Copyright & Licensing 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/copyright.kcall.ppt © 2007, Paul D. Callister. This work is licensed under a Creative Commons Attribution-NoDerivs 2.5 License.

Survey: Is it ok to . . . . Copy anything so long as it doesn’t have a ©? _____ Tape your favorite episode of CSI and store in firm’s library from the TV? _____ Post copy of law review article downloaded from Hein Online that was authored by a firm attorney, if he or she retained the copyright? _____ Make a copy of the same article if it was downloaded from Hein Online by UMKC Law Library and then sent to you via its document delivery service? Make a copy of a single section from Nimmer on Copyright in print for a partner in the firm? _____ Does it matter if she is in another office? _____ Send a copy of a Chapter of Nimmer on Copyright in print to another law firm with which you share an interlibrary loan network via email in a PDF format? _____ Same as previous question, but to save work you use a digital version from Lexis. Is it ok? _____

Survey: Is it ok to . . . . Archive for preservation another firm’s client web newsletter? _____ Archive tax regulations from a web site in Saudi Arabia? _____ Create an in-house training tutorial for Lexis and Westlaw using screen shots on which you have drawn arrows? _____ Use a sound recording from a 1935 radio program if you bought the recording but cannot, after considerable effort, locate the rights holder for permission? _____ Use software to snippet of DVD version of Legally Blond? _____ Same thing, but you take the snippet from a video tape? _____ Use any photograph from the Web in a presentation as long as it comes from a .gov site? _____ Copy and distribute this presentation? _____

License? Get Permission? Is Restriction Enforceable? Lacks Originality? or Public Domain? OK Stop Orphan Work? Fair Use? § 107 or Library Exemption? § 108 Circumvention? § 1201 DMCA Blue = Yes Red = No

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.

Originality and Derivative Works Problems with Cases Reporters Headnotes – Yes Key Numbers -- Yes Syllabi – Yes Attorney’s Names – No (Second Cir.) Emended Citations – No (Second Cir.) Subsequent Case History – No (Second Cir.) Pagination – ? (Divided Second Cir. and D.C. Cir.) See 1-3 Nimmer on Copyright § 3.03

Copyright Term & Public Domain http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm

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

Enforceability of Terms “Violating a Fundamental Public Policy”--UCITA Criticism of Software - UCITA § 205, Comment 3 – prohibition of criticizing software is problematic (mass market of final product v. negotiated release of early, pre-public release) Consumer protection laws - UCITA allows preemption of federal law and state consumer protection laws) Fair use and other Copyright Privileges – Recognizes public interest but fundamentally advocates enforceability. Distinction between negotiated and mass market licenses. Prohibitions of multiple copies, use of information for commercial purposes, limited number of authorized users, or modification of agreement are all thought to be enforceable under UCITA (even for mass market licenses). Terms in a “mass market” agreement that prohibit persons from observing the visible operations or characteristics of software and using the observations to develop noninfringing commercial products, the prohibit quotation of limited material for purposes of education or criticism, or that preclude a nonprofit library licensee from making an archival (backup) copy would ordinarily be invalid in the absense of showing significant commercial need.

Enforceability of Terms “Violating a Fundamental Public Policy” - Continued UCC article 2 and 2A also address unconscionable contracts and conflicts with public policy. Davidson & Associates v. Jung, 422 F.3d 630, (8th cir. 2005) (Missouri state law applied) – “Owner's state law claims for breach of end user license agreement and terms of usage agreement were not preempted by federal copyright law.” Also violated anti-circumvention and anti-trafficking provisions of DMCA.

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 – 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 . . . .

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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