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COPYRIGHT INFRINGEMENT ON THE INTERNET.

Defines copyright law. Discusses potential liability of third parties such as Web hosts and Internet Service Providers (ISP). English/American history of copyright law from books, to music, movies, Internet. Difficulty of enforcing copyright on regarding Internet. Issue of photocopying. Contributory infringement. Secondary infringement. Current copyright law. Court cases. Napster.

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In less than a decade, the Internet has gone from a little-known novelty used by computer scientists into a ubiquitous tool throughout America and the world. This growth can be attributed, in large part, to the fact that the American government adopted a laissez-faire approach, which allowed Internet users to create and define the medium. That lack of regulation, however, also has created tremendous opportunities for abuse, especially of copyrights. This paper will examine the issue of copyright infringement on the Internet, and the potential liability of third parties, such as Web hosts and Internet Service Providers (ISP).
Copyright is exactly that—the right to copy a given work. At its birth more than 300 years ago, it referred only to written work. Indeed, even today, written works are what spring to mind when

1171,1173-75 (N.D. Hardenburgh, 982 F.Supp. 5 . 3 2(a). Specifically, criticsasked why ISPs should be held to a different standard than publishers orphoto finishers, who face strict liability for copyright infringement.That argument proved sufficient to defeat the bill that would have limitedISPs' liability. During the next several decades, amendments and court cases extendedcopyright protection to photographs, commercial products, and motionpictures. "Limitations on Copyright Liability on the World Wide Web: The Growing International Consensus." UNESCO (April 5, 2 1): 1-41.Playboy Enterprises, Inc. Many,however, will utilize the Internet for illegal purposes: selling orswapping copyrighted materials such as books, pictures, software, andmusic. Justice Stevens, writing for themajority in the Sony case, altered that standard. This growth can be attributed, in large part, tothe fact that the American government adopted a laissez-faire approach,which allowed Internet users to create and define the medium. Theoretically, this provides incentives for some (but notall) writers to write and some (but not all) painters to paint. v. Copyright is instantaneous-once a work is written, painted, orcreated on a computer, it is copyrighted. ----------------------- [1]Paul Goldstein, Copyright's Highway: The Law and Lore of Copyrightfrom Gutenberg to the Celestial Jukebox (New York: Hill and Wang, 1994), p.3. More importantly, the 187 act barred unauthorizeduses of literary works.[11] After that, the debate over copyright law as a natural right ended,and the focus shifted to what kinds of works deserved copyright protection. Napster, Inc., 164 1 (9th Cir. [34]17 U.S.C. California 1995). [28]17 U.S.C. Constitution. 39. 1993). [39]Mark E. [18]Ibid., pp. Netcom, 9 7 F. 591 (1917).Oman, Ralph. California 1995).Sony v. Copyright is exactly that-the right to copy a given work. Enforcing a copyright against a person from a foreignjurisdiction may be costly and difficult at best and impossible at worst. Napster, Inc., 164 1 (9th Cir. 1552, 1559 (M.D.Fla. Frena, Playboy magazine sued the operator ofa bulletin board system (BBS) and won. [37]Sony v. Musicians, who faced this problemconstantly, decided to organize themselves into a group dedicated toprotecting those rights and realizing financial rewards from theircopyrighted songs. [27]17 U.S.C. v. But thatright must be balanced against society's needs. 144-145. California 1995). This paper will examine the issue of copyrightinfringement on the Internet, and the potential liability of third parties,such as Web hosts and Internet Service Providers (ISP). The court rejected that argument, finding that unlikeNetcom, the defendants actually determined what went on their site andbenefited from the infringement.[47] Similar cases have netted similarresults in which courts differentiate ISPs such as Netcom from theoperators of Internet sites.[48] These cases stand for the principle that some act of volition isrequired on the part of an ISP for a finding of copyright infringement.Nevertheless, ISPs feared the Frena standard might be reinstated by a courtsomewhere. In a landmark case, a unanimous U.S.Supreme Court ruled in favor of the artists, finding that they wereentitled to compensation any time their works were performed.[14] Thedefendant in the case argued that since the performance had not been forprofit (no one had been charged admission to the restaurant), nocompensation was due the composer. [1 ]Goldstein, Copyright's Highway, pp. Neither outcome seems likely. v. 68-69. Two days after the decision, two Senatorsintroduced a bill to overturn the ruling. Competing bills bogged downin Congress while Sony appealed its defeat to the U.S. Napster assists the transmission of MP3 files among its users via"peer-to-peer" file sharing. So far, this new generation of copyright holders hasmet with little success, but they keep trying. If at somepoint the tide turns and the scales tip in favor of copyright holders, thenISPs can expect to be subject to strict liability, along with otherpublishers. Ironically, another technological advance-the printingpress-gave birth to copyright law several centuries ago. So the church sued all three.[43] The court quickly dispensed with the claim of direct infringement.Netcom's only sin was to establish a computer network that allowed accessto the Internet. Suchcases are fairly straightforward. [3]Goldstein, Copyright's Highway, p. Recognizing that fact, copyright holders such as ASCAP are lobbyingCongress. [4]Ibid., p. [8]Ibid., p. In the colonies, however, itwas writers, rather than publishers, who led the push for copyrightprotection. 151-152. But the court reasonablyconcluded that holding a network provider liable for direct infringementevery time someone on the network posted or copied copyrightable materialwould lead to potential liability for countless parties and chaos wouldensue.[44] As for secondary infringement, the court found Netcom analogous to apublic photocopier-simply the vehicle of another. As has always been the case, copyrighting material is theeasy part. Gutenberg'sinvention allowed writers to mass produce their ideas on paper, and thatpaper was bound into a book and sold to the public. [2]Goldstein, Copyright's Highway, p. [24]Ibid., pp. [46]Harrington, pp. In Playboy Enterprises v. That reliance is enshrined into law in the form of the FirstAmendment's guarantees of freedom of speech and freedom of press. Universal Studios, 464 U.S. Supp. Judges have been verycareful not to raise any roadblocks, and so has Congress, which codifiedthe decision in the Scientology case into law.[46] The latter part of the ruling, however, does not square with Holmes'logic. [26]Sony v. [52]A&M Records, Inc. Consequently, copyright holders have turned to secondary infringement. The district court grantedthe plaintiffs' request for a preliminary injunction, which Napsterappealed to the Ninth Circuit Court of Appeals. Users of the Internet numbered in the thousands as recently as adecade ago. The basis for this right was common law, which gave farmersperpetual rights in their real property because they had mixed their laborwith the soil. Most users will utilize theInternet for lawful purposes: shopping, email, bulletin boards, etc. Patent law rewards creativity by givinginventors exclusive rights to exploit their inventions for a set period ofyears. 5 3 (N.D.Ohio 1997). This is especially true inthe United States, where democracy relies on a free and unrestraineddebate. To defend againstsuch a charge, Sony had to show that the infringing device (the BetamaxVCR) also had a use that was "substantially noninfringing." Sony arguedthat the viewers taped programs for two reasons: to watch them at anothermore convenient time, and to compile a film library. Webbworld, the defendant argued that it was only a conduit,like Netcom. 2. After all, Universal lostits first battle but later won on appeal (before eventually losing at theU.S. Ohio 1997).Playboy Enterprises, Inc. [51]A&M Records, Inc. [7]Ibid., pp. Radio broadcastersrejected ASCAP's demand for royalties, leading to yet another court case.The broadcasters argued that the performances were not for profit becauseno member of the public was present in the studio. At the very least, the judge needed to differentiate Holmes' logicthat if the music didn't pay it wouldn't be played. [11]Ibid., p. Supreme Court.[23] Scholars would later learn that the Court debated the issue back andforth, with justices constantly shifting sides. Supp. [6]Goldstein, Copyright's Highway, p. 56. Secondary infringement involves caseswhere the defendant did not personally infringe the plaintiff's copyrightbut is liable because their actions allowed the infringement to occur.[35] Secondary infringement comes in two forms: contributory, where thedefendant's actions contribute to the infringement (already discussed); andvicarious liability, where the defendant has the right and ability to endthe infringement by another and receives a financial benefit from theinfringement.[36] These two concepts often are conflated, as JusticeStevens did in his majority opinion in the Sony case.[37] Copyright provides a series of exceptions and defenses, the mostcommon of which is "fair use." Under fair use, individuals may usecopyrighted work for criticism, news reporting, parody, and other purposes. at 442. [36]Ibid. Almost as an afterthought, America's founding fathers includedcopyright protection in the U.S. Finally, the court found the fact that Frena did notupload the photos and did not know they had been uploaded irrelevantbecause intent is not a requirement for proving copyright infringement.[42] Two years later, however, a different result held when the Church ofScientology sued an ISP. Hardenburgh, 982 F.Supp. BibliographyA&M Records v. Tex. Copyright's Highway: The Law and Lore of Copyright from Gutenberg to the Celestial Jukebox. Exceptions can be found at 17 U.S.C. [33]17 U.S.C. [42]Playboy Enterprises, Inc. Harrington, On-line Copyright Infringement Liability forInternet Service Providers: Context, Cases & Recently Enacted Legislation,p. The marketplace willdetermine the value of every work submitted for consideration. Supp. 7-8. Const. Napster, Inc., 164 1 (9th Cir. ISPs counter that they are similar to telephone companies,which cannot be held liable when a phone user utters a defamatorystatement. Holmes' logic prevailedagain, this time in a lower court opinion written by another judge.Obviously, the radio stations wouldn't play the music if they weren'ttrying to make a profit, and as such, they could not broadcast those songswithout permission from the copyright holder.[16] New technology has since continued to test the copyright law.Photocopying, for example, has been the subject of litigation and debate,vexing both the Supreme Court and Congress. But those decisions have proven limited in scope. Fla. By 1897, the Library of Congress held 84 , volumes, themost of any library in the country, and nearly half had been acquired ascopyright deposits. Frena, 839 F. The Internet crosses borders;indeed, users often don't realize they are accessing a site in anothercountry. This is especially true for drugs. [23]Ibid., pp. 2. [12]Goldstein, Copyright's Highway, pp. During the 172 s, a groupof publishers challenged the law by mounting a novel legal case, the resultof which frames the terms of the copyright debate to this day. 55-56. Nevertheless, legislatorsstayed away from this issue, where regulation posed an even greater problemthan it did for photocopying.[18] As the English book publishers had done three centuries before, thecopyright holders went to court. To prove direct infringement, a copyright holder mustdemonstrate a valid copyright that has been copied by the defendant. 1361, 1366-1369 (N.D. 2 1).Goldstein, Paul. Webbworld, Inc., 968 F. -164 1 (9th Cir. [17]Goldstein, Copyright's Highway, pp. The publishers argued that the common law conferred similarrights upon the authors of books, and that right could be transferred.[6] This conflicted with parliament's law, which conferred a copyright fora set amount of time. If Netcom didn't allowcopyright infringement, then it might have to charge a lower fee or no feeat all. 1171 (N.D. 1 2(a). Both were fair use,and thus the company should not be found liable for contributoryinfringement.[2 ] In 1979, a judge ruled against the studios. Indeed, ISPs can prevail on the old standard by showing that theprimary use for their technology does not involve any copyrightinfringement. 5 3. Frena argued that hecould not be held liable because he did not personally upload any of thecopyrighted material and because he removed the material as soon as hebecame aware of the violation of Playboy's copyright.[41] The court, taking a straightforward approach, rejected that argumentand ruled in Playboy's favor. New York: Hill and Wang, 1994.Harrington, Mark E. Many sites chargeusers fees to download and exchange pornographic material. At what point doesphotocopying the work of another graduate from fair use to infringement?How could private copies be regulated? In other words, they allegedcontributory infringement.[19] Contributory infringement was a patent law term. It is also important to note what copyright law is not. Obviously, most works have no commercial value. 4 . Napster, Inc., 164 1 (9th Cir. 46-49. [31]17 U.S.C. Each found the purpose (the first prong of the test) to becopying a copyrighted work rather than transforming it, which might be fairuse. ASCAP immediately sought licensing feesfrom restaurants, clubs, and hotels that played their music, without muchsuccess.[13] So they went to court and won. v. Napster did not disputethe infringement by its users, but countered with the affirmative defenseof fair use.[53] According to Napster, those utilizing its site had specific fair uses:sampling (temporary copies; space-shifting (where users already own the CDand simply access it online; and permitted distribution of new andestablished artists. 44. [48]Playboy Enterprises, Inc., v. Tex. Consequently, they pushed Congress to enact a bill limiting theliability of ISPs for copyright infringement. v. [13]Ibid., pp. If harm would result from aninjunction, a damage award would suffice.[22] This time Congress reacted. 147-148. [5]Ibid., p. [38]17 U.S.C. Supp. Applies to works copyrighted since 1978. 591 (1917). 1993). Users could access thematerials for a fee. [2 ]Ibid., pp. The law lists four factors for courts to consider in determining fair use:(1) the purpose and character of the use, especially whether it iscommercial; (2) the nature of the work; (3) the amount of the copyrightedwork used; (4) how the use will affect the market value of the copyrightedwork.[38] That brings us to the Internet, the latest new technology to lay siegeto copyrights. 1 . They formed the American Society of Composers, Authors,and Publishers (ASCAP) in 1913. During the 192 s and 193 s, it was radio. Justice Oliver Wendell Holmes rejected that claim, writing that "[i]fthe rights under the copyright are infringed only by a performance wheremoney is taken at the door they are very imperfectly protected." Themusical performances were part of the total package that public paid for,according to Holmes, who noted that "[i]f the music did not pay, it wouldbe given up....Whether it pays or not, the purpose of employing it isprofit, and that is enough."[15] Soon, though, new technology again threatened to diminish the value ofcopyrights. 417 (1984). [16]Goldstein, Copyright's Highway, pp. They argue that ISPs benefit from the infringement that occurson their networks and that ISPs are in the best position to police theirsubscribers. The Courtheld that the harm that would result from an injunction did not justifyoffering no relief to the aggrieved parties. 2 1). There are waysto determine user identity, but often it is a difficult process that maynot be worth the effort. 1993).Playboy Enterprises, Inc., v. The first two refused to remove the materials, and Netcombalked because it would have had to prescreen Erlich's submissions or kickhundreds of users off its network. [53]A&M Records, Inc. 1361, 1377-1381 (N.D. So the court cases continue.Early in the process (early meaning 1993), the copyright holders scoredvictories. Closeone down and another will open. It may prove to be a hollowvictory. They are asking courts and Congress to impose vicarious liability on theconduits of information, the Internet Service Providers (ISPs) that makethe infringement possible.[39] This is similar to the strategy employed bythe movie studios, who found it impractical to attack the actual copyrightinfringers (individuals taping in their home) so they went after the makerof the device (Sony). Musical compositions had enjoyed copyright protection since1831, but technology created a new question: What about recorded music?Congress answered that question by extending protection to musicalrecordings in 19 9.[12] For many artists, holding the copyright meant little because theycould not enforce their rights. [21]Goldstein, Copyright's Highway, pp. Consequently, an ISP only has to show that its technology iscapable of being used for noninfringing purposes. 1 7. More importantly, ISPs argue that such a law would chill theirindustry and stifle (if not strangle) the industry.[4 ] Considering the exalted place held by the Internet on Capitol Hill,copyright holders are not expecting victory. Erlich posted portions of Scientology's copyrighted works on theBBS. Will it do any good? As has always been the case in copyright protection, thetechnology is far outstripping the ability of copyright holders to defendtheir rights. 417, 436 (1984). The limit on years balances the inventors' needto be able to exploit their creation with society's need to spread thebenefit of that invention to more people. Art. 143-144. England's American colonies followed their parent and adoptedcopyright protection that lasted 28 years. This invited confusion, which Congress tried to remedy bypassing a new Copyright Act in 187 .[1 ] The 187 act moved registration of copyright materials from federalcourts to the Library of Congress. "Accordingly, the sale of copying equipment, like thesale of other articles of commerce, does not constitute contributoryinfringement if the product is widely used for legitimate, unobjectionablepurposes. The bill, introduced in1998, did not pass, but the ardor has passed as more and more court caseshave gone in favor of ISPs.[49] The bill did not pass in part because of questions on Capitol Hillabout why ISPs should receive special treatment. 121 inclusive. [3 ]17 U.S.C. If people used a product primarily for copyrightinfringement, then liability could ensue. Companies spendmillions to establish a brand identity, and the trademark law protects thatidentity against encroachment.[2] Today, copyrights seemingly are under siege because of technology suchas the Internet. Indeed, enforcing one's copyright in thevirtual world has become virtually impossible. [35]Harrington, p. [19]Ibid., p. The district court and appeals court rejected thatargument. For example,copyright is not the same as a patent, which is designed to fosterinvention and technology. For these reasons, direct infringement lawsuits are not a viableoption. This technology first became available during the 197 s, amidstCongressional revisions of the copyright laws. This benefits society by creating huge incentives for researchersto develop new products. 148-151. [14]Herbert v. 39. Netcom, 9 7 F. 1552 (M.D. 1361, (N.D. That lack ofregulation, however, also has created tremendous opportunities for abuse,especially of copyrights. The nature of the use was simply to listen to the music (thesecond prong), and the portion used was the entire song (the third prong).Most of all, each court found that Napster failed on the fourth prongbecause the record companies would suffer considerable harm in themarketplace from the loss of sales.[54] Record companies and other victims of online copyright infringementhailed the decision as a resounding victory. Indeed, it need merely be capable of substantial noninfringinguses."[26] Contributory infringement is just one part of copyright law. Napster, No. Supreme Court). Ultimately that fact points to chilling reality for ISPs. 9. [32]17 U.S.C. Those seeking copyright protection hadto submit two copies-one for registration and one for the Library'scollection. Second, even if the copyright holder can identify the infringer, itmay not be possible to reach him or her. 5 4. Netcom, 9 7 F. First, the copyright holder may not be able to identify the infringer. The court rejected Frena's fair useclaim, finding that his BBS was commercial (he charged a fee) and that ifit became widespread, it would have an adverse impact on the value of thecopyrighted works. 146-147. [5 ]Harrington, p. [49]Harrington, p. However, copyright holders have not been able to enactlegislation that would impose strict liability because the aforementionedexalted position held by the Internet in Washington.[5 ] Against that backdrop arose the Napster case. Moreover, such processes run headlong intoprivacy concerns and laws designed to protect individual rights. Napster is an Internetsite that allows users to swap music files (known as MP3). The defendant operated a BBS whereusers browsed through the directories and downloaded images, many of whichwere copyrighted photographs from Playboy magazine. 1 8 to 17U.S.C. 2 1). Universal Studios, 464 U.S. 2 1). The law grants the copyright holder a series of exclusiverights for the exploitation of the work.[29] Infringement occurs whensomeone other than the copyright holder exploits the work in a manner thatviolates the holder's exclusive rights.[3 ] Remedies for copyrightinfringement include injunctions,[31] monetary damages,[32] and destructionof the infringing material,[33] plus court costs and attorneys' fees.[34] The courts recognize two forms of copyright infringement: direct andsecondary. No doubt someof the material is copyrighted, and the site owners do not hold thatcopyright. 4. TheInternet has become a colossal network where ideas are freely traded (andappropriated) amidst anarchy. In England, these questions wereanswered by the crown, which did not weigh the competing interests but onlyconsidered its self-interest. Certainly the court in this caseneeded to explain why Netcom was different from the restaurants in New Yorkplaying music. v. The movie studios, facingdefeat, gave up their demand for injunctive relief and adopted the approachof the Ninth Circuit by asking for royalties. PlayboyEnterprises v. [9]U.S. Currentcopyright law protects original works of authorship fixed in any tangiblemedium of expression"[27] for the life of the author plus 7 years.[28]This represents a change in American copyright law, brought about byCongress' desire to make the standards consistent with internationalregulations. The case involved an Internet where the defendants collectedadult entertainment materials and posted them. The case involved a former minister (Erlich) fromthe church, who subscribed to a BBS that operated on Netcom's Internetnetwork. Napster MusicShare software allows users tomake MP3 music files stored on their hard drives available for copying byother Napster users, to search for MP3 music files stored on other users'computers, and to transfer exact copies of the contents of other users' MP3files from one computer to another via the Internet.[51] All of this is provided free of charge by Napster, along withtechnical support for the indexing and searching of MP3 files. Such people will clearly be infringing on the copyright of another,but stopping them will be impossible in most cases. At itsbirth more than 3 years ago, it referred only to written work.[1]Indeed, even today, written works are what spring to mind when one mentionscopyright. By giving someone the absolute right to reproduce a work, written orotherwise, that person enjoys the absolute right to exploit that work forpecuniary gain. Frena, 839 F. Indeed, considering the plethora of pornographic sites on theInternet, it is hard to claim no vicarious liability. Supp. Regardless of whetherFrena actually copied the photos, he had provided the instrumentality thatallowed the copying and distribution of the photos, an exclusive right thatbelonged to the copyright holder. v. [45]Religious Technology Center v. Two weeks before the closeof the Constitutional Convention, the framers inserted a clause thatgranted Congress the power to grant "Authors and Inventors the exclusiveRights to their respective Writings and Discoveries."[9] Congress had the power to grant exclusive rights for a limited time.Thus, the new federal government had adopted a law very similar to England. Of course, ISPs can showthat. 58-67. "On-Line Copyright Infringement for Internet Service Providers: Context, Cases & Recently Enacted Legislation." Boston College Intellectual Property & Technology Forum (June 4, 1999): 1-17, www.bc.edu/bc_org/avp/law/st_org/iptf/articles/content/1999 6 4 1.htmlHerbert v. 72-73. Yes, copyrighted items had been copied using thatnetwork, but without Netcom's knowledge. [4 ]Harrington, p. Frena, 839 F. 1 6. [54] A&M Records, Inc. The court found thatwhile Netcom may have had the right to control Erlich's activities, itfound that Netcom did not derive any financial benefit from theinfringement. This debate lasted more than four decades, until anappeal to the House of Lords resulted in a finding that no such naturalright existed, and parliament's law (in which authors enjoyed copyrightprotection for 28 years) took precedence.[7] Judge Mansfield, a member of the House of Lords and an instrumentalbarrister, succinctly summarized the debate. [15]Herbert v. 1 . Moreover, a copyright holder could spend every day in court and stillnot be able to pursue every instance of infringement that occurs on theInternet. 1997). In less than a decade, the Internet has gone from a little-knownnovelty used by computer scientists into a ubiquitous tool throughoutAmerica and the world. To prevail, the copyright holders will have to convince the U.S.Supreme Court to overturn its ruling from the Sony case or convinceCongress to write a new law holding ISPs responsible for copyrightinfringement on their networks. Supp. [41]Playboy Enterprises, Inc. v. How about the numerous other sites that allow music swapping?Will the record companies go after them, too? Supp. Supp. Those questions needed to be explored. 2 1). Thus, after a number of years,the patent expires, and others can produce similar products for less,allowing more people to benefit. He held that theCopyright Act did not extend this far, and even if it did, fair useprecluded a finding of infringement. The Internet allows users to remain virtually anonymous. If a workis found to have commercial value, the goal of the copyright law-then andnow-is to ensure that any value derived from the work ends up in the pocketof the copyright owner. Later decisions have addressed exactly this issue. While this affects site operators more than ISPs, it isanalogous and worthy of more discussion. Napster'ssite also includes a chat room, where users can discuss music, and adirectory where artists can provide information about their music.[52] Several record companies sued, alleging direct infringement by Napsterusers and secondary infringement by Napster. The Court's Sony decision limited the scope of contributoryinfringement. Playboy had proved that it held copyright onthe photos and that the photos had been copied. [22]Ibid., pp. Users can storethe music on their hard drive and copy it to CDs. 129-137. So ISPs may want to enjoy the free ride now, because it maynot last. Universal Studios, 464 U.S. 5 3 (N.D. The materials included copyrighted photos fromPlayboy, but the defendants denied liability because they had not actuallycopied the photos. 591, 595 (1917). 5 1. [44]Ibid., pp. [43]Religious Technology Center v. Soon they could number a billion. 144. Universal Studios, 464 U.S. A publisherargued that he had purchased the copyright to a work from the author, andas such, asked the court to enjoin another publishing from printing thesame work. Shanley Co., 242 U.S. 1369-1372. "We must take care to guardagainst two extremes equally prejudicial; the one, that men of ability whohave employed their time for the service of the community, may not bedeprived of their just merits, and the reward of their ingenuity andlabour; the other, that the world may not be deprived of improvements, northe progress of the arts be retarded."[8] His words still resonate today. The church objected, first to Erlich, then to the BBS operator, thento Netcom. Netcom had uniform monthly subscriptions fees and the courtfound no evidence that the infringement allowed Netcom to gain moresubscribers.[45] The decision in the Scientology case, however, reflected the courts'growing sensitivity to the needs of Internet. No deposit is necessary, no copyneed be sent to the Library of Congress. 1552, 1554 (M.D.Fla. Or maybe we think of money, which is what copyright is allabout. Shanley Co., 242 U.S. 5 2. Napster was a high-profile site that could easily beattacked. However, the states were free to adopt whatever rules they saw fit, soperpetual copyrights derived from common law could be legal in some statesand not others. Similarly, copyright law is not to be confused with trademark law,which is designed to protect corporate identities. Shanley Co., 242 U.S. 5 5. 417 (1984). Enforcing that copyright, however, is as difficult as ever. 1, § 8. Neither Congress nor the SupremeCourt answered satisfactorily.[17] Technology continued its assault on copyright with videotape machinesthat allowed individuals to record television shows and movies in theirhomes. Thus, the king or queen rewarded those infavor with the exclusive right (called a patent) to print particularworks.[5] The crown's power-generally and over copyright-ebbed during theintervening centuries and Parliament stepped in. Such an endeavor had little benefit.But the printing press lowered the cost of printing dramatically, and "forthe first time, the value of the author's genius could outweigh the cost ofthe scrivener's labor."[4] Now it became a question of who should benefit: The writer who pennedthe work, the publisher who took the risk and financed the endeavor, or thepublic, in the form of lower prices? [25]Sony v. Each court also found against Napster on the other prongs of the fairuse test. [29]17 U.S.C. 1997).Religious Technology Center v. He held that the merecapability of a non-infringing use was sufficient for a manufacturer toescape liability. This transformed theeconomics of books.[3] Before the press, those who would pirate the ideas of others had tolabor long and hard to copy a book. He found no basis for injunctiverelief because such a ruling would harm the public more than the studios.Besides, the studios had not proven any harm resulting from hometaping.[21] Two years later, the Ninth Circuit Court of Appeals reversed thisdecision, finding Sony liable for contributory infringement. An initial vote favoredthe studios, but the justices feared that their opinion would strangle anew technology in its infancy.[24] Finally, the justices ruled in favor ofSony and established a new standard for contributory infringement.[25] The original standard, announced by Justice Holmes during the earlypart of the 2 th century, examined the primary use of a product todetermine if the manufacturer could be liable for contributoryinfringement. [47]Playboy Enterprises, Inc. v. Two film studios sued Sony, the maker ofBetamax recorders, on the grounds that Sony's machines allowed individualsto infringe on the studios' copyrights. Webbworld, Inc., 968 F.

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