Transcript How is Ownership of Intellectual Property Defined and Enforced in an Inherently Copyable Medium? Venkat Balasubramani, Focal PLLC September 23, 2011

How is Ownership of Intellectual
Property Defined and Enforced in an
Inherently Copyable Medium?
Venkat Balasubramani, Focal PLLC
September 23, 2011
Introduction
The last 5 years -- with the rise of Facebook, Twitter, and other social tools
and networks -- have brought about an unprecedented level of sharing.
The basic rules for ownership and infringement haven’t changed, although
courts continue to grapple with new situations.
Copyrights vest automatically
•
Registration is not required.
•
Protection does not depend on providing a copyright notice or symbol.
Who owns the copyright?
17 U.S.C. § 201:
•
Copyright typically vests in the creator.
•
Exception: “Works made for hire” are owned by the employer who is
deemed the “author” of the work.
Infringement
•
Copyright infringement is a strict liability offense.
•
There’s not really a de minims use exception (but see Righthaven cases).
Fair use is fact-specific
•
Courts have issued favorable fair use rulings in response to the claims of
overzealous plaintiffs.
•
Righthaven
–
Will Righthaven Copyright Lawsuits Change Excerpting Online?
(Jeffrey D. Neuburger, Media Shift; March 3, 2011)
Fair use & parody/satire
A parody of an original work may constitute a permissible use if it has some critical
bearing on the substance or style of the original work. There is no fair use if the
defendant’s work merely uses the original to get attention or as a vehicle to
promote the defendant’s work.
Courts distinguish between parody and satire. Parody targets and mimics the
original work to make its point (criticism or comment on the original work),
while satire uses the work to criticize something else, and therefore requires more
justification for use of the work.
DMCA is the focus of takedown battles
15 U.S.C. § 512(c)
Creates limitations on liability for copyright infringement by “online service
providers” (includes website operators) if the provider meets certain eligibility
criteria.
This immunity is conditioned upon compliance with a “DMCA” takedown
policy.
Courts have recognized causes of action for wrongful takedowns.
A culture of “sharing” content has developed
•
How does this affect fair use (e.g., mashups, etc.)?
A culture of “sharing” content has developed
The lines of permissible sharing can be grey:
•
“BBC says sorry over Twitter riot pictures row”
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“Photographer Claims Daily Mail Stole TwitPic Photos”
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People can get into trouble for sharing outside the ecosystem (Agence FrancePress v. Morel, Case No. 10-cv-2730 (S.D.N.Y. March 26, 2010)).
Scraping
Scraping refers to the practice of gathering information from a source through the
use of online bots.
Website terms of use typically prohibit this practice.
Scraping is legally questionable and courts have typically sided with website owners
who bring scraping claims.
Venkat Balasubramani
[email protected]
@VBalasubamani
206.529.4827
APPENDICES
A – DMCA takedown notice
B – DMCA counternotice
C – Fair use factors
DMCA takedown notice
Notice from copyright owner must include:
1.
2.
3.
4.
5.
6.
A physical or electronic signature of a person authorized to act on behalf of the
copyright owner;
Identification of the copyrighted work(s) claimed to have been infringed;
Identification of the material that is claimed to be infringing, and information
reasonably sufficient to permit the service provider to locate the material;
Contact information of the complaining party;
A statement that the complaining party has a good faith belief that use of the
material in the manner complained of is not authorized by the copyright owner, its
agent, or the law; and
A statement that the information in the notification is accurate, and under penalty
of perjury, that the complaining party is authorized to act on behalf of the owner of
an exclusive right that is allegedly infringed.
Provider must take the complained of material down and notify the alleged infringer of
the action. Doing so secures safe harbor from legal liability to complaining party.
DMCA counter-notice
Counter-notice must include:
1.
2.
3.
4.
5.
Physical or electronic signature;
Identification of the material that was removed, or to which access has been
disabled;
A statement under penalty of perjury that the material was taken down
mistakenly;
Statement consenting to jurisdiction in local federal district court; and
Contact information.
Provider forwards the counter-notice to the original complaining party, who has
14 days to file a lawsuit. If no lawsuit is filed within 10 days, provider may
restore the material. If no lawsuit if filed within 14 days, provider must
restore the material.
Fair use factors
When can you use someone else’s work without asking permission or paying for
the
use? Courts look at a number of factors to determine whether a “fair use”
exception
applies:
1.
The purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes.
2.
The nature of the copyrighted work.
3.
The amount and substantiality of the portion used in relation to the
copyrighted work as a whole.
4.
The effect of the use upon the potential market for or value of the
copyrighted work.