1. Copyright V Class Notes: February 10, 2003 Law 507 | Intellectual Property | Spring 2003 Professor Wagner

2. 2/10/032Law 507 | Spring 2003 Today’s Agenda 1.Fair use: Parody 2.The DMCA

3. 2/10/033Law 507 | Spring 2003 Fair Use: Parody Campbell v Acuff-Rose (1994) Purpose/nature of use: “transformative” oWhy is transformative use important? Nature of the work: “not much help” oWhy is the nature of the work unhelpful? Amount used: parody will use the work substantially Effect on the market: no presumption of market harm for parody Is 2 Live Crew’s song really a parody? What is a satire? Why is it treated differently than parody? (See, The Cat NOT in the Hat, p. 492)

4. 2/10/034Law 507 | Spring 2003 The DMCA 17 U.S.C. § 1201(a) – Prohibitions (1)‘Circumvention’ of “a technological measure that effectively controls access to a work protected under this title” (2) “[M]anufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that-” (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title; (B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or (C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

5. 2/10/035Law 507 | Spring 2003 The DMCA 17 U.S.C. § 1201(c-h) – Exceptions (1)“ Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.” (2)Exceptions for a)Non-profits, libraries, educational institutions… b)Law Enforcement, Intelligence, and Other Government Activities… c)Encryption Research… d)Goods/services that protect minors… e)Protection of personally-identifiable-information… f)Security testing…

6. 2/10/036Law 507 | Spring 2003 The DMCA Universal v Remierdes (SDNY 2000) What does the ‘encryption’ on DVDs accomplish? How was DeCSS created? (What does this suggest about ‘digital rights management’ (DRM) systems?) In what way (ways?) did 2600 ‘traffic’ in circumvention technology? Is there a meaningful distinction between: oPosting the downloadable file on your server oLinking to the file, on another’s server oLinking to another’s page, where the file is available oProviding the URL of pages where the file is available oSuggesting appropriate search terms to find the file

7. 2/10/037Law 507 | Spring 2003 The DMCA Universal v Remierdes (SDNY 2000) Why does Sony not control this case? (Aren’t there substantial uses for DeCSS that are not contrary to the anti-circumvention provisions?) oCouldn’t many DeCSS users simply be attempting to exercise fair use rights? (e.g., Sony) oWhat does the court say about the status of Sony? The Court determines that fair use is not an exception to the DMCA… oAs a matter of statutory construction, is this correct? oIf it is correct, why would Congress do this?

8. 2/10/038Law 507 | Spring 2003 The DMCA Policy The DMCA introduces a new form of protection to copyright: the right to prevent circumvention of DRMs, rather than an underlying shift in rights… Consider the pros and cons of this move… Effects on fair use, etc. Effects on the market for © goods Effects on incentives to create/distribute © goods Potential dangers

9. 2/10/039Law 507 | Spring 2003 The DMCA Policy Unintended Consequences(?) Which of these concerns is most salient? oChilling free expression oRetarding scientific research oEliminating fair use oReducing competition

10. 2/10/0310Law 507 | Spring 2003 The DMCA Policy Unintended Consequences Which of these concerns is most salient? oChilling free expression –Was 2600’s ‘free speech’ chilled in Remierdes? –Was Slashdot’s speech chilled by Microsoft?

11. 2/10/0311Law 507 | Spring 2003 The DMCA Policy Unintended Consequences Which of these concerns is most salient? oChilling free expression oRetarding scientific research –What do you make of the fact that the ‘threats’ to research have been shortlived? –Do you think scientists should stop publishing security research?

12. 2/10/0312Law 507 | Spring 2003 The DMCA Policy Unintended Consequences Which of these concerns is most salient? oChilling free expression oRetarding scientific research oEliminating fair use –How serious is the threat to fair use? –Do the benefits of the DMCA (or the harms of no DMCA) outweigh the loss to fair use?

13. 2/10/0313Law 507 | Spring 2003 The DMCA Policy Unintended Consequences Which of these concerns is most salient? oChilling free expression oRetarding scientific research oEliminating fair use oReducing competition –Do any of these examples “reduce competition”? »Lexmark toner cartridges »Abio voice patterns »‘mod chips’

14. 2/10/0314Law 507 | Spring 2003 DMCA Policy 1.What are the ‘best’ arguments in favor of the DMCA? 2.Do they overcome the potential downsides? 3.How could the law be improved?

15. 2/10/0315Law 507 | Spring 2003 Next Class Copyright VI Copyright and Internet Services