COPYRIGHT LAW 2006 Columbus School of Law The Catholic University of America Prof. Fischer Class 23 November 8, 2006

WRAP-UP POINTS: INFRINGEMENT To sustain an action for infringement, copyright owner must prove 1. Ownership of valid copyright 2. Copying by D 3. Unlawful Appropriation by D

SECOND GENERATION SOFTWARE CASES To what extent can competitors copy nonliteral elements, such as program’s underlying structure, sequence, or organization. How far does copyright protection extent beyond the literal elements of a work?

NON-LITERAL COPYING Should non-literal copying of computer software be protected under copyright law? What are the economic arguments in favor and against this? What about the jurisprudential arguments?

Whelan Associates v. Jaslow Dental Laboratory, Inc. (3d Cir. 1987) Involves computer program for operation of dental lab First case about nonliteral copying of computer software Issue: How do you separate idea from expression? What was the Whelan rule for doing this?

Whelan Associates v. Jaslow Dental Laboratory, Inc. (3d Cir. 1987) Third Circuit said that idea of program was its purpose or function - so idea was efficient management of a dental lab. Treated computer programs like literary works Heavily criticized Do you think it is a sensible rule?

Computer Associates Int’l v. Altai, Inc. (2d Cir. 1992) Was there access? Did the Court follow Whelan? Why or why not?

MORE on COMPUTER ASSOCIATES Can programs with little protectable material be freely copied under the Altai test? Many commentators, e.g., Pamela Samuelson, have praised Altai’s approach. Many large computer companies dislike it. Nevertheless it has been adopted by many courts - indeed all courts since 1992 have preferred Altai over Whelan.

SUBSEQUENT JUDICIAL ADOPTION OF ALTAI Unfortunately, not all courts have approached the abstraction-filtration-comparison analysis in precisely the same way The 10th Circuit, in Gates Rubber is well-known for having moved beyond Altai – based its reasoning on a law student’s article: John W.L. Ogilvie, Defining Computer Program Parts Under Learned Hand’s Abstractions Test in Software Copyright Infringement Cases, 91 Mich. L. Rev. 526 (1992)

GATES RUBBER (10th Cir. 1985) Court gives further content to abstraction test - identifies 6 levels of gradually declining abstractions Court also gives further content to filtration part of Altai analysis

GATES RUBBER (10th Cir. 1985) Court gives further content to abstraction test - identifies 6 levels of gradually declining abstractions Court also gives further content to filtration part of Altai analysis

KURT ADLER V. WORLD BAZAARS Turn to p Does Photo B infringe Photo A? (Access is acknowledged). Why or why not?

Gross v. Seligman (2d Cir. 1914)

Franklin Mint Corp v. Nat’l Wildlife Art Exchange (3d Cir. 1978) CB p. 588

RIGHT TO MAKE PHONORECORDS See s. 106(1) Definition of Phonorecords: 101 Must be fixed A phonorecord often embodies two fixed copyrighted works

COPY OR PHONORECORD? Copies and Phonorecords are mutually exclusive – why did it matter whether smething was a copy or a phonorecord in ABKCO v. Stellar? CB p. 591

Compulsory License White Smith Music Publishing v. Apollo (1908) : was a piano roll a copy? Result of case: compulsory license adopted in 1909

ALISON

RIGHT TO MAKE/DISTRIBUTE PHONORECORDS What would Linda Ronstadt have to do to ensure that her recording of Alison did not infringe Elvis Costello’s copyright in the song?

MECHANICAL LICENSE What’s a mechanical license? See section 115

MECHANICAL LICENSE Primary purpose to distribute to public for private use Phonorecords must have been distributed under authority of copyright owner Can’t use for pirating of sound recordings Must serve TIMELY notice of intention on copyright owner Must pay royalty established now by ad hoc arbitration panels (now 9.1c/song or 1.75 cents per minute whichever larger)

WHAT HAPPENS IF YOU FAIL TO SERVE TIMELY NOTICE UNDER s. 115(b)? See Cherry River Music v. Simitar Entertainment (S.D.N.Y. 1999)

CHANGING THE SONG To what extent can Linda Ronstadt validly change the song Alison in her recording of it under a compulsory license?

CHANGING THE SONG See s. 115(a)(2) - she can make a musical arrangement “to the extent necessary to conform it to the style or manner or interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work” without Costello’s express consent.

Harry Fox Agency What does it do?

: THE HARRY FOX AGENCY The Harry Fox Agency is a organization by a trade association of leading music publishers (NMPA) to represent music publishers. For a fee, HFA issues mechanical licenses and collects royalties due under those licenses from record companies. For a great book on the music industry, see Krasilovsky/Shemel, This Business of Music.

HARRY FOX LICENSE The HFA mechanical license has some special features, for example, the service of notice of intention to obtain a compulsory license is waived. Courts have held that this license is still a variant of a compulsory license and should be treated as a compulsory license rather than a private contract.

OTHER MECHANICAL RIGHTS LICENSING ORGANIZATIONS Harry Fox Agency is not the only mechanical rights licensing organization. Others include the American Mechanical Rights Agency (AMRA), Copyright Management, Inc., and Publishers Licensing Corp. They are all very small in comparison to Harry Fox Agency.

INT’L MECHANICAL RIGHTS ORGANIZATIONS Other nations have mechanical rights organizations, e.g. Canadian Musical Reproduction Rights Agency Ltd. (CMRRA), British Mechanical Copyright Protection Society (MCPS), French Societé pour l’Administration du Droit du Reproduction (SDRM), etc...

Digital Phonorecord Deliveries In 1995 copyright law extended compulsory license (for nondramatic musical works) to digital phonorecord deliveries.

LIMITS IN SECTION 114 Like section 115, 114 limits reproduction rights of the copyright owner but here the relevant copyright owner is the owner of rights in sound recordings. It only protects against reproduction of sound recordings that directly or indirectly recapture the actual sounds fixed in the protected recording.

SAMPLING Bridgeport Music v. Dimension Films (6 th Cir. 2005)

PRIVATE COPYING OF SOUND RECORDINGS Section 1008 of the Copyright Act of 1976, which was added by the Audio Home Recording Act of 1992, permits “consumers” to make copies of sound recordings for “noncommercial use”. This provision was a compromise over “digital audio tape” DAT technology.

AUDIO HOME RECORDING ACT 1. Infringement actions barred for home audiotaping (digital or analog) 2. Royalty charges imposed on sales of digital audiotape recorders and blank tapes (paid by manufacturers/importers). Pay into 2 funds - (musical works, sound recordings) 3. Obligation to include serial copy management systems in consumer digital audio recording devices to prevent copying copies.

RIAA v. Diamond The Rio was a handheld digital playback device that stored and played compressed music files from a PC. It could not copy files or upload files to a computer or another Rio. – did it violate copyright law?

RIAA v. Diamond Ninth Circuit held that Rio was not a “digital audio recording device” under the Copyright Act of 1976 and so it did not violate the Copyright Act.

Is Section 106(2) necessary Some commentators, such as Paul Goldstein think it is. They argue that protecting derivative works serves to ensure that there are adequate incentives to develop new works. Others, e.g. Nimmer, think it is superfluous due to overlap with reproduction or public performance rights

Effect of section 103 All new expression in a derivative work is separately copyrightable. However, section 103(b) extends copyrights only to new expression, not the original material. Section 103(a) provides that only the original author or a licensee can get copyright in a derivative work. Is this fair?

HORGAN v. MACMILLAN Issue: Can a book amount to an infringing derivative work where the original work is a work of choreography? Why or why not?

HORGAN v. MACMILLAN 2d Circuit found the District Judge applied the wrong test Correct standard is whether copy is substantially similar to original NOT whether original work could be recreated from copy

MICRO STAR V. FORMGEN (9th Cir 1998) - Why did Micro Star file suit? Is Nuke It an infringing derivative work? Why or why not? Does putting a piece of pink saran wrap across your TV create an infringing derivative work?