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Unformatted text preview: Copyrights (Fall 2003) 1 Copyrights- original works of authorship fixed in any tangible medium of expression known or later developed from which they can be perceived. 17 U.S.C. §102 Originality: often refers to the origin of someone and not necessarily a new, fresh idea. • Burrow-Giles Lithographic v. Sarony Photographs inherently contain originality from the photographer who plans the photo, etc. These plans/ideas are that which can be copyrightable. • Bleistein v. Donaldson Lith. Co. Advertisement is copyrightable under the act and Congress’ authority. Judges cannot decide what is a good work of fine art or not (language from Const). Concept is that giving the most copyright protection to all possible works as a whole helps keep the creative juices flowing. Copyrights, Trademarks & Patents – All are federally regulated, subject to international treaties and are efforts to spur growth and originality. Copyrights vs. Patents • Alfred Bell v. Catalda Fine Arts Older works in the public domain “redone” with a new method of engraving that was patented given copyright protection. Original in reference to copyrights means origin of the author, not novelty in a particular good. Patents are held to a much greater standard of uniqueness than copyrights. Copyrightable works do not even have to be original works. Patents deal mostly with technical innovations Duration is much shorter than copyright but nature of protection is much more robust. Patent holders can exclude the world for a certain time, but the same works may both get copyrights. Patents must be new, useful and non-obvious. Copyrights can be variations on other existing works and cannot be useful. Copyrights v. Trademarks • Dastar Corp. v. Twentieth Cent. Fox Origin in the Lanham Act refers to the source of the product, not the original creator. Trademarks deal with symbolic information regarding source. Roots of trademark are in the common law. Trademarks get protection through use (or intent to use through F. gov’t). §43(a) of the Lanham Act – unfair competition. Manipulating business marks or identity, passing off or false origin. Fixation – the question is: when works are places in a computer’s RAM, is it fixed for purposes of the Copyright Act. §117(a)(1) – tends to imply that computer memory is copy; (c) RAM tends to make a work copyrighted. uploading copies for download makes items available for download eligible for copyright protection under the act. Copyrights (Fall 2003) 2 Idea/Expression Dichotomy • Baker v. Selden Π attempted to copyright his bookkeeping system that he wrote about in his book. Court held that the book’s writings itself were copyrightable, but not the bookkeeping system described in the book; that is an idea that can be used and described by others. Π could have attempted to get a patent on the system. Merger Doctrine: an unintended monopoly over the description of a system that the court must be careful of. • American Dental v. Delta Dental Π’s system of numbering of procedures and insurance claims was copyrightable because the system was pure authorship on part of Π. ∆ could describe the system’s use differently, but it could not copy it whole. Compilations: • Fiest Publication v. Rural Telephone The lower courts granted summary judgment to ∆ explaining that courts have consistently held that phone directories are copyrightable. Feist had used Rural’s white page listings without consent in its own directory, including names, addresses, and phone numbers. Two well-established propositions: 1. Facts are not copyrightable. 2. Compilations of facts generally are copyrightable. To qualify for copyright protection, a work must be original to the author, and original means only that the author independently created the work. Facts do not owe their origin to an act of authorship. The distinction between creation and discovery is that the first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence. • Bell South v. Donnelly Yellow pages listed in certain finite ways by Π still not copyrightable because the compilation in certain ways is still nothing more that a re-arrangement of facts. A thin copyright: a copyright, but just barely, basically, protection given only to acts of direct piracy • CCC Info v. Maclean Hunter Red book, a compilation of used car information was a unique enough system to ensure copyright protection – a system that is an original expression of an idea, and so deserving of some copyright protection. “Sweat of the Brow” theory The courts had developed a new theory to justify the protection of factual compilations. The underlying notion was that copyright was a reward for the hard work that went into compiling facts. The idea has the following laws: 1. It extended copyright protection in a compilation beyond selection and arrangement to the facts themselves. 2. The only defense to infringement was independent creation. 3. It eschewed the most fundamental axiom of copyright law – that no one may copyright facts or ideas. Copyrights (Fall 2003) 3 The 1976 Act says collections of facts are not copyrightable per se and so the elements for a work to qualify as a copyrightable compilation: 1. The collection and assembly of preexisting material, facts or data. 2. The selection, coordination, or arrangement of those materials. 3. The creation, by virtue of the particular selection, coordination, or arrangement of an original work of authorship. Database directive, as outlined by the European Union: Databases must be protected when the database shows some sort of creativity on the part of the owner, gives certain rights (temporary production, communication to public, adaptations, etc.) to the owner and gives rights of use to owner for 15 initial year term with an addition 15 years each time database is changed Derivative Works §102 Works: First generation works, created by the original author of the work §103 Works: Compilations and derivatives that are second generation works based on preexisting matter Derivative protection is granted only to a new version inasmuch as it covers only the material contributed by the author of such work, as distinguished from the preexisting material employed in the work. Derivative work requires a process of recasting, transforming, or adapting one or more preexisting works which must come within the general subject matter of copyright. • L. Batlin & Son v. Snyder Π did not make enough changes in replicating Uncle Sam bank to get copyright protection against third party also making replica. Derivative works must have substantial differences, not trivial variations to achieve copyrightable status. Courts are looking, for something, enough to demonstrate that a third person cannot copy the derivative user. Look at second and third work and observe what original elements third copied from second, not the original, because obviously both copies are based on the original. Pictorial, Graphic and Sculptural Works §101 Def: works of craftsmanship insofar as form but not mechanics. Functional works will only be considered if there is an artistic element that exists for aesthetic value only and could exist separately. (i.e. hood ornament of a Jaguar car) (1909 Act) – copyright granted if utility or function was part of design…compared with 1976 act (above) which says any utility/function denies copyright. If the feature or design aides in the function of a product, then patent protection is proper; if the feature does not help in the function of a product, then copyright protection is proper. • Mazer v. Stein Copyright violation in exact copies of lamps with human sculptures as bases. Copyrightability works can include works of art that had been incorporated as the designs of useful articles. The Court endorsed a Copyright Office Regulation accepting as copyrightable “works of artistic craftsmanship, insofar as their form but not their mechanical or utilitarian aspects are concerned, such as artistic jewelry, enamels, glassware, and Copyrights (Fall 2003) 4 • • tapestries, as well as all works belonging to the fine arts such as paintings, drawings, and sculpture.” These factors make no difference whatsoever: 1. The potential availability of design patent protection for the same subject matter. 2. The intention of the artist as to commercial application and mass production of the design. 3. The aesthetic value of the design, or its total lack thereof. 4. The fact that the design, in its useful embodiment, was mass-produced and merchandised commercially on a nation-wide scale. Kieselstein-Cord v. Accessories by Pearl Π’s belt buckle, which is hand-carved in a special manner, deemed to be an artistic, sculptural work deserving of copyright protection against ∆’s plastic, rip-off models, notwithstanding the ∆s argument that buckle is a functional necessity of the belt. DISSENT Protection should not be granted to artistically designed functional components, only to superfluous or ornamental pieces. Carol Barnhart v. Economy Cover Corp. Human mannequins used for clothing displays not copyrightable b/c configurations of mannequins must all be essentially same and so no artistic difference in design. DISSENT Mannequins themselves could be a work of art. Architectural Works 1976 act originally only gave protection to architectural plans, not the actual architecture itself; that changed with an amendment to the act in 1990. While an door or window is generally not copyrightable, the overall design of a house may. Also, printing pictures of such buildings are not protected under the act, as well as the interior of the building. Characters • Nichols v. Universal Pictures Learned Hand: can’t necessarily copyright the general ideas behind the characters; the less developed the characters, the less they can be copyrighted. • Warner Bros. v. Columbia Broadcasting Character copyrightability depends on whether the character is essentially the story being told or whether the character is simply along for the ride in a story. • Anderson v. Stallone Court finds the “Rocky” characters were both specific enough under Nichols and constituted the story being told Warner Bros. Π’s unauthorized treatment of a Rocky IV movie, therefore entitled to no copyright protection. Government Works F. Gov’t cannot hold copyrights in their own works. • Veck v. Southern Bldg. Code When copyrighted works such as codes or proposed laws actually become adopted by the gov’t and therefore placed in the public domain. Copyrights (Fall 2003) 5 Computer Programs Computers are different than traditional literary works (as per §102) because they are functional creations and programs tend to have little, if no literary merit. • Apple Computer Inc. v. Franklin Computer Corp. ∆ copied 14 of Π’s operating systems (which are written in source code), from Apple computer’s ROM. Π had built their systems into their machines itself, it was not, softwarebased. Court concluded that both source and operating codes are fixed, tangible works that are copyrightable. Duration, Renewal & Termination Rules differ depending on whether the works were copyrighted under 1909 act, or the 1976 act. The 1909 act will not become irrelevant for a while as works are still copyrighted under it. The 1909 act provided for 2 separate terms: an initial 28 terms and an additional; 28 terms, that must be applied for properly, otherwise the work went into the public domain. Notion of this dual-term was an idea that it is sometimes difficult to judge a work’s value. Often times, licensees secured copyright for both initial and renewal term. The grant was effective if the author lived into the renewal term, but defeatable it the author did not survive. If the author did not survive before the renewal, the author’s heirs owned the rights. The 1976 act (became effective. 1978) held that the copyright holds for the life of the author plus 50 years (70 via the 1998 amendment.) for works copyrighted after Jan. 1 1978. 1976 act also added 19 years of additional protection to works under 1909 act (total of 75 years of protection). 1976 act also extended copyrights expiring in the middle of a year automatically extended to end of that calendar year) Additionally, 1998 act added an additional 20 years to 1909 works (now totaling 95 years); and any works copyrighted between 1964 to 1977 assumes a renewal of an additional 28 years. 1909 Act, work is eligible for protection after publication with notice or registration of an unpublished work. 1976 Act, work is eligible for protection as soon as work is created and fixed in some tangible medium. 1976 Act realized that additional 19years under 1909 Act may be detrimental to original copyright owner and the same was true of the new life + 50 years period. Therefore, the 1976 Act provided that one cannot give up termination rights in a copyright. §203 – termination rights for 1976 works §304 – termination rights for 1909 works 1976 Act also provides that acts created but not published under 1909 act now fall under the umbrella of 1976 act and protected at least to end of 2002 and if published before 2002, it is protected until at least 2047. Copyrights (Fall 2003) 6 Quick Chart of 1909 & 1976 Acts Date of Work Published before 1923 Published 19231963 Published 19641977 Created in 1978 or later Created but not published before 1978 • When Protection Attaches Now in public domain Upon publication with notice. Upon publication with notice. Upon being fixed in a tangible medium. On 1-1-78 when federal copyright displaced state copyright. First/Renewal Term N/A 28 years/28 years/19 years/20 years if renewal was sought otherwise these works are in the public domain. 28 years/28years/19 years/20 years, renewal terms now commence automatically. Life+70 Life+70, with earliest expiration dates being 12-31-02 or 12-31-2047. • • Stewart v. Abend Derivative user of a copyrighted work is infringing if the granted license did not also have a license in the renewal terms. Over-ruled 2d circuit, which held that derivative work may continue to be used or exposed even if the renewal rights had not been granted. [Today, registering the renewal is necessary to achieve this results; if the work is allowed to automatically lapse into renewal, a derivative owner make continue to exploit the work.] Eldred v. Ashcroft Π’s argument that Copyright Act went beyond Congress’ power in respect of the “limited times” for already existing work fails. The extension of time is clearly within Congress’ power and if Congress believe that this too, promotes sciences, they clearly are within their rights. First amendment argument also fails. There is a clear distinction between protection of expressions and the freedom to express ideas. First amendment does not assert a right to make other people’s speech. Marvel Characters, Inc. v. Simon Subsequent agreement that work was “for hire” leads to the conclusion that it an agreement to the contrary under §304(c)(5) and so not subject to termination on part of the author. Termination Rights Allows for the original author to get back the copyrights that were once assigned. Need to know whether termination is under §203 (1976) or §304 (1909). This goes for the grants of renewal as well as the original copyright. §203 – All works January 1, 1978 of after and a grant by the author. (not work for hire, dispositions, etc.) Those with termination rights: author (if more than 1, it must be a majority), or (a)(2)(A-C): the author’s surviving spouse and children (the right is split between spouse 50% and children 50%, per stirpes and a majority is still needed), (a)(3): 5 year window for termination beginning at the end of 35 years after the grant. Copyrights (Fall 2003) 7 §304(c)(4)(A): notice shall be served no more than 10 years, and no less than 2 years of the date of the termination. The termination window itself is 5 years. (these year extend into both the 19 year and 20 year extensions.) A §304 EXAMPLE: A Copyright runs through 7/1/1996. Termination can be executed between 7/1/1996 and 7/1/2001. Therefore notice can be given as early as 7/1/1986 and as late as 6/30/1999. Under §304, grants can be terminated by the author or author’s statutory heirs. If grant was transferred by heirs after an author’s death during the first 28-year period, that’s OK. Under §203, only a grant by the original author can be terminated, by the author or the author’s statutory heirs. ***Any works whose rights were granted, but not published before 1978 has no termination rights resting with anyone. (§304 only applies only to existing works and §203 only to works post-1/1/1978) §§203 & 304 – grant of a right for a derivative work may continue to be exploited even after the renewal has expired although a new derivative may not be created Reproduction Rights/ Infringement § 106(1) – an author’s right also includes the exclusive right to re-produce the copyrighted work. * Any work copyrighted in a foreign country under the Berne contract that is registered in the U.S. within 30 days of publication overseas is a valid U.S. copyright • Nichols v. Universal Studios Π accused ∆ of infringing the rights in the play “Abie’s Irish Rose” because there are similarities in the characters and themes of Π’s play and the ∆’s “Cohen & Kellys.” Court held that no infringement existed because Π’s theme is too general of an abstraction to have only one copyright owner. ∆ “took” just enough of what is allowable under the law. Sheldon v. MGM Court held that ∆’s movie “Letty Lynton” was similar enough to Π’s play “Dishonored Lady” to enjoin based on copyright infringement. Even if ∆s claim no conscious copying, unconscious copying of the essence of the original author’s expression to the point where plots speak of the same action is an actionable infringement claim (second work essentially, tracks the first work). Arnstein v. Porter The more popular the work, the easier it is to presume that an alleged infringer copied the work, rather than arrived at the work independently. • • Copying Originally, a circuit split existed: 7th Circuit – even striking similarities, indeed complete identity will not necessarily lead to infringing without other proof of evidence establishing a reasonable probability that the complaining work was available to the alleged infringer. 2nd Circuit – striking similarity alone can raise an inference of copying, but it must be reasonable in light of all the evidence…however similarity can be so striking that by itself could constitute proof of access Copyrights (Fall 2003) 8 7th Circuit in Ty v. GMA, resolved the majority of the tension between the circuits, allowing a striking similarity to be a basis of proof for copying so long as nothing exists in the public domain that is also is strikingly similar. • Computer Associates v. Altai In computer programs, one question must asked is why are programs similar? Is it out of necessity or out of copying? A test developed for this: abstraction-filtration-comparison: Abstraction: what is the code and what is its function? what parts are necessary? Filtration: what is protectable code and what deserves no protection Comparison: compare the two programs at issue based upon function necessity and what is protectable for substantial similarity. Establishing a prima facie case for infringement: 1. Π must have standing to sue, that is, the Π is the legal owner of the copyright and its registration rights. The proof of registration is presumption of valid copyright. 2. Π must show copying: a. direct proof (Probative similarity - ∆ obviously copied) b. indirect or circumstantial proof i. ∆ had a reasonable opportunity to see and/or have access to protected work ii. there is similarity in the protectable and unprotectable aspects of the work to support an inference of access and copying (amount of work copied is irrelevant) • Peter Pan Fabrics v. Martin Weiner Decision regarding visual works must, by their nature, be ad hoc. Judge Hand said to look at: what is the use the design is intended for?; would the ordinary observer look at the two products and see essentially the same thing?; if “yes” that could be enough. Herbert Rosenthal Jewelry v. Kalpakian No copying when ∆ also created a bee pin similar to Π’s. Cannot be a copying when both products are based on ideas found in nature. The product would need to be near identical then just similar when the idea is naturally occurring. Steinberg v. Columbia Pictures In finding copying of Steinberg’s famous New Yorker cover, the court found that substantial similarity exists in near identity, duplication or even small portion of a work. Standard is whether the average lay observer would recognize the alleged copy as having appropriated from the copyrighted work. • • Distribution Rights Distribution rights involve three principle sections of the Copyright act that often conflict. §106(3) – Owners of copyrighted works have the exclusive right to…distribute the work by sale, rental, public transfer, lease or lending. §109(a) – someone who owns a copy of a work lawfully made under the statute can sell or dispose of that work in any manner without the permission of the copyright owner Copyrights (Fall 2003) 9 §602(a) – can’t import copyrighted goods of another country into this country without the owner’s consent. Questions to answer regarding the conflicting of these three sections: 1. Was the copy of the work lawfully manufactured with owner’s permission? 2. Was the work transferred with the owner’s copy? 3. Does the ∆ qualify as the lawful owner of the property? 4. Did the ∆ dispose of the copy as supposed to reproducing it? • Quality King Distributions v. L’anza Research Fact that ∆s product is manufactured in the U.S. before it is shipped to U.K. is controlling in deciding that §109 applies to the re-importation over §602. Preparation of Derivative Works §106(2) - the owner of copyright has the exclusive rights to do and to authorize preparation of derivative works based upon the copyrighted work. DEFa work based upon one or more preexisting works or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship is a derivative work. Exceptions to the derivative works: 1. §107 – fair use right. 2. §114(b) – sound recordings & §115 – compulsory licensing of sound recordings 3. §118(f) – compulsory license of public broadcasting • Horgan v. MacMillian Π is the estate of the author of the Nutcracker and sued ∆ for publishing pictures of the Nutcracker because the pictures could tell the story of the ballet. Court held there was infringement in that the pictures were a recasting of the choreography steps and that it was substantially similar to the original work to be an infringing derivative. Microstar v. Formgen, Inc. A derivative work must: 1. exist in a concrete or permanent form and 2. substantially incorporate protected material from preexisting work. • Moral Rights ¶6 of Berne Convention recognizes that independent of author’s economic rights and any transfers that the author has the right: to be known as the author of the work (a.k.a. paternity or right of attribution), to prevent false attribution of the work by someone other than the author, to prevent others from making deforming changes to the work (integrity), to withdraw from publication the work if it no longer reflects the author’s views and to use the work in a way that is a poor reflection of the author’s standing. §106A of the Copyright Act & Lanham Act §43(a) are U.S.’s version of moral rights Copyrights (Fall 2003) 10 §106A grants moral rights in visual works (def a painting, drawing, print or sculpture in a limited edition of under 200 copies; or a still image produced for exhibition only of 200 copies or less.) The statute allows the author to continue to claim authorship of the work in a form that keeps within the original intent of the author and does not alter the author’s honor or reputation and to prevent the destruction (intentionally or negligently) of any recognized work. These moral rights may be waived under §106A(e) as long as the waiver is in writing. • Gilliam v. ABC ∆ had the rights to broadcast Π’s work, but nothing in the agreement gave ∆ the right to edit the work. ∆ edited over 27% of the Π’s work. Court held that the ability of the copyright holder to control his work remains paramount and the permissive use of a work cannot exceed certain expectations and limitations. The editing of the work so drastically altered the work, that it could not be recognized as Π’s any longer. No moral rights, per se, because of the lack of such rights in American law, but without a contract allowing for alteration, there cannot be a distortion of the work. Wojnarowicz v. American Family Ass’n Π’s work of homosexuals taken out of context and distributed by ∆. This type of selective reproduction was violative of New York State law. • Public Performance and Display Rights §106(5) – confers a right to display publicly any literary, musical, dramatic or choreographic. §106(6) – confers a right to display audio works publicly over a radio transmission §101 – DEF of public displays at any place open to the public or at any place where a substantial number of persons outside the normal circle of family and acquaintances OR to transmit the performance by means of any device or process when the public can receive it at the same or at different times. Licenses: Grand (dramatic) rights – for the rights to perform dramatic works publicly (i.e. musicals, plays). Small rights – for movies of musicals or plays, music videos (films), and small live performances. Mechanics license – for music or non-dramatic work set to be placed on a record [must get permission from owner] Synchronization license – for music in synchronization with dramatic action in a film Performance license – for music or other non-dramatic public performance [must get permission from owner director, ASCAP, BMI, SESAC] (i.e. radio, TV, nightclub stage) *** Usually the copyright owner handles the licenses directly for grand rights while production houses (ASCAP, BMI, SESAC) handle the licenses for small rights licenses. Exceptions to getting these licenses: §107 – fair use §110 (1-2) – teaching uses Broadcasting religious services Copyrights (Fall 2003) 11 §513 – Determination of reasonable license fees for individual proprietors An individual business owner can bring a proceeding in federal court to determine what a proper and fair licensing fee would be for the business. Compulsory Licenses (for Mechanical licenses) §115 – once the copyright owner gives permission (a Mechanics license) to the first recording of the musical work, then all subsequent recorders have a compulsory license available if the intent is to distribute to the public for private use (i.e. the influx of Christmas albums). Arrangements of the pieces may also be altered to suit the artist’s range as long as the fundamental character of the original song. These compulsory licenses are traditionally and easily acquired through the Harry Fox Agency, or the original copyright owner. §114 – no infringement is the broadcast of a work is a non-subscription broadcast transmission. Also deals with digital phono-record delivery and how the process works. Fair Use §107 – Fair use of a copyrighted work is not an infringement. Fair uses purposes include criticism, comment, news reporting, teaching, scholarship or research. Four factors to include are: 1. The purpose and character of the use, including whether such use is of commercial nature or is for non-profit educational purposes. 2. The nature of the copyrighted work. 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. 4. The effect of the use upon the potential market for or value of the copyrighted work. Four factors listed in the statute are not the only confined factors to talk about. The factors are merely statutory listing of years of case law on fair use. *Fair use is an affirmative defense and so the burden of proof is on the defendant. • Campbell v. Acuff-Rose Music, Inc. ∆’s parody of “Pretty Woman” held to be a parody-criticism and therefore is fair use. All four factors, at least, must be taken under consideration. Regarding the factors: 1 has the nature of the ∆s work contributed something to public and not simply being ‘too lazy’ to provide his/her own work; 2. the nature of parody requiring use of the original; 3 that the parody is balanced in that enough is taken so that an audience recognizes the song being parodied but enough originality exists; 4. the effect on the parody would have on the market for the original. There is a transformity in the work, and good or bad taste is irrelevant. Sony v. Universal Studios ∆ was accused of being a contributory infringer for making its Betamax (VCR) which could allow consumers to copy the work and possibly make additional unauthorized copies. “Time shifting” abilities of the VCR was fair use, it did not destroy the copyrighted work, only allowed the viewer to watch the work at his/her pleasure • Copyrights (Fall 2003) 12 • • • • • Harper Row v. Nation Magazine Publishing work before its release not a fair use. The author’s right to control the first public appearance of his expression weighs against such use of the work before its release because the right of first publication encompasses not only the choice whether to publish at all, but also the choices of when, where, and in what form first to publish a work. Once a copyright holder establishes with reasonable probability the existence of a causal connection between the infringement and a loss of revenue, the burden properly shifts to the infringer to show that this damage would have occurred had there been no taking of copyrighted expression. To negate fair use, one need only show that if the challenged use should be come widespread it would adversely affect the potential market for the copyrighted work. Princeton University Press v. Michigan Document Services Π successfully negated ∆’s fair use defense by demonstrating the booklets of pages from all textbooks to sell to college students would adversely effect the potential market. (4th factor) A&M Records v. Napster Fair use factors that were in play the most in Napster: 1. ∆ is not making any money, but ∆ was aiming to get advertisers and the company itself had a high value…so there is some commercial value to Napster. Court also rationalized that repeated and exploitative copying of works, even if not for sale, constitutes commercial use. 2. Nature of the stolen work is pure musical composition, the heart of the copyright act. 3. The entirety of the song was stolen, how much or which portion wasn’t even an issue. 4. Market was damaged because college kids (biggest Napster users) would not likely buy those records and also there would be barriers into Π’s entry into the area of digital music is there is this free system. UMG Recording v. MP3.com ∆ made copies of all CDs it purchased and made them available for download. Too similar of a situation to Napster for court to find that because ∆ owned all CDs before providing service (unlike Napster), that this was a fair use. Therefore, same outcome in MP3. Kelly v. Arriba Soft Corp. Fair use applicable to ∆ who searched internet via a spiders program and took thumbnails of other artists’ images: Fair use factors: 1. Use of ∆’s web page was to catalog various images, plus the images were transformative in nature and were not direct copies of Π’s works (images were even less resolute) 2. This factor does weigh against fair use, because protecting painting is core of copyright protection. 3. While whole painting is copied, thumbnail severely reduces its size and comparitability 4. Hardly any effect on market, no one could take these thumbnails and actually use them as the piece of art, no harm or adverse impact can be demonstrated by Π. Purpose is also not for any economic benefit. Humor magazine prints parody lyrics to songs to be sung to the melody. OR Another song music magazine takes parody lyrics and prints them to be sung to a melody. Copyrights (Fall 2003) 13 Remedies, Vicarious Liability, Internet & DMCA Enforcement of Copyright Infringement §501 Elements of Infringement: 1. Ownership 2. Copying 3. Access 4. Substantial similarity 5. Improper appropriation Liability of Related Defendants: Contributory & Vicarious Liability • Gershwin Publishing Corp. v. Columbia Artists Management, Inc. Contributory Infringement – if defendant has: 1) actively induced the infringement (know it is infrgining) OR 2) knowingly supplied the means to infringe then liable for the acts of another defendant as a contributory infringer. Elektra Records v. Gem Elec. Distribs., Inc Defendant stores sold blank tapes and loander shoppers pre-recorded tapes w/ © musial works on them for a fee. Clients duplicated tapes at the store using system to copy it. Defendatnd held liable b/c they controlled the acts of the infringer by supplying them w/ the equipment to make a copy of the © material.actively induced infringement • Vicarious Liability – defendant is liable for the infringing acts of another if the defendant supervises or has the: 1) power to supervise the acts of infringement (control) AND 2) benefits or stands to benefit financially from the infringing acts • Shapiro Bernstein and Co. v. H.L. Green Co. Infringement suit against owner of chain of department stores where defendant retailer was held liable for infringing acts of its lessee, who has sold pirated records. Vicariously liabile: the right or power to control the infringing acts while financially benefiting from them Fonovisa, Inc. v. Cherry Auction, Inc. Operator of a flea market is held vicariously liable for its vendors’ sale of counterfeit records b/c the owner reaped substantial financial benefits from the public’s fees, profiting from a public drawn to the flea market to buy counterfeit records. Also held liable for contributory infringement b/c the defendant made a material contribution to the infringing activity and supplied the site and facilities for the known infringing activity. A & M Records, Inc. v. Napster, Inc. Demonstrated that ∆ is cont negligence. 1. Napster knowingly (has actual and constructive knowledge of direct infringement by its users) encourages and assists the infringement of Π’s ©s.has actual and constructive knowledge of direct infringement by its user and neither removes the infringing material nor uses its ability to block suppliers of the infringing material from using the site. • • Copyrights (Fall 2003) 14 2. • • Material contribution b/c w/out support services of Napster’s website its users couldn’t find and download the music they want. Also vicariously liability b/c Napster financially benefits from the infringing material and supervised infringing activity b/c had ability to police the system’s premises. MGM v. Grokster Software is downloaded to user’s computers from servers operated by ∆ s. The downloaded software connects to a peer-to-peer network allowing shared files available for transfer to any other user connected to network. To demonstrate vicarious or contributory liability, must show that end-users are involved in direct copyright infringement.; direct infringement occurs here b/c users of site download and upload to make copies for free Contributory infringementknowledge & material contribution. It is questionable if the ∆ has actual knowledge of specific infringement. Grokster does not do anything to facilitate user’s infringing activity b/c it doesn’t control access to the source code and the searches for locating supernode happens w/out help from Grokster. StreamCast doesn’t use fast track technology, has access to the source code for its software and can modify the software. Connect by contacting a user who is already connected, which happens automatically. Don’t control how users connect and finds file. File match is found by going through all users until a match is made. Users connect to networks, pick which files to share, and transfer them w/out help from the ∆ s. ∆ s distribute and support software, and the users control how they use it. Vicarious Infringement--∆ s derive financial benefit from the infringement b/c the ability to trade copyright material draws users to their cites and results in increased advertising for the cites, which increases money made by ∆ s. No evidence proving that ∆ s have the ability to supervise and control the infringing conduct. No vicarious liability b/c no proof of ability to supervise and control. In re Aimster Litigation Different from Grokster, appellate court concluded that the copyright owners were likely to prevail on their claim of contributory infringement. The provider's software that allowed for the sharing of music files, along with a tutorial on how to share files, was an invitation to infringement. Further, the fact that the service was capable noninfringing uses was not enough. The provider failed to produce any evidence that its service had ever been used for a noninfringing use. The provider also argued that it did not have actual knowledge of infringing uses because all of the files were encrypted. The appellate court noted that by eliminating the encryption feature and monitoring the use being made of its system, the provider could have limited the amount of infringement. Instead, it did nothing to discourage repeat infringers. As such, the provider did not fall within the safe harbor of 17 U.S.C.S. § 512(i)(1)(A). Finally, the copyright owners' harm was irreparable and outweighed any harm to the provider because their damages could not be reliably estimated and the provider was unlikely ever to have the resources to pay them while the provider was protected by an injunction bond. Remedies 1. Injunctionoption for relief in § 502 [constitutional notion of prior restraint; you publish and if whatever you publish is a problem you suffer the legal consequences.] a. Test for granting injunction requires: Copyrights (Fall 2003) 15 1) a showing of irreparable injury to © owner; AND 2) probable success on the merits, OR 3) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting preliminary relief. **Irreparable harm is presumed if plaintiff makes out a prima facie case of infringement (generally, showing proof of © is prima facie case of infringement). Damages § 504 Actual damages § 504(b) – extent to which the market value of a copyright work has been injured or destroyed by an infringement. Infringer can reduce his liability by showing the costs he incurred to produce the infringing article. Statutory damages § 504(c) – Relief on this ground cannot be made before the plaintiff has properly registered the ©, except in the case of published works, which must be registered w/in three months after publication. [registration is a requirement for statutory damages; any registration w/in 5 years of the publication makes the registration prima facie evidence of the information contained in the registration.] Range of damages determined by whether or not the infringement is willful. If willful, the range is sum no more than $150,000. (§ 504(c)(2)) If not willful, the range is $750-$30,000 for each work that has been infringed. (§ 504(c)(1)) Cannot get damages from state for copyright infringement based on sovereign immunity of states in 11th Amendment. Can get injunction against state. • Davis v. The Gap, Inc. ∆ uses Π’s eyewear on a model in an ad w/out Π’s permission. Π failed to provide evidence of infringer’s profits from the infringement, but provided evidence of actual damage. Not entitled to punitive damages. Frank Music Corp. v. MGM, Inc. Π own copyright to broadway musical “Kismet” and songs. MGM grand hotel put on musical that had a scene using 5 songs from “Kismet.” Π awarded indirect proftis from hotel and gamine operations & direct profite from the show itself. Multiple defendants are jointly and severally liable for actual damages, but severally liable for its own illegal profit. • Impoundmentsequester the goods that you are claiming are infringing on your © (like impounding a car) Criminal Liability§ 506 Costs & Attorneys feescan be recovered in copyright infringement case and are totally discretion of the court. • Fogerty Rejects notion that attorney’s fees should be automatic for any prevailing party. Judge decides whether or not attorneys fees are recoverable. Copyrights (Fall 2003) 16 Digital Millennium Copyright Act §1201 Copyright Management Protection Systems §1201(a)(1)(A) – no person can circumvent a process that controls access to a work technological measure that effectively controls access to work protected under the copyright act. Heart of the act is not copyright infringement, but rather the unauthorized access No fair use defense Ex: Breaking encryption code. A certain group of 4 works are excluded. And an individual must be able to break a technological measure his/herself Anti-trafficing provision: §1201(a)(2) (i.e. can’t manufacture or advertise products that break an original access code, regardless if the product is used to break a code.) §1201(b) – no person can traffic in any product that could be a technology copy code breaker. Prevents anyone from marketing a product that would allow unauthorized copying of a work. • Realnetworks v. Streambox ∆ marketed his altered streambox VCR to first ascertain the code from RealPlayer that keeps its song files stored on the host server and so ∆ was able to gain access to song cashes (a violation of 1201(a)(2)); and also allowed the ∆ to take streamlines and turn them into downloadable songs to copy the files even though the original file was encrypted to prevent copying (a violation of 1201(b)). §512 – Liability limitations relating to online material Limits monetary and injunctive relief for Πs against online service providers (OSP) who place infringing material on the web, provided the service provider did not initiate the transaction, the service provider posts everything automatically without screening or selected and the material is not changed by the service provider. Theses are Called Safe harbors: 1. Transitory Digital Network Communications (hosting systems) 2. System Caching (temporary internet files) 3. Information Residing on System of Networks at Direction of Users 4. Information Location Tools §512(k) – Service provider is an entity that provides online services, through routing, transmission or connections of digital communications. §512(h) – A copyright owner can subpoena an OSP to provide identification of an alleged infringers. §512(c)(1)(A)(i) Upon notification of a possible infringement: 1. Providers must respond expeditiously to remove any material or disable access to material at issue; 2. The OSP must then notify the subscriber 3. The subscriber can offer a counter statement and info must be replaced within 10 days 4. Then the accuser can get a court order for infringement which will then force the OSP to keep the info off the website. Copyrights (Fall 2003) 17 Preemption Conflict preemption when state law on safety conflicts with federal law and the federal law is the stronger law Occupation of the field preemption when a federal law is so pervasive, it gives states no room to regulate the field on their own Statutory preemption §301, specifically says that all copyright matters are to be enforced by the act itself and no other law is superior (common right copyright law no longer exists after the 1976 act was passed) 2 Questions in determining preemption: 1. Is the state law within the scope of §§102 & 103? (literary, musical, or dramatic, works; sound recordings; pictorial works; compilations; derivative works.) 2. Are rights under state law equivalent to §106? (rights to reproduce, prepare derivatives, distribute copies or transmit works) If answers to both questions are “yes”, then the state law is preempted. If either questions 1 or 2 is “no”, then no preemption. • NBA v Motorola, Inc. State law claims of misappropriation against ∆ are only preempted if actions pass the extra element test: 1. Π generates this information at a cost 2. The info is time sensitive 3. ∆’s use of the info is a free-ride on Π’s product 4. ∆ is in direct competition with Π’s service 5. If others can free-ride, Π’s incentive to produce product ∆’s product did not meet these factors to have the claim preempted by Copyright act. Court concluded (anyway) that no copyright violation in sending facts of the game, and not the game itself. State claim of misappropriation also fails because the sending of information about NBA games is not a substitute for actually attending or watching the games. ProCD v. Zeidenberg ∆ purchased Π’s phone-book CD and sold the information over the Internet. CD contained a contract that when purchased, one could not activate the CD unless one “clicked on” the licenses. The contract stated that one could not sell this information. Π brought this action under state contract claim, arguing that ∆ violated the contract. Appeals court held (reversing the district court) that no preemption because there was a direct contract b/w the parties. (undercutting copyright law in Fiest?) • ...
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This note was uploaded on 11/08/2010 for the course LAW 3452 taught by Professor Jussim during the Spring '10 term at SW Law.
- Spring '10