Copyright
Professor Rick McDermott
Spring 2012
1. Introduction
a. This class will provide a much more in depth examination of copyright law compared the Intellectual Property class also taught by McDermott.
b. He focuses almost entirely on caselaw and court decisions to illustrate the ideas and concepts.
c. The Casenote Legal Briefs book for our textbook is available but it does not provide enough depth to do well in the class. The extra depth is extremely important for the tests (very long, hard and in extreme depth if the IP course is any guideline).
2. Copyright in Context (Chapter 1)
a. Copyright protections come directly from the intellectual property clause of the Constitution (Article I, § 8, cl. 8) – “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries…”
b. All applicable law is found in 17 U.S.C. and all court decision will be from federal courts (District, Appellate and Supreme).
c. Because copyright involves music, movies and books (along with several other statutorily defined categories) court decisions from the 2nd Circuit (New York) and 9th Circuit (California) are the most important and most often looked to for persuasive authority and rules by the other circuits.
d. Historical evolution of copyright protection in the United States
i. Copyright Act of 1790 – protected maps, charts and books
ii. Other categories were slowly added over time
1. 1802 – engravings, etchings, and prints
2. 1831 – musical compositions
3. 1856 – dramatic compositions
4. 1865 – photographs and negatives
5. 1870 – paintings, drawings, chromolithographs, statuary, and other objects intended to be “fine art”
iii. Copyright Act of 1909 – complete overhaul of copyright protection that included many different categories of protected works
1. Books (including compilations)
2. Periodicals, including newspapers
3. Lectures, sermons, and addresses intended for oral presentation
4. Dramatic or musical compositions
5. Maps
6. Works of art
7. Reproductions of works of art
8. Scientific or technical drawings or works
9. Photographs
10. Prints or pictorial illustrations
11. Motion pictures (added in 1912)
12. Prints or labels used for articles of merchandise (added 1939)
13. Sound recordings (added 1971)
iv. Copyright Act of 1976 – another major overhaul of the law and a modification of the manner of categorizing the protected areas
1. Literary works
2. Musical works
3. Dramatic works
4. Pantomimes and choreographic works
5. Pictorial, graphical or sculptural works
6. Motion pictures and other audio-visual works
7. Sound recordings
8. Architectural works (added in 1990)
9. This modification also took into account changing and advancing technologies. It listed formats that were currently known or would be developed in the future.
v. Berne Convention
1. An international agreement signed by over 100 countries laying out mutuality of copyright protections along with the rights and responsibilities of the countries involved.
2. First created in 1886
3. US did not join until 1989 and then only half-heartedly.
a. There are specific ‘moral rights’ that are included (at European insistence) that the US did not want to recognize.
vi. TRIPPS and WTO
1. These two large international agreements (and the implementing organization) have become the foundation of current global trade
2. The US has gotten more involved in them, and their implementation, in an effort to protect copyright holders and the industries associated with them.
3. Only once the US saw its own economic interests at state did we actually care about respecting what the rest of world did (a rather myopic and self-centered view in every direction).
e. Rights conferred to the copyright owner (17 USC §106)
i. Reproduction – the owner has exclusive right to make copies. He may sue for infringement if the copying is “material” and “substantial” even if the copy is in different form or only part of the whole.
ii. Derivative Works – the owner has exclusive right to prepare derivative works, based on the original but in different form. These works may also be copyrightable.
iii. Distribution – the owner has the right to control the same and distribution of the original and all copies or derivative works, including licensed copies. This right only applies to the first sale of the work, not subsequent sales.
iv. Performance and Display – the owner has the right to control public (not private) performance and display of his work, both literary and performance-oriented works. The owner generally does not however have the right to prevent the display of a particular original or copy of a work of art in a public place.
v. Anticircumvention – the Copyright Act prohibits the circumvention of technological protection measures designed to safeguard digitally encoded works, subject to several exceptions and limitations.
vi. Moral Rights – a visual artist possess an attribution right in their works as well as rights to prevent intentional distortion, mutilation or other modification of their w
f MAI who went to work for Peak and took much of their business with them. It also happened due to the lack of technical knowledge of the judges in the very beginning of our computer era (circa 1994). MAI made computers and provided an operating system that went with them. These computers required extensive upkeep and maintenance. Peak came along, stole four key employees, and set up a business to do maintenance on the MAI computers. During the maintenance of the computers, the Peak employees had to turn on the computers which resulted in the operating system being loaded into RAM so that the machine would run. MAI sued for infringement claiming that the software was license to the customer, not to Peak, and that they were making an impermissible copy of it.
2. ISSUE: Does the creation of a copy of the operating system program in the RAM of the computer create a fixed copy?
3. DISCUSSION: A common defense to infringement is that the other party does not hold a valid copyright and that the “copying of the protected expression” was beyond the scope of the license. In this case MAI was claiming that Peak running the software was beyond the scope of the license. Peak argued that they were not creating a copy of the software (which was conceded to have a valid copyright).
4. RESULT: The fact that the copy created in the RAM was only temporary and there long enough to run the computer to do maintenance did not matter. There is no length of time required for the copy to exist for it to be considered an impermissible copy.
iii. Cartoon Network v. CSC Holdings, Inc (pg. 53, note 5) (2nd Circuit)
1. DISCUSSION: In this case the cable television broadcast was held in a transitory buffer (1.2 seconds) before rebroadcast but no permanent copy was made. The court stated that relying on MAI was incorrect and that this did not constitute being in a fixed medium.
iv. Conflicting Appellate Courts
1. Compare MAI and Cartoon Network for what it means to be fixed in a tangible medium. Both cases were cert denied so there is room for arguments in both directions.
2. The Cartoon Network case is much more recent (2008 compared to 1994) and relies on a much sounder and more solid technological footing, so it is most likely the better decision and will withstand significant scrutiny.
