Copyright Law — FALL 2008

This would have made a great exam question:

Coldplay Copy Joe Satriani?

Teen Transplant Candidate Sued Over Music Downloads

I should probably be enjoying the holidays with family, but how much turkey and annoying relatives can one person take honestly?

Ran across this article about Apple sending a DMCA threat to a website dedicated to cracking the iTunes Database of songs used in iPods to allow people to use programs other than iTunes to sync their ipods. http://www.eff.org/deeplinks/2008/11/apple-confuses-speech-dmca-violation

Thought this was relevant for two reasons.

First, the EFF, who posted the article claims that there is no claim because the database is not copyrightable- it is a database listing of the songs on your ipod.  The website is definitely trying to get around a technological security measure, without a doubt. I’m a bit fuzzy - does the work underneath HAVE to be copyrightable for DMCA protection? I wonder if Apple could somehow claim their unique layout of the data would be copyrightable?

Second, I think this gets back to the larger societal/policy issue we keep coming back to, analogous  to the DeCSS issue. If people are using this to simply get to music they bought and want to use with their own syncing software - isn’t it a legitimate use? No one is trying to infringe the music DRM, just use a different program to sync. Apple probably tries to cover this somehow in the contract with iTunes, and when you first “install” your iPod to your computer I’m sure there is a click agreement.

Professor Cotropia discussed the difference in the US and EU handling of database copyright protection. He mentioned the EU has specific database protection, while the US does not, but is considering it.

Ran across an article that discussed, from a policy perspective, how freedom of information in the US is actually encouraging the database market.

The United States database industry is considerably larger and more thriving, and has higher rates of return, than the European database industry. In fact, at the moment when Europe introduced sui generis database rights, there was a short one-time spike as database producers raced into the market, but then growth rates returned to previous levels, and many companies left the market. And when did Reed Elsevier and Thomson enter the legal database market in the United States? It was after a case called Feist, which said that facts, and unoriginal compilations of facts, were uncopyrightable. That is to say, European companies chose to come into a classically public information field in the United States after they had found out, for sure, that they could get no copyright in unoriginal databases. Yet, even without database rights, they’re getting high rates of return. So, we have evidence showing that less protection has been better for innovation than more protection.

http://techdirt.com/articles/20080907/1642432187.shtml

The argument laid out is that database companies don’t need the protection of copyright to create an incentive to do the work.  I do wonder if there are other factors at play that explain why the US database market is larger. Maybe our IT is more developed, maybe corporate law just plays better for the firms to locate here. I would be reluctant to say it rests solely on the database copyright law, or lack of.

Sorry, but I am probably the only person on earth who hasn’t read any of the books or seen any of the movies, so I couldn’t come up with some clever quip of a title.

Anyway, for those who took Cotropia’s IP Fundamentals course last year, we opened with information about a dispute between the author of Harry Potter and a publisher putting out a HP Lexicon. The ruling came down, so I thought I would link to it, for reminiscing purposes.

http://blogs.wsj.com/law/2008/09/08/no-fair-use-rowling-wins-copyright-spat-over-hp-lexicon/

Damages?  The Court imposed statutory damages in the amount of $6,750.  Presumably the plaintiffs, as prevailing parties, can also have their costs, including attorneys’ fees, though — and they will be quite a bit more.

Last week when we discussed fixation, someone asked why RAM mattered because it was so temporary. A recent decision shows how electronic transmissions stored in temporary memory are actually critical in new technologies.

Cablevision, a cable television provider offers a service called RS-DVR. It works like normal DVRs except all the shows are stored on servers owned by Cablevision instead of a hard drive in the customer’s home. Content providers, aka the television networks argued copyright infringement on three counts:

• First, as Cablevision received a signal from the content companies, it created a buffer copy of about .1 seconds of the show as the system checked to see if a customer had decided to record the show. Plaintiffs argued this was an infringing reproduction.
• Second, if a customer had picked a show to be recorded, the stream of data representing that show would be copied from the buffer onto a server for that customer to view later. Plaintiffs argued that this recording was another infringing reproduction.
• Third, when a customer decided to watch the show they had recorded, the show would be transmitted from the remote server for viewing in the customer’s home. Plaintiffs argued that this violated their “public performance” right in a show.

There are a few other issues in there as well, but as far as fixation goes the court decided:

On the issue of the first buffer copy, the court held that buffer copies weren’t infringements because they were too fleeting to be considered “fixed,” a requirement before something is considered a “copy” that can infringe (or otherwise implicate) a copyright. Although the entirety of a show would pass through the buffer bit by bit (and thus be “embodied” within it), a fixation needs to be more than just an embodiment—it also needs to be more than “transitory.” The court decided that this tenth-of-a-second buffer was too transitory to meet the statutory definition of a fixation, and therefore couldn’t be an infringement.

As for the other issues:

• On the second question of the stored, recorded copies of the shows, the court made a couple of important distinctions. First, it noted that the plaintiffs were alleging direct infringement—i.e., that Cablevision was itself making infringing copies, not secondary liability—which was what Sony was accused of when it was making VCRs, or what Grokster was accused of doing for file-sharers. The court then noted that in a case alleging direct infringement, it’s important to see who is performing the action alleged to be infringing. Since here, the individual user makes the decision whether or not the copy is created, they are the ones making the copy, not Cablevision. Just as a VCR owner (as opposed to a VCR manufacturer) pressing REC on a box makes a copy, so too is the individual customer (and not Cablevision) the one making the recording here.
• On the third question of the public performance, the court, interestingly, didn’t rule on who was “doing” the performance, instead relying entirely on the question of whether or not the transmission was a “public performance” in the first place. In order to be considered a performance “to the public,” a transmission has to be able to be received by different members of the public, whether at the same time or at different times.

You can read the decision here: http://www.publicknowledge.org/pdf/cablevision-decision-20080804.pdf
Information: http://www.technologylawupdate.com/tags/rsdvr/

Remember the brief discussion as to whether accidental pictures could be copyrightable.  Someone from this class sent me the following link:

http://www.deletedimages.com/

It would seem that the copyrightability of these works would depend on how much a court relies upon the subjective intent of the creator.

Meshwerks, Inc. v. Toyota Motor Sales USA, Inc (10th Cir., June 17, 2008)

Are these digital, wire models original?