Comm Law 2- Copyrights

copyrights are used…

to protect the owner

constitutional power

congress shall make a law to protect copyright owners

history of copyrights

started in state laws, in 1976 the copyright act passed and put everything in 1 place and laid everything out (prior to 1976 you had to publish and use copyright symbol)

copyright act definiton

any original work of authorship fixed in any tangible medium of expression

registration is…

important for protections

registration protection provides

1. statutory damages ($750-30k per violation when unintentional, $150k per violation when willful)

2. entitled to attorney’s fees

if you don’t register

have to prove damages to get $ (hard to do)

important note about damages

cannot have both, you can only have either actual or statutory

copyright requirements: originality

has to be original and independently created by the author and it must possess a modicum (just the slightest bit) of creativity

copyright requirement #2

must be fixed in a tangible form of expression

copyright requirement #3

has to be the work of author (exception: works for hire- split money w/company, ex: university)

types of works protected under copyright act

1. literary works (198 amendment includes computer programs)

2. musical works (lyrics and words to composition)

3. dramatic works (plays, movie, TV, radio)

4. pictorial, graphic, and sculptural works (posters, maps, doll clothes, photos, fabric- extremely broad) does not include useful articles like machinery

5. motion pictures and other audiovisual works (put it down on tape/record it)

6. sound recording (when music is affixed to CD, tape, computer program, etc.)

7. architectural works (design not buildings)

this list is….

not exclusive-
“any original work of authorship fixed in any tangible medium of expression now known or here in after developed”

why is it easy to prove copyright violation/infringement

• violator need not profit from their infringement

• not necessary that the entire original work be copied

exclusive rights under act: to reproduce/copy

to prepare derivative works of the original (a translation which recasts adapts, or transforms the work- think sequels)

exclusive rights under act #2

to sell, lease, or rent copies to the public

first sale doctrine

once the owner of a copyright has parted with ownership of the copyrighted work, the new owner can freely use it, sell, or lend to another (ex: selling an old textbook)

exclusive rights under act #3

to perform/to display the work publicly

exclusive rights under act #4

to perform sound recordings by means of digital audio

exclusive rights under act #5

to transfer ownership in whole or in part by conveyance, will, or intestate succession (intellectual property transfers like real/personal property)

exclusive rights under act #6

to sell “license permits”

length of rights: individual

life of author plus 70 years (given to heirs after death)

length of rights: corporation

120 years after it’s created or 95 years from when it was published, whichever was earlier

copyright infringement definition

the unauthorized exercise/use of any of the copyright rights included in the copyright act whether or not the owner has registered the copyright

direct infringement

saw X person steal on CD machine, etc.

circumstantial infringement

not direct, but instead requires the defendant had access to copyrighted work and that there is a substantial similarity between the works

identical work

is presumed to be infringement

Universal Studios v. Sony (1984)

Sony came up with VCR for recording shows and was sued by the motion picture industry- recording and sharing is contributory violation of copyright, Sony argued it was made for time shifting not infringement, courts agreed as they did not want to get in the way of technology

contributory liability

when a party induces or materially contributes to the infringing conduct of another with knowledge of the infringing activity

A+M Records v. Napster (2001)

Napster invented peer to peer sharing (had website with index of songs- put music in and others could download it), A+M sued for contributory liability, Napster argued Sony, court made them take out copyrighted songs from index, Napster refused and was shut down (refusal shows knowledge and encouragement)

MGM Studios v. Grokster

Grokster had peer to peer without index, Grokster bragged that he knew copyrighted material was being shared, MGM successfully sued and Grokster was shut down

Affirmative defense for violation- fair use

in copyright act, 4 factors courts used as a balancing test (don’t need all 4)

factor 1: purpose and character of the work

purpose: examine whether the use is for a commercial vs. non-commercial (parody, educational, research, criticism, new-reporting) purpose

character: look at whether use is transformative- it adds new expression/meaning/value to the original work

factor 2: nature of the original work

whether the work is more factual or creative

factor 3: amount of sustainability of the portion used

how much of original work have you used? also considers whether the heart of the work was taken

ex: ford book (pardoning nixon)

factor 4: effect of the use on the potential market of the copyrighted work

examine whether the use affects the potential market for value of the original work

remedies for copyright infringement

1. injunctive relief

2. impoundment of infringing copies

3. compensatory damages

4. statutory damages

5. costs and attorney’s fees

6. criminal sanctions

7. fines may be imposed for fraudulent use or removal of copyright notices

the copyright clearance center (CCC)

different ones for different types of copyrights

digital millennium copyright act (DMCA) history

in 1998 it was unanimously passed to implement 2 1996 treaties in the US signed with the world intellectual property organization (WIPO)

DCMA provision 1: anti-circumvention rules

makes it a criminal offense to bypass digital protection measures

DCMA provision 2: safe harbor for ISPs

ISPs (ex: facebook, instagram, etc.) were being sued for their owners posting copyrighted stuff, now there is a new system:

1. notice and takedown: copyright owner must send ISP a takedown notice that something was uploaded without permissions, only then is ISP required to quickly take it down

2. counter notification: the user may send notice that they posted under fair use- doesn’t get them reposted, just sends the case to court

3. privacy and illegal downloading: specifically targeted peer-to-peer downloading

Why is DCMA controversial?

• overreach: many things which were clearly fair use were permanently taken down

• puts a boot on the neck of creativity and remix culture

No Electronic Theft Act (NET Act 1997)

closed loophole in copyright act which permitted copyright infringement, even if it was done knowingly/willfully so long as the infringer doesn’t profit

Family and Entertainment Copyright Act (2005)

a. criminalizes uploading a movie before its commercial release and recording movies in theater (5 years, 10 years for repeaters)

b. allows individuals to filter out profanity, violence, and other objectional content from movies

The Higher Education Opportunity Act (2008)

requires universities and colleges who receive federal aid to combat illegal file sharing through a series of steps

Higher Ed Opportunity Act steps

1. releasing an annual disclosure to students regarding copyright laws

2. create a written plan that they must submit to the department of education to combat copyright abuse using one or more tech-based dettements

3. provides students with alternatives to illegal downloading (spotify, library movies, etc.)

The Pro-IP Act of 2008

• gives government the right to stop, seize, and destroy the shipment of pirated goods

• created the internet-czar (direct connect to president for copyright stuff and deals with other government orgs)