BACKGROUND 16 Intellectual property is a subtle and esoteric area of the law that evolves in response to technological change.' Advances in technology particularly affect the operation and effectiveness of copyright law. Changes in technology generate new industries and new methods for reproduction and dissemination of works of authorship, which may present new opportunities for authors, but also create additional challenges. Copyright law has had to respond to those challenges, from Gutenberg's moveable type printing press to digital audio recorders and everything in between photocopiers, radio, television, videocassette recorders, cable television and satellites.17 - Uses of computer technology -- such as digitization and communications technology such as fiber optic cable -- have had an enormous impact on the creation, reproduction and dissemination of copyrighted works. The merger of computer and communications technology into an integrated information technology has made possible the development of the National Information Infrastructure which will generate both unprecedented challenges and important opportunities for the copyright marketplace. An information infrastructure already exists, but it is not integrated into a whole. Telephones, televisions, radios, computers and fax machines are used every day to receive, store, process, perform, display and transmit data, text, voice, sound and images in homes and businesses throughout the country. Fiber optics, wires, cables, 16 Supreme Court Justice Story found that copyright and patent cases come "nearer than any other class of cases belonging to forensic discussions, to what may be called the metaphysics of the law where the distinctions are, or at least may be, very subtile [sic] and refined, and, sometimes, almost evanescent." See Folsom v. Marsh, 9 F. Cas. 342, 344 (C.C.D. Mass. 1841) (No. 4,901). 17 The original copyright law upon which our system was based (England's Statute of Anne) was a reaction to the invention of the printing press. switches, routers, microwave networks, satellites and other communications technologies currently connect telephones, computers and fax machines. The NII of tomorrow, however, will be much more than these separate communications networks; it will integrate them into an advanced high-speed, interactive, broadband, digital communications system. Computers, telephones, televisions, radios, fax machines and more will be linked by the NII, and users will be able to communicate and interact with other computers, telephones, televisions, radios, fax machines and more -- all in digital form.18 The NII has tremendous potential to improve and enhance our lives. It can increase access to a greater amount and variety of information and entertainment resources that can be delivered quickly and economically from and to virtually anywhere in the world in the blink of an eye. For instance, hundreds of channels of "television" programming, thousands of musical recordings, and literally millions of "magazines" and "books" can be made available to homes and businesses across the United States and around the world. 19 The NII can provide access to rich cultural resources around the world, transforming and expanding the scope and reach of the arts and humanities. It will provide opportunities for the development of new markets for cultural products. It can broaden our cultural experiences through diversity of content, and increase understanding of other societies. our 18 These devices will be linked not only to each other (computer to computer, for example) but will also be cross-linked (computer to television set). 19 The United States and other countries are working toward the development of an advanced Global Information Infrastructure (GII) that "will allow us to share information, to connect, and to communicate as a global community." And as that information moves through international channels, "[p]rotecting intellectual property is absolutely essential." See Remarks Prepared for Delivery by Vice President Al Gore at the International Telecommunications Union in Buenos Aires, Argentina (March 21, 1994). The NII can support our education systems by, for example, linking students and educators in remote locations around the world. It can also improve the nation's health care systems by increasing public awareness of health issues, providing continuing education of health care professionals, and allowing patients to take a more active role in their own health care. The NII can dramatically increase the opportunity for democratic participation in government. The Task Force has shown some of the potential in its work. For instance, the IITF Bulletin Board makes available copies of Task Force reports, testimony, speeches, meeting schedules and minutes, hearing notices, transcripts, and other documents related to the work of the Administration and opportunities for public participation.20 The Task Force has also accepted comments from the public through the Internet and has conducted an on-line public conference.2 Individuals and entities that heretofore have been predominately consumers of works can now become authors and providers through the NII. It can put easier, more sophisticated communication and publishing tools in the hands of the public, increasing the ability to communicate with, and disseminate works of authorship to, others. The NII can boost the ability of U.S. firms to compete and succeed in the global economy, thereby generating 20 The IITF Bulletin Board can be accessed through the Internet or by use of a personal computer and modem. See supra note.11. 21 Comments on the Green Paper were accepted at an Internet address. See Notice of Hearings and Request for Comments on Preliminary Draft of the Report of the Working Group on Intellectual Property Rights, 59 Fed. Reg. 42,819 (Aug. 19, 1994); Extension of Deadline for Comments on Preliminary Draft of the Report of the Working Group on Intellectual Property Rights, 59 Fed. Reg. 50,222 (Oct. 3, 1994). The IITF Universal Service Working Group and the Commerce Department's National Telecommunication and Information Administration hosted a "Virtual Public Conference" in November 1994 utilizing a series of electronic mail discussion groups. See 59 Fed. Reg. 55,081 (Nov. 3, 1994). more jobs for Americans. It can spur economic growth. More than half of the U.S. work force is in informationbased jobs, and the telecommunications and information sector is growing faster than any other sector of the U.S. economy. New job opportunities can be created in the processing, organizing, packaging and dissemination of the information and entertainment products flowing through the NII. The NII can provide benefits to authors and consumers by reducing the time between creation and dissemination. It will open additional markets for authors. If authors choose to enter those new markets, it will provide a wider variety and greater number of choices for consumers, which should increase competition and reduce prices. The availability of these benefits is by no means assured, however. Authors are wary of entering this market because doing so exposes their works to a higher risk of piracy and other unauthorized uses than any of the traditional, current modes of dissemination. Therefore, authors may withhold their works from this environment. Further, even if authors choose not to expose their works to this more risky environment, the risk is not eliminated. Just one unauthorized uploading of a work onto a bulletin board, for instance unlike, perhaps, most single reproductions and distributions in the analog or print environment -- could have devastating effects on the market for the work. - - Thus, the full potential of the NII will not be realized if the education, information and entertainment products protected by intellectual property laws are not protected effectively when disseminated via the NII. Creators and other owners of intellectual property rights will not be willing to put their interests at risk if appropriate systems both in the U.S. and internationally -- are not in place to permit them to set and enforce the terms and conditions under which their works are made available in the NII environment. Likewise, the public will not use the services available on the NII and generate the market necessary for its success unless a wide variety of works are available under equitable and reasonable terms and conditions, and the integrity of those works is assured. All the computers, telephones, fax machines, scanners, cameras, keyboards, televisions, monitors, printers, switches, routers, wires, cables, networks and satellites in the world will not create a successful NII, if there is no content. What will drive the NII is the content moving through it. Ensuring consumer access to and enjoyment of both copyrighted works and new technologies is an attainable goal, and recent experience has confirmed this." For example, the introduction of digital audio tape recorders recently posed significant problems for copyright owners. Congress responded to the increased threat of rampant unauthorized use with legislation that incorporated both technological and legal measures to protect the interests of both consumers and copyright owners. 23 22 See, e.g., Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 430-31 nn. 11-12 (1984) (hereinafter Sony) (discussing significance of changes in technology and their effect on copyright law); Final Report of the National Commission on New Technological Uses of Copyrighted Works (hereinafter CONTU Final Report) at 3 (reporting about the issues raised by photocopiers and computers back in 1978, in language that is equally applicable today) (citations omitted): 23 The ownership and control of information and the means of Congress enacted the Audio Home Recording Act of 1992, which combined legal and technological protection for sound recordings. See 17 U.S.C. § 1001 et seq. (Supp. V 1993). The Audio Home Recording Act requires a serial copy management system in all digital audio recording devices and digital audio interface devices imported, manufactured or distributed in the United States. Such a system allows unlimited first generation digital copying of sound recordings, but prevents the making of digital copies from copies. The Act prohibits the importation, manufacture or distribution of any device, or the offering or performance of any service, the primary purpose of which is to circumvent any program or circuit which implements a serial copy management |