LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS Copyright Michael I. Shamos, Ph.D.,...

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS

Copyright

Michael I. Shamos, Ph.D., J.D.Institute for Software ResearchSchool of Computer ScienceCarnegie Mellon University


Outline

• History of copyright

• The nature of copyright

• What is copyrightable?

• How are rights divided between author and the public?

• What special problems does the Internet create?


History of Copyright

• Dates from 15th century (after invention of printing)• Originally publisher monopoly (not author)

– Granted by the King. King had right of approval– Publisher paid a fee to the King to publish

• England (1557)– Monopoly granted to the Stationer’s Company

• England: Licensing Act of 1662– Illegal to publish anything without a license


History of Copyright

• England: Statute of Anne (1710)– Limited royal copyright monopolies to 28 years– “Encouragement of learning, by securing the

Copies of Maps, Charts and Books, to the Authors and Proprietors of such copies”

• U.S. Constitution (1789)• First U.S. Copyright Act (1790)

– major revisions in 1831, 1870, 1909, 1976– minor additions in various years, including Digital

Millennium Copyright Act (1998)


Constitutional Basis

U.S. Constitution “intellectual property clause”, Art. I, §8(8)

“Congress shall have Power …To promote the Progress of Science and Useful Arts,By securing for Limited Timesto Authors and Inventorsthe exclusive Rightto their respective Writings and Discoveries.”

“The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, ... copyrights and trade-marks. Such jurisdiction shall be exclusive of the courts of the states in patent ... and copyright cases.” 28 U.S.C. §1338

COPYRIGHT

PATENT

(BOTHEXCLUSIVELY

FEDERAL)

http://caselaw.lp.findlaw.com/data/constitution/article01/

http://www4.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001338----000-.html


No originality, no copyright No authorship, no copyright

What Is Copyrightable?

“original works of authorship

fixed in any tangible medium of expression,

now known or later developed,

from which they can be perceived, reproduced, or otherwise communicated,

either directly or with the aid of a machine or device.”

17 U.S.C. §102 (1976)

Copyright protection begins at the moment of fixation





(1) literary works; (includes software, web pages)

(2) musical works, including any accompanying words;(3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works;

(.gif, .jpg, .bmp) (6) motion pictures and other audiovisual works;

(flash, streaming video, virtual reality)

(7) sound recordings; (.wav files, MP3, etc.) and (8) architectural works.

17 U.S.C. §102 (1976)




Online Authorship

• May include– artwork– photos– sounds– graphics– logos– animations– text

• Page layout and design• HTML code, JavaScript, …



• Compilations - “ formed by … assembling ... preexisting materials ... Coordinated … [so] that the resulting work as a whole constitutes an original work of authorship.” (many web pages)

• Collective works - a “number of contributions, constituting separate and independent works in themselves, ... assembled into a collective whole”, e.g. a magazine, anthology, or encyclopedia.(many websites)

17 U.S.C. §101




• Derivative works - “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.”

17 U.S.C. §101

ported code. C Java; rehosted systems; gif jpeg


What Is Not Copyrightable?• Words and short phrases such as names, titles, and

slogans

• Blank forms ... designed for recording information [that] do not in themselves convey information

• Works consisting entirely of information that is common property containing no original authorship, e.g. calendars, weight charts, sports schedules, tables taken from public documents or other common sources.

• Works of the U.S. Government 37 C.F.R. §202.1 (Code of Federal Regulations)

• Useful articles

– The functional aspects of a product (e.g., the handle of a teapot) are not copyrightable unless they “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”

http://a257.g.akamaitech.net/7/257/2422/03jul20071500/edocket.access.gpo.gov/cfr_2007/julqtr/pdf/37cfr202.1.pdf


What Is Not Copyrightable?

• “Sweat of the brow”, the result of “industrious collection”

• A work assembled through great labor, but without original authorship, is not copyrightable.

• (What about databases?)


Feist Publications v. Rural Tel. Service Co., 499 U.S. 340 (1991)

• Rural was a licensed telephone company in Kansas• It published phone books with both white and yellow

pages for local communities• Feist published phone directories covering larger

geographic areas• Rural refused to give Feist a license to include its

directories• Feist copied Rural’s directories anyway• When Rural sued, both the District Court and the Tenth

Circuit found Feist liable for copyright infringement

http://euro.ecom.cmu.edu/program/law/08-732/Copyright/FeistVRural.pdf


Feist Pubs. v. Rural Tel. Svc. Co.

• The Supreme Court held that white page directories are uncopyrightable

• The Constitution requires an “original work of authorship,” which implies a “modicum of creativity”

• A white pages is a rote factual listing of the company’s subscribers. There is no “authorship” involved

• Even though Rural expended considerable effort in creating the directory, it was not protectable. (End of the “sweat of the brow” theory.)

• The yellow pages, which requires artistic layout and selection of indexing categories, is copyrightable


What Is Not Copyrightable?

“In no case does copyright protection ... extend to any– idea,– procedure,– process,– system,– method of operation,– concept– principle,or– discovery,

regardless of the form in which it is described, explained, illustrated, or embodied in [a] work.”

17 U.S.C. §102

http://www4.law.cornell.edu/uscode/17/102.html


Morrissey v. Procter & Gamble,379 F.2d 675 (1st Cir. 1967)

• Morrisey owned copyright to a set of rules for a sales promotional contest involving social security numbers of the participants.

• Procter & Gamble ran a nearly identical contest and copied Morrisey’s rule 1 very closely.

• Morrisey sued for copyright infringement

http://euro.ecom.cmu.edu/program/law/08-732/Copyright/MorrisseyVProcter.pdf



Morrissey v. Procter & Gamble

• Morrisey’s rule:

• P&G’s rule:


Morrissey v. Procter & Gamble,379 F.2d 675 (1st Cir. 1967)

• District court found for Procter & Gamble

• On appeal, a simple rule admits only a limited number of different expressions, so allowing Morrisey to have a copyright would mean that P&G could not run a similar contest. AFFIRMED. NO INFRINGEMENT

• This is “idea/expression merger”

• Ideas are not copyrightable

• If all expressions of an idea are essentially the same, there can be NOT COPYRIGHT for any of them – otherwise, the copyright owner could monopolize the idea.





Copyright Ownership

• Ownership vests originally in the author

• A “work made for hire” is

– a work prepared by an employee within the “course and scope of employment”;

– a work specially ordered or commissioned ... if the parties expressly agree in [writing] that the work shall be considered a work made for hire.(MUST BE ONE ONE OF 9 SPECIAL TYPES OF WORKS;DOESN’T INCLUDE SOFTWARE!)

• For a work made for hire the “author” is the employer (called the “employer for hire”), NOT THE EMPLOYEE


Works Made for Hire

• “Course and scope of employment” means that the employer is directing the work - very narrow, e.g. full-time employment.

• “Special commissioning” only applies to nine types of works, not including software.

• Example: software written by outside consultants is not owned by the client unless there is an agreement to assign.


Copyright Term• 70 years after death of last surviving author• Work made for hire:

– 95 years from first publication– 120 years from creation 17 U.S.C. §302

• Term extension to 70 years held constitutional in Eldred v. Ashcroft, Jan. 15, 2003)

• Non-renewable• Upon expiration, work enters the public domain• Termination of transfers. For a period of 5 years

beginning 35 years after publication, an author can “take back” his work from the copyright owner.

17 U.S.C. §203




Scorpio Music S.A. et al. v. Willis(S.D. Cal., 2013)

• Victor Willis, lead singer of The Village People, wrote 33 hit songs in the 1970s, including “YMCA” and “In the Navy.” (35M YouTube hits)

• He transferred copyright to Scorpio in 1979

• Willis served notice of termination effective 2014

• Scorpio sued to prevent the termination, and LOST

http://www.youtube.com/watch?v=CS9OO0S5w2k


Rights Under Copyright

Copyright includes the exclusive right to:• Reproduce the work (includes copies on disk or RAM)

• Distribute copies by sale, rental, lease or lending (but owner of an authorized copy may sell, rent, lease or lend it)

• Prepare derivative works• Perform the work publicly (recite, act out, play,

dance)• Display (or transmit) the work publicly

17 U.S.C §106

These are further divisible (very finely) by contract



“First Sale” Doctrine

• “[T]he owner of a particular copy … lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy …” 17 U.S.C. §109

• The first sale of a copy “exhausts” the distribution right and any lawful owner can dispose of his copy

• BUT: the owner of a particular copy of a computer program (including any tape, disk, or other medium embodying such program), may not, for the purposes of direct or indirect commercial advantage, dispose of that computer program by rental, lease, or lending


What Is Copyright Infringement?

• “Anyone who violates any of the exclusive rights of the copyright owner ... or who imports copies or phonorecords into the United States ... is an infringer of the copyright.”

17 U.S.C. §501

• Remedies:– seizure, impoundment– injunction– attorney’s fees (to “prevailing party”)– Either (1) actual damages and any additional profits of the

infringer; or (2) statutory damages of between $200 and $150,000 per work infringed


Testing for Infringement

• There is no copyright infringement of the §106(1) reproduction right without “copying.”

• Therefore: true “independent creation” is a defense• Direct evidence of copying is rare. So the test is

– access to the original +– “substantial similarity” between the original and the

“accused work”• in the eye of the “ordinary observer”


Pharrell Williams et al. v. Bridgeport Music, Inc. et al. (C.D. Cal., 2015)

• In 1977, Marvin Gaye (d. 1984) write and recorded “Got to Give It Up,” which became a worldwide hit

• In March 2013, Pharrell Williams and Robin Thicke recorded “Blurred Lines,” which also became a hit

• The estate of Marvin Gaye immediately claimed copyright infringement, in that the songs “feel” or “sound” the same

• Listen


Williams et al. v. Bridgeport Music• In August 2013, Williams and Thicke sued for a “declaratory judgment” that they were not infringers• Williams and Thicke: “Being reminiscent of a ‘sound’ is not copyright infringement. The intent in producing ‘Blurred

Lines’ was to evoke an era … the Gaye defendants are claiming ownership of an entire genre, as opposed to a specific work.

• Gaye Estate: There are “substantially similar compositional elements of it in ‘Blurred Lines,’ which the ordinary observer would recognize as being appropriated from ‘Got to Give It Up,’ without the Gaye Family’s knowledge or consent.


Williams et al. v. Bridgeport Music• Thicke’s defense: He was “drunk and high on drugs” at the time. He was “mentally absent” from the process,

adding he was “lucky enough to be in the room.” Thicke said Williams wrote it on his own.

• Williams testified he wrote “Blurred Lines” in an hour in 2012, and the pair recorded it in one night.

• A jury in Los Angeles awarded the Gaye Family $7.4 million in past damages for infringement.

• The jury verdict.

• A jury question. Another jury question.


Non-Literal Copying

• Exact copying is not required to find infringement

• In Nicholls v. Universal Pictures (2d Cir. 1930), Judge Learned Hand made clear that non-literal copying could be actionable.

• (Play “Abie’s Irish Rose” infringed by movie “The Cohen’s and the Kelly’s)

• Copyright “cannot be limited literally to the text, else a a plagiarist would escape by immaterial variations”.

• How close does it have to be?

• Substantially similar – an imprecise test


Nicholls v. Universal Pictures (2d Cir. 1930

• “Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ‘ideas,’ to which, apart from their expression, his property is never extended.”

• The is the “scène à faire” [scene to make] doctrine, that overall plots cannot be protected. Also applicable to computer software


Change of Medium Is Still an Infringement

• Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992)• Art Rogers was a photographer. Took the picture on the left• Jeff Koons, a famous artist, made the sculpture on the right from the photo• Koons sold three copies for $367,000 each

HELD, copyright infringement

Criminal Copyright Infringement• Any person who willfully infringes a copyright shall be punished as

provided under 18 U.S.C. §2319, if the infringement was committed(A) for purposes of commercial advantage or private financial gain;(B) by the reproduction or distribution, including by electronic means, during any 180–day period, of 1 or more copies … of 1 or more … works, which have a total retail value of more than $1,000; or(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

15 U.S.C. §506

By the Way…

Plagiarism may or may not be copyright Infringement!



Major Ideas

• Copyright derives from the intellectual property clause of the Constitution

• Only “works of authorship” are eligible for copyright• Copyright protects expression only, not ideas,

procedures, algorithms or processes• Infringement is violating any of the exclusive rights of

the copyright owner: reproduction, distribution, derivative works, public performance, public display

• To have infringement of the reproduction right there must be a copying

• The test for copyright infringement is “substantial similarity” in the eye of the “ordinary observer.”


QA&

Registration of Copyright

• Registration of a copyright is optional• But it does have advantages:

– For U.S. works, it’s required to sue for infringement

– Registration is usually prima facie evidence of the facts in the registration: who the author is, when it was created, when it was published, etc.

– Allows recovery of statutory damages and attorneys’ fees


Registration of Copyright

• How to register copyright– Application form– Filing fee (usually between $35 and $85; highest is

$400 for “vessel hull designs”)– “Deposit” of a copy of the work with the Library of

Congress


Notice

• Notice of copyright is also not required • But it prevents claims of innocent

infringement• Form of notice:

– ©, the word “Copyright,” or the abbreviation “Copr.”,

– The year of publication, and– The name of the owner of the copyright


New York Times Co. v. Tasini533 U.S. 483 (2001)

• The New York Times paid freelance writers for stories. It did not obtain copyright assignments, but just the right to include the stories in the newspaper, a collective work.

• Many years later, the Times created an online database of its articles and sold copies of articles from the database.

• The writers sued, claiming copyright infringement.

• The Copyright Act contains a relevant provision: “In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of [1] that particular collective work, [2] any revision of that collective work, and [3] any later collective work in the same series.” 17 U.S.C. 201(c) .



New York Times Co. v. Tasini• The Times claimed that the copy in the Internet

database was a “revision” under the statute.• District court agreed. Reversed on appeal. The

Second Circuit relied on an ejusdem generis argument to interpret “any revision of that collective work”

• Supreme Court affirmed June 25, 2001 using different reasoning

• The statute does not authorize reproduction of the articles standing alone, but only as part of a collective work

• Publisher’s analogy to microfilm failed because the microfilm contains the entire collective work

Date post:	18-Jan-2016
Category:	Documents
Upload:	lindsey-quinn
View:	221 times
Download:	0 times

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS Copyright Michael I. Shamos, Ph.D.,...

Documents