1 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).

2 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.

3 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).

4 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).

5 The IITF Bulletin Board can be accessed through the Internet or by use of a personal computer and modem. See supra note 11.

6 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).

7 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):

The ownership and control of information and the means of disseminating it are emerging as national and international policy issues. Concerns about the impact on individual freedom posed by the control of the flow of information are at the forefront of public debate. The adequacy of the legal structure to cope with the pace and rate of technological change frequently has been called into question.

8 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 system. The Act also establishes a royalty system through which importers and manufacturers of digital audio recording devices and digital audio recording media make royalty payments on each device or medium they distribute. Such payments are collected by the Copyright Office and distributed annually to record companies, performers, music publishers and songwriters.

9 See Inscription at the Jefferson Memorial, Washington, D.C. As Secretary of State, Thomas Jefferson was the first head of the U.S. Patent Office.

10 The Copyright Act of 1976, as amended, is codified at 17 U.S.C. § 101 et seq. (1988 & Supp. V 1993). Hereinafter, the Act is cited as "17 U.S.C. §  ."

11 See H.R. REP. NO. 1476, 94th Cong., 2d Sess. 47 (1976), reprinted in 1976 U.S.C.C.A.N. 5659 (hereinafter HOUSE REPORT) ("During the past half century a wide range of new techniques for capturing and communicating printed matter, visual images, and recorded sounds have come into use, and the increasing use of information storage and retrieval devices, communications satellites, and laser technology promises even greater changes in the near future.").

12 See HOUSE REPORT at 47, reprinted in 1976 U.S.C.C.A.N. 5660.

13 See 17 U.S.C. § 102(b); see also discussion infra pp. 32-34.

14 The Working Group believes that no revision of the patent, trademark or trade secret law is warranted at this time. See discussion infra pp. 155-75, 236-38.

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