1. COPYRIGHT LAW 2006 Columbus School of Law The Catholic University of America Prof. Fischer Class 22 November 6, 2006

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 There may be no direct evidence of copying Access can be inferred if on the facts D had a reasonable opportunity to view or copy the work

5. SUBSTANTIAL SIMILARITY One of the most difficult questions in copyright law

6. Peter Pan Fabrics v. Martin Weiner Corp. (2d Cir. 1960) “Obviously no principle can be stated as to when an imitator has gone beyond copying “the idea’ and has borrowed its “expression.” Decisions must therefore inevitably be ad hoc.

7. HERBERT ROSENTHAL v. KALPAKIAN (9th Cir. 1971)

8. MERGER DOCTRINE Herbert Rosenthal Jewelry Corp. v. Kalpakian (2d Cir. 1971) What is the merger doctrine? What is its relationship to infringement? How did it apply in this case?

9. 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”.

10. TYPES OF SIMILARITY Comprehensive nonliteral similarity Fragmented literal similarity

11. NICHOLS v. UNIVERSAL PICTURES (2d Cir. 1930) Did the film “The Cohens and the Kellys” infringe the play “Abie’s Irish Rose”? NB. Character test

12. Nichols : Abstractions test “When a plagiarist does not take out a block in situ, but an abstract of the whole, decision is more troublesome. Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out…there is a point in this series of abstractions where they are no longer protected.” [since they are idea]

13. What do you compare? The whole of the copied portions of the P work including individually uncopyrightable elements like ideas and scenes a faire? OR only the copied portions that are copyrightable?

14. SHELDON V. MGM (1936) Does the motion picture “Letty Lynton”infringe the play “Dishonored Lady”? How would you distinguish this case from Nichols? Note the judge is the same: Learned Hand

15. SHELDON V. MGM (1936) Does the motion picture “Letty Lynton”infringe the play “Dishonored Lady”? How would you distinguish this case from Nichols? Note the judge is the same: Learned Hand

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

17. KURT ADLER V. WORLD BAZAARS Turn to p. 584. Does Photo B infringe Photo A? (Access is acknowledged). Why or why not?

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

19. 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.

20. 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?

21. 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.

22. 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

23. 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?

24. 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?

25. 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?

26. 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?

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

28. 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.

29. 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)

30. 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

31. 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