1. Copyright Law Ronald W. Staudt Class Class 16 March 23, 2009

2. Obama administration sides with RIAA in P2P lawsuit by Declan McCullagh cNet News, 3/23/2009 The Obama administration has sided with the recording industry in a copyright lawsuit against an alleged peer-to-peer pirate, a move that echoes arguments previously made by the Bush administration. *** The Massachusetts case could prove to be an important one. A group of Harvard law school students, with the help of Harvard law Professor Charles Nesson, is providing defendant Joel Tenenbaum with an aggressive legal defense. They aim to convince the courts that the law the RIAA relies on so Draconian it amounts to "essentially a criminal statute" and is therefore unconstitutional; that it grants too much authority to copyright holders; and that it violates due process rights guaranteed by the U.S. Constitution.aggressive legal defense Those are the arguments that the Justice Department is attempting to refute. Its brief says that while the administration "does not address" the nonconstitutional arguments, "if the court finds it necessary to reach the constitutional questions at this time, then it should reject each of defendant's constitutional claims."

3. Sect 106(1) Reproduction Right What is a copy? "Copies" are 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. y RAM as a copy

4. Sect 106(1) Reproduction Right Who is copying?– 20 th Century v. Cablevision Supp. p 67 How does RS-DVR work? Where is the copy? Arroyo Server? Where is the server? Is RS-DVR the same as a VCR or local DVR?

5. Infringement Arnstein v. Porter Facts – Begin the Beguine & The Lord is My ShepardBegin the Beguine Prima Facie case ownership copying improper appropriation

6. Infringement Arnstein v. Porter Prima Facie case COPYING proved by Defendant’s admission or Circumstantial evidence: Access + similarity x if no similarity then no amount of evidence of access will prove copying x if evidence of access & similarity, then trier of fact with experts and dissection x If striking similarity may not need to prove access

7. Infringement Arnstein v. Porter Prima Facie case IMPROPER APPROPRIATION x Lay observer– no experts or dissection x Striking similarity can do double duty but proof of improper appropriation need not be enough to prove copying. x Often called “Substantial similarity” Quality and quantity of expression Different from “probative similarity”

8. Infringement Arnstein v. Porter- Frank’s Opinion 1. copying- similarities exist, What about access? Is truth stranger than fiction? 2. appropriation? Both 1 & 2 are Questions of fact for the jury!!!! Dissent by Clark Too little similarity, even after dissection, to go to the jury. Dawson v. Hinshaw Music and Lyons v. Morris Who is the ordinary observer?

9. Proof of copying zBright Tunes Music Corp yHe’s So Fine v. My Sweet LordHe’s So Fine My Sweet Lord yUnconscious copyingUnconscious copying V.

10. Proof of copying zHow Deep is Your Love? (Selle v. Gibb) 7 th Circuit v.How Deep is Your Love zFeelings (Gaste v. Kaiserman) 2d CircuitFeelings zPhantom Song and Ty’s Squealer yResolved by Judge Posner in Ty: This discussion shows how the tension between Gaste and Selle can be resolved and the true relation between similarity and access expressed. Access (and copying) may be inferred when two works are so similar to each other and not to anything in the public domain that it is likely that the creator of the second work copied the first, but the inference can be rebutted by disproving access or otherwise showing independent creation— zCelebrity v. Survivor

11. Proof of Copying Price v. Fox page 70-72 in the Supplement Price v. Fox zFacts? zSimilarity “After examining both works and reading the evidence in the light most favorable to plaintiffs, I conclude that a jury could reasonably find that the two works contain similarities that are probative of copying.” plot similarities, character names and characteristics zAccess through a particular chain of events or link : “…a reasonable jury could conclude that there is a reasonable possibility that Thurber had access to the Thomas Work given the evidence of xthe speed at which he wrote his screenplay, xthe timing of the appearances of certain similarities between the two works, and xthe relationships he had with WMA employees who either actually had access or had a reasonable possibility of access to the Thomas Work.”