COPYRIGHT LAWReview for Exam 3

Independent Creation

If two songwriters write essentially the same song without ever hearing the other’s work, and the similarities are due to coincidence, this is described as “independent creation.”

Selle v. GibbThe plaintiff claimed he wrote the

Bee Gees hit “How Deep is Your Love.”The Bee Gees submitted a tape recording that showed how their ideas, music and lyrics were combined to create the song. The court found that the Bee Gees had proved their “independent creation” of the song. Why else did the Court hold for BGs?

Selle v. Gibb

- Because Selle failed to prove access.

- Because the court did not believe Selle’s expert witness.

Infinite Copies

You can make infinite copies of a music file, if they are made from a lawfully acquired file and used solely for your own personal use.

The Berne Convention

Under the Berne Convention, distribution is NOT one of the exclusive rights of a copyright owner.

Civil v. Criminal

The vast majority of copyright infringement cases involve civil claims and are not subject to criminal penalties.

Parody

The use of a copyrighted work to criticize or make fun of the work.

Campbell v. Acuff-Rose

The Campbell v. Acuff-Rose case (“Pretty Woman”) is valuable because it is the most recent decision of the U.S. Supreme Court on parody as fair use.

Statutory Damages

If a plaintiff asks for statutory damages, he is NOT entitled to actual damages and profits.

If a plaintiff asks for actual damages and profits, he is NOT entitled to statutory damages.

The Berne ConventionTwo minimum standards required by the Berne Convention are:

1) Duration of copyright for life of the author plus 50 years; and

2) Fair use for education and news reporting.

The Berne ConventionAfter the U.S. signed the Berne Convention on March 1, 1989, the Universal Copyright Convention (“UCC”):

1) The UCC was superseded by the Berne Convention in countries that were members of both; and

2) The UCC continued to apply in countries that were signatories to the UCC, but were not signatories to the Berne Convention.

China 1992

China, one of the largest trading partners with the United States, joined the Berne Convention in 1992.

Foreign InfringementIf your copyright is infringed upon by a citizen of Germany, which is a member of the Berne Convention, you can:• Possibly sue the German citizen for copyright

infringement in the courts of the U.S. under German law.

• Sue the German citizen in Germany for copyright infringement under German Law.

WIPO

The WIPO Copyright Treaty updates the Berne Convention on technological developments.

DMCA

The DMCA

The DMCA has 3 main parts:1) Rules for webcasters;2) Liability for ISPs or OSPs; and3) Anti-piracy provisions.

Definition of an ISP

“A provider of online services or network access, or the operator of facilities therefor.”

(The Copyright Act refers to an OSP.)

Safe Harbor Provision

Makes online service providers exempt from liability for copyright infringement, under certain conditions.

3 CONDITIONS for EXEMPTION

1) No actual or constructive knowledge of infringing behavior.

2) No financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity;

3 CONDITIONS

3) When given a proper notice of infringing material being posted on its network, the OSP “responds expeditiously to remove, or disable access to, the material that is claimed to be infringing.”

When an OSP receives such a notice from a copyright holder, it is required to remove or disable access to the accused material in order to avoid being held liable itself.

INCENTIVES FOR TAKE DOWN

1) Complying with your request shields OSP from being held as a contributory or vicarious infringer if you’re right about your claim.

2) The DMCA also shields the OSP from liability to its customer if the material is held ultimately not to be infringing. “A service provider shall not be liable to any person for any claim based on the service provider’s good faith disabling of access to, or removal of, material … regardless of whether the material or activity is ultimately determined to be infringing.”

The Digital Millenium Act

The Digital Millenium Act has 3 main parts:

1) Rules for webcasters;

2) Liability for ISPs or OSPs; and

3) Anti-piracy provisions.

RIAA Enforcement Campaign

Prior to its legal campaign against file sharers, the RIAA indicated that it would refrain from suing individuals if file sharing companies would agree to clearly disclose to their users that unauthorized uploading and downloading of copyrighted works is illegal.

RIAA Lawsuits

One indisputable result of the RIAA lawsuits against file sharers was PUBLIC AWARENESS that unauthorized file sharing is illegal.

Streaming a Music File is Not a Reproduction

Uploading or downloading a file creates a copy of the file. Streaming the file to a computer only places the file in the computer’s temporary memory (RAM). It does not make a copy on the computer’s hard drive.

Infringement

Q: I have quoted an author’s writing from a published article. I gave her credit as the source of the quotation, but I did not want to go through all the “red tape” to get her permission to use the quote. Am I guilty of infringement if I publish my article without permission to use the quote? A: Yes

Copyright Alert System

Two programs to discourage online copyright infringement in the world:

“Three Strikes You’re Out” being tried in Europe

“Copyright Alert System” being tried in the U.S.

“Migitation Measure”

One of several notice steps to a subscriber to help resolve a possible copyright infringement under the Copyright Alert System.

“Greatest Challenge”

The greatest challenge to educating people about copyright law is that it is not simple.

Grokster Case

The Grokster case establishes that a company can be held liable for copyright infringement committed by users of its technology only if the company takes active steps to INDUCE the infringement.

Court Costs

When a court awards a party attorney’s fees and court costs, the court costs include: - court filing fees, - expert witness fees, and - photocopying costs.

Fair Use

Although certain uses of copyrighted works would otherwise be infringements, such uses should be allowed because of some public benefit. This is called fair use.

Fair Use

The four considerations for deciding whether a use is fair or not are found in Section 107 of the U.S. Copyright Act.

Fair Use

Fair use is NOT an affirmative right.

Criminal Copyright Infringement

“If an infringement is made willfully and for purposes of financial advantage or private commercial gain.”

WillfullyFinancial AdvantagePrivate Commercial Gain

Criminal Copyright Infringement

Criminal copyright infringement is a misdemeanor that is punishable by up to 1 year in jail, a fine of up to $100,000, or both.

NET

Q: What copyright statute applied criminal sanctions where the infringer acted without financial motivation?

Abandonment

If an author allows her work to go “out of print” due to lack of demand from consumers, does this constitute abandonment?

If not, why not?

Tolling

Tolling is a way of delaying the application of the statute of limitations based on the defendant’s efforts to hide the infringement.

High Damage AwardsFacts that motivate a court to render high statutory damage awards:1. A defendant continues the infringing conduct after

a copyright owner’s objection and request that the defendant obtain a license.

2. A defendant continues selling allegedly infringing goods after being served with process in a copyright infringement suit.

3. A defendant fails to cooperate with the plaintiff’s discovery efforts.

4. A defendant is a repeat offender.

Tolling

Tolling is a way of delaying the application of the statute of limitations based on the defendant’s efforts to hide the infringement.