WIPO Copyright Treaty, December 20, 1996, WIPO Doc. CRNR/DC/94 (Decem-
ber 23, 1996), and the WIPO Performances and Phonograms Treaty, December 20,
1996, WIPO Doc. CRNR/DC/95 (December 23, 1996). The WIPO treaties expand the
protection afforded to on-line works by requiring countries to extend copyright laws to
the Internet. In the United States, this extension took the form of the Digital Millenium
Copyright Act of 1998 (DMCA), which prohibits both acts circumventing copy protec-
tion and the importation, manufacture, or sale of technologies developed primarily for
such circumvention. Willful violation of these provisions is subject to criminal penalties,
and both criminal and civil sanctions may be applied to violators even if the underlying
use is privileged (even if, for example, the use were to fall within traditional fair use).

[14-15] There is an obvious, and important, problem of security raised by such a system,
though there are also obvious and feasible ways to minimize any security risk. For an ex-
ample of a secure system that was used to effect a settlement between IBM and Fujitsu,
see Robert H. Mnookin and Jonathan D. Greenberg, "Lessons of the IBM-Fujitsu Arbi-
tration: How Disputants Can Work Together to Solve Deeper Conflicts," _Dispute_Reso-_
_lution_Magazine_ (Spring 1998): 16.

[14-16] Under existing law, "if the intended use is for commercial gain," the likelihood of
market harm can be presumed. See _Sony_Corp._of_America_ v. _Universal_City_Studios,_
_Inc.,_ 464 U.S. 417, 451 (1984). This presumption could be modified in the context of the
Internet so that innovators could defend a new use by demonstrating that no substantial
likelihood of harm to existing markets exists.

[14-17] Of course, it is not as if artists are really being paid under the existing system -- or at
least, not most of them. In 1999, eighty-eight recordings accounted for 25 percent of all
record sales. Charles C. Mann, "The Heavenly Jukebox," _Atlantic_Monthly_ (September
2000).

[14-18] The proposals for this are many. As Jon Potter describes it:

____ Once the art is disseminated to a single reseller, then other resellers can also have that art
____ for resale for the same terms and conditions, so maybe you can have a standardized
____ nondiscriminatory license provision rather than a compulsory statutory scheme of royal-
____ ties. So, if Sony needs to sell something through a Sony store, and tries to really control
____ all distribution, then Barnes & Noble gets to do the same deal -- whatever the Sony store
____ does with Sony music, or whatever Barnes & Noble gets, Tower gets, but something so
____ that compensation is ensured. And competition is ensured.

Telephone interview with Jon Potter, December 7, 2000.

[14-19] See, for example, "Artists' Contribution to American Heritage Act of 2001," 107th
Cong., 1st sess., H.R.1598; Artist-Museum Partnership Act, 107th Cong., 1st sess., S.694;
Arts and Collectibles Capital Gains Tax Treatment Parity Act, 107th Cong., 1st sess.,
S.638; Artists' Contribution to American Heritage Act of 1999, 106th Cong., 1st
sess., H.R.3249; 106th Cong., 1st sess., S.217.

[14-20] Stephen Fishman, _The_Public_Domain_ (Berkeley, CA: Nolo, 2000), 2/9 ("Claim-
ing copyright in public domain works is a federal crime, but the maximum penalty for
engaging in this sort of criminal conduct is a fine of $2,500 [17 U.S.C. # 506(c)]. More-
over, no one has ever been prosecuted for violations [of this provision]").

[14-21] David Lange, "Recognizing the Public Domain," _Law_&d_Contemporary_Problems_
44 (1981): 147, 166.

[14-22] See Gail E. Evans, "Opportunity Costs of Globalizing Information Licenses: Em-
bedding Consumer Rights Within the Legislative Framework for Information Con-
tracts," _Fordham_Intellectual_Property,_Media_&_Entertainment_Law_Journal_ 10 (1999):

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