1. Class 21 Copyright, Autumn, 2016 Copyright Misuse
11/10/2018
Class 21 Copyright, Autumn, Copyright Misuse
Randal C. Picker
James Parker Hall Distinguished Service Professor of Law
Ludwig & Hilde Wolf Teaching Scholar
The Law School
The University of Chicago

2. Selling the Book I Hypo Any copyright issues?
11/10/2018
Selling the Book I
Hypo
Author A offers to sell copy of her book to Buyer for $20
Any copyright issues?
November 10, 2018

3. Selling the Book II Hypo
11/10/2018
Selling the Book II
Hypo
Author A offers to sell copy of her book to Buyer for $15 and a promise from the Buyer that Buyer will never read any books by Author B
Any copyright issues? Does it matter whether Buyer had any independent interest in Author B?
November 10, 2018

4. November 10, 2018

5. AMA CPT and Copyright What can the AMA claim copyright in?
The medical procedures?
The descriptions of those procedures?
The five digit codes for those procedures?
The compilation of all or some of that?
November 10, 2018

6. Selling the AMA Code Facts
11/10/2018
Selling the AMA Code
Facts
Gov’t pays for lots of medical care; wants to simplify paperwork
Creates Health Care Financing Admin to do that
HCFA decides to license a coding system created by the AMA, the Physician’s Current Procedural Terminology (CPT)
November 10, 2018

7. Selling the AMA Code I Hypo Any copyright issues?
11/10/2018
Selling the AMA Code I
Hypo
AMA offers the gov’t a license for a one-time fee of $5 million
Any copyright issues?
November 10, 2018

8. Selling the AMA Code II Hypo Any copyright issues?
11/10/2018
Selling the AMA Code II
Hypo
AMA offers the gov’t two different licenses:
$5 million commitment-free license
Use it as much or as little as you want to
$2 million exclusive-use license
Gov’t agrees to use the AMA CPT exclusively
Any copyright issues?
November 10, 2018

9. Selling the AMA Code III
11/10/2018
Selling the AMA Code III
Hypo
Two licenses as before
Gov’t declines to make promise of exclusivity
Buys $5 million license and then uses AMA CPT exclusively
Any copyright issues?
November 10, 2018

10. Selling the AMA Code IV Hypo
11/10/2018
Selling the AMA Code IV
Hypo
AMA offers gov’t a royalty-free license but the gov’t must promise to use the CPT whenever possible
Any copyright issues? Different than Practice Management?
November 10, 2018

11. Selling the AMA Code V Actual Case Copyright issues?
11/10/2018
Selling the AMA Code V
Actual Case
AMA offers royalty-free license, gov’t promises to use CPT whenever possible and promises not to use any other procedure nomenclature
Copyright issues?
November 10, 2018

12. Understanding the Court
11/10/2018
Understanding the Court
What Does this Mean?
“What offends the copyright misuse doctrine is not HCFA’s decision to use the AMA’s coding system exclusively, but the limitation imposed by the AMA licensing agreement on HCFA’s rights to decide whether or not to use other forms as well.”
November 10, 2018

13. Understanding the Court
11/10/2018
Understanding the Court
What Does this Mean?
“Conditioning the license on HCFA’s promise not to use competitors’ products constituted a misuse of the copyright by the AMA.”
November 10, 2018

14. Understanding the Court
11/10/2018
Understanding the Court
If this Makes Sense
Seems to mean that the gov’t can decide to use the CPT exclusively but can’t commit to doing so upfront
AMA’s cash price then can’t reflect commitment gov’t can’t make, so AMA should charge more
November 10, 2018

15. What is Our Focus? Do we care about … Blocked competitors of the AMA?
11/10/2018
What is Our Focus?
Do we care about …
Blocked competitors of the AMA?
Everyone else who will have to use the CPT who doesn’t have a royalty free license?
November 10, 2018

16. Causation Contractual Exclusivity vs. De Facto Exclusivity
11/10/2018
Causation
Contractual Exclusivity vs. De Facto Exclusivity
What do we think is the link between the exclusivity promise and the decision by the gov’t t use only one coding system?
If this is right, how should the AMA respond to this case?
November 10, 2018

17. Disney Licensing Agreement in Video Pipeline
Limitation on Use
“The Website in which the Trailers are used may not be derogatory to or critical of the entertainment industry or of [Disney] (and its officers, directors, agents, employees, affiliates, divisions and subsidiaries) or of any motion picture produced or distributed by [Disney] ... [or] of the materials from
November 10, 2018

18. Disney Licensing Agreement in Video Pipeline
Limitation on Use
“which the Trailers were taken or of any person involved with the production of the Underlying Works. Any breach of this paragraph will render this license null and void and Licensee will be liable to all parties concerned for defamation and copyright infringement, as well as breach of contract....”
November 10, 2018

19. Situating WIREdata Hypo: Pencil Access
11/10/2018
Situating WIREdata
Hypo: Pencil Access
AT sells pencils to Wisconsin municipalities
The municipalities used those pencils to collect tax data; data are part of the public domain
AT insists as condition of sale of pencils that munis not distribute the tax data
Copyright issues? Pencil misuse?
November 10, 2018

20. 11/10/2018
Answer
Answer
Not copyright misuse
November 10, 2018

21. Situating WIREdata Hypo: Private Collection
11/10/2018
Situating WIREdata
Hypo: Private Collection
Private party collects factual data on houses in a community and stores data on a CD
Licenses use of that data for a fee by delivering a copy of CD to licensees
License controls extent of allowed use of data on the CD
November 10, 2018

22. Situating WIREdata Copyright issues? Contract issues?
11/10/2018
Situating WIREdata
Copyright issues? Contract issues?
November 10, 2018

23. Answer Tomorrow This is—or is close to—ProCD
11/10/2018
Answer
Tomorrow
This is—or is close to—ProCD
But not a copyright misuse case
November 10, 2018

24. Situating WIREdata Hypo: Paper Instead of CD
11/10/2018
Situating WIREdata
Hypo: Paper Instead of CD
Same facts, but instead of CD, private party prints books
No shrinkwrap licenses, but the copyright notice page in the book contains the following legend:
November 10, 2018

25. 11/10/2018
Situating WIREdata
“All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher.”
November 10, 2018

26. Situating WIREdata Copyright issues? Contract issues?
11/10/2018
Situating WIREdata
Sam buys a copy of the book and inputs the data from it into a database
Copyright issues? Contract issues?
November 10, 2018

27. Answer Seen It Before, Sort Of
11/10/2018
Answer
Seen It Before, Sort Of
Saw restrictive legend of this sort in Bobbs-Merrill
Sup Ct declined to implement it on its own terms through copyright law; case didn’t resolve effect through contract law
November 10, 2018

28. 11/10/2018
Answer
Should we be concerned about “media” neutrality:
If legend in book can’t be enforced but shrinkwrap on database can, more content will be in databases, less of it in books
Would anything change if the book contained federal judicial opinions rather than data?
November 10, 2018