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- Annual Spring Seminar, May 2003
- By: Beverly Robin Green,
- Green & Green
- Marin County & San Francisco
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- U.S. Copyright Law, 17 U.S.C. § 101 et seq., Evolved over last 1/2
Millennium:
- From English common law over 500 yrs. ago, w/the advent of first
threats of technology- the then “hi tech” Gutenberg Press, to the
English Statute of Anne, to protect writings, 300 yrs. ago, to a
Constitutional Right
- Article 1, § 8, Clause 8 of the U.S. Constitution
- Granted Congress the power to promote copyright in the “useful arts”
by protecting for “limited times” the rights of “authors” in their
“writings”…[also patent law]
- Always balancing act of rights: 1st Amendment freedom of
speech arguments, “Fair Use” defense factors & the protection of the public from
monopolies- antitrust
issues, raised in Napster to Eldred cases
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- REVIEW of history and scope of © Law, by Supreme Ct. examines:
- 1) CONSTITUTIONAL issues of Copyright, from
- a) the SCOPE of the enabling clause, © and Patent Clause of the
Constitution, as to
interpretation of term “limited Times”, TO
- b) 1ST AMENDMENT- FREEDOM OF
SPEECH issues, TO
- 2) Traditional and statutory Copyright “Fair Use” Issues.
- -WHO- “Petitioners are individuals and businesses whose products or
services build on copyrighted works that have gone into the public
domain.” NOTE: relevance of nature of P’s.
- -WHAT- Declaratory J action to seek deter. that the Copyright Term
Extension Act (CETA) of 1998 (aka the Sony Bono Copyright Extension Act)
amending 17 U.S. C. §§ 302, 304 of the 1976 Copyright Act, extending the
term of BOTH newly created, FUTURE works (NOT contested) and EXISTING
©’d WORKS NOT ALREADY IN PD (contested) is UNconstitutional.
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- WHY - Examines HISTORY of federal Copyright statutes and Congress’
repeated previous exercises of its authority under the Copyright Clause
(AND separately, practice of extensions of patents under the Patent
Clause BUT distinguishing nature of patents & copyrights) to Conclude:
- That by simply adding 20 yrs.( in part, to conform to a 1993 EU
Directive extending the EU term to life + 70), and
- Under the Berne Convention (of which US is a signatory, and under which
US adopted life + 50 in 1976 © Act, due to then Berne Convention, for RECIPROCITY
- EU directs its members to deny longer term to any country whose laws
do not secure the same extended term) - extension to ensure American authors receive the
same © protection in EU as EU counterparts ( = more $$$ to Americans)
- = CT. CANNOT say that CETA, continuing the practice of applying parity
to future and existing copyrights, is an impermissible exercise of
Congress’ Const. power:
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- From 1st U.S. © statute in 1790 (renewable 14 yr. term), which applied
to BOTH FUTURE AND EXISTING works, through 1831, 1909 (28+28),
- To the 1976 Act (major “NEW” Copyright Act), changed to life of author +
50 yrs. Or shorter of 75 yrs. from publication or 100 from creation-for
anonymous or WMFH 17 (U.S.C. §101) for all works created OR first
published after eff. Date (1.1.78) AND increased term of existing works
published before that date to 75 yrs. (19 yr. increase over the 56 yr.
term of 1909 Act),
- To the CETA, installing the 4th major duration extension of federal
copyrights to enlarge BOTH EXISTING AND FUTURE COPYRIGHTS, by 20 yrs.
(life of author + 70 yrs. OR to 95-120 yrs.).
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- SCt.cites Dist.Ct holding “there are no First Amendment rights to use
the copyrighted works of others”
- NOTES the proximity of the Copyright Cl. And First A. indicates Framers
intent that Copyright’s LIMITED monopolies are compatible with free
speech principles and that Copyright’s purpose is to promote the
creation and publication of free expression by supplying economic
incentive to create and disseminate ideas,
- ALSO, there are “BUILT-IN” 1st A. accommodations, such as the “idea/expression
dichotomy” (§ 102 (b) “In no case does copyright protection for an
original work of authorship extend to any idea,…regardless of the form
in which it is described, explained, illustrated, or embodied”.
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- + “FAIR USE” defense: allows the public to use not only facts and ideas
contained in a ©’d work, but also expression itself in certain
circumstances. Codified at 17 U. S. C. §107, the defense provides: "[T]he
fair use of a copyrighted work, including such use by reproduction in
copies ... , for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship, or
research, is not an infringement of copyright." – “affords
considerable "latitude for scholarship and comment," Harper
& Row, 471 U. S., at 560, and even for parody, Campbell v.
Acuff-Rose Music, Inc., 510 U. S. 569 (1994) (rap group's musical parody
of Roy Orbison's "Oh, Pretty Woman" may be fair use).
- AND supplements of 1st A. safeguards with (little known trade off of)
Title II of CETA “Fairness in Music Licensing Act of 1998”, exempting
small business, restaurants, and like entities from having to pay
performance royalties anymore on music played from licensed radio and tv
(thereby depriving publishers and writers from some performance fee
income from performance rights societies, ASCAP & BMI, etc.).
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- HELD: Ample 1ST A. Protection, NOTING (note again nature of P’s) that “The
First Amendment securely protects the freedom to make – or decline to
make – one’s own speech; it bears less heavily when speakers assert the
right to make OTHER PEOPLE’S SPEECHES.”
- DISSENTS by Stevens, Breyer, historical reviews, miss the points. Fixed
on not too late to correct Congress, monopolies, & stat that
only 2% of old ©’s have value
(what of new?), don’t trust these 2%, or Sonny Bono, who record
indicates, wished term of ©s could last forever.
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- TO understand recent cases LIKE KAZAA & GROKSTER, NEED TO REVIEW: NAPSTER (most complete analysis to date,
terminated by PRELIMINARY INJUNCTION, FOLLOWED BY NAPSTER BANKRUPTCY, in
the Northern District,
- J. Marilyn Patel’s decision, upheld by 9th Cir. A & M Records, Inc.
v. Napster (and Leiber v. Napster)
- [NOTE:2 ©s in MUSIC= SR- Rec Co.PS,PA-Music Publisher P’s]
- - was the 1st Ct challenge by
the major record cos. & music publishers against the rampant “free”
Internet use of music
- Case tested how the cobbled together Copyright Law applied to new
challenges of technology & the internet & “The Law Won”
- Napster had 60 million “free” users downloading music
- Not the 1st time there was “free” music, traditional Radio was “free”,
too, BUT technology was such that radio was promotional; limited, &
not interactive, on demand, or downloadable; not so easily or perfectly
copied; or on so massive scale; & promoted music sales
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- Traditional “Fair Use” factors were held to be considered as an
affirmative defense (even though they did Not apply to Napster’s use)
- As confirmed in Napster, © infringement still requires:
- 1) proof of ownership of
copyright &
- 2) infringement of one or more exclusive bundle of rights in ©
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- Section 106 Copy “RIGHTS” include EXCLUSIVE:
- 1) so-called “Reproduction Right”- Basic “copy right” to “Copy”,
reproduce or make copies or phonorecords of a copyrighted work
- 2) “Derivative Rights” – Broad rights to prepare derivative works based
on the copyrighted work,
- 3) “Distribution Rights” – To distribute, by sale, rental, lease, or
lending, a copyrighted work,
- 4) “Performance Rights” To publicly perform a copyrighted work (with
great differences between the earlier & broader protection granted
to musical works and the much more recent and limited protection
granted to sound recordings), and
- 5) Rights to publicly display a copyrighted work.
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- WMFH defined in the current law 17 U.S.C. § 101
- “Work for Hire” applies only under 2 circumstances, only if:
- Artists are Employees of the Record Companies (applying traditional
common law tests of employment) or
- If Independent contractors, if work specially ordered or commissioned,
AND by written contract, only for certain categories, BUT SR are not
in the WMFH categories
- One Major Defense Issue raised in “Napster” was whether the Record Cos.
could rightfully claim SRs as “work made for hire” or whether the
recording artists have claim to their work:
- Recent Development:
- The RIAA lobbied for 1999 so-called “technical correction” amendment
to include SRs as a WMFH category, but when caught; repealed
retroactively in 2000, w/specific provision “that neither the
amendment nor its deletion can be given any legal significance.” =
must prove OWNERSHIP
- (Best practice: “WMFH” and ©
ASSIGNMENT)
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- Napster argued its service was capable of non-infringing, personal use
of “time-shifting”, as allowed by the S.Ct. Sony v. Universal 104 S.Ct.
774, 464 U. S. 417 (1984).
- Under the “Betamax” case, © holder cannot extend monopoly to products
"capable of substantial noninfringing uses.”
- But rejected comparison & granted prelim. inj. noting:
- 1) Napster’s CONTROL over the service (as opposed to mere
manufacturer); AND
- 2) The “VAST SCALE” and
“MASSIVE SCALE” of “illegal copying” and distribution by “millions of
users” swapping unauthorized files they don’t own…
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- Napster’s argument as to stretching
- “time-shifting” to “space-shifting” as allowed for MP3 Players, also
rejected
- RIAA v. Diamond Multimedia Sys., Inc. (U.S.C.A. .9th Cir. 1999) 180
F.3d 1072, involved an inapplicable statute (Audio Home Recording Act
of 1992) AND
- MP3 Player case allowed
space-shifting as a
- non-commercial personal use
- Note: MP3.com WEBSITE making music available WAS earlier held to be infringing,
just like Napster, and then sued counsel for Malpractice (Best
Practice: = Don’t just
tell clients what they want to hear!)
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- “FAIR USE” affirmative defense factors only; guide fair use
determination:
- 1) the PURPOSE AND CHARACTER OF
THE USE;
- Napster file hosting service is a commercial, large scale, anonymous
use; not a non-commercial,
personal use
- - Downloading MP3
files is not transformative (not
a parody as in Campbell v. Acuff-Rose Music (1994))
- 2) the NATURE OF THE COPYRIGHTED WORK;
- Note: Music and SR are entitled
to more protection than “fact-based” works, as closer to the core of
intended © protection
- 3) the “AMOUNT AND SUBSTANTIALITY of the portion used" IN RELATION
to the work as a whole; and
- Note that a digital file transfers necessarily involve copying the
entirety of the work (while entire copying WAS allowed as personal
(small) time-shifting in the SCt. Sony Betamax video player case)
- 4) the EFFECT OF THE USE UPON THE POTENTIAL MARKET for the work OR the
VALUE of the work.
- "The importance of this [fourth] factor will vary, not only with
the amount of harm, but also with the relative strength of the showing
on the other factors." Campbell, 591 n.21.”
- The Record Co’s. Argued undercutting of own efforts to start own
digital music services; leading to new Anti-trust allegations
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- CONCLUSION: Between the massive,
commercial use (Factor 1),the most protected status of the creative
works to be protected (Factor 2), the entirety of the copying (Factor 3)
and the alleged effect on the market (Factor 4), factors weigh against
“Fair Use”.
- Contributory Infringement can be shown where a person “induces, causes
or materially contributes to the infringing conduct of another....” Sega
Enterprises v. Maphia 857 F. Supp. 679 (1994)
- Materially contributes: Licensure
and installation of a “Kazaa” Desktop Software is essential to become
part of the p2p network; you cannot search for movies and music without
this.
- Infringing conduct of others: Held that persons were illegally copying
songs from CDs and sending them through the email.
- Can be argued that so-called peer-to-peer search services are unlike
Napster; they lack “central control. But Kazaa & other free online
music search and delivery services use software to enable user to get
into “network” of other linked p2p users.
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- Direct P2P music swapping Kazaa 1st Held by Dutch Court to NOT be Contributory © Infr. under
Dutch law; BUT still Direct © infr.
- Record Cos. Digital Subscription Services-Complexities of Licensing:
PressPlay joint venture of Sony and Universal Music, but NO Beatles or
Beach Boys under “B”, for instance, and MusicNet joint venture of
Warner, BMG and EMI boasts 75,000 songs from thousands of artists, while
independent Listen.com claims 15,000 albums from 6,000 artists licensed
from all the Big 5, none are very complete and all are complex and
costly to users used to it all for free. Losing $$$, won’t disclose # of
subscribers
- Just now: Apple launching new “paid” (99 cent) music service
- Some acts now offering paid downloads from pirates like “Kazaa”
- Public generally rejects idea of limited materials, & any paid,
subscription service; Still expecting everything on net to be for
“free”
- Labels resorting to “spoofing”, hacking; better access, quality,
extras,
- Societal Change, Education: Ad campaigns BritneySpears, Eminem,
StevieWonder,Madonna, EltonJohn, print ads; TV, the Message: “Stealing Our Music Online is as Bad
as Stealing a CD from a Store” ; Don’t rip off the ARTISTS you love
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- Metro-Goldwyn-Mayer Studios v. Grokster Jan. 9, 2003
- JURISDICTION: ORDER Denying D-Sharman Networks and (affiliate) LEF ‘s
Mos. to Dismiss for lack of Juris.
- -2 related cases for © infringement for free exchange of copyrighted
music, movies, digital media, over the internet
- 1) MOTION PICURE & MUSIC RECORDING INDUSTRY P’s v. Grokster,
Streamcast and Kazaa BV, who distribute SOFTWARE that enables users to
[unauthorized] exchange [of copyrighted] digital media [i.e., copyright
infringement on the internet] via [first the same, then different]
peer-to-peer [P2P] transfer network; AND
- 2) LIEBER P’s =SONGWRITERS & MUSIC PUBLISHERS; consolidated for
discovery & pretrial.
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- Cent.Dist. Ct noted CHANGES in Technology & Positions:
- D-Streamcast (SC) no longer uses “FastTrack” Technology, uses “Gnutella”
networking technology (open, or non-proprietary) and own SOFTWARE
product, Morpheus, not connected to FastTrack network; not exch. files
w/Grokster or Kazaa users, but other Gnutella users
- - Kazaa BV (Netherlands) passed to SHARMAN NETWORKS, LTD. (Australia
& Vanuatu); Kaaza BV did not contest juris., answered &
counter-claimed
- J. Wilson SAYS: “Although novel in important respects, the “Kazaa
system” operates in a manner conceptually analogous to the Napster
system described at length
[in the Napster case]”
- AND most of Sharman’s revenue comes thru advertising partnerships
(bundles its software w/3P advertising software, = 3P servers, not
controlled by Sharman.
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- For Personal Jurisdiction - ONLY Q: Whether exercise of CA long-arm
jurisdiction in this case is consistent w/due process:
- -certain MINIMUM CONTACTS to not offend “traditional notions of fair
play and substantial justice”
- -FOUND wide range of contacts w/the forum:
- 1)Provision of software to over 2 million CA residents PLUS end user
license agreements
- 2)Use of CA & U.S. Agents, incl. LA PR firm, CA co. for selling
& serving advertising; AND San Francisco BASED LAW FIRM;
- 3)contracts assumed from Kazaa BV, including use of CA-based CNET.com
for recording # of software downloads, & 4) incl. in certain ks
assumed of CA & other U.S. choice of law & forum selection
clauses: NOTE: Court gave no
creedence to Sharman buying Kazaa software, website, assets, but
explicit disclaimer of assumption of any liabilities (incl. the pending
lawsuit)!
- -FOUND sufficient contacts with the forum for Specific Jurisdiction,
under the 9th Cir. “But for” test, (but for the distribution of software
to CA residents, and use of CA contacts for advertising, etc., the
copyright infringement, in CA anyway, would not occur) &
purposefully availing itself of the doing business in CA “the heart of
the entertainment industry”.
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- -Note Dist. Court J. Wilson commented on pending claims of:
- 1) CONTRIBUTORY INFRINGEMENT- w/KNOWLEDGE of the infringing activity, INTENTIONALLY
ASSIST, INDUCE, CAUSE, OR MATERIALLY CONTRIBUTE TO THE INFRINGEMENT,
- and
- 2) VICARIOUS LIABILITY-outgrowth of respondeat superior, but extends
beyond employment situations to where the D “has the RIGHT AND ABILITY
to supervise the infringing activity AND ALSO has a direct FINANCIAL
INTEREST in such activities.”
- BUT NOT INCL. THE KAZAA-SHARMAN D- BECAUSE THEY DID NOT JOIN IN THE
GROKSTER/SC MO. FOR SUMM. J:
- that was Jan.-DECISION BY SAME J: April 25, 2003 ORDER GRANTING D’S
GROKSTER & STREAMCAST MOS. FOR SUMM. J & DENYING P’S MO. FOR
SUMM J. AG. D’S.
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- -In Actions for © Infringement; Grokster & Streamcast Mos. For Summ.
J. GRANTED re.
- 1) CONTRIBUTORY INFRINGEMENT
- AND
- 2) VICARIOUS LIABILITY
- Only Q was legal I: whether D’s materially undisputed conduct gives rise
to © liability.
- Facts: Grokster & Streamcast (and Kazaa) distributed free SOFTWARE
that enables users to exchange, for free, digital media via peer-to-peer (P2P) transfer
networks.
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- Again, J.Wilson says : Although novel in important respects, both the
Grokster and Morpheus (Streamcast) platforms operate in a manner
conceptually analogous to the Napster system described at length by the
district court in [Napster].”
- both download software from servers operated by D’s; the software
automatically connects to p2p networks, provides searches, lists, and
multiple transfers (uploads & downloads)
- Q on Ps Mo. for Summ. J. limited to liability for current, NOT past
versions of software & activities (not Kazaa-not a party)
- -Direct Infringement requires: 1) Copyright OWNERSHIP and
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2) unauthorized COPYING
- violates at least 1 exclusive right of © holder under 17 USC §106
- STIPULATED that 1) sound recordings owned by P rec cos. , AND “just as
in Napster”, 2) many, majority,
of those who use D’s SOFTWARE download copyrighted music
- (i.e., stipulated ownership & direct infringement).
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- BUT AS TO:
- CONTRIBUTORY INFRINGEMENT: 2
FACTORS:
- 1) KNOWLEDGE Court bought into
D’s allegation that their actual knowledge was too late, not at the time
when they could use that knowledge to stop the particular infringement--
they insulate themselves by better technology than Napster) AND
- 2) MATERIAL CONTRIBUTION, Court
ignored both this factor , too, BECAUSE it was also undisputed that
there are SUBSTANTIAL NON-INFRINGING USES for D’s SOFTWARE
-Central Dist. Court ignored Napster, as upheld by 9th. Cir., and found
Grokster & Streamcast SOFTWARE to be capable of “substantial
non-infringing use” (such as transfer of media which is authorized or in
the Public Domain) and therefore, not subject D’s to contributory
liability under the Sony 1984
SCt. Holding that sale of VCR’s, like copying equipment and other
articles of commerce capable of substantial non-infringing uses
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- Napster: Provided Software AND a network and central SERVERS,
- When Napster closed down, the file-sharing stopped with it
- Q - Whether same for Grokster & Streamcast or whether, aside
from distributing SOFTWARE, they
do anything to actively facilitate, or can do anything to stop, users
infringing activities
- J. didn’t like P’s “lumped together” activities of the various D’s;
bought into how Grokster cannot alter it’s branded version of Kazaa
SOFTWARE, and does not operate a central SERVER going into it using
FastTrack networking technology of “supernodes” independent of the D
(noting fn. 7 that initial version of FS obligated to operate a
registration server, could use to block or remove a user, BUT now
“modified” so that it “no longer requires a registration database”,
thereby “denying” Grokster this control), while SC can modify its
SOFTWARE, it uses Gnutella true p2p networks and does not operate any of
this; ie., thinks there is a seminal distinction that neither Grokster
nor DSC provides the “site and facilities” for infringement that
Napster’s SERVERS did; if D’s
“closed their doors”, J .believes users of their products would continue
sharing files (with little or no interruption) (but also, possibly, no
growth of users or updates.
etc.).
- Also referred to lack of “admissible evidence” of P’s allegations &
seemed not impressed with P’s experts; even cited D’s lack of customer
support as showing “efforts to avoid assisting users who seek to use
their software for improper purposes; SO, THIS CENTRAL DIST. COURT saw
D’s distribution of SOFTWARE capable of substantial non-infringing uses,
just like VCRs or copier machines
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- -Grokster Central Dist. Court saw the REQUISITE:
- FINANCIAL BENEFIT - of 10s of Millions of users as a “draw” for
advertising, and that the users are attracted to D’s software because of
the ability to download copyrighted material free of charge, BUT MISSED
ON
- THE “RIGHT AND ABIILTY” to control or supervise the infringing conduct,
saying that while Napster had the right and ability, Grokster & SC
(may have the right) but NOT the ability to control access and terminate
(ab)users.
- -Saying “The Court is not blind” to the possibility that D’s may have
intentionally structured their business to avoid secondary liability for
copyright infringement, while benefiting financially”,
- CONCLUSION to NOT “expand existing copyright law beyond its well-drawn
boundaries” citing the SCT in Eldred in support of his decision to defer
to Congress, “when major
technological innovations alter the market for copyrightable materials.”
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- GOKSTER will be APPEALED; 9TH
Cir. May Reverse SummJ.
- NOTE another SCt copyright case, more in line w/J.Wilson than Eldred,
but 95 yrs. ago, infamous White Smith V. Appolo (1908) nearly killed the
fledgling U.S. music publishing business, when it dismissed appeal of
Music Publishers ag. Manufacturers of piano rolls-perforated rolls of
music used in connection with player pianos known as the “Apollo”, HOLDING
that such music rolls were a mechanical invention making only mechanical
reproductions of music, and not true “copies”, or even conceivably
“copies” at all, within the
meaning of the Copyright Act at the time, which referred to “printing
and reprinting, publishing, completing, copying, executing, finishing,
and vending the same; and with a discussion of this new technology,
issues of reciprocity under the Berne Convention (of 1886), closed with
a suggestion that such considerations of manufacturers enjoying the use
of musical compositions for which they pay no value are “considerations
properly addressed to the legislative, and not to the judicial branch of
government.” – CONGRESS DID CORRECT THIS THE FOLLOWING YR. IN THE
COPYRIGHT ACT OF 1909, SPECIFICALLY INCLUDING COPIES BY AID OF A MACHINE
OR DEVICE, now known in the music biz as “MECHANICAL RIGHTS”.
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- In re Verizon Internet Services, Inc., F Supp.2nd DC Jan. 21,
2003
- FIRST TEST OF THE SUBPEONA POWER UNDER THE DMCA:
- Digital Millennium Copyright Act of 1998 PURPOSES BOTH to
- 1) LIMIT LIABILITY of internet
service providers (ISP’s) AND to
- 2) Assist Copyright Owners in protecting their copyrights.
- Action by RIAA to seek ID of an “anonymous” user of Verizon’s internet
services WHO DOWNLOADED MORE THAN 600 song files in a single day (using
P2P SOFTWARE PROVIDED BY KAZAA).
- -DMCA § 512 Subsections (a) – (d) protect qualifying ISPs from liability
from monetary and injunctive relief for direct, vicarious and
contributory copyright infringement and provide “Limitations on
liability relating to material online”; a series of “safe harbors” that
allow ISPs to limit liability for copyright infringement by users IF
certain conditions are met:, including, among other things, that the material
stored or transmitted was made available online by someone other than
the ISP, that a service provider implement & inform users of its
policy to terminate in cases of repeat copyright infringement, and (h)
AT THE HEART OF THE DISPUTE, permitting a © Owner to obtain from the
clerk of any U.S. Dist. Court a SUBPOENA on an ISP seeking the ID of a
customer alleged to be infringing Owner’s ©.
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- VERIZON argued (unconvincing to the Court), that the subpoena power
applied only to ISPs under subsection (c) of the 4 categories of ISPs,
and that VERIZON only functions as a
“subsection (a)” ISP, that is transitory transmitting or routing
or only providing an internet connection (vs. (b) system caching,
storage, (c) residing on system network controlled or operated, or (d) providing information location
tools and hypertext links).
- The Court FOUND: CONGRESS CLEARLY INTENDED LIMITED LIABILITY FOR ALL 4
SUBSECTIONS OF ISPs AND ALSO TO APPLY THE SUBPOENA SUBSECTION (h) TO ALL
TYPES OF ISPs, AS A “STAND ALONE” SUBSECTION; & NO REASON WHY CONGRESS WOULD
LIMIT IT ANYWAY
- NOTING the largest threat of © Infringement is by users of P2P SOFTWARE
(more than 100 Million downloads of Kaaza & more than 2 million
online at any time), this Court warned: taking Verizon’s position would
create huge LOOPHOLE in Congress’ efforts to prevent © Infringement on
the Internet!
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- Court Noted: DMCA has dual purpose to BALANCE limitation of liability of
ISPs AND assisting © owners in protecting their ©s, i.e., ISPs receive
liability protections IN EXCHANGE FOR assisting © owners in Identifying
and dealing w/ infringers who misuse the service providers systems;
- thereby promoting and facilitating the availability via the Internet of
copyrighted movies, music, software & literary works; unless the
copyright owners have ability to protect, less likely to make
available...
- And Verizon Court REFERRED TO Eldred , saying “as recently as last week,
the SCT IN ELDRED reiterated that “…
- “we defer substantially to Congress” on Copyright law, and that “it is generally
for Congress, not the courts, to decide how best to pursue the Copyright
Clause’s objectives.”
- Court also Noted: Verizon Constitutional challenge was raised solely by amici,
so it was NOT deciding such issues, BUT IF WAS, said
- “It is also clear that the First Amendment does not protect copyright
infringement.” AND as in Eldred:
- The proximity of the Copyright Clause & the First A demonstrate the
Framer’s view that copyright’s limited monopolies are compatible with
free speech & that copyright
even serves to promote First A ideals as “the engine of free
expression.”
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- MEANWHILE, FILED BY THE RIAA* ON
APRIL 3, (SETTLED BY MAY 2), ag. 4-STUDENTS AT U’s incl. Princeton
(Atlantic Recording Corporation, et.al, v. Daniel Peng), for DIRECT
& CONTRIBUTORY COPYRIGHT INFRINGEMENT by “hijacking” the U’s high
speed academic computer networks for a system similar to Napster to
store over a million songs on central servers to allow themselves and
other students to download copyrighted music recordings.
- -SETTLEMENTS: RIAA sought statutory damages for willful © infringement
of $150,000 per song, but settled for $12-17,500 each over years, w/o
admitting wrongdoing, but agreeing to shut down (+ the schools, not
sued, have & will shut down students, on notice)
- * RIAA (Recording Industry Association of America) trade group of the
Big 5 “Major” record companies: 1) AOL TIME WARNER 2) EMI Group Plc 3)
BMG Bertelsmann AG 4) Vivendi UNIVERSAL, and 5) SONY
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- RIAA sent letters, dropped pamphlets, NOW sending IM’S to 200,000+ users
of Grokster & Kazaa file-sharing services, millions more to come, WARNING
“It appears you are offering copyrighted music to others from your
computer…When you break the law, you risk legal penalties…DON’T STEAL
MUSIC either by offering it to others…or downloading it on a
‘file-sharing system like this.
When you offer music on these systems, you are not anonymous and … can easily be
identified.”
- -AND Venture Capitalists-2 MAJOR LABELS (Universal & EMI) filed suit
April 21 in Fed Court. ag. Hummer Winblad Venture Partners & 2 of
the SF firm's general partners, Hank Barry & John Hummer alleging VC’s
KNEW of Napster users infringement, CONTROLLED its activities & were
CEO & on BOD; German media giant, and rec. co. BMG, too, has been
sued for its investment in Napster.
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- Even though GROKSTER & MORPHEUS Services Ordered NOT to be shut down
because they CANNOT [i.e.,DON’T WANT TO] CONTROL what is traded over
their systems,
- “THE BEAT GOES ON” or, as the New Apple “Music Store” Ad puts it: “Music will never die, it is, however,
being reborn
- -MOVIE AND RECORDING INDUSTRIES ARE
---GOING TO APPEAL, AND PURSUE ACTIONS AG. DIRECT INFRINGERS, IF
THEY HAVE TO, -BY MEANS OF THESE SUITS, WARNINGS, AND DMCA SUBPOENAS;
AND
- -ONLINE MUSIC “STORES”, SUCH AS APPLE’S 99 CENT PROGRAM, WILL CONTINUE
TO DEVELOP NEW BUSINESS MODELS TO PURSUE THE PAID DOWNLOAD MARKET.
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- KELLY V. ARIBA SOFT 280 F 3d 934 C.A. 9 2002 9th Cir. AFFIRMED IN PART
Summ. J. for search engine operator’s use of ©’d images displayed on
Internet websites as “thumbnail” pictures as search results was “FAIR USE”,
- BUT, as a matter of first impression, importation of owners FULL-SIZED
images into frame on operators website infringed owners right to
publicly display, and use of full-sized images thru linking &
framing was not fair use.
- Remanded to deter. damages & the need for an injunction for
full-size clik-thrus
- .
- Court went thru the 4 FAIR USE FACTORS, as applied to SEARCH ENGINES:
- 1) PURPOSE & CHARACTER OF THE USE:
although commercial website, the use of Kelly’s images in search
engine function was found not highly exploitative; AND FOUND USE OF
IMAGES FOR “THUMBNAILS” WAS TRANSFORMATIVE despite fact exact replicas,
but much smaller, lower resolution (Disagree)
- 2) NATURE OF THE ©’D WORK: PHOTOS CREATIVE IN NATURE, BUT ALREADY
PUBLISHED ON INTERNET, WEIGHS FACTOR ONLY SLIGHTLY
- 3) AMOUNT & SUBSTANTIALITY OF PORTION USED: WHOLESALE COPYING,
weighing against Fair use, BUT USED ONLY AS MUCH AS NEC. FOR INTENDED USE.
- 4) EFFECT OF USE ON POTENTIAL MARKET FOR OR VALUE OF THE WORK: seeing it
as “TRANSFORMATIVE”, LESS LIKELY TO HAVE ADVERSE EFFECT, HELD, DOES NOT
HARM, MAY EVEN HELP DRIVE BUSINESS TO PHOTOGRAPHER’S WEBSITE FOR
QUALITY, FULL-SIZE IMAGES, (w/2 FAIR USE
factors (1 & 4) IN FAVOR OF D, #2 NEUTRAL, & #3 SLIGHTLY P)
- STILL, HELD, © INFRINGEMENT BY FULL-SIZED “CLIK-THRUS”
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- -STILL, lots of traditional © infringement cases going on:
- April 23, 2003, Feds charged man in Movie Piracy Case, using camcorders
to tape prerelease screenings of major motion pictures, faces up to 26
yrs. In jail, fines…
- Jury-Rapper liable for $1.5m “sampling”; April 1, Norway to retry “teen”
in DVD mass hacker software case, AND
- April 3, 2002, TV Networks got Attorneys Fees in defending an
“objectively unreasonable” copyright lawsuit re. obituaries using scenes
from his only Oscar nominated role in 1945 “The Story of G.I. Joe” for
movie star, Robert Mitchum, citing public interest threats to chill fair
use.
- Q’s of COPYRIGHT INFRINGEMENTS; CONTROL & LIABILITY COMPLICATED BY
NEW TECHNOLOGY, BUT PREDICT COPYRIGHT LAW WILL EVOLVE & SURVIVE, FOR
ANOTHER 500 YRS. OR MORE, FROM THE PRINTING PRESS THROUGH THE INTERNET,
THRU CONGRESS & THE COURTS (& C.O. rules,regs)
- “HITCLIPS” - New Business Model example
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- Annual Spring Seminar, May 2003
- Copyrights – Year In
Review
- Thank You!
- Beverly Robin Green
- Green & Green
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Notes
