Intellectual Property

Boston College Law School

January 31, 2007

Copyright – Indirect Liability

Fair Use

• 17 U.S.C. § 107. Fair Use– “Notwithstanding the provisions of section 106,

the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching …, scholarship, or research, is not an infringement of copyright….”

Fair Use• 17 U.S.C. § 107. Fair Use

– “In determining whether the use made of a work … is a fair use the factors to be considered shall include --

• (1) the purpose and character of the use, including whether such use is of a commercial nature …;

• (2) the nature of the copyrighted work;• (3) the amount and substantiality of the portion used in

relation to the copyrighted work as a whole; and• (4) the effect of the use upon the potential market for or value

of the work.”

Campbell v. Acuff-Rose

Dr. Seuss v. Penguin Books

Disney v. Air Pirates

Rogers v. Koons

Defenses

• Fair Use

• Independent Creation

• Consent or License (Express or Implied)

• Statute of Limitations

• Inequitable Conduct

• Copyright Misuse

• First Amendment

Third Party Liability

• Contributory Liability– 1. Knowledge of infringing activity– 2. Induce, causes, or materially contributes

• Vicarious Liability– 1. Right and ability to supervise– 2. Direct financial interest in infringing activity

Hypothetical

• Facts– Person posts copyrighted works on mySpace page

– Terms of service give mySpace right to remove docs

– Copyright owner gives notice to mySpace, demands removal

• Questions– Chances of liability?

– Advice for this case? Going forward?

Additional Examples

• Should liability extend to …– ISP hosting infringing content?– Auction site permitting sale of infringing stuff?– Search engine linking to infringing site?– Credit card company processing claims on site

w/ infringement?– ISP enabling infringer to reach the internet?

Policy Issues

• Why Third Party Liability?– Facilitate enforcement– Third parties may be morally culpable– Deter third parties from harmul activity

• Why Not Third Party Liability?– Imposes costs on third parties (e.g. monitoring)– Not always fair to impose burden– Not always efficient for third parties to enforce

Sony v. Universal

Administrative

• Next Assignment– Read II.H – Digital Copyright

• Skip material in syllabus on Digital Copyright Legislation (565-75)

• Read material on Enforcement (575-99) (note: includes extra case: Kelly v. Arriba Soft).