IM 350, day 5, fall, 2015
Chapter One: Copyright---Cases
traditional copyright cases
Baker v. Selden
“copyright of a book on bookkeeping cannot secure the exclusive right to make, sell and
use account books prepared upon the plan set forth in such a book.” Ideas cannot be
copyright protected; patents may be used to protect ideas that turn into creations. The
facts cannot be protected but unique ways of laying them out can be but that's not what
Seldon asked for.
Sony . .. huge. Saved the movie industry; probably television. Is at the heart of what
changed because of the DMCA.
Many filesharing cases, for example both Grokster and Napster tried to use Sony as a
precedent which would protect their file sharing functions. Likewise, RealNetworks and
others who have tried to develop file backup systems have tried to gather under the
umbrella provided by Sony.
“the sale of copying equipment, like the sale of other articles of commerce, does not
constitute contributory infringement if the product is widely used for legitimate,
unobjectionable purposes.”
The problem of course is that although Sony is still in place, it only applies to analog
materials as the court did not at that time foresee how it would apply to digital materials.
the new cases over DVR's and music locker/cloud systems are edging into this area.
Harper & Row v. Nation Enterprises Case Media, 471 U.S. 539 (1985).
Harper & Row v. Nation Enterprises Case Media examined publishing copyright
protected material based on the theory of “the public’s right to know” as it is related to
fair use in news and publishing.
The public’s right to know (and journalism and fair use) does NOT trump everything
about copyright law. Here, The SCOTUS found that there was no exception to copyright
protection merely because the memoirs were those of a public figure. The Court applied
the traditional fair use tests and found that the factors weighed against fair use because it
was a commercial use of the significant portion of the copyrighted material that caused an
actual harm (the cancellation of the contract) despite the fact that the nature of the work
was informative.
Feist
The Court held that effort and the expenditure of resources are not protected by copyright,
and rejected the “sweat of the brow” doctrine that had previously existed in copyright law.
The Court in Feist then indicated that in order to be copyrightable, a work need not be
novel, but it must possess “a minimal degree of creativity” and that the copyright only
applies to those creative aspects of the work. The Court held that an author’s selection
and arrangement of a compilation of facts can warrant copyright protection.
[it’s important to note that this principle gets set aside, a bit, when BUSINESS PROCESS
PATENTS are allowed in in our age].
New media cases
Kelly v Arriba Soft
the most famous of a series of cases that established the ability to use certain types of
thumbnails and hyperlinks without violating copyright. These issues still come up
however, on a regular basis, in part because the ruling in this case was not complete and
consistent across all features.
note how various aspects can end up various ways and how principles that get established
can stand, sometimes regardless of actual outcomes. This is an important fair use case;
not that not all four elements were in play in either direction.
Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007).
validates the google model
decss cases: although it is interesting to note how these cases turned out with regard to
the digital specifics of hacking, the cases very often turn on broader issues of the law.
This is one of the things that complicates copyright law in new media. Injunctions and
takedowns implicate free speech. In both of these cases, the degree to which the
publication was protected by free speech became the center of the case. And of course
First Amendment is not part of copyright law.
DMCA cases
Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2nd Cir. 2001).
Universal City Studios, Inc. v. Corley tested the degree that certain kinds of online
publication (computer code) should receive blanket First Amendment/free speech
protection, whether publication of code elements should receive a fair use exemption, and
challenged the applicability of the anti-circumvention components of the DMCA to the
publication of encryption research findings.
NO… the DMCA isn’t unconstitutional.
321 Studios v. Metro Goldwyn Mayer Studios, Inc., 307 F. Supp. 2d 1085 (N.D. Cal.
2004).
321 Studios v. Metro Goldwyn Mayer Studios, Inc. tested the practical commercial
implications of rulings against software that enabled circumvention of DRM; the ruling
also applies to file sharing software. The DMCA applies
Realnetworks, Inc. v. DVD Copy Control Ass’n, 641 F. Supp. 2d 913 (N.D. Cal. 2009).
And it applies EVEN IF THE PRODUCT COMES FROM A BIG-ASS, DEEP
POCKETS, FANCY NEW MEDIA COMPANY
(oh, and SONY only applied to analog so stop using it to defend infringement already)
Cases Involving Digital Transmission and the Public Performance Right
Cartoon Network LP, LLLP v. CSC Holdings, Inc. (Cablevision), 536 F.3d 121 (2nd Cir.
2008).
Cartoon Network LP, LLLP v. CSC Holdings,
a consortium of networks and studios sued for direct copyright infringement, alleging
violations of their reproduction and public performance rights. The District Court ruled in
favor of the copyright owners. However, on appeal, the Second Circuit reversed, finding
that Cablevision’s proposed DVR system did not directly infringe on any of the plaintiffs’
exclusive rights. In particular, the court held that the system’s use of content buffering
(the creation of RAM copies) did not qualify as a “copy” because the data was not
perceivable “for a period of more than transitory duration.” The Circuit Court also held
that Cablevision could not be directly liable for creating playback copies because those
copies were actually made at the direction of the cable company customers. Lastly, the
Circuit Court held that the transmissions of playback copies were not performances “to
the public” because Cablevision transmitted only the copy requested and recorded by a
particular user to that same user.
American Broadcasting Cos., Inc., et al. v. Aereo, Inc., f/k/a Bamboom Labs, Inc. 13 US
461 (2013).
these ARE retransmissions and ARE infringement (but only after Aereo WON TWICE).
The SCOTUS majority declared that Aereo’s services do constitute a public performance
of copyright protected works and that Aereo does not merely provide consumers with
equipment. Therefore, Aereo’s services/transmissions infringe
Eldred versus Ashcroft. (with Sony and Viacom, one of the 3 top cases in copyright and
new media)
Centers on the implications of the Sonny Bono act and of not registering and reregistering
works protected by copyright. Eldred wanted to do an online text repository. He was
eagerly waiting for the date when many works would come into the public domain. The
state compromised materials of modern mass media they moved for extension. They got
the extension, Eldred sued claiming that Congress did not have the authority to extend the
coverage. They would like to have rather argued about the principles underlying
copyright instead they got stuck arguing congressional authority and of course lost.
Golan v. Holder, 132 S. Ct. 873 (2012).
In Golan v. Holder, The SCOTUS considered whether Congress had the power to restore
copyright protection to foreign works that were already in the U.S. public domain. They
do, so some material from overseas got pulled OUT of the public domain.
Cases Involving Peer-to-Peer File Sharing
UMG Recordings, Inc. v. MP3.Com, Inc., 92 F. Supp. 2d 349 (S.D.N.Y. 2000).
time and space shifting, alone, aren’t “transformation” (enough for fair use defence).
Napster, Grokster: both tried to use the Sony defense to say that their systems could be
used for purposes other than illegal filesharing. Both lost. As did the pirate Bay. Sony
does not protect illegal filesharing (or digital files, for that matter).
Columbia Pictures Industries, Inc. v. Fung, 710 F.3d 1020 (9th Cir. 2013).
using a torrent isn’t different (even if the studios ARE negotiating with the torrent guys
on the side)
Recording Industry Ass’n of America, Inc., v. Verizon Internet Services, Inc., 359 F.3d
1229 (D.C. Cir. 2003).
Cases Involving Internet Service Provider Liability under the DMCA
The Verizon case on the other hand, reinforced the safe harbor provisions of the Dmca,
by indicating that service providers are not responsible for the materials that travel on
their networks as long as they are following the requirements of the DMCA.
Viacom International, Inc. v. YouTube, Inc., 676 F.3d 19 (2nd Cir. 2012).
can’t say it isn’t infringement. But can say “we’re not liable for it” and “follow the
procedures, the law says safe harbor.”
UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006 (9th Cir. 2013).
validates Viacom/Youtube, but WARNS that a service provider has “control” over
infringing activity sufficient to lose protection under the DMCA safe harbor provisions if
it exerts “substantial influence” on the activities of users, meaning “high levels of control
over activities by users,” or by “purposeful conduct, as in Grokster.” We’ll see this later
with the CDA tort safe harbor: providers who are deeply involved in the content can lose
protection.