Transcript IP part 2: fair use, the music cases

IP part 2:
fair use, the music cases,
other kinds of IP
CS 340
©
Copyright review
• Protects “(1)original
(2)works of authorship
(3)fixed in any tangible
medium of expression”
• Does NOT protect ideas,
facts, or common
knowledge.
• Holder’s exclusive rights:
•
•
•
•
Reproduce
Distribute
Derivative
Perform/display/transmit
• Term of protection:
– Author: life + 70 yrs
– Work for higher: lesser of
95 after pub or 120 after
creation
• We’re buying a physical
copy, but what’s valuable
are the ideas, characters,
and the creative expression
contained inside
• Buying the right to use,
for personal purposes
• Compare and contrast
with physical property
Fair Use
(study pages 108-110)
• An exception to copyright (and only copyright…)
• Began as a judicial doctrine (from cases)
• “Allows uses of copyrighted material that
contribute to the creation of new work and
issues that are not likely to deprive
authors/publishers of income for their work."
• Possible fair uses: "criticism, comment, new
reporting, teaching, scholarship, or research."
Fair Use Balancing
Promoting
production of useful
work
Encouraging the
use and flow if
information
(by granting copyright)
(by limiting copyright)
Sony v. Universal Studios case
• 1984, the betamax
• http://www.law.cornell.edu/copyright/cases/464_US_417.htm
• ISSUE: was Sony liable for contributory
copyright infringement by distributing a
device that is capable of copyright
infringement?
• STD: looked at whether the device was
capable of substantial non-infringing uses.
Sony cont’d
• Applied the 4 factor fair use test the situation
of recording of a film broadcast on TV for later
personal viewing.
1. Purpose and character of the use.
– Private
– Idea of mere time-shifting
2. Nature of copyrighted work
– Usually creative
Sony cont’d
3. Amount and substantiality of portion used
– Ideally whole
4. Effect of use on potential market
– Not clear that there was a harmful effect
– Seen as increasing audience and given bigger
market for ad revenues
Fair Use Reflection Questions,
p. 110
• Imagine that an instructor in a college course on computer ethics
wants to provide students with Bruce Schneier’s Wired article.
Rather than direct students to the Web site where it is posted, she
makes copies and hands them out in class. Is this fair use?
• Imagine that an instructor in a college course on computer ethics is
using a textbook other than this one but wants to provide this
chapter to students as a supplement. The instructor makes a PDF
copy of the chapter (not the whole book) and posts it on a public
Web site. Is this fair use?
• What if the instructor decides to place the PDF on a passwordprotected site rather than a public one, so only her students can
access the article? Is this more likely to be considered fair use?
Ethics in a Computing Culture
8
RIAA v. Diamond Multimedia
• The Diamond RIO mp3 player case
• RIAA sued for an injunction (sale and mfg)
against Diamond RIO as device did not
prevent copyright infringement
– RIAA claims unlawful device as consumers could
make & download illegal mp3 files and use them
on the player.
• Ct denied injunction; affirmed “space shifting”
as a fair use
The Napster case
• Who is Shawn Fanning?
– Video resource: http://www.youtube.com/watch?v=CSpzW8bkkPc
• How Napster worked?
– Modified peer-to-peer
– Revenue generation?
– Success of Napster: Registered users after 1 yr of operation?
The Lawsuit
• RIAA (representing labels with 85% of mkt) & Metallic
sue Napster seeking an inj. claiming
– Contributory infringement: occurs when an
infringement committed by another person would not
have happened without your help
– Vicarious infringement: involves an infringement
that occurs in an area under your supervision, and
when you should have been policing and preventing
such acts
• Was Napster’s business model morally
permissible?
Napster’s position
• DMCA safe harbor for search engines
• Many songs traded were not copyrighted &
others fell under fair use
– Sampling
– Space-shifting
• Service was akin to the device in Sony, capable
of substantial non-infringing use
• 4th factor, market: sales increased during
Napster
RIAA’s burden
• For contributory or vicarious infringement
must show direct infringement by 3rd party.
– Shown 87% of files in violation
– That the labels control 70% of files available
through Napster.
• RIAA showed Napster tried to remain ignorant
of users’ identities. RIAA gave actual
knowledge of 12000 infringing files.
RIAA’s position
• Napster is not a search engine
• That Napster materially contributed to the
infringement
• Napster had direct interest req.
• First Amend challenge not relevant
• Plaintiff’s shown irreparable harm
Opinion Pieces
• Dear Hollywood Studios: If You Hold Digital
Downloads Hostage, the Pirates Win
• http://www.wired.com/entertainment/hollywood/mag
azine/16-03/st_essay
• Would the Bard Have Survived the Web?
• http://www.nytimes.com/2011/02/15/opinion/15turo
w.html?_r=2&emc=eta1
• The Music-Copyright Enforcers
• http://www.nytimes.com/2010/08/02/education/02ch
eat.html
Kelly v. Arriba Soft Corporation (9th Cir., 2003)
http://openjurist.org/336/f3d/811
• Facts: Professional photographer sues search engine
operator for indexing his images. In the process,
thumbnails were created and stored on the Arriba
Soft’s server.
• Issue: Do these unauthorized copies of his images
violate Kelly’s copyright?
• Ct analysis: 4 factor fair use analysis
• Holding: transformative
Galoob v. Nintendo (9th Cir, 1992)
• Game genie case. Users can modify existing
games (extra lives, invincible char., unlimited
ammo, etc.).
• Issue: Is this a derivative work?
• Ct Analysis:
• Holding:
MGM Studios, Inc., et. al. v. Grokster, Ltd., et. al.
US S Ct 2005
case study in book: pp. 142-144
• Grokster distributed free software that utilized peer to
peer networks to allow users to obtain files.
– big use was to share unauthorized, copyrighted music and
video files
• A group of copyright holders (led by MGM) sued for an
injunction on Grokster for their users' copyright
infringement claiming that Grokster
– "knowingly and intentionally distributed their
software to enable users to reproduce and distribute
the copyrighted works in violation of the Copyright
Act, 17 U.S.C. § 101"
Grokster cont’d (2)
•
•
•
•
•
•
Factual record of case showed that:
Grokster used "no servers to intercept content of requests" or to "mediate the file
transfers"
Grokster therefore does not "know when a particular file is copied"
MGM showed that "90% of files available for download on the . . . system were
copyrighted works."
Grokster stipulated that most downloads using the system involved unauthorized,
copyrighted works and that use was the "primary" use.
Grokster marketed its software as a "napster alternative"
– From ads:
•
•
•
•
•
"#1 alternative to Napster"
"[w]hen the lights went off at Napster ... where did all the users go?"
Lots of facts in record showed that "principal object was use of their software to
download copyrighted works."
Grokster obtained ad revenue from ads that its users were exposed to
MGM claims Grokster should be liable as a contributory infringer and should have
vicarious liability for infringement.
Grokster cont’d (3)
• Lower ct ruling: At the Court of Appeals, Grokster would be "found
liable as a contributory infringer when it had knowledge of direct
infringement and materially contributed to infringement." But
under Sony as their product was capable of "non-infringing uses",
and that the "decentralized nature" of their product meant that
Gokster had no actual knowledge as required.
• S. Ct issue & holding: "The question is under what circumstance the
distributor of a product capable of both lawful and unlawful use is
liable for acts of copyright infringement by third parties using the
product. We hold that one who distributes a device with the
objective of promoting its use to infringe copyright, as shown by
clear expression or other affirmative steps taken to foster
infringement, is liable for the resulting acts of infringement by third
parties."
Reconciling Sony & Grokster
• Supreme Court said that Sony case did not prohibit secondary
liability for infringement for the distribution of a commercial
product
– fair use exception in Sony granted for the time-shifting
• No evidence in Sony that Sony promoted unlawful use
• "because the VCR was capable of commercially significant noninfringing use, We held the manufacturer could not be faulted
solely on the basis of distribution."
• Sony "barred secondary liability based on presuming or imputing
intent to cause infringement solely from the design or distribution
of a product capable of substantial lawful use"
– cannot impute intent from mere distribution
– need "statements or actions directed to promoting infringement"
BMG MUSIC v. Gonzalez (7th Cir, 2005)
• *Case decided after MGM. Gonzalez download copyrighted
stuff using KaZaA, and contends that her actions were fair
use.
• Facts from opinion:
– she got 1,370 songs during a few weeks
– kept them on computer until caught
– Gonzalez claims she was "sampling" the copyrighted works to
determine what to actually purchase.
• Because this is a review of a summary judgment court must assume
her statements were true.
– She owned some of the music, later purchased some, but kept
copies of it all.
– Some she never owned but kept these illegitimate copies
– BMG is seeking statutory damages for 30 songs. ($22,500)
BMG v. Gonzalez holding
• Court of Appeals rejects claim and finds for
BMG.
• Ct held:
– "downloading full copies of copyrighted material
without compensation to authors cannot be
deemed fair use"
– court likened her behavior to a shoplifter who
takes "30 compact discs, and plans to listen to
them at home and pay later for any he liked."
Case: Sony BMG Antipiracy Rootkit
• Do you agree with security expert Bruce Schneier’s
opinion? “The only thing that makes [the rootkit that
Sony BMG included on their CDs to prevent piracy]
legitimate is that a multinational corporation put it on
your computer, not a criminal organization.”
• Should it be illegal for someone to convert the CDs they
purchased into MP3 files, then use them in their personal
music players?
Ethics in a Computing Culture
24
Case: Sony BMG Antipiracy Rootkit
(continued)
• Should it be okay for antivirus companies to distinguish
between rootkits from major corporations and rootkits
from criminals? Would allowing the former but denying
the latter be fair?
• Is it ethical for one to remove the rootkit that Sony BMG
installed on your computer without their permission?
Furthermore, would it be ethical to break the DRM lock
on a Kindle book?
Ethics in a Computing Culture
25
Doctrine of First Sale
• Doctrine of first sale: states authors are
not entitled to a second royalty
Ethics in a Computing Culture
26
Eroding Fair Use and First Sale
• Digital rights management (DRM): a collection of
technologies that work together to ensure that
copyrighted content can be only viewed by the
person who purchased it
• Digital Millennium Copyright Act (DMCA): law
passed by US Congress in 1998 to deal with
modern copyright issues
– Anticircumvention clause: “No person shall
circumvent a technological measure that
effectively controls access to a work protected
under this title.”
Ethics in a Computing Culture
27
Capitol, Virgin Records v. Thomas
• Notable as first case w/ jury trial.
• Facts: from class.
• Judgments:
– First trial, 2007, $222k fine for 24 songs
• New trial ordered for manifest error of law (the make
available theory)
– Second trial, 2009, $1.9 million dollars against Thomas
• Reduced to $54,000: http://news.cnet.com/8301-31001_320081934-261/jammie-thomas-judgment-lowered-from$1.5-million-to-$54000/
Other Music Cases
RIAA, Sony BMG v. Tenenbaum (US District Ct Boston 2009)
–
2nd jury trial; 31 songs shared on KaZaA; $675,000 award; reduced to $67,500 (2010); Under appeal
from both sides.
http://www.pcworld.com/article/200850/judge_cuts_filesharing_fine_to_67500.html
The Pirate Bay Four
• http://torrentfreak.com/the-pirate-bay-trial-the-verdict-090417/
–
Compare with individual file sharer case in Sweden 2/20/11: $7 per song
http://torrentfreak.com/file-sharer-cant-believe-his-luck-with-7-per-track-fine-110220/
The Harper case
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–
–
http://blog.wired.com/27bstroke6/2008/10/judge-rejects-m.html
Now a college student, used KaZaa as a 14-16 y.o.
Innocent offender: $200 per song damages
http://www.wired.com/threatlevel/2010/09/supreme-court-riaa/
The LimeWire case
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–
http://www.nytimes.com/2010/05/13/technology/13lime.html
Shutdown: http://www.nytimes.com/2010/10/27/technology/27limewire.html
New Strategy by the Music Industry
• In 2009, RIAA announced it would cease
chasing after “new” individual infringers and
instead work with ISP’s to stop the
downloading. Current cases would continue.
• See:
http://www.foxnews.com/scitech/2012/03/17
/us-isps-become-copyright-cops-starting-july12/