File-swapping, Licensing & Other Copyright Developments Paul D. Callister, JD, MSLIS Director of the Leon E. Bloch Law Library & Associate Professor of Law Email callisterp@umkc.edu http://www1.law.umkc.edu/faculty/callister/presentations/fileswapping.jrc.ppt © 2006, Paul D. Callister. This work is licensed under a Creative Commons Attribution-NoDerivs 2.5 License.

Objectives Advising Youth Groups, Parents and Church Members Cover Basic Law Best Licensing and Copyright Practices for Law Firms

Advising Youth Groups, Parents and Church Members

Sony, others sue 9 U-M downloaders; Record companies accuse students of taking music illegally David Shepardson Lawyers for 11 record labels are suing nine unnamed University of Michigan students in federal court in Detroit for illegally downloading music. . . . File sharing digital copies of music has hurt retail music sales, the recording industry argues. It says sales were off 7 percent in 2000, 10 percent in 2001 and 11 percent in 2002. . . . The Recording Industry Association of America has settled other cases of alleged illegal downloading for around $3,000 per individual. The organization has sued hundreds of people across the country, but this is the first Michigan suit. . . . Record companies have sued 1,977 people since launching a legal battle in 2003 against online music theft and have settled around 400 cases out of court.

Youth Survey: Is it ok to . . . . Copy anything so long as it doesn’t have a ©?___________ Tape your favorite episode of Thomas the Tank Engine from the TV?___________ Load favorite EFY music CD onto your home computer?___________ Make a “compilation” CD of your favorite songs?___________ To share it with friends?___________ To create a home video for a school project with Smashing Pumpkins as the audio sound track?___________ Play Barney videos when assigned to watch nursery at church?___________ Download music from the Internet?___________ Download software to download and copy free movies?___________ Copy movies onto/from DVDs?___________ Give your best friend your copy of MS Paint Shop Pro so that she can complete a school project?___________ Enable others to access music files from your computer as part of a file sharing network?___________

LDS Faith Article of Faith 12 We believe in being subject to kings, presidents, rulers, and magistrates, in obeying, honoring, and sustaining the law. Doctrine & Covenants 58:21 Let no man break the laws of the land, for he that keepeth the laws of God hath no need to break the laws of the land. Article of Faith 13 We believe in being honest, true, chaste, benevolent, virtuous, and in doing good to all men . . . .

Open Access Sites

The Law

The Law - Copyright 17 U.S. Code § 106 The owner of copyright . . . has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies . . . of the copyrighted work to the public . . . ; (4) in the case of literary, musical, dramatic . . . and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic . . . pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

The Law – Copyright - Exceptions Public Domain Government Documents Before 1923 Permission Orphan Works Copyright Clearance Center (http://www.copyright.com/) First Sale Sell the copy you bought Lend the copy you bought Fair Use (§ 107) Library Exceptions (§ 108)

The Law – Copyright – Fair Use 17 U.S. Code § 107 The fair use of a copyrighted work, including such use by reproduction in copies . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

The Law – Copyright – Library Exemption under § 108 Not just for non-profit libraries. “Libraries within industrial, profitmaking, or proprietary institutions are also eligible for the exemption as long as the reproduction (and distribution) was itself not commercially motivated.” 2-8 Nimmer on Copyright § 8.03 Collection must be open Copy notice requirement Single copy limit - “This does not mean, however, that a single reproduction (and its distribution) exhausts the exemption with respect to the particular work reproduced. Rather, there may be repeated reproduction and distribution ‘of a single copy or phonorecord of the same material on separate occasions.’”2-8 Nimmer on Copyright § 8.03

Vicarious Liability - Sony, Napster & Grokster Materially Contributes Host site and facilities for direct infringement Injunction not overbroad Intention Inducement (Grokster) Specific infringing material Failure to Act Actual Knowledge (Napster) Specific infringing material Vicarious Liability (Respondent Superior) Right to supervise or control Ability to supervise or control (integrated service) Direct financial benefit Constructive Knowledge (Sony) May use to to make unauthorized files Negated by substantial non- infringing uses (Sony) Current uses & Future (potential) uses Vicarious copyright infringement derives from Respondeat Superior

The Law – Copyright - Penalties 17 U.S. Code § 504 (c) (Civil Penalty) (1) The copyright owner may elect, at any time before final judgment is rendered, to recover. . . a sum of not less than $ 750 or more than $ 30,000 as the court considers just. (2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $ 150,000. 18 U.S. Code § 2319 (Criminal) (b) Any person who commits an offense under section 506(a)(1)(A) of title 17 -- (1) shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies . . . which have a total retail value of more than $ 2,500 . . . .

The Law – DMCA 17 U.S. Code § 1201 (a)(1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. (2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that-- (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title . . . . (3) As used in this subsection-- (A) to "circumvent a technological measure" means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner. . . .

The Law – DMCA – Exceptions/Exclusions? Public Domain – Yes Permission – Yes First Sale – No! Fair Use – No!

The Law – DMCA – Penalties 17 U.S. Code § 1203 (c)(3) (Civil Penalty) (A) A complaining party may elect to recover an award of statutory damages for each violation of section 1201 in the sum of not less than $ 200 or more than $ 2,500 per act of circumvention, device, product, component, offer, or performance of service, as the court considers just. (B) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1202 in the sum of not less than $ 2,500 or more than $ 25,000. 17 U.S. Code § 1204 (Criminal Penalty) (a) In general. Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain-- (1) shall be fined not more than $ 500,000 or imprisoned for not more than 5 years, or both, for the first offense . . . .

DMCA – ISP Subpoena 17 USCS § 512 (h) Subpoena to identify infringer.    (1) Request. A copyright owner or a person authorized to act on the owner's behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection.    (2) Contents of request. The request may be made by filing with the clerk--       (A) a copy of a notification described in subsection (c)(3)(A);       (B) a proposed subpoena; and       (C) a sworn declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights under this title.    (3) Contents of subpoena. The subpoena shall authorize and order the service provider receiving the notification and the subpoena to expeditiously disclose to the copyright owner or person authorized by the copyright owner information sufficient to identify the alleged infringer of the material described in the notification to the extent such information is available to the service provider. But see, Recording Indus. Ass'n of Am., Inc. v. Verizon Internet Servs., 359 U.S. App. D.C. 85 (D.C. Cir. 2003)(“a subpoena could be issued only to an ISP engaged in storing on its servers material that was infringing or the subject of infringing activity, and not to a mere conduit ISP”)

Licenses

Framework of Licensing Issues Which Rights are Addressed by Agreement? What Law Applies? UCITA, UCC Article 2, UCC Article 2A, Common Law, etc. Formation--“Click Wrap,” and “Shrink Wrap” Enforceability of Contractual Terms Against a Fundamental Public Policy or Conflicting with Other Law Choice of Law and Forum Warranties Remedies—Electronic Self-Help

Law Firm Best Practices – Licensing and Copyright LibLicense (at http://www.library.yale.edu/%7Ellicense/) - Yale University's librarian resource for licensing digital information. Model agreements and sample vendor agreements, initiatives, vocabulary, bibliography, etc. AALL Licensing Principles for Electronic Resources (at http://www.aallnet.org/committee/reports/LicensingPrinciplesElecResources.pdf) - Standard for libraries in reviewing licensing agreements. AALL Model Law Firm Copyright Policy (http://www.aallnet.org/about/model_law.asp) – Currently under revision for electronic materials but provides model language for many firm compliance issues. Copyright Clearance Center (at http://www.copyright.com/) - "Go-to" site for getting permission. Paul D. Callister, Digital Content Licensing, ENCYLOPEDIA OF LIBRARY AND INFORMATION SCIENCE 873 (2003), available at http://www.dekker.com/sdek/linking~db=enc~content=a713532012 – Outlines contractual issues of licensing electronic information.

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