1. 17 U.S.C. § 106 (1988 & Supp. V 1993). Section 106(A) grants additional rights for certain works of visual art in single copies or limited editions. The development of the NII does not raise unique issues with respect to those rights. See 17 U.S.C. § 106(A) (Supp. V 1993).

2. See 17 U.S.C. § 101 (1988) (definitions of "copies" and "phonorecords").

3. In 1978, the CONTU Final Report noted, "[T]he application of principles already embodied in the language of the [current] copyright law achieves the desired substantive legal protection for copyrighted works which exist in machine-readable form. The introduction of a work into a computer memory would, consistent with the [current] law, be a reproduction of the work, one of the exclusive rights of the copyright proprietor." CONTU Final Report at 40. See also MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 519 (9th Cir. 1993), cert. denied, 114 S. Ct. 671 (1994); Vault Corp. v. Quaid Software Ltd., 847 F.2d 255, 260 (5th Cir. 1988); Advanced Computer Services v. MAI Systems Corp., 845 F. Supp. 356 (E.D. Va. 1994); Triad Systems Corp. v. Southeastern Express Co., 1994 U.S. Dist. LEXIS 5390 (N.D. Cal. March 18, 1994); 2 NIMMER ON COPYRIGHT § 8.08[A] (1994).

4. That copying has occurred does not necessarily mean that infringement has occurred. When copying is (1) authorized by the copyright owner, (2) exempt from liability as a fair use, (3) otherwise exempt under the provisions of Sections 108-119 or Chapter 10 of the Copyright Act, or (4) of such a small amount as to be de minimis, then there is no infringement liability.

5. See, e.g., MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 519 (9th Cir. 1993). (While this court's determination with respect to fair use may be open to question, its holding that booting a PC involves copying the operating system seems quite unexceptional.)

6. For example, if an author transfers a file (such as a manuscript) to a publisher with an Internet account, copies will typically, at a minimum, be made (a) in the author's Internet server, (b) in the publisher's Internet server, (c) in the publisher's local area network server, and (d) in the editor's microcomputer. It has been suggested that such "copying" of files in intermediate servers is only of transitory duration and consequently not covered by the reproduction right. However, it is clear that if the "copy" exists for more than a period of transitory duration, the reproduction right is implicated. Whether such reproduction is an infringement would be a separate determination.

7. See 17 U.S.C. § 106(2) (1988). "A 'derivative work' is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a 'derivative work.'" 17 U.S.C. § 101 (1988) (definition of "derivative work").

8. 17 U.S.C. § 109(a) (1988). See discussion infra pp. 90-95.

9. See discussion of rental rights for computer programs and sound recordings infra p. 91.

10. Furthermore, with respect to international distributions, Section 602 of the Copyright Act makes unauthorized importations a violation of the distribution right. See discussion infra pp. 107-09.

11. The court elsewhere in its opinion, in a small but perhaps significant deviation from conventional usage, appears to use "implicate" to mean "infringe" rather than "involve."

12. 839 F. Supp. 1552 (M.D. Fla. 1993).

13. Id. at 1556.

14. Whether such reproduction was legally performed by the subscriber, the BBS operator, or both is not clear.

15. Owners of copyrights in computer programs and sound recordings have the right to control post-first-sale rentals of copies of their works; owners of copyrights in other works do not. See 17 U.S.C. § 109 (1988 & Supp. V 1993). This inconsistency may be important in the NII context, particularly with respect to "multimedia works" that are neither expressly nor self-evidently in any particular category of copyrighted work (and whose treatment under various exemptions and special provisions may thus be unclear). See discussion of multimedia works supra pp. 41-45.

16. See discussion of contributory infringement and vicarious liability infra pp. 109-14.

17. 857 F. Supp. 679 (N.D. Cal. 1994).

18. See 17 U.S.C. § 106(4) (1988).

19. "To 'perform' a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible." 17 U.S.C. § 101 (1988) (definition of "perform").

20. To perform or display a work "publicly" means --

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

17 U.S.C. § 101 (1988) (definition of "publicly").

21. See 17 U.S.C. § 110 (1988).

22. The current law addresses only transmissions of "performances" and "displays."

23. See, e.g., Columbia Pictures Indus. v. Redd Horne, Inc., 749 F.2d 154 (3d Cir. 1984) (video store operator liable for public performance violation where he rented tapes of motion pictures to customers and provided semi-private screening rooms where the tapes could be viewed); Columbia Pictures Indus. v. Aveco, Inc., 800 F.2d 59 (3d Cir. 1986) (same result where customers also rented rooms for viewing); On Command Video Corp. v. Columbia Pictures Indus., 777 F. Supp. 787 (N.D. Cal. 1991) (infringement found where hotel guests in rooms selected tapes to be played on remotely controlled console in hotel basement with signal then sent to rooms).

24. 17 U.S.C. § 101 (1988 & Supp. V 1993) (definition of "display").

25. See discussion of Playboy case supra pp. 68-69 and infra pp. 81, 120-21.

26. Of course, to the extent that such lists or menus are protectible under the Copyright Act, the authors of such lists would have the exclusive right to publicly display them.

27. The copyright law's legislative history, describing the introduction of the display right, distinguishes displays "on a screen or tube" from reproductions. This language, written before the advent of the personal computer, applies easily to displays with which Congress was familiar in 1976 (those rendered by broadcast television receivers), but is inapplicable to digital "browsing" where the law itself clearly -- without resort to explanatory Congressional language -- defines such acts as implicating the display and reproduction rights.

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