Really a negation of the ‘actual copying’ element of the plaintiff’s claim License to use Statute of limitations – 3 years damages maxFair Use (17 USC 107) It's an affirmative defense. ‘An equitable rule of reason’ (from Sony, 464 US 417)If reasonably fair, then D not liable Functions as a way to harmonize copyright law with our First Amendment right to freedom of speech Mixed question of law and fact
INTELLETUAL PROPERTY Favored types of uses listed in the statute: ‘criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research’ Further excerpt from section 107 oIn determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes; oHere, courts mainly consider whether the use is commercial(which weighs against fair use) and whether it is transformative (weighs in favor) oA transformative” is essentially one that gives a new meaning to a work or uses it to communicate a new messageoAny use that is commercial andnon-transformative is likely not a fair useThe nature of the copyrighted work; oFictional/highly creative v. factual works The amount and substantiality of the portion usedin relation to the copyrighted work as a whole; and oQuantitative and qualitative analysis (of both works) The effect of the use upon the potential market for or value of the copyrighted work oMarket both for original and existing potentialderivative works (except the market for what type of work?)o“traditional, reasonable, or likely to be developed markets” The first & fourth factors typically weigh most heavily in courts’ analysis Parody v. satire Discussed in Campbell v. Acuff-Rose and often a focus in subsequent cases Satire generally not fair use Parody generally fair use RemediesDamages (actual damages/profits v. statutory damages) Injunctive relief (preliminary and, most importantly, permanent) PatentAmerican Invents Act of 2011 (AIA)What was the biggest change from prior federal patent law?oChanges from a first-to-invent system to a first inventor-to-disclose/file systemSo, for patent applications on or after March 16, 2013, what law applies?
INTELLETUAL PROPERTY oThe first inventor-to-disclose/file systemFor patent applications filed prior to that, what?oSo for a time (approximately 25 years or more) we’ll need to know aspects of the law before and after the AIA Three big RequirementsNovelty (new) oStrict identity rule:A piece of prior art (aka a previously disclosed invention) must be strictly identical as to each element of the subject invention in order to defeat novelty (I.e., make the invention non-novel) If prior art defeats novelty, it’s called ‘anticipatory.’ oGeneral rule for AIA novelty To be novel, an invention cannot have previously been:PatentedPublicly usedDescribed in a printed publication On sale