Chapter One: Copyright Cases

IM 450, day 5, fall, 2017

Chapter One: Copyright---Cases

Traditional copyright cases

Baker v. Selden

“copyright of a book on bookkeeping cannot secure the exclusive right to make, sell and use account books prepared upon the plan set forth in such a book.” Ideas cannot be copyright protected; patents may be used to protect ideas that turn into creations. The facts cannot be protected but unique ways of laying them out can be but that's not what Seldon asked for.

Sony

Saved the movie industry; probably television. Is at the heart of what changed because of the DMCA.

Many file-sharing cases, for example both Grokster, Napster, and RealNetworks tried to use Sony as a precedent to protect their file sharing and/or file backup functions. All failed. Sony was/is about NON-DIGITAL CONTENT.

“the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes.”

The problem of course is that although Sony is still in place, it only applies to analog materials as the court did not at that time foresee how it would apply to digital materials.

New cases over DVR's and music locker/cloud systems are edging into this area.

Harper & Row v. Nation Enterprises Case Media, 471 U.S. 539 (1985).

Harper & Row examined publishing copyright protected material based on the theory of “the public’s right to know” as it is related to fair use in news and publishing.

The public’s right to know (and journalism and fair use) does NOT override everything about copyright law. Here, The SCOTUS found that there was no exception to copyright protection merely because the memoirs were those of a public figure. The Court applied the traditional fair use tests and found that the factors weighed against fair use because it was a commercial use of the significant portion of the copyrighted material that caused an actual harm (the cancellation of the contract) despite the fact that the nature of the work was informative.

Feist

The Court held that effort and the expenditure of resources are not protected by copyright, and rejected the “sweat of the brow” doctrine that had previously existed in copyright law.

The Court in Feist then indicated that in order to be copyrightable, a work need not be novel, but it must possess “a minimal degree of creativity” and that the copyright only applies to those creative aspects of the work. The Court held that an author’s selection and arrangement of a compilation of facts can warrant copyright protection.

[it’s important to note that this principle gets set aside, a bit, when BUSINESS PROCESS PATENTS are allowed in in our age. Patents are not Copyrights, but some of the underlying reasoning bleeds].

New media cases

Kelly v Arriba Soft

the most famous of a series of cases that established the ability to use certain types of thumbnails and hyperlinks without violating copyright. These issues still come up however, on a regular basis, in part because the ruling in this case was not complete and consistent across all features.

Note how various aspects can end up various ways and how principles that get established can stand, sometimes regardless of actual outcomes. This is an important fair use case; note that not all four elements were in play in either direction.

Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007).

One of many cases that validates the Google business model

DECSS and DMCA cases

Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2nd Cir. 2001).

Universal City Studios, Inc. v. Corley tested the degree that certain kinds of online publication (computer code) should receive blanket First Amendment/free speech protection, whether publication of code elements should receive a fair use exemption, and challenged the applicability of the anti-circumvention components of the DMCA to the publication of encryption research findings.

NO… the DMCA isn’t unconstitutional.

321 Studios v. Metro Goldwyn Mayer Studios, Inc., 307 F. Supp. 2d 1085 (N.D. Cal.

2004).

321 Studios v. Metro Goldwyn Mayer Studios, Inc. tested the practical commercial implications of rulings against software that enabled circumvention of DRM; the ruling also applies to file sharing software. The DMCA applies

Realnetworks, Inc. v. DVD Copy Control Ass’n, 641 F. Supp. 2d 913 (N.D. Cal. 2009).

And it applies EVEN IF THE PRODUCT COMES FROM A BIG-ASS, DEEP POCKETS, FANCY NEW MEDIA COMPANY

(oh, and SONY only applied to analog so stop using it to defend infringement already!)

Cases Involving Digital Transmission and the Public Performance Right

Cartoon Network LP, LLLP v. CSC Holdings, Inc. (Cablevision), 536 F.3d 121 (2nd Cir. 2008).

Cartoon Network LP, LLLP v. CSC Holdings,

A consortium of networks and studios sued for direct copyright infringement, alleging violations of their reproduction and public performance rights. The District Court ruled in favor of the copyright owners. However, on appeal, the Second Circuit reversed, finding that Cablevision’s proposed DVR system did not directly infringe on any of the plaintiffs’ exclusive rights. In particular, the court held that the system’s use of content buffering (the creation of RAM copies) did not qualify as a “copy” because the data was not perceivable “for a period of more than transitory duration.” The Circuit Court also held that Cablevision could not be directly liable for creating playback copies because those copies were actually made at the direction of the cable company customers. Lastly, the Circuit Court held that the transmissions of playback copies were not performances “to the public” because Cablevision transmitted only the copy requested and recorded by a particular user to that same user.

American Broadcasting Cos., Inc., et al. v. Aereo, Inc., f/k/a Bamboom Labs, Inc. 13 US 461 (2013).

These ARE retransmissions and ARE infringement (but only after Aereo WON TWICE). The SCOTUS majority declared that Aereo’s services do constitute a public performance of copyright protected works and that Aereo does not merely provide consumers with equipment. Therefore, Aereo’s services/transmissions infringe

+++++++++

Eldred versus Ashcroft. (with Sony and Viacom, one of the 3 top cases in copyright and new media)

Centers on the implications of the Copyright Extension Act (Sony Bono Act) and of not registering and reregistering works protected by copyright. Eldred wanted to do an online text repository. He was eagerly waiting for the date when many works would come into the public domain. The state compromised materials of modern mass media they moved for extension. They got the extension, Eldred sued claiming that Congress did not have the authority to extend the coverage. They would like to have rather argued about the principles underlying copyright instead they got stuck arguing congressional authority and of course lost.

Golan v. Holder, 132 S. Ct. 873 (2012).

In Golan v. Holder, The SCOTUS considered whether Congress had the power to restore copyright protection to foreign works that were already in the U.S. public domain. They do, so some material from overseas got pulled OUT of the public domain.

Cases Involving Peer-to-Peer File Sharing

UMG Recordings, Inc. v. MP3.Com, Inc., 92 F. Supp. 2d 349 (S.D.N.Y. 2000).

time and space shifting, alone, aren’t “transformation” (enough for fair use defence).

Napster, Grokster: both tried to use the Sony defense to say that their systems could be used for purposes other than illegal filesharing. Both lost. As did the pirate Bay. Sony does not protect illegal filesharing (or digital files, for that matter).

Columbia Pictures Industries, Inc. v. Fung, 710 F.3d 1020 (9th Cir. 2013).

Using a torrent isn’t different (even if the studios ARE negotiating with the torrent guys on the side)

Cases Involving Internet Service Provider Liability under the DMCA

Recording Industry Ass’n of America, Inc., v. Verizon Internet Services, Inc., 359 F.3d 1229 (D.C. Cir. 2003).

The Verizon case on the other hand, reinforced the safe harbor provisions of the DMCA, by indicating that service providers are not responsible for the materials that travel on their networks as long as they are following the requirements of the DMCA.

Viacom International, Inc. v. YouTube, Inc., 676 F.3d 19 (2nd Cir. 2012).

Can’t say it isn’t infringement. But can say “we’re not liable for it” and “follow the procedures, the law says safe harbor.”

UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006 (9th Cir. 2013).

Validates Viacom/Youtube, but WARNS that a service provider has “control” over infringing activity sufficient to lose protection under the DMCA safe harbor provisions if it exerts “substantial influence” on the activities of users, meaning “high levels of control over activities by users,” or by “purposeful conduct, as in Grokster.” We’ll see this later with the CDA tort safe harbor: providers who are deeply involved in the content can lose protection.