Week 2: Copyright 2: Infringement > Infringement of Copyright > Copying
- This lecture is on copyright infringement and we’re going to talk about both direct and indirect infringement.
- Once you do sell a particular copyrighted work, that particular copy is no longer in your control.
- You have the right for of public performance and display.
- So you can perform your work publicly and control when your work is performed or displayed publicly.
- You have the right to prevent people from circumventing any encryption technology that you put on your copyrighted work, to prevent people from either getting access to or making copies of it.
- First, you have to have copying and then you have to an improper appropriation.
- As we’ll see, not all forms of copying are actually infringements.
- One is copying and second is improper appropriation.
- What do we mean by copying? Well, there are two ways that you can be found to have copied somebody’s work.
- There was direct evidence of copying because the alleged copyright owner had inserted some fake phone listings, which Feist had copied and put into their book.
- In many cases though, direct evidence of copying isn’t available.
- Either because the defendant doesn’t admit that he or she copied or because there’s otherwise no evidence of actual copying.
- So the courts have held and the statute allows for circumstantial evidence of copying to suffice in these cases.
- In order to find copying where no direct evidence exists, you have to show two things.
- So circumstantial evidence of copying requires access to the work and substantial similarity.
- The case of Arnstein versus Porter is a case that explores what we mean by circumstantial evidence of copying.
- In this case Cole Porter was accused of copying Arnstein’s works.
- Porter denied it, said that there was no evidence of copying.
- Again Porter denied it so the only way to show copying, on Arnstein’s part, was to show circumstantial evidence, which means access to the works and substantial similarity.
- The court here worked through the issue and decided that ultimately a jury could decide whether or not similarity was close enough.
- In terms of access, access was available because the court said that Arnstein’s songs had been published, they had been distributed widely, and so clearly because of that, Porter had, technically at least, access to the works.
- The Arnstein case is a pretty important case in this context because it stands for the proposition that there’s a very broad ability to find circumstantial evidence of copying.
Week 2: Copyright 2: Infringement > Infringement of Copyright > Improper Appropriation
- And the second component to copyright infringement is improper appropriation.
- Or sorry, so the copyright owner doesn’t get protection over that.
- So the copyright law recognizes what it calls a de minimis exception, meaning a very, very small or trivial amount of work taken is not copyright infringement.
- So the test for whether something has been appropriated improperly is whether or not there’s substantial similarity between the original copyrighted work and what I’ve done.
- So what do we mean by substantial similarity? So the protection that you get for copyright extends beyond exact copies.
- So it is not the case that I can avoid copyright infringement by merely changing, for example, the characters’ names in a book.
- The standard for improper appropriation is substantial similarity, but copyright protection doesn’t extend to anything that’s uncopyrightable.
- So on the one hand, we think of copyright as having an expansive approach.
- Because, as we noted earlier, many copyrighted works have mixes- mixes of uncopyrightable material and copyrighted material- sorting through that to figure out whether there’s been infringement can often be quite difficult.
- What is it that’s in the allegedly infringing work that is potentially substantially similar to the cookbook? Is it the pictures? Is it the prose? Or is it the recipes? If it’s just the recipes- the instructions themselves- then that’s uncopyrightable and not eligible for this subjective test.
- So this two-part test, objective and then subjective, is the way the courts try and sort through what is otherwise an extremely difficult analysis of when something infringes copyright and when it doesn’t.
- So if you have a lot of protection- if you have what we call a thick copyright- a classical work of fiction, for example, or an original painting not based on anything else- that gets sort of maximum copyright protection.
- On the other hand, where they protection is very thin, where the amount of protectable material is very slight, then you’re going to essentially require a lot more similarity in order to find copyright infringement.
- So this sliding scale means that, for every copyrighted work, you’re going to have sort of a different scope of infringement protection.
- So if I have a classic work of art or work of fiction that gets a lot of copyright protection, I’m going to have a fairly broad standard for infringement.
- If I am doing something that’s very factual in nature- if I am, for example, creatively ordering a list of names- that copyright protection, if it exists at all, is going to be very narrow.
- So we describe software as having a very thin copyright.
- So many courts will actually say that in order to find copyright infringement for computer software, you have to have mirror identity.
Week 2: Copyright 2: Infringement > Infringement of Copyright > Derivative Works
- The right to create derivative works comes right from the statute, and a derivative work is defined in section 101 of the copyright law.
- It’s a work that’s based on one or more preexisting works, could be a translation, a musical arrangement, a dramatization, a fictionalization, a motion picture version, a sound recording, a reproduction, an abridgment, condensation, or any other form in which a work can be recast, transformed, or adapted.
- It’s still distinct, but the test for whether something is a derivative work or not is whether it infringes the original work, meaning is it substantially similar to the original work.
- It’s a work of expression, like any other work of expression, and therefore I get copyright protection.
- Because the copyright law says that there is one and only one person that can create derivative works, and that person is the owner of the original works, only Stallone can create derivative works.
- So the derivative work right in this case ends up having the effect of making it so that Anderson’s treatment of the Rocky four picture was, in effect, work that he did it was in violation of copyright, and therefore Stallone gets to use it for free without compensation to Anderson at all.
- So the derivative work right did not work out for Anderson at all in this case.
- So the idea here, you might think this is crazy, right? Why would we offer a law that would allow such a, what appears to be, unfortunate result for screenwriters in particular, or anyone else who wants to adapt earlier works.
- The idea is that, by giving Stallone the right, by giving the original author, the original owner of the copyrighted work, the right to create derivative works, and indeed the right to prevent others from creating derivative works, it gives an incentive for the Stallones of the world to create these follow on works, to create adaptations, to create new works that are similar, more sequels for example.
- One of the ways you can do that is by preventing anyone else from doing it, so if Stallone wants to, he can do it without having to worry about anybody else beating him to it, or creating a competing derivative work and so forth.
- So it’s a way of encouraging people to create the original work, the first work, the Rocky one through three, and by giving them the rights to make Rocky four.
Week 2: Copyright 2: Infringement > Indirect Infringement of Copyright > Indirect Liability
- You have a copyright owner, creates a copyrighted work, and there’s an infringer.
- Whatever right they’ve infringed, we call that infringer the direct infringer and directly liable.
- Meaning the copyright owner can sue the infringer for copyright infringement and if they win they get the money from the infringer and they get to tell the infringer to stop.
- When we talk about indirect liability, that’s what we talk about, right? What we mean is that the copyright owner can hold this helper, this third party, liable for the infringements not of the helper, but of the infringer.
- So they are indirectly liable for copyright infringement.
- So why would you do that? Why would we have in the law the ability for the copyright owner to sue not only the direct infringer, but also to sue the indirect infringer, the helper.
- Yes, the copyright owner would have the right under the law to sue each of those infringers directly and argue that they have infringed a copyright and they could win and get the money or get them to stop.
- There has to be somebody who is engaged in helping the direct infringer, one or more of the direct infringers, engage in the copyright infringement.
- So the downside of indirect liability is that it gives the copyright owner a lot of power because say, for example, that the helper is replaced by, for example, new technology, say iPods, for example.
- As a formal technical matter that’s copyright infringement.
- You have made a copy of a copyrighted work and taken it from the CD and put it on your iPod.
- So one of the downsides and one of the concerns with indirect liability is that by granting the power to the copyright owner to prevent these helpers, to sue these helpers, to sue the intermediaries, are we, in some cases, allowing them to have too much control over what new technology emerges for using, consuming, altering, or whatever, copyrighted works.
- On the one hand, it would seem to be impossible in many cases for copyright owners to effectively protect themselves in a world where they had to sue each direct infringer individually one at a time and try and collect money from there.
Week 2: Copyright 2: Infringement > Indirect Infringement of Copyright > Indirect Liability & Technology
- So this question of indirect liability and when we allow copyright owners to control the distribution of new technology emerged originally in the Sony versus Universal case of 1984.
- So Sony creates and distributes the Betamax, which is the precursor to what we now know as the VCR, and of course what we increasingly use now as the TiVo or the DVR. And it allows purchasers of this device to record TV shows.
- So the TV studios allege infringement and they want Sony to be held indirectly liable.
- That’s copyright infringement and you, Sony, are indirectly liable for that.
- There’s no liability under copyright law for Sony.
- What Sony’s doing is distributing a product that is capable of both infringing and non-infringing.
- The thinking here, I believe, was that similar to Sony, Napster, although it was in some sense enabling the downloading of copyrighted music and movie files, was nonetheless what the Napster attorneys argued a staple article of commerce.
- It could be anything, and that because it was at least capable of non-infringing uses, it was a staple article of commerce and under the Sony doctrine, Napster would escape.
- Napster, because of the way that its technology was set up, Napster was maintaining a centralized database, a database that would essentially link the digital files with people’s searches for those digital files.
- They had so much ability to control what their users were doing with the product that it could not be called a staple article of commerce and therefore Napster was liable for indirect infringement.
- Napster has a product that, again, might be technically capable of infringing and non-infringing, but because Napster has so much control over the way its users are actually using the product, it is not a staple article of commerce and therefore Napster is indirectly liable for all of the infringements.
- The millions and billions of infringements of copyright that its users were doing, and Napster failed soon after.
Week 2: Copyright 2: Infringement > Indirect Infringement of Copyright > Active Inducement
- Grokster was specifically designed not only to be more efficient, but by technologists, by engineers, and indeed by lawyers who had carefully read the Sony decision and the Napster decision and realized the line that we just described that Sony, on the one hand, had no control over the way its users were using its product.
- What they tried to do and what they did do was create a file-sharing service that did much the same things that Napster did in terms of allowing people to find and download files, mostly, again, copyrighted movie and music files.
- Once the software went out in the world, the Grokster company, the people who created the software, had no ability to control what people were using the software for, how they were communicating with each other, what types of works were being shared, and so forth.
- To the extent MGM and the other movie studios have troubles with this, Grokster says, you should sue the end users and not sue us for indirect liability.
- What happens is the Supreme Court creates a new test for indirect liability in the Grokster case, and what they call it is an active inducement test.
- So what the Supreme Court does is it takes away, essentially, the staple article of commerce doctrine that was developed in Sony, and says instead, we’re going to look at what you intend by the distribution of this technology, what you intend your users to use it for.
- Unfortunately for Grokster, there were a number of emails that were found during the discovery phase of the litigation, where the internal executives had said things like, oh, look at how many copyrighted files are being shared, and indicated in general that what Grokster seemed to know and indeed seemed to actually intend their users to do was to share copyrighted files.
- One is the contributory infringement from Sony, and the other is the inducement infringement from MGM versus Grokster.
- In the Sony case, it was the Betamax, and in the Grokster case it was the Grokster piece of software that you would download. And in both cases- well, in the Sony case, you have to have knowledge of the capability that you are able to infringe.
- So Grokster was promoting the fact that you could download music using the Grokster service, for example, and the Grokster software.
- Of course, in the contributory infringement context, the Court in Sony said, you cannot be liable for contributory infringement if you have a staple article of commerce that you are distributing, if you are distributing something as substantial non-infringing uses.
- So I am not required to know as much about what my consumers are doing as long as what I’m doing is not providing a staple article of commerce, right? If I am providing a technology or a machine where the only use or 99% of the use is for copyright infringement, then I don’t even have to know that my users are actually infringing because I have done enough to be a contributory infringer.
Week 2: Copyright 2: Infringement > Indirect Infringement of Copyright > Effects of Indirect Liability
- At the same time, you have things like BitTorrent and other technologies, which seem to be almost impossible for the movie and music studios to actually prevent from happening.
- On the other hand, YouTube seems to provide particular tools for copyright owners to try and enforce their rights.
- So there’s a lot of new technology, of new developments, that have gone on in this area of online copyright.
- One of the questions to ask yourself is whether this doctrine of indirect liability, which inserts the copyright owners into sort of the middle of all of these decisions- the only reason that iTunes exists, or that Hulu exists, or that HBOGo exists, is because the underlying copyright owners have given their blessing.
- So indirect liability is what allows the copyright owner to have the seat at the table here.
- The question to ask is whether that’s the right balance, whether we’re giving enough power to the copyright owners, or too much power to the copyright owners.
- At the same time, they’re also difficult to actually deploy these new technologies, because the copyright owners have to agree- because of indirect liability, because anyone who wants to create a new technology is going to need to have the blessing of the copyright owners in order to be able to distribute it.
- On the one hand, offering indirect liability means that the copyright owners are intimately involved with the development of new technology.
- Therefore there’s a lot of stuff out there where people can infringe copyright, but the copyright owners can’t protect themselves.
- Whether we’ve hit that balance right is an interesting policy discussion that’s going on right now in the world of copyright law.
- We could say that there’s a standard for technology where if the predominant use is for non infringing works to have a standard that is- go back to the Sony rule- have a standard that’s based on the predominant use.
- You could abolish indirect liability altogether, and argue that if copyright owners want to protect themselves, then the right people to sue are the people who are actually committing the acts of infringement.
- So if I’m downloading illegally a movie on to my computer using BitTorrent, instead of suing BitTorrent or the producers of BitTorrent, instead the movie studios should sue me, the copyright infringer, directly.
- That, the argument might be, would allow for lots of technology to develop, and let the users decide whether or not they want to use it for infringing purposes.
- To say that the best answer is to say, you can do whatever you want with respect to copyright online, and instead we’re just going to charge a tax.
