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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: What did the computer programmer actually take from the original author to show infringement?
A: Took the key phrases and arranged them (Feist – facts/research not copyrightable – no infringement because selection/structure were not original. If the original author is constrained, there can’t be infringement)
Q: Arrangement/structure/style. Is an author’s style an expression that is copyrightable?
A: The process/method are not subject to copyright so this an argument against allowing a style to be copyrighted.
P Arg: the way the novel is written (arrangement/structure of characters and how they interact) and distributed is being copied and there is infringement
** Always look for degree of discretion that the author has

Infringement: (1) whether the alleged infringer had access to the original work and (2) whether the second work has substantial similarity to the work that was accessed.
Was the original work truly original expression?
Inverse Ratio Rule: Historically, if access was ample to the alleged infringer, then less evidence is needed on whether the allegedly infringing work is substantially similar.

Q: Difference between derivative and original works?
A: Demi Moore v. Leslie Nielsen Naked Gun 33 1/3 poster? Photog sued the studio. Said lots of access, don’t need much evidence of substantial similarity as it is clear through the photo.
D for Studio: 1. Parody – the parody is not of the photo; it is mocking the American culture on a higher level than Demi or Vanity Fair.
2. Fair use that does not defeat the purpose of copyright because the photo is not intended to 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?
– Is the potential for the courts to find there is something so common and utilitarian as a matter of nature that you can’t have protection under either patent or copyright law? What is it that the courts agree can’t be protected by law? How do you articulate it?
– Issue in case: comp program that converted binary to decimal denied patent
– To what extent does the princess and the frog story have a fixed translation as in binary/decimal in the Gottschalk case?
o Defense would say to run the program again – does randomization make it copyrightable?
Abstraction/Filtration/Comparison Test
o Abstraction/filtration/comparison test –
§ Abstraction – dissect the work to see how much is an abstraction – which part is really the idea? (Example: search Google for “making paper hats”)
· First step: what is the idea? In this case, is the hat the idea? To what extent is the manifestation of the hat in the physical world an infringement on the idea?
o Princess and frog – what is abstract in this story? Idea is the story but cannot be told without common elements of an evil doer and characters interacting
· How is the making of the hat not an infringement?
o Only so many ways to make a paper hat, instructions have been made available, implicit license once it is in a book/online. No infringement if the derivative is nothing more than the idea or is a derivative of an idea that is totally bound up in the expression that is too tight to get out
§ Distinction between process or method and original expression of it.

How do you apply the test so that you confidently arrive at the idea that there was a merger and no infringement?
– In the case of the novel, when the court dissects it, the constituent parts are divided into plot, scenes, dialogues, characters, etc.
– When looking for abstraction, look for words that make it inseparable from the expression of the idea. Manifested in expressive form that is unique? If you define the genre tightly enough, then you lose the genre of romance because nothing would be copyrightable as there are numerous common elements.
– Abstraction: effort to find words that express the difference.
– Filtration: separating protectable expression. How do you determine what is the idea and what flows naturally/inevitably from it? Those are not copyrightable. The expression portion, however, is. At what point is the style in that genre inevitable?
– Comparison: To what extent when do you compare the two works does the original work have substantially similar parts? Unique dialogue? If it is the same dialogue in another work or something substantially certain, you have something to base a case on.

Difference between “Idea” and “process/method” which can’t be copyrighted and “expression,” which can. What is the dividing line? Difficult problem, especially w/ comp programs.
– Principle that can be applied to show when ideas and expression have merged/become indivisible?
o Paper hats, piano roll/perforated paper in the player piano, genre of a novel
o Scale: the harder it is to express the idea in more than one way, the more likely you are to have something to copyright. Depends on how you define the idea.
§ Scenes a faire – commonly employed characteristics of certain stories (expression is unique when it differs from scenes a faire)
– Is it fair to say that object code in a computer program is equivalent to instructions?
o Code that guides the method of computing. Code produced by compiler
– Source code?
o Consists of instructions – human readable

Player piano?
Air goes through holes in the perforated player that strikes a chord within the piano to play a particular note. Is the composer’s tune equivalent to a program?
– Is the perforated roll equivalent to machine language, object code or source code?
o The specific paper roll is copyrightable? Maybe the program as it operates within a computer is the same kind of thing/similar structure as piano roll.

Gates case (Apple computer case – 1984; Whalen Associates v. Jaslow Dental Lab – 1986; Atari Games v. Nintendo – 1990; Computer Ass. Int’l v. Alti – 1992; Sega v. Accolade – 1992; Gates Rubber)

Reverse Engineering
Interoperability – in the market place, the rev

nology. PRO is occasionally revised but is sold on the open market through retailers, mail order and is sold to other manufacturers. Come in a variety of packages but all discs make clear it is copyrighted. There is also a license agreement, stating that by using any of the discs you expressly agree to the license terms. A software developer buys the blank disc with the protection on it and then puts his software on it. The program is then embedded so that it cannot be liberated from the disc.

Q – RIGHT program that allows people to make copies of things on a floppy disc. It has a KEY feature that allows a user of Q’s discs to copy from PRO discs.
KEY feature was developed in a three-step process. First, Q analyzed the PRO program using programs on the open market – IBM’s debugging program and a few others. Figured out how PRO worked for the most part. Second, Q disassembled/did a decompilation in order to translate the code into understandable code to duplicate the process of PRO (reverse engineering). Q became so knowledgeable about how it all worked, they made their own program designed to accomplish reverse engineering for the other programs.
Clearly there was substantial similarity between Q’s code and V’s. Also, Q’s product key had uses other than overcoming copy protection like PRO.

– How can V win?
o Intention was not to develop interoperable programs. Should result in liability.
o Truly a competing program.
o They violated the broad license terms which prohibited what was done. (theme)
o Improper means of recovering a trade secret. (Secrecy was protected)
o Q’s product is not an authorized derivative work.
o Title 17 Ch. 1 117 – computer program
– How can Q win?
o Stock attack against derivative work argument – concept depends on assumption or proof of substantial similarity.
o Start id-ing enough differences between the two to show that the bulk of the two programs was different. (Monopoly argument, license was unconscionable)
o BEST argument: KEY was just a peripheral use – REMEMBER: substantial non-infringing uses for the product that is at issue. If those outweigh the infringing ones, then it is ok. Like a pencil with eraser: so many non-infringing uses.

Handout 2/13
Handout 2/14
§1201(a)(1)(A) – Ambiguity: How is it effective if it is circumvented? And is it not effective just because five percent of the population can circumvent it?
(c) If there has been an effect on public use, every three years there is a chance to go in and soften the impact of the rule.
Copying/distributing within the household should be ok
Restricting discussion of the program in the license:
Public Policy Arg: Freedom of speech to post what you want online. Maximize y making it political speech. Post it as a form of protest against the DMCA law.

Deferential – courts throw the burden on Congress to make clear what law means; otherwise, the courts impose the most natural meaning and do not engage in interpretation. Also stems from the court’s reluctance to be activists .

Section 106 – exclusive rights
V v. Q under the DMCA:
Argument for Q: §117 shows the law’s value for interoperability, for the value on preserving the freedom for the owner of a work to use it, *value on having archival copies. A privilege for the use of those programs to create a backup copy. There is an idea of privilege behind 117 – therefore, Ds would like this privilege to influence 1201. Interpreting 1201 – Q (as D) wants P to have to prove that there was evil intent to circumvent the copyright holder. If the marketing statement for RAMKey stated that it was for archival purposes, it would help Q to show non-evil intent.
§117 is a strong declaration for the freedom to use digital works.
Argument for V: Act would discriminate against people who don’t have technological