Copyright on the Internet: A Critique of the White Paper\u27s Recommendation for Updating the Copyright Act and How the Courts Are Already Filling in Its Most Important Shortcoming, On-Line Service Provider Liability

The current technological challenge for American copyright law is the National Information Infrastructure (NII), which is a network of networks used to carry digital transmissions through thousands of computer networks using a common set of protocols. Currently, the Copyright Act does not expressly include works created, copied, transmitted, or performed on the NII. President Clinton formed the Information Infrastructure Task Force (the Working Group) to articulate and implement the Administration\u27s vision for the National Information Infrastructure. On September 5, 1995, the Working Group released the White Paper which addresses special intellectual property concerns and issues raised by the development and use of the NII. The White Paper unquestionably makes solid strides in the direction of affording copyright protection to works transmitted on the NIL The primary problem with the report, however, is its self-admitted conservatism in refusing to make recommendations concerning issues that may prove to be a passing fad. The Working Group\u27s shortsightedness causes its recommendations either to be overly-restrictive or to fail to meet the needs of authors currently using the NIL In this Note, analysis of the White Paper falls into three parts. First, a summary of the relevant principles underlying copyright law, including a survey of cases pertinent to an analysis of copyright protection on the NII, will be presented. Second, the actual changes recommended by the White Paper will be analyzed. Third, the White Paper\u27s failure to set forth the law regarding the potential liability of on-line service providers will be examined using subsequent cases which have attempted to establish appropriate liability