Finishing Up Fair Use; More on Copyright Spring 2015 CS 340

Fair Use test (Universal v. Sony, 1984) Four Factors: Purpose of the new use in question Nature of the original copyrighted work Amount and substantiality of the portion copied Effect of the new use on the market for original work. Thinking Question Why are transformative, proportional, incidental, and credited uses often fair uses?

Which factor wins/loses fair use cases? Amount copied Nature of the original work Purpose of the new use Effect on the market of the original

The court could find fair use even if the copier of the work makes money. Yes No

Kelly v. Arriba Soft Corporation (9th Cir. , 2003) http://openjurist Facts: Professional photographer sues search engine operator for indexing his images. In the process, thumbnails were created and stored on the Arriba Soft’s server. Issue: Do these unauthorized copies of his images violate Kelly’s copyright? Ct analysis: 4 factor fair use analysis Holding:

Do you agree with the court’s decison in Kelly? Yes No

Galoob v. Nintendo (9th Cir, 1992) Game genie case. Users can modify existing games (extra lives, invincible char., unlimited ammo, etc.). Issue: Is this a derivative work? Ct Analysis: 4 factor fair use; is it derivative Holding:

Do you agree with the court’s decision in the Galoob case? Yes No

More on Copyright IP part 3 CS 340 Fall 2014

Suppose you buy a hardback of the novel Girl on the Train Suppose you buy a hardback of the novel Girl on the Train. Once you are finished reading it, can you legally lend, give or sell it to your friend? Yes you can legally lend it. Yes you can legally give it Yes you can legally sell it All of the above are true Only A and B are true (you may not sell it.)

Doctrine of First Sale The doctrine means that the copyright holder is not entitled to a second royalty. Works to extinguish the copyright holder’s interest in that particular copy (once that copy is sold to a consumer.) Ex. Used paperback book resale Copyright holders are still protected from unauthorized copies of their works This doctrine was created in a time (1908) when you purchased a tangible copy of intellectual property A paperback, a poster, a vinyl record

Digital Rights Management (DRM) Digital rights management (DRM): a collection of technologies that work together to ensure that copyrighted content can be only viewed by the person who purchased it Often still used on ebooks and software, trending away from this with legal music download files

Audio Home Recording Act (1992) Provides royalties be given to copyright holders, from the fees collected on the sale of devices that can copy sound files and media to store it Provides an exception to copyright holders rights: consumers can make a copy of their lawfully purchased music for personal use

RIAA v. Diamond Multimedia The Diamond RIO mp3 player case RIAA sued for an injunction (sale and mfg) against Diamond RIO as device did not prevent copyright infringement RIAA claims unlawful device as consumers could make & download illegal mp3 files and use them on the player. Ct denied injunction; affirmed “space shifting” as a fair use See http://museumofintellectualproperty.eejlaw.com/exhibits/rio.html for more information

US v. LaMacchia (1994, Massachusetts District Ct.) David LaMacchia and his electronic bulletin board Cynosure, pp. 113-4 LaMacchia charged with criminal copyright infringement The court found that the required element of “monetary or property gain” was not present. The case against LaMacchia was dismissed. In response, Congress passed the No Electronic Theft Act of 1997. NET removes the requirement of monetary profit or commercial benefit. See http://en.wikipedia.org/wiki/NET_Act

If the LaMacchia case was heard today (post NET) would the outcome would be different? Probably so Probably not

The Digital Millennium Copyright Act (1998) Two main components: Anti-circumvention clause: “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” Safe harbor clause: provides immunity for service providers for infringing activities of their uses as long as they comply with some conditions Notice and takedown

Peer to Peer Sharing Infringement Contributory infringement: occurs when an infringement committed by another person would not have happened without your help Vicarious infringement: involves an infringement that occurs in an area under your supervision, and when you should have been policing and preventing such acts Ethics in a Computing Culture

The Napster case Who is Shawn Fanning? How Napster worked Please watch this video resource: http://www.youtube.com/watch?v=CSpzW8bkkPc How Napster worked Modified peer-to-peer Revenue generation? Success of Napster: Registered users after 1 yr of operation?

Napster’s position DMCA safe harbor for search engines Many songs traded were not copyrighted & others fell under fair use Sampling Space-shifting Service was akin to the device in Sony, capable of substantial non-infringing use 4th factor, market: sales increased during Napster 1st amendment right to tell people where the content they want is.

RIAA’s arguments Napster is not a search engine That Napster materially contributed to the infringement Napster had direct interest req. First Amend challenge not relevant Plaintiff’s shown irreparable harm

We know how this comes out, but whose side do you like? Napster RIAA

RIAA met burden For contributory or vicarious infringement must show direct infringement by 3rd party. Shown 87% of files in violation That the labels control 70% of files available through Napster. RIAA showed Napster tried to remain ignorant of users’ identities. RIAA gave actual knowledge of 12000 infringing files.

MGM Studios, Inc., et. al. v. Grokster, Ltd., et. al. US S Ct 2005 Grokster used "no servers to intercept content of requests" or to "mediate the file transfers" Grokster therefore does not "know when a particular file is copied" MGM showed that "90% of files available for download on the  . . . system were copyrighted works." Grokster stipulated that most  downloads using the system involved unauthorized, copyrighted works and that use was the "primary" use. Grokster marketed its software as a "napster alternative" From ads: "#1 alternative to Napster" "[w]hen the lights went off at Napster ... where did all the users go?" Lots of facts in record showed that "principal object was use of their software to download copyrighted works." Grokster obtained ad revenue from ads that its users were exposed to MGM claims Grokster should be liable as a contributory infringer and should have vicarious liability for infringement.

Grokster cont’d Lower ct ruling: for Grokster. S. Ct issue & holding: "The question is under what circumstance the distributor of a product capable of both lawful and unlawful use is liable for acts of copyright infringement by third parties using the product.  We hold that one who distributes a device with the objective of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."

Reconciling the Sony & Grokster cases Supreme Court said that Sony case did not prohibit secondary liability for infringement for the distribution of a commercial product fair use exception in Sony granted for the time-shifting No evidence in Sony that Sony promoted unlawful use "because the VCR was capable of commercially significant non-infringing use, We held the manufacturer could not be faulted solely on the basis of distribution." Sony "barred secondary liability based on presuming or imputing intent to cause infringement solely from the design or distribution of a product capable of substantial lawful use" cannot impute intent from mere distribution need "statements or actions directed to promoting infringement"

Grokster was not fair use. Why? Was not a private use Used the whole songs Most of the work shared were creative works Hurt market for originals All of the above