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COPYRIGHT
ISSUES IN CYBERSPACE
A. Access
B. Digital Consumers Bill of Rights
C. Exclusive rights - § 106
1. Reproduction -- New
York Times Co v. Tasini, 533 U.S.
483 (2001)
2. Distribution -- Random House v. Rosetta Books, 150
3. Adaptation
4. Performance
5. Display
6. Public performance of sound recordings by
means
of
digital audio transmission
a. Webcasting - Copyright Office rulemaking
B. First sale doctrine - § 109(a)
1. Record Rental Amendment - § 109(b)(1)(A)
2. Computer Software Amendment - § 109(b)(1)(A)-(B)
3. Vernor v. Autodesk, 2010 U.S. App. LEXIS 18957 (Sept.
A. Sonny Bono Copyright Term Extension Act - CTEA - §§ 302-304
1. When works pass into the public domain
2. Register's Orphan Works Study
B. Digital Millennium Copyright Act -- P.L. 105-304,
OSP liability - § 512 recognizes two types of OSPs
1. Passive conduits - §
512(a) - merely provide Internet
access. They may not:
a. Initiate transmission that contains
copyrighted
material,
b. Select the material sent,
c. Select the recipients,
d. Modify the content of the material, or
e. Copy or retain the material no longer than
is
necessary.
2. Provide online services
(such
as hosting webpages) -
§ 512(c)(1). The OSP must:
a. Not have actual knowledge material or
activity
infringing,
b. Not be aware of facts/circumstances upon which
infringing activity is apparent,
c. Upon obtaining actual knowledge or awareness,
expeditiously remove material [Notice & take
down],
d. Not receive a financial benefit attributable to
infringing material,
e. Upon notification, act expeditiously to remove
material from system, and
f. Not return the material to the system absent
investigation finding posting material not
infringing.
3. To take advantage of
exemption
as OSP, § 512(c)(2),
it must:
a. Name agent to receive complaints of such
infringement
b. Publish name, address, phone number & email
address of the agent
4. Additional exemption for
nonprofit
educational
institutions that are OSPs
a. Faculty members & graduate students teaching
&
researching - § 512(e)
b. Their activities & knowledge not
considered
to be
that of institution for determining liability for
infringement if three conditions met:
1. Their infringing activities do not involve
providing online materials that were
assigned or
required within preceding
3-year period, &
2. Institution has not received more than two
notifications of infringement by
such
individuals within the preceding 3
years, &
3. Institution provides to all users of the
system materials
that accurately describe
and promote
copyright law
compliance.
5. For both passive conduits and hosting, the OSP
must
adopt, implement
and notify users of policies to
terminate accounts for
infringing activities - §
512(i)(1)(A)
6. Cases
a. Viacom
v. YouTube, 2010 U.S. Dist. LEXIS
62829
(June 23, 2010)
b. UMG
Recordings Inc. v. Veoh Networks Inc, 93
U.S.P.Q.2d
1010
(C.D.
Cal.
2009)
c.
Lenz v. Universal Music Corp.,
572 F. Supp.2d 1150
(N.D. Cal. 2008) http://www.youtube.com/watch?v=N1KfJHFWlhQ
C.
Anti-circumvention and copyright
management systems -
§§ 1201-1205
1. No person shall circumvent a technological
protection
measure that controls access....
2. Manufacturing, distributing, trafficking in devices
3. Exemptions: Legitimate encryption research,
reverse
engineering, security testing
4. Now use of devices is also covered
a. Register's rulemaking on anti-circumvention
& report
PROTECTING ACCESS PROTECTING § 106 RIGHTS
| PROTECTING ACCESS | PROTECTING & 106 RIGHTS | |
| Individual acts of circumvention | §
1201(a)(1)
– Prohibition with LOC exceptions
1. Motion pictures on DVD when circumvention for making compilations of portions for educational use in classroom, and for film studies, for documentary filmmaking and noncommercial videos. 2. Computer programs and videogames in obsolete formats that require original media or hardware as condition of access 3. Computer programs protected by dongles that prevent access due to malfunction. 4. Literary works in e-book format when all e-book editions access controls prevent enabling read-aloud function 5. Firmware that enables wireless handsets to connect with wireless phone networks if circumvention is only for lawfully connecting to such network 6.
Sound recordings
and associated AV works in CD format with TPMs that control access to
lawfully
purchased works and have or exploit security flaws if circumvention is
for testing, investigating or correcting such flaws |
Not prohibited |
| Manufacturing
or distributing
devices that:
(A) are primarily designed to circumvent (B)
have only
limited commercial purposes other than to circumvent (C) are
marketed for
use in circumvention |
§1201(a)(2) | §1202(b) |
D.
Peer-to-peer file sharing
MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005)
E. Anti-circumvention cases
1.
Universal
City Studios v. Reimerdes, 82 F. Supp.2d 211
(S.D.N.Y. 2000)
a. Appeal = Universal
Studios v. Corley,
273 F.3d
429 (2d Cir. 2001).
b. Johansen appeal
c. Locating DeCSS online -- Gallery of
3. ElcomSoft acquitted
4.
MDY Indus. LLC v.
Blizzard Entm't, 616 F.Supp.2d 958
(D. Ariz. 2009)
III. Difficulties in Copyright
Application to the Internet
A. Making a copy
1. Google Books Project
2. Google Books settlement
B. Browsing
1. Digital browsing vs. print browsing
2.
Religious
Technology Center v. Netcom
Communications, 907 F. Supp. 1361 (N.D. Cal. 1995)
C. Caching
1. Local caching
2. Proxy caching
3. Problems for copyright holder
D. Linking & framing
2. In-line links (framing)
1.
Crawler creating indexes (not just Google)
b. Archiving http://www.archive.orga. Kelly v. Arriba Soft Corp.,
280 F.3d 934 (9th Cir. 2002)b. Perfect 10 v. Google, 416
F.3d 701 (9th Cir. 2007)2. Other compilations
IV.
Criminal Penalties -- No
Electronic Theft Act (NET Act)
- § 506
A. 1997 amendment -- federal crime to infringe copyright
1. Willfully for commercial advantage or private
financial gain
a. Up to 5 years in federal prison
b. $250,000 fine
2.
Or, if works copied wi/ 6-month period valued at
$1000 or more
a. One year prison term
b. Fine
B. First
prosecution = Jeffery Gerard Levy
