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WAREZ
“Warez” is a now-dated term in now-equally dated leetspeak for unauthorized copies of copyrighted computer software, unlawfully traded over the Internet or directly between users. The term is sometimes also used to refer to unauthorized copies of other types of copyrighted material, particularly movies. Warez trading begins with the cracking of the copy protection on the program or movie, if any, and the making of an unprotected copy. This copy may then be traded among warez groups, from which it will eventually leak into the mainstream Internet community through file-sharing services. It may also be pressed onto disks and sold as a counterfeit of the original program. There are distinctions among warezers. Those who create warez and distribute them for free tend to distinguish themselves from counterfeiters who sell pirated software for a profit, although their activities may still be illegal. These nonprofit warezers seem to be motivated primarily by an interest in demonstrating their technical prowess. An element of hostility to the copyright holders is also present, although some warezers argue that the distribution of warez actually increases demand for legitimate copies of the program.
A special subcategory of warez is abandonware—software that is no longer being sold or supported by its author, copyright owner, or licensed distributor. Abandonware traders seem to see themselves as archivists or historians rather than as pirates; many are motivated by enthusiasm for outdated software rather than by the technical rivalry that is evident in much of the rest of the warez community. They make the argument that, as the software is no longer being sold, the copyright holders are losing no sales as a result of the abandonware trading. While this may be a convincing argument from an ethical standpoint, it is less so from a legal standpoint: abandonware trading, like all warez trading, is illegal (Goldman 2004, 397).
The first warez trader to be prosecuted in the United States was David LaMacchia, a student. LaMacchia was an enthusiast, rather than a commercial warez trader, and thus could not be charged with criminal copyright infringement under the law of the time, which required that the infringement be done for financial gain. Instead, he was charged with conspiracy to commit wire fraud. The trial court dismissed the charge against him, though, because an earlier Supreme Court decision had held that an intellectual property interest in copyright could not be taken by fraud unless Congress had specifically stated otherwise (LaMacchia, 871 F. Supp. at 545). The dismissal of charges against LaMacchia ultimately led to the passage of the 1997 No Electronic Theft Act (NET Act), which was specifically intended “to reverse the practical consequences of United States v. LaMacchia” (House Report, *3). The NET Act was aimed at warez trading, and greatly expanded the scope of actions subject to criminal copyright infringement penalties. It expanded the definition of “financial gain” to include “the receipt of other copyrighted works” (17 U.S.C. § 101); it criminalized the unauthorized reproduction of copyrighted works with a value in excess of $1000 even if the infringement was not for financial gain (17 U.S.C. § 506); and it increased the statute of limitations for criminal copyright infringement from three years to five years (17 U.S.C. § 507).
After an initial period of inactivity, the Justice Department began to pursue warez traders aggressively, breaking up long-established groups such as the notorious DrinkOrDie (Tresco Slashdot Interview 2002). By February 2004, at least 80 warez traders had been convicted; many, including enthusiast warez traders, were sent to prison (Goldman 2004, 427).
In addition to the NET Act, warez traders may be prosecuted under the Digital Millennium Copyright Act (DMCA), the Computer Fraud and Abuse Act (CFAA), and the Economic Espionage Act (EEA). Two provisions of the DMCA are applicable: the anticircumvention provisions codified at 17 U.S.C. § 1201 and the digital rights management provisions codified at 17 U.S.C. § 1202. The anticircumvention provisions prohibit the circumvention of “a technological measure that effectively controls access to a work” (17 U.S.C. § 1201(a)(1)(A)). Ostensibly, this provision is aimed only at access, not at copying, but with some programs and most DVDs, access is necessary for copying. Cracking, or circumventing copy protection, is an essential part of the warez process.
Copyrighted programs and other material also contain copyright management information; in the course of unauthorized copying, this information may be removed or modified. Section 1202 is titled “integrity of copyright management information.” Copyright management information that might be found on computer software and is protected by section 1202 includes information identifying and about the title, author, and copyright owner; terms and conditions under which the program may be used; “identifying numbers or symbols referring to such information or links to such information”; and “such other information as the Register of Copyrights may prescribe by regulation” (17 U.S.C. § 1202(c)).
The knowing use of false copyright management information “with the intent to induce, enable, facilitate, or conceal infringement” is prohibited by § 1202(a). The intentional removal or alteration of the copyright management information is prohibited by § 1202(b)(1), while the unauthorized distribution of works from which the copyright management information has been removed or altered—a charge to which warez traders are particularly vulnerable—is prohibited by § 1202(3).
Section 1204 provides criminal penalties for violations of sections 1201 and 1202, while section 1203 provides civil remedies.
The anti-hacking Computer Fraud and Abuse Act, like the DMCA, contains provisions that may be used to prosecute warez traders. Obtaining copies of works for conversion to and distribution as warez often requires hacking, or unauthorized access to the copyright owner’s computer or network. This is especially true in the case of zero-day and negative-day warez, which appear online on or before the day of their commercial release. And such unreleased works may also be trade secrets, protected by the Economic Espionage Act. The physical theft of a copy of a work from the copyright owner would, of course, be a crime under state law.
Statutes
• Computer Fraud and Abuse Act, 18 U.S.C. § 1030
• Digital Millennium Copyright Act, Title I, §§ 1201–1204
• Economic Espionage Act, 18 U.S.C. §§ 1831–1839
• No Electronic Theft Act, amending and codified at 17 U.S.C. §§ 101, 506 & 507 & 18 U.S.C. §§ 2319–2320
Legislative History
• House Report on the No Electronic Theft Act, H.R. Rep. No. 339 (1997)
Cases
Supreme Court
• Dowling v. United States, 473 U.S. 207 (1985)
Federal District Court
• United States v. LaMacchia, 871 F.Supp. 535 (D. Mass. 1994)
See also Abandonware; Copyright; Copyright Infringement; Digital Millennium Copyright Act, Title I; Digital Rights Management; File-Sharing; Hacking; No Electronic Theft Act
Sources and Further Reading
“Former DrinkOrDie Member Chris Tresco Answers,” Slashdot (October 4, 2002), available at http://interviews.slashdot.org/interviews/02/10/04/144217.shtml?tid=123 (visited February 9, 2013)
Eric Goldman, “A Road to No Warez: The No Electronic Theft Act and Criminal Copyright Infringement,” 82 Oregon Law Review 369 (2003)
Eric Goldman, “Warez Trading and Criminal Copyright Infringement,” 51 Journal of the Copyright Society of the U.S.A. 395 (2004)
“Six Formerly Associated with Fox Cable Charged with Copyright Infringement for Running Warez Site That Had Pirated Movies, Software,” Cybercrime Law Report, May 31, 2004, at 21
WEB
See World Wide Web
WEB BROWSER
A Web browser is a computer program that allows the user to browse the World Wide Web. The first Web browser was created, along with the World Wide Web itself, by Tim Berners-Lee and Robert Cailliau at the European Organization for Nuclear Research (CERN) between 1989 and 1991. Other browsers appeared during the early 1990s, but like the early Web itself, they required either sophisticated computers or sophisticated users.
At the time other technologies for locating and exchanging information over the Internet, such as Gopher, were not only difficult to use but often incorporated proprietary technologies. Early Web browsers experimented with proprietary versions of hypertext markup language (HTML), creating situations in which Web pages created with a particular vendor’s software package could only be viewed using that vendor’s browser. Much the same situation exists today with media players; format incompatibility, as well as copyright issues, has slowed the growth of Internet video and audio. By the mid-1990s, however, most Web browsers had abandoned this destructive format war, and the Web developed rapidly. The actions of CERN in making the underlying Web and browser technology available to all, free of charge, were a major reason a format war was avoided.
In 1993, the National Center for Supercomputing Applications (NCSA) at the University of Illinois released the Mosaic browser, which was easy to use and could run on the personal computers of the time (CERN n.d.). In April 1994, the leader of the team that developed Mosaic, Marc Andreesen, then left the NCSA to form Mosaic Communications, which released its browser, Mosaic Netscape 0.9, in October 1994 (Metzger 2004).
From the outset, Netscape was mired in legal disputes. The University of Illinois sued to prevent the company from using the name “Mosaic,” and in November 1994 the company changed its name to Netscape Communications and the name of its browser to Netscape Navigator (Netscape 1994). Netscape Navigator was an immediate success, both coinciding with and contributing to the explosive growth of the World Wide Web in the mid-1990s. In mid-1994, before Mosaic Netscape 0.9 was introduced, there were fewer than 3,000 Web servers; a year later there were more than 20,000 (Zakon 2004) and Netscape’s share of the browser market was over 80 percent (Metzger 2004).
In August 1995 Microsoft released its own browser, Internet Explorer, and the browser wars began in earnest. Microsoft developed Internet Explorer from software purchased from Spyglass, Inc., which like Netscape was an offshoot of the NCSA at the University of Illinois. Internet Explorer was not initially bundled with Windows, but with Microsoft’s Plus! 95 package. Plus! was an add-on package for Windows 95 that included extra utilities, of which Internet Explorer was the most important, and bells and whistles. In 1996 America Online began to bundle Internet Explorer with its software. Microsoft also used a strategy of bundling Internet Explorer with other Microsoft software installed on new computer systems; Netscape’s market share steadily declined, but Microsoft’s bundling strategy led the Justice Department and many state attorneys general to pursue antitrust litigation against Microsoft (Levy 1999).
The outcome of the Microsoft antitrust litigation was at best ambiguous; the outcome of the browser wars, however, was not. Netscape’s decline in market share was irreversible; in 1998 Netscape programmers launched Mozilla.org, releasing Netscape’s source code to the open-source community. In November 1998, America Online purchased Netscape; two years later it released Netscape 6.0, a version that disappointed many Netscape loyalists, leading them to switch to Internet Explorer (Metzger 2004). A year later, America Online converted the Netscape site to a news and entertainment portal, more or less abandoning the primary identification of the Netscape brand with the Web browser. In an apparent turnaround, America Online released new versions of the browser, Netscape 7.1 in June 2003 and Netscape 7.2 in August 2004 (Metzger 2004). At that point, however, 95 percent of Web surfers were using Internet Explorer, with many of the remaining 5 percent using Mozilla or other programs in preference to America Online’s Netscape Navigator (Firefox 2004).
Since then, the Web browser market has diversified considerably; the increased popularity of Apple products has increased the market share of Apple’s Safari browser, while the increased use of mobile devices for Web browsing has decreased Internet Explorer’s market share. An open-source Mozilla browser, Firefox, now has a market share of between 20 percent and 24 percent; Google’s Chrome and Microsoft’s Internet Explorer each have about one-third of the market, with Safari holding between 7 percent and 8 percent and Opera holding about 2 percent. Opera demonstrates the fragmentation of the browser market: it is widely used on mobile devices, but is nearly nonexistent in the traditional PC browser market.
Case
• United States v. Microsoft Corp., 980 F. Supp. 537 (D.D.C. 1997), reversed, 147 F.3d 935 (D.C. Cir. 1998)
See also Internet; Microsoft Antitrust Litigation; World Wide Web
Sources and Further Reading
Awio Web Services LLC, “Web Browser Market Share Trends,” W3 Counter, available at http://www.w3counter.com/trends (visited December 21, 2012)
Michael A. Cusumano & David B. Yoffie, Competing on Internet Time: Lessons from Netscape and Its Battle with Microsoft (New York: The Free Press, 1998)
“Firefox Browser Takes on Microsoft,” BBC News (November 9, 2004), available at http://news.bbc.co.uk/2/hi/technology/3993959.stm (visited February 24, 2013)
Robert A. Levy, “Microsoft and the Browser Wars,” 31 Connecticut Law Review 1321 (1999)
Holger Metzger, “Netscape History,” available at http://www.holgermetzger.de/Netscape_History.html (visited January 15, 2013)
Press Release, Netscape, “Mosaic Communications Corporation Changes Name to Netscape Communications Corporation,” available at http://www.holgermetzger.de/netscape/NetscapeCommunicationsNewsRelease.htm (visited December 21, 2012)
StatCounter, “Top 5 Browsers from Apr 2011 to Dec 2012,” StatCounter GlobalStats, available at http://gs.statcounter.com/#browser-ww-monthly-201104–201212 (visited December 21, 2012)
WIKILEAKS
WikiLeaks is a nonprofit organization specializing in the dissemination of classified and secret information obtained from governments and other sources, sometimes in violation of local laws. Other such organizations exist, but WikiLeaks has attracted a great deal of media attention both for its release of highly sensitive U.S. government information and for the legal troubles of its founder, Julian Assange.
In the former category are a great many documents and files relating to the U.S. wars in Afghanistan and Iraq and over a quarter of a million U.S. diplomatic cables obtained from a U.S. soldier, Private Bradley Manning (now Chelsea Manning). Manning was arrested on multiple charges, including aiding the enemy; he pled guilty to some charges in February 2013 (Coombs 2013). In August 2013, Manning was acquitted of aiding the enemy but was convicted of numerous lesser charges, and was sentenced to 35 years in prison (Final Sentencing 2013; Sink 2013).
In the latter category, WikiLeaks founder Julian Assange, while living in the United Kingdom, was sought by the prosecutor’s office in Sweden in connection with one or more rapes allegedly committed there. His battle in the courts of the United Kingdom to avoid extradition to Sweden took a somewhat startling turn when he sought, and was granted, political asylum at the Ecuadorian embassy in London.
The documents provided to WikiLeaks by Manning, and by WikiLeaks to the world, included several that ignited media storms, including the controversially edited and titled “Collateral Murder” video (showing the fatal shooting of two Reuters journalists in Iraq, possibly by U.S. forces) and U.S. diplomatic cables related to government corruption in Tunisia that are widely believed to have led to the fall of that country’s government at the start of 2011’s “Arab Spring” series of uprisings against undemocratic governments (see Dickinson 2011).
Cases
• American Civil Liberties Union v. United States Department of Justice, 681 F.3d 61 (2d Cir. 2012)
• Assange v. Swedish Prosecution Authority, [2012] UKSC 22, [2012] 2 A.C. 471 (appeal taken from Eng. & Wales C.A.)
• U.S. v. Manning (court-martial), U.S. Army, 1st Judicial Cir. 2013
See also Activism and Advocacy Groups; Censorship; First Amendment
Sources and Further Reading
Associated Press, “Full Text: Bradley Manning’s Letter To President Obama Requesting Pardon” (August 22, 2013), available at http://talkingpointsmemo.com/news/full-text-bradley-mannings-letter-obama-pardon.php (visited August 28, 2013)
David E. Coombs (Attorney for Bradley Manning), “PFC Manning’s Written Statement in Support of His Guilty Plea” (March 4, 2013), available at http://www.armycourtmartialdefense.info/2013/03/pfc-mannings-written-statement-in.html (visited April 29, 2013)
Elizabeth Dickinson, “The First WikiLeaks Revolution?” Foreign Policy (January 13, 2011), available at http://wikileaks.foreignpolicy.com/posts/2011/01/13/wikileaks_and_the_
tunisia_protests?sms_ss=twitter&at_xt=4d2ffe4d9c2649d7,1 (visited April 24, 2013)
Final Sentencing, U.S. v. PFC Bradley E. Manning (court-martial), U.S. Army, 1st Judicial Cir. 2013, available at https://pressfreedomfoundation.org/sites/default/files/08-21-13-final-sentence.pdf
Ian Simpson and Medina Roshan, “U.S. Soldier Manning Gets 35 Years For Passing Documents to WikiLeaks” Reuters (August 21, 2013), available at http://www.reuters.com/article/2013/08/21/us-usa-wikileaks-manning-idUSBRE97J0JI20130821 (visited August 28, 2013)
Justin Sink, “White House Would Consider Manning Pardon Request” (August 21, 2013), available at, http://thehill.com/blogs/blog-briefing-room/news/318117-white-house-would-consider-manning-pardon, (visited August 28, 2013)
Wikileaks, “What Is WikiLeaks?” available at http://wikileaks.org/About.html (visited April 24, 2013)
WIPO
The World Intellectual Property Organization (WIPO) is an international organization dedicated to the international protection of the rights of creators and owners of intellectual property. WIPO had its origin in the late nineteenth century, which saw the emergence of an international regime of intellectual property rights protection. Notable cornerstones of this regime were the Paris Convention on patents, trademarks, and industrial designs in 1883 and the Berne Convention on copyrights in 1886. Each of these treaties created an organization for administrative purposes; these united in 1893 to form the Bureaux Internationaux Réunis pour la Protection de la Propriété Intellectuelle (United International Bureau for the Protection of Intellectual Property, or BIRPI), which also administered two other treaties. Over time, the number of treaties administered and the size of the organization increased to its present level. BIRPI moved to Geneva (from Berne) in 1960; it became WIPO in 1967 and became a part of the United Nations in 1974. Today, WIPO employs nearly a thousand people at its headquarters in Geneva, its Coordination Office in New York, and elsewhere.
In addition to the treaties regarding the structure and functions of WIPO itself (the WIPO Convention, the Agreement between the United Nations and WIPO, and the Agreement between WIPO and the WTO), WIPO is responsible in whole or in part for the administration of 25 treaties:
• Beijing Treaty on Audiovisual Performances
• Berne Convention for the Protection of Literary and Artistic Works
• Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite
• Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure
• Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of Their Phonograms
• Hague Agreement Concerning the International Deposit of Industrial Designs
• International Convention for the Protection of New Varieties of Plants
• Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration
• Locarno Agreement Establishing an International Classification for Industrial Designs
• Madrid Agreement Concerning the International Registration of Marks
• Patent Cooperation Treaty
• Madrid Agreement for the Repression of False and Deceptive Indications of Source on Goods
• Nairobi Treaty on the Protection of the Olympic Symbol
• Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks
• Paris Convention for the Protection of Industrial Property
• Patent Law Treaty
• Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks
• Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations
• Singapore Treaty on the Law of Trademarks
• Strasbourg Agreement Concerning the International Patent Classification
• Trademark Law Treaty
• Vienna Agreement Establishing an International Classification of the Figurative Elements of Marks
• Washington Treaty on Intellectual Property in Respect of Integrated Circuits
• WIPO Copyright Treaty
• WIPO Performances and Phonograms Treaty
One hundred and eighty-five states—nearly all of the world’s countries—are members of WIPO. Although only states can be members, 238 international nongovernmental organizations (NGOs), 68 national NGOs, 67 intergovernmental organizations (IGOs), and Palestine have observer status (WIPO Observers 2012). (Taiwan is a party to some WIPO-administered treaties and participates as “Taiwan, Province of China.”) These observers overwhelmingly represent producers and owners of intellectual property rights rather than consumers; a few, such as the International Law Association, may be presumed to be neutral.
That does not mean, however, that WIPO exclusively represents the interests of content producers. WIPO’s voting structure allots each member one vote, regardless of population or level of production or consumption of intellectual property. While superficially this may seem equitable, it has the effect of giving the 36,000 people of Liechtenstein the same voting weight as the 1.2 billion people of India. It also gives the United States, the world’s third most populous country and the largest producer and consumer of intellectual property, the same voting weight as the tiny island nation of São Tomé and Principe, with only 163,000 people and hardly any participation in the global intellectual property economy.
The breakup of the European overseas colonial empires has led to an increase in the number of developing countries. The concerns of developing countries, which have few intellectual property assets, tend to be the concerns of consumers rather than of producers. They tend to be opposed to the interests of developed country intellectual property rights holders, although not necessarily of developed country consumers. From the 1960s onward, it became apparent that an international intellectual property crisis was emerging in the area of pharmaceutical patents. Almost all pharmaceutical research and development is carried out by developed-world companies, and almost all pharmaceutical patents are held by developed-world persons. This research and development is expensive; costs are recouped during the period in which the drug is protected by patent. After the patent expires, the cost of the drug usually drops dramatically, as it can be manufactured by other companies and sold under a generic name; the cost of manufacture is usually less than the cost of research and development.
Many developing countries that lack the research and development resources necessary to create new drugs nonetheless have the resources to manufacture those drugs once developed. These countries are also often faced with desperate health problems; there is a strong temptation for these countries to ignore the drug developers’ patents and simply manufacture the drug themselves, at far lower cost. People in these countries may feel that the lives and health of their compatriots outweigh the intellectual property interests of a handful of mostly European and North American corporations, and that no one should die because of inability to pay patent royalties. The pharmaceutical countries counter that in the absence of profits, there will be no incentive for further research and development; if the drug companies cannot recoup their costs, new drugs will not be created.
By the 1980s, the strong representation of developing countries in WIPO had effectively stymied the efforts of the pharmaceutical companies, who then lobbied their governments, particularly the U.S. government, to include an intellectual property treaty in the General Agreement on Tariffs and Trade (GATT) negotiations then underway. The GATT negotiations ultimately led to the creation of the World Trade Organization (WTO), one of the components of which is the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). TRIPS created a separate framework for protection of international intellectual property rights outside the context of WIPO; the WTO and WIPO formalized this regime in the 1995 Agreement between the World Intellectual Property Organization and the World Trade Organization. The pharmaceutical companies, others with similar interests, and their developed-world backers thus achieved a result that might not have been possible within the WIPO process.
The emergence of TRIPS as the new standard by which international intellectual property rights are determined and national intellectual property laws are measured does not mean that WIPO is moribund, however. As international organizations go, it enjoys exceptional financial stability; it is not dependent on the dues or largesse of its members, but has a steady source of income in fees from the Patent Cooperation Treaty. It continues to maintain valuable education and outreach services, to serve a function as a forum for policy discussions, and to provide dispute resolution services. Its most important function, however, is probably the provision of registration services for patents, trademarks, and designs. All intellectual property rights are granted by national governments and have effect only within the territory governed by the granting government. Protection in other countries requires registration in other countries; without WIPO’s registration services, the informational obstacles to patent, trademark, and design registration would probably prove prohibitive.
Treaties
• Agreement between the United Nations and the World Intellectual Property Organization, December 17, 1974, 956 U.N.T.S. 729
• Agreement between the World Intellectual Property Organization and the World Trade Organization, December 22, 1995, 35 I.L.M. 754 (1996)
• Agreement on Trade-Related Aspects of Intellectual Property Rights, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, April 15, 1994, 33 I.L.M. 81 (1994)
• Beijing Treaty on Audiovisual Performances, June 24, 2012, 51 I.L.M. 1211
• Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite, May 21, 1974, 13 I.L.M. 1444
• Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, April 28, 1977, as amended on September 26, 1980, 32 U.S.T. 1241, 1861 U.N.T.S. 361
• Convention Concerning the Creation of an International Union for the Protection of Literary and Artistic Works (Berne Convention), September 9, 1886, as last revised at Paris, July 24, 1971 (amended 1979), 25 U.S.T. 1341, 828 U.N.T.S. 221
• Convention Establishing the World Intellectual Property Organization, July 14, 1967, as amended on September 28, 1979 (WIPO Convention), 21 U.S.T. 1749, 828 U.N.T.S. 3
• Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, October 29, 1971, 25 U.S.T. 309
• Hague Agreement Concerning the International Deposit of Industrial Designs, November 6, 1925, 74 L.N.T.S. 343, revised at London, June 2, 1934, 205 L.N.T.S. 179, revised at The Hague, November 28, 1960; supplemented by the Additional Act of Monaco, November 18, 1961, the Complementary Act of Stockholm, July 14, 1967, and the Protocol of Geneva, April 10, 1975, 26 U.S.T. 571; and as amended, September 1979
• Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, October 31, 1958, as revised at Stockholm on July 14, 1967, and as amended on September 28, 1979, 923 U.N.T.S. 205
• Locarno Agreement Establishing an International Classification for Industrial Designs, October 8, 1968, as amended on September 28, 1979, 23 U.S.T. 1389
• Madrid Agreement Concerning the International Registration of Marks, April 14, 1891, as revised at Brussels on December 14, 1900, at Washington on June 2, 1911, at The Hague on November 6, 1925, at London on June 2, 1934, at Nice on June 15, 1957, and at Stockholm on July 14, 1967, and as amended on September 28, 1979, 828 U.N.T.S. 389
• Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods, April 14, 1891, as revised at Washington on June 2, 1911, at The Hague on November 6, 1925, at London on June 2, 1934, and at Lisbon on October 31, 1958, and Additional Act, Stockholm, July 14, 1967, 828 U.N.T.S. 389
• Nairobi Treaty on the Protection of the Olympic Symbol, September 26, 1981, 1863 U.N.T.S. 367
• Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, June 15, 1957, as revised at Stockholm on July 14, 1967, and at Geneva on May 13, 1977, and amended on September 28, 1979, 23 U.S.T. 1336, 550 U.N.T.S. 45
• Paris Convention for the Protection of Industrial Property, March 20, 1883, as revised at Brussels on December 14, 1900, at Washington on June 2, 1911, at The Hague on November 6, 1925, at London on June 2, 1934, at Lisbon on October 31, 1958, and at Stockholm on July 14, 1967, and as amended on September 28, 1979, 21 U.S.T. 1583, 828 U.N.T.S. 305
• Patent Cooperation Treaty, Washington on June 19, 1970, as amended on September 28, 1979, and as modified on February 3, 1984, and October 3, 2001, 28 U.S.T. 7645, 9 I.L.M. 978
• Patent Law Treaty, June 1, 2000, 39 I.L.M. 1047 (2000)
• Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, June 27, 1989, S. Treaty Doc. No 106–41 (2000)
• Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, October 26, 1961, 496 U.N.T.S. 43
• Singapore Treaty on the Law of Trademarks, March 28, 2006, S. Treaty Doc. No. 110–2
• Strasbourg Agreement Concerning the International Patent Classification, March 24, 1971, as amended on September, 1979, 26 U.S.T. 1793
• Trademark Law Treaty, October 27, 1994, S. Treaty Doc. No. 105–35 (1988)
• Treaty on Intellectual Property in Respect of Integrated Circuits, Washington, May 26, 1989, 28 I.L.M. 1477 (1989)
• Universal Copyright Convention, September 6, 1952, 6 U.S.T. 2731, revised at Paris July 24, 1971, 25 U.S.T. 1341
• Vienna Agreement Establishing an International Classification of the Figurative Elements of Marks, June 12, 1973, 1863 U.N.T.S. 317, as amended October 1, 1985
• WIPO Copyright Treaty, December 20, 1996, 36 I.L.M. 65 (1997)
• WIPO Performance and Phonograms Treaty, December 20, 1996, 36 I.L.M. 76 (1997)
Statute
• Copyright Act of 1976, 17 U.S.C. §§ 101–1332
See also Berne Convention; Copyright; Copyright Infringement; Domain Name Registration; International Copyright Protection; International Patent Protection; International Trademark Protection; Patent; Patent Cooperation Treaty; Trademark; Trademark Law Treaty; TRIPS; Universal Copyright Convention; WIPO Copyright Treaty; WIPO Performance and Phonograms Treaty
Sources and Further Reading
Pamela Samuelson, “The U.S. Digital Agenda at WIPO,” 37 Virginia Journal of International Law 369 (1997)
World Intellectual Property Organization, “List of Observers,” available at http://www.wipo.int/members/en/docs/observers.pdf (visited December 21, 2012)
World Intellectual Property Organization, “Member States,” available at http://www.wipo.int/members/en/ (visited December 21, 2012)
WIPO COPYRIGHT AND PERFORMANCES AND PHONOGRAMS TREATIES IMPLEMENTATION ACT
See Digital Millennium Copyright Act, Title I
WIPO COPYRIGHT TREATY
The WIPO Copyright Treaty was adopted by the World Intellectual Property Organization (WIPO) in 1996 and entered into force, by its own terms, on March 6, 2002, three months after the deposit of the 30th instrument of ratification or accession. A total of 47 countries have now become parties to the convention, the most recent being South Korea on June 24, 2004. The treaty extends copyright protections beyond those guaranteed by the Berne Convention or TRIPS.
Articles 2, 4, and 5 provide protection for computer programs and compilations of data equivalent to those provided by the Berne Convention and TRIPS; footnotes 3 and 4 provide that the protection accorded each “is consistent with Article 2 of the Berne Convention and on a par with the relevant provisions of the TRIPS Agreement.” However, the WIPO Copyright Treaty’s protection of rental and distribution rights, set forth in Articles 6 through 8, may exceed those contained in the Berne Convention and TRIPS. It is Articles 11 and 12, however, that represent the greatest departure from past treaties and have had the greatest impact on the domestic law of those states that have become parties to the treaty.
Article 11 requires the parties to the treaty to “provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention.” In other words, parties to the treaty must enact and enforce laws against the circumvention of copy-protection measures. Article 12 carries the idea a bit further, prohibiting not only the circumvention of technological measures used to prevent actual copying, but any other circumvention of any part of a digital rights management scheme. Under Article 12, the parties must “provide adequate and effective legal remedies against any person knowingly” removing or altering “any electronic rights management information,” or distributing, importing for distribution, broadcasting or communicating to the public any works from which such information has been removed, if in either case the person does not have the authority to do so and knows or has reason to know that doing so “will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty or the Berne Convention.”
The anticircumvention provisions in Articles 11 and 12 of the WIPO Copyright Treaty have been enacted into U.S. law in the form of the anticircumvention provisions of Title I of the Digital Millennium Copyright Act (17 U.S.C. §§ 1201–1204), and into European Union law by EU Directive 2001/29/EC.
Treaty
• WIPO Copyright Treaty, December 20, 1996, 36 I.L.M. 65 (1997)
Statute
• Digital Millennium Copyright Act, 17 U.S.C. § 1201
European Union Directive
• EU Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society, 2001 O.J. (L 167) 10
See also Berne Convention; Copyright Infringement; DeCSS; Digital Millennium Copyright Act, Title I; Digital Rights Management; Encryption; File-Sharing; International Copyright Protection; Steganography; TRIPS
Sources and Further Reading
Mihaly Ficsor, The Law of Copyright and the Internet: The 1996 WIPO Treaties, Their Interpretation and Implementation (Oxford, UK: Oxford University Press, 2002)
WIPO PERFORMANCE AND PHONOGRAMS TREATY
The WIPO Performance and Phonograms Treaty was adopted by WIPO in 1996 and entered into force, by its own terms, on May 20, 2002, three months after the deposit of the 30th instrument of ratification or accession. A total of 43 countries have now become parties to the convention, the most recent being Jordan on May 24, 2004.
With two exceptions, the WIPO Phonograms Treaty stands alone: Article 1(3) provides that “this Treaty shall not have any connection with, nor shall it prejudice any rights and obligations under, any other treaties.” The first of these exceptions is set out in Article 1(1): “Nothing in this Treaty shall derogate from existing obligations . . . under the” Rome phonograms treaty (to which the United States is not a party). The second exception is more general: Article 1(2) adds that protection of phonograms under the treaty “shall leave intact and shall in no way affect the protection of copyright in literary and artistic works.”
Article 3 of the treaty requires parties to provide protection under the treaty to nationals of other parties applying the Rome Convention’s criteria for eligibility. Article 4 requires national treatment; that is, each party “shall accord to nationals of other Contracting Parties . . . the treatment it accords to its own nationals[.]”
Article 5 protects the moral rights of performers in sound recordings of live aural performances “independently of a performer’s economic rights, and even after the transfer of those rights.” In an inversion of the relative importance that the United States has traditionally accorded moral and economic rights, the article protecting moral rights precedes the article protecting economic rights. Moral rights, in copyright law, are the right not to have one’s work mutilated or distorted, the right to be acknowledged as the author of the work, and the right to determine when and in what fashion the work shall be presented to the public. These rights are called, respectively, the rights of integrity, paternity, and disclosure. U.S. copyright law has traditionally been reluctant to acknowledge moral rights.
Article 6 of the treaty deals with the economic rights of performers in unfixed performances, requiring that parties to the treaty grant performers the sole right of authorizing the broadcasting, except in the case of performances that are already broadcast performances. Article 6 also requires the parties to grant performers the sole right of communication to the public and fixation of their unfixed performances. Articles 7 and 8 deal with the more familiar (from a U.S. copyright law standpoint) rights of reproduction and distribution; again, parties are required to grant these rights exclusively to the performers. Article 9 grants a similar monopoly on rental rights, while Article 10 provides that “[p]erformers shall enjoy the exclusive right of authorizing the making available to the public of their performances fixed in phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.” Articles 11 through 14 provide parallel rights to producers of phonograms. Article 15 provides performers and producers with a right of remuneration for the broadcasting or other communication to the public of their sound recordings. The minimum term of protection is set by Article 17 at 50 years from the end of the year in which the performance was fixed (for performers and for producers of works fixed but not published), and 50 years from the end of the year of publication (for producers of published phonograms). Article 20 provides, in conformity with Berne Convention and TRIPS norms, that no formalities may be required for copyright protection.
Article 16 provides for limitations and exceptions such as the U.S. fair use doctrine: “Contracting Parties may, in their national legislation, provide for the same kinds of limitations or exceptions with regard to the protection of performers and producers of phonograms as they provide for, in their national legislation, in connection with the protection of copyright in literary and artistic works.” The treaty adopts the three-step test of Article 9(2) of the Berne Convention as expressed in Article 13 of TRIPS, confining the creation of limitations or exceptions to “certain special cases which do not conflict with a normal exploitation of the performance or phonogram and do not unreasonably prejudice the legitimate interests of the performer or of the producer of the phonogram.” Article 18, like Article 11 of the WIPO Copyright Treaty, requires the parties to enact and enforce laws against the circumvention of copy-protection measures: Parties to the treaty “shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by performers or producers of phonograms in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their performances or phonograms, which are not authorized by the performers or the producers of phonograms concerned or permitted by law.” Article 19, like Article 12 of the WIPO Copyright Treaty, requires the parties to prohibit any other circumvention or spoofing of any part of an electronic rights management scheme. Under Article 19, the parties must “provide adequate and effective legal remedies against any person knowingly” removing or altering “any electronic rights management information,” or distributing, importing for distribution, broadcasting or communicating to the public any works from which such information has been removed, if in either case the person does not have the authority to do so and knows or has reason to know that doing so “will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty.”
The anticircumvention provisions in Articles 18 and 19 of the WIPO Performance and Phonograms Treaty, like the corresponding provisions of the WIPO Copyright Treaty, have been implemented in the United States by the anticircumvention provisions of the Digital Millennium Copyright Act (17 U.S.C. §§ 1201–1204) and in the European Union by EU Directive 2001/29/EC.
Treaties
• Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, October 26, 1961, 496 U.N.T.S. 43
• WIPO Copyright Treaty, December 20, 1996, 36 I.L.M. 65 (1997)
• WIPO Performance and Phonograms Treaty, December 20, 1996, 36 I.L.M. 76 (1997)
Statute
• Digital Millennium Copyright Act, 17 U.S.C. § 1201
European Union Directive
• EU Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society, 2001 O.J. (L 167) 10
See also Berne Convention; Copyright Infringement; DeCSS; Digital Millennium Copyright Act, Title I; Digital Rights Management; International Copyright Protection; TRIPS
Sources and Further Reading
Mihaly Ficsor, The Law of Copyright and the Internet: The 1996 WIPO Treaties, Their Interpretation and Implementation (Oxford, UK: Oxford University Press, 2002)
WORLD INTELLECTUAL PROPERTY ORGANIZATION
See WIPO
WORLD WIDE WEB
The World Wide Web, or Web, is often but inaccurately referred to as the Internet. The Internet is the combination of physical infrastructure and communications protocols that supports the Web and other information networks. The Web is a collection of information, distributed on billions of hypertext pages scattered across millions of Internet-connected computers, which can be accessed using a Web browser. Any person with a Web browser and access to the Internet can view pages on the World Wide Web, interact with those pages, and follow links from one page to another (Wagner 1999). Information shared across the Web can be used to facilitate other Internet activities, such as email, messaging, and file-sharing.
The Internet itself arose from a variety of sources, and cannot readily be traced to a single inventor or originating event. The origins of the World Wide Web are less obscure, however. The Web was created in the late 1990s by an independent contractor and a researcher at CERN, the European Organization for Nuclear Research. (CERN is the French acronym for the organization’s original name, Centre Européenne pour la Recherche Nucléaire; the organization is now the Organisation Européenne pour la Recherche Nucléaire.) The two, Tim Berners-Lee and Robert Cailliau, created a hypertext system they called ENQUIRE in order to find documents more quickly on CERN’s computers. Hypertext systems existing at the time required two-way links; the system developed by Berners-Lee and Cailliau used unidirectional links, meaning that anyone creating a document could link to another document without the need for any alteration in that second document. By 1991 Berners-Lee had created both the first Web page and the first Web browser; the Web spread quickly, first among physics researchers and then to the world at large. In December 1991, the United States had its first Web server, at the Stanford Linear Accelerator Center in Menlo Park, California (CERN 2008).
Two factors contributed to the early growth of the World Wide Web: the ease with which unidirectional hypertext links could be created, and the fact that CERN made the underlying technology available to all, free of charge. This made the Web far more attractive than proprietary technologies for which content developers would have to obtain a license and pay a fee. Early Web browsers, however, either required sophisticated computers or were difficult to use for the technologically unsophisticated. The explosion of the Web beyond the scientific community began with the release of easy-to-use Web browsers that could run on the home computers of the time. The first of these was the Mosaic browser, released in 1993 by the National Center for Supercomputing Applications at the University of Illinois (CERN 2008). Netscape released its browser, Netscape Navigator, in 1994. Netscape Navigator was followed by Microsoft’s Internet Explorer in 1995, and the browser wars began. In October 1993, before Netscape Navigator appeared on the market, there were only 228 Web servers. Eight months later, in June 1994, there were 2,738. For a time during the mid-1990s the number of Web servers continued to grow at this astonishing rate, increasing an order of magnitude each year. In June 1995, there were 23,500 servers, and in June 1996 there were 252,000. The number of Web servers had topped a million by April 1997. By September 2012, the World Wide Web included well over 600 million sites, with tens of billions or hundreds of billions of pages (Netcraft 2012).
The World Wide Web, like the Internet, has been involved in controversy from its inception. The browser wars between Netscape and Microsoft led to federal and state government lawsuits against Microsoft. The ease with which the Web provides access to information has raised concerns about its use by criminal conspiracies and terrorist organizations. The relative anonymity of Web users has made it difficult to shield minors from indecent and pornographic content. These concerns have led to attempts to censor the Internet either by restricting content or by restricting access; these attempts have met with little success both because of the ease with which sophisticated users circumvent controls and, in countries such as the United States, because of constitutional protections of free speech and access to information.
The ease with which material can be reproduced and published on the Web has also raised intellectual property concerns; holders of intellectual property rights have been more successful than censorship advocates, both in court and in Congress, in achieving some measure of control over the Internet. Laws such as the Digital Millennium Copyright Act have greatly strengthened copyright protections, taking new technology into account. The Web has also revolutionized retailing through the advent of e-commerce, requiring changes to contract law.
Statute
• Digital Millennium Copyright Act, 17 U.S.C. §§ 512, 1201–1204
See also Censorship; Copyright; Digital Millennium Copyright Act; E-Commerce; File-Sharing; Hacking; Internet; Internet Corporation for Assigned Names and Numbers; Microsoft Antitrust Litigation; Spam; Virus; Web Browser
Sources and Further Reading
Dave Kristula, “The History of the Internet” (August 2001), available at http://www.davesite.com/webstation/net-history.shtml (visited August 16, 2012)
“September 2012 Web Server Survey,” Netcraft (September 10, 2012), available at http://news.netcraft.com/archives/2012/09/10/september-2012-web-server-survey.html (visited February 7, 2013)
Ronald L. Wagner, Road Runner Guide to Cyberspace (Herndon, VA: Citapei Communications, 9th ed. 1999)
“Welcome to info.cern.ch: The Website of the World’s First-Ever Web Server,” CERN (2008), available at http://info.cern.ch/ (visited February 7, 2013)
Robert H. Zakon, “Hobbes’ Internet Timeline v10.2,” available at http://www.zakon.org/robert/Internet/timeline/ (last updated December 30, 2011)
WORM
A worm is a program that replicates itself until it has used up all of the available space on a computer. A worm is not a computer virus, although the two terms are often confused and worms may have the same effects as some viruses. The term “worm” was first used for such a program by the late British SF author John Brunner in his 1975 novel Shockwave Rider. Brunner’s use of the term was adopted by researchers at Xerox PARC, who created the first computer worm in 1978 (PARC History 2003). It was not until a decade later, however, that computer worms burst into the popular consciousness, with the creation and distribution of a worm by Cornell University graduate student Robert Morris, Jr. (Lessig 1999, 194–196).
Morris created the worm to point out security flaws in the then-new Internet, particularly in the open-source email distribution program Sendmail:
Morris identified four ways in which the worm could break into computers on the network:
(1) through a “hole” or “bug” (an error) in SEND MAIL, a computer program that transfers and receives electronic mail on a computer;
(2) through a bug in the “finger demon” program, a program that permits a person to obtain limited information about the users of another computer;
(3) through the “trusted hosts” feature, which permits a user with certain privileges on one computer to have equivalent privileges on another computer without using a password; and
(4) through a program of password guessing, whereby various combinations of letters are tried out in rapid sequence in the hope that one will be an authorized user’s password, which is entered to permit whatever level of activity that user is authorized to perform (Morris, 928 F.2d at 506).