Transcript Standard Setting in High

Class 18
Copyright, Winter, 2014
Copyright Misuse
Randal C. Picker
James Parker Hall Distinguished Service Professor of Law
The Law School
The University of Chicago
773.702.0864/[email protected]
Copyright © 2005-14 Randal C. Picker. All Rights Reserved.
Selling the Book I

Hypo
Author
A offers to sell copy of her book to Buyer
for $20

Any copyright issues?
July 6, 2015
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Selling the Book II

Hypo
Author
A offers to sell copy of her book to Buyer
for $15 and a promise from the Buyer that Buyer
will never read any books by Author B

Any copyright issues? Does it matter whether
Buyer had any independent interest in Author
B?
July 6, 2015
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July 6, 2015
4
AMA CPT and Copyright

What can the AMA claim copyright in?
The
medical procedures?
The descriptions of those procedures?
The five digit codes for those procedures?
The compilation of all or some of that?
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Selling the AMA Code

Facts
Gov’t
pays for lots of medical care; wants to
simplify paperwork
Creates Health Care Financing Admin to do that
HCFA decides to license a coding system created
by the AMA, the Physician’s Current Procedural
Terminology (CPT)
July 6, 2015
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Selling the AMA Code I

Hypo
AMA
offers the gov’t a license for a one-time fee
of $5 million

Any copyright issues?
July 6, 2015
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Selling the AMA Code II

Hypo
AMA
offers the gov’t two different licenses:
 $5 million commitment-free license
• Use it as much or as little as you want to
 $2 million exclusive-use license
• Gov’t agrees to use the AMA CPT exclusively

Any copyright issues?
July 6, 2015
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Selling the AMA Code III

Hypo
Two
licenses as before
Gov’t declines to make promise of exclusivity
Buys $5 million license and then uses AMA CPT
exclusively

Any copyright issues?
July 6, 2015
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Selling the AMA Code IV

Hypo
AMA
offers gov’t a royalty-free license but the
gov’t must promise to use the CPT whenever
possible

Any copyright issues? Different than Practice
Management?
July 6, 2015
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Selling the AMA Code V

Actual Case
offers royalty-free license, gov’t promises to
use CPT whenever possible and promises not to
use any other procedure nomenclature
AMA

Copyright issues?
July 6, 2015
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Understanding the Court

What Does this Mean?
“What
offends the copyright misuse doctrine is not
HCFA’s decision to use the AMA’s coding system
exclusively, but the limitation imposed by the AMA
licensing agreement on HCFA’s rights to decide
whether or not to use other forms as well.”
July 6, 2015
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Understanding the Court

What Does this Mean?
“Conditioning
the license on HCFA’s promise not
to use competitors’ products constituted a misuse
of the copyright by the AMA.”
July 6, 2015
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Understanding the Court

If this Makes Sense
Seems
to mean that the gov’t can decide to use
the CPT exclusively but can’t commit to doing so
upfront
AMA’s cash price then can’t reflect commitment
gov’t can’t make, so AMA should charge more
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What is Our Focus?

Do we care about …
Blocked
competitors of the AMA?
Everyone else who will have to use the CPT who
doesn’t have a royalty free license?
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Causation

Contractual Exclusivity vs. De Facto Exclusivity
What
do we think is the link between the
exclusivity promise and the decision by the gov’t t
use only one coding system?

If this is right, how should the AMA respond to
this case?
July 6, 2015
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Using Disney Videos

A Fair(y) Use Tale
http://www.youtube.com/watch?v=CJn_jC4FNDo

Is this Video Pipeline? Something else?
July 6, 2015
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Disney Licensing Agreement in
Video Pipeline

Limitation on Use
“The
Website in which the Trailers are used may
not be derogatory to or critical of the entertainment
industry or of [Disney] (and its officers, directors,
agents, employees, affiliates, divisions and
subsidiaries) or of any motion picture produced or
distributed by [Disney] ... [or] of the materials from
July 6, 2015
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Disney Licensing Agreement in
Video Pipeline

Limitation on Use
“which
the Trailers were taken or of any person
involved with the production of the Underlying
Works. Any breach of this paragraph will render
this license null and void and Licensee will be
liable to all parties concerned for defamation and
copyright infringement, as well as breach of
contract....”
July 6, 2015
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Situating WIREdata

Hypo: Pencil Access
AT
sells pencils to Wisconsin municipalities
The municipalities used those pencils to collect
tax data; data are part of the public domain
AT insists as condition of sale of pencils that
munis not distribute the tax data

Copyright issues? Pencil misuse?
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Answer

Answer
Not
July 6, 2015
copyright misuse
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Situating WIREdata

Hypo: Private Collection
Private
party collects factual data on houses in a
community and stores data on a CD
Licenses use of that data for a fee by delivering a
copy of CD to licensees
License controls extent of allowed use of data on
the CD
July 6, 2015
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Situating WIREdata

Copyright issues? Contract issues?
July 6, 2015
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Answer

Wednesday
This
is—or is close to—ProCD
But again not a copyright misuse case
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Situating WIREdata

Hypo: Paper Instead of CD
Same
facts, but instead of CD, private party prints
books
No shrinkwrap licenses, but the copyright notice
page in the book contains the following legend:
July 6, 2015
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Situating WIREdata
 “All
rights reserved. No part of this publication
may be reproduced, stored in a retrieval system,
or transmitted, in any form or by any means,
electronic, mechanical, photocopying, recording,
or otherwise, without the prior written permission
of the publisher.”
July 6, 2015
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Situating WIREdata
Sam
buys a copy of the book and inputs the data
from it into a database

Copyright issues? Contract issues?
July 6, 2015
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Answer

Seen It Before, Sort Of
Saw
restrictive legend of this sort in Bobbs-Merrill
Sup Ct declined to implement it on its own terms
through copyright law; case didn’t resolve effect
through contract law
July 6, 2015
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Answer
Should
we be concerned about “media” neutrality:
 If legend in book can’t be enforced but
shrinkwrap on database can, more content will
be in databases, less of it in books

Would anything change if the book contained
federal judicial opinions rather than data?
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