ADVANCED COPYRIGHT ISSUES ON THE INTERNET
I. INTRODUCTION
Over the years, the Internet has become the basic foundational infrastructure for the
global movement of data of all kinds. With continued growth at a phenomenal rate, the Internet
has moved from a quiet means of communication among academic and scientific research circles
into ubiquity in both the commercial arena and private homes. The Internet is now a major
global data pipeline through which large amounts of intellectual property are moved. As this
pipeline is increasingly used in the mainstream of commerce to sell and deliver creative content
and information across transnational borders, issues of intellectual property protection for the
material available on and through the Internet have taken on great importance.
Copyright law provides one of the most important forms of intellectual property
protection on the Internet for at least two reasons. First, much of the material that moves in
commerce on the Internet is works of authorship, such as musical works, multimedia works,
audiovisual works, movies, software, database information and the like, which are within the
usual subject matter of copyright. Second, because the very nature of an electronic online
medium requires that data be “copied” as it is transmitted through the various nodes of the
network, copyright rights are obviously at issue.
Traditional copyright law was designed to deal primarily with the creation, distribution
and sale of protected works in tangible copies.^1 In a world of tangible distribution, it is generally
easy to know when a “copy” has been made. The nature of the Internet, however, is such that it
is often difficult to know precisely whether a “copy” of a work has been made and, if so, where it
resides at any given time within the network. As described further below, information is sent
through the Internet using a technology known as “packet switching,” in which data is broken up
into smaller units, or “packets,” and the packets are sent as discrete units. As these packets pass
through the random access memory (RAM) of each interim computer node on the network, are
“copies” of the work being made?
The case of MAI Systems Corp. v. Peak Computer^2 held that loading a computer program
into the RAM of a computer constituted the making of a “copy” within the purview of copyright
law. This case has been followed by a number of other courts. Under the rationale of this case, a
“copy” may be created under United States law at each stage of transmission of a work through
the Internet. The language of two treaties discussed extensively in this paper – the WIPO
Copyright Treaty^3 and the WIPO Performances and Phonograms Treaty^4 – leave unclear the
(^1) For example, under United States law, copyright protection subsists only in “works of authorship fixed in any
tangible medium of expression, now known or later developed, from which they can be perceived, reproduced,
or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102(a).
(^2) 991 F.2d 511 (9th Cir. 1993), cert. dismissed, 114 S. Ct. 672 (1994).
(^3) World Intellectual Property Organization Copyright Treaty, Apr. 12, 1997, S. Treaty Doc. No. 105-17 (1997).