[Copyright M. S. Overing 2003] 1

Copyright OverviewMichael S. Overing, Esq.

201 S. Lake Ave., Ste. 606

Pasadena, CA 91101

818-361-1121

movering@digitalmedialaw.com

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Copyrights in General Copyright law protects “expression,” but not

underlying ideas Copyright protection extends to original works of

authorship that are “Fixed” in a tangible medium of expression. 102(a).

Loading data into ram is deemed to be sufficiently “fixed” in a tangible medium even though not stored on a disk. MAI Sys. Corp. v. Peak Computer, Inc. (9th Cir. 1993) 991 F.2d 511.

Browsing? When a user browses the internet, a copy of the digital information is temporarily on the screen and, arguably, infringement has occurred.

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Copyright in General cont’d Copyright protection is available for

Literary works Musical works Dramatic works Pantomimes and choreography Pictorial, graphic and sculpture works Motion pictures Sound recordings Architectural works

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Copyright Monopoly

Copyright Gives the Owner a Monopoly to: Reproduce Prepare derivative works Distribute copies Perform the work publicly Display the work publicly Compare: WIPO Art. 8, exclusive right

to communicate his creation to the public by wire or wireless means

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Copyright Infringement

For infringement, the plaintiff must establish he has (1) a valid copyright; and (2) infringement by another

Cases: No liability for license to use:

express/implied. See e.g., McCoy v. Mitsuboshi Cutlery, Inc. (Fed.Cir.1995) 67 F.3d 917.

Deep Links. Kelly v. Arriba Soft Corp. (9th Cir. 2002) 280 F.3d 934.

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Infringement Cont’d

Frames. Wash. Post v.TotalNews, Inc. Case No. 97-1190 (settled); Shetland Times, Ltd. v. Wills (UK) (settled); Futuredontics v. Appl’d Anagramics (no harm shown) unpublished 9th Cir. opn. trespass).

Storm Impact, Inc. v. Software of the Month Club (ND ILL 1998) 13 F. Supp.2d 782 (shareware aggregation is copyright infringement)

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Vicarious-Contributory Infringement of Copyrights Vicarious and contributory liability for

Infringement Napster. A&M Records, Inc. v. Napster,

Inc., (9th Cir. 2001); Fonovisa, Inc. v. Cherry Auction, Inc. (9th Cir. 1996) 76 F. 3d 259.

Links to DeCSS. Universal City Studios, Inc. v. Reimerdes (SDNY 2000) 82 F.Supp.2d 211; 111 F.Supp.2d 294

Digital Millennium Copyright Act: transmitting, routing and connecting to infringing materials.

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Defenses

Objects not copyrightable: Works that are not fixed in a

tangible medium Names, titles, phrases, symbols Ideas,procedures, methods Facts, dates, forms, common

property without original authorship Recipes, fashions, etc

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Fair Use

Section 107 lists criticism, comment, news, teaching, scholarship, and research

Four-factor test: The purpose/character of the use,

including its commercial nature The nature of the copyrighted work The amount used in comparison with the

work as a whole The effect of the use upon the potential

market for/value of the copyrighted work

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Other Defenses

Parody/First Amendment Reverse Engineering to gain access to

functional aspects License Waiver/abandonment Copyright abuse First-Sale doctrine: libraries, video

rentals, art galleries; but see the Record Rental Amendment of 1984.

Audio Home Recording Act (personal copy)

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Digital Control

Digital Millennium Copyright Act Gives legal protection and

remedies for violating anti-circumvention measures

Exceptions for libraries and archives, law enforcement, reverse engineering, encryption research, protection of minors, personal privacy, and security testing

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Online DMCA Issues

Exceptions exist for transitory communications, system caching, and storage at direction of users (not the ISP; and provided the ISP does not have knowledge of the infringement);

Search engines excepted Limited liability for ISP that

complies with ‘cease & desist’ letter