During recent years, the Internet has become the basic foundational infrastructure for the global movement of data of all kinds. With continued growth at a phenomenal rate, the Internet has moved from a quiet means of communication among academic and scientific research circles into ubiquity in both the commercial arena and private homes. The Internet is now a major global data pipeline through which large amounts of intellectual property are moved. As this pipeline is increasingly used in the mainstream of commerce to sell and deliver creative content and information across transnational borders, issues of intellectual property protection for the material available on and through the Internet are rising in importance.

Copyright law provides one of the most important forms of intellectual property protection on the Internet for at least two reasons. First, much of the material that moves in commerce on the Internet is works of authorship, such as musical works, multimedia works, audiovisual works, movies, software, database information and the like, which are within the usual subject matter of copyright. Second, because the very nature of an electronic online medium requires that data be “copied” as it is transmitted through the various nodes of the network, copyright rights are obviously at issue.

Traditional copyright law was designed to deal primarily with the creation, distribution and sale of protected works in tangible copies. In a world of tangible distribution, it is generally easy to know when a “copy” has been made. The nature of the Internet, however, is such that it is often difficult to know precisely whether a “copy” of a work has been made and, if so, where it resides at any given time within the network. As described further below, information is sent through the Internet using a technology known as “packet switching,” in which data is broken up into smaller units, or “packets,” and the packets are sent as discrete units. As these packets pass through the random access memory (RAM) of each interim computer node on the network, are “copies” of the work being made?

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