1. Class 23 Copyright, Spring, 2008 Google Book Search and YouTube Randal C. Picker Leffmann Professor of Commercial Law The Law School The University of Chicago 773.702.0864/r-picker@uchicago.edu Copyright © 2005-08 Randal C. Picker. All Rights Reserved.

2. August 25, 2015Copyright © 2005-07 Randal C. Picker2 Creating a Poem I n Hypo u In my office, on paper, word by word, I create a poem u I stop writing and declare my poem completed n Do I have a copyright in the poem?

3. August 25, 2015Copyright © 2005-07 Randal C. Picker3 Answer n Answer u Sure u 102(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.

4. August 25, 2015Copyright © 2005-07 Randal C. Picker4 Creating a Poem II n Hypo u In my office, speaking into a tape recorder, word by word, I create a poem u I stop dictating and declare my poem completed n Do I have a copyright in the poem? Is the tape recording a distinct copyright object?

5. August 25, 2015Copyright © 2005-07 Randal C. Picker5 Answer n As to the poem, sure n 102(a) embraces a media neutrality idea u The poem is fixed on the taped and can be perceived from the tape with the aid of a machine or device

6. August 25, 2015Copyright © 2005-07 Randal C. Picker6 Answer n Understanding Fixation u The poem is no less “fixed”—fully specified and defined—on tape than it was on paper u The fact that it didn’t exist before I started to dictate doesn’t matter; that was true of the paper as well

7. August 25, 2015Copyright © 2005-08 Randal C. Picker7 101: “Fixed” n A work is “fixed” in a tangible medium of expression u when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

8. August 25, 2015Copyright © 2005-08 Randal C. Picker8 101: Copies n “Copies” are u material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

9. August 25, 2015Copyright © 2005-08 Randal C. Picker9 101: Literary Works n “Literary works” are works, other than audiovisual works, u expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.

10. August 25, 2015Copyright © 2005-07 Randal C. Picker10 Answer n See Legislative History u “This broad language is intended to avoid the artificial and largely unjustifiable distinctions, derived from cases such as White-Smith Publishing Co. v. Apollo Co., 209 U.S. 1 (1908), under which statutory copyrightability in certain cases has been made to depend upon the form or medium in which the work is fixed. Under the bill it makes no difference what the form, manner, or medium of fixation may be—whether it is in words, numbers, notes, sounds, pictures, or any other graphic or symbolic indicia, whether embodied in a physical object in written, printed, photographic, sculptural, punched, magnetic, or any other stable form, and whether it is capable of perception directly or by means of any machine or device ‘now known or later developed.’”

11. August 25, 2015Copyright © 2005-07 Randal C. Picker11 Answer n As to the sound recording u Statute treats that as separate copyright object w “Sound recordings” are works that result from the fixation of a series of musical, spoken, or other sounds u Author of sound recording will be person running tape recorder u But poem continues to exist as separate literary work, just as it did when it was “recorded” on paper

12. August 25, 2015Copyright © 2005-07 Randal C. Picker12 Creating a Poem III n Hypo u In my office, speaking into a tape recorder, word by word, I create a poem u I stop dictating and declare my poem completed n I discover then that I failed to turn on the tape recorder n Do I have a copyright in the poem?

13. August 25, 2015Copyright © 2005-07 Randal C. Picker13 Answer n Answer u No; the poem isn’t fixed in a TME u The poem is an unfixed work subject to regulation under state law under 301(b)(1)

14. August 25, 2015Copyright © 2005-07 Randal C. Picker14 Creating a Poem IV n Hypo u In public, word by word, I create a poem out loud u I set up a tape recorder to capture my recitation n Do I have a copyright in the poem?

15. August 25, 2015Copyright © 2005-07 Randal C. Picker15 Answer n Answer u Same creation and fixation process as occurs in my office when the recorder is on u No difference in result, so I should have a copyright in the poem

16. August 25, 2015Copyright © 2005-07 Randal C. Picker16 Answer n Two Angles to Pursue u Unlike creation on paper, someone else can record the work at the same time that I am recording the work u Where does that put us if w I also record it? w I don’t record it?

17. August 25, 2015Copyright © 2005-07 Randal C. Picker17 Creating a Poem V n Hypo u In public, word by word, I create a poem out loud u I set up a tape recorder to capture my recitation u Everyone else in the audience records it too n Do I have a copyright in the poem? What about each recording of the poem?

18. August 25, 2015Copyright © 2005-07 Randal C. Picker18 Answer n As to poem u Copyright analysis of poem shouldn’t change n As to poem author’s sound recording u No change in analysis

19. August 25, 2015Copyright © 2005-07 Randal C. Picker19 Answer n As to other sound recordings u Each of those is separate work as sound recording and tape recorder owner will be the author u But … w Had the poem already been fixed before being recited, each person with a recorder would be using the recorder to reproduce a copyrighted work

20. August 25, 2015Copyright © 2005-07 Randal C. Picker20 Answer w That would violate copyright under 106, unless carved out as fair use under 107 pursuant to something like Sony

21. August 25, 2015Copyright © 2005-07 Randal C. Picker21 Answer u When is the poem fixed? At the end? Word by word? w If at the end, the audience didn’t copy a (federally) copyrighted work and therefore didn’t impermissibly reproduce under federal law But as work (the poem as literary work) is fixed no later than the end, I can’t make further copies, distribute etc. Reflects notion that access to physical instantiation of the work doesn’t give me the rights of the copyright holder (202) And also see 1101

22. August 25, 2015Copyright © 2005-07 Randal C. Picker22 Answers n Statutory Guidance on This? u Consider last sentence of definition of “fixation” w A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

23. August 25, 2015Copyright © 2005-07 Randal C. Picker23 Answers u And the definition of “transmit” w To “transmit” a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.

24. August 25, 2015Copyright © 2005-07 Randal C. Picker24 Answer n What if the poem’s author didn’t record it? u Unfixed work subject to state law u Federal law (106) does nothing for author u What can audience member do with sound recording made by him? See 1101

25. Start with the Complaints n Materials for Today u Two complaints filed in actual cases u I just linked and didn’t copy u Could I have copied them and distributed them n What is the copyright status of the complaints? Copyrightable? Public domain? If I copied, could I be sued? What of fair use? August 25, 2015Copyright © 2005-07 Randal C. Picker25

26. Answer n Not in public domain u Review Section 105 w http://www.copyright.gov/title17/92chap1.ht ml#105 http://www.copyright.gov/title17/92chap1.ht ml#105 n Can’t sue without registering u See Section 411 w http://www.copyright.gov/title17/92chap4.ht ml#411 http://www.copyright.gov/title17/92chap4.ht ml#411 August 25, 2015Copyright © 2005-07 Randal C. Picker26

27. August 25, 2015Copyright © 2005 Randal C. Picker27 Screen Capture Slide

28. August 25, 2015Copyright © 2005 Randal C. Picker28 Screen Capture Slide

29. August 25, 2015Copyright © 2005 Randal C. Picker29 Screen Capture Slide

30. August 25, 2015Copyright © 2005 Randal C. Picker30 Screen Capture Slide

31. August 25, 2015Copyright © 2005-07 Randal C. Picker31 Google Full-Text Downloads + Make non-commercial use of the files. We designed Google Book Search for use by individuals, and we request that you use these files for personal, non-commercial purposes. + Refrain from automated querying. Do not send automated queries of any sort to Google’s system: If you are conducting research on machine translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the use of public domain materials for these purposes and may be able to help.

32. August 25, 2015Copyright © 2005-07 Randal C. Picker32 Google Full-Text Downloads + Maintain attribution. The Google “watermark” you see on each file is essential for informing people about this project and helping them find additional materials through Google Book Search. Please do not remove it.

33. August 25, 2015Copyright © 2005-07 Randal C. Picker33 Google Full-Text Downloads + Keep it legal. Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other countries. Whether a book is still in copyright varies from country to country, and we can’t offer guidance on whether any specific use of any specific book is allowed. Please do not assume that a book’s appearance in Google Book Search means it can be used in any manner anywhere in the world. Copyright infringement liability can be quite severe.

34. August 25, 2015Copyright © 2005-07 Randal C. Picker34 GBS and Fair Use n Hypo u Two types of consumers w First group just wants paper copy of book and values it at $8 w Second group would like paper version (valued at $8) and separate searchable digital version (valued at $4), but only value digital version if they have paper version n How should the book be sold?

35. August 25, 2015Copyright © 2005-07 Randal C. Picker35 Answer n Answer u Sell paper books for $8 and digital books for $4 u Add more numbers: w Assume 4 paper-only consumers, 10 who want both w Total revenues: 4*8 + 10*12 = $152 u Each consumer is served

36. August 25, 2015Copyright © 2005-07 Randal C. Picker36 GBS and Fair Use n Hypo u Continuing: suppose we give GBS max fair use rights: they can digitize anything that has been printed u GBS does so and posts that for free n What does that do sales by the author? How will the author respond?

37. August 25, 2015Copyright © 2005-07 Randal C. Picker37 Answer n Answer u If just sells as before, sells 12 paper copies at $8 for total revs of $96 n Suppose author pushes up price for paper copy to $12: what happens?

38. August 25, 2015Copyright © 2005-07 Randal C. Picker38 Answer n Answer u Old-style consumers, who value the book at $8 and the digital version at $0, won’t buy the paper copy u New-style consumers, who value them together at $12, will get the digital copy from GBS and will pay $12 for the paper copy u Total revs to the author: 10*12 = 120

39. August 25, 2015Copyright © 2005-07 Randal C. Picker39 Answer n Key Point u Faced with max fair use, GBS will produce free digital copies, killing off separate market for those u Author will respond by raising price of paper copies, since, in the hypo, value of digital copy depends on having a paper copy u Author is worse off, but much more importantly, so are consumers

40. August 25, 2015Copyright © 2005-07 Randal C. Picker40 Answer u 4 old-style consumers are cut out of the market n Fair Use as Inefficient Bundling u Max fair use here makes it impossible to sell separate paper and digital versions u Each consumer necessarily gets both if it gets paper version u Author will take that into account in pricing

41. August 25, 2015Copyright © 2005-07 Randal C. Picker41 Framing Google Book Search I n Hypo u Google copies Harry Potter VII and stores it on a server at Google n Copyright violation? What rights are violated?

42. August 25, 2015Copyright © 2005-07 Randal C. Picker42 Answer n Answer u Clear violation; violates right to copy

43. August 25, 2015Copyright © 2005-07 Randal C. Picker43 Framing Google Book Search II n Hypo u Google copies Harry Potter VII, stores in on a Google computer and posts it on its website n Copyright violation? What rights are violated?

44. August 25, 2015Copyright © 2005-07 Randal C. Picker44 Answer n Answer u Clear violation; violates right to copy, to distribute and to display

45. August 25, 2015Copyright © 2005-07 Randal C. Picker45 Framing Google Book Search III n Hypo u Google launches Google Book Reviews website u Google buys books, employees read them and post reviews u Employee reads HP VII and posts review, including 10-word quote from the book n Copyright infringement?

46. August 25, 2015Copyright © 2005-07 Randal C. Picker46 Answer n Answer u Classic fair use under 107 and should be so even if Google runs ads next to the book reviews

47. August 25, 2015Copyright © 2005-07 Randal C. Picker47 Framing Google Book Search IV n Hypo u Google launches live quote service u Customers email questions about books to Google u Google has many people and buys many books; individual flips through relevant book in response to query and emails book short quote from a book n Copyright infringement?

48. August 25, 2015Copyright © 2005-07 Randal C. Picker48 Answer n Answer u Scaled up quotes; probably protected under 107

49. August 25, 2015Copyright © 2005-07 Randal C. Picker49 Google Book Search n Core Facts u Google contracts for access to books in libraries u Google copies books u Google shows all of public domain books and contracted-for amounts for other books u For books not otherwise covered, GBS provides short-segments in response to queries n Copyright issues? Different than the live quote service?

50. August 25, 2015Copyright © 2005-07 Randal C. Picker50 [yt home]

51. August 25, 2015Copyright © 2005-07 Randal C. Picker51 Posting on YouTube I n Hypo u NBC broadcasts Heroes u ABC likes the show, copies it and rebroadcasts it the next night n Copyright violation?

52. August 25, 2015Copyright © 2005-07 Randal C. Picker52 Answer n Answer u Yes

53. August 25, 2015Copyright © 2005-07 Randal C. Picker53 Posting on YouTube II n Hypo u NBC broadcasts Heroes u YouTube (the corporate entity) likes the show, copies it and posts it on its website n Copyright violation?

54. August 25, 2015Copyright © 2005-07 Randal C. Picker54 Answer n Answer u Yes

55. August 25, 2015Copyright © 2005-07 Randal C. Picker55 Posting on YouTube III n Hypo u NBC broadcasts Heroes u Sam Smith likes the show, copies it and stores the copy on a server maintained by YouTube (but no one other than Smith can play the show; it otherwise just sits there) n Copyright violation for Smith? YouTube?

56. August 25, 2015Copyright © 2005-07 Randal C. Picker56 Answer n Answer u Probably no violations w Smith will claim time-shifting under Sony, just difference in storage medium w YouTube will claim protection under Sony substantial noninfringing use test, plus will claim 512(c) safe harbor w [But see cablevision?]

57. August 25, 2015Copyright © 2005-07 Randal C. Picker57 DMCA Safe Harbors: 512(c) n Section 512 u (c)(1) In general. ‑‑ A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider ‑‑

58. August 25, 2015Copyright © 2005-07 Randal C. Picker58 512(c) w (A) (i) does not have actual knowledge that the material or an activity using the material on t(he system or network is infringing; (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

59. August 25, 2015Copyright © 2005-07 Randal C. Picker59 512(c) w (B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and w (C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

60. August 25, 2015Copyright © 2005-07 Randal C. Picker60 Posting on YouTube IV n Hypo u NBC broadcasts Heroes u Sam Smith likes the show, copies it and stores the copy on a server maintained by YouTube u YouTube automatically assigns it a URL; anyone who invokes the URL can play the show on YouTube’s website n Copyright violation for Smith? YouTube?

61. August 25, 2015Copyright © 2005-07 Randal C. Picker61 Answer n Answer u Only change is ability to perform the work publicly, a right reserved to the copyright holder under 106(4) u That ability is something created by the YouTube system and is separate and apart from the storage of copies of works w No need to assign publicly accessible URL

62. August 25, 2015Copyright © 2005-07 Randal C. Picker62 Answer u Who does the public performance? Smith? YouTube? u Does 512(c) cover public performances?