COPYRIGHT LAW 2006 Columbus School of Law The Catholic University of America Prof. Fischer November 20, 2006

PUBLIC PERFORMANCE AND DISPLAY RIGHTS What works do these apply to? See 106(4), (5), and (6) Basically if it moves it’s a performance (e.g. plays, dances, movies, public readings of books) and if not a display (e.g. paintings, sculptures, physical copies of books) For sound recordings - to perform publicly by means of a digital audio transmission, such as webcasting over Internet

PUBLIC PERFORMANCE 1. Public performance if perform at a place open to public or where a substantial number of persons outside of a normal circle of family and social acquaintances are gathered 2. Or if transmit to a place specified in clause (1) or to public by means of any device or process where members of public capable of receiving performance receive in same place or in separate places and at same time or separate times.

IS IT A PUBLIC PERFORMANCE If you rent a movie and show it at home to 12 friends and neighbors? If you show it at summer camp? If you broadcast it on network TV?

PERFORMING RIGHTS SOCIETIES What’s a performing rights society? What are the big 2 performing rights societies in the U.S.?

PERFORMING RIGHTS SOCIETIES ASCAP, BMI are the 2 biggest (SESAC is another small one) How does ASCAP work? What is a blanket license? Note that ASCAP can’t sue for infringement in its own name. How do you challenge ASCAP or BMI fees? What’s the difference between GRAND rights and SMALL rights?

RIGHT OF PUBLIC DISPLAY See section 106(5) Only applies to certain kinds of work See definition of “display” in section 101 How does First Sale doctrine apply to the right of display? See 109(c) nge.com/rates.html

DIGITAL PERFORMANCE RIGHT IN SOUND RECORDINGS Prior to section 106(6), no public performance right for sound recordings Added in 1995 (amendments to 106, 114). Why? Digital Performance Right in Sound Recordings Act of 1995: new statutory license Digital Millennium Copyright Act of 1998: expanded statutory license to include webcasting

Section 114 statutory license Section 114 statutory license covers: public performances by four classes of digital music services: eligible nonsubscription services (i.e., noninteractive webcasters and simulcasters that charge no fees), preexisting subscription services (i.e., residential subscription services providing music over digital cable or satellite television), new subscription services (i.e., noninteractive webcasters and simulcasters that charge a fee), and preexisting satellite digital audio radio services (i.e., XM and SIRIUS satellite radio services).

Section 112 statutory license The section 112 statutory license covers ephemeral reproductions (i.e., temporary server copies) made by all digital music services covered by the section 114 license as well as certain background music services that are exempt from paying public performance royalties under section 114.

DIGITAL PERFORMANCE RIGHT Rates now set by Copyright Royalty and Distribution Act 2004 arbitration proess (3 Copyright Royalty judges). See current rates at:

FULL PERFORMANCE RIGHT IN SOUND RECORDINGS IN 1994 and 1996 Congress considered creating a full performance right in sound recordings, in addition to that for musical compositions. Is a general public performance right appropriate for sound recordings? How should it be squared with the existing public performance right for musical compositions?

What Public Interest Exceptions Exist For Right of Public Performance and Display? See section 110

What Exceptions Exist For Right of Public Performance and Display? Face-to-face teaching 110(1) certain instructional broadcasts 110(2) - note controversy over whether this is appropriate in a digital age for distance learning played/sung as part of religious service 110(3) nonprofit performance 110(4)

COMPULSORY LICENSES Section TV broadcast relays Section satellite transmission Section recordings of musical works Section jukeboxes Section public broadcasting Section 114 – performances digital sound recordings (not updated since 2003).

Law: Protection for Technological Protections WIPO Copyright Treaty of 1996 (WCT) (Art. 11) see (46 members on 3/24/2004) at: entered into force 3/6/2002

WCT Art. 11 Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

DMCA Digital Millennium Copyright Act of 1998 (DMCA) is U.S implementing legislation for the WCT – previous attempts to introduce similar legislation prior to the WCT had failed Why did the copyright industries demand additional legal protection for digital works?

Technical Protection Measures The technical protection provisions in the Digital Millennium Act of 1998 responded to fears that digital format made copying easy and cheap and existing copyright law provided ineffective protections against piracy of copyrighted works. These provide special legal protections where a copyright owner uses technological self-help measures. What is technological self-help/technological protections for copyrighted works? What special protections does the DMCA now provided for technological protections?

DMCA s kinds of protection. The DMCA distinguishes between Access Control Measures (stronger) Copy Control Measures (weaker) Note – not technology-specific

Access Controls: DMCA section 1201(a)(1): “No person shall circumvent a technological protection measure that effectively controls access to a [copyrighted] work…” This prohibits access to a work that is encrypted or protected by similar technologies, not just access to a copy of the work. Thus this right broadens copyright owner’s rights. Does this result in overprotection? Does it destroy fair use?

DMCA 1201(a)(2): Anti- Trafficking Provisions – Access Prohibits manufacturing, importing, offering to public, provide, traffic in technology that is primarily designed to circumvent technological protection measures that effectively control access, has only limited commercially significant purposes except to circumvent technological protection measures, or is marketed by that person with knowledge for use in circumventing technological protections. How is this different from the access control provisions?

Anti-trafficking: Copy Controls – s. 1201(b)(1) Rather similar to access controls but bars manufacture or trafficking in technologies that are primarily designed or produced for the purpose of circumventing technological measures that effectively protects a right of the copyright owner [as opposed to access to the copyrighted work]

Penalties under DMCA What civil and criminal penalties are applicable to violations of the DMCA?

Penalties under DMCA S (civil) – injunctive relief, damages (actual or statutory ($200 to $2500 for act of circumvention, device, product etc..; triple damages for repeated violation), costs, attorney’s fees). Reduction possible for innocent violation, special innocent infringer provision for schools, archives, nonprofit libraries. S (criminal) – first offense: fine up to $500,000 and/or imprisonment up to 5 years; subsequent offense: fine up to $1 million and/or imprisonment up to 10 years –exempts schools, archives, nonprofit libraries

Does Fair Use Survive the DMCA?

S. 1201(c) (1) provides: “Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.” -also doesn’t affect vicarious or contributory liability or free speech rights

DMCA s (d)-(j) Section 1201 (d)-(j) provides exceptions for, e.g., certain reverse engineering, law enforcement activities, certain library uses, certain encryption research, privacy protection, protection of minors, security testing of computer systems Also – rulemaking provision under s. 1201(a)(1)(B)-(D).

First Triennial Inquiry Are there particular “classes of works” as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses if they are prohibited from circumventing such technological measures On October 27, 2000, Library of Congress/Copyright Office issued a final rule identifying 2 classes of works exempt from access provisions

Exemptions following first Copyright Office triennial inquiry 1. Compilations of lists of web sites blocked by filtering software applications 2. Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness In future there may be a need for more exemptions

Second Triennial Inquiry Announced Oct. 23, 2003 Exempts 4 categories of works

Exempted category 1 1) Compilations consisting of lists of Internet locations blocked by commercially marketed filtering software applications that are intended to prevent access to domains, websites or portions of websites, but not including lists of Internet locations blocked by software applications that operate exclusively to protect against damage to a computer or computer network or lists of Internet locations blocked by software applications that operate exclusively to prevent receipt of .

Exempted category 2 (2) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.

Exempted category 3 (3) Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

Exempted category 4 (4) Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling of the ebook's read-aloud function and that prevent the enabling of screen readers to render the text into a specialized format.

Realnetworks, Inc. v. Streambox One of the first real analyses of circumventing conduct What about unauthorized inputting of a password? See IMS v. Berkshire (SDNY 2004)

Universal City Studios v. Reimerdes CB p. 964 Plaintiffs: 8 major motion picture studios Defendants included (l) Eric Corley a.k.a. Emmanuel Goldstein, publisher of 2600: The Hacker Quarterly Ps alleged violations of DMCA – how did defendants respond?

Jon Johansen: Creator of DeCSS Norwegian teenager: 15 years old when he created DeCSS Prosecuted under s. 145(2) 145(2) of the Norwegian Criminal Code, which punishes "any person who by breaking a protective device or in a similar manner, unlawfully obtains access to data or programs which are stored or transferred by electronic or other technical means." Acquitted in Jan. 2003, under appeal

See an essay by Nowegian professor Jon Bing at: utions/Johansen_DeCSS_case/ _bi ng_johansen_case_summary.html utions/Johansen_DeCSS_case/ _bi ng_johansen_case_summary.html For a Norwegian legal perspective

Protesters at the federal trial (2000) “Electronic Civil Disobedience?”

REIMERDES Cause of action: DMCA 12(a)(2) – anti- trafficking provisions Defense: Actions don’t violate DMCA and DMCA violates the First Amendment/Copyright Clause by obstructing fair use and DMCA violates limits on duration in Copyright Clause

JUDGE KAPLAN Finds (after full jury trial) 1. Posting DeCSS was a violation of 1201(a)(2) that was not protected by statutory exceptions for fair use, good faith encryption research, or security testing or by fair use, as was linking where knew offending material on linked-to-cite and knew unlawful circumvention technology and link created to disseminating that technology.. 2. Anti-trafficking provisions constitutional under first Amendment 3. Awards injunctive and declaratory relief- to deter

REIMERDES APPEAL Second Circuit ruled in November to affirm Judge Kaplan’s order Kathleen Sullivan, the Dean of Stanford Law School and a noted constitutional scholar, argued the appeal for the defendants. Review by the U.S. Supreme Court is not sought

More DMCA litigation Considerable number of cases have been brought under the DMCA Some, such as EFF Fred Von Lohmann, have alleged that the unintended consequences of the DMCA litigation is that it is being used not to control piracy but to stifle competition, to impede free expression and scientific research, and to jeopardize fair use. See: nintended_consequences.html nintended_consequences.html Some prominent commentators like Pamela Samuelson have argued for revision of DMCA Copyright industries counter that the DMCA is necessary to combat the growing problem of piracy

321 Studios Case Which provision of the DMCA was at issue?

321 Studios Case Which provision of the DMCA was at issue? Argument that 321 Studios was violating the anti-trafficking provisions in 1201(a)(2) and 1201(b)(1) by marketing of DVD copying software – DVD Copy Plus and DVD-X-COPY

Felten Case Edward Felten is Associate Professor, Dept. of Computer Science, Princeton University – see “Freedom to Tinker” blog at: to-tinker.com/ to-tinker.com/ RIAA warned conference organizers that publishing Felten’s paper on SDMI research would violate DMCA What happened after that?

Sklyarov/ElcomSoft Prosecution: ElcomSoft was acquitted

DMCA- copyright management provisions S Kelly v. Arriba Soft Concerns of Professor Julie Cohen re: privacy – loss of anonymity