[Copyright M. S. Overing 2003]1 Copyright Overview Michael S. Overing, Esq. 201 S. Lake Ave., Ste. 606 Pasadena, CA

2 Copyrights in General Copyright law protects “expression,” but not underlying ideas Copyright protection extends to original works of authorship that are “Fixed” in a tangible medium of expression. 102(a). Loading data into ram is deemed to be sufficiently “fixed” in a tangible medium even though not stored on a disk. MAI Sys. Corp. v. Peak Computer, Inc. (9 th Cir. 1993) 991 F.2d 511. Browsing? When a user browses the internet, a copy of the digital information is temporarily on the screen and, arguably, infringement has occurred.

3 Copyright in General cont’d Copyright protection is available for  Literary works  Musical works  Dramatic works  Pantomimes and choreography  Pictorial, graphic and sculpture works  Motion pictures  Sound recordings  Architectural works

4 Copyright Monopoly Copyright Gives the Owner a Monopoly to:  Reproduce  Prepare derivative works  Distribute copies  Perform the work publicly  Display the work publicly  Compare: WIPO Art. 8, exclusive right to communicate his creation to the public by wire or wireless means

5 Copyright Infringement For infringement, the plaintiff must establish he has (1) a valid copyright; and (2) infringement by another Cases:  No liability for license to use: express/implied. See e.g., McCoy v. Mitsuboshi Cutlery, Inc. (Fed.Cir.1995) 67 F.3d 917.  Deep Links. Kelly v. Arriba Soft Corp. (9 th Cir. 2002) 280 F.3d 934.

6 Infringement Cont’d  Frames. Wash. Post v.TotalNews, Inc. Case No (settled); Shetland Times, Ltd. v. Wills (UK) (settled); Futuredontics v. Appl’d Anagramics (no harm shown) unpublished 9 th Cir. opn. trespass).  Storm Impact, Inc. v. Software of the Month Club (ND ILL 1998) 13 F. Supp.2d 782 (shareware aggregation is copyright infringement)

7 Vicarious-Contributory Infringement of Copyrights Vicarious and contributory liability for Infringement  Napster. A&M Records, Inc. v. Napster, Inc., (9 th Cir. 2001); Fonovisa, Inc. v. Cherry Auction, Inc. (9 th Cir. 1996) 76 F. 3d 259.  Links to DeCSS. Universal City Studios, Inc. v. Reimerdes (SDNY 2000) 82 F.Supp.2d 211; 111 F.Supp.2d 294  Digital Millennium Copyright Act: transmitting, routing and connecting to infringing materials.

8 Defenses Objects not copyrightable:  Works that are not fixed in a tangible medium  Names, titles, phrases, symbols  Ideas,procedures, methods  Facts, dates, forms, common property without original authorship  Recipes, fashions, etc

9 Fair Use Section 107 lists criticism, comment, news, teaching, scholarship, and research Four-factor test:  The purpose/character of the use, including its commercial nature  The nature of the copyrighted work  The amount used in comparison with the work as a whole  The effect of the use upon the potential market for/value of the copyrighted work

10 Other Defenses Parody/First Amendment Reverse Engineering to gain access to functional aspects License Waiver/abandonment Copyright abuse First-Sale doctrine: libraries, video rentals, art galleries; but see the Record Rental Amendment of Audio Home Recording Act (personal copy)

11 Digital Control Digital Millennium Copyright Act  Gives legal protection and remedies for violating anti- circumvention measures  Exceptions for libraries and archives, law enforcement, reverse engineering, encryption research, protection of minors, personal privacy, and security testing

12 Online DMCA Issues Exceptions exist for transitory communications, system caching, and storage at direction of users (not the ISP; and provided the ISP does not have knowledge of the infringement); Search engines excepted Limited liability for ISP that complies with ‘cease & desist’ letter