Intellectual Property Boston College Law School February 4, 2009 Copyright – Indirect, Digital Issues

Defenses Fair Use Independent Creation Consent or License (Express or Implied) Statute of Limitations Inequitable Conduct Copyright Misuse First Amendment

Third Party Liability Contributory Liability –1. Knowledge of infringing activity –2. Induce, causes, or materially contributes Vicarious Liability –1. Right and ability to supervise –2. Direct financial interest in infringing activity Inducement –1. Intention to induce infringement –2. Affirmative steps to facilitate infringement

Third Party Liability Historical Contexts –Swap Meets –Dance Halls –Landlords Modern Equivalents –On-line Auctions (e.g. E-Bay) –Web Hosting (e.g. Facebook) –Internet Search (e.g. Google) –Credit Card Companies (e.g. Visa)

Policy Issues Why Third Party Liability? –Facilitate enforcement –Third parties may be morally culpable –Deter third parties from harmful activity Why Not Third Party Liability? –Imposes costs on third parties (e.g. monitoring) –Not always fair to impose burden –Not always efficient for third parties to enforce

Sony v. Universal “capable of substantial non-infringing uses”

Hypo: Napster

Napster Technology Napster File Names, IP Addresses MP3s

Questions How would you analyze this under the doctrines for third party liability? –Contributory liability –Vicarious liability How would you apply Sony to this case? What is the correct result?

Open Questions How much is “substantial”? What do we mean by “capable”? Is this the right standard? Is there an obligation to design to minimize infringement?

Digital Copyright How is digital technology different? –Copying costs near zero –Distribution costs near zero –Copies are perfect –Search costs are low

Digital Copyright Legislative Changes –Audio Home Recording Act (1992) –DPRSRA (1995) –No Electronic Theft Act (1997) –Digital Millennium Copyright Act (1998)

AHRA (1992) Audio Home Recording Act (AHRA) –Response to introduction of DAT in 1980s –Basic provisions Manufacturers can sell digital recording devices Consumers can make personal, noncommercial copies Devices must include serial copy prevention technology Royalty charged on devices and recording media –Does not cover Computer hard drives or CD burners Blank CDs MP3 Players (Diamond Multimedia case)

DPRSRA (1995) Digital Performance of Sound Recordings –New right given to sound recordings –Covers digital performances of such E.g. cable radio, direct satellite radio, internet radio Where digital radio received via subscription –Rights depend on type of performance Where interactively on-demand, must get license Where non-interactive broadcast, compulsory license –Recall: must also get musical work rights, too

NET (1997) No Electronic Theft Act (1997) –Increased scope of criminal sanctions –Response to LaMacchia case Formerly, required commercial advantage Case where uploaded software for free; no liablity –Change so that based on retail value of works More than $1,000 of copyrighted works Within 180 day period

DMCA (1998) Digital Millennium Copyright Act –Technological protection mechanisms Anti-circumvention provisions Anti-device provisions –Copyright management information –ISP liability provisions

DMCA (1998) Anti-circumvention provisions –Separate liability for acts of circumvention Independent of copyright infringement List of narrow defenses, but no fair use defense –Applies to access and copy control technology –Copyright Office can exempt certain works Anti-trafficking provisions –Bars distribution of circumvention technologies –Where primary purpose is to facilitate infringement

DMCA (1998) ISP Provisions –Safe harbor for transmission and caching –Safe harbor for hosting content Notice and take-down procedure Immune from direct and contributory suits –Subpoena power

A&M Records v. Napster

Napster Technology Napster File Names, IP Addresses MP3s

Grokster

Peer to Peer Technology Distributes Software and Updates Serves Ads All Files, File Names, IP Addresses

Open Issues What is the Sony standard? –Capable of substantial noninfringing uses? –Actual evidence of such uses? Does Sony apply to on-line services? Is Sony the right standard?

Image Search

Google Book Search

Administrative For Monday –Start III. Trade Secret Read A, B, C.1 For Tuesday –Finish III. Trade Secret