cyckV4

378 COPYRIGHTABLE SUBJECT MATTER
affirmative action that directly resulted in copying plaintiffs’ works other than by installing
and maintaining a system whereby software automatically forwards messages received
from subscribers onto the Usenet, and temporarily stores copies on its system.” This is a
distinction. But that would mean that the technician who turned on a computer in order to
service it, did take such an affirmative action? What vision of strict liability and direct
infringement does this case espouse?
2.) “There is no need to construe the Act to make all of these parties infringers. Although
copyright is a strict liability statute, there should still be some element of volition or
causation which is lacking where a defendant’s system is merely used to create a copy by
a third party.” Is Netcom a.) ingenious, b.) a mangling of precedent, c.) correct, or all three?
3.) What would Judge Boudin think? Should those thoughts be left to Congress? Or is
that what the common law does, and has always done?
4.) Why does the court mention the reach of defamation law in the context of the First
Amendment?
5.) Netcom—though a District Court case ingeniously distinguishing binding precedent
in its own Circuit—anticipates some of the broad outlines of the compact that now
governs the Internet. We will see in later Chapters that limitations of liability are
fundamental to that compact. Judge Whyte’s decision, with its focus on “actual
knowledge” and merely “installing and maintaining a system,” suggests the lines that
were ultimately drawn. Is there any suggestion in the opinion that he was focused on
those ultimate issues and aware of the stakes? Where precisely?
James Boyle: The Internet Threat
Please read The Public Domain pp 54–82
The conventional wisdom is that governments respond slowly to technological
change. In the case of the Internet, nothing could be further from the truth. In 1994 and
1995, “dot-com” was still a mystical term for many. Most stories about the Internet dealt
with sexual predation rather than possibilities of extreme wealth. Internet commerce
itself was barely an idea, and some of the most exciting sites on the Web had pictures of
coffeepots in university departments far away. (“See,” one would proudly say to a
technological neophyte friend when introducing him to the wonders of the Net, “the pot
is empty and we can see that live from here! This changes everything!”) It was an
innocent time. Yet the U.S. government was already turning the wheels of intellectual
property policy to respond to the threat (and promise) of the Internet. More precisely,
they were trying to shape the future of the cumbersomely named “National Information
Infrastructure,” the official name for the “information superhighway” that it was
presumed would replace the “immature” technology of the Net. The government was
wrong about that, and about a lot else.
The blueprint for new intellectual property policy online came from the Patent and
Trademark Office. That office promulgated first a Green Paper and then, after further
hearings, a White Paper, on “Intellectual Property and the National Information
Infrastructure.” As policy and legal documents these are in one sense long out of date.