1. For the background to these documents see James Boyle, "Intellectual Property Policy Online: A Young Person's Guide," Harvard Journal of Law & Technology 10 (1996): 47-112; Jessica Litman, Digital Copyright: Protecting Intellectual Property on the Internet (Amherst, N.Y.: Prometheus Books, 2001).
2. Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended in scattered sections of 5, 17, 28, and 35 U.S.C.).
3. Intellectual Property and the National Information
Infrastructure: The Report of the Working Group on Intellectual
Property Rights (Washington, D.C.: Information Infrastructure
Task Force, 1995), 73 n. 227. Hereinafter White Paper.
4. White Paper, 84.
5. "Congress did not provide that one class in the community could combine to restrain interstate trade and another class could not. . . . It provided that 'every' contract, combination or conspiracy in restraint of trade was illegal." Loewe v. Lawlor, 208 U.S. 274 (1908); "Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness. . . ." Johnson v. M'Intosh, 21 U.S. 543, 590 (1823).
6. "As the entertainment and information markets have gotten more complicated, the copyright law has gotten longer, more specific, and harder to understand. Neither book publishers nor libraries have any interest in making the library privilege broad enough so that it would be useful to users that aren't libraries, and neither movie studios nor broadcast stations have any interest in making the broadcaster's privilege broad enough to be of some use to say, cable television or satellite TV, so that doesn't happen. Negotiated privileges tend to be very specific, and tend to pose substantial entry barriers to outsiders who can't be at the negotiating table because their industries haven't been invented yet. So negotiated copyright statutes have tended, throughout the century, to be kind to the entrenched status quo and hostile to upstart new industries." Litman, Digital Copyright, 25.
7. Communications Decency Act of 1996 (47 U.S.C. §§ 230, 560, 561) (1996).
8. Reno v. ACLU, 521 U.S. 844 (1997).
9. James Boyle, "Overregulating the Internet," Washington Times (November 14, 1995), A17.
10. See James Boyle, "The One Thing Government Officials Can't Do Is Threaten Their Critics," Washington Times (March 6, 1996), A16.