--- Copyright Law --Part 1: Theory and Copyrightable Subject Matter - Became an issue with invention of printing

press. - Copyright protection, like patent protection, is governed exclusively by federal statute. 17 USC 101. The current Copyright Act was passed in 1976. - 106 grants copyright owner limited rights to exclude from reproducing, publicly performing, displaying / distributing, or creating derivative works. A. Theoretical Underpinnings Like patent law, expressly utilitarian (to solve underproduction problem). Congress shall have the power to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. Cont. Art I, 8 cl. 8. An incentive for creation/dissemination. Also Lockes labor theory. Also self-expression / moral rights. B. Copyrightable Subject Matter, 102 literary works, music computer software, audiovisual video game output. Copyright Act: Copyright protection subsistsin original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with aid of a machine or device. 1. Fixation (replaced publication requirement in 1976) A work is fixed in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduce, or otherwise communicated for a period of more than transitory duration. - This language helps cover works fixed in photographs, videotape, digital files, fabric, wood, paper, etc. Only fleeting works are not fixed. 2. Originality - Unlike fixation, the statue does not define originality, it is found through case law. Independent creation not infringement. Bleistein v. Donaldson Lithographing Co. (Circus posters for advertising are copyrightable, courts wont judge what is art) - Argument against copyright (pictures of real things on circus ad no copyrightable, not fine art). Argument for copyright is that just because it depicts real things does not make it ok. Many things are in the real world and many can copy these original things. But you cannot copy someone elses copy. Plus, the copy has commercial value. Even minimal creative input is enough, the personality embodied is irreducible and one mans alone. Also, judges should not decide what is art; this is the Aesthetic Nondiscrimination Doctrine. Arts motivation of advertising irrelevant. Feist Publications, Inc. v. Rural Telephone Service Co. (Non-creative compilation of pone numbers (facts) not copyrightable) - Rural, local monopoly carrier prints directory as state law requires. Feist publishes much larger area-wide directory. Rural and Feist compete for page ads. Rural refuses to license home listings to Feist. A directory is compilation of facts. (1) Facts cannot be copyrighted. Facts are discovered. (2) Compilations of facts can be. Originality is not stringent, need not be novel, just independently created with minimal creativity. - As for directories, the raw facts may be copied at will. Sweat of the brow doctrine rejected, others may copy from labor of collecting facts. - RULING: Feist coped from Rural, but not anything Rural ownedjust facts. Selection and arrangement of facts can create a copyright, but in this case selection was all numbers and arrangement was alphabetical, lacking minimal creative spark. - Many public domain databases (which can be freely copied) rely on limited access and contractual obligations (such as Westlaw). (Gov works cannot be copyrighted, no need for incentive / want public to know what gov is say / laws authored(owned) by public through reps) 102: Works of authorship include the following categories:
(1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures/other audiovisual works; (7) sound recordings; (8) architectural works. (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. Boundaries.

103. Subject matter of copyright: See 101 for compilation definition.

Compilations and derivative works (a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

Part 2: The Boundaries Of Copyrightable Subject Matter

A. The Idea-Expression Dichotomy Copyright protects the expression, not the facts or idea expressed. Baker v. Selden (1879, Essay explaining bookkeeping is copyrightable but the system itself is not,
others can sell blank system forms) - Seldens essay explains new bookkeeping system, including forms illustrating the system, blank samples. Baker sells book of these blank forms. - HOLDING: Copyright does not extend to the system explained in the work, that is channeling protection between copyright and patent. The use of an art different than publication of book explaining it. By publishing the book without patenting the art, the art is given to the public. Diagrams are public property. Public domain also includes unoriginal works, expired copyrights, uncopyrightable components of works. 102(b)

(Limitations 107 - 122)

B. Useful Articles Are only copyrightable if they are a PGS work, separate from utility.
- 17 U.S.C. 101. A useful article is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. Useful articles can include items such as lamps, chairs, toasters, and mannequins. As the statutory language indicates, the design of a useful article is not generally copyrightable, but certain aspects of the design may be eligible for copyright protection. The PGS (pictorial, graphic, or sculptural) features that can be identified separately from, and that can exist independently of, the utilitarian article are the parts that can obtain copyright protection. DONT GO ONTO SEPERABILITY ISSUES UNLESS THE ARTICLE IS USEFUL (an intrinsic utilitarian function).

Brandir v. Cascade Pacific Lumber. (1987, Bike rack loses copyrightability because form and function inextricably intertwined)
- In Copyright Act Congress attempted to distinguish between protectable works of applied art and industrial designs not subject to copyright. - ISSUE: Is a bike rack a pictorial, graphic or sculptural work, deserving copyright protection under 102? Is it a useful article? If so, it must have Seperability (physical or conceptual). Tests for Seperability include temporal displacement, primary use, primary aspects, or marketable as artr. But the court chooses the Denicola Test: Conceptual Seperability exists where one can ID design elements that reflect the designers artistic judgment independently of functional influences. When form and function are inextricably intertwined there is no copyright protection. Essentially must now interview artist to see why they chose the design (aesthetics or function). Criticism: people can add separable aesthetic touches as an after thought and claim of a functional object. C. Computer Software Protected under Copyright Act though not mentioned. 117 excuses certain types of computer software copies from infringement. Writers of code write languages like authors. Computer programs are literary works, no need to run above PGS / utility test on them. Apple Computer, Inc. Franklin Computer Corp. (operating code and operating system programs are protected) Merger, Menu Commands (can be copied), and Cost of Error for Useful Works If a topic has only limited ways of being expressed, then we cannot permit copyright protection on any of them. The idea and expression have merged. Cant protect the idea. The expression can be copyrighted, but only verbatim copying would infringe. Merger in Baker (form/system) but failed in Apple (other ways to write an OS), but successful defense in Lotus (only OS menu tree copied, method of operation copied not the expressive work)

Part 3: Obtaining, Owning, and Maintaining a Copyright

A. Who is an Author? (federal copyright is created upon fixation of the original work, no notice or registration
requiredtwo problems:)

1. Authors and Joint Authors - Joint authors are undivided co-owners, 17 USC 201(a) (intent to blend
contributions is key 101) Thomson v. Larson (Thomson tries to claim co-author of Rent but cannot prove mutual intent by Larson (2nd prong of Childress test) - Standards for determining when a contributor to a copyrighted work is entitled to be regarded as co-author: - Two Prong Test: Co-authorship claimant bears burden of establishing that each co-author (1) made independently copyrightable contributions to the work and (2) fully intended to be co-authors. - Childress court suggested a more nuanced inquiry into factual indicia of ownership and authorship, such as how a collaborator regarded herself in relation to the work in terms of billing and credit, decisionmaking, and the right to enter into contracts. (the requirement of intent is particularly important where one person . . . is indisputably the dominant author of the work and the only issue is whether that person is the sole author or she and another . . . are joint authors). - Court notes that Thomson at least made minimal copyrightable contributions but, the decision making authority (Thomson thrilled Larson let her contribute) the Billing (Thomson listed as dramaturg) and written agreements with third parties (Larson vehemently refused to allow anyone ruin his dream of making Rent entirely his own) prove no mutual intent.

2. Work Made for Hire - The employer or person for whom the work was made is the author, 17 USC
201(b) (defined in 101)

Community for Creative Nonviolence v. Reid (Only a work made for hire if artist is employee, not
independent contractor) - Artist and organization that hired him to produce sculpture contest ownership of copyright. Artist Reid refused to return sculpture and filed a copyright for it in his name. Snyder, acting for CCNV, filed a competing certificate for copyright registration. - ISSUE: Was Third World America statue a Work made for hire? Section 101 of the 1976 Act provides that a work is for hire under two sets of circumstances: (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, part of motion picture/ audiovisual work, translation, supplementary work, compilation, instructional text, test, answer material for a test, atlas, or if parties agree in a written signed instrument that the work shall be considered a work made for hire. - The court focuses on set (1). Artist Reid was not paid for his work; Dumas case in 9th circuit holds that work must be salaried. Court does not rely on any particular state, but instead the general common law of agency, to define employment (in interest of uniformity). - Court rejects control argument. Transforming a commissioned work into a work by an employee on the basis of the hiring partys right to control, or actual control of, the work is inconsistent with the language, structure, and legislative history of the work for hire provisions. - To determine whether a work is for hire under the Act, a court first should ascertain, using principles of general common law of agency, whether the work was prepared by an employee or an independent contractor. After making this determination, the court can apply the appropriate subsection of 101. (If independent contractor, must be separate signed writing agreeing its a WMfH). - Reid was not an employee of CCNV but an independent contractor. Reid supplied his own tools. He worked in his own studio, making daily supervision impossible, was retained for less than two months. CCNV had no right to assign additional projects to Reid. Reid had absolute freedom to decide when and how long to work. CCNV paid Reid $15,000 for completion of a specific job, a method to pay independent contractors. - Because Reid was an independent contractor, CCNV is not the author by virtue of the work for hire provisions of the Act. - Remanded to see if CCNV is nevertheless a joint author. (If a company wants to own a painting without transfer, they hire artist as employee)

B. Formalities - Publication / Notice / Registration / Deposit 1. Registration & Deposit Registration not required but there are benefits. (1) Registration needed to file
suit. (2) Timely registration permits a copyright owner to seek statutory damages (helpful if hard to prove actual damages, forces prompt settlement) (3) Timely registration makes copyright owner eligible for award of atty fees in successful infringement suit. (Timely = registering copyright before infringement begins.) (4) Registration with 5 years of publication carries with it a presumption of the validity of the copyright and the facts stated on the certificate. (5) Registration permits the copyright owner to seek assistance of US Customs service in stopping infringing importation. (6) Creates a publically accessible record of copyright ownership providing contact info for interested licensors. - Registration is straightforward, can be done online for $35 (copyright.gov) with a deposit of the work. Copyright Office reviews the application, and even if denied an author can still bring infringement suit (but must notify Register of Copyrights). 2. Notice Notice is not required for a published work to be protected since 1976. Now protection begins with fixation and state law is eliminated. 1989 Berne Convention ended notice requirement even for published works to maintain protection. There are benefits: (1) Provides information to those who encounter the work, deterring infringement. (2) If notice is used then no weight shall be given to a defendants defense based on innocent infringement in mitigating damages. Proper notice of copyright includes (1) the symbol or word Copyright / Copr. (2) the year of first publication. (3) the name of the copyright owner. 17 USC 401. 3. Recording Transfers of Copyright Ownership Transfer must be in writing and may be recorded to establish priority of rights if +1. C. Duration Life duration +70 complicated by several factors: (1) if for hire, life of corporation could be forever, so instead 95 years from publication or 120 from creation, whichever expires first (this also applies to anonymous works or works under a pseudonym). This applies to all works created after 1978. For works before 1978, much more complicated, relying on 28 year initial term following publication plus a 67 year renewal term for a total of 95 years. Pre-1909 in public domain. Eldred v. Ashcroft (2003, Failed challenge of Sony Bono Copyright Term Extension Act of 1998 which added 20 years to all copyrights) - Eldred ran website of public domain literary works. Act meant he would not get any new material for 20 years. - Congress rationale is international harmonization, demographic , economic and technological changes, and incentive to restore old works.

- Supreme Court held that when congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary. Dissent was concerned with public fairness and unnecessary restriction of classic works with very low benefits. Orphan works. D. Renewals and Termination of Transfers Unwaivable right of the author to cancel any transfer during 5 year period starting 35 years after execution of transfer / license (Author or heirs must take affirmative steps including 2 year notice to transferee). Not applicable to works made for hire or subsequent transfers, only to real persons. (1978 + 35 = tsunami in 2013)

Part 4: The Rights of a Copyright Owner - Section 106:

- Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

A. Establishing a Prima Facie Case of Infringement

- Prima Facie case: (1) ownership of valid copyright AND (2) unauthorized exercise of a 106 right (aka copying) (a) copying in fact* (defendant obtained and copied the copyright owners work) AND (b) Improper appropriation** (defendant copied enough copyrightable material (aka improper copying or substantial similarity). *(2)(a) shown via direct evidence (admission) or circumstantial evidence (access and similarity). **(2)(b) shown via protected expression copied or more than a deminimis amount. - Proving infringement permits a copyright owner to seek remedies: Injunctions (502) and Damages/Profits (504) (actual and disgorgement (no double recovery), as well as statutory damages ($750 to $30,000 per work infringed, raised to $150,000 if willful, lowered to $200 if innocent. Also 505 Atty fees to prevailing parties. (timely registration required under 412 before infringement commences, if published 3 month grace period)

1. Copying-in-fact Three Boys Music Corp. v. Bolton (Michael Bolton guilty of copying in fact not independent
creation) - Michael Bolton writes song with same title as Isley brothers song. Isley brothers label, Three Boys, files for copyright infringement. Absent direct evidence, court considers access and similarity (as seen above). - In order to show access, must prove (1) a chain of events established between plaintiffs work and defendants access or (2) plaintiffs work widely disseminated. Isley brothers claim wide dissemination and subconscious copying. Bolton a huge fan of Isleys and wondered if he was copying. Jury determined reasonable access. - In order to show substantial similarity (inverse ratio to access), must show five unprotectible elements: (1) the title hook phrase (including the lyric, rhythm, and pitch); (2) the shifted cadence; (3) the instrumental figures; (4) the verse/chorus relationship; and (5) the fade ending. Jury determined substantial similarity. - By establishing reasonable access and substantial similarity, there is a presumption of copying. Burden shifts to defendant to rebut through proof of independent creation, which hinges on 3 factors: (1) work tape showing how song was created (2) history of songwriting and(3) testimony that their arranger contributed two of the five unprotectible elements mentioned above. Jury found infringement. - Covers of songs can be distributed via mandatory license at a predetermined rate per minute. Cannot alter the fundamental character.

2. Improper Appropriation and the "Substantially Similar" Copy Export Ventures, Inc. v. Einstein Moomjy, Inc.
- Tufenkian designs Heriz carpet buy culling out elements of another carpet and stretching and adding a border from a third carpet. Nichols designs Bromley carpet with patterns from same rugs Tufenkian borrowed from, plus some of Tufenkians work. - ISSUE: Improper appropriation - (2)(b) above. Must show protected expression copied or more than deminimis amount. Bromley carpet substantially similar an infringement. Central inquiry: Are the similarities due to protected expression? infringement

B. The 106 Rights

1. The Reproduction Right most fundamental right. 2. The Right to Prepare Derivative Works such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation or any other form in which a work may be recast, transformed, or adapted. No equivalent to blocking patents. NOTE- 103(a): protection for a work employing preexisting material in which subsists does not extend to any part of the work in which such material has been used unlawfully (this means the orig holder could publish a translation of their work and pay the translator nothing, creating a huge incentive for the translator to go talk to the owner) 3. The Right to Distribute Copies first sale doctrine 17 USC 109 owner cannot restrict subsequent transfer of a copy once he has parted with title. This permits DVD sales at garage sales to used book stores. The first sale doctrine is a limitation on only the distribution right, not the reproduction right (this means one cannot pass on digital music unless physically selling computer with file on it). First sale does not apply to computer programs or audio recordings. But does apply to video recordings, which is why stores can rent movies but not CDs. 4. Public Performance and Public Display: Public Performance, defined in 101- To perform a work means to recite, render, play, dance, or act it, either directly or by means of a device or process To perform a work publicly means- (1) to perform it at [a] place open to the public or [b] at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performancereceive it in the same place or in separate places and at the same time or at different times (the statute was written this way to capture technology variance over time) In re Verizon (2009, Reproducing song in form of ringtone, not a public performance b/c of 110(4) exemption) - Is Verizon publicly performing a musical composition when it sells a ringtone? Verizon is already paying a royalty to the people that own the , but only right to distribute, not right of performance. Right of performance has been licensed to 3rd partiesASCAP and BMI (broadcast music inc.). Dist Ct concludes that Verizon is not publicly performing the composition when it sends the ringtonetransmitting ringtone file to the buyer, NOT the public. Recipient is one buyer, not the public. Sent item as a data file, not a performance. - When played on buyers phone? (only an issue in public place with people other than friends and family), indirect liability to Verizon for the phone owners public performance? NO. Buyer is exempt (110(4))/ Verizon sends only a call. Included in same place as 4H exemption and person to person instruction. Since the buyer cant be held liable directly, Verizon cant be held liable indirectly. Exemptions in 110: (4) performance of a nondramatic literary or musical work otherwise than in transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, ifthere is no direct or indirect admission charge; (6) performance of a nondramatic musical work by a ... nonprofit agricultural or horticultural organization, in the course of an annual agricultural or horticultural fair or exhibition conducted by such body or organization ..."

Part 5: Fair Use The "Breathing Space Within the Confines of Copyright"
- Factors to consider include: (1) the purpose and character of the use (2) nature of the copyrighted work (3) the amount and substantiality of the portion used (4) the effect of the use upon the potential market for or value of the copyrighted work; 107 of the 1976 Copyright Act. - Section 106 makes clear that all of the rights granted to a copyright owner are subject to the express statutory limitations contained in sections 107 through 121. Part 4 discussed some of those limitations; such as the first sale doctrine codified in 109, and the specific limitations on public performance and public display contained in 110. - Fair use is an important limitation on the rights of copyright owner for several reasons. First, fair use is a limitation that applies to all of the rights of a copyright owner from the reproduction right to the digital performance right for sound recordings. Second, fair use takes on many different guises depending on the right at issue and the activities of the alleged infringer. Scholars have attempted to categorize these different faces of fair use, but fair use continues to evolve, and litigants seek to apply the fair use doctrine to new uses for copyrighted works. Third, the doctrine itself invites its own evolution, permitting courts to judge on a case-by-case basis whether a particular use should be categorized as a fair use or as an infringing one. The cases that follow will paint only a partial portrait of the many faces of fair use. Campbell v. Acuff-Rose Music, Inc. (Fair Use is an affirmative defense, Pretty Woman parody remanded) - 2liveCrew wrote their own version of Pretty Woman. Infringement but for finding of parody. 2Live Crew sought a license and labeled it a parody. - - - - 107. Limitations on exclusive rights: Fair use. Notwithstanding the

provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, 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 4 factors to be considered shall include (1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. - The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. - Regarding factor (1) Parody is transformative, using parts of an earlier work to comment on that work. Claim to fair use diminishes when one uses parts of an earlier work in a new work that has no critical bearing on that earlier work. Can parodic character be perceived? Court allows parody in this respect. Court says that no presumptions for any factor are appropriate - Regarding factor (2) Works closer to the core, like parody, have greater protection. This factor not much help. - Regarding factor (3) Parody conjures up original, using heart. Context is everything. Court believes 2LiveCrew survives this factor. - Regarding factor (4) Cognizable harm to original and derivative markets. (Harm from substitution not harm from criticism.) Court of appeals erred by attempting to presume commercial effect. It is acceptable for parody to drive down demand for original, as long as it does not replace it. - It was error for the Court of Appeals to conclude that the commercial nature of 2 Live Crews parody of Oh, Pretty Woman rendered it presumptively unfair. No such evidentiary presumption is available to address either the first factor, the character and purpose of the use, or the fourth, market harm, in determining whether a transformative use, such as parody, is a fair one. The court also erred in holding that 2 Live Crew had necessarily copied excessively from the Orbison original, considering the parodic purpose of the use. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. Burden of parodist to show fair use. - No bright line rule for parody as fair use. Case-by-case inquiry, although parody weighs in favor of fair use. Harper & Row, Publishers, Inc. v. Nation Enterprises (Nation magazine giving self right of first publication not fair use) 107. - Crux: User profits from exploitation of material w/o paying the customary price. - Nation magazine gets unpublished Gerald Ford biography. Editor writes piece based on it, meant to scoop upcoming Time magazine piece. Time cancels purchase of exclusive rights to print pre-publication excerpts as a result. Harper therefore sues Nation. - Editor knew piece was unauthorized and returned it to source, but not before taking quotes and facts for what he called hot news story. He contributed no independent commentary, research or criticism due to need for speed to make news. Nation used 400 words, 13% of article. - Court considers (1) Purpose of use here, not news reporting but supplanting copyright holders right to first publication (2) Amount used nation took heart of book (3) nature of copyrighted work confidentiality and creative control lost, and (4) effect on market clear cut damage. - Nation gave itself right of first publication, this is not fair use. No first amendment defense to copyright infringement. - Unpublished work negates fair use doctrine because no implied consent if not released. Author cannot decide when and whether to go public, which infringes on his rights. Fair use cannot apply. First public appearance right outweighs fair use. - Defendant argues that scope of fair use wider when dealing with matters of high public concern, quotes were a news story. But court rules that such a wide scope would strip any public figure of copyright protection, removing incentive. Saying greatly important material deserves less protection is not in spirit of Copyright Act. Court rules against a public figure exception, Ford has right to not speak at all.

Part 6: Fair Use The Challenge of Accommodating New Technologies

- Because fair use is meant to act as safety valve, ensuring that copyright protection is not used to stifle innovation, the doctrine is often called upon to strike balances in the face of innovative technologies, inevitably breaking new ground for the doctrine.

Sony Corp. of America v. Universal City Studios, Inc. Video Tape Recorders Fair Use
-VCR has substantial noninfringing uses for end users (Sony safe harbor TEST) - No meaningful likelihood of future harm, no discernible market impact (i.e. no market being displaced); when the TCs dwarf the money available in the deal, the deal doesnt occur

American Geophysical Union v. Texaco, Inc. Photocopy Machines, Texacos copying of journals Not Fair Use

- Market formingmaybeCCC. Here is where the similarity to Harper deviates, b/c there is more of a market in Harper, but it seems that the court is stepping in mid-story and making this true - Role of the existence of a payment possibility in the market2nd circuit holds the possibility of a market means people should be forced to use the market (so Sony would have come out the other way in 2nd circuit if market available)

Perfect 10, Inc. v. Amazon, Inc. Internet Search Engines Indexing Nude Models for Public Gain Fair Use Fair Use of Computer Software: Reverse Engineering

Part 7: Secondary Liability for Copyright Infringement

A. Contributory and Vicarious Infringement; Black Letter Law, Need a Direct Infringer
Vicarious infringement: (1) right and ability to control/supervise infringing activity (2) direct financial interest activities. Knowledge not necessary. Contributory infringement: (1) knowledge of infringing activity (2) induces, causes, or materially contributes to the infringing conduct. 271(c) Fonovisa, v. Cherry Auction, Inc. (1996, Cherry Auction: vicarious and contributory infringement for running swap meet of bootlegs) - Cherry Auction operates swap meet where Fonavisas musical recordings are bootlegged. - Vicarious Infringement: Control: Right to terminate vendors, right to control vendor activity. Financial Interest: Rental fees, admission fees, parking, concessions, draw with bootlegs. (defendants argument of no direct commission rejected). - Contributory Infringement: Knowledge: Sherriff raid, letters, investigators sent. Substantial Participation: Provide site and facility. - In internet cases, ISPs have safe harbor under 512(c) and (d). (as long as no knowledge and acts expeditiously to remove) ISP gets notice from / Removes material / Subscriber counter-notice / ISP notifies that material going back up in 14 days / files suit. At any point during this dance the material can be removed if next step never happens, without court ever determining infringement.

B. Secondary Liability for Device Manufacturers Sony v. Universal Court looks at patent statue to balance public interest with interest. Sony innocent of
contributory (2). - time-shifting of over-the-air broadcast television programs was fair use. - sale of copying equipment . . . does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Need merely be capable of substantial noninfringing uses capable of commercially significant noninfringing uses MGM Studios Inc. v. Grokster Ltd. Device liable, trying to capture Napster users. Grokster guilty of contributory (2). - One infringes contributorily by intentionally inducing or encouraging direct infringement. - One who distributes a device with the object of promoting its use to infringe copyright, as shown by [1] clear expression or [2] other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. - Liability premised on purposeful, culpable expression and conduct - Did not overrule Sony. 3 want to revisit, 3 want to expand it, 3 want to leave it alone.

Part 8: Remedies
A. Damages 1. Actual Damages 2. Statutory Damages B. Attorney Fees C. Injunctions 1. Preliminary Injunctions 2. Permanent Injunctive relief D. Criminal Infringement E. Notice and Take-Down