Copyright General Flashcards

Question

CCC Information Services, Inc. v. Maclean | 2d Cir. 1994

Answer 1

Maclean published a Red Book with predictions on used car valuations. CCC uploaded portions of the Red Book to its database and then averaged the valuations with that of the bluebook. Putting the Red Book into the database was copyright infringement because the ideas expressed in the estimates contained editorial opinion (professional judgment and expertise), not just facts.

Answer 2

• Facts ○ Experian (P) compiles databases and licenses them § Compiled CVD database and has copyright registration for the selection, coordination, arrangement and compilation of the data § Contains consumer information as well as consumer predictions § The name and address data is very valuable and is a big $ maker ○ D acquired NCL database to resell data of ~200 million consumers 94% match rate between P and D databases leading P to believe the NCL database was stolen info _______ Holding: Experian lists entitled to limited protection ○ 3 principles 1) Factual compilations are entitled to some protection as long as there is creativity in the selection, arrangement, or coordination of the facts 2) The creativity that suffices to establish copyright protection in factual compilations is minimal 3) Such compilations of factual information receive only limited protection The process of putting the lists together requires some thought and creativity (also make effort to exclude some data based on elderly status or being incarcerated) Court: this is not the simple replication of data as in Feist. This is not a 1-1 replication and P works to change the dataset to make it more reliable

Answer 3

Creative selection of individually uncopyrightable text/art can be protected as a compilation. Although individual greeting cards were not protectable, selection and combination of the cards in a set and as a whole, total concept and feel of the cards, is original and copyrightable. ○ Copyright protection is not available for ideas, but only for tangible expression of ideas Concludes each of Roth's cards, considered as a whole, represents a tangible expression of an idea and that such expression was, in totality, created by Roth

Answer 4

Glass jellyfish. Both making glass sculptures of what jellyfish actually looks like. While a compilation of unprotectable elements may be copyrightable, they are not de facto copyrightable if it is not something more than a trivial variation. The elements of π’s artistry will be protectable, though thinly. Does not overrule Roth. P has thin copyright on the specific way he depicted the jellyfish but not much more

Answer 5

○ Initial Ownership: Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work Works made for hire: the person whom the work was prepared is considered the author for purposes of the title unless other written agreements were formed

Answer 6

A work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole

Answer 7

The author is the person with whom the original individual conception originated—therefore, Lindsay, the storyboard compiler, is the author of the film despite not going underwater to film it.

Answer 8

Theater members claim joint authorship with the playwright because of their contributions to a play, but their contributions were not independently copyrightable, so no joint authorship. § Goldstein test Requires that each effort can be considered copyrightable on its own

Answer 9

• Facts ○ P was asked to assist in preparation of Washington's star role in Malcom X because P knew a great deal about Malcom X and Islam § Reviewed the shooting script for Pike Lee and suggested extensive script revisions Most revisions were made to ensure the religious and historical accuracy Requirements for joint authorship: (1) A unitary whole/final work is copyrightable—movie and script here (Nimmer) (2) Two or more authors each with an element of control (lacking for π) (3) Intent to merge/create joint authorship—usually evidenced with a contract, absent here (4) Each author’s contribution would be individually copyrightable (Goldstein; Erickson) –

Answer 10

• Facts ○ Appellant (Merkin) hired to direct a film based on the screenplay of a work called Heads Up § Merkin did not enter into a work for hire agreement with Casa Duse § Later entered into a "Media Agreement" under which Merkin would edit the film but not copy or distribute it ○ Krakovski began sending film to festivals and Merkin sent a cease and desist letter to Casa Duse ○ Parties agree Merkin is not a "joint author" or co-author § As such Merkin is contending copyright infringement… if he were a co-author than other co-authors cannot be an ingringer Record establishes that Casa Duse never intended to share authorship of the film with Merkin or anyone else Issue: May a contributor to a creative work whose contributions are inseparable from, and integrated into, the work maintain a copyright interest in his or her contributions alone? NO • Reasoning ○ While issues of "coownership" of a copyright may arise in the motion picture context, the question of separate contributions meriting separate copyrights as "works" ordinarily would not, unless the motion picture incorporates separate freestanding pieces that independently constitute "works of authorship" § In joint work, separate elements merge into a unified whole whereas in a collective work, individuals' contributions remain unintegrated and disparate ○ Court says authors of freestanding works such as dancers in a film may copyright their separate independent work (think of a dancer creating a dance) ○ Court further states that if the case were decided the other way, this would effectively give Merkin greater rights than a co-author as he could sue for infringement ○ Court moves to consider copyright interests in the raw film footage § Relevant authorship inquiry includes: decision-making authority, billing, and written agreements with third parties □ Casa duse exercised far more decision making authority □ Both parties indended to take credit -- billing = neutral consideration here □ Case duse executed all relevant third party agreements Case duse thus owns copyright in the film and its prior versions

Answer 11

The hiring party loses the right to control the product. Bronze nativity scene sculpture not a WMFH (meaning Reid is not an employee, so hiring party does NOT own) because doesn’t fall in enumerated §101(2) list. Creator retains © as author and owner. ○ Parties did not sign an agreement or discuss copyright "the structure of 101 indicates that a work for hire can arise through one of two mutually exclusive means, one for employees and on for independent contractors, and ordinary canons of statutory interpretation indicate that the classification of a particular hired party should be made with reference to agency law"

Answer 12

(1) A work prepared by an employee within the scope of his or her employment; OR (2) A work specially ordered or (9 enumerated types) …if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. EXCLUSIVE LIST 1. Contribution to collective work 2. Part of motion picture/other audiovisual work 3. Translation 4. Supplementary work 5. Compilation 6. Instructional text 7. Test 8. Answer material for test 9. Atlas

Answer 13

Bryce working on code for software for JustMed. No contract, but software is different, not enumerated because statute predates software. Convention is that the creator is the author for software. But still found Bryce to be an employee. Court says ? ○ -Authorship vests in the party bearing economic risk (≈patent law) § -Otherwise, would have a million assignments a day which is not the case in patent ○ -Government works are never WMFH—no copyrightability, belongs to gov. ○ My notes § Court makes the key determination that Bryce was an employee of the company ○ Class § Put a lot of emphasis on being a startup and taking a practical approach to the fact that employees look different for a remote startup □ This case is taking a different read § The employment factors looked at in this case: □ contemplated duration of relationship □ Range of tasks Method of payment (salary)

Answer 14

1. Hiring party’s right to control manner/means of creation** 2. Skill required** 3. Source of the tools 4. Location of the work 5. Duration of the parties’ relationship 6. Whether hiring party has right to assign additional work** 7. Method of payment 8. Hired party’s discretion over when and how long to work 9. Hired party’s role in hiring and paying assistants 10. Whether work is part of hiring party’s regular business 11. Whether hiring party is in business 12. Provision of employee benefits** 13. Tax treatment of hired party**

Answer 15

Court wants to admit into scope of employment, anything to make job go faster- fruits of coding skill to employer. Every big 10 school has written a policy similar to this one. Faculty usually retains copyright in books and articles so had to draft a policy to accommodate policy to be able to license and make a profit of software type disclaiming professors right. ○ In evaluating work made for hire the court looks to restatement 228 for 3 factors 1) is it the kind he is employed to perform 2) It occurs substantially within the authorized time and space limits 3) It is actuated at least in part by a purpose to serve the master

Answer 16

Owners of copyright have the exclusive right to do or authorize any of the following: • Reproduce the work in copies/phonorecords • Prepare derivative works • Distribute copies/phonorecords to the public • Perform the work publicly (certain works) • Display the work publicly (certain works) • Perform sound recordings publicly by digital audio transmission

Answer 17

Backup copies of computer programs. It is not an infringement for owner of copy of a computer program to authorize making another copy. If the copy is made by virtue of machine activation for the purposes of maintenance or repair, not infringement as long as: (1) Such new copy is created as an essential step in utilization of computer program and used in no other manner; OR (2) That such new copy is for archival purposes only and is immediately destroyed - MAI - Ex: When loading up a computer, you load up a licensed copy, not infringement

Answer 18

Prima Facie Case (1) Ownership of a valid copyright (not author but the owner; usually not at issue) -Was the copyright valid given fixation and originality requirements? -Just because © issued, doesn’t mean it is valid—valid until challenged otherwise (2) Copying in fact (was there or was there not independent creation; copying v. access) -Direct copying -Or -Circumstantial evidence =access to the copyrighted work + similarity between the two (3) Improper appropriation of protected expression (that which is covered by the valid copyright) (a) Exact copying OR (b) Substantial similarity- if similarities of facts, then not improper appropriation. Don’t focus on what’s been added, focus on what’s been taken.

Answer 19

Cablevision was live streaming shows in a buffer—one stream for audiences, and another for remote recording. But because the content didn’t stay in the buffer stream for more than 1.2 seconds, it was too transitory, and not enough to be fixed. Since it was not fixed, no copyrightable material was made and Cablevision can’t be liable for infringement.

Answer 20

Silver slugger pinball machine in movie (background). Has to be more than a de minimis copying to infringe. Merely using the work if the average observer can’t discern the protected elements of the work won’t be infringement. Not infringement. Recognizability is ultra-low. -compared to Ringgold(2nd Cir. 1997): Picture on the wall of the picnic scene quilt was more than de minimis = infringement on reproduction right because there was “a qualitative connection between the poster and the show.” Use of Silver Slugger was de minimis as a matter of law. No reasonable juror could find substantial similarity in the legal sense, and thus copying is not actionable

Answer 21

Isley Brothers/Love is a Wonderful Thing. Jury decides this was infringement. On appeal, not enough evidence that the decision was clearly erroneous because not as if a reasonable jury couldn’t find infringement based on the evidence. Circumstantial proof of access. Absent direct evidence, need access + substantial similarity for copying in fact. Proof of access = opportunity to view, opportunity to copy, and there must be a reasonable possibility, more than bare possibility.

Answer 22

Beanie babies case. 7th Cir. is basically contradicting itself. Bad law—didn’t read Selle properly, judge didn’t believe in idea of independent creation, so took proof of substantial similarity to be proof of access. Both are copies from the public domain, a pig. -MUST prove access before proving SUBSTANTIAL SIMILARITY

Answer 23

• Prof says this is a case where you have a work sent to an organization ○ Practical problem where its hard to determine if this was a copy ○ Large organizations get unsolicited submissions a lot (think record companies) • If you are a corporate entity who receives these submissions you need to ensure that you have a system and process for handling these things and keeping track ○ Also want to wall the receiving group off from the rest of the creative group to ensure there is not a problem that is created

Answer 24

Copying In Fact - Resonable possibility of access - Similarity (dissection okay, experts okay) Unlawful appropriation -Nichols: "series of abstrations" heuristic -Armstein: "ordinary lay hearer" standard (no dissection, no experts)

Answer 25

Copying In Fact - Resonable possibility of access - Similarity (dissection okay, experts okay) Unlawful appropriation (Cavalier) - "Extrinsic" analysis (dissection okay, experts okay) - "Intrinsic" analysis (ordinary observer)

Answer 26

○ Facts § P brought case for photo he took of Michael Jordan while at UNC before 1984 □ Depicts Jordan's iconic Jumpman pose □ P orchestrated the photo, pose, setting etc. Pose considered unusual for basketball player § 2 part test (need both): □ Extrinsic test ® Objective similarities of the two works ® Need to filter out the unprotectable elements of the work before analyzing (ideas, concepts, public domain, scene a faire) □ Intrinsic test Wholistic, subjective comparison of the works to determine if they are substantially similar in "total concept and feel" § P can only get protection on the way the pose was protected and expressed in the photograph In this case, Rentmeester’s photo is undoubtedly entitled to broad rather than thin protection. The range of creative choices open to Rentmeester in producing his photo was exceptionally broad; very few of those choices were dictated by convention or subject matter.

Answer 27

For injunctive relief need to show: Plaintiff has to show: 1. Irreparable injury 2. Monetary remedies inadequate to compensate 3. Balance of equities—considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and 4. No harm to public interest by enjoining the production of the infringing work

Answer 28

Harry Potter Lexicon case. Warner Bros. is bringing this suit on Rowling’s behalf—she had intended to publish an HP encyclopedia. Fine when Lexicon (essentially encyclopedia of all HP) was online, but then author published it in print. Infringement? YES Have to do a qualitative and quantitative analysis for infringement. Lexicon had a different purpose than film, despite similarity. Comprehensive non-literal similarity: no direct lifting of expression. -Representing the original work vs. “giv[ing] the copyrighted material another purpose” • Class ○ Court finds the defendant copied too much § opts for qualitative and quantitative analysis instead of 'similar aesthetic' test ○ Test for DW § Does it still "represent the original work" OR does it "give the copyrighted material another purpose" [SEE 2X2 CHART FOR THESE ISSUES] -really turns on if it substitutes the original work in an economic sense (steals sales)

Answer 29

Duke Nukem additional game levels has to access art library to function, but = derivative work under Samuelson rationale. What infringed was the story itself. • "A book about Duke Nukem would infringe for the same reason, even if it contained no pictures…" • Holding in Micro Star is that the MAP file is enough of a sufficient form for it to be fixed and count for DW Samuleson rationale: Whether or not it is a derivative work depends on the extent to which it infringed on reasonably foreseeable markets for the original work.

Answer 30

• Facts ○ Dealing with Batmobile § Batmobile was depicted in Batman ○ D (Towle) produces replicas of Batmobile as it appeared in the show and motion picture § Runs 'Gotham Garage' where he makes replicas of automobiles § Sells the cars to collectors Also sells kits to let people modify their car to look like the batmobile • Decision Batmobile has copyright protection ○ Court lays out a 3 part test 1) Character must generally have physical as well as conceptual qualities 2) Character must be sufficiently delineated to be recognized as the same character whenever it appears 3) Must be especially distinctive and contain some unique elements of expression

Answer 31

- Actual damages suffered as a result of the infringement; and - Usually proved through evidence of going rates in licensing markets - If there isn’t  statutory if registered - Profits attributable to the infringement and not already taken into account - Proof: Apportionment of profits: - © owner proves infringer’s gross revenue - Infringer proves deductible expenses and profits attributable to other factors

Answer 32

Not talking about statutory damages here because not registered! Plaintiff cannot claim lost profit because not an artist, he’s a security guard. Plaintiff didn’t get the letter and signed helmet he wanted; asks for a huge award based on profits of merchandise using the logo. -Take out merchandise sales unrelated to use of the logo -Take out non-merchandise revenues because no connection to logo -Remaining revenues  go to jury and jury said you don’t get any of those revenues -Then Bouchat says it was error not to submit the non-merchandise revenues to jury and to not instruct jury (Walker instruction) -Ticket sales, broadcast licenses—what about Frank where revenues are tied to increased awareness of the brand (attribution was assumed in Frank) • Court says that a jury is not needed to decide which revenues are attributable to some source other than infringement • Class ○ Copyright owner needs to present a plausible case in which the profits are attributable to infringement before we can begin the burden shifting ○ Removed excluded merch and video games and stuff because that would have happened regardless of the variance in the logo P only speculated in ticket sales, broadcast license, etc. so not enough

Answer 33

At plaintiff’s request, court could be requested to award statutory damages (§504) as an alternative to monetary damages IF registered • In previous case, upheld district court conclusion that P failed to prove actual damages arising form the infringement but vacated award of $22,000 in apportioned profits as "grossly inadequate" ○ Note the calculated net profit for Hallelujah Hollywood was $6,131,606 • Court finds support in the lower courts reasoning that all acts were of substantially similar value ○ Therefore calculating apportionment of profits as portion of runtime or portion of total acts was appropriate (quantitative approach) ○ Court erred in failing to recognize how much of P's music, lyrics, characters, setting were used in the licensed movie version of Kismet • Not inappropriate to consider the creativity of producers in producing the show for apportionment but lower court weighed these things too heavily • Prejudgment interest should be awarded (damages for not being able to use and profit off IP while tied up in the courts) ○ CONTRAST ravens case § Court was willing to take into account other revenues because it considered the act to be a 'draw' for the hotels and casinos and so that was relevant to the apportionment of profits

Answer 34

Printing artwork from a magazine in a commemorative book, then printed on tiles. Court found it was a DW. Also found infringement in this derivative work. First sale doctrine does not apply—one who buys a work can resell it without fear of infringement, but he changed it then sold. Didn’t sell book as he bought it. Court found tiles to be a derivative work and exclusive right to prepare derivative works belongs to CR holder so first sale does not bar infringement claim. ○ D could have purchases a copy of the book and then 'own' that book. However the rights only apply to that particular copy of the book This did not result in the copyright holder transferring the rights to a derivative work

Answer 35

Different than Mirage—sale of tiles was infringement, because artist already had her bite at the apple with first sale. But first sale (§109(a)) is a defense to §106(3) violations, but not §106(2). • Asking if a card on a tile is a derivative work ○ Lower court said this was not an original work of authorship. This is like changing the frame on a painting • This is not an art reproduction because it was the original work just mounted ○ This is not "recast" or "adapted" ○ Depicts exactly what it depicted when it left the Artist's studio

Answer 36

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Answer 37

Monty Python different in UK v. U.S. -Derivative work right under 101— Under an agreement with Monty Python, BBC was only allowed to make minor changes to episode scripts and was not authorized to make any alterations to a program once the program had been recorded. Absence of anything about post-recording alterations in K means ? If K was silent as to any edits (deriv. works), can still argue for moral right protection I think but would be very hard. lexis: Facts -- Appellant creators developed a television series, "Monty Python." Under a contract with a British broadcasting association, the creators retained strict creative control over the finished programs. The British broadcasting association licensed the programs to appellee American Broadcasting Company (ABC) for rebroadcast in America. When the creators learned that ABC had drastically shortened the programs and edited them for profanity, they sued for copyright infringement and violation of § 43(a) of the Lanham Act, 15 U.S.C.S. § 1125(a). The United States district court denied them injunctive relief, refusing to enjoin ABC's broadcast, and the creators appealed. -- issue: Were the television program creators entitled to the issuance of a preliminary injunction enjoining the American re-broadcast of their program? The court held that the programs were derivative works under § 7 of the Copyright Act, 17 U.S.C.S. § 101 et seq., and therefore, did not subsume appellants' underlying copyright in the scripts. Although American copyright law did not recognize a cause of action for violation of artists' moral rights, the Lanham Act protected against mutilation of artistic works as a false designation of origin of goods. The court enjoined ABC from further infringement.

Answer 38

• Fact ○ Author publishes book about WWII ○ Fox produced show and was assigned copyright for it § Author renewed the copyright but Fox did not renew the copyright on the show which put it in the public domain Dastar copied them and released them as its own product • Court For saying it was the producer of the videos does not create Lanham Act liability

Answer 39

(a) Civil action (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which— (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. (2) As used in this subsection, the term “any person” includes any State, instrumentality of a State or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this chapter in the same manner and to the same extent as any nongovernmental entity. (3) In a civil action for trade dress infringement under this chapter for trade dress not registered on the principal register, the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional.

Answer 40

• Facts ○ 5 Pointz litigation ○ Seeking preliminary injunction under Visual Rights Act of 1990 (VARA) § D planning demolition of warehouse buildings and consequent destruction of P paintings on the wall of those buildings ○ VARA amended existing copyright law to add protections for two 'moral rights' of artists: the rights of attribution and integrity § Under 113(d)(1) if a work is not removable then artist may sue under 106(A)(3) to prevent destruction of the work § If it is removable under 113(d)(2) then the artist has the opportunity to salvage the work in 90 days • Court ○ D willfully violated P's VARA rights ○ No distinction of 'temporary' works so VARA still applies all the same to the art ○ Recognized stature language in VARA § Needs 1) the visual art in question has 'stature' or viewed as meritorious and 2) that this stature is 'recognized' by art experts, other members of the artistic community, or by some cross section of society § Court thinks this is met for a number of the works at issue (45 of 49 works)

Answer 41

(1)… the right – (A) to claim authorship of th[e] work, and (B) to prevent the use or his or her name as the author of any work of visual art which he or she did not create; (2) … the right to prevent [attribution] in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to her or her honor or reputation (3) subject to the limitations set forth in section 113(d), … the right – (A) to prevent any intentional distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation …, and (B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

Answer 42

Statutory Damages IF registered - At plaintiff’s election any time during suit - $750 - $30,000 “as the court considers just” - Up to $150,000 if willful infringement

Answer 43

Interpreted statutory language as driving award above $30k, wasn’t required to do that, and could have given up to $150k - As long as you’re in that range, and the standard of review is abuse of discretion, hard to argue there was abuse in deciding award - Disparity between statutory and monetary damages—monetary here would have been lower than stat (licensing fees) - 26 infringements. 74,734 copies à ~$18,458 lost royalties/fees. Statutory damages of $31,000 per infringement, totaling $806,000. **For something to be willful must be done with knowledge that ones conduct constitutes copyright infringement

Answer 44

1. Degree of reprehensibility 2. Disparity between harm and award 3. Difference between award and civil penalties authorized in comparable cases

Answer 45

1. Public interest 2. Opportunities for committing the offense 3. Need for securing uniform adherence

Answer 46

one award for “all infringements… with respect to any one work”

Answer 47

Continued broadcasting of multiple episodes of TV series after termination of license. Court held each episode is separate “work”

Answer 48

(a) Exhaustion. First sale doctrine, ability to sell or otherwise dispose of the possession of a lawful copy or phonorecord. Restored copyright differences under §104(A). - Defense to §106(3) infringement (b) (2): First sale doctrine does not apply to computer software or sound recording. Certain software exceptions and for nonprofits. Privileges in (a)—(c) do not, unless authorized by the copyright owner, extend to any person who has acquired possession of the copy or phonorecords from the copyright owner by rental, lease, loan or otherwise without acquiring ownership of it.

Answer 49

Reproduction by libraries and archives. Additional exceptions to reproduction/distribution rights for nonprofit libraries open to public or to research community - Private study - Preservation, security, research use - Replacement - Interlibrary loan

Answer 50

Anyone who violates exclusive rights of 106 through 122… OR imports copies or phonorecords into the US in violation of §602, is an infringer

Answer 51

(a) Infringing Importation or Exportation Importation.– Importation into the United States, without the authority of the owner of copyright under this title, of copies . . . that have been acquired outside the Unites States is an infringement of the exclusive right to distribute copies . . . under section 106, actionable under section 501 Importation or exportation of infringing items – [defines as infringement for “copies . . . the making of which would have constituted an infringement if this title had been applicable”]

Answer 52

Reference to “lawfully made” in 109(a) is non-geographic—does not have to be lawfully made in the country you are importing to (textbooks bought in Thailand and sold in U.S.) As long as it was lawfully made abroad.

Answer 53

Distribution on a peer-to-peer network of a sound recording. Held that merely making the files available on the site constituted is not an infringement of the distribution right. However, downloading is direct infringement and P used agent to download and demonstrate distribution. Court discusses WIPO : -WIPO Copyright Treaty § Art. 6: “Authors of literary and artistic works shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfer of ownership.” § Agreed Statement: “‘copies’ and ‘original and copies’ . . . refer exclusively to fixed copies that can be put into circulation as tangible objects” § Art. 8: “[A]uthors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works . . . including the making available to the public of their works in such a way that members of the public may access those works from a place and at a time individually chosen by them.” § Agreed Statement: “[T]he mere provision of physical facilities for enabling or making a communication does not in itself amount to a communication” • Class § This turned on what "distribution" means § Court interpreted 106(3) § Charming Betsy doctrine comes in here to try to construe domestic and international law to be congruent but this court says it will not follow that cannon § Are we not violating a treaty here? § Used special investigator to go out and download the works so that it was 'distribution'

Answer 54

P2P site for sale of legally bought copies (for less than iTunes price). Question of whether a digital music file lawfully made and purchased may be resold by its owner under first sale doctrine. This IS infringement because only have right to distribute your copy—in order to bring the copy into the digital realm, necessary to make many copies for it to exist on the computer and site. Also infringement of reproduction right. § Copyright act specifies a reproduction occurs when a copyrighted work is fixed in a new material object "simply impossible that the same "material object" be transferred over the internet" First sale defense only available to the distribution infringement o Statute protects only distribution by the "owner of a particular copy or phonorecord § First sale defense is limited to material items, like records, that the copyright owner put into the stream of commerce (because this court is hung up on the technical aspects of a copy existing for milliseconds)

Answer 55

First sale doctrine has exhausted the copyright owner’s distribution right in that copy only. Reference to “lawfully made” in 109(a) is non-geographic—does not have to be lawfully made in the country you are importing to (textbooks bought in Thailand and sold in U.S.), as long as it was lawfully made somewhere or even abroad before being imported. Justice Kagen in her concurring opinion wanted to overrule Quality King but Justices do not like to overrule themselves, but re-sellers would still be fine. Quality King: Under 106, directs you back to 106 itself. 106 itself tells you that the exclusive rights are subject to 107-122, which brings you to 109(a). “Under 106” imports all of the limitations on the exclusive rights, including first sale, and thus it isn’t an infringement of the importation right to import if first sale applies” o Pretty practical decision: otherwise would be punishing someone for buying something in 1 location legally and reselling their copy in the United States

Answer 56

-“To the public” language implies there can be a private, protected performance that does not infringe on the public display or performance right. So, this did not infringe distribution right. Each person who wanted a copy made their own. P loses. -Distribution is a one-to-one exchange (e.g. rental copies, DVRs get a little closer to “public”) -Public performances are a concern because they imply a one-to-many model • The remote/cloud storage was the technical issue here the P pushed on ○ Can do a "playback" version of the show but only if the user had requested that show be recorded • Court says there is a difference between the words "transmission" and "performance" ○ Obviously Congress has contemplated a non-public transmission because if it had not it would have stopped with the word "performance" in the statute ○ "We believe that when Congress speaks of transmitting a performance to the pubic, it refers to the performance created by the act of transmission, Thus, HBO transmits its own performance of a work when it transmits to Cablevision, and Cablevision transmits its own performance of the same work when it retransmits the feed from HBO" • A transmission that is digital necessitates that a copy is made Therefore, we must treat a transmission using Copy A as distinct from one made using Copy B

Answer 57

§106(4): Right to in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly §106(5): The right in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly §101 Display: To show a copy of a work, either directly or by means of a film, slide, television image, or any other device or process, or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially. (hosting a movie night) §101 Perform: To recite, render, play, dance, or act it, either directly or by means of any device or process, or in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible. (turning off radio) §101 Perform Publically: (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered OR (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. §101 Publicly transmit: a performance or display is to communicate it by any device or process whereby the images or sounds are received beyond the place from which they are sent [not actual def; from Aereo case] ``` Distribution One-to-one • Sale of copies • Rental of copies • In-home DVR (fair use) • Remote Storage DVR?- Cartoon ``` ``` Public Performance One-to-many • Concert hall/theater • Broadcast • Video on demand ```

Answer 58

WAS infringement. Made one copy and then made it available when consumer asked for it. Aero inserts into streaming buffer and offers content to paying subscribers. - This is a performance, same as cable companies perform, and it’s public. - “An entity that transmits a performance to individuals in their capacities as owners or possessors [Cartoon Network] does not perform to ‘the public’ whereas an entity like Aero that transmits to large numbers of paying subscribers who lack any prior relationship to the works does so perform” - It’s ok to perform, but not public under §106 • Class ○ Prof asking if Cartoon Network is overruled § No. because in that case they had a right to the show in the beginning (this is the car valet example) Real difference is that Cablevision had a license to show the show and Aereo does not have a license to show

Answer 59

Server test: content provider infringes on the copyright only if they host the copyrighted material on their servers. Google is using HTML linking to instruct users’ computers to retrieve the full-size images by showing thumbnail images, but Google itself is not displaying the full-size images (argument that Google is abetting infringement here). • "Google does not display a copy of full-size infringing photographic images for purposes of the Copyright Act when Google frames in line linked images that appear on a user's screen. Because Google's computers do not store the photographic images, Google does not have a copy of the image for purposes of the Copyright Act, In other words, Google does not have any 'material objects… in which a work is fixed… and from which the work can be perceived, reproduced, or otherwise communicated' and thus cannot communicate a copy"

Answer 60

Madonna love break in Vogue. Sampling is a practice that is a higher use than de minimis. 114(b)- court got in right in holding Congress intended for the “de minimis” exception to apply to sound recordings. This is a limitation and not an expansion of rights. 6th Cir in Bridgeport got in wrong prior and this led to a circuit split. • A use is de minimis only if the average audience would not recognize the appropriation ○ Court decides a reasonable jury could not conclude that an average audience could recognize the appropriation

Answer 61

• This was in the copyright and race packet that I did not read • Supremes lawyer tell them they cant bring it as a copyright lawsuit ○ Due to a combination of what's in the statute § In □ Compulsory license to record covers § Out □ Copyright protection for sound recordings ® Not until 1972 □ Recording itself would not be eligible for copyright ○ Could have gotten a DW copyright but did not know/pursue it § Today it can be fixed in any tangible medium but was not enough back then § Would have had to publish the arrangement in a way that satisfies the formalities including notice of copyright

Answer 62

• OSCAR makes interoperability possible by writing code for scheduler and adapter to work with any computer operating system. Question of whether and to what extent the non-literal aspects of a computer program, that is, those aspects that are not reduced to written code, are protected by copyright. Uses a clean room, now industry practice, where engineers are sent in with only the tech specs and independently created program needs to meet. Then second team with code writes steps. Will come out of clean room with noninfringing code. Doesn’t use any of the competitor’s code, so any similarities in the code are the result of independent creation, therefore no infringement. • Computer Associates made the CA-SCHEDULER with ADAPTER which was the original program that OSCAR mimicked ○ Altai sought to modify its own program ZEKE to run on operating systems other than the one for which it was designed ○ Hired a CA engineer not knowing they had worked on ADAPTER § 30% of ADAPTER source code copied by this employee into OSCAR § Lower court found for infringment □ As a response, Altai gave 8 new programmers who had not worked on OSCAR a description of what functionality was required and wrote new code ® Lower court determined this did not infringe • 3 STEP TEST USED FOR IDENTIFYING AND SEPARATING OUT 102(B) MATERIAL -- expert witness required 1) Abstraction: Once you generalize the idea out far enough, it no longer is protectable. Recognizes that any given work may consist of a mixture of numerous ideas and expressions. Some are protectable and others are not. a. Start with code, end with program’s function (go through above process) 2) Filtration: Examine structural elements at each level of abstraction a. Merger. Elements dictated by efficiency: Keys off the merger doctrine. Merger doctrine (necessary elements…) where idea and expression are inseparable. Whether the merger doctrine precludes copyright protection to an aspect of a program’s structure depends on whether the use of this particular set of modules is necessary efficiently to implement that part of the program’s process b. Public domain analysis. c. Elements dictated by external factors: Hoehling; Scene a faire, factors to consider -Programmer is constrained by: (1) the mechanical specs of the computer on which the program is intended to run; (2) compatibility requirements of other programs with which the program in question is designed to cooperate; (3) computer manufacturers’ design standards; (4) demands of the industry; (5) widely accepted programming practices. From Nimmer. Better for D if evaluating infringement at T2. Reminder of Scene a faire: Elements of a subject that must be used in order to recognizably talk about that subject Reminder of merger doctrine: Where only one or a limited number of ways exist to express an idea, the idea and expression merge, and copyright cannot be used to prevent another from using the same or similar expression 3) Comparison: Once ideas have been filtered out (merger doctrine [incl. external factors], public domain) compare the two works to see if copyrightable material remains. Substantial similarity, how much is similar? Compilation, derivative work, how element have been selected, coordinated and arranged. Doesn’t really make sense to talk about total concept and feel here. 2nd Circuit usually disallows experts, yet say software is different and exception to the rule.

Answer 63

Question of whether a computer menu command hierarchy is copyrightable subject matter. Was Lotus’s spreadsheet software infringed by Borland’s Quattro program? Yes, affirmed infringement, but sets no standard though b/c 8 member bench. Userface is not copyrightable (here, a lot of menu trees and ordinary computer functions that have become standard at this point). • Court ○ Holds Lotus menu command hierarchy is an uncopyrightable "method of operation" under 102(b) § However the code that makes the command hierarchy is copyrightable. That is not at issue here because the code was not copied Methods of operation were not entitled to copyright protection. Therefore, Lotus' menu command hierarchy was foreclosed from copyright protection.

Answer 64

-Oracle: resembles a taxonomy • Facts ○ Court goes over basics of API and how each function helps programs communicate ○ Google and Java negotiated to put the entire JAVA system into Android but no license agreement came out of negotiations ○ Google made its own API § Google used the same functions as 37 Java functions □ Copied the declaring source code from 37 Java API packages Java is normally open source but for few exceptions (such as what Google did) ○ Succinct explanation of the "abstraction-filtration-comparison" test 1) Abstraction: court breaks down the allegedly infringed program into its constituent structural parts 2) Filtration: sifts out all non-protectable material including ideas and expressions that is necessarily incidental to those ideas 3) Comparison: court compares the remaining creative expression with the allegedly infringing program § This court says the lower court did not apply the relevant 3 part test and agrees with Oracle's contention on that matter □ Merger: there are other names that could have been used when making the API. Math.maximimum and Arith.larger are not so unique □ Short phrases: lower court was wrong to say all short phrases are not copyrightable. Instead need to ask if those short phrases were creative. Also, a collection of short phrases can be copyrightable as a collection ----Scene a faire: Google argues that the phrases are so connected to what developers have expected that the phrases cannot be copyrightable. Court says this is not relevant to copyrightability b/c it’s a defense. Google also misunderstands the doctrine and not bring supporting facts to have it granted: "The courts analytical focus must be upon the external factors that dictated Sun's selection of classes, methods, and code -- not upon what Google encountered at the time it chose to copy those groupings and that code" ○ Court rejects that there is an industry standard element that allows Google to copy Java Says popularity is not a defense to copying

Answer 65

Fair use…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is not infringement. Factors to consider (non-exclusive list): (1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes - Commerciality weighs against a finding of fair use (cycle to 4) - Depends on transformative nature of the work (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; and (4) The effect of the use upon the potential market for or value of the copyrighted work. - Finding a market effect after finding commerciality, it will be hard to argue fair use - Unless it’s unremedial disparagement (then cycle back to (1)) (Campbell) - WEIGHING TEST: Weigh the quantitative and qualitative takings: first and fourth factors driving the analysis. Not comprehensive list of factors, but have to evaluate at least those four (intent may be relevant) - Fair use pattern of analysis. The first and fourth factors are really important, and the second and third factors don’t matter as much 1. Does not translate internationally 2. This is an affirmative privilege and a defense

Answer 66

(result probably should have been that this was fair use): Ford to publish his memoir with π and gave serial rights to Time magazine to publish an excerpt a week before release. The excerpt was prematurely published by another publication; Time cancelled the serial rights resulting in monetary losses for π. Was this illicit publishing fair use? Only 300 words copied…and yet was not fair use. Too much emphasis on first factor. Decided on a moral rights theory more than on a factor analysis. But it was qualitatively the heart of the book and the Time expert (the whole reason people were buying the book). Fact that unpublished most important! -*The fact that a work is unpublished shall not itself bar a finding of fair use if such a finding is made upon consideration of all the above factors. Perhaps a better argument could be that the 300 words used were really important and were the heart of the book

Answer 67

“Pretty Woman” Roy Orbison. Satire of song, denied license and recorded anyway. Question to ask when assessing first factor: was the use transformative?—greater evidence of transformation on one factor can make up for a lack of transformative use on another. - Parody: Is a literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule. Protected by fair use defense—has to be a commentary on the work, can’t merely capitalize on original work’s popularity - Parody needs to mimic an original to make its point…whereas satire can stand on its own two feet and so requires justification for the very act of borrowing - Judges won’t evaluate quality just whether or not there is sufficient evidence for a jury to reasonable conclude there is parody or satire (Bleistein) - WAS FAIR USE HERE because was parody - ***There’s a difference between potentially remediable displacement (the displacing of the rightholder from some market it’s entitled to have) and irremediable disparagement (criticism, if it reduces demand for original, which is covered by fair use; not relevant for effect on market anlaysis) - Since this IS disparagement, we’re not going to think about the market harm the same way - But not dispositive for the 4th factor - The fact that it’s a parody means it is not entitled to an absolute decision on market harm, had no effect on market for rap derivatives • Prof: There is no clear presumption that you cant get satire to work just need to do more work for it to work.

Answer 68

Seinfeld Aptitude Test. Found infringement on the reproduction right and NO FAIR USE. Critical inquiry is whether the infringing work merely supersedes the original work or instead adds something new, with a further purpose or different character, altering the first with the new meaning or message. Not a transformative purpose, not to educate, but to entertain Seinfeld viewers. Consider whether the secondary use usurps or substitutes for the market of the original work. This was a repackaging of Seinfeld that was not protected by fair use defense

Answer 69

Grateful Dead posters in a coffee table book. Transformative because for a historical/education purpose; also reduced size and not a substantial part of whole book. No market effect. = FAIR USE. All about factor one here. • P claims to own copyright to seven images used in the 480pg book • Author of book used these images as historical artifacts for the book • Court is impliedly recognizing the value of a biography of a famous icon in its decision and giving it weight • Arranged in a way that does not exploit the copyrighted work -- mostly arranged as a collage • Images used are also very small Remember derivative works are a right the copyright owner has. Transformative works are not a right afforded to copyright holder • There is some muddied water between trying to determine if there is a DW issue or a fair use issue and what scope ○ But think about an explicit copy of only a small portion of a work ○ It depends… Fair use can essentially allow for reproduction as long as its "fair"

Answer 70

Jamaican photos with guitar. All but 5 of the works are transformative because of composition, presentation, scale, color palette, and media are all different. No market effect because original author more famous/ appeals to a much different customer, so more transformative and yes fair use. • Class • No requirement that the work comment on the original for it to be fair use ○ "the law imposes no requirement that a work comment on the original or its author to be considered transformative… To qualify as a fair use, a new work generally must alter the original with 'new expression, meaning, or message'"

Answer 71

Computer software. Sega makes consoles and licenses its software to developers—Accolade is not a licensee but makes software compatible with a Sega console. Factors: (1) Purpose was commercial/competitive-compatibility with other console; (2) Programs were copied wholesale = creative expression; (3) Entirety of programs used; (4) Purpose was to enable this market competition which displaces Sega’s reasonable expected licensing revenue. Sega’s work had low copyrightability because contained elements that could not be examined without copying them, commercial purpose weighs against FU but functionality at its heart so not copyrightable to begin with. -Found fair use. “Where disassembly is the only way to gain access to the ideas and functional elements embodied in a copyrighted computer program and where there is a legitimate reason for seeking such access, disassembly is a fair use of the copyrighted work as a matter of law.” §102(b) trumps market effect! notes: • Class • This is the rare case where the middle factors are being heavily considered -- especially factor 2 Idea that copyright is being used to protect unprotectable subject matter is really the high level idea here -Pre Cambell case so no transformative use analysis -court seems to be focusing on a public benefit element

Answer 72

Thumbnails included in Google search of Amazon products = fair use. Another focus on public benefit. Transformative use—function is to improve access to info instead of artistic expression. “Google uses Perfect 10’s images in a new context to serve a different purpose.” Google didn’t infringe because Google never had a copy, but only helping users à locate copy on another site. No way to license image, non-starter. Broad take on transformative. • Using the images in a new context to serve a different purpose • Purpose and character • This is highly transformative. This is for a different function altogether • Amount and substantiality of portion • Court says this element does not go in favor of either party because this is an image and you cannot copy part of an image and have it still be the image • Nature of copyrighted work • These images are artistic b/c photograph • However they were previously published. Perfect 10 already commercialized the images and published them. Therefore this factor only weighs slightly in favor of Perfect 10 • Effect on market • The thumbnail images are not a substitute and therefore there is minimal harm on the market

Answer 73

Access to knowledge in a digital library. Also a public benefit. Fair use because of productive consumption through time and space shifting, educational purposes. Full text searching is a transformative use that does require full copying, but it is necessary (≈Sega) in order to use for other legitimate (education; access for the print-disabled) purposes. No market effect because not a substitute for original works, need both. Full text search v. full text access. Broad transformativness reasoning here. "in sum, we conclude that the doctrine of fair use allows the Libraries to digitize copyrighted works for the purpose of permitting full-text searches" Remember: • The fourth factor of fair use IS ONLY CONCERNED WITH ONE TYPE OF ECONOMIC INJURY: The harm that results because the secondary use serves as a substitute for the original work

Answer 74

Sale of video tape equipment that may enable infringement = infringement or fair use? FAIR USE. Time shifting is a fair use, particularly when it serves the public benefit of expanding access to the arts in line with I.8.8. If you sell an article in commerce for substantial non-infringing use, not going to be liable for selling that item—no contributory infringement liability. Even if there are infringing uses of the technology, are the primary uses substantially non-infringing? Yes here, because of time shifting—people have already been invited to view, they are just viewing a legitimate copy at another time. This is pre-Cambell so some good and some bad law. -Potential issue with decreased ad revenue due to decreased original audience. • Not a strong argument that financial harm will result ○ Doesn’t effect numbers and ratings because still counts as a viewer ○ "what is necessary is showing by a preponderance of the evidence that some meaningful likelihood of future harm exists" § If the intended use is for commercial gain then that likelihood is presumed -- but if its for noncommercial purposes that likelihood must be demonstrated. [NOTE AFTER CAMPBELL, EVERY COMMERCIAL USE IS NOT PRESUMED]

Answer 75

Ongoing, but should copy shops at universities for course packs get first use protection? This is exactly in contravention of Seinfeld aptitude test maybe because public benefit of students getting educational materials v. entertainment. Issue: "when the GSU bookstore assembles and sells a paper course pack containing excerpts from copyrighted works, GSU pays permissions fees for use of the excerpts. The central issue in this case is under what circumstances GSU must pay permissions fees to post a digital copy of an excerpt of Plaintiffs' works to Eres or uLearn" -Fair use must be calculated on a case by case basis HOWEVER, lower court erred in taking a mechanical "add up the factors" approach to their analysis of each work • First factor: ○ Work was not transformative ○ [court did not really reason if it was for a commercial on non commercial use. Says its not a foregone conclusion that a nonprofit is always for non commercial purpose] § Ultimately says that its for educational purposes so that cuts in favor of fair use • Second factor: ○ Copied the work wholesale ○ Cuts against fair use ○ But… court says this is insignificant in this case • Third factor ○ Says court needs to do in depth analysis of each work to decide the amount and portion • Fourth factor ○ Relevant here: not if some revenue is lost but if a substantial amount of revenue is lost if everybody did it ○ The small excerpts used do not substitute for the full book § But there was a market for licensing just excerpts of the books □ This weighs against fair use ○ However, it seems there was not a substantial market for these excerpts licenses and they did not offer evidence to rebut this This goes in favor of fair use because less economic harm if there was no market to begin with class: • Odd that court is saying things need to be done on a case by case basis (for every instance of copying) Concurrence says we need to look at aggregate effect of all the copying across the university not necessarily a work by work analysis

Answer 76

Operator of online bulletin board and ISP liable for infringement as well as posters? Erlich posted portions of work on Scientology, © owned by π, and Klemesrud’s owns the BBS that gains internet access via ∆. Paid for service. ISP not liable because doesn’t control the content, merely provides the service. Didn’t sue Ehrlich, but might have a VL or CL claim. • Netcom is not creating or managing the posts on its board • "No need to construe the Act to make all of these parties infringers." • There should be some element of volition or causation which is lacking where a defendants system is merely used to create a copy by a third party Storage on a defendant's system of infringing copies and retransmission to other servers is not a direct infringement by the BBS operator of the exclusive right to produce the work where such copies are uploaded by an infringing user • Class • Practical understanding of the law by the judge. Thinks ISP infringement would be ridiculous All about volition

Answer 77

• "CV's conduct in designing, housing, and maintaining a system that exists only to produce a copy" is more like that of a copy shop proprietor • Cartoon network in SDNY ○ Should ask whether copying is "incidental" or "instrumental" SLIDE -- courts mostly picking the left side of the column ("When is tech. provider's involvement non-volitional?)

Answer 78

• Facts • Copyright and trademark enforcement action against operators of swap meet, (flea market) where 3rd party vendors routinely sell counterfeit recordings. ○ Cherry auction reserves the right to exclude vendors and thus could exclude for copyright infringement ○ D receives fee for each person that attends swap meet No dispute that D knew there was selling of copyrighted material _____ • Court • Vicarious liability (dance hall cases) -- court says its more like this scenario 1) Could control the premises i. Satisfied by controlling who could sell 2) Obtained direct financial benefit from the audience i. Satisfied by receiving fees from entrants, parking, food, etc. 3) CLASS -- need predicate act of direct infringement by the third party • Other line of cases found no vicarious liability if landlord lacked knowledge of the infringing acts of tenant and who exercise no control over leased premises (landlord-tenant cases) • Contributory Infringement ○ Needs 1) Knowledge of infringing activity 1) satisfied 2) Induces, causes, or materially contributes to infringement 1) Provided the site for the infringement to take place -- satisfied 3) CLASS -- need predicate act of direct infringement by the third party

Answer 79

• Perfect 10 cases generally ○ Court is distinguishing these cases from Fonovisa Different than 'respondeat superior' idea from previous case • Control Plaintiffs argue that Google could assert its market power via AdSense program to control or limit infringing content because it could decline to enter AdSense partnerships with infringers—court doesn’t accept this argument. Difference between ability to terminate contractual relationship and ability to stop a party from doing something via agency idea • Fonovisa is still good law BUT everyone agrees that a contract termination threat is not enough to say there is control (this is for the vicarious liability doctrine) • Contributory infringement ○ Standard: actual knowledge of specific infringing material using its system § This is going to be really hard to show ○ Prof: keep in mind these decisions came in 2007 so the ability to filter out content has changed since then

Answer 80

§ Takes payments more seriously that Google AdSense § Prof: arguably not the same as Google but court still says there is a difference □ The mere ability to withdraw a financial carrot does not create the control infringing conduct

Answer 81

No liability for sale of article “capable of substantial noninfringing use” (SNIU); Avoids control of broad areas of commerce not covered by original IP grant; VCR has SNIU (time-shifting). Dissent (4 justices): Should require that a quantitatively “significant portion” of the use be noninfringing. Contributory Infringement: Devices • Knowledge of the infringing activity ○ Actual ○ OR constructive: sale of device not capable of substantial noninfringing use • Induces, causes or materially contributes to the infringement • AND Predicate act of infringement by third party

Answer 82

-Napster(9th Cir. 2001): System capable of SNUI, but had actual knowledge. Depends on the design of the system as to whether or not they had actual knowledge, which they did here because of centralized directory. Also failed to remove files after notice of infringement. -Aimster(7th Cir. 2003): Aimster willfully blind to infringement, which counts as actual knowledge. Dicta: System not capable of SNIU unless defendant can show: (1) current noninfringing uses and (2) “some estimate” of their magnitude “disproportionately costly” to eliminate or substantially reduce the infringing uses -Grokster(9th Cir. 2004): System capable of SNIU, and no actual knowledge. Not willfully blind or as blatant as Napster, but marketed their product as a work around to the other two to satisfy known demand for infringing uses. -Grokster(S.Ct. 2005): Reaffirmed Sony. BUT Contributory liability can flow from actions demonstrating culpable intent like: 1. Effort to satisfy known demand for infringement, 2. Absence of design efforts to diminish infringement, 3. Marketing strategy (or business model -- where they designing moneymaking around infringement) • Sony SNIU is not a complete safe harbor. • "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." • However, mere knowledge of infringing potential or actual infringement is not enough on its own Device manufacturer liability Post-Grokster · Knowledge of the infringing activity • Actual (incl. willful blindness) • OR constructive: sale of device not capable of SNIU (Sony) • OR intent to induce infringement (Grokster) · Induces, causes or materially contributes to the infringement · Predicate act of direct infringement

Answer 83

- Incorporates safe harbor into four narrowly defined circumstances: (a) Transitory digital network communications. Automatically pass along communication without modifying it. (b) System caching to solve network latency—provider holds a copy to provide to users more quickly otherwise system would be unusably slow. IE refreshing pages. (c) Information residing on systems or networks at the discretion of users (d) Information location tools like hyperlink texts - Internet providers are always going to incorporate a and b as benchmarks to how to design their system to avoid liability - C and d are ways one could lose safe harbor protection based on knowledge of the presence of infringing content on the system * Explained safe harbors * First safe harbor: exempts an OSP from liability for transmitting or transiently storing infringing material * Second safe harbor: exempts an OSP from liability from caching copies of copyrighted material if the material is made available by someone else, transmitted from that person to the recipient at the recipients direction, and the storage is automatic * Third safe harbor: exempts OSP from liability for infringing material "hosted" on its servers on behalf of subscribers, such as blog entries, photos, and videos shared online * Fourth safe harbor: shelters OSPs that provide links, indices, or other directories referencing infringing material • Section 512 also provides OSP with exemption from liability for "any claim based on" the OSP's good faith removal of content • If subscriber wishes, may furnish a counter notification that identifies the material; states under penalty of perjury that the subscriber has a good faith belief that it was removed by mistake; and consents to the jurisdiction of the federal district court where the subscribers contact address is located or where OSP is located for foreign subscribers ○ Upon receipt of the counter notification, the OSP must notify the complainant, and must restore the material within 10 business days unless it first receives notice that a lawsuit has been filed • 512(h) authorizes federal district court clerks, upon a copyright owner's request, to issue subpoenas for identification of subscribers who have posted allegedly infringing material

Answer 84

o Knowledge triggered by proper notice No general duty to monitor or investigate · Failure to disable when OSP has knowledge of infringement • Actual knowledge. Specific/subjective. • Knowledge via “red flags”? Specific/objective. -Knowledge via “red flags” (A)(ii)—this means facts and circumstances which according to an objective reasonableness standard would give you awareness of the specific infringements the π alleges—read in a “the” or “such” before “infringing activity is apparent” -(Not a problem if you act quickly to remove infringing uses) class: § No duty to monitor § Common law willful blindness? □ Court limits this to specific instances of infringement** Cannot argue general, hand waiving blindness

Answer 85

• Facts • D owns internet site -- sole employee ○ Motherless.com: porno site ○ Content uploaded by sites users ○ Free to use but can pay to remove ads and enable downloading content • When user uploads its met with a warning telling users not to upload anything that violates terms or is illegal ○ Website itself does not edit or approve content • Website gives directions for emailing takedown notices ○ Also sues a software program that provides copyright owners with a link and password so that they can directly delete infringing material themselves without having to send a takedown notice • D says he and contractor tries to audit material and delete things against the terms of use ○ Also responds to takedown notices and deletes things as quickly as possible • Uses software to prevent users from re-uploading previously deleted material • D sometimes deletes repeat infringers at his discretion base don factors on page 637 • P is pornographic producing entity and found infringing content on the site ○ After D was served the complaint he reached out to P to ask for urls so he could delete the content but P did not respond the first time. Followed up, got urls, and deleted content • Decision: concludes defendants are entitled to safe harbor _____ • Court • There is an additional condition on safe harbor eligibility: the service provider must have a policy to terminate users who repeatedly infringe on copyrights, and it must implement that policy reasonably ○ Has to implement policy in appropriate circumstances • Motherless policy on repeat infringer analysis: ○ Policy details are not written down but that is not required ○ Gut decision after 2 or 3 infringements is fine (not a hard line) ○ Various factors can way into what is 'reasonable' in this analysis § Although failure to track repeat infringers would be a red flag… not determinative but still a red flag • "doubt that Motherless really does have a policy of terminating repeat infringers that is reasonably implemented is unavoidable in light of unsystematic and casual implementation. But it is not evidence…" therefore still entitled to safe harbor

Answer 86

• Linking a particular IP address to a particular user requires access to the OSPs internal usage records • Pursuant to 512(h) a copyright owner may obtain a subpoena requiring an OSP to reveal a subscribers identity • Copyright owner needs 1) A proposed subpoena 2) A copy of the takedown notice described in 512(c )(3) 3) A sworn declaration that the information is being sought solely to pursue "rights protected under this title" • DC Circuit said 512(h) applies to an ISP storing infringing material on its servers in any capacity • Adopted Verizon's argument that 512(h) did not apply in situations where the OSP was a mere conduit for arguably infringing transmissions • Without ability to use the 512(h) subpoena to identify individuals engaged in file sharing, can turn to mechanism available to any civil litigant desiring to sue an individual whose identity is unknown -- a lawsuit filed against 'John Doe' ○ May seek the courts assistance in determining the defendants identity (file an ex parte request for a subpoena to a nonparty)

Answer 87

Decided under 1909 Act that had a state-federal system. The mere performance of a speech or the release of the speech to the media for coverage of a newsworthy event is not a general publication. • General publication under 1909 act occurs in two occasions 1) If tangible copies of the work are distributed to the general public in such a manner as allows the public to exercise dominion and control over the work 2) If the work is exhibited or displayed in such a manner as to permit unrestricted copying by the general public • However, case law indicates that restrictions on copying may be implied and that express limitations in that regard are deemed unnecessary • Reverse lower courts grant of Summary Judgment against MLK estate • Class o Good example of the difference between a limited publication and general publication ○ Limited publication did not trigger the formalities This was settled before there was a final decision

Answer 88

- As of 1976, don’t need this for © protection, just need fixation in a tangible medium of expression - Got rid of the state/federal system, now just federal

Answer 89

- 1909: Strict notice requirements attached to general publication; Required or lose © protection - Can write “Copyright” “Copr.” or © to indicate copyright + year of first publication + name of copyright owner - Don’t forfeit © protection without notice if only on a small number of copies - Can modify name and date without forfeiting protection - Notice not required under Berne Convention—but should still include notice for evidentiary benefits - 1976: Notice required on published works, but opportunity to cure.

Answer 90

-1909 Act: Strict deposit requirements attached to general publication Failure punishable by loss of © -1976 Act: Added opportunity to cure and allows special exemptions. Failure punishable by fine only.

Answer 91

-1909 Act: Mandatory to renew (after first 28 years) or to file suit -1976 Act: Mandatory to file suit, and to receive certain remedies -BCIA: Mandatory for U.S. owners to file suit, and for ALL owners to receive certain remedies -Effect of Formalities on Availability of Copyright -1909 Act: Default = no © UNLESS proper notice and prompt deposit Plus “certain unpublished works not reproduced for sale”, IF properly registered -1976 Act: Default = © © subsists upon fixation …and just about everything seems to be copyrighted… • For newly published works, have 3 months in which to register their work and remain eligible for statutory damages and attorneys fees even if the infringement commences prior to registration

Answer 92

§302: Works created after Jan. 1, 1978 · Natural person: Life plus 70 years · Joint work: Longest life plus 70 years · Works made for hire and anonymous/pseudonymous works: 120 years from creation or 95 years from publication, whichever expires first §303: Works created but unpublished and unregistered prior to 1/1/1978 · Duration is the same as for works created post 1/1/1978, except · Copyright lasted at least until 12/31/2002 · If published before 1/1/2003, copyright will last at least until 2047 §304(a)-(b): Works created and published (or registered) pre-1/1/1978 · If work was in the public domain before 1/1/1978, it stays that way o except restored foreign copyrights · If not, protection can last 95 years: 28 + 28 + 19 + 20 = 95 [SEE FLOW CHART IN OUTLINE]

Answer 93

CTEA is constitutional under copyright clause “limited times”; serial extension of the copyright term, even if it looks unlimited, does not in fact run afoul of the Copyright Clause. o The Court also held that there were sufficient First Amendment protections built into the current copyright law in the form of the idea/expression dichotomy and the fair use doctrine. Challenge to the Berne restoration provisions for foreign authors. Restoring rights in PD works post-statute. Analyze from that of the © owner not the public, who lost © for arbitrary reasons. Congress’s reasons for wanting to restore © for the works are reasonable, and there is historical precedent for extension. o Class ○ Its going to be really hard to pose a constitutional challenge to these types of legislative actions with copyright law

Answer 94

Held the public domain is not untouchable, and congress may grant protection to previously unprotected works. The Court rejected Golan's argument that taking works out of the public domain violated the constitutional "limited times" requirement, following the reasoning from

Answer 95

• Facts ○ Dispute over "Santa Claus is Comin to Town" § Written in the 1930s § Agreement in question made in 1934 ○ Heirs of authors trying to use 1976 Act to terminate previously made agreements ○ Agreement § Made 1934 § Sold the song and "the right to secure copyright therein" § Feist agreed to publish the song within 1 year and pay certain royalties § 1951 assigned "all renewals and extensions of all copyrights therein" in exchange for certain royalties ○ 1981 Coots serves termination notice because of new laws allowing termination starting 1990 § This prompts negotiations and a new deal is signed in 1981 ○ P seeks to now terminate previous agreement after 1981 deal signed § [facts go into complicated statutory weave about why this is now possible] • Court • Reasoning ○ Big question is if D owns rights under the 1951 agreement or 1981 agreement since the relevant law in play was passed in 1978 § 1981 agreement controls □ This agreement made clear in its language that it was replacing the 1951 agreement □ "clear Coots was granting more than the vested future interest scheduled to revert to him or his statutory heirs upon termination" ○ Although an authors interest vests immediately upon service of a termination notice, it becomes possessory (ownership granted) only if the notice is recorded before the termination date ○ Will the 1981 Agreement be terminated by the 2007 Termination notice or, instead, by the 2012 termination notice § 2012 termination notice controls § [may have to review/ see lecture. Not sure about this technical language] • Class ○ Says we are dealing with the right of first publication when dealing with if we use 35 years or 45 years for the termination window

Answer 96

○ Works who owners cannot be located are considered "orphan works" ○ Works published after Berne Convention implementation may contain no identifying information, and older works published with proper notice and properly renewed may be difficult to trace to a current owner ○ real problem is that people want to use works but don’t know who to approach ○ [see outline for the approaches to solving]

Answer 97

Even with no explicit contract, the license should be implied. A license is implied when (1) licensee requested work be created; (2) the creator created and delivered the work; (3) creator intended copying and distribution of the work (this factor more complex). • On the 3rd element of intent (this is the most important element) • "the relevant intent is the licensor's objective intent at the time of the creation and delivery of the software as manifested by the parties' conduct" SEE PAGE 721 FOR INTENT TEST • Section 101's definition of "transfer of ownership" does not include nonexclusive licenses; therefore, no writing is required for such a license May be granted orally or by implication • Class • Prof: a really important piece of evidence will be if they were well paid for their services and how the industry handles other creators making similar content ○ If the amount paid is comparable with a transfer of rights in other instances -- that is going to matter a lot • What about a work made for hire issue ○ Software is not in one of the 9 categories in 101(2) ○ It was clear here that the creator at issue was not their employee and that is shy we are in court Implied licensing is a backstop for protecting a situation where a party paid for a work and the rights are up in the air

Answer 98

Independent authors’ articles of Lexis/Nexis. Held print and electronic publishers violate the copyrights of freelance authors when they include the freelancers' already-published articles in computer databases without the author's permission because 201(c) does not authorize publisher’s copying. What counts as a revision? · Majority: What is recognizable to the user? What is the user perception? If user would perceive a new version = revision; if not, then seems like the same articles, not a revision. This was NOT a revision, so infringed on writers’ rights · Dissent: ~Database design, the original structure of the collective work. This is a revision, no infringement of rights. Continuity of indexing. -Review: cannot terminate work made for hire nor can you terminate privileges- ASK THIS! -So what do authors get here? Nothing. Not what Ginsberg had in mind when she wrote majority opinion. · My notes • "The freelance authors' complaint alleged that their copyrights had been infringed by the inclusion of their articles in the databases. The publishers, in response, relied on the privilege of reproduction and distribution accorded them by 201(c )" ○ Copyright in each separate work is different from copyright as a whole (the whole publication of a magazine, paper, etc.) • A newspaper or magazine publisher is privileged to reproduce or distribute an article contributed by a freelance author, absent a contract otherwise providing, only "as part of" any (or all) of three categories of collective works: A) That collective work to which the author contributed her work B) Any revision of that collective work C) Any later collective work in the same series · Class • 201(c ) is just a default rule and you can contract around this • NYT did not have the proper agreements for a WMFH therefore we are on 201(c ) • After this case, all the future agreements now mandate this right is given when writing ○ This does not result in authors receiving any more rights or any more money

Answer 99

Fantasia film. Parties negotiated a contract with a granting clause allowing Disney to record in any manner; type of use of the music; and a sync license. §106 distribution refresher. Held that video cassette is within terms of granting clause. - Competing Canons of Construction - Boosey & Hawkes (CA2): Grant read to encompass new uses if words are broad enough and use was reasonably foreseeable - Cohen v. Paramount (9th Cir.): Grant read in light of Act’s purpose which is to remunerate authors for rights and incentivize literary production. If grant is ambiguous, reserve those rights to the author. (this is a more restrictive read because saying you interoperate ambiguity to be a more narrow scope of grant) - Difference in language of the two contracts (there’s a granting license and then a clause about the scope of that grant) - Grant should be construed against the grantor anyway, but licensee drafted the grant and has a lot of power. · P claim: complaint sought 1) a declaration that the 1939 Agreement did not include a grant of rights to Disney to use the Stravinsky work in video format and 2) damages for copyright infringement in at least 18 foreign countries • Contends license to use work in a "motion picture" did not authorize distribution of the motion picture in video format, especially in view of the absence of an express provision for "future technologies" and Stravinsky's reservation of all rights not granted in the Agreement. ISSUE: this is a "new use" problem -> dispute about whether licensees may exploit licensed works through new marketing channels made possible by technologies developed after the licensing contract ~~~~~ · This case • 1939 Agreement conveys "right to record the composition in any manner, medium or form for use in a motion picture" ○ Court says this language is broad enough to include distribution of the motion picture in video format · Court says the analysis should rely on neutral principles of contract interpretation • Focus on the language of the contract only; this is what the parties are relying on when making their decisions · Class • Odd tension with K law being state law ○ Seems we are seeing some federal common law being constructed specifically for copyright contract interpretation

Answer 100

Result in tension with Boosey. Publishing agreements in which authors have granted rights to RH to print, publish, and sell the work in book form. Rosetta publishes in e-book, and RH sues and relies heavily on canon of constriction in Boosey and on K principle to extend to any new use deemed to be reasonably foreseeable and lose on this point. Granting clause: to “print, publish and sell the work in book form” and Styron: book clubs, reprint edition, shortened forms, access for the handicapped Vonnegut: anthologies, serializations, shortened forms, picture book versions, microfilm, “Xerox and other forms of copying, either now in use or hereinafter developed” Non-compete clauses: Styron: “any material in book or pamphlet form, based on the material in the work” Vonnegut: “any edition . . . by any party other than Dell without Dell’s prior written consent” • Court ○ Based on the language of the K, RH does not own the right to publish the works as ebooks ***§ Also, a reasonable person "cognizant of the customs, practices, usages and terminology as generally understood in particular trade or business" would conclude that the grant language does not include ebooks § To "print, publish, and sell the work in book form" is understood in the publishing industry to be a "limited" grant ○ Says the language in Boosey was more broad than the language here and that is the reason for the difference in result

Answer 101

Subsequent purchaser obtained a copy of a copyrightable work that was initially distributed under what was a license not a sale. He then resold on ebay and attempted to defend under the fair use doctrine; however, affirmative defenses are unavailable to those only licenses to use the product. Held Vernor was a licensee rather than an owner; further, cannot pass ownership to his customers (no exclusive right to distribute) and with each use of software, they infringe exclusive production right. - Factors: A user is a licensee rather than an owner when: (1) copyright owner specifies that the user is granted a license (2) significantly restricts the user’s ability to transfer the software and (3) imposes notable use restrictions ○ First sale doctrine only applies when the transferee is entitled to keep the copy of the work ○ Because Vernor was not an owner, his customers are also not owners ○ Court acknowledged policy implications § Those against this decision believe that this places a serious burden on all purchases to trace the line of ownership § Says this does not respect the economic realities of these transactions • Class • The three factor test ○ This seems like a really easy test… if it looks like a license then it is a license ○ The license is also written by the copyright holder so they hold the power to get into this test ○ Is the court actually only looking at the language of the document? • Prof going of common law bailee property law stuff to compare • Interesting balance here where software is essentially eliminating the first sale doctrine with everything accessible and under a license • Asking if reverse engineering also forbidden by license? Should we be thinking about the license differently in the context of reverse engineering and the public good reasoning used in Sega v. Accolade

Answer 102

- Right to copy, distribute, and modify the work - Copies and derivative works have to be distributed with the same license (“viral” or “share-alike” rule) - The source code must be published—otherwise hard to modify software, would have to reverse engineer it. Disclosure provision - Other proviosns ex. Attribution and description of changes

Answer 103

[CHECK THIS CARD FOR ACCURACY] Facts • Jacobsen manages open source software group ○ Downloadable files contain copyright notices and refer the user to a "COPYING" file ○ Katzer operating business and the open source software got into their product Did not follow the terms of the artistic license of the opensource software ~~ Conditions v. Covenants. Important distinction because the remedy changes: Breach of covenant = breach of K remedies. Breach of conditions = copyright remedies. “Generally a CP owner who grants a nonexclusive license waives his right to sue licensee for CR infringement and can only sue for breach of K.” -CR remedies  Injunctive relief; K remedies  damages -Two approaches to classification: 1. Sun Microsystems v. Microsoft: held terms are conditions rather than covenants if they help define the scope of the license. 2. Jacobsen(again): held terms in question are conditions rather than covenant because of (1) it finds conditional language in the license (“provided that”—what did © owner choose to call it) and (2) restrictions are necessary to effectuate purpose of open source licensing scheme • Class • Why is the key issue written above actually the key issue? ○ Jacobsen wants CR remedies (injunction) rather than just K remedies ($ but no specific remedies) • Why are we asking about economic benefit as an objective for the open source project? ○ If you want to say the agreement was binding then you need to show there was consideration ○ We are operating in a space where no money changes hand so you need to have another theory of consideration Economic benefit is being used broadly as a utilitarian concept • Not all courts handle it this way ○ MDY v. Blizzard (note case) § We don’t think it can be a condition enforcing copyright remedies unless it is directed at copyright exclusive rights Therefore this is a mere covenant and not a condition

Answer 104

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that— (a) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title; (b) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or (c) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title. Class Congress has handled the 1201 issues by creating targeted exemptions [look up the chart for 1201 in notes]

Answer 105

8 movie studios, successfully sought an injunction against the distribution of DeCSS, a program capable of decrypting content protected using the Content Scramble System. - Violation of §1201(a)(2) - Why under this section? For prohibited circumvention of access protection measures - CSS content scramble system is an encryption algorithm with associated decryption keysàDVD association - If you want to build a DVD player, you need a license to use the CSS protocol on a royalty free basis but there is an administration fee (consideration for transactions, part of that is confidentiality of the protocol so that you need to be given access) - Deciding between suing under access or rights protection - CSS falls into both - Access protection because three-key system to access content -my notes • Court ○ CSS "effectively controls access" to copyrighted DVD movies. It does so within the meaning of the statute, whether or not it is a strong means of protection § E.g. any protection qualifies for the DMCA protection ○ Does not matter that the DeCSS was not created for the purpose of pirating copyrighted motion pictures and instead was meant for developing a DVD player for Linux operating systems ○ Contention from D: that this falls under the 1201(f)(3) exception which permits information acquired through reverse engineering to be made available to others only by the person who acquired the information § Court: The right to make the information available extends only to the dissemination "solely for the purpose" of achieving interoperability as defined in the statute. It does not apply to public dissemination of means of circumvention… □ DeCSS was not posted "solely" to achieve interoperability with Linux or anything else ○ Fair use contention § D's are not being sued for copyright infringement. Sued for offering and providing technology designed to circumvent technological measures that control access to copyrighted works and otherwise violating Section 1201(a)(2) of the Act. ○ Statute makes it unlawful to offer, provide, or otherwise traffic in described tech § Hyperlinking to pages for DeCSS download falls under "trafficking" and is unlawful ○ First Amendment § There may be no injunction against, nor liability for, linking to a site containing circumvention technology, the offering of which is unlawful under the DMCA, absent clear and convincing evidence that those responsible for the link A) Know at the relevant time that the offending material is on the liked-to site, B) Know that it is circumvention technology that may not lawfully be offered, and C) Create or maintain the link for the purpose of disseminating that technology class ○ Is DeCSS an access protection measure or rights protection measure § Seems it’s a little bit of both § Court treats it as access -- cites 1201(a)(2) § Why does this matter? □ You want it framed as 1201(a)(2) so that you can potentially discourage individual acts of circumvention because the tool is now widely spread online ○ Should the Linnux argument be more heavily considered under (b)? -- has only limited commercially significant purpose or use other than circumvention § If we allowed this argument to carry us through it would circumvent the consideration under (a) and just allow people to design things to steal copyright as primary purpose ○ Court really focusing on (a) § (b) is also satisfied ○ Reverse engineering exception under 1201(f) § Why unavailable to 2600.com? § What if they sued Johansen? □ The windows executable from this did not create interoperability so did not fully put us in the exception for prong 1 of 1201(f) □ What about prong 2? --> maybe better argument □ What if he had fully completed the media player for Linnux? ® You would want to say its not decrypting software but its decrypting other media

Answer 106

1) Express preemption a. Specifically excludes states from acting i. Copyright Act contains express language whereas patent act does not interestingly 2) Implied a. Occupation and field i. Occurs when federal law completely excludes the states from acting in the covered area b. Conflict preemption i. When particular state enactments or common law claims for relief nonetheless conflict with the purpose of the federal statutory scheme

Answer 107

Some things are protected against copying by patent or copyright and everything else is in the public domain. When the state tries to prohibit copying, it is trying to move things out of the public domain that belong there pursuant to a federal legislative determination that they haven’t reached the quantum of innovativeness or expressiveness necessary to qualify for © or patent protection. States can attach labeling requirements (unfair competition claims)—when you manufacture knock off goods, you need to label it such that consumers won’t be confused as to the fact that it’s yours, rather than the plaintiff’s (trademark laws as well, consumer confusion prohibitions etc.) • "both cases held that states may not use unfair competition law to prohibit the copying of items that fail to meet the standards for patent protection"

Answer 108

• Facts • Petitioners engaged in "tape piracy" -- the unauthorized duplication of recordings of performances by major musical artists Tapes were recorded onto blank tapes and then resold Record piracy—CA law prohibiting record piracy, but not preempted. Congress has not occupied field. - Court says that universe of intellectual goods has a third territory. Three options: 1. Congress can decide to protect a writing = federal 2. Congress could place it in public domain 3. Area left “unattended.” There could be categories of stuff as to which Congress just says they’re not acting, it’s not within the federal part of the map, but it’s not being relegated to the public domain, they’re not saying anything about it yet (e.g. unfixed works). If Congress doesn’t say anything, states can act. • Class ○ Case came before sound recordings were added to the Copyright Act § The moment Congress puts this in the copyright act this case changes (the litigation just arose before it was put in -- i.e. 1972) Only thing left unattended now is unfixed works

Answer 109

Whether trade secret laws are preempted by operation of federal patent law. Defendants are trying to argue that TM law in OH cannot be enforced against them because of Goldstein, Sears, and Compco. Issue: is the technology taken here left unattended by fed patent laws? No. State can’t lift that technology out of PD, can require TM labeling. But, Bicron loses. • My notes • Court ○ Trade secret law protects items which would not be proper subjects for consideration for patent protection under 101 ○ Hard to reconcile the quid pro quo of disclosure and the right to exclude that is pervasive in patent law and the accompanying trademark law • Dissent: ○ Thinks this is at odds with Sears and Compco § Thinks in those cases the holding was that when an article is unprotected by a patent, state law may not forbid others to copy it, because every article not covered by a valid patent is in the public domain • Class • This is dealing with a chemical process so seems like it could have been patentable. So court is digging into the quid pro quo of patent law • By definition, TS is not in the public domain • Court shows that the incentives between TS law and Patent law are aligned but its not completely sufficient to answer the objection of the quid pro quo of patent law ○ Says that TS law incentivizes people to discover the TS by fair and honest means • If TS law had become more of a solid protection, there would have been preemption it seems ○ There is just not enough concrete law or codified law ○ (contrast Bonito Boats)

Answer 110

FL law forbidding direct molding copy of boat hull design is preempted by federal patent law according to Sears and Compco, because it is patent-like protection forbidden for items unprotected by federal law - prohibits reverse engineering of product in public domain. Held permissible to find implied preemption in copyright too. Unless the subject matter is unattended (which there is very little of post-1976), a state may prohibit particular unethical or unfair practices (labeling, trade secrets etc.) but it may not prohibit copying per se. [There does not seem to be anything particularly unethical about direct molding as a method of copying.] The law cannot be justified as targeting unfair competition because that protects consumers not manufacturers. ~~~~~~~~~~~~ • My notes • "we believe that the Sears Court correctly concluded that the Sates may not offer patent-like protection to intellectual creations which would otherwise remain unprotected as a matter of federal law" • Court ○ This case so substantially impedes the public use of otherwise unprotected design and utilitarian ideas embodied in unpatented boat hulls as to the run afoul of the teaching of our decisions in Sears and Compco ○ In essence, the Florida law prohibits the entire public from engaging in a form of reverse engineering of a product in the public domain § This is clearly one of the rights vested in the federal patent holder

Answer 111

Exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.

Answer 112

Unfair competition did not survive preemption (so not preempted, can bring a state claim) • It is the act of unauthorized publication which causes the violation • The enjoyment of benefits from derivative use is so intimately bound up with itself that it could not possibly be deemed a separate element

Answer 113

Unfair competition did not survive (so not preempted and can bring a state claim). • My notes • Preemption analysis encompasses both a "subject matter requirement," and a "general scope" or "equivalency" requirement ○ Here, first prong is not disputed ○ Second prong scope: § A right which is "equivalent to copyright" is one which is infringed by the mere act of reproduction, performance, distribution or display… If under state law, the act of reproduction, performance, distribution or display… will in itself infringe the state created right, then such right is preempted □ But if other elements are required, in addition to or instead of, the acts of reproduction, performance, distribution or display, in order to constitute a state created cause of action, then the right does not lie "within the general scope of copyright" and there is no preemption • Unfair Competition Claim ○ Necessarily involves the extra element of misrepresentation or deception which Is not an element for copyright infringement • Unjust Enrichment ○ Essentially saying plaintiff exploited IP without compensating D for benefits derived form such use ○ "in this case, where a claim for breach of implead contract is absent, defendants claim for unjust enrichment is… duplicative of the relief sought under copyright law" ○ No extra element pleaded here -- preemption exists • Conversion and Replevin Claims ○ Claim involves tangible, physical property, the rights to which are distinctly different form those rights involved in D's copyright counterclaims" § Not equivalent to those right protected by the federal copyright laws ○ Not preempted quick note: Class • Unfair competition tends to survive -Unjust enrichment and misappropriation tends to not survive

Copyright General Flashcards

(137 cards)