The history of American copyright law originated with the introduction of the printing press to England in the late fifteenth century. As the number of presses grew, authorities sought to control the publication of books by granting printers a near monopoly on publishing in England. The Licensing Act of 1662 confirmed that monopoly and established a register of licensed books to be administered by the Stationers' Company, a group of printers with the authority to censor publications. The 1662 act lapsed in 1695 leading to a relaxation of government censorship, and in 1710 Parliament enacted the Statute of Anne to address the concerns of English booksellers and printers. The 1710 act established the principles of authors' ownership of copyright and a fixed term of protection of copyrighted works (fourteen years, and renewable for fourteen more if the author was alive upon expiration). The statute prevented a monopoly on the part of the booksellers and created a "public domain" for literature by limiting terms of copyright and by ensuring that once a work was purchased the copyright owner no longer had control over its use. While the statute did provide for an author's copyright, the benefit was minimal because in order to be paid for a work an author had to assign it to a bookseller or publisher.
Since the Statute of Anne almost three hundred years ago, U.S. law has been revised to broaden the scope of copyright, to change the term of copyright protection, and to address new technologies. For several years, the U.S. has considered and acted on copyright reform. The Canadian government is considering copyright reform as well.
According to Article I, Section 8, Clause 8 of the U.S. Constitution, "the Congress shall have power . . . to 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."
1790: Copyright Act of 1790
The First Congress implemented the copyright provision of the U.S. Constitution in 1790. The Copyright Act of 1790, An Act for the Encouragement of Learning, by Securing the Copies of Maps, Charts, and Books to the Authors and Proprietors of Such Copies, was modeled on the Statute of Anne (1710). It granted American authors the right to print, re-print, or publish their work for a period of fourteen years and to renew for another fourteen. The law was meant to provide an incentive to authors, artists, and scientists to create original works by providing creators with a monopoly. At the same time, the monopoly was limited in order to stimulate creativity and the advancement of "science and the useful arts" through wide public access to works in the "public domain." Major revisions to the act were implemented in 1831, 1870, 1909, and 1976.
1831: Revision of the Copyright Act
The term of protection of copyrighted works was extended to twenty-eight years with the possibility of a fourteen-year extension. Congress claimed that it extended the term in order to give American authors the same protection as those in Europe. The extension applied both to future works and those current works whose copyright had not expired.
1834: Wheaton v. Peters
The case arose from a dispute between the official reporter of U.S. Supreme Court decisions, Richard Peters, and the previous reporter, Henry Wheaton. Peters began publishing "Condensed Reports" of cases decided during Wheaton's tenure and Wheaton sued. The case went before the U.S. Supreme Court. Peters argued that Wheaton had failed to properly obtain copyright, while Wheaton argued that authors were entitled to perpetual property rights in their works. Justice McLean delivered the majority decision, stating that "since the statute of 8 Anne, the literary property of an author in his works can only be asserted under the statute. . . . That an author, at common law, has a property in his manuscript, and may obtain redress against any one who deprives him of it, or by improperly obtaining a copy endeavours to realise a profit by its publication cannot be doubted; but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work, after the author shall have published it to the world." The decision struck a decisive blow against the notion of copyright as a perpetual natural right, and the utilitarian view of copyright embodied in the U.S. Constitution prevailed, i.e., "that patents and copyrights are exclusive rights of limited duration, granted in order to serve the public interest in promoting the creation and dissemination of new works." See the amicus brief submitted to the U.S. Supreme Court by Tyler Ochoa and Mark Rose in the case of Eldred v. Ashcroft,May 20, 2002.
1841: Folsom v. Marsh
In a case brought before the Massachusetts Circuit Court in 1841, the owner and editor of a multi-volume collection of George Washington's letters sued Charles Upham for using hundreds of pages of the letters, in their entirety, in a volume on the life of Washington. Justice William Story found that Upham had infringed the owner's copyright in publishing some 350 pages of Washington's letters in his 866-page book. Upham argued that Washington's letters were not "proper subjects of copyright" because their publication would not harm the deceased author, and because they were not literary in nature. Story disagreed and held that letter writers and their designated heirs, not the persons to whom the letters are addressed, possess copyright in the letters they have written, no matter the content.
Upham also argued that he had "a right to abridge and select, and use the materials . . . for [his] work, which . . . is an original and new work, and that it constitutes, in no just sense, a piracy of the work of the plaintiffs." Again, Story disagreed, saying that Upham's work was "a selection of the entire contents of particular letters, from the whole collection or mass of letters of the work of the plaintiffs. . . . [and] that these letters are the most instructive, useful and interesting to be found in that large collection." In explaining the nature of the infringement, Story said, "It is certainly not necessary, to constitute an invasion of copyright, that the whole of a work should be copied, or even a large portion of it, in form or in substance. If so much is taken, that the value of the original is sensibly diminished, or the labors of the original author are substantially to an injurious extent appropriated by another,that is sufficient, in point of law, to constitute a piracy pro tanto" (my emphasis). The court's definition of what constituted a "justifiable use of the original materials" formed the basis of the "fair use" doctrine. Put another way, Story said that, "the question of piracy, often depend[s] upon a nice balance of the comparative use made in one of the materials of the other; the nature, extent, and value of the materials thus used; the objects of each work; and the degree to which each writer may be fairly presumed to have resorted to the same common sources of information, or to have exercised the same common diligence in the selection and arrangement of the materials."
1853: Stowe v. Thomas
Harriet Beecher Stowe sued F.W. Thomas, publisher of a German-language periodical, Die Freie Presse, in 1853. Thomas translated Uncle Tom's Cabininto German and sold it in the United States without the author's permission. Judge Robert Grier of the Third Circuit Court of Appeals explained in the decision that once an author published her or his work, "and given his thoughts, sentiments, knowledge or discoveries to the world, he can have no longer an exclusive possession of them." With regard to translations, he continued, "the same conceptions clothed in another language cannot constitute the same composition; nor can it be called a transcript or 'copy' of the same 'book.'" According to Siva Vaidhyanathan, the "antiproperty" rhetoric in the decision encouraged many American authors to take a stand in favor of copyright as property until the copyright law was revised in 1870 (Vaidhyanathan, 48-50).
1870: Revision of Copyright Act
The administration of copyright registrations moved from the individual district courts to the Library of Congress Copyright Office. The term of protection was not extended in this revision.
1886: Berne Convention
The goals of the Berne Conventionprovided the basis for mutual recognition of copyright between sovereign nations and promoted the development of international norms in copyright protection. European nations established a mutually satisfactory uniform copyright law to replace the need for separate registration in every country. The treaty has been revised five times since 1886. Of particular note are the revisions in 1908 and 1928. In 1908, the Berlin Act set the duration of copyright at life of the author plus 50 years, expanded the scope of the act to include newer technologies, and prohibited formalities as a prerequisite of copyright protection. In 1928, the Rome Act first recognized the moral rights of authors and artists, giving them the right to object to modifications or to the destruction of a work in a way that might prejudice or decrease the artists' reputations. The United States became a Berne signatory in 1988.
1891: International Copyright Treaty
Because American copyright law applied only to American publications, European authors were unable to profit from the publication and sale of their works at extemely low prices during the nineteenth century. The so-called "cheap books" movement, spread rapidly by small upstart publishers after the Civil War, threatened the "courtesy principle" of gentlemanly price-fixing adhered to by the large, established publishers such as Henry Holt. By the 1880s cheap books flooded the American market. By 1890 authors, publishers, and printers' unions joined together to support an international copyright bill (Vaidhyanathan, 50-55).
A major revision of the U.S. Copyright Act was completed in 1909. The bill broadened the scope of categories protected to include all works of authorship, and extended the term of protection to twenty-eight years with a possible renewal of twenty-eight. The Congress addressed the difficulty of balancing the public interest with proprietor's rights:
"The main object to be desired in expanding copyright protection accorded to music has been to give the composer an adequate return for the value of his composition, and it has been a serious and difficult task to combine the protection of the composer with the protection of the public, and to so frame an act that it would accomplish the double purpose of securing to the composer an adequate return for all use made of his composition and at the same time prevent the formation of oppressive monopolies, which might be founded upon the very rights granted to the composer for the purpose of protecting his interests" (H.R. Rep. No. 2222, 60th Cong., 2nd Sess., p. 7 ).
1973: Williams and Wilkins Co. v. United States
Williams and Wilkins, publishers of specialized medical journals, sued the National Library of Medicine (NLM) and the National Institutes of Health (NIH)charging that the agencies had infringed copyright by making unauthorized photocopies of articles featured within their publications and distributing them to medical researchers. The U.S. Court of Claims held that medicine, and medical research would be harmed by finding an infringement, and since the Copyright Act was under revision by Congress, it was better to allow the status quo to continue in the interim. In the decision, Judge Davis stated, "the court holds, based on the type and context of use by NIH and NLM as shown by the record, that there has been no infringement, that the challenged use is 'fair' in view of the combination of all of the factors involved in consideration of 'fair' or 'unfair' use enumerated in the opinion, that the record fails to show a significant detriment to plaintiff but demonstrates injury to medical and scientific research if photocopying of this kind is held unlawful, and that there is a need for congressional treatment of the problems of photocopying."
1976: Revision of the U.S. Copyright Act
The 1976 revision was undertaken for two primary reasons. First, technological developments and their impact on what might be copyrighted, how works might be copied, and what constituted an infringement needed to be addressed. Second, the revision was undertaken in anticipation of Berne Conventionadherence by the U.S. It was felt that the statute needed to be amended to bring the U.S. into accord with international copyright law, practices, and policies. The 1976 act preempted all previous copyright law and extended the term of protection to life of the author plus 50 years (works for hire were protected for 75 years). The act covered the following areas: scope and subject matter of works covered, exclusive rights, copyright term, copyright notice and copyright registration, copyright infringement, fair use and defenses and remedies to infringement. With this revision, for the first time the fair use and first sale doctrines were codified, and copyright was extended to unpublished works. In addition, a new section was added, section 108, that allowed library photocopying without permission for purposes of scholarship, preservation, and interlibrary loan under certain circumstances.
In addition to section 108, section 107 is important to libraries because it contains an exception to the exclusive rights of owners to make and distribute copies of their works. It states that "the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." To determine whether the use of a work is a fair use, the following four factors are to be considered: purpose and character of the use, nature of the copyrighted work, the amount and substantiality of the portion used in relation to the whole, and the effect of the use on the potential market. See Title 17of the U.S. Code.
1976: Classroom Guidelines
In addition to legislative reforms, private negotiations between owners and users of copyrighted materials resulted in guidelines for classroom and educational use as well as reserve room use. These guidelines were not part of the statute but were included in the House report accompanying the 1976 act. The 1976 "Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals" was adopted by thirty-eight educational organizations and the publishing industry. According to the text of the guidelines, the purpose was "to state the minimum and not the maximum standards of educational fair use under section 107 of the [Copyright Act of 1976]. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future; and conversely that in the future other types of copying may be permissible under revised guidelines."
1976: CONTU Process
The National Commission on New Technological Uses of Copyrighted Works (CONTU) was appointed by Congress in 1976 to establish guidelines for the "minimum standards of educational fair use" under the 1976 act. "The CONTU guidelines were developed to assist librarians and copyright proprietors in understanding the amount of photocopying for use in interlibrary loan arrangements permitted under the copyright law." Guidelineswere established for copying for interlibrary loan.
1983: Encyclopedia Britannica Educational Corp. v. Crooks
Encyclopedia Britannicasued the Board of Cooperative Educational Services, a consortium of public school districts, for systematically taping educational programs that were broadcast on public television stations and making copies available to member schools. The court found that the actions of the school board would have a detrimental effect on the market of the commercially produced programs and that the use was not a fair use.
1986: Maxtone-Graham v. Burtchaell
Maxtone-Graham wrote a book containing women's stories of unwanted pregnancy and abortion in 1973. She denied Burtchaell's request to use excerpts from her published interviews. He published them anyway. The Second Circuit Court of Appeals found that quoting 4.3% of an author's work was not excessive and that Burtchaell's use of the narratives was a fair use.
1987: Salinger v. Random House
After an initial decisionin favor of J.D. Salinger's unauthorized biographer, Ian Hamilton, the Second Circuit Court of Appeals found that quoting or paraphrasing from unpublished materials (Salinger's letters) in an unauthorized biography was not fair use and the book was never published.
1988: Berne Convention
The United States became a Bernesignatory in 1988. The major changes for the U.S. copyright system as a result of Berne were: greater protection for proprietors, new copyright relationships with twenty-four countries, and elimination of the requirement of copyright notice for copyright protection.
1990: Circulation of Computer Software
Congress amended the Copyright Act to prohibit commercial lending of computer software. The amendment noted that libraries could lend software provided the "copy of a computer program which is lent by such library has affixed to the packaging containing the program a warning of copyright." The amendment was a modification of the first sale doctrine.
1991: Basic Books, Inc. v. Kinko's Graphics Corp.
A Federal District Court in New York ruled that Kinko's Graphic Corporation infringed copyrights, and did not exercise fair use, when it photocopied coursepacks that included book chapters, and then sold them to students for classwork. The court found that most of the fair use factors worked against Kinko's in this case, especially given Kinko's profit motive in making the copies. Additionally, the court found that the classroom guidelines did not apply to Kinko's. The court did not rule that coursepacks cannot constitute fair use in other circumstances.
1991: Feist Publications v. Rural Telephone Service Co., Inc.
The U.S. Supreme Court found that the U.S. Constitution requires that, for a work to receive copyright protection, it must reflect creative expression or originality. Thus, the compilation of a telephone directory by Feist was not an infringement even though it was compiled from the information in the Rural Telephone Service White Pages. The information in the white pages was not copyrightable because it comprised "comprehensive collections of facts arranged in conventional formats."
1992: American Geophysical Union v. Texaco
American Geophysical Union v. Texacoresulted from a class action suit brought by six scientific publishers (on behalf of other publishers registered with the Copyright Clearance Center). In July 1992, a U.S. District judge ruled in the seven-year-old copyright case that a Texaco scientist violated the Copyright Law when he copied complete journal articles without providing the appropriate fee to the publishers. Texaco argued that the copying fell within fair use. The court ruled that the profit motive of the company was a relevant consideration in the analysis of the purpose of the use. They also found against Texaco in considering the amount of the work used, and found that the market was affected because Texaco could have paid royalties through the CCC.
In 1994, the Second Circuit Court of Appeals upheld the lower court decision. In April 1995, Texaco petitioned the Supreme Court to review the case. On May 15, 1995, Texaco and a steering committee representing the publishers announced that they had agreed upon terms to settle the case. Texaco, which conceded no wrongdoing in the proposed settlement, paid a seven figure settlement and retroactive licensing fee to the CCC. In addition, Texaco entered into standard annual license agreements with the CCC over the next five years.
1992: Amendment to Section 304 of Title 17
Congress amended Section 304 of Title 17making copyright renewal automatic. The amendment dramatically curtailed the entry into the public domain of works protected by copyright before 1978.
1993: Playboy Enterprises Inc. v. Frena
The Florida Northern District Court held that Frena, an electronic bulletin board operator, had violated Playboy'scopyright when one of their photographs was digitized and placed on the bulletin board system by one subscriber and downloaded by another subscriber. According to the decision, "it does not matter that Defendant Frena may have been unaware of the copyright infringement. Intent to infringe is not needed to find copyright infringement. Intent or knowledge is not an element of infringement, and thus even an innocent infringer is liable for infringement; rather innocence is significant to a trial court when it fixes statutory damages, which is a remedy equitable in nature."
1993: NII Initiative
The Working Group on Intellectual Property Rights was established to explore the application and effectiveness of copyright law and the National Information Infrastructure. The NII was described as "a seamless web of communications networks, computers, databases, and consumer electronics" (Information Infrastructure Task Force, National Telecommunications and Information Administration, National Information Infrastructure: Agenda for Action,1993).
1994: Campbell v. Acuff-Rose Music Inc.
The Supreme Court ruled that 2 Live Crew's parody of Roy Orbison's song, "Pretty Woman," was a fair use. The court found that a commercial use could be a fair use especially when the markets for an original work and a transformative work are different (Vaidhyanathan, 148-49).
1994: Working Group's Green Paper
The Working Group on Intellectual Property Rights sponsored a series of activities to solicit input on copyright issues and the NII. These included public hearings and, in June 1994, a draft NII report was circulated for comment and review (the Green Paper). Part of the review process included three hearings (held in Los Angeles, Chicago, and Washington, DC) hosted by the Working Group, where members of the stakeholder community presented reactions to the Green Paper.
The Working Group on Intellectual Property Rights sponsored the Conference on Fair Use (CONFU). Established in September 1994, CONFU was the venue for a discussion of issues of fair use in the electronic environment. CONFU participants developed guidelines for fair use of educational multimedia, and proposed guidelines in a number of areas including interlibrary loan, electronic reserves, digital images, and distance education. According to the final report[PDF file], issued in 1998, "it was clear that fair use was alive and well in the digital age, and that attempts to draft widely supported guidelines will be complicated by the often competing interests of the copyright owner and user communities" (p. 18).
1995: Religious Technology Center v. Netcom
A federal judge in the Northern District Court of California ruled that Netcom, an Internet Service Provider (ISP), was liable for contributory infringement (as opposed to direct infringement) of copyright because the company did not remove copyrighted materials posted by a subscriber. Justice Whyte found that "mere possession of a digital copy on a [server] that is accessible to some members of the public" may not constitute direct infringement of the exclusive right to publicly distribute and display. The case was significant for its implications for Internet Service Providers' knowledge of and liability for infringers' activities, as well as their use of the fair use doctrine as an affirmative defense against charges of contributory infringement. In 1998, the DMCA limited the liability of "service providers" for some forms of infringement. For more information on ISP liability, see the Copyright Crash Course, "Is Your Library an Internet Service Provider Under the DMCA?"
1995: Release of the White Paper
The culmination of the NII Working Group's efforts was release of the white paper in September 1995. The white paper contained recommendations to amend the Copyright Act of 1976 and presented a lengthy legal analysis of current copyright law. The white paper's legislative amendments and recommendations were introduced in Congress as the NII Copyright Protection Act of 1995 (S. 1284 and H.R. 2441).
1996: TRIPS Agreement
In December 1994, President Clinton signed the Uruguay Round Agreements Act (URAA) which implemented the General Agreement on Tariffs and Trade (GATT) including Trade-Related Aspects of Intellectual Property (TRIPs). Provisions in the URAA amended U.S. copyright law. On January 1, 1996, copyright for works from eligible countries was restored.
1996: Database Protection Legislation
In May 1996, Rep. Carlos Moorhead (Chair, House Judiciary Subcommittee on Courts and Intellectual Property, R-CA) introduced the Database Investment and Intellectual Property Antipiracy Act of 1996 (H.R. 3531). The legislation was comparable to a European sponsored initiative to protect databases for fifteen years from unauthorized extractions of more than an insubstantial part of the database contents. A variety of bills were introduced until 1999. Discussions on this extremely controversial legislation continued throughout 2002, with congressional staff trying to craft a compromise bill. See the ARL Public Policies information on database legislation site.
1996: Princeton University Press, MacMillan Inc., and St. Martin's Press v. Michigan Document Services, Inc., and James Smith
In November 1996, the Sixth Circuit Court of Appeals decided in an eight to five ruling in favor of publishers who sued Michigan Document Services (MDS). MDS was an off-campus, for-profit photocopy shop whose owner, James Smith, made coursepacks that included substantial portions of copyright protected books and sold them to students. Smith claimed his use of the material was a fair use and in February 1996 the same court had ruled in his favor. However, in April 1996 the judges of the court voted to rehear the case en banc,leading to the November ruling. MDS appealed the case in January 1997; however, the U.S. Supreme Court refused to hear the case.
1996: World Intellectual Property Organization (W.I.P.O.)
Delegates from 160 countries considered two treaties on international intellectual property law during a Diplomatic Conference convened in December 1996 in Geneva, Switzerland. The delegates adopted new versions of the proposed treaties resulting in a new approach to copyright issues. The Conference adopted a statement ensuring the two treaties would "permit application of fair use in the digital environment." The treaty language emphasized "the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information."
1998: Sonny Bono Copyright Term Extension Act
On October 7, 1998, the House and Senate passed S. 505, the Copyright Term Extension Act (CTEA). The law extended protection from life of the author plus fifty years to life of the author plus seventy years. President Clinton signed the measure into law on October 27, 1998 (P.L. 105-298). The law's provisions applied to works under copyright on the date of its implementation. An exception permits libraries, archives, and non-profit educational institutions to treat copyrighted works in their last twenty years of protection as if they were in the public domain for non-commercial purposes, under certain limited conditions. See the ARL Public Policies site for updates.
President Clinton signed the Digital Millenium Copyright Act (DMCA) into law on October 28, 1998 (P.L. 105-304). The law's five titles implemented the WIPO Internet Treaties; established safe harbors for online service providers; permitted temporary copies of programs during computer maintenance; made miscellaneous amendments to the Copyright Act, including amendments which facilitated Internet broadcasting; and created sui generisprotection for boat hull designs. A controversial title establishing database protection was omitted by a House-Senate Conference.
Among the most controversial provisions of the DMCA is Section 1201. According to Jonathan Band of Morrison & Foerster, LLP, Section 1201 "prohibits gaining unauthorized access to a work by circumventing a technological protection measure put in place by the copyright owner where such protection measure otherwise effectively controls access to a copyrighted work. This prohibition on unauthorized access takes effect two years after enactment of the DMCA." Over the next two years, the Librarian of Congress conducted a rulemakingproceeding to determine appropriate exceptions to the prohibition. Additional rulemakings will occur every three years.
For more information on the DMCA, see ARL's page on the Digital Millennium Copyright Act of 1998 and the Home Recording Rights Coalition: DMCA Legislative History.
1999: Bender v. West Publishing Co.
The U.S. Supreme Court denied certiorari, or refused to hear, two cases under appeal by West Publishing Company. By rejecting the request, the U.S. Supreme Court let stand two decisions by the Second Circuit Court of Appeals in favor of Matthew Bender & Co. and Hyperlaw, Inc.
The Second Circuit Court of Appeals limited the ability of West Publishing Corporation to copyright legal decisions. In two rulings, Matthew Bender v. West Publishing Co. and Matthew Bender Co. and Hyperlaw Inc. v. West Publishing Co. and West Publishing Corporation,the Court determined that the changes that West Publishing made to judicial opinions were not sufficient to warrant additional legal protection of the decisions. The Court noted that, "all of West's alterations to judicial opinions involve the addition and arrangement of facts, or the rearrangement of data already included in the opinions, and therefore any creativity in these elements of West's case reports lies in West's selection and arrangement of this information. In light of accepted legal conventions and other external constraining factors, West's choices on selection and arrangement can reasonably be viewed as obvious, typical, and lacking even minimal creativity. Therefore, we cannot conclude that the district court clearly erred in finding that those elements that Hyperlaw seeks to copy from West's case reports are not copyrightable, and affirm."
1999: UCITA Passed by NCCUSL
In July 1999, the National Conference of Commissioners on Uniform State Laws (NCCUSL) passed the Uniform Computer Information Transaction Act (UCITA, formerly UCC 2B). UCITA is a proposed state law that seeks to create a unified approach to the licensing of software and information.
1999: Digital Theft Deterrence and Copyright Damages Improvement Act of 1999
Congress approved a significant hike in the minimum statutory damages for various types of copyright infringement in the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 (H.R. 3456). The law increased the minimum statutory damages for infringements from $500 to $750 and increased the maximum from $20,000 to $30,000. The maximum for willful infringement increased from $100,000 to $150,000.
2000: Virginia Passed UCITA
On March 14, 2000, Governor Jim Gilmore of Virginia signed UCITA into law. Virginia was the first state to approve the legislation. Maryland passed it in April 2000. The highly controversial legislation is under consideration in several state legislatures.
The Anti-Circumvention Provision of the DMCA, Section 1201(a)(1), allows exemptions from the prohibition on circumvention of technological protection measures for "persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be . . . adversely affected." Congress directed the Register of Copyrights to review the section and to issue recommendations to the Librarian of Congress on "classes of works" that should be exempt from the ban on circumvention.
Members of the Shared Legal Capability (made up of representatives of the five major library associations: the American Library Association, the American Association of Law Libraries, the Association of Research Libraries, the Medical Library Association, and the Special Libraries Association) had called for a broad exemption from technological protection measures in order to ensure that library users could exercise fair use of protected material. The Assistant Secretary for Commerce, Gregory Rohde, noted that "information crucial to supporting scholarship, research, comment, criticism, new reporting, life long learning, and other related lawful uses of copyrighted information should never become available only to those with the ability to pay." He called for exemptions "grounded in the principle of fair use" that would allow the public to fully realize their access to lawfully acquired information.
On October 27, 2000, the Librarian of Congress announced the exemption of two narrow classes of works: compilations of lists of websites blocked by filtering software applications; and literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage, or obsolescence. In issuing the rulemaking, the Librarian of Congress noted several concerns and stated his intent to call upon Congress to reconsider selected aspects of the copyright legislation. In particular, he noted the "potential damage to scholarship" and possible harm to "American creativity" resulting from provisions in the statute.
The full recommendation of the Register of Copyrights and determination of the Librarian of Congress can be found at: http://www.loc.gov/copyright/1201/anticirc.html.
2000: Register.com v. Verio
Verio extracted information from the publicly available Register.com WHOIS database for use in telemarketing. In response, Register.com sued Verio and was successful in New York Southern District Court in December 2000. The judge ordered Verio to stop using customer contact information it had acquired through the WHOIS database for mass marketing purposes. At issue are limits on access to and use of personal information on publicly available online databases.
2001: Greenberg v. National Geographic Society
Two photographers claimed that the inclusion of their photographs in the National Geographic Society's (NGS) CD-ROM version of the NGS magazine violated their copyrights and that the NGS was not exempt under Section 201(c) of the Copyright Act. Section 201(c) permits the owner of copyright in a collective work, such as a magazine or encyclopedia, to reproduce and distribute an individual author's freelance contribution "as part of that particular collective work, any revision to that collective work, and any later collective work in the same series."
"The Complete National Geographic," a thirty-disc CD-ROM set, reproduced each monthly issue of the National Geographic magazine from 1888 through 1996. Each NGS magazine included in the CD-ROM is an exact replica of the entire magazine; thus a user encounters photographs of a freelance author's article in the original context.
2001: New York Times v. Tasini
On June 25, 2001, the U.S. Supreme Court issued its decision in the case of The New York Times v. Tasini.In a decisive 7-2 ruling, the Justices upheld an appeals court ruling that the reuse of a freelance author's work on CD-ROMs and in commercial electronic databases without the author's permission constituted copyright infringement. In its ruling, the Court rejected the publishers' argument that a ruling for the authors would have "devastating" consequences, requiring them to delete freelance writers' works in commercial electronic databases. The Supreme Court explicitly noted in its opinion that deletion of the freelance writers' articles was not necessarily the only outcome and that publishers could explore other alternatives. The Justices pointed out that there are "numerous models for distributing copyrighted works and remunerating authors for their distribution" such as the system of blanket performance licenses for musical compositions.
The New York Times now requires permission for electronic republication of works by freelance authors, but this was not standard industry practice until the 1990s. Equally important, implicit in the Court's decision was the recognition that the nation's libraries and archives continue to provide access to the historical record of periodicals and newspapers. In addition, the Court's ruling recognized that certain archival media, such as microfilm and microfiche, do not infringe freelance authors' copyrights. Ultimately, The New York Times and other publishers chose to remove the freelance writers' works, as many as 115,000 articles, from Lexis/Nexisand other full-text databases if the writers did not waive t heir claims for compensation under the decision.
2001: Russian Programmer Arrested for Copyright Circumvention
Among the first challenges to the DMCA was the case of Dmitri Sklyarov, a Russian programmer accused of circumventing copyright protections in Adobe Systems’ eBook Reader while working for a Russian software firm, ElcomSoft. Sklyarov was arrested in July 2001. ElcomSoft was charged with one count of conspiracy and four counts of trafficking in technology used to circumvent copyright protections.
On April 2, 2002, Judge Ronald Whyte of the Northern District of California denied a motion to dismiss the prosecution of ElcomSoft. ElcomSoft’s attorneys argued that the actions at issue in the case occurred outside of the U.S., and that the law banned tools that consumers could use for legitimate purposes, such as blind people converting e-books to audio files to be read aloud by their computers. Finally, the attorneys argued that computer code is speech and is therefore protected under the first amendment to the U.S. Constitution.
2001: State Sovereign Immunity
According to the Eleventh Amendment to the U.S. Constitution, state entities, including universities and libraries, may not be held liable in federal court cases. After a series of U.S. Supreme Court decisions held that the sovereign immunity clause exempts state entities from adherence to federal intellectual property laws, the Texas Northern District Court took up the question of state immunity from copyright infringement litigation in January 1998. The court concluded that a state agency cannot be held liable for copyright infringement in federal court. In April 1998, the Fifth Circuit Court of Appeals affirmed the decision, finding that the University of Houston, a state agency, could not be held liable in federal court for copyright infringements.
On November 1, 2001, Patrick Leahy (Chair, Committee on the Judiciary, D-VT) introduced S. 1611, the "Intellectual Property Protection Restoration Act of 2001," to address what is seen by many as an inequitable situation under which state entities can use federal law to protect their own intellectual property but may infringe the copyright, patent, and trademark laws that protect others' intellectual property. S. 1611 would make the availability of federal intellectual property protection laws contingent upon the voluntary waiver by states of their own immunity from suit under the sovereign immunity clause of the U.S. Constitution.
2002: Consumer Broadband and Digital Television Promotion Act (S. 2048) Introduced in Senate
On March 21, 2002, Sen. Ernest Hollings (Chair, Committee on Commerce, Science, and Transportation, D-SC) introduced the "Consumer Broadband and Digital Television Promotion Act" (S. 2048). The goal as stated in the bill is "to regulate interstate commerce in certain devices by providing for private sector development of technological protection measures to be implemented and enforced by Federal regulations to protect digital content and promote broadband, as well as the transition to digital television, and for other purposes." The bill requires that any device that can record, receive, or store copyrighted digital information comply with copy-protections encoded in digital works such as DVDs, CDs, and electronic books.
2002: ABA Issues UCITA Report
The National Conference of Commissioners on Uniform State Laws (NCCUSL), the body that introduced UCITA in 1999 and continues to promote its adoption by state legislatures, met in early August 2002. The UCITA Standby Committee, responsible for drafting UCITA, proposed thirty-eight amendments. Those amendments were adopted despite a lengthy debate in which delegates pushed for additional changes. Forty delegates signed a petition to downgrade UCITA from a "uniform law" to a "model law," a move that would remove NCCUSL's obligation to promote the law in state legislatures. Although the effort was unsuccessful, the debate revealed widespread disenchantment with UCITA within NCCUSL.
On January 31, 2002, the ABA Working Group assigned to review UCITA issued its reportto the Board of Governors. UCITA seeks to replace the public law of copyright with the private law of contracts. UCITA was passed by state legislatures in Maryland and Virginia in 2000, but has yet to pass in other states due to significant opposition in the public and private sectors.
As part of the ABA review, NCCUSL, the body responsible for drafting UCITA in 1999, scheduled hearings in fall 2001 and invited interested parties to submit amendments. Representatives from ARL, ALA, and AALL drafted two amendments: 1.) To clarify that terms in non-negotiated licenses would not be enforceable if they prohibited activities normally permissible under federal copyright law; and 2.) To broaden the criteria for declaring such contract terms unenforceable.
2002: U.S. Supreme Court Hears Challenge to 1998 Copyright Term Extension Act
On October 9, 2002, four years after Congress passed the Sonny Bono Copyright Term Extension Act (CTEA), the U.S. Supreme Court heard arguments in a challenge to the Act’s constitutionality. Lawrence Lessig, noted legal scholar with the Stanford Law School Center for Internet & Society, represented petitioners in Eric Eldred v. John Ashcroft. Passed in October 1998, the CTEA retrospectively extended copyright protection of existing works by 20 years, from the life of the author plus 50 years (as mandated in the 1976 Copyright Act) to life of the author plus 70 years. The Act prospectively added 20 years of copyright protection to future works. For works made for hire, the term of protection was extended from 75 to 95 years, thus allowing major corporations such as Disney an additional 20 years of control over their works. In February 2001, a federal appeals court found that retroactive term extensions by Congress were permissible under the Copyright Clause and rejected the argument that the CTEA is unconstitutional. The U.S. Supreme Court is expected to announce a decision in spring 2003.
2002: Senate Approves Distance Education Legislation
The "Technology Education and Copyright Harmonization Act," or the "TEACH Act" (S. 287) became law on November 2, 2002. The legislation supported by members of the higher education and library communities, implements recommendations made by the Copyright Office in 1999. Among the benefits of the Act for distance education are an expansion of the scope of materials that may be used in distance education; the ability to deliver content to students outside the classroom; the opportunity to retain archival copies of course materials on servers; and the authority to convert some works from analog to digital formats. On the other hand, the TEACH Act conditions those benefits on compliance with numerous restrictions and limitations. Among them are the need to adopt and disseminate copyright policies and information resources; implementation of technological restrictions on access and copying; adherence to limits on the quantity of certain works that may be digitized and included in distance education; and use of copyrighted materials in the context of "mediated instructional activities" akin in some respects to the conduct of a traditional course.
2003: Eldred v. Ashcroft
On January 15, 2003, the United States Supreme Court ruled in Eldred v. Ashcroft, a challenge to the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act. The Court rejected the plaintiff's argument that repeated retroactive copyright term extensions would be in violation of intent of the Constitution's Copyright Clause's "for limited Times" term.
2003: Dastar Corp. v. Twentieth Century Fox Film Corp.
In Dastar Corp. v. Twentieth Century Fox Film Corp., the Supreme Court ruled that works in the public domain could be repackaged and sold as new works without providing credit or citation to the original authors. Dastar had purchased videotapes of a TV series originally published by Fox that had entered into the public domain. When Dastar edited, repackaged, and sold the TV series, it provided no attribution back to the original authors. Fox sued Dastar for violation of §43(a) of the Lanham Act. The Court rejected this theory, reasoning that a plain text interpretation of §43(a) did not support Fox’s claims and that Fox’s interpretation of §43(a) would conflict with the policy goals of the Copyright Act provisions on public domain and the limited authorial rights in the Visual Artists Rights Act.
2003: Kelly v. Arriba Soft
In Kelly v. Arriba Soft, a photographer sued the search engine company, Arriba Soft, for thumbnails of and in–line linking to images hosted on his website. On appeal, the Ninth Circuit ruled that the thumbnails Arriba Soft created of Kelly's photos were covered by fair use exemptions and did not constitute copyright infringement.
2004: Chamberlain Group Inc. v. Skylink Techs. Inc.
In Chamberlain Group Inc. v. Skylink Techs. Inc., the Federal Circuit ruled in a court battle between a garage door manufacturer, Chamberlain, and the manufacturer of universal garage door openers, Skylink. In order to work with Chamberlain's garage door system, Skylink needed to circumvent a lockout code contained in Chamberlain's embedded software. Chamberlain claimed that Skylink, by doing so, violated the anti–circumvention provision of the Digital Millennium Copyright Act.
The court rejected Chamberlain's claim and found that the anti–circumvention provision of the Digital Millennium Copy Act required that the circumvention either infringe or contribute to infringement of copyright. Skylink's circumvention of the Chamberlain garage door opening code could not meet this requirement, as no copyright infringement was furthered by the Skylink universal garage door opener.
2004: Lexmark v. Static Control Components
In Lexmark v. Static Control Components, Lexmark sued Static Control Components to block third–party suppliers from providing discount ink cartridges compatible with Lexmark's printers. Lexmark printers contained proprietary software that would only accept Lexmark ink cartridges, which also contained proprietary software. Static Control Components reverse engineered the embedded Lexmark ink cartridge software and provided microchips to third–party companies who produced Lexmark compatible cartridges. Lexmark sued Static Control Components for both copyright infringement and violation of the DMCA's anti–circumvention provisions. The court, however, rejected both of these claims. In particular, the court found that the DMCA anti–circumvention provision could only apply if the circumvented measure protected copyright material from all forms of access. Lexmark's technological measure, however, restricted only one form of access.
2005: Family Entertainment and Copyright Act
The Family Entertainment and Copyright Act was enacted on April 27, 2005. One part of the Act, the Artist's Rights and Theft Prevention Act of 2005, created criminal penalties for individuals who record motion pictures in a theater or for individuals who distribute unpublished works, such as movies or software. The Family Entertainment and Copyright Act also included the Family Home Movie Act of 2005. The Family Home Movie Act provided a statutory exemption for DVD players and other home movie players that contain technology to skip objectionable content.
2005: Faulkner v. National Geographic Society
In Faulkner v. National Geographic Society, the National Geographic was sued by past contributors for copyright infringement for creating and selling a CD–ROM collection of past issues of the National Geographic Magazine. National Geographic argued that the CD–ROM collection of past magazines was a compilation revision, allowed under copyright law, and not a new derivative work. National Geographic had previously been sued and lost in the case, Greenberg v. National Geographic Society, for their CD–ROM collection.
Faulkner, however, was brought after the Supreme Court decided New York Times Co. v. Tasini and clarified which digital distributions could be considered revisions. The Second Circuit, relying on Tasini, split with the Eleventh Circuit Greenberg court and held that the National Geographic CD–ROMs were a revision under copyright law. The Supreme Court declined to hear an appeal from the Faulkner case, so a split persists between the Second and Eleventh Circuits.
2005: American Library Association v. Federal Communications Commission
In November of 2003, the Federal Communications Commission (FCC) adopted a rule that would have required manufacturers of digital television equipment to honor a "broadcast flag" — copy protection for digital TV — embedded in TV signals. Library and consumer organizations challenged the FCC order on the grounds that the FCC had exceeded their statutory authority. The U.S. Court of Appeals for the District of Columbia Circuit agreed with the plaintiffs and ruled, in American Library Association v. Federal Communications Commission, that the FCC's authority ended at the point of signal transmission.
2005: Metro-Goldwyn-Mayer Studios v. Grokster
On June 27, 2005, the United States Supreme Court ruled against Grokster, a peer-to-peer file-sharing company. Grokster had sought to avoid secondary copyright infringement liability by relying on Sony Corp. v. Universal City Studios. Grokster argued that Sony limited distributor liability for any technology that had substantial non–infringing uses.
In Metro-Goldwyn-Mayer Studios v. Grokster, the Court distinguished Sony and found that the possibility of substantial non–infringing use of a product did not shield a distributor who "promot[ed] its use to infringe copyright." The Court sent the case down for further proceedings, but adopted an active inducement theory that would hold any active inducers liable for secondary copyright infringement.
2005: Google Library Project
In 2005, Google launched a project to digitize and index the collections of several research libraries. Google seeks to use the digitized books in its search engine by providing brief, few sentence long or less, search results. Google will then provide links to websites from which the books can be purchased and libraries from which the books can be borrowed. Five publishers have sued Google for copyright infringement, and the Authors Guild has filed a separate class action against Google. Based on the limited quotations actually displayed to the user, Google has argued that ots use of the books falls under the fair use provision of the Copyright Act.
2006: Field v. Google
On January 19, 2006, Google prevailed in a case brought by an author and lawyer who alleged that Google violated the reproduction and distribution rights of his original web content by providing copies through Google's website cache. The Court, however, found that Field had granted Google an implicit license by failing to indicate that the content should not be archived, even though he was aware of technical steps to block archiving. Furthermore, the Court found that Google's use of the web content was fair and that Google's automatic, non–volitional delivery of cached content could not constitute direct infringement under the Copyright Act.
2006: Perfect 10 v. Google
In Perfect 10 v. Google, the adult website and publisher Perfect 10 sued Google for direct and secondary copyright infringement stemming from Google Image Search. Google Image Search indexes images publicly available on the Web and presents the results as thumbnails of and links to responsive images. Google indexed third–party websites that hosted infringing Perfect 10 images and thus linked to and created thumbnails of Perfect 10 images. Perfect 10 sued Google for the thumbnails, the links to the infringing images, and for secondary infringement by creating an audience for the infringing content.
The district court in Perfect 10 v. Google ruled that Google did not infringe by linking to infringing images or by "creating an audience." The court adopted a "server test" for in–line linking that would hold Google liable only for content hosted on its own web servers. The court, however, distinguished Perfect 10 v. Google from Kelly v. Arriba Soft and ruled that Google's thumbnails were not covered under fair use. In Perfect 10, the court found that Google profited from ads placed on the infringing websites. The court also found that Google's thumbnails competed with similar size and quality images Perfect 10 licenses for mobile viewing.
Both Perfect 10 and Google have appealed the decision to the Ninth Circuit Court of appeals.
2006: HR 5439
In 2005, the Copyright Office began studying "Orphan Works," works still under copyright whose owners cannot be located. The Copyright Office conducted two roundtable discussions and several informal discussions with groups representing copyright owners and users. The office released a report to Congress detailing the problem and suggesting a possible legislative approach to solve the problem.
After extensive negotiations, Chairman Lamar Smith (chair, Subcommittee on Courts, Internet, and Intellectual Property, Committee on the Judiciary and R–TX) introduced H.R. 5439, "Orphan Works Act of 2006." The bill has been reported out of the Subcommittee and is pending before the House Committee on the Judiciary.
2006: CleanFlicks v. Soderbergh
CleanFlicks provides edited versions of DVD movies to home viewers who wish to avoid objectionable content. On July 6th, 2006, CleanFlicks lost a court case, CleanFlicks v. Soderbergh, against a group of directors and motion picture studios who claimed that CleanFlicks infringed their exclusive right of distribution. The Court rejected CleanFlicks's fair use defense, finding that CleanFlicks's edits were non–transformative and that public benefits were not outweighed by "the intrinsic value of the right to control the content of the copyrighted work which is the essence of the law of copyright." The case is currently on appeal.
Patterson, Lyman Ray and Stanley W. Lindberg. The Nature of Copyright: A Law of Users' Rights.Athens: University of Georgia Press, 1991.
Patterson, Lyman Ray. Copyright in Historical Perspective.Nashville: Vanderbilt University Press, 1968.
Rose, Mark. Authors and Owners: The Invention of Copyright.Cambridge, Mass.: Harvard University Press, 1993.
Samuels, Edward. The Illustrated Story of Copyright.New York: St. Martin's Press, 2000.
Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity.New York: New York University Press, 2001.
This timeline was written and compiled by ARL staff. The timeline is a work-in-progress and will be continually updated. The authors would like to thank Stanley Katz, Director, Princeton University Center for Arts and Cultural Policy Studies, for reading and offering valuable advice on this timeline.