How is Ownership of Intellectual Property Defined and Enforced in an Inherently Copyable Medium? Venkat Balasubramani, Focal PLLC September 23, 2011

The last 5 years -- with the rise of Facebook, Twitter, and other social tools and networks -- have brought about an unprecedented level of sharing. The basic rules for ownership and infringement haven’t changed, although courts continue to grapple with new situations. Introduction

Registration is not required. Protection does not depend on providing a copyright notice or symbol. Copyrights vest automatically

17 U.S.C. § 201: Copyright typically vests in the creator. Exception: “Works made for hire” are owned by the employer who is deemed the “author” of the work. Who owns the copyright?

Copyright infringement is a strict liability offense. There’s not really a de minims use exception (but see Righthaven cases). Infringement

Courts have issued favorable fair use rulings in response to the claims of overzealous plaintiffs. Righthaven – Will Righthaven Copyright Lawsuits Change Excerpting Online? (Jeffrey D. Neuburger, Media Shift; March 3, 2011) Will Righthaven Copyright Lawsuits Change Excerpting Online? Fair use is fact-specific

A parody of an original work may constitute a permissible use if it has some critical bearing on the substance or style of the original work. There is no fair use if the defendant’s work merely uses the original to get attention or as a vehicle to promote the defendant’s work. Courts distinguish between parody and satire. Parody targets and mimics the original work to make its point (criticism or comment on the original work), while satire uses the work to criticize something else, and therefore requires more justification for use of the work. Fair use & parody/satire

15 U.S.C. § 512(c) Creates limitations on liability for copyright infringement by “online service providers” (includes website operators) if the provider meets certain eligibility criteria. This immunity is conditioned upon compliance with a “DMCA” takedown policy. Courts have recognized causes of action for wrongful takedowns. DMCA is the focus of takedown battles

How does this affect fair use (e.g., mashups, etc.)? A culture of “sharing” content has developed

The lines of permissible sharing can be grey: “BBC says sorry over Twitter riot pictures row”BBC says sorry over Twitter riot pictures row “Photographer Claims Daily Mail Stole TwitPic Photos”Photographer Claims Daily Mail Stole TwitPic Photos People can get into trouble for sharing outside the ecosystem (Agence France- Press v. Morel, Case No. 10-cv-2730 (S.D.N.Y. March 26, 2010)). A culture of “sharing” content has developed

Scraping refers to the practice of gathering information from a source through the use of online bots. Website terms of use typically prohibit this practice. Scraping is legally questionable and courts have typically sided with website owners who bring scraping claims. Scraping

Venkat

A – DMCA takedown notice B – DMCA counternotice C – Fair use factors APPENDICES

Notice from copyright owner must include: 1.A physical or electronic signature of a person authorized to act on behalf of the copyright owner; 2.Identification of the copyrighted work(s) claimed to have been infringed; 3.Identification of the material that is claimed to be infringing, and information reasonably sufficient to permit the service provider to locate the material; 4.Contact information of the complaining party; 5.A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and 6.A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Provider must take the complained of material down and notify the alleged infringer of the action. Doing so secures safe harbor from legal liability to complaining party. DMCA takedown notice

Counter-notice must include: 1.Physical or electronic signature; 2.Identification of the material that was removed, or to which access has been disabled; 3.A statement under penalty of perjury that the material was taken down mistakenly; 4.Statement consenting to jurisdiction in local federal district court; and 5.Contact information. Provider forwards the counter-notice to the original complaining party, who has 14 days to file a lawsuit. If no lawsuit is filed within 10 days, provider may restore the material. If no lawsuit if filed within 14 days, provider must restore the material. DMCA counter-notice

When can you use someone else’s work without asking permission or paying for the use? Courts look at a number of factors to determine whether a “fair use” exception applies: 1.The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. 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. 4.The effect of the use upon the potential market for or value of the copyrighted work. Fair use factors