Re: Digital Transmission

From: Rebecca Tushnet <rebecca.tushnet[_at_]yale.edu>
Date: Wed, 30 Apr 1997 11:19:12 -0400

On 4/30/97, Leo Smith <barter[_at_]ntplx.net> wrote:
>
> The transmission of digits raises some interesting copyright
> issues. At the time of transmission via modem, only digits are
> transmitted from the sending computer to the receiving computer.
>
> 1) Can anyone copyright a series of digits?
>
> 2) Can the party transmitting the digital signals be libel for any
> infringement claim if no proof exists that a receiving party also
> converted the digits into a copyrighted form?
>
> 3) If a sender transmits via modem encrypted digital signals that
> when decrypted represent a copyrighted work, and if that encryption
> cannot be decyphered by the copyright holder, then are the copyright
> holder's rights successfully thwarted?

I'm not aware of this issue coming up in any copyright cases, but when it comes to pornography, the courts have soundly rejected the "it's just ones and zeroes when it's being transmitted interstate" argument. See, e.g., United States v. Thomas, 74 F.3d 701 (6th Cir.), cert. denied, 117 S. Ct. 74 (1996). Thomas and related cases have rejected the argument that encryption makes a difference, holding that if the receiver could have decrypted and viewed the images, interstate transmission has taken place. The analogy is not exact, I know, but the impulse to prevent new technology from overwhelming standard law is probably similar.

---

rebecca.tushnet[_at_]yale.edu
"The laws of God, the laws of man,
He may keep that will and can. . .
Their deeds I judge and much condemn,
Yet when did I make laws for them?" --A.E. Housman Received on Wed Apr 30 1997 - 15:29:39 GMT