Josh Kades and Mark Weber

I. Introduction to Copyright

A. Constitution – I, 8, [8] – Promote Progress of Science & Useful Arts

B. Original Works of Authorship in a Tangible Medium

C. Policy – encourage production of literary/ artistic works of lasting benefit to world

D. Rights Arise Automatically Upon Creation

E. Exclusive Rights Granted:

(1) reproduce the work

(2) derivative works

(3) copy and distribute

(4) public performance or display

F. Fixed in Tangible Medium
(1) perceived, reproduced, or communicated, directly or w/ aid of a machine

(2) covers RAM etc computer reproduction

G. Fair Use and First Sale Exceptions (1)First Sale: once you buy a copyrighted work (e.g. Book) you can resell, trade, loan/give to a friend etc – library works on this concept

(2)Fair Use: statutorily defined exemptions – include educational use, non-profit orgs, some research uses and others
 

a. Factors of Fair Use
  1. The purpose and character of the use

2. The nature of the copyrighted work

3. The amount used in relation to work as a whole

4. The effect of use upon the potential market for the work
II. Emergence of Internet
A. Copy and Distribute Through NII (Nat. Info. Infrastructure)
(1) General Public now has capability

(2) Stakeholders Concern = White Paper

a. A single digital copy can destroy the market for a copyrighted work

b. Desire to ["Maximalist Agenda"]
B. Issues:
1. Regard all transmissions as an unauthorized copy/distrib of copyrighted work?
A. Theory: broad enforcement rights = progress of arts sciences?
2. Same for temporary reproductions (browsing a web page)?
A. Very broad b/c Copyrt exists upon Creation

B. Does this ignore what the cases we read say?

3. Deprive "First Sale" Rights
A. Get copyright material on net and then e-mail to friends. 1. Argue: fair use

2. Argue: amounts to an unauthorized copy/distribution – like photocopying a book and then giving to friends

3. Critical difference: Hardcopy
4. Eliminate Fair Use when a License could be entered.
A. Amount to school obtaining a license to distribute educational protected material.
5. Put Tracking Info on Protected Works
A. Intrusion; Violate Privacy

B. Prevent Unauthorized Copies

6. Decryption would be Illegal
A. Decryption would counter the Tracking info discussed above and would therefor be illegal

B. Sega v. Accolade – Fair use case decided on policy/ intent

7. Online Providers as Cops
A. Go to some case law
Internet Provider Liability

I. Theories

A. Direct Infringement
1. Person uploading and posting a protected work to a BBS

2. Intent does not matter

B. Contributory Infringement
1. ISP who knowingly permits infringement over the system

2. Selling a Descrambler (known or should have known)

3. White Paper wants focus on the "primary purpose" of the assistance

C. Vicarious Liability
1. Person other than D has infringed

2. D has relation w/ infringer such that not unfair to hold D liable

3. Relation must be:

A. D has right and ability to supervise infringer

B. D has obvious and direct financial interest

4. Knowledge and intent on D’s part not required
II. Cases
Playboy Enterprises v. Frena 839 F.Supp 1552
A. BBS subscriber uploaded digital copies of playboy photos to the BBS who allowed their transmission. BBS received $ from subscribers.

B. Playboy sued BBS Administrator

C. Court held BBS liable on theory of Direct Infringement finding that Knowledge was not important

 D. Comment: Should this more properly be considered a Vicarious Liability Situation?


Sega Enterprises v. Maphia 857 F.Supp. 679
 

A. Sega sued computer bulletin board company and main operator

B. Users of BBS could download copies of games (no money to Sega)

C. D was paid fee for this

D. D also sold devices to copy sega games – the device’s only use was for such copying

E. Held for Sega, D was Contributory Infringer

F. D provided means for others to infringe


Religious Technology Center v. Netcom 907 F. Supp 1361

  A. Elrich contributed to a newsgroup on Scientology. Gained access to Internet through a BBS which gains its access to Internet through Netcom. P held rights in L. Ron Hubbard’s works and demanded that Elrich stop posting verbatim portions of these works on the newsgroup. Elrich did not obey so P demanded that BBS and Netcom keep Elrich off system. BBS and Netcom did not meet demands and were sued for copyright infringement under Direct, Contrib, and Vicarious Theories. B. How Posting Works: Elrich connects to BBS and transmits message to BBS where it is temporarily stored.. BBS connects with Netcom which then connects to other computers etc etc to spread message throughout net. Temporary storage on BBS and Netcom was found to amount to adequate Fixation. BBS and Netcom did not control content of info posted.

C. Direct Infringement:  Court found that BBS and Netcom did not cause copies to be made. Copies were made by a user of these systems. BBS and Netcom did not control content of info and merely operated systems necessary to the functioning of the Internet. Court did not wish to adopt a rule that could lead to liability of "countless parties" in that the chain of distribution did not stop at Netcom.

 D. Contributory Infringement:  Court said this needs to go to the Jury. Noting that Contrib Infring requires knowledge, the court found that a jury issue existed in deciding whether BBS and Netcom were liable as contributory infringers for allowing Elrich to continue his infringing postings once they were requested by P to deny Elrich access.

E. Vicarious Liability: Found right to exercise control, but did not find any financial benefit flowing to the D’s so threw out VL issue.

ISSUE: BBS and Netcom are paid by their subscribers, and part of the incentive for subscribing is the access to info contained thereon. Could it be argued that D’s did receive financial benefits from Elrich’s postings?