2. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS Lecture 6: Copyright I

3. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS Outline History of copyright The nature of copyright What is copyrightable? How are rights divided between author and the public? What special problems does the Internet create?

4. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS History of Copyright Dates from 15th century (after invention of printing) Originally publisher monopoly (not author) –Granted by the King. King had right of approval –Publisher paid a fee England (1557) –Monopoly granted to the Stationer’s Company England: Licensing Act of 1662 –Illegal to publish anything without a license

5. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS History of Copyright England: Statute of Anne (1710) –Limited royal copyright monopolies to 28 years –“Encouragement of learning, by securing the Copies of Maps, Charts and Books, to the Authors and Proprietors of such copies” U.S. Constitution (1789) First U.S. Copyright Act (1790) –major revisions in 1831, 1870, 1909, 1976 –minor additions in various years, including Digital Millennium Copyright Act (1998)

6. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS Constitutional Basis U.S. Constitution “intellectual property clause”, Art. I, §8(8) Art. I, §8(8) “Congress shall have Power … 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.” “The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents,... copyrights and trade-marks. Such jurisdiction shall be exclusive of the courts of the states in patent... and copyright cases.” 28 U.S.C. §133828 U.S.C. §1338 COPYRIGHT PATENT (BOTH EXCLUSIVELY FEDERAL)

7. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS Constitutional Basis U.S. Constitution “commerce clause” Art. I, §8(3) Art. I, §8(3) “Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” TRADEMARK, TRADE SECRET (JOINT FEDERAL/STATE)

8. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS No originality, no copyright No authorship, no copyright What Is Copyrightable? “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.” 17 U.S.C. §102 17 U.S.C. §102 (1976) Copyright protection begins at the moment of fixation

9. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS What Is Copyrightable? (1) literary works; (includes software, web pages) (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; (.gif,.jpg,.bmp) (6) motion pictures and other audiovisual works; (flash, streaming video, virtual reality) (7) sound recordings; (.wav files, MP3, etc.) and (8) architectural works. 17 U.S.C. §102 17 U.S.C. §102 (1976)

10. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS What Is Copyrightable? Compilations - “ formed by … assembling... preexisting materials... Coordinated … [so] that the resulting work as a whole constitutes an original work of authorship.” (many web pages) Collective works - a “number of contributions, constituting separate and independent works in themselves,... assembled into a collective whole”, e.g. a magazine, anthology, or encyclopedia. (many websites) 17 U.S.C. §101

11. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS Statutory Interpretation Technology can outpace the language of statutes Courts must determine the meaning of statutes in new fact situations Principles of statutory interpretation: –If the statute is unambiguous, it must be applied literally –If it is ambiguous, determine legislative intent Look at transcripts of hearings! –Every word matters –Statutory Construction Act, 1 Pa. C.S. §19211 Pa. C.S. §1921 –Particular governs over the general –Inconsistency: later clause (by date or position) wins!

12. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS Ejusdem Generis (“of the same kind”) People v. Bugaiski, 224 Mich. App. 241 (1997). Bugaiski shot a dog he claimed was attacking his own dog. Criminal prosecution under the dog law of 1919. Defenses:224 Mich. App. 241 –“Any person... may kill any dog which he sees in the act of pursuing, worrying, or wounding any livestock or poultry or attacking persons, and there shall be no liability on such person, in damages or otherwise, for such killing.” –“Livestock” means horses, stallions, colts, geldings, mares, sheep, rams, lambs, bulls, bullocks, steers, cows, calves, mules, jacks, jennets, burros, goats, kids and swine, and fur-bearing animals being raised in captivity. Bugaiski claimed his own dog was livestock since it was a “fur- bearing animal raised in captivity.” No. Under ejusdem generis only animals “of the same kind” as those listed are included. Prosecution can proceed.

13. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS New York Times Co. v. Tasini, 533 U.S. 483 (2001) 533 U.S. 483 Times paid freelance writers for stories, then later sold copies of the articles as part of an online database for a fee. The writers sued, claiming copyright infringement. “In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of [1] that particular collective work, [2] any revision of that collective work, and [3] any later collective work in the same series.” 17 U.S.C. 201(c).17 U.S.C. 201(c) The Times claimed that the Internet copy was a “revision” under the statute. District court agreed. Reversed on appeal. Supreme Court affirmed June 25, 2001 Ejusdem generis says no. Clause 2 must be interpreted in the context of clauses 1 and 3, which set the upper and lower limits of the right. Use must be of the same kind, not unrestricted use.

14. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS What Is Copyrightable? Derivative works - “based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” 17 U.S.C. §101 ported code. C  Java, rehosted systems, gif  jpeg

15. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS What Is Not Copyrightable? Words and short phrases such as names, titles, and slogans Blank forms... designed for recording information [that] do not in themselves convey information Works consisting entirely of information that is common property containing no original authorship, e.g. calendars, weight charts, sports schedules, tables taken from public documents or other common sources. Works of the U.S. Government 37 C.F.R. §202.137 C.F.R. §202.1 (Code of Federal Regulations)

16. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS What Is Not Copyrightable? “Sweat of the brow”, “industrious collection” A work assembled through great labor, but without original authorship, is not copyrightable White pages v. Yellow Pages Feist Publications, Inc. v. Rural Tel. Service Co., 499 U.S. 340 (1991). No “original authorship” in telephone directory.499 U.S. 340 What about databases?

17. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS What Is Not Copyrightable? “In no case does copyright protection... 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 [a] work.” 17 U.S.C. §102

18. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS Copyright Ownership Ownership vests originally in the author A “work made for hire” is –a work prepared by an employee within the “course and scope of employment”; –a work specially ordered or commissioned... if the parties expressly agree in [writing] that the work shall be considered a work made for hire. (MUST BE ONE ONE OF 9 SPECIAL TYPES OF WORKS; DOESN’T INCLUDE SOFTWARE!) For a work made for hire the “author” is the employer (called the “employer for hire”)

19. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS Works Made for Hire “Course and scope of employment” means that the employer is directing the work - very narrow, e.g. full- time employment. “Special commissioning” only applies to nine types of works, not including software. Example: software written by outside consultants is not owned by the client unless there is an agreement to assign.

20. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS Copyright Term “Mickey Mouse Act” extended copyright terms 70 years after death of last surviving author Work made for hire: –95 years from first publication –120 years from creation 17 U.S.C. §302 17 U.S.C. §302 Extension held constitutional in Eldred v. Ashcroft, Jan. 15, 2003) Non-renewable Upon expiration, work enters the public domain Termination of transfers. For a period of 5 years beginning 35 years after publication, an author can “take back” his work. 17 U.S.C. §203

21. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS Rights Under Copyright Copyright includes the right to: Reproduce the work (includes copies on disk or RAM) Distribute copies by sale, rental, lease or lending (but owner of an authorized copy may sell, rent, lease or lend it) Prepare derivative works Perform the work publicly (recite, act out, play, dance) Display (or transmit) the work publicly 17 U.S.C §106 These are further divisible (very finely) by contract

22. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS What Is Copyright Infringement? “Anyone who violates any of the exclusive rights of the copyright owner... or who imports copies or phonorecords into the United States... is an infringer of the copyright.” 17 U.S.C. §501 17 U.S.C. §501 Direct infringement Contributory infringement –knowingly inducing, causing, or contributing to the infringement Vicarious liability –right and ability to control the actions of a direct infringer but failing to do so + direct financial benefit from infringement

23. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS Testing for Infringement There is no copyright infringement without “copying.” Therefore: true “independent creation” is a defense Direct evidence of copying is rare. So the test is –access to the original + –“substantial similarity” between the original and the “accused work” in the eye of the “ordinary observer”

24. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS Fair Use Fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. 17 U.S.C. §107

25. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS Fair Use Tests purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; nature of the copyrighted work [e.g. factual v. fictional]; amount and substantiality of the portion used in relation to the copyrighted work as a whole; and effect [on] the potential market for or value of the copyrighted work (does it reduce the demand for the original?) 17 U.S.C. §107

26. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS Fair Use Time-shifting –Recording TV shows for personal use Backup –Making extra copies of software (not for use, but for archive) Finding aids –Indexes, lists of tables of contents, abstracts

27. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS Viewing Web Pages Is it a copyright infringement to view a web page? –Exactly why or why not? Is it a copyright infringement to make a copy of a web page on your hard disk? –Exactly why or why not?

28. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS Avoiding Infringement Reverse engineering The “clean room”: –Team A studies work, obtains its “method of operation” –Team A writes a specification using no protectible expression from the work –Team B reads the specification and creates a new work –No one is on both A and B Resulting work is “clean” -- not a derivative work

29. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS Compulsory Licensing Author can’t refuse User must pay In the U.S., compulsory license for phonorecords of non-dramatic musical works Per-copy royalty: 1.55 cents per minute or 8.00 cents, whichever is greaterroyalty In Japan, extensive compulsory licensing for educational works, foreign translations, etc.

30. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS Q A &

31. Copyright Damages Actual damages –Actual damages... as a result of the infringement, and –Any profits of the infringer... attributable to the infringement... not taken into account in computing the actual damages –Copyright owner proves only infringer's gross revenue, infringer must prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work

32. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS Copyright Damages Problem: owner may have no damages; infringer may have no profit “Statutory” damages –Owner may elect in lieu of actual damages, between $500 and $20,000 per work, fixed by court –For willful infringement, up to $100,000 –For “innocent” infringement, as low as $200 –Can be elected any time before final judgment

33. 46-840 ECOMMERCE LAW AND REGULATION SPRING 2003 COPYRIGHT © 2003 MICHAEL I. SHAMOS Criminal Copyright Penalties Any person who infringes a copyright willfully (1) for purposes of commercial advantage or private financial gain, or (2) by the reproduction or distribution [in] 180 days [of] copies [with] total retail value > $1,000 Penalties: forfeiture, destruction –1 year, $1000 fine –5 years + fine if > 9 copies with total retail value > $2,500 –10 years, second offense 17 U.S.C. §506(a)17 U.S.C. §506(a), 18 U.S.C. §231918 U.S.C. §2319