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Copyright
University of California, Hastings School of Law
Depoorter, Ben W.F.

 
DEPOORTER / COPYRIGHT / FALL 2015
 
1.       Policy
a.       Purpose of Copyright:  To incentivize the creation of works that “promote the progress of science” (Art. I, § 8, cl. 8)
                                                          i.            Incentive:  Low standards for copyright protection so that it incentivizes “authors” to create works that “promote the progress of science”
1.       Artificial Monopoly Rights + Profits:  One person right to sell and distribute copyrighted work.  Can charge artificially higher profits to reward the inventor or copyright owner.  No competitive pricing. 
a.       But:  Forgone access (deadweight loss)
                                                         ii.            Conflicting Interest:  Also need to leave enough in the public domain to leave room for future creations; having too many things protected may stifle creativity / innovation
1.       “Network Goods”:  There is a social incentive for works to be shared as widely as possible after distributed.  More broad sharing = better society. 
2.       “Non-Rival Goods”:  Consumption of copyrighted item does not interfere w/ another’s consumption of it.  It’s not like eating an apple. 
3.       All Authors Borrowers:  Author artist wants to borrow stuff from others (e.g. Disney borrows stuff from old fairy tales)
a.       But:  Authors of works want to get strong copyright so that infringers of their works will be punished severely
4.       Costs of Enforcement + Administration:  For any system of rights
b.      Themes of Copyright Law
                                                          i.            New Technology:  New technology continuously creates new issues for copyright law.  Debates regarding whether new technologies (e.g. P2P file sharing) should be violation of copyright law
1.       Legal Delay:  It takes many years for courts to decide whether something is violation of copyright law.  When court is deciding, there is legal ambiguity.  When decision is made and people are told they cannot, they get upset. 
                                                         ii.            Politics:  Copyright often influenced by politics.  Not certain whether for public interest. 
c.       Theoretical Justifications
                                                          i.            Natural Law:  Rights of authors to reap the fruits of their creations, to obtain rewards for their contributions to society, and to protect the integrity of their creations as an entitlement based on their individual efforts or as extensions of their personalities
1.       TYPES – 2x:
a.       (1) Locke:  Persons have a natural right of property in their bodies.  In owning their bodies, people also own the labor of their bodies; fruits of their labor.  (USA thought). 
b.      (2) Hegel:  Property provides a means for self-actualization, for personal expression, and the dignity of the individual.  You own your own creations because personal to you.  They are your “expressions.”  (Embodied in “moral rights” legislation in Europe). 
                                                         ii.            Utilitarian Conception / Bentham (Economic Rationale):  Copyright’s primary objective is to promote creativity
1.       Constitution empowers Congress to legislate copyright and patent statutes, conferring limited monopoly on writings and inventions (Art. I, § 8, cl. 8)
2.       “[E]ncouragement of individual effort by personal gain is the best way to advance public welfare . . . .” (Mazer v. Stein (1954))
2.       Idea/Expression Dichotomy
a.       §102 does not grant copyright protection for “any idea, procedure, process, system, method of operation, concept, principle, or discovery.”
                                                          i.            Overview – Idea-Expression distinction is on a continuum.
1.       (Functional) Ideas are protected by patents whereas the expression of that idea is protected by copyright. Distinction prevents copyright from being back-door patents
2.       How do you draw the line?
a.       The continuum of abstraction.  As you continue to fill in the details of the idea, it becomes more of an expression than just an idea.
                                                                                                                i.            Example: Superhero (generic idea) -> can fly -> kryptonite -> blue & red suit -> Superman (expression)
3.       Goldstein (???) – 3 categories of unprotectable
a.       Animating Concept
b.      Functional Principles or Solutions
c.       Fundamental building blocks
                                                                                                                i.            Example:  Free Speech.  See Harper & Row (ideas are about the 1st amendment, they want to protect ideas and free speech)
4.       Social norms may be used sometimes to cover areas that copyright doesn’t protect
a.       Stand-up Comedy – no formal copyright law for protection
                                                                                                                i.            Why? –
1.       Law only protects expression, not the idea (so easily poachable)
2.       Difficult to prove – (i.e., easy to prove independent creation)
3.       Difficult to fix – stand-up / the way it’s executed is always changing
4.       Costly to pursue – cost of using a lawyer to go after joke-stealer > the value of joke itself
                                                                                                               ii.            So what remedies were created? – social norms created First-to-TV Rule: The first to tell the joke on TV is protected (the idea is protected as long as it’s more than just stock)
1.       Why?  Easy to prove.
2.       No co-authorship – first one with the idea is protected
                                                                                                            iii.            Enforcement?
1.       Badmouthing
2.       Refusing to share the stage
                                                         ii.            MERGER DOCTRINE:
1.       Possibilities:
a.       If there’s only one way to depict the idea, then the idea and expression has merged, and there is no copyright protection.
b.      If there is many ways, you get copyright over the particular expression.
2.       Baker v. Selden (1879):  2 books showing book-keeping. P claims that D copied the book. While there was copying, no infringement b/c the book was not copyrightable despite originality of the book b/c there is only one way to show this process. Copyright cannot prevent others from using the method.
a.       No Backdoor Patents:  If it’s useful and necessary, then plaintiff should’ve filed a patent application, not a copyright.
3.       See also Morrisey v. Procter Gamble:  D had the same sweepstake rules as P.  The expression of the idea (i.e.

                                                                                                                i.            Legislators responded to MAI Systems:  Said MAI Systems was a case where P was using copyright as anti-competitive instrument & owned market of servicing computers just by asserting copyright.
                                                                                                               ii.            DMCA created §117 – Clinton tried to update technology – held it not be an infringement if “owner or lessee of a machine” makes a copy of the computer program “for purposes only of maintenance or repair.”
                                                      iii.            Fixation Policy
1.       Costs to a flexible interpretation for fixation thought: easy fixation -> easy reproduction -> easy infringement
2.       Why should we have this fixation requirement at all?
a.       Evidence that the person actually made the product/work
b.      Copyright mandate requires that works promote science/arts and this can be done unless they can be stored for others to use.
3.       IP is about giving property right for contributions -> if something isn’t fixed, you’re not truly contributing
4.       EU v. American Difference in Fixation
a.       EU – as soon as audience can perceive it, it’s been fixed
b.      American – US has quid pro quo system for IP because US wants to give you something valuable in order to get property right.
                                                                                                                i.            However, unlike EU which recognizes that even something that’s perceived has value, US doesn’t care -> BURN.
5.       Fixation through the lens of…
a.       Live Performances – Fixation includes it
                                                                                                                i.            Example:  Performer performs a song that is in the public domain (can’t use derivative rights as protection), Congress said there’s still a right if it’s simultaneously being made with the transmission.
                                                                                                               ii.            But see Anti-Bootlegging Statutes – 1994 Amendment to live performances – extends protection to unfixed works too, which is broader than copyright.  Arguably, unconstitutional because it goes beyond copyright law, greater than the constitutional goals of the Copyright Act.
b.      DVR Recordings – see Cartoon Networks (See DVRs who were able to avoid copyright infringement because when DVRs “store shows” they’re buffering from offset and not a permanent recording within the box – the buffer kept overwriting.  No infringement.