Copyright
Michael I. Shamos, Ph.D., J.D.
Institute for Software Research
School of Computer Science
Carnegie Mellon University
LAW OF COMPUTER TECHNOLOGY
FALL 2015
© 2015 MICHAEL I. SHAMOS
Outline
• History of copyright
• The nature of copyright
• What is copyrightable?
• How are rights divided between author and the
public?
• What special problems does the Internet create?
LAW OF COMPUTER TECHNOLOGY
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© 2015 MICHAEL I. SHAMOS
History of Copyright
• Dates from 15th century (after invention of printing)
• Originally publisher monopoly (not author)
– Granted by the King. King had right of approval
– Publisher paid a fee to the King to publish
• England (1557)
– Monopoly granted to the Stationer’s Company
• England: Licensing Act of 1662
– Illegal to publish anything without a license
LAW OF COMPUTER TECHNOLOGY
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© 2015 MICHAEL I. SHAMOS
History of Copyright
• England: Statute of Anne (1710)
– Limited royal copyright monopolies to 28 years
– “Encouragement of learning, by securing the
Copies of Maps, Charts and Books, to the Authors
and Proprietors of such copies”
• U.S. Constitution (1789)
• First U.S. Copyright Act (1790)
– major revisions in 1831, 1870, 1909, 1976
– minor additions in various years, including Digital
Millennium Copyright Act (1998)
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Constitutional Basis
U.S. Constitution “intellectual property clause”, Art. I, §8(8)
“Congress shall have Power …
To promote the Progress of Science and Useful Arts,
By securing for Limited Times
to Authors
and Inventors
PATENT
the exclusive Right
COPYRIGHT
(BOTH
EXCLUSIVELY
to their respective Writings and Discoveries.”
FEDERAL)
“The district courts shall have original jurisdiction of any civil action
arising under any Act of Congress relating to patents, ... copyrights
and trade-marks. Such jurisdiction shall be exclusive of the courts of
the states in patent ... and copyright cases.” 28 U.S.C. §1338
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© 2015 MICHAEL I. SHAMOS
What Is Copyrightable?
No originality, no copyright
No authorship, no copyright
“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 the aid of a machine or device.”
17 U.S.C. §102 (1976)
Copyright protection begins at the moment of fixation
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© 2015 MICHAEL I. SHAMOS
What Is Copyrightable?
(1) literary works; (includes software, web pages)
(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;
(.gif, .jpg, .bmp)
(6) motion pictures and other audiovisual works;
(flash, streaming video, virtual reality)
(7) sound recordings; (.wav files, MP3, etc.) and
(8) architectural works.
17 U.S.C. §102 (1976)
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© 2015 MICHAEL I. SHAMOS
Online Authorship
• May include
– artwork
– photos
– sounds
– graphics
– logos
– animations
– text
• Page layout and design
• HTML code, JavaScript, …
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What Is Copyrightable?
• Compilations - “ formed by … assembling ...
preexisting materials ... Coordinated … [so] that the
resulting work as a whole constitutes an original work
of authorship.” (many web pages)
• Collective works - a “number of contributions,
constituting separate and independent works in
themselves, ... assembled into a collective whole”,
e.g. a magazine, anthology, or encyclopedia.
(many websites)
17 U.S.C. §101
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© 2015 MICHAEL I. SHAMOS
What Is Copyrightable?
• Derivative works - “based upon one or more
preexisting 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.”
17 U.S.C. §101
ported code. C  Java; rehosted systems; gif  jpeg
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© 2015 MICHAEL I. SHAMOS
What Is Not Copyrightable?
• Words and short phrases such as names, titles, and
slogans
• Blank forms ... designed for recording information [that] do
not in themselves convey information
• Works consisting entirely of information that is common
property containing no original authorship, e.g. calendars,
weight charts, sports schedules, tables taken from public
documents or other common sources.
• Works of the U.S. Government
37 C.F.R. §202.1 (Code of Federal Regulations)
• Useful articles
– The functional aspects of a product (e.g., the handle of a teapot)
are not copyrightable unless they “can be identified separately
from, and are capable of existing independently of, the utilitarian
aspects of the article.”
What Is Not Copyrightable?
• “Sweat of the brow”, the result of “industrious
collection”
• A work assembled through great labor, but without
original authorship, is not copyrightable.
• (What about databases?)
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© 2015 MICHAEL I. SHAMOS
Feist Publications v. Rural Tel.
Service Co., 499 U.S. 340 (1991)
• Rural was a licensed telephone company in Kansas
• It published phone books with both white and yellow
pages for local communities
• Feist published phone directories covering larger
geographic areas
• Rural refused to give Feist a license to include its
directories
• Feist copied Rural’s directories anyway
• When Rural sued, both the District Court and the Tenth
Circuit found Feist liable for copyright infringement
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© 2015 MICHAEL I. SHAMOS
Feist Pubs. v. Rural Tel. Svc. Co.
• The Supreme Court held that white page directories are
uncopyrightable
• The Constitution requires an “original work of
authorship,” which implies a “modicum of creativity”
• A white pages is a rote factual listing of the company’s
subscribers. There is no “authorship” involved
• Even though Rural expended considerable effort in
creating the directory, it was not protectable. (End of
the “sweat of the brow” theory.)
• The yellow pages, which requires artistic layout and
selection of indexing categories, is copyrightable
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© 2015 MICHAEL I. SHAMOS
What Is Not Copyrightable?
“In no case does copyright protection ... 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 [a] work.”
17 U.S.C. §102
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© 2015 MICHAEL I. SHAMOS
Morrissey v. Procter & Gamble,
379 F.2d 675 (1st Cir. 1967)
• Morrisey owned copyright to a set of rules for a sales
promotional contest involving social security numbers
of the participants.
• Procter & Gamble ran a nearly identical contest and
copied Morrisey’s rule 1 very closely.
• Morrisey sued for copyright infringement
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Morrissey v. Procter & Gamble
• Morrisey’s rule:
• P&G’s rule:
Morrissey v. Procter & Gamble,
379 F.2d 675 (1st Cir. 1967)
• District court found for Procter & Gamble
• On appeal, a simple rule admits only a limited number
of different expressions, so allowing Morrisey to have
a copyright would mean that P&G could not run a
similar contest. AFFIRMED. NO INFRINGEMENT
• This is “idea/expression merger”
• Ideas are not copyrightable
• If all expressions of an idea are essentially the same,
there can be NOT COPYRIGHT for any of them –
otherwise, the copyright owner could monopolize the
idea.
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© 2015 MICHAEL I. SHAMOS
Copyright Ownership
• Ownership vests originally in the author
• A “work made for hire” is
– a work prepared by an employee within the “course
and scope of employment”;
– a work specially ordered or commissioned ... if
the parties expressly agree in [writing] that the work
shall be considered a work made for hire.
(MUST BE ONE ONE OF 9 SPECIAL TYPES OF WORKS;
DOESN’T INCLUDE SOFTWARE!)
• For a work made for hire the “author” is the employer
(called the “employer for hire”), NOT THE EMPLOYEE
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© 2015 MICHAEL I. SHAMOS
Works Made for Hire
• “Course and scope of employment” means that the
employer is directing the work - very narrow, e.g. fulltime employment.
• “Special commissioning” only applies to nine types of
works, not including software.
• Example: software written by outside consultants is
not owned by the client unless there is an agreement
to assign.
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Copyright Term
• 70 years after death of last surviving author
• Work made for hire:
– 95 years from first publication
– 120 years from creation
17 U.S.C.
§302
• Term extension to 70 years held constitutional in
Eldred v. Ashcroft, Jan. 15, 2003)
• Non-renewable
• Upon expiration, work enters the public domain
• Termination of transfers. For a period of 5 years
beginning 35 years after publication, an author can
“take back” his work from the copyright owner.
17 U.S.C. §203
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Scorpio Music S.A. et al. v. Willis
(S.D. Cal., 2013)
• Victor Willis, lead singer of The Village People, wrote
33 hit songs in the 1970s, including “YMCA” and “In
the Navy.” (35M YouTube hits)
• He transferred copyright
to Scorpio in 1979
• Willis served notice of
termination effective
2014
• Scorpio sued to prevent
the termination, and
LOST
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Rights Under Copyright
Copyright includes the exclusive right to:
• Reproduce the work (includes copies on disk or RAM)
• Distribute copies by sale, rental, lease or lending
(but owner of an authorized copy may sell, rent, lease or lend it)
• Prepare derivative works
• Perform the work publicly (recite, act out, play,
dance)
• Display (or transmit) the work publicly
17 U.S.C §106
These are further divisible (very finely) by contract
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© 2015 MICHAEL I. SHAMOS
“First Sale” Doctrine
• “[T]he owner of a particular copy … lawfully made
under this title, or any person authorized by such
owner, is entitled, without the authority of the
copyright owner, to sell or otherwise dispose of the
possession of that copy …” 17 U.S.C. §109
• The first sale of a copy “exhausts” the distribution
right and any lawful owner can dispose of his copy
• BUT: the owner of a particular copy of a computer
program (including any tape, disk, or other medium
embodying such program), may not, for the purposes
of direct or indirect commercial advantage, dispose of
that computer program by rental, lease, or lending
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© 2015 MICHAEL I. SHAMOS
What Is Copyright Infringement?
• “Anyone who violates any of the exclusive rights of
the copyright owner ... or who imports copies or
phonorecords into the United States ... is an infringer
of the copyright.”
17 U.S.C. §501
• Remedies:
–
–
–
–
seizure, impoundment
injunction
attorney’s fees (to “prevailing party”)
Either (1) actual damages and any additional profits of
the infringer; or (2) statutory damages of between $200
and $150,000 per work infringed
LAW OF COMPUTER TECHNOLOGY
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© 2015 MICHAEL I. SHAMOS
Testing for Infringement
• There is no copyright infringement of the §106(1)
reproduction right without “copying.”
• Therefore: true “independent creation” is a defense
• Direct evidence of copying is rare. So the test is
– access to the original +
– “substantial similarity” between the original and
the “accused work”
• in the eye of the “ordinary observer”
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© 2015 MICHAEL I. SHAMOS
Pharrell Williams et al. v. Bridgeport Music,
Inc. et al. (C.D. Cal., 2015)
• In 1977, Marvin Gaye (d. 1984) write and recorded
“Got to Give It Up,” which became a worldwide hit
• In March 2013, Pharrell Williams
and Robin Thicke recorded “Blurred
Lines,” which also became a hit
• The estate of Marvin Gaye
immediately claimed copyright
infringement, in that the songs
“feel” or “sound” the same
• Listen
LAW OF COMPUTER TECHNOLOGY
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© 2015 MICHAEL I. SHAMOS
Williams et al. v. Bridgeport Music
• In August 2013, Williams and Thicke sued for a
“declaratory judgment” that they were not infringers
• Williams and Thicke: “Being reminiscent of a ‘sound’
is not copyright infringement. The intent in producing
‘Blurred Lines’ was to evoke an era … the Gaye
defendants are claiming ownership of an entire
genre, as opposed to a specific work.
• Gaye Estate: There are “substantially similar
compositional elements of it in ‘Blurred Lines,’ which
the ordinary observer would recognize as being
appropriated from ‘Got to Give It Up,’ without the
Gaye Family’s knowledge or consent.
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Williams et al. v. Bridgeport Music
• Thicke’s defense: He was “drunk and high on drugs”
at the time. He was “mentally absent” from the
process, adding he was “lucky enough to be in the
room.” Thicke said Williams wrote it on his own.
• Williams testified he wrote “Blurred Lines” in an hour
in 2012, and the pair recorded it in one night.
• A jury in Los Angeles awarded the Gaye Family $7.4
million in past damages for infringement.
• The jury verdict.
• A jury question. Another jury question.
LAW OF COMPUTER TECHNOLOGY
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© 2015 MICHAEL I. SHAMOS
Non-Literal Copying
• Exact copying is not required to find infringement
• In Nicholls v. Universal Pictures (2d Cir. 1930), Judge
Learned Hand made clear that non-literal copying
could be actionable.
• (Play “Abie’s Irish Rose” infringed by movie “The
Cohen’s and the Kelly’s)
• Copyright “cannot be limited literally to the text, else a
a plagiarist would escape by immaterial variations”.
• How close does it have to be?
• Substantially similar – an imprecise test
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Nicholls v. Universal Pictures (2d Cir. 1930
• “Upon any work, and especially upon a play, a great
number of patterns of increasing generality will fit
equally well, as more and more of the incident is left
out. The last may perhaps be no more than the most
general statement of what the play is about, and at
times might consist only of its title; but there is a point
in this series of abstractions where they are no longer
protected, since otherwise the playwright could
prevent the use of his ‘ideas,’ to which, apart from
their expression, his property is never extended.”
• The is the “scène à faire” [scene to make] doctrine,
that overall plots cannot be protected. Also
applicable to computer software
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© 2015 MICHAEL I. SHAMOS
Change of Medium Is Still an
Infringement
•
•
•
•
Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992)
Art Rogers was a photographer. Took the picture on the left
Jeff Koons, a famous artist, made the sculpture on the right from the photo
Koons sold three copies for $367,000 each
HELD, copyright infringement
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Criminal Copyright Infringement
• Any person who willfully infringes a copyright shall be
punished as provided under 18 U.S.C. §2319, if the
infringement was committed
(A) for purposes of commercial advantage or private
financial gain;
(B) by the reproduction or distribution, including by
electronic means, during any 180–day period, of 1 or
more copies … of 1 or more … works, which have a
total retail value of more than $1,000; or
(C) by the distribution of a work being prepared for
commercial distribution, by making it available on a
computer network accessible to members of the public,
if such person knew or should have known that the
work was intended for commercial distribution.
15 U.S.C. §506
By the Way…
Plagiarism may or may not be copyright
Infringement!
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© 2015 MICHAEL I. SHAMOS
Major Ideas
• Copyright derives from the intellectual property clause
of the Constitution
• Only “works of authorship” are eligible for copyright
• Copyright protects expression only, not ideas,
procedures, algorithms or processes
• Infringement is violating any of the exclusive rights of
the copyright owner: reproduction, distribution,
derivative works, public performance, public display
• To have infringement of the reproduction right there
must be a copying
• The test for copyright infringement is “substantial
similarity” in the eye of the “ordinary observer.”
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Q&A
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Registration of Copyright
• Registration of a copyright is optional
• But it does have advantages:
– For U.S. works, it’s required to sue for
infringement
– Registration is usually prima facie evidence of the
facts in the registration: who the author is, when it
was created, when it was published, etc.
– Allows recovery of statutory damages and
attorneys’ fees
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Registration of Copyright
• How to register copyright
– Application form
– Filing fee (usually between $35 and $85; highest
is $400 for “vessel hull designs”)
– “Deposit” of a copy of the work with the Library of
Congress
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Notice
• Notice of copyright is also not required
• But it prevents claims of innocent
infringement
• Form of notice:
– ©, the word “Copyright,” or the abbreviation
“Copr.”,
– The year of publication, and
– The name of the owner of the copyright
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New York Times Co. v. Tasini
533 U.S. 483 (2001)
• The New York Times paid freelance writers for stories. It
did not obtain copyright assignments, but just the right to
include the stories in the newspaper, a collective work.
• Many years later, the Times created an online database of
its articles and sold copies of articles from the database.
• The writers sued, claiming copyright infringement.
• The Copyright Act contains a relevant provision: “In the
absence of an express transfer of the copyright or of any
rights under it, the owner of copyright in the collective
work is presumed to have acquired only the privilege of
reproducing and distributing the contribution as part of [1]
that particular collective work, [2] any revision of that
collective work, and [3] any later collective work in the
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same
series.”
17 U.S.C. 201(c)
New York Times Co. v. Tasini
• The Times claimed that the copy in the Internet
database was a “revision” under the statute.
• District court agreed. Reversed on appeal. The
Second Circuit relied on an ejusdem generis
argument to interpret “any revision of that collective
work”
• Supreme Court affirmed June 25, 2001 using
different reasoning
• The statute does not authorize reproduction of the
articles standing alone, but only as part of a collective
work
• Publisher’s analogy to microfilm failed because the
microfilm contains the entire collective work
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© 2015 MICHAEL I. SHAMOS