Jody Blanke, Professor Computer Information Systems and Law Mercer University, Atlanta 1

Ilani Ilani, Rachael and Melissa chip in to buy a copy of Stieg Larsson’s novel, The Girl Who Played With Fire. They go to a copy center, and make two photocopies of the book. They draw straws to see who gets to keep the book and who gets stuck with the photocopy. The scheme works so well that they decide to do the same thing with their Educational Psychology textbook. 2

Copyright Law Article I, Section 8 of the Constitution To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries 3

Copyright Act of 1790 Applied to books, maps and charts Term: 14 years (renewable for 14 years) 4

Copyright Act of 1976 Applies to literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works Term: life of the author plus 50 years 5

Sonny Bono Copyright Term Extension Act of 1998 Extended the term of copyright protection to life of the author plus 70 years Added 20 years of protection to existing works still protected by copyright Eldred v. Ashcroft (2003) 6

Federal Copyright Interest Upon fixation in a tangible medium No requirement to file Owner has right to reproduce, sell, rent, lease, lend, perform, display, prepare derivative work Subject to some limitations or exceptions “Fair use” 7

Fair Use Section 107 of the Copyright Act “[T]he fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—” 8

Fair Use Factors The purpose of the use, e.g., nonprofit educational reasons The nature of the copyrighted work The amount and substantiality of the portion used in relation to the whole The effect of the use upon the potential market for or value of the work 9

Zack Zack buys a copy of the game FIFA 10 Soccer for his computer. He burns a copy of the CD containing the game. 10

Backup Copy Copyright law permits one backup copy to be made for archival purposes (Section 117 of the Copyright Act) Can you give your friend the “backup copy”? 11

License Agreement When you “buy” a piece of software, you actually purchase a license for its use Terms can vary greatly from one license to another Some permit installation on more than one machine 12

Melanie Melanie's father videotapes the movie The Lion King from a channel on public airwaves. Also, he borrows a friend's Beauty and the Beast videotape, and makes a copy of it on his dual cassette video recorder. 13

Sony Betamax Case (1984) In 1982 several movie and television studios sued Sony to prevent its manufacture and sale of the Betamax video tape recorder Mr. Rogers testified for the defense Supreme Court held that “time-shifting” was a legitimate, noninfringing fair use 14

Campbell v. Acuff-Rose Music (1994) 2 Live Crew recorded a satirical version of Roy Orbison’s “Oh, Pretty Woman”Oh, Pretty Woman Supreme Court held that it was a fair use The Court focused on the song’s “transformative” character the parody was not a substitute for the original 15

Charlene Charlene makes an audiocassette recording of a radio broadcast of a Norah Jones album. 16

Tough One Harbinger of things to come Transition from an analog to a digital world 17

Bruce Bruce buys a copy of the The Paul Simon Collection CD, and makes an audiocassette copy for his car and two CD copies, one for his upstairs CD player and one for his kitchen CD player. 18

Audio Home Recording Act of 1992 (AHRA) Music industry successfully lobbied against DATs perfect copies every time Act provides quid pro quo industry gets Serial Copy Management System and blank tape royalty scheme consumers get right to make analog or digital recordings for their private non-commercial use (immune from infringement) 19

Jaime Jaime downloads 23 Elliot Smith songs on her computer in MP3 format. She burns them onto a CD to listen to on her portable CD player and in her car. 20

Digital Technology in the 1990s Music industry rocked by: greater disk capacity compression software (MP3 files) Internet 21

RIAA v. Diamond Multimedia (1999) The RIAA alleged that the Rio MP3 violated the AHRA of 1992 The court found that the Rio was not a “digital audio recording device” The court held that the Rio’s “space-shifting” was entirely consistent with the AHRA’s main purpose – the facilitation of personal use 22

A&M Records v. Napster (2001) Enjoined Napster from facilitating the distribution of copyrighted works Rejected fair use defense not “time-shifting” or “space-shifting” New peer-to-peer networks arise and take its place, e.g., Kazaa, Limewire 23

Adam Adam buys a copy of the Inglourious Basterds DVD. He makes an extra copy of it, keeps the copy for himself, and mails the original home for his father. 24

Digital Millennium Copyright Act of 1998 Criminal prohibition against circumventing any technological measure that controls access to a copyrighted work DVDs contain such measure some CDs now contain anti-copying code 25

Stacie For Stacie's twelfth grade project on "Multimedia Today," she collects a variety of text, art, photos, audio and video from CDs, DVDs and the Web, and compiles them onto a CD. She gets an A+ on the project. 26

Stacie’s Future College? Prison? 27

Patent Law Article I, Section 8 of the Constitution To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries 28

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Protection Patents protect the underlying idea whereas copyrights protect only an expression (of an idea) e.g., Thomas Edison v. Joe Schmoe Patents last for 20 years (from date of filing) Patents protect from independent creation copyrights do not U.S. protects first to invent, not first to file 33

§ 101 Subject Matter Invention must be new and useful process machine manufacture, or composition of matter Can include “anything under the sun that is made by man.” Cannot include laws of nature, scientific principles, mathematical formulas 34

§ 102 Novelty Cannot get a patent if the inventor did not himself invent the subject matter the invention was known or used by others in the U.S. or patented or described in a printed publication anywhere, or the invention was in public use or on sale in the U.S. more than one year prior to filing 35

§ 103 Nonobviousness The differences between the invention and the prior art must not have been obvious at the time of invention to a person having ordinary skill in the art e.g., cable ties 36

Sword or Shield Patents can be used offensively or defensively may be held like a trump card e.g., Amazon v. Barnes & Noble Patent holders may get greedy e.g., Compton’s Media, British Telecom 37

Opening of the Floodgates Software patents Business method patents State Street Bank & Trust (1998) 38

Trademark Law Combination of federal and state law Authority of federal law derives from regulation of interstate commerce Authority of state law derives from regulation of intrastate commerce 39

Protects Dual Interests Protects trademark owner’s interest in brand name value and good will Protects consumers from confusion 40

Trademarks can be … words Coca Cola phrases “Have it your way” symbols sounds 41

586 Intel learned that you cannot trademark numbers themselves Pentium can be trademarked You can trademark 7-Up Three-peat 42

Generics Dixie Cups Frisbee Hi-Liter Kitty Litter Kleenex Magic Marker Ping-Pong Popsicle Scotch Tape Sheetrock TV Dinners Wiffle Ball Cellophane Corn Flakes Dry Ice Lanolin Mimeograph Monopoly Pogo Stick Raisin Bran Shredded Wheat Thermos Toll House Trampoline 43

Strength of Protection 1. Fanciful e.g., Kodak, Atari, Exxon 2. Arbitrary e.g., Apple, Amazon 3. Suggestive e.g., Compaq, Dairy Queen 4. Descriptive (must acquire a secondary meaning)e.g., Computerland, Ben & Jerrys 5. Generic e.g., aspirin, elevator 44

Trademark Infringement “Likelihood of confusion” standard Court looks at factors like similarity of goods sophistication of consumers length of time that mark has been used wrongful intent 45

Lexus/Lexis Mead Data Corp. sued Toyota in 1989 Toyota won court found little chance of confusion perspective luxury car buyer won’t come home with a legal database instead and vice versa 46

Trademark Dilution Federal Trademark Dilution Act of 1996 prior to 1996, 28 states had anti-dilution laws Under the Trademark Dilution Revision Act of 2006, must show “famous” mark – as "widely recognized by the general consuming public of the United States” “likelihood of dilution” 47

Microsoft Sandwich Shoppe Makes a great sandwich Becomes very popular “Let’s go to Microsoft” dilution by blurring But after the very unfortunate e-coli incident dilution by tarnishment 48

Lexus/Lexis Revisited Would there be infringement today? Would there be dilution today? 49