Introduction To Copyright Law in the Age of the Internet Jesse Clark

Constitutional Basis “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” United States Constitution, Article 1, Section 8, Clause 8

Differences Between 1790 And Today First federal copyright act was enacted in 1790 Then: Copyrights lasted 14 years with optional 14 year extension Now: Copyrights last Life + 70 Years, and “Works for hire” receive 95 years of protection from publishing date Then: Registration was required Now: Works receive copyright protection from the time they are fixed in a tangible medium Then: High marginal costs to reproduction, high barriers to entry for printing Now: Virtually zero marginal costs to reproduction, low barriers to entry for content reproduction

Preliminary Discussion Copyrights are a restriction on speech, are an economic institution, and are not a “natural right”. Also, beyond just considering content production, should we also consider availability of content to the public? Tragedy of the Commons vs. Tragedy of the Anticommons No (well, extremely limited) moral rights in U.S. Copyright Law

Subject Matter of Copyrights (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. Title 17 U.S.C. Section 102

Subject Matter of Copyrights Feist Publications, Inc., v. Rural Telephone Service Co. (1991)

Exclusive Rights § 106. Exclusive rights in copyrighted works Subject to sections 107 through 122, the owner of copyright under this title 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 or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and 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.

Fair Use § 107. Limitations on exclusive rights: Fair use Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, 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 fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Justifications for fair use Promotes technology Transaction costs Input costs Free speech & parody & criticisms

Betamax Sony Corp. of America v. Universal City Studios, Inc. (1984)

Back to Duration Congress has repeatedly retroactively extended the duration of copyrights (Mention Lessig's Point about Disney) Little to no economic justification Eldred v. Ashcroft (2003) challenges constitutionality of Sonny Bono Copyright Extension Act Lawrence Lessig represented Eldred Lessig believes outcome could have been different had he emphasized harm done by retroactive extensions

Theories of Infringement Only Direct Infringement is discussed in statute Coerced Settlements, RIAA's Graduated Response, Teenebaum Case law also recognizes contributory infringement (in Betamax the issue was whether Sony was liable for contributory infringement) and vicarious infringement Contributory liability requires “Knowledge of Infringing Activity” and “Substantial Participation”; Vicarious liability requires “Right and Ability to Control” and “Direct Financial Benefit” (Religious Technology Center v. Netcom Online Communication Serv., Inc., N.D. Cal. 1995) In addition to Betamax, contributory infringement in A&M Records, Inc. v. Napster, Inc. (9 th Cir, 2001), and MGM Studios, Inc. v. Grokster, Ltd. (Supreme Court, 2005). What about fair use? YouTube liable for vicarious infringement? We'll come back to this later.

Pre-DMCA Third Party Liability Playboy Enterprises, Inc. v. Frena, 839 F. Supp (M.D. Fla. 1993) Defendant liable for direct infringement, even though it was carried out by a user of his network Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F. Supp (N.D. Cal. 1995) Defendant liable for contributory infringement, but not vicarious or direct. Note that this case had free speech and political significance.

Enter the DMCA § 512. Limitations on liability relating to material online (a) Transitory Digital Network Communications. (b) System Caching. (c) Information Residing on Systems or Networks At Direction of Users. (d) Information Location Tools. (e) Limitation on Liability of Nonprofit Educational Institutions. (f) Misrepresentations. (g) Replacement of Removed or Disabled Material and Limitation on Other Liability.

Impact On Service Providers On Search Engines On businesses which depend on being listed by search engines On Fair Use [YouTube 3 Strikes], YouTube & Warner & ContentID On Copyright Holders Ways to correct these problems?

DRM and the DMCA § Circumvention of copyright protection systems (a)(1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title... (b) Additional Violations.— (1) 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 protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; (B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or (C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.

DMCA Cases REALNETWORKS, INC. v. STREAMBOX, INC This case was ultimately resolved out of court, but the preliminary injunction for two of the three pieces of software was upheld. Fair use (at least conversion is fair use, but DMCA poses threat)? Who is benefiting from new technology? Derivative works. Universal City Studios, Inc. v. Reimerdes. 2 nd Circuit, Previews and Ads on DVDs.

Discussion Contract law and EULA's (contract law preempts fair use) Without copyright protection, what types of works would or would not be created? Considering the “deadweight loss” of copyright owners charging more than marginal costs, do copyrights negatively affect social welfare? What about “Orphaned Works” and out of print works? Considering “Input costs” could copyrights actually be preventing some types of content creation? DO WE STILL NEED COPYRIGHTS? DO COPYRIGHTS SEARVE A VALUABLE FUNCTION IN THE DIGITAL AGE? OR ARE THEY HOLDING US BACK?