COPYRIGHT LAW 2002 Columbus School of Law The Catholic University of America Prof. Fischer Class 26 (APRIL 22, 2002)

WRAP-UP: FAIR USE To determine whether fair use applies, courts must consider 4 fair use factors in 17 U.S.C. § 107. Courts are allowed to consider other factors too, and they sometimes do, such as considering the amount and substantiality of the portion used in comparison to the defendant’s work, as well as the propriety of the defendant’s content.

Fair Use Generally: To Consider Are all these fair use cases that we read in the last class just hopelessly inconsistent? How does one advise a client on the issue of fair use? How, if at all, should the doctrine be changed?

Sega v. Accolade: Intermediate Copying Accolade is a game developer that made and markets game software that was compatible with Sega’s Genesis console, without being a licensee of Sega. How did Accolade make sure its games were compatible with Sega’s console?

Sega v. Accolade: Intermediate Copying 1. Reverse engineered Sega’s video game programs - used decompilation to dissasemble object code to source code and created a manual that included description of interface requirements but not code. 2. Relying on information in the manual, Accolade created games for the Genesis.

Is Intermediate Copying Infringement? Did the 9th Circuit in Sega find that intermediate copying constituted a copyright infringement where copies were not made available to the public but the fruits of the copying were?

Is Intermediate Copying Infringement? Did the 9th Circuit in Sega find that intermediate copying constituted copyright infringement where copies were not made available to the public but the fruits of the copying were? Intermediate copying during the reverse engineering process would infringe even if the end product did not.

Is Reverse Engineering Fair Use Did the 9th Circuit in Sega find that reverse engineering was a fair use? How did the 9th Circuit apply the fair use factors?

Is Reverse Engineering Fair Use Did the 9th Circuit in Sega find that reverse engineering was a fair use? Yes, “where disassembly provides the only means of access to those elements of the code that are not protected by copyright and the copier has a legitimate reason for seeking such access”. Found 1st, 2d and 4th fair use factors to support Accolade. Particular concern about unfair monopolization fo market.

Sony v. Connectix (9th Cir. 2000) Issue here: entrepreneur reverse-engineers a console’s operating system to create a rival console that plays Sony games. In Accolade, the entrepreneur reverse engineered the operating system to sell compatible computer games. Thus the reverse engineering resulted in a product that did not compete with the reverse engineered work, whereas in Connectix, it did.

Sony v. Connectix (9th Cir. 2000) Issue here: entrepreneur reverse-engineers a console’s operating system to create a rival console - does that matter when considering first and fourth fair use factors?

Sony v. Connectix (9th Cir. 2000) Issue here: entrepreneur reverse-engineers a console’s operating system to create a rival console - does that matter when considering first and fourth fair use factors? No - both factors support fair use. Connectix’s Virtual Game Station is transformative and does not just supplant the Sony PlayStation; Connectix is a legitimate competitor.

Sony v. Bleem (9th Cir. 2000) What did Bleem do that Sony termed an infringement? Did the 9th Circuit find that Bleem’s use of Sony’s copyrighted work was a fair use? Why or why not?

Application of Fair Use to New Technologies: Home Taping: Sony D Sony made the Betamax VTR; there were other defendants as well who marketed the Betamax and used it at home Plaintiffs were copyright owners of broadcast TV television programs P argued that the home videotaping of their programs was an infringement and Sony was liable as a contributory infringer

Contributory Infrigement What’s contributory infringement?

Contributory Infrigement What’s contributory infringement? It is one of 2 types of indirect infringement for which there is liability. The other type is vicarious infringement. Of course both require that there be a direct infringement of copyright.

Contributory Infrigement What’s contributory infringement? This is indirect liability for copyright infringement. The idea is if you directly contribute to another’s infringement you should be liable. Classic statement: Gershwin v. Columbia Artists Mgt. (2d Cir. 1971): “One who with knowledge of the infringing activity induces, causes, or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory infringer’.

Vicarious Infringement This doctrine comes from the tort doctrine of respondeat superior. To be liable, there must be control and financial benefit. Gershwin: [E]ven in the absence of an employer-employee relationship, one may be vicariously liable if he has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities.”

Back to Sony Did the sale of the Betamax VTR constitute contributory infringement? Why or why not?

Back to Sony Did the sale of the Betamax VTR constitute contributory infringement? Why or why not? No, it did not - it was fair use“where the product was widely used for legitimate unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.” What were these uses?

Sony What were these uses? Time-shifting, which was fair use; it was noncommercial and there was no proof of past harm to plaintiffs’ market and also no substantial likelihood of future harm.

NAPSTER: Another contributory infringement case Describe the argument that defendants made that relied on Sony. Did the 9th Circuit find this argument persuasive? Why or why not? Was Napster’s use of plaintiffs’ copyrighted works a fair use? Why or why not?

The Aftermath of Napster Ninth Circuit found that the court’s preliminary injunction was overbroad. It was remanded back to the lower court for revision. Napster was ordered to block access to 100% of copyrighted songs or stay offline forever. This was upheld by 9th Cir. In 7/02 In the meantime, Napster has focused on trying to develop a subscription service

Latest in Napster: Tide Turns on the Music Industry? In February, Judge Patel, denying summary judgment for the music industry, ruled that the music industry’s hands were also dirty and that they would have to prove ownership of copyrighted music before getting damages for copyright infringement. The music industry had until March 7 to produce evidence of ownership.

To Watch Case has been brought by RIAA against file sharing services Grokster, Morpheus and Kazaa Trial date has been set for October, 2002 which means this case will be tried earlier than Napster, which was brought earlier, in 1999 but has had lots of pre-trial wrangling Claim is that these services are decentralized and differ from Napster

MP3.com How did MP3.com service infringe plaintiff’s copyrights, according to Judge Rakoff? Why was this not fair use, according to Judge Rakoff? Do you agree?

Kelly v. Arriba Was Defendant's display on a visual search engine of lower resolution "thumbnails" of copyrighted images appearing elsewhere on the Internet, without the copyright owners' permission, a fair use? What about the display of the full image? Does Google’s visual search engine infringe copyrights?

Kelly v. Arriba Defendant's display on a visual search engine of lower resolution "thumbnails" of copyrighted images appearing elsewhere on the Internet, without the copyright owners' permission, is a protected fair use of those images under the Copyright Act. The court further holds that defendant's display of the full copyrighted image as part of its search engine results, either via inline linking or framing, infringes the copyright owner's right to publicly display the work. Does Google’s visual search engine infringe copyrights?