1. COPYRIGHT LAW 2004 Columbus School of Law The Catholic University of America Prof. Fischer March 24, 2004

2. 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

3. WRAP-UP POINTS: INFRINGEMENT To show ownership of a valid copyright, P must show originality, copyrightable subject matter, and compliance with statutory formalities If P did not author work, he must show proper transfer documents or show a relationship that supports claim for copyright

4. WRAP-UP POINTS: INFRINGEMENT To prove copying, P must usually show access and similarity It’s rare to have direct evidence of copying Access can be inferred if on the facts D had a reasonable opportunity to view or copy the work

5. “TOTAL CONCEPT AND FEEL” What is meant by this? See Roth Greeting Cards v. United Card Co.

6. NON-LITERAL COPYING In Nicholls v. Universal Pictures (2d Cir. 1930), Judge Learned Hand made clear that non-literal copying could be actionable. He stated that copyright “cannot be limited literally to the text, else a a plagiarist would escape by immaterial variations”.

7. COMPUTER SOFTWARE To what extent is computer software protectable under copyright law?

8. COPYRIGHTABILITY OF COMPUTER SOFTWARE Computer software, by its nature as written work intended to serve utilitarian purposes, doesn’t fit in well with our existing IP system. In 1974 Congress established National Commission on New Technological Uses of Copyrighted Works (CONTU) to study implications of new technologies and recommend revisions to IP law.

9. CONTU Report in 1978 that IP in computer software should be protected under copyright law - Congress adds definition of “computer program” in section 101. What about the fact that the Copyright Act provides that copyright cannot protect “any idea, procedure, process, system, method of operation, concept, principle or discovery” (17 U.S.C. section 102(b)) Was this a good judgment call?

10. IDEA/EXPRESSION DICHOTOMY CONTU recognized it was impossible in 1978 to establish precise line between copyrightable expression of computer programs and uncopyrightable processes they implement.

11. EARLY CASES IN 1980s Conflict between hardware manufacturers Focus on to what extent literal copying of computer software violates copyright law Apple v. Franklin (3d Cir. 1983) clearly establishes that an operating system is copyrightable and that exact copying of computer code infringes programmer’s copyright in the code. No cases since have held otherwise

12. 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?

13. 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?

14. 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?

15. 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?

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

17. 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.

18. 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

19. 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

20. KURT ADLER V. WORLD BAZAARS Turn to p. 494. Does Photo B infringe Photo A? (Access is acknowledged). Why or why not?

21. RIGHT TO MAKE PHONORECORDS See s. 106(1) Definition of Phonorecords: 101 Must be fixed Copies and Phonorecords are mutually exclusive Was the karaoke CD-ROM in ABKCO v. Stellar a “phonorecord”? Why did it matter?

22. ALISON

23. 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?

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

25. 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 h oc arbitration panels (now 8c/song or 1.55 cents per minute whichever larger)

26. 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)

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

28. 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.