COPYRIGHT LAW 2006
Columbus School of Law
The Catholic University of America
Prof. Fischer
November 20, 2006
PUBLIC PERFORMANCE AND
DISPLAY RIGHTS
• What works do these apply to?
• See 106(4), (5), and (6) Basically if it moves it’s a
performance (e.g. plays, dances, movies, public
readings of books) and if not a display (e.g.
paintings, sculptures, physical copies of books)
• For sound recordings - to perform publicly by
means of a digital audio transmission, such as
webcasting over Internet
PUBLIC PERFORMANCE
• 1. Public performance if perform at a place open
to public or where a substantial number of persons
outside of a normal circle of family and social
acquaintances are gathered
• 2. Or if transmit to a place specified in clause (1)
or to public by means of any device or process
where members of public capable of receiving
performance receive in same place or in separate
places and at same time or separate times.
IS IT A PUBLIC
PERFORMANCE
• If you rent a movie and show it at home to
12 friends and neighbors?
• If you show it at summer camp?
• If you broadcast it on network TV?
PERFORMING RIGHTS
SOCIETIES
• What’s a performing rights society?
• What are the big 2 performing rights
societies in the U.S.?
PERFORMING RIGHTS
SOCIETIES
• ASCAP, BMI are the 2 biggest (SESAC is another
small one)
• How does ASCAP work?
• What is a blanket license?
• Note that ASCAP can’t sue for infringement in its
own name.
• How do you challenge ASCAP or BMI fees?
• What’s the difference between GRAND rights and
SMALL rights?
RIGHT OF PUBLIC DISPLAY
•
•
•
•
See section 106(5)
Only applies to certain kinds of work
See definition of “display” in section 101
How does First Sale doctrine apply to the
right of display? See 109(c)
• nge.com/rates.html
DIGITAL PERFORMANCE
RIGHT IN SOUND
RECORDINGS
• Prior to section 106(6), no public performance
right for sound recordings
• Added in 1995 (amendments to 106, 114). Why?
• Digital Performance Right in Sound Recordings
Act of 1995: new statutory license
• Digital Millennium Copyright Act of 1998:
expanded statutory license to include webcasting
Section 114 statutory license
• Section 114 statutory license covers:
• public performances by four classes of digital
music services: eligible nonsubscription services
(i.e., noninteractive webcasters and simulcasters
that charge no fees), preexisting subscription
services (i.e., residential subscription services
providing music over digital cable or satellite
television), new subscription services (i.e.,
noninteractive webcasters and simulcasters that
charge a fee), and preexisting satellite digital
audio radio services (i.e., XM and SIRIUS satellite
radio services).
Section 112 statutory license
• The section 112 statutory license
covers ephemeral reproductions (i.e.,
temporary server copies) made by all
digital music services covered by the
section 114 license as well as certain
background music services that are
exempt from paying public
performance royalties under section
114.
DIGITAL PERFORMANCE RIGHT
• Rates now set by Copyright Royalty and
Distribution Act 2004 arbitration proess (3
Copyright Royalty judges). See current
rates at:
http://www.soundexchange.com/rates.html
FULL PERFORMANCE RIGHT
IN SOUND RECORDINGS
• IN 1994 and 1996 Congress considered creating a
full performance right in sound recordings, in
addition to that for musical compositions.
• Is a general public performance right appropriate
for sound recordings?
• How should it be squared with the existing public
performance right for musical compositions?
What Public Interest Exceptions
Exist For Right of Public
Performance and Display?
• See section 110
What Exceptions Exist For Right
of Public Performance and
Display?
• Face-to-face teaching 110(1)
• certain instructional broadcasts 110(2) note controversy over whether this is
appropriate in a digital age for distance
learning
• played/sung as part of religious service
110(3)
• nonprofit performance 110(4)
COMPULSORY LICENSES
•
•
•
•
•
•
Section 111 - TV broadcast relays
Section 119 - satellite transmission
Section 115 - recordings of musical works
Section 116 - jukeboxes
Section 118 - public broadcasting
Section 114 – performances digital sound
recordings
• (not updated since 2003).
Law: Protection for
Technological Protections
• WIPO Copyright Treaty of 1996 (WCT)
(Art. 11) see (46 members on 3/24/2004) at:
http://www.wipo.int/treaties/en/ip/wct/index
.html
• entered into force 3/6/2002
WCT Art. 11
• Contracting Parties shall provide adequate
legal protection and effective legal remedies
against the circumvention of effective
technological measures that are used by
authors in connection with the exercise of
their rights under this Treaty or the Berne
Convention and that restrict acts, in respect
of their works, which are not authorized by
the authors concerned or permitted by law.
DMCA
• Digital Millennium Copyright Act of 1998
(DMCA) is U.S implementing legislation
for the WCT – previous attempts to
introduce similar legislation prior to the
WCT had failed
• Why did the copyright industries demand
additional legal protection for digital
works?
Technical Protection Measures
• The technical protection provisions in the Digital
Millennium Act of 1998 responded to fears that
digital format made copying easy and cheap and
existing copyright law provided ineffective
protections against piracy of copyrighted works.
These provide special legal protections where a
copyright owner uses technological self-help
measures.
• What is technological self-help/technological
protections for copyrighted works?
• What special protections does the DMCA now
provided for technological protections?
DMCA s. 1201
• 2 kinds of protection. The DMCA
distinguishes between
• Access Control Measures (stronger)
• Copy Control Measures (weaker)
• Note – not technology-specific
Access Controls: DMCA section
1201(a)(1):
• “No person shall circumvent a technological
protection measure that effectively controls access
to a [copyrighted] work…”
• This prohibits access to a work that is encrypted or
protected by similar technologies, not just access
to a copy of the work.
• Thus this right broadens copyright owner’s rights.
• Does this result in overprotection? Does it destroy
fair use?
DMCA 1201(a)(2): AntiTrafficking Provisions – Access
• Prohibits manufacturing, importing, offering to
public, provide, traffic in technology that is
primarily designed to circumvent technological
protection measures that effectively control
access, has only limited commercially significant
purposes except to circumvent technological
protection measures, or is marketed by that person
with knowledge for use in circumventing
technological protections.
• How is this different from the access control
provisions?
Anti-trafficking: Copy Controls –
s. 1201(b)(1)
• Rather similar to access controls but bars
manufacture or trafficking in technologies
that are primarily designed or produced for
the purpose of circumventing technological
measures that effectively protects a right of
the copyright owner [as opposed to access
to the copyrighted work]
Penalties under DMCA
• What civil and criminal penalties are
applicable to violations of the DMCA?
Penalties under DMCA
• S. 1203 (civil) – injunctive relief, damages (actual
or statutory ($200 to $2500 for act of
circumvention, device, product etc..; triple
damages for repeated violation), costs, attorney’s
fees). Reduction possible for innocent violation,
special innocent infringer provision for schools,
archives, nonprofit libraries.
• S. 1204 (criminal) – first offense: fine up to
$500,000 and/or imprisonment up to 5 years;
subsequent offense: fine up to $1 million and/or
imprisonment up to 10 years –exempts schools,
archives, nonprofit libraries
Does Fair Use Survive the
DMCA?
Does Fair Use Survive the
DMCA?
• S. 1201(c) (1) provides:
“Nothing in this section shall affect rights,
remedies, limitations, or defenses to
copyright infringement, including fair use,
under this title.”
• -also doesn’t affect vicarious or contributory
liability or free speech rights
DMCA s. 1201 (d)-(j)
• Section 1201 (d)-(j) provides exceptions for,
e.g., certain reverse engineering, law
enforcement activities, certain library uses,
certain encryption research, privacy
protection, protection of minors, security
testing of computer systems
• Also – rulemaking provision under s.
1201(a)(1)(B)-(D).
First Triennial Inquiry
• Are there particular “classes of works” as to which
users are, or are likely to be, adversely affected in
their ability to make noninfringing uses if they are
prohibited from circumventing such technological
measures
• On October 27, 2000, Library of
Congress/Copyright Office issued a final rule
identifying 2 classes of works exempt from access
provisions
Exemptions following first
Copyright Office triennial inquiry
• 1. Compilations of lists of web sites blocked by
filtering software applications
• 2. Literary works, including computer programs
and databases, protected by access control
mechanisms that fail to permit access because of
malfunction, damage or obsoleteness
• In future there may be a need for more exemptions
Second Triennial Inquiry
• Announced Oct. 23, 2003
• Exempts 4 categories of works
Exempted category 1
• 1) Compilations consisting of lists of Internet
locations blocked by commercially marketed
filtering software applications that are intended to
prevent access to domains, websites or portions of
websites, but not including lists of Internet
locations blocked by software applications that
operate exclusively to protect against damage to a
computer or computer network or lists of Internet
locations blocked by software applications that
operate exclusively to prevent receipt of email.
Exempted category 2
• (2) Computer programs protected by
dongles that prevent access due to
malfunction or damage and which are
obsolete.
Exempted category 3
• (3) Computer programs and video games
distributed in formats that have become obsolete
and which require the original media or hardware
as a condition of access. A format shall be
considered obsolete if the machine or system
necessary to render perceptible a work stored in
that format is no longer manufactured or is no
longer reasonably available in the commercial
marketplace.
Exempted category 4
• (4) Literary works distributed in ebook format
when all existing ebook editions of the work
(including digital text editions made available by
authorized entities) contain access controls that
prevent the enabling of the ebook's read-aloud
function and that prevent the enabling of screen
readers to render the text into a specialized format.
Realnetworks, Inc. v. Streambox
• One of the first real analyses of
circumventing conduct
• What about unauthorized inputting of a
password? See IMS v. Berkshire (SDNY
2004)
Universal City Studios v.
Reimerdes CB p. 964
• Plaintiffs: 8 major
motion picture studios
• Defendants included
(l) Eric Corley a.k.a.
Emmanuel Goldstein,
publisher of 2600: The
Hacker Quarterly
• Ps alleged violations
of DMCA – how did
defendants respond?
Jon Johansen: Creator of DeCSS
• Norwegian teenager: 15
years old when he created
DeCSS
• Prosecuted under s. 145(2)
145(2) of the Norwegian
Criminal Code, which
punishes "any person who
by breaking a protective
device or in a similar
manner, unlawfully
obtains access to data or
programs which are stored
or transferred by
electronic or other
technical means."
• Acquitted in Jan. 2003,
under appeal
For a Norwegian legal
perspective
• See an essay by Nowegian professor Jon
Bing at:
http://www.eff.org/IP/DRM/DeCSS_prosec
utions/Johansen_DeCSS_case/20000125_bi
ng_johansen_case_summary.html
Protesters at the federal trial (2000)
http://www.nylug.org/articles/index.shtml?nycdvdcourt
“Electronic Civil Disobedience?”
REIMERDES
• Cause of action: DMCA 12(a)(2) – antitrafficking provisions
• Defense: Actions don’t violate DMCA and
DMCA violates the First
Amendment/Copyright Clause by
obstructing fair use and DMCA violates
limits on duration in Copyright Clause
JUDGE KAPLAN
• Finds (after full jury trial)
• 1. Posting DeCSS was a violation of 1201(a)(2)
that was not protected by statutory exceptions for
fair use, good faith encryption research, or
security testing or by fair use, as was linking
where knew offending material on linked-to-cite
and knew unlawful circumvention technology and
link created to disseminating that technology..
• 2. Anti-trafficking provisions constitutional under
first Amendment
• 3. Awards injunctive and declaratory relief- to
deter
REIMERDES APPEAL
• Second Circuit ruled in November to affirm
Judge Kaplan’s order
• Kathleen Sullivan, the Dean of Stanford
Law School and a noted constitutional
scholar, argued the appeal for the
defendants.
• Review by the U.S. Supreme Court is not
sought
More DMCA litigation
• Considerable number of cases have been brought
under the DMCA
• Some, such as EFF Fred Von Lohmann, have
alleged that the unintended consequences of the
DMCA litigation is that it is being used not to
control piracy but to stifle competition, to impede
free expression and scientific research, and to
jeopardize fair use. See:
http://www.eff.org/IP/DMCA/20030102_dmca_un
intended_consequences.html
• Some prominent commentators like Pamela
Samuelson have argued for revision of DMCA
• Copyright industries counter that the DMCA is
necessary to combat the growing problem of
321 Studios Case
• Which provision of the DMCA was at
issue?
321 Studios Case
• Which provision of the DMCA was at
issue? Argument that 321 Studios was
violating the anti-trafficking provisions in
1201(a)(2) and 1201(b)(1) by marketing of
DVD copying software – DVD Copy Plus
and DVD-X-COPY
Felten Case
• Edward Felten is
Associate Professor, Dept.
of Computer Science,
Princeton University – see
“Freedom to Tinker” blog
at: http://www.freedom-totinker.com/
• RIAA warned conference
organizers that publishing
Felten’s paper on SDMI
research would violate
DMCA
• What happened after that?
Sklyarov/ElcomSoft Prosecution:
ElcomSoft was acquitted
DMCA- copyright management
provisions
• S. 1202
• Kelly v. Arriba Soft
• Concerns of Professor Julie Cohen re:
privacy – loss of anonymity