Copyrights in the Information Age

Context

Copyrights are designed to protect Intellectual property (IP). IP is a product of the human intellect. Different from physical property. If you are a carpenter and you make a chair you have lots of control over how the chair is used. Without copyright law, if you are a musician and you write a composition you don't have much control over your work. For this reason we have copyright law.

• Special problem in digital age: Networks give access to more information. Easy to copy. Copies are perfect.
• Purpose for copyright law (taken from the constitution): "to promote science and the useful arts, by securing for limited times to authors... the exclusive right to their ... writings".
• Courts are showing a willingness to interpret copyright laws the same for works in cyberspace as works in the "real world"
• Can existing copyright laws be applied to online material? So far, yes.
• A copyright gives the owner exclusive right to copy the work.
• Protects the original expression of an idea once it is put in a tangible form. Not the idea. Doesn't cover facts or short phrases. (Not the same as trademark law or patents.)
• Tangible form includes bits in a computer. It doesn't have to be written down on a physical medium.
• A copyright protects the expression of an idea, not the idea itself. (A patent can be used to protect the idea itself. It takes a looong time to get a patent.
• Facts can't be copyrighted. Even if it takes a lot of effort and money to discover the facts. The expression of facts is covered.
• Specifically, "a copyright gives the owner of a work of expression the exclusive right to copy, distribute, display and perform the expression, and to prepare alterations (derivative works) based on it."
• A copyright is collection rights which can be given away, sold, leased, or licensed.
• As soon as it is in a tangible form it is copyrighted. No need to register it with the government. (There are advantages to registering it.)
  • If you don't register three months after publication or before infringement,
    • No statutory damages (money you get according to the law) may be awarded
    • You can't recover court costs or attorney's fees
    • No criminal penalties or fines can be assessed.
  • It costs $20 to register a copyright.
• No need to include the © symbol. (There are advantages to having the © symbol.)
• Can you make a copy of a CD for private use? Can you give copies to immediate family member? (yes, yes)
• Are news group postings copyrighted? (yes)
• Fair use doctrine: works can be used for non-commercial reasons. Fair use includes criticism, comment, news reporting, teaching, scholarship and research. Depends how much you copy, if the work is already published, and purpose of copying. Parody is also covered under fair use. Use shouldn't interfere with owner's ability to earn revenue from the work
• You may also use a "fair use" defense if
  • You copied only a small part of the original
  • The original was mostly fact
  • You copied an insignificant part
  • You added a lot of your own work
• There is no definitive test to determine if the fair use doctrine applies. If you are charged you may claim fair use.
• Test for liability: how much of the work was copied, does the work fall under any of the fair use exceptions, did the violation restrict the authors potential for earning money based on the work?
• Click here to find out when copyrights expire.
• "work made for hire" doctrine. Employer may own copyright. Anything you create within the scope of your work is owned by your employer.
• What if two people simultaneously create the same work? (Both own copyrights.)
• You have violated copyright law if 1) the work is copyrighted, 2) you made a copy, 3) and you didn't have expressed or implied permission and the work wasn't covered under fair use doctrine.
• Your actions may grant an implied license to copy. For example, if you post a message to a news group you have given an implied license to copy the post in a response. (It all depends on what a reasonable person would assume.) (Letter to editor example.)
• Implied license to copy - Some works have an implied license to copy. If a reasonable person would assume it's OK to copy the work, it probably OK to copy. For example, if I post a message to an electronic bulletin board, I should expect that others may copy my message in subsequent messages.
• Copyright abandonment requires written notice by copyright holder. Posting to a news group is not abandonment.
• Implied licenses can always be expressively revoked.
• What if a third party (say hacker) posts a copyrighted program on the Internet. Does that give others the right to copy it? No.
• Is a service provider such as AOL liable when someone uses their computers to violate a copyright? Yes and no. There have been two court cases and it has gone both ways. First, outside of the online environment it's clear that you can be liable for contributory infringement. For example, if I submit an article to a journal and claim it to be my own when in fact it was the copyrighted work of someone else, the publisher of the journal can be held liable. In the first online case AOL was held liable for infringements on its computers even though it didn't know or could be expected to know copying was taking place. In the second case, it was reasoned that the service provider isn't making a copy. It is only acting on the instructions of a person. In the second case a service provide could be held liable only if it knew or had reason to know.
• What are the major provisions of the Digital Millennium Copyright Act.
  • Update to copyright law to account for growth of new recording and distribution devices.
  • outlaws technologies that can crack copyright-protection devices
  • limits liability of network access providers

• Does personal email fall under fair use or implied license? (No)
• If you send an email to a friend, is it copyrighted? (Yes)
• Computer Software Copyright Act of 1980
  • What is protected?
    • Object code
    • Source code
    • Code in ROM
    • Look and feel of computer screens
    • Structure and logic. Software is not exactly like the written word. You can violate the copyright on a computer program if you copy the overall structure and logic of the program. In software the structure and logic of a program is part of the "expression" of the program.

Napster

• What is contributory infringement and vicarious liability?
  • Notice that the UMKC homepage has a link you can follow to report copyright infringements on its server. UMKC is an ISP with limited liability according to the DMCA.
  • Should UMKC block access to Napster? Does the University have the right and ability to control access to Napster? Does the University derive a direct financial benefit from student infringements? If the answer is (yes, yes) the University has to block access according to the DMCA.
• Napster cannot benefit from the DMCA safe harbor provisions as a "mere conduit" for data transmitted by others, since the transmitted data does not actually pass through Napster's system.
• What is "space-shifting"?
• What is "time-shifting"?
• Can Napster use the Betamax defense? Are there substantial legal uses?
  • Napster maintains an ongoing relationship with its customers as a service provider.
• Can Napster use the Audio Home Recording Act of 1992 (AHRA)?
  • Specifically defined, categories of digital audio copying
  • Serial copyright management system which prevents all but first generation copies
  • As long as the copying is done for noncommericial use, the AHRA gives consumers immunity from suit for all analog music copying, and for digital music copying with AHRA covered devices.

Feist Publications, Inc. v. Rural Telephone Service Company, Inc. Rural, a small phone company in northwest Kansas, published a phone book. Rural refused to license its white pages listings to Feist. Feist copied the contents of the phone book for their own and Rural sued asserting their copyright protection. Rural won in District course and the Court of Appeals. The Supreme Course disagreed. A factual compilation is protected only if, and only to the extent that, its author displays intellectual creativity either in the selection of the facts contained or in their arrangement as presented.

Feist Decision - Important Supreme Court decision in 1991. Issues are topical today with the popularity of the Internet and factual databases (for example, GIS--Geographic Information Systems, people search, etc). Under Feist, a factual compilation is protected only if, and only to the extent that, its author displays intellectual creativity either in the selection of the facts contained or in their arrangement as presented. This is a potential problem because it removes some of the incentive to spend the time and money it takes to create large databases of facts.

For protection under copyright law only a small amount of creativity is required. Most works qualify "no matter how crude, humble or obvious" they might be.

Resources

http://www.janisian.com/article-internet_debacle.html

Here is what Janis Ian say on her site about music downloads

http://www.Loundy.com/E-LAW/E-Law4-full.html

-long but good resource on priv and copyrights

http://www.eff.org/pub/CAF/law/ip-primer

http://www.iupui.edu/%7Ecopyinfo/highered98.html

- Good article on fair use and example court cases.

http://www.richmond.edu/~jolt/v4i2/cavazos.html

- Academic article

http://fairuse.stanford.edu/

- Everything you wanted to know about fair use

http://www.free-expression.org/project/copyright.html -New.

http://homepage.seas.upenn.edu/~cpage/cis590/

http://www.templetons.com/brad/copymyths.html

http://www.arts-online.com/writing/WO000001/miladmin/icl_faq.htm

http://www.stanford.edu/~mradin/downloads/ip_notes.txt

http://www.nolo.com/PCTM/toc.html - Nice Site