Transcript Intellectual Property Boston College Law School February 4, 2009 Copyright – Indirect, Digital Issues.

Intellectual Property
Boston College Law School
February 4, 2009
Copyright – Indirect, Digital Issues
Defenses
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Fair Use
Independent Creation
Consent or License (Express or Implied)
Statute of Limitations
Inequitable Conduct
Copyright Misuse
First Amendment
Third Party Liability
• Contributory Liability
– 1. Knowledge of infringing activity
– 2. Induce, causes, or materially contributes
• Vicarious Liability
– 1. Right and ability to supervise
– 2. Direct financial interest in infringing activity
• Inducement
– 1. Intention to induce infringement
– 2. Affirmative steps to facilitate infringement
Third Party Liability
• Historical Contexts
– Swap Meets
– Dance Halls
– Landlords
• Modern Equivalents
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On-line Auctions (e.g. E-Bay)
Web Hosting (e.g. Facebook)
Internet Search (e.g. Google)
Credit Card Companies (e.g. Visa)
Policy Issues
• Why Third Party Liability?
– Facilitate enforcement
– Third parties may be morally culpable
– Deter third parties from harmful activity
• Why Not Third Party Liability?
– Imposes costs on third parties (e.g. monitoring)
– Not always fair to impose burden
– Not always efficient for third parties to enforce
Sony v. Universal
“capable of substantial non-infringing uses”
Hypo: Napster
Napster Technology
MP3s
File Names,
IP Addresses
Napster
Questions
• How would you analyze this under the
doctrines for third party liability?
– Contributory liability
– Vicarious liability
• How would you apply Sony to this case?
• What is the correct result?
Open Questions
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How much is “substantial”?
What do we mean by “capable”?
Is this the right standard?
Is there an obligation to design to minimize
infringement?
Digital Copyright
• How is digital technology different?
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Copying costs near zero
Distribution costs near zero
Copies are perfect
Search costs are low
Digital Copyright
• Legislative Changes
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Audio Home Recording Act (1992)
DPRSRA (1995)
No Electronic Theft Act (1997)
Digital Millennium Copyright Act (1998)
AHRA (1992)
• Audio Home Recording Act (AHRA)
– Response to introduction of DAT in 1980s
– Basic provisions
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Manufacturers can sell digital recording devices
Consumers can make personal, noncommercial copies
Devices must include serial copy prevention technology
Royalty charged on devices and recording media
– Does not cover
• Computer hard drives or CD burners
• Blank CDs
• MP3 Players (Diamond Multimedia case)
DPRSRA (1995)
• Digital Performance of Sound Recordings
– New right given to sound recordings
– Covers digital performances of such
• E.g. cable radio, direct satellite radio, internet radio
• Where digital radio received via subscription
– Rights depend on type of performance
• Where interactively on-demand, must get license
• Where non-interactive broadcast, compulsory license
– Recall: must also get musical work rights, too
NET (1997)
• No Electronic Theft Act (1997)
– Increased scope of criminal sanctions
– Response to LaMacchia case
• Formerly, required commercial advantage
• Case where uploaded software for free; no liablity
– Change so that based on retail value of works
• More than $1,000 of copyrighted works
• Within 180 day period
DMCA (1998)
• Digital Millennium Copyright Act
– Technological protection mechanisms
• Anti-circumvention provisions
• Anti-device provisions
– Copyright management information
– ISP liability provisions
DMCA (1998)
• Anti-circumvention provisions
– Separate liability for acts of circumvention
• Independent of copyright infringement
• List of narrow defenses, but no fair use defense
– Applies to access and copy control technology
– Copyright Office can exempt certain works
• Anti-trafficking provisions
– Bars distribution of circumvention technologies
– Where primary purpose is to facilitate infringement
DMCA (1998)
• ISP Provisions
– Safe harbor for transmission and caching
– Safe harbor for hosting content
• Notice and take-down procedure
• Immune from direct and contributory suits
– Subpoena power
A&M Records v. Napster
Napster Technology
MP3s
File Names,
IP Addresses
Napster
Grokster
Peer to Peer Technology
All Files, File
Names, IP
Addresses
• Distributes
Software
and Updates
• Serves Ads
Open Issues
• What is the Sony standard?
– Capable of substantial noninfringing uses?
– Actual evidence of such uses?
• Does Sony apply to on-line services?
• Is Sony the right standard?
Image Search
Google Book Search
Google Book Search
Google Book Search
Administrative
• For Monday
– Start III. Trade Secret
• Read A, B, C.1
• For Tuesday
– Finish III. Trade Secret