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University of Kansas School of Law
Kautsch, M.A. (Mike)


Walgreen’s as a business model – some business models do not depend on enforcement of law, whereas others do (like the sale of CDs – piracy).
How a business model might be designed so as not to rely on copyright?
Also look at public education of copyright law and its enforcement. Public is not willing to respect it because no one understands it.

DMCA functions in a way that is at odds with the spirit of the Constitution, which provides essentially for a monopoly on copyrighted works as an incentive to create them.

First Sale Doctrine
FSD is about the right to acquire and dispose without getting permission.

Public policy arguments against a copyright owner being able to dictate a minimum price?
– Bad business – restricts participation in free market, denies public information, infringe on the owner’s property rights
– You get the monopoly, get the profit from it, then it goes to public domain. Clinching argument is about the resale. The market for the book will not be served if you dictate a price. The market – supply/demand – will dictate the price.
– Therefore, the FSD has affect here. It cannot be encumbered by some restriction. Just because the work is digitized, it becomes different according to the court. The point of the course is should it be so?

Handout 1 – computer-generated fairy tale story
Statute List:
Chapter 1: except as otherwise provided, terms mean the following
Presumption in favor of transforming collected works into various forms. In the digital world, there are some conversions of an original work (liberties with making it accessible) that the courts will say you cannot do so without permission of everyone. In this work, there is no collected work dimension.
Also take notice of compilation: combination of previous works. Work as a whole constitutes an original work.
Also take notice of computer program: is the step of the programmer here that caused the computer to pull key phrases from works to create a new work an infringement?
“Derivative work”- presumption is that you can’t have a derivative work without getting permission from all copyright owners.
“Digital transmission” – presentation of a work, like text, on a site (like viewing it), it is being transmitted?
What constitutes a tangible medium in the digital world? (RAM – Random Access Memory?)
“Literary Works” – a computer program qualifies as a literary work
“idea” as issue – is this computer program generating an idea or is it just a fact based on the computer program?
§17-102 Subject Matter of copyright in general – expression v. idea
Characteristics of original work?

Derivative Works
Q: W

threaten economic/business interest,
3. Technical step could have been to use a different body – a model’s body with his head over it. Therefore liability risk would have been maximized if they had used Demi’s body. However, if the model was used, there was nothing directly copied. Original lighting, model, etc.
One theme: not a derivative work because copyright owner would not have done it.

Trade Secrets
As P’s lawyer in a case where trade secrets have been allegedly infringed, what would you argue?
– Bad faith, economic advantage gained as a consequence, reasonable efforts made by person who claimed a trade secret to keep it secret, success of business depends on that secret, actual loss
Is this claim viable for anyone or only to employees?
– Big emphasis on impropriety (devious effort to gain secret)
– Be familiar with elements of trade secret article – routinely coupled with copyright infringement. As P, may assert trade secret law in a way that is unfaithful to the tort.

Gottschalk v. Benson
originality of expression in program?