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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
statutory damages ($750-30k per violation when unintentional, $150k per violation when willful)
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
literary works (198 amendment includes computer programs)
musical works (lyrics and words to composition)
dramatic works (plays, movie, TV, radio)
pictorial, graphic, and sculptural works (posters, maps, doll clothes, photos, fabric- extremely broad) does not include useful articles like machinery
motion pictures and other audiovisual works (put it down on tape/record it)
sound recording (when music is affixed to CD, tape, computer program, etc.)
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
injunctive relief
impoundment of infringing copies
compensatory damages
statutory damages
costs and attorney’s fees
criminal sanctions
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:
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
counter notification: the user may send notice that they posted under fair use- doesn’t get them reposted, just sends the case to court
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
releasing an annual disclosure to students regarding copyright laws
create a written plan that they must submit to the department of education to combat copyright abuse using one or more tech-based dettements
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)
