COPYRIGHT LAW 2002 Columbus School of Law The Catholic University of America Prof. Fischer April 3, 2002

GOALS FOR THIS CLASS To learn more about infringement of the right of reproduction

WRAP-UP POINTS: INFRINGEMENT To sustain an action for infringement, copyright owner must prove 1. Ownership of valid copyright 2. Copying by D 3. Unlawful Appropriation by D

WRAP-UP POINTS: INFRINGEMENT To show ownership of a valid copyright, P must show originality, copyrightable subject matter, and compliance with statutory formalities If P did not author work, he must show proper transfer documents or show a relationship that supports claim for copyright

WRAP-UP POINTS: INFRINGEMENT To prove copying, P must usually show access and similarity It’s rare to have direct evidence of copying Access can be inferred if on the facts D had a reasonable opportunity to view or copy the work

HERBERT ROSENTHAL v. KALPAKIAN (9th Cir. 1971)

MERGER DOCTRINE Herbert Rosenthal Jewelry Corp. v. Kalpakian (2d Cir. 1971) What is the merger doctrine? What is its relationship to infringement? How did it apply in this case?

NICHOLS v. UNIVERSAL PICTURES (2d Cir. 1930) Did the film “The Cohens and the Kellys” infringe the play “Abie’s Irish Rose”? NB. Character test

SHELDON V. MGM (1936) Does the motion picture “Letty Lynton”infringe the play “Dishonored Lady”? How would you distinguish this case from Nichols? Note the judge is the same: Learned Hand

SHELDON V. MGM (1936) Does the motion picture “Letty Lynton”infringe the play “Dishonored Lady”? How would you distinguish this case from Nichols? Note the judge is the same: Learned Hand

“TOTAL CONCEPT AND FEEL” What is meant by this? See Roth Greeting Cards v. United Card Co.

COMPUTER SOFTWARE To what extent is computer software protectable under copyright law?

COPYRIGHTABILITY OF COMPUTER SOFTWARE Computer software, by its nature as written work intended to serve utilitarian purposes, doesn’t fit in well with our existing IP system. In 1974 Congress established National Commission on New Technological Uses of Copyrighted Works (CONTU) to study implications of new technologies and recommend revisions to IP law.

CONTU Report in 1978 that IP in computer software should be protected under copyright law - Congress adds definition of “computer program” in section 101. What about the fact that the Copyright Act provides that copyright cannot protect “any idea, procedure, process, system, method of operation, concept, principle or discovery” (17 U.S.C. section 102(b)) Was this a good judgment call?

IDEA/EXPRESSION DICHOTOMY CONTU recognized it was impossible in 1978 to establish precise line between copyrightable expression of computer programs and uncopyrightable processes they implement.

EARLY CASES IN 1980s Conflict between hardware manufacturers Focus on to what extent literal copying of computer software violates copyright law Apple v. Franklin (3d Cir. 1983) clearly establishes that an operating system is copyrightable and that exact copying of computer code infringes programmer’s copyright in the code. No cases since have held otherwise

SECOND GENERATION SOFTWARE CASES To what extent can competitors copy nonliteral elements, such as program’s underlying structure, sequence, or organization. How far does copyright protection extent beyond the literal elements of a work?

NON-LITERAL COPYING Should non-literal copying of computer software be protected under copyright law? What are the economic arguments in favor and against this? What about the jurisprudential arguments?

Whelan Associates v. Jaslow Dental Laboratory, Inc. (3d Cir. 1987) Involves computer program for operation of dental lab First case about nonliteral copying of computer software Issue: How do you separate idea from expression? What was the Whelan rule for doing this?

Whelan Associates v. Jaslow Dental Laboratory, Inc. (3d Cir. 1987) Third Circuit said that idea of program was its purpose or function - so idea was efficient management of a dental lab. Treated computer programs like literary works Heavily criticized Do you think it is a sensible rule?

Computer Associates Int’l v. Altai, Inc. (2d Cir. 1992) Was there access? Did the Court follow Whelan? Why or why not?

Computer Associates Int’l v. Altai, Inc. (2d Cir. 1992) What was the correct test for nonliteral copying of computer software? Is this a good test? Should we follow it for novels? Does it adequately reflect the fact that copyright protection exists for selection and arrangement? How would the Whelan case have come out if the Altai approach was applied?