Copyright Law
Ronald W. Staudt
Class 16
March 23, 2009
Obama administration sides
with RIAA in P2P lawsuit
by Declan McCullagh
cNet News, 3/23/2009
The Obama administration has sided with the recording industry in a copyright
lawsuit against an alleged peer-to-peer pirate, a move that echoes
arguments previously made by the Bush administration. ***
The Massachusetts case could prove to be an important one. A group of
Harvard law school students, with the help of Harvard law Professor
Charles Nesson, is providing defendant Joel Tenenbaum with an aggressive
legal defense. They aim to convince the courts that the law the RIAA relies
on so Draconian it amounts to "essentially a criminal statute" and is
therefore unconstitutional; that it grants too much authority to copyright
holders; and that it violates due process rights guaranteed by the U.S.
Constitution.
Those are the arguments that the Justice Department is attempting to refute.
Its brief says that while the administration "does not address" the
nonconstitutional arguments, "if the court finds it necessary to reach the
constitutional questions at this time, then it should reject each of
defendant's constitutional claims."
Sect 106(1) Reproduction Right
What is a copy?
"Copies" are material objects, other than phonorecords, in
which a work is fixed by any method now known or later
developed, and from which the work can be perceived,
reproduced, or otherwise communicated, either directly or
with the aid of a machine or device. The term "copies"
includes the material object, other than a phonorecord, in
which the work is first fixed.
RAM as a copy
Sect 106(1) Reproduction Right
Who is copying?–
20th Century v. Cablevision Supp. p 67
How does RS-DVR work? Where is the
copy? Arroyo Server? Where is the
server?
Is RS-DVR the same as a VCR or local
DVR?
Infringement
Arnstein v. Porter
Facts – Begin the Beguine & The Lord is My Shepard
Prima Facie case
ownership
copying
improper appropriation
Infringement
Arnstein v. Porter
Prima Facie case
COPYING proved by
Defendant’s admission or
Circumstantial evidence: Access + similarity
if no similarity then no amount of evidence of access will
prove copying
if evidence of access & similarity, then trier of fact with
experts and dissection
If striking similarity may not need to prove access
Infringement
Arnstein v. Porter
Prima Facie case
IMPROPER APPROPRIATION
Lay observer– no experts or dissection
Striking similarity can do double duty but proof of
improper appropriation need not be enough to
prove copying.
Often called “Substantial similarity”
• Quality and quantity of expression
• Different from “probative similarity”
Infringement
Arnstein v. Porter- Frank’s Opinion
1. copying- similarities exist,
What about access? Is truth stranger than fiction?
2. appropriation?
Both 1 & 2 are Questions of fact for the jury!!!!
Dissent by Clark
Too little similarity, even after dissection, to go to the
jury.
Dawson v. Hinshaw Music and Lyons v. Morris
Who is the ordinary observer?
Proof of copying
Bright Tunes Music Corp
He’s So Fine v. My Sweet Lord
Unconscious copying
V.
Proof of copying
How Deep is Your Love?
(Selle v. Gibb) 7th
Circuit
v.
Feelings (Gaste v. Kaiserman) 2d Circuit
Phantom Song and Ty’s Squealer
Resolved by Judge Posner in Ty:
This discussion shows how the tension between Gaste and
Selle can be resolved and the true relation between
similarity and access expressed. Access (and copying) may
be inferred when two works are so similar to each other
and not to anything in the public domain that it is likely
that the creator of the second work copied the first, but the
inference can be rebutted by disproving access or
otherwise showing independent creation—
 Celebrity v. Survivor
Proof of Copying
Price v. Fox
page 70-72 in the Supplement
 Facts?
 Similarity
“After examining both works and reading
the evidence in the light most favorable to
plaintiffs, I conclude that a jury could reasonably find that the two works
contain similarities that are probative of copying.”
plot similarities,
character names and characteristics
 Access through a particular chain of events or link :
“…a reasonable jury could conclude that there is a reasonable possibility
that Thurber had access to the Thomas Work given the evidence of
 the speed at which he wrote his screenplay,
 the timing of the appearances of certain similarities between the two works,
and
 the relationships he had with WMA employees who either actually had access
or had a reasonable possibility of access to the Thomas Work.”