class 23 copyright, spring, 2008 google book search and youtube randal c. picker leffmann professor...

Class 23Copyright, Spring, 2008

Google Book Search and YouTube

Randal C. PickerLeffmann Professor of Commercial Law

The Law School

The University of Chicago

773.702.0864/[email protected] © 2005-08 Randal C. Picker. All Rights Reserved.

April 19, 2023 Copyright © 2005-07 Randal C. Picker 2

Creating a Poem I

Hypo In my office, on paper, word by word, I

create a poem I stop writing and declare my poem

completed Do I have a copyright in the poem?


Answer

Answer Sure 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.


Creating a Poem II

Hypo In my office, speaking into a tape recorder,

word by word, I create a poem I stop dictating and declare my poem

completed Do I have a copyright in the poem? Is the

tape recording a distinct copyright object?


Answer As to the poem, sure 102(a) embraces a media neutrality idea

The poem is fixed on the taped and can be perceived from the tape with the aid of a machine or device


Answer Understanding Fixation

The poem is no less “fixed”—fully specified and defined—on tape than it was on paper

The fact that it didn’t exist before I started to dictate doesn’t matter; that was true of the paper as well


101: “Fixed”

A work is “fixed” in a tangible medium of expression 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.


101: Copies

“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.


101: Literary Works

“Literary works” are works, other than audiovisual works, 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.


Answer See Legislative History

“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.’”


Answer As to the sound recording

Statute treats that as separate copyright object “Sound recordings” are works that result from the

fixation of a series of musical, spoken, or other sounds

Author of sound recording will be person running tape recorder

But poem continues to exist as separate literary work, just as it did when it was “recorded” on paper


Creating a Poem III

Hypo In my office, speaking into a tape recorder,

word by word, I create a poem I stop dictating and declare my poem

completed I discover then that I failed to turn on the

tape recorder Do I have a copyright in the poem?


Answer

Answer No; the poem isn’t fixed in a TME The poem is an unfixed work subject to

regulation under state law under 301(b)(1)


Creating a Poem IV

Hypo In public, word by word, I create a poem out

loud I set up a tape recorder to capture my

recitation Do I have a copyright in the poem?


Answer

Answer Same creation and fixation process as

occurs in my office when the recorder is on No difference in result, so I should have a

copyright in the poem


Answer

Two Angles to Pursue Unlike creation on paper, someone else can

record the work at the same time that I am recording the work

Where does that put us if I also record it? I don’t record it?


Creating a Poem V

Hypo In public, word by word, I create a poem out

loud I set up a tape recorder to capture my

recitation Everyone else in the audience records it too

Do I have a copyright in the poem? What about each recording of the poem?


Answer

As to poem Copyright analysis of poem shouldn’t

change As to poem author’s sound recording

No change in analysis


Answer

As to other sound recordings Each of those is separate work as sound

recording and tape recorder owner will be the author

But … Had the poem already been fixed before

being recited, each person with a recorder would be using the recorder to reproduce a copyrighted work


Answer

That would violate copyright under 106, unless carved out as fair use under 107 pursuant to something like Sony


Answer

When is the poem fixed? At the end? Word by word?

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


Answers

Statutory Guidance on This? Consider last sentence of definition of

“fixation” 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.


Answers

And the definition of “transmit” 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.


Answer

What if the poem’s author didn’t record it? Unfixed work subject to state law Federal law (106) does nothing for author What can audience member do with sound

recording made by him? See 1101

Start with the Complaints

Materials for Today Two complaints filed in actual cases I just linked and didn’t copy Could I have copied them and distributed them

What is the copyright status of the complaints? Copyrightable? Public domain? If I copied, could I be sued? What of fair use?


Answer

Not in public domain Review Section 105

http://www.copyright.gov/title17/92chap1.html#105

Can’t sue without registering See Section 411

http://www.copyright.gov/title17/92chap4.html#411


April 19, 2023 Copyright © 2005 Randal C. Picker 27

Screen Capture Slide


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.



+ 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.



+ 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.


GBS and Fair Use

Hypo Two types of consumers

First group just wants paper copy of book and values it at $8

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

How should the book be sold?


Answer

Answer Sell paper books for $8 and digital books for

$4 Add more numbers:

Assume 4 paper-only consumers, 10 who want both

Total revenues: 4*8 + 10*12 = $152 Each consumer is served


GBS and Fair Use

Hypo Continuing: suppose we give GBS max fair

use rights: they can digitize anything that has been printed

GBS does so and posts that for free What does that do sales by the author?

How will the author respond?


Answer

Answer If just sells as before, sells 12 paper copies

at $8 for total revs of $96 Suppose author pushes up price for paper

copy to $12: what happens?


Answer

Answer Old-style consumers, who value the book at

$8 and the digital version at $0, won’t buy the paper copy

New-style consumers, who value them together at $12, will get the digital copy from GBS and will pay $12 for the paper copy

Total revs to the author: 10*12 = 120


Answer

Key Point Faced with max fair use, GBS will produce

free digital copies, killing off separate market for those

Author will respond by raising price of paper copies, since, in the hypo, value of digital copy depends on having a paper copy

Author is worse off, but much more importantly, so are consumers


Answer

4 old-style consumers are cut out of the market

Fair Use as Inefficient Bundling Max fair use here makes it impossible to

sell separate paper and digital versions Each consumer necessarily gets both if it

gets paper version Author will take that into account in pricing


Framing Google Book Search I

Hypo Google copies Harry Potter VII and stores it

on a server at Google Copyright violation? What rights are

violated?


Answer

Answer Clear violation; violates right to copy


Framing Google Book Search II

Hypo Google copies Harry Potter VII, stores in on

a Google computer and posts it on its website

Copyright violation? What rights are violated?


Answer

Answer Clear violation; violates right to copy, to

distribute and to display


Framing Google Book Search III

Hypo Google launches Google Book Reviews

website Google buys books, employees read them

and post reviews Employee reads HP VII and posts review,

including 10-word quote from the book Copyright infringement?


Answer

Answer Classic fair use under 107 and should be so

even if Google runs ads next to the book reviews


Framing Google Book Search IV

Hypo Google launches live quote service Customers email questions about books to

Google 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

Copyright infringement?


Answer

Answer Scaled up quotes; probably protected under

107


Google Book Search

Core Facts Google contracts for access to books in libraries Google copies books Google shows all of public domain books and

contracted-for amounts for other books For books not otherwise covered, GBS provides

short-segments in response to queries Copyright issues? Different than the live

quote service?


[yt home]


Posting on YouTube I

Hypo NBC broadcasts Heroes ABC likes the show, copies it and

rebroadcasts it the next night Copyright violation?


Answer

Answer Yes


Posting on YouTube II

Hypo NBC broadcasts Heroes YouTube (the corporate entity) likes the

show, copies it and posts it on its website Copyright violation?


Answer

Answer Yes


Posting on YouTube III

Hypo NBC broadcasts Heroes 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)

Copyright violation for Smith? YouTube?


Answer

Answer Probably no violations

Smith will claim time-shifting under Sony, just difference in storage medium

YouTube will claim protection under Sony substantial noninfringing use test, plus will claim 512(c) safe harbor

[But see cablevision?]


DMCA Safe Harbors: 512(c)

Section 512 (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‑‑


512(c)

(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;


512(c) (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

(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.


Posting on YouTube IV

Hypo NBC broadcasts Heroes Sam Smith likes the show, copies it and

stores the copy on a server maintained by YouTube

YouTube automatically assigns it a URL; anyone who invokes the URL can play the show on YouTube’s website

Copyright violation for Smith? YouTube?


Answer

Answer Only change is ability to perform the work

publicly, a right reserved to the copyright holder under 106(4)

That ability is something created by the YouTube system and is separate and apart from the storage of copies of works

No need to assign publicly accessible URL


Answer

Who does the public performance? Smith? YouTube?

Does 512(c) cover public performances?

class 23 copyright, spring, 2008 google book search and youtube randal c. picker leffmann professor...

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