Copyright and P2P

Copyright and P2P
John W. Bagby
Professor of IST
Evolving Context of Copyright
© Concepts
• Designed for literary & artistic expression
Controversial Protection Emerging Tech
• Radically changed copying technologies
• Distribution technology evolution
Adaptations by the Courts
• Congress slow to act
• Foreign nations mimic U.S.
Copyright Application to New
Copyright (Un)Suitability
Digital Audio Sampling
• Songwriter’s rights in composition
• Musician’s right in “phonorecord”
• Campbell v. Acuff-Rose Music, Inc.
Digital Imaging
• Licensing
• Works for hire
Elements of Copyrightability
Must be original
Must be fixed in a tangible
medium of expression
Must be directly or indirectly
perceivable by humans
Types of
Copyrightable Works
Literary works
Pictorials, graphics,
and sculptures
Musical works
Motion pictures and
A/V works
Dramatic works
Sound recordings
Pantomimes and
Architectural works
Non-copyrightable Material
Ideas are not copyrightable – only
the expression of ideas.
Includes ideas, procedures,
processes, systems, methods of
operation, concepts, principles, or
The idea-expression dichotomy rule
states that creators can maintain
control over ideas only if they
qualify as patentable or remain as
trade secrets.
Bundle of
Exclusive Rights
Reproduction: prepare work in a tangible
and permanent medium
RIAA v. Diamond Multimedia
Derivative work: adapt or change original
work for another market or medium
Distribution: initial public transfer of
copyright work through sale, rental,
lease, or other transfer
Performance: public viewing using
sensory reception
Bundle of
Exclusive Rights
Display: showing by mechanical
Digital transmission: digital
broadcast of sound recordings
License: temporary, revocable
transfer of right to use work
Assignment: permanent and
irrevocable transfer of elements of
Digital Millennium Copyright Act
DMCA creates civil and criminal
prohibitions against tampering with
copy protection or billing data.
DMCA does not add new exclusive
rights to the bundle held by
copyright owners.
DMCA applies to a variety of digital
Universal City Studios v. Corley
Copyright Procedures
Easy/inexpensive Compared to Patents
• Automatic upon fixation in tangible
medium of expression: printed, recorded,
photographed, sculpted, formed
Registration & Deposit w/ Copyright
• Technical adv. if regis. w/in 5 yrs of pub
• Problems: software code has trade secrets
• No longer prerequisite to infringement suit
or moral rights
Fair Use Defense
Infringement Excused, w/o
Transformative uses
The four factors of fair use
Criticism, comment, news reporting,
teaching, scholarship or research.
Purpose and character of use
Nature of copyrighted work
Amt/substantiality of used portion
Effect of use on potential market
A&M Records, Inc. v. Napster
Notice: © 2001 by John W. Bagby
(also copr. & copyright)
1. Pre-1976 revision: notice required
on all visually perceptible copies,
unless cured, copyright was lost, still
governs events before 1989.
2. Post 1976: precludes infringer w/
access to original making assertion
of innocent infringement
3. Notice may deter infringement
Post-1977 Works
• Life of author + 50 yrs
• Works made for hire 
100 yrs. from creation or 75 yrs from 1st pub.
Pre-1978 registered works - 28 years
• Renewable for another 28 yrs.
Pre-1978 unregistered works - only C/L
• No life+50
Infringement Analysis
Copying or Violation of Any 1 in Bundle
Proof of Copying - Expert Testimony
• Access to original suggests copying possible &
explains similarities
Proof of Illicit Copying - No Experts
Substantial similarity in expression only
Idea-expression dichotomy
Qualitatively vital elements “essence”
Eliminate unprotected ideas, scenes a faire
Comparison Analytics
• Dissect structure: code to functions
• Remove from infringement consideration:
Ideas & their incidents
External factors (interface, IEEE, RS232, VGA)
Public domain
• Core of protectables left compared
Copyright Infringement
Injunction: copying, sales of copies
Destruction of infringing copies
Actual damages or Infringer’s profits
Statutory damages-$500 to $20,000
• Willful: up to $100,000
Attorney’s fees & costs
Criminal penalties for willful violations
• $500,000 &/or 10 yrs. imprisonment