Intellectual Property Boston College Law School January 31, 2007 Copyright – Indirect Liability

Fair Use 17 U.S.C. § 107. Fair Use –“Notwithstanding the provisions of section 106, the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching …, scholarship, or research, is not an infringement of copyright….”

Fair Use 17 U.S.C. § 107. Fair Use –“In determining whether the use made of a work … is a fair use the factors to be considered shall include -- (1) the purpose and character of the use, including whether such use is of a commercial nature …; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the work.”

Campbell v. Acuff-Rose

Dr. Seuss v. Penguin Books

Disney v. Air Pirates

Rogers v. Koons

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

Hypothetical Facts –Person posts copyrighted works on mySpace page –Terms of service give mySpace right to remove docs –Copyright owner gives notice to mySpace, demands removal Questions –Chances of liability? –Advice for this case? Going forward?

Additional Examples Should liability extend to … –ISP hosting infringing content? –Auction site permitting sale of infringing stuff? –Search engine linking to infringing site? –Credit card company processing claims on site w/ infringement? –ISP enabling infringer to reach the internet?

Policy Issues Why Third Party Liability? –Facilitate enforcement –Third parties may be morally culpable –Deter third parties from harmul 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

Administrative Next Assignment –Read II.H – Digital Copyright Skip material in syllabus on Digital Copyright Legislation (565-75) Read material on Enforcement (575-99) (note: includes extra case: Kelly v. Arriba Soft).