Standard Setting in High
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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
2
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
8
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
12
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
13
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
July 6, 2015
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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?
July 6, 2015
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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
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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?
July 6, 2015
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Answer
Answer
Not
July 6, 2015
copyright misuse
22
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:
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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
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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?
July 6, 2015
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