation in cyberspace and an explanation of "RAM", see David J. Loundy, Revising the Copyright Law for Electronic Publishing, 14 J. Marshall J. Computer & Info. L. 1, 10-12 (1995).

[76] ..See Sega Enterprises Ltd. v. MAPHIA, 857 F.Supp. 679 (N.D.Cal. 1994).

[77] ..MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993); Triad Sys. Corp. v. Southeastern Express Co., 31 U.S.P.Q. 2d (BNA) 1239 (N.D. Cal. Mar. 18, 1994); Advanced Computer Servs. v. MAI Sys. Corp., 845 F. Supp. 356 (E.D. Va. 1994).

[78] ..White Paper, supra note 2, at 64.

[79] ..The White Paper is very clear in its discussion of the first sale doctrine that it does not and should not apply to transmissions on the Internet, yet it does not acknowledge the grave effect this will have on user rights. It even goes so far as to reject the proposal that the first sale doctrine apply if the transmitter destroys his own copy upon transmission, saying:

[T]his zero sum gaming analysis misses the point. The question is not whether there exist the same number of copies at the completion of the transaction or not. The question is whether the transaction when viewed as a whole violates one or more of the exclusive rights, and there is no applicable exception from liability. In this case, without any doubt, a reproduction of the work takes place in the receiving computer. To apply the first sale doctrine in such a case would vitiate the reproduction right.

White Paper, supra note 2, at 94.

[80] ..The future role of libraries in cyberspace is discussed in Loundy, supra note 75, at 37-41.

[81] ..Green Paper, supra note 5, at 52.

[82] ..S. 1122, 104th Congress (1995). [Type s1122 in Bill/Amendment Number search listbox]

[83] ..United States v. LaMacchia, 871 F.Supp. 535 (D. Mass. 1994).

[84] ..White Paper, supra note 2, at 230.

[85] ..Digital Performance Right in Sound Recordings Act of 1995, Pub. L. No. 104-39, 109 Stat. 336 (1995).

[86] ..White Paper, supra note 2, at 225.

[87] ..White Paper, supra note 2, at 225-227.

[88] ..White Paper, supra note 2, at 227-228.

[89] ..White Paper, supra note 2, at 235-236.

[90] ..White Paper, supra note 2, at 235.

[91] ..White Paper, supra note 2, at 145-147.

[92] ..The others are Applicable law, Exhaustion of rights and parallel imports, Reproduction right, Communication to the public, Digital dissemination or transmission right, Digital broadcasting right, Acquisition and management of rights, and Technical systems of identification and protection. Green Paper, supra note 5. For a very brief (two sentences each), but accurate summary of the Green Paper's discussion of each of these subjects, see June M. Besek, Copyright Law and Multimedia Works: Initiatives to Change National Laws and International Treaties to Better Accommodate Works of New Technology, 428 PLI/Pat 69, Westlaw p.5-6 (1996).

[93] ..Green Paper, supra note 5, at 65-67. The comparison of page numbers is misleading, given the format and length of the two papers.

[94] ..Green Paper on Copyright and the Challenge of Technology, COM(88)172 final, 17 June 1988.

[95] ..Green Paper, supra note 5, at 66.

[96] ..Green Paper, supra note 5, at 67. This would apply to films which the Green Paper cited as a major concern with digitization, explaining, "The time is coming when anyone will be able to change the colours in a film, or replace the faces of the actors, and return the modified film to the network." Green Paper, supra note 5, at 65.

[97] ..See text, para. 17-18.

[98] ..Green Paper, supra note 5, at 68.

[99] ..Green Paper, supra note 5, at 68.

[100] ..Green Paper, supra note 5, at 68.

[101] ..Litman, supra note 3, at 40.

[102] ..See Loundy, supra note 75, at 2.

[103] ..U.S. Const. art. I, Sec. 8, cl. 8.

[104] ..White Paper, supra note 2, at 14.

[105] ..Litman, supra note 3, at 44-46.

[106] ..Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).

[107] ..One could argue that any alteration is automatically false because not what the author truly created, but the false aspect of alteration is eliminated by the notice requirement. On the other side, perhaps every alteration is true because its expression is simply what it is. Neither of these positions is persuasive or helpful, since each would apply equally to any alteration.

[108] ..One commentator states:

[No] matter how diligently a state may try to protect moral rights, the failure of the federal copyright law even to address the issue creates a national standard of indifference toward artist' rights, and firmly establishes a legal notion of intellectual property which puts the rights of the copyright proprietor above the rights of the artistic creator. By ignoring moral rights, federal law creates a fundamentally "amoral" copyright.

Russell J. DaSilva, Droit Moral and the Amoral Copyright: A Comparison of Artists' Rights in France and the United States, 28 Bull. Copyright Soc'y 1, 6 (1980).

[109] ..An oft-suggested solution is to make bulletin board services liable for copyright infringement. This is a complicated issue with many implications, and is beyond the scope of this paper. For an article supporting bulletin board liability with a constructive knowledge requirement, see Andrea Sloan Pink, Copyright Infringement Post Isoquantic Shift: Should Bulletin Board Services Be Liable?, 43 UCLA L. Rev. 587 (1995). For an article opposing such liability, see Niva Elkin-Koren, Copyright Law and Social Dialogue On the Information Superhighway: The Case Against Copyright Liability of Bulletin Board Operators, 13 Cardozo Arts & Ent. L. J. 345 (1995).

[110] ..The same type of people insist on weakening the Fourth Amendment to combat drugs, secure in the knowledge that no raid, mistaken or otherwise, would ever occur in their posh neighborhood.

[111] ..Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984).

[112] ..One that is in use already is to market a book in the form of a software program, rather than a text or word processing file. This requires the book to be installed on the reader's personal computer, and only allows a few pages to be viewed at a time, preventing the average consumer unsophisticated in computer manipulation from sending copies of the book to others. Bruce P. Keller, Electronic Property Rights and Licensing Online Uses of Intellectual Property, 421 PLI/Pat 7, Westlaw p. 4 (1995).

[113] ..Other problems with technological solutions of this sort such as consumer dissatisfaction and the challenge it provides to hackers are discussed in Pamela Samuelson, Will the Copyright Office Be Obsolete in the Twenty-first Century?, 13 Cardozo Arts & Ent. L.J. 55, 58-60 (1994).

[114] ..Esther Dyson, a vice chair of the Electronic Frontier Foundation, endorses this view. Esther Dyson, Intellectual Value, Wired, July 1995, at 136, 183, noted in Jessica R. Friedman, Copyright, 64 Fordham L. Rev. 705, 717 (1995).

[115] ..Jeffrey C. Selman, Copyright Protection In a Digital World: Judicial, Legislative, Technological, and Contractual Solutions, 7 No. 7 JPROPR 4 (1995).