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IT Law- Week 4 Notes (Copyright)

I. Copyright Fundamentals
 Exclusively federal protection- no state copyright law
o So copyright actions only brought in federal court
 Accounted for in the Constitution
 What types of things are eligible for copyright protection?
o Original works of authorship that are fixed; copyright
protects the expression
 Literary works (books, poems, etc.)
 Software code
 Musical works
 Dramatic works (plays)
 Pantomimes
 Chorographical works
 Pictures/graphics
 Sculptural works
 Motion pictures/audiovisual works
 Sound recordings for digital transmission
 Different than the musical work  this is a
digital recording of the musical work
 Architectural works/some boat hulls
 What is not eligible for copyright protection?
o Anything not fixed in some tangible form
o Titles/names
o Short phrases or slogans
o Familiar symbols/designs
o Methods/processes
o US governmental works
o Anything in the public domain
 Either through lapse of time, or something that
was always dedicated to the public domain
o Works consisting of information that is common
property or isn’t an original work of authorship
 No creativity added by the author
 What are the rights given through copyright protection?
(these are the rights given to the author OR the owner of the
o To reproduce the work in copies/phonorecords
o To prepare derivative works
o To distribute copies or phonorecords of the work to the
public by sale (initial sale) or other transfer of
ownership, or by rental, lease, or lending
o To perform the work publicly
o To display the copyrighted work publicly
o In the case of sound recordings, to perform the work
publicly by means of a digital audio transmission
 Ownership vs. Authorship
o Who is an author?  the person who created the fixed
 But someone else can own this expression
 The author can transfer rights to someone else
 Exclusive: complete transfer of ownership
rights; needs to be in writing
 Non-exclusive: like a license
o In context of employment relationship
 If someone is hired to create copyrighted works
for his employer, use the Work Made for Hire
 1) A copyrighted work prepared by
employee in the scope of employment
automatically belongs to the employer; OR
 2) A work that is specifically commissioned
or ordered belongs to the person who
commissioned the work
 But this transfer of ownership needs
to be in writing (no automatic vesting)
 How to get a copyright?
o You don’t need to register your copyright w/
government (Copyright Office)
o But there are still good reasons to register:
 1) Presumption of ownership/validity
 2) Allows you to sue in federal court to protect
your rights
 3) Access to attorneys fees/damages
 How long does copyright last?
o Limited duration
 1976 Act (modern regime)
 Single author: life of author + 70 years
 Joint works: life of last surviving author +
70 years
 Works made for hire/anonymous works: 95
years from publication or 125 years from
publication (whichever is shorter)
 Hard to tell how long copyright protection exists
under old 1906 Act
 If it was published without the © notice,
then it automatically goes into the public
 But it’s hard to find the original
published copy
 Orphaned works
 Hard to figure out if the author exists
 Work published in the US before 1923 are in
the public domain
 Infringement
o Test we use to determine if copyright is infringed:
 1) Did alleged infringer have access to the work?
 2) Is there substantial similarity between the
original copyrighted work and the work alleged to
o Remedies:
 Injunctions
 Infringed articles disposed of
 Actual Damages/Lost profits
 Statutory damages (not less than $750 or more
than $30,000 for infringement of each work)
 Use this when actual damages are too hard
to prove
 Willful infringement: up to $150,000 per
infringed work
 Attorneys fees
 Sometimes criminal sanctions
 Ex. If you tried to break a rights
management solution

II. Limitations on Copyright

 The rights conferred on copyright owners are not always
o 1) First Sale Doctrine (§109)- if you buy a copyrighted
item (book, software, etc.), the author has the ability to
prevent you from reproducing that work, but the author
cannot prevent you from re-selling it to someone else
 This is not a complete right
 Buyers of software, certain sound
recordings in aren’t afforded this protection
o 2) Fair Use Doctrine (§107)
 What constitutes fair use?
 Criticism, comment, news reporting,
teaching, scholarship, research
 Factors to determine if something constitutes a
fair use (balancing test):
 A) Purpose/character of the use
 Commercial purposes? Or non-
o Non-profit/educational = more
likely fair use
 B) Nature of the copyrighted work
 Is the work more factual or more
o More factual = more likely fair
 C) The amount and substantiality of the
portion used in relation to the copyrighted
work as a whole
 Did alleged infringer use more of the
copyrighted work than needed?
 D) The effect of the use upon the potential
market for or value of the copyrighted work
 Is the copyrighted work’s value
diminished due to the alleged
infringer’s actions?

III. Copyright Issues & The Internet

 What does fixation mean in the virtual world?  You can’t
have infringement unless something is actually fixed
o MAI Systems v. Peak Computer (good law)
 Peak licensed computer software to its customers
 MAI performed maintenance on computers,
including Peak computers
 Peak argued that when MAI was copying its
software outside the scope of a license
during its repairs (MAI needed to load the
software into the RAM in order to do
 MAI says no- because there is no fixation
 Court says that there is fixation: loading the
software into the RAM counts as a copy being
made, even though it was transient (since it was
there long enough for a copy to be made)
 So copy being made + no license =
 Takeaway: the bar is set very low for copying
 *DMCA later exempted computer maintenance
people from being held liable
 Fair Use Case Law Examples:
o LA Times v. Free Republic
 FR was a place where news articles were posted
and people could comment on them
 Court needed to conduct fair use analysis
 FR said they were using the news articles
for critiquing purposes so it should be fair
use  court conducted Fair Use Analysis
 1) Court said FR’s use was not
transformative at all- so this looks like
FR’s use was not fair despite them not
being a for-profit company
 2) News articles tend towards factual
but still get some protection
 3) Amount/substantiality: FR was
taking entire articles/more than
 4) Effect on market: don’t look just at
what happens with this use;
generalize it: what would happen if
everybody acted like FR?
o Could seriously impact
newspaper markets- nobody
would pay for archived articles
o Kelly v. Arriba Soft
 Photographer has high resolution images for sale
on his website
 Search engine had thumbnails of his images in
low resolution  but when you clicked on it, you
get a big high resolution picture
 Kelly sues for infringement of reproduction
right for both the thumbnails and the high
resolution pictures
 Court’s holding (fair use analysis):
 Thumbnail
o 1) This is a transformed use; this is no
longer a picture since it is so low
resolution.  It acts more as a pointer.
o 3) Need to take whole image to catalog.
o 4) This use actually helped the market
for Kelly’s pictures
 Larger Images: no fair use defense here;
this is the actual work- nothing
transformative about the purpose here
o Perfect 10 v. Amazon
 Perfect 10 sues over Google’s use of their images
in thumbnails
 Court says no distribution here
 Google didn’t make a copy- they just directed a
user’s browser to a location where the photograph
actually was