Copyrights in General

1. U.S. Constitution, Art. I, Sec. VIII, Clause 8.
2. 17 U.S.C. 101 et seq.
   

What is copyrightable?

The expression of ideas in:

• Literary works
• Music
• Drama
• Pictures
• Movies
• Computer Software

1. Original work
2. Derivative work - "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a derivative work."
3. Collective work - "a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves are assembled into a collective whole."
4. Compilation - "a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship."

1. Contributory infringement requires:
     (i) defendant's knowledge of the infringing activity; and
     (ii) (perhaps) substantial participation via inducement, causation or material contribution to the infringing conduct of others.
2. Vicarious infringement does not have a knowledge requirement.  Vicarious infringement requires:
     (i) the right and ability to control the infringing activity by the defendant; and
     (ii) the defendant receives a direct financial benefit from the infringing activity.
3. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 125 S.Ct. 2764 (2005) is an example of a case where the court (in this case, the US Supreme Court) drew elements of both contributory infringement and vicarious infringement.  In Grokster, the court held that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."  Even though the device in question (software to enable peer-to-peer networking) had substantial non-infringing uses, the defendant's non-passive participation, lack of filtration, attempts to capture market share from another (infringing) competitor, marketing/promotion and business model all pointed to the reliance on copyright infringement by third parties to provide a financial benefit to the defendant.
4. Vicarious liability for linking/referencing sites with infringing content.  In Perfect 10, Inc. v. Google Inc., 508 F.3d 1146 (9th Cir. 2007), the Court decided that a direct infringement action about thumbnail images (that Google created and distributed) may succeed, but the indexing of sites containing complete copyrighted works would not.  From the standpoint of contributory infringement, Google's search engine had a (very) substantial non-infringing use (relying on the U.S. Supreme Court's opinion in Sony v. Betamax).  Note that, in this case, for vicarious infringement, the defendant would have to be able to exert control over an independent third party -- which was not possible, plus any financial benefit would have been indirect. 
   
5. Direct copying (complete work)
   Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc. (D. Utah 1999) (Direct copyright infringement suit involving the Mormon Church's Handbook of Instructions, which is a set of internal operating procedures for the Church.  Defendant was critical of the plaintiff, and posted a copy of the Handbook on the Internet.  Plaintiff got a court order to remove the file containing the book.  The defendants complied, but they left at the site a link to the same content elsewhere online, and through posted emails on their website that encouraged others to find and review the material.  Court found the defendant liable for direct infringement.)
6. Substantial similarity (when some, but not all, of the work is copied)
7. Protection for Literal Elements of Software - Direct Copying
   1. Apple Computer, Inc. v. Franklin Computer Corp. 714 F.2d 1240 (3d Cir. 1983).
      1. Source code is coyrightable
      2. Object code is copyrightable
      3. Executable binaries are copyrightable
      4. Suitable tangible media include:
         1. Floppy disk;
         2. Hard disk drive; and
         3. ROM (and RAM).
      5. Idea/Expression Dichotomy:
         1. Methods are not copyrightable, but the instructions that implement the methods are copyrightable if the method can be implemented in more than one way.
8. Protection for Non-Literal Elements of Software (so called "Look and Feel" or "Structure, Sequence and Organization")
   1. Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222 (3d Cir. 1986).
      1. Structure, sequence, and organization are protectable by copyright if there is more than one way to express the structure, sequence, and/or organization.
   2. Computer Associates International v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992).
      1. Scope of protection for structure, sequence, and organization can vary depending upon the protectable expression found to exist within the program at issue.
      2. Substantial Similarty Test for computer program structure:
         1. Abstraction (find basic idea)
         2. Filtration (separate protectable expression from non-protectable such as ideas, or elements that are dictated by efficiency or external factors)
         3. Comparison (is the infringing code substantially similar to the protectable expression)
9. Protection for Functional Elements and Protocols
   1. Lotus Development Corp. v. Borland International, 49 F.3d 807 (1st Cir. 1995).
      1. Menu commands are an uncopyrightable "method of operation."
   2. Digital Communiations Associates v. Softklone Distributing Corp., 659 F.Supp. 449 (N.D. Ga. 1987).
      1. Status screen (even if found to be a form) is copyrightable
   3. What about API's, file formats, communication protocols?
   1. Cases go both ways.
   2. Individual elements may not be copyrightable, but a group might be a compilation so long as there is "selection and arrangement" that can be accomplished in other ways.
10. Protection for Program Outputs: Screen Displays
    1. Stern Electronics, Inc. v. Kaufman, 669 F.2d 852 (2d Cir. 1982).
       1. Game (as a whole) has repetitive sequence of images that are copyrightable as an audiovisual work.
    2. Data East USA, Inc. v. Epyx, Inc., 862 F.2d 204 (9th Cir. 1988).
       1. Certain elements of output screen not substantially similar.
11. Protection for Program Outputs: User Interfaces
    1. Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435 (9th Cir. 1994).
       1. Apple's Graphical User Interface ("GUI") not infringed by Windows.

1. The Right to Make "Copies"
   1. MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993).
      1. Loading of software into RAM creates a copy.
      2. Note, the DMCA altered Section 117 of the Copyright Act to create a particular exemption from liability for the owner or a lessee of a computer program to make or authorize the making of a copy of a computer program for purposes of maintenance or repair of the computer hardware (thus narrowing the holding of MAI.
2. Copies and Section 117
   1. Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988).
      1. Loading of software into RAM not itself infringement if essential to operation.
   2. Allen Myland Inc. v. IBM, 746 F.Supp. 520 (E.D. Pa. 1990).
      1. Archival copies okay.
      2. Distribution of copies to other for commercial purposes is a violation.
3. Derivative Works
   1. Midway Manufacturing Co. v. Artic International, Inc., 704 F.2d 1009 (7th Cir. 1983).
      1. Faster version of video board held to be derivative work.
   2. Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988).
      1. To constitute a derivative work, the infringing work must incorporate in some form a portion of the copyrighted work.
   3. United States v. Manzer, 69 F.2d 222 (8th Cir. 1995).
      1. 70% similarity between two code sets sufficient to find one was an infringing derivative work of the another.
4. Fair Use
   1. 17 U.S.C. 107
      1. Fair Use Factors:
         1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
         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. effect of the use upon the potential market for or value of the copyrighted work.
      2. You can have fair use of an unpublished work in some circumstances.
   2. Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F.2d 965 (9th Cir. 1992).
      1. Game Genie device that converted signal to video game machine permissible fair use. Nintendo's argument fell on the fourth factor of Section 107.
   3. Micro Star v. Formgen Inc., 154 F.3d 1107 (9th Cir. 1998).
      1. Compilation and sale of user-generated game levels that contained elements of plaintiff's copyrighted work not deemed fair use.
5. Reverse Engineering
   1. Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992).
      1. Where disassembly is the only way to gain access to the ideas and functional elements embodied in a copyrighted computer program and where there is a legitimate reason for seeking such access, disassembly is a fair use of the copyrighted work, as a matter of law.
   2. Sony Computer Entertainment, Inc. v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000).
      1. Intermediate copies of software created during the reverse engineering process are protected by fair use.
   3. Beware of changes to the law as a result of the DMCA.
6. Copyright Misuse
   1. Lasercomb America, Inc. v. Reynolds, 911 F.2d 970 (4th Cir. 1990).
      1. Successful defense of misuse of copyright bars a culpable plaintiff from prevailing on an action for infringement of the misused copyright.
      2. Attempted use of a copyright to violate the antitrust laws may give rise to a misuse of copyright defense. However, a violation of the antitrust law is not a necessary condition for asserting the misuse defense.
      3. Need not be party to license agreement to assert misuse defense.

Internet Service Provider Liability Generally
Two conflicting decisions:
1. Playboy Enterprise Inc. v. Frena, 839 F.Supp 1552 (M.D. Fla. 1993). The defendant owned a BBS (bulletin board system) upon which one of their subscribers uploaded digitized copies of erotic photos from a Playboy magazine.  Upon notice, Frena removed the offending files.  Plaintiff Playboy sued the BBS operator (Frena) anyway.  The Court did not find that the defendant BBS operator was liable for the "unauthorized reproduction of the plaintiffs' work.  Instead, the Court found that the BBS operator was liable for violating Playboy's right to publically distribute and display copies of its work under Section 106(5) of Title 17.  In short, the Court found that downloading copies of the files constituted a "public" display to an audience.  Note, the court was unmoved by Frena's protestations that it was unaware of the uploading activity.
2. Religious Technology Center v. Netcom On-Line Communications Services, Inc., 907 F.Supp. 1361 (N.D. Cal. 1995).  Similar facts as with Frena, i.e., Plaintiff sued defendant BBS because one of the BBS's subscribers posted copyrighted material to the BBS.  In this case, the objectionable material was certain works fo L. Ron Hubbard.  Like Frena, the Court held that Netcom was not liable for direct infringement.  The court also held that Netcom was not liable for vicarious infringement.  However, unlike the Frena court, this court didn't find contributory infringement (distinguishing some of the facts in Frena), and likend Netcom to an access provider rather than a content provider and thus not liable for the content.

1. Internet Service Provider Safe Harbors
   1. Eligibility for Safe Harbors
      Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004) (AOL not liable for person (subscriber) who uploaded electronic copies of author's books).
   2. Safe Harbor for Network Communications
      Section 512(a) of the DMCA lays out a five element test:
      1. the transmission of the material was initiated by or at the direction of a person other than the service provider;
      2. the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the mtaterial by the service provider;
      3. the service provider does not select the recipients fo teh material except as an automatic response to the request of another person.
      4. no copy of the material is made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and
      5. the material is transmitted thorugh the system or network without modification of its content.
      Ellison v. Robertson, 189 F.Supp.2d 1051 (C.D. Cal. 2002), aff'd in part, rev'd in part, 357 F.3d 1072 (9th Cir. 2004). On remand, the District Court found AOL fell under the Safe Harbor provisions of the DMCA.
      A & M Records, Inc. v. Napster, Inc. 54 U.S.P.Q.2d 1746 (N.D. Cal. 2000) (District Court denied Napster's motion summary adjudication because the Court concluded that Napster does not transmit, route, or provide connections thorugh its systems, and thus doesn not qualify for the Section 512(a) safe harbor.)
   3. Safe Harbor for Storing Materials at User's Direction
      Section 512(c) of the DMCA states:
      (c) Information Residing on Systems or Networks At Direction of Users.
      (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:
      

      (A)
          (i) does not have actual knowledge that the material or an activity using the material on the 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;

      (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.

      (2) Designated agent.  The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information:

      (A) the name, address, phone number, and electronic mail address of the agent.

      (B) other contact information which the Register of Copyrights may deem appropriate. The Register of Copyrights shall maintain a current directory of agents available to the public for inspection, including through the Internet, in both electronic and hard copy formats, and may require payment of a fee by service providers to cover the costs of maintaining the directory.

      (3) Elements of notification.
      

      (A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:
          (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.     (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
          (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
          (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
          (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
          (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

      (B)
          (i) Subject to clause (ii), a notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions of subparagraph (A) shall not be considered under paragraph (1)(A) in determining whether a service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent.
          (ii) In a case in which the notification that is provided to the service provider's designated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A).

      ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619 (4th Cir. 2001) (Noice sufficient under the DMCA to preclude safe harbor even when notice was imperfect).
      Henrickson v. Amazon.com, Inc. 298 F.Supp.2d 914 (C.D. Cal. 2003) (The court, after qualifying Amazon for safe harbor under Sec. 512(a) proceeded to determine if it had safe harbor against a claim of vicarious copyright infringement if it met the conditions of Sec. 512(c)(1).  In this case, Amazon did not have a copy of the infringing work (a DVD of an unreleased movie), but merely listing and sale of the unauthorized work.  The court noted that Amazon had no way to know that an infringing sale by a third party seller would occur, Amazon never had a copy of the DVD to inspect.  According to the court, Amazon simply provided a forum for an independent third party seller to list and sell the merchandise, and that Amazon was not actively involved in the listing, bidding, sale or delivery of the DVD.
   4. Safe Harbor for Information Location Tools
      Section 512(d) of the DMCA shields Internet service provideers from liability for infringement "by reason o the provider referring or linking users to an online location containing infringing material or infringing activity."  Specifically:
      
      (d) Information Location Tools.  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 provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link, if the service provider:
      

      (1)

      (A) does not have actual knowledge that the material or activity is infringing;

      (B) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

      (C) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

      (2) 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

      (3) upon notification of claimed infringement as described in subsection (c)(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, except that, for purposes of this paragraph, the information described in subsection (c)(3)(A)(iii) shall be identification of the reference or link, to material or activity claimed to be infringing, that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate that reference or link.

      Perfect 10, Inc. v. CCBill, LLC 340 F.Supp.2d 1077 (C.D. Cal. 2004) (Plaintiff alleged contributory infringement by facilitating credit card payments services, age verification services, and internet connectivity services for adult-oriented web site where plaintiff alleged copyrighted files were stored.  Here, the court concluded that the defendant did not have the right or ability to control the infringing activity, and thus the first prong of Sec. 512(d) was met.)

1. The History of the DeCSS Haiku
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