518 Halbert Chap 9 Ip

8/12/2019 518 Halbert Chap 9 Ip

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Halbert

Chapter Nine

Ownership and Creativity:

Intellectual Property

Intellectual Property is the work-product of the human mind

The usiness !oftware "lliance estimates that losses from software piracy at #$%billion annually&'

Copyri(ht )aw

"rticle %* !ection + of the Constitution (ives authors and inventors the e,clusive

ri(ht to their respective ritin(s and .iscoveries

/usic

Bridgeport Music v. UMG Recordings

Issue: Did the use of a very small part of a prior recording constitute

infringement?

Rule: The to !uestions are:

". Did the plaintiff on the copyrighted or#$ and

%. Did the defendant copy it?

To &e actiona&le the copying must &e of something that is 'original(.)

involving at least minimal creativity. This may &e done &y direct evidence of

copying* or indirectly &y shoing the defendant had access to the plaintiff+s

or# and that there is a su&stantial similarity(. ,ven if access cannot &e

proven* a plaintiff may prevail &y shoing a high degree of similarity(. In

some cases* the copying of a relatively small &ut !ualitatively important or

crucial element may &e actiona&le(.

-pplication: The standard for originality is a lo one and the vast maority

of or#s ma#e it !uite easily.

/onclusion: The trial court+s finding of infringement is affirmed'

Online Piracy or Culture 0ammin(1


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!ome critics&ar(ued that the problem is not infrin(ement on ri(hts* but rather thecurrent structure of a music industry controlled by a handful of transnationalcorporations* and the increasin(ly ri(id le(al re(ime of copyri(ht'

2eminist Interpretations of Intellectual Property

Traditional Copyri(ht )aw

The ri(ht attaches when the author first makes her work public* si(nin(* datin(*and usin( the 3 symbol to claim ownership 4 althou(h formal re(istration withthe 2ederal Copyri(ht Office is re5uired to brin( a suit to enforce a copyri(ht

2air 6se

Not every instance of copyin( violates the ri(hts of the author

The free flow of ideas at times re5uires 5uotin( or otherwiseborrowin( from a copyri(hted work:

hen critics review books

News reporters use video clips

Teachers make copies of articles for classroom use

0ony BMG Music v. Tenen&aum

Issue: Defendant used 1a2aa to ma#e 344 songs availa&le to other 1a2aa5

users. Is the 'fair use) defense availa&le to defendant?

Rule:

There are four factors to consider:

". The purpose and character of the allegedly infringing use*

including hether it is commercial in nature* or for

nonprofit educational purposes$

%. The nature of the copyrighted or# 6e.g. is the original

creative or factual?7

8. The amount and su&stantiality of the portion used in

relation to the copyright or# as a hole$ and

9. The effect of the use on the potential mar#et or value of the

copyrighted or#

-pplication: ile sharing for the purposes of sampling music prior to

purchase or space5shifting to store purchased music more efficiently might


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offer a compelling case for fair use. ;i#eise* a defendant ho used the ne

filesharing netor#s in the technological interregnum &efore digital media

could &e purchased legally* &ut ho later shifted to paid outlets* might also

&e a&le to rely on the defense. Rather than tailoring his defense to suggest a

modest e


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/onclusion: The government has a su&stantial interest in preventing

unauthori2ed access to encrypted copyright material and there is no less

restrictive ay of preventing distri&ution of the decryption code.

eyond Copyri(ht: /isappropriation* Trademark* Patents* and Trade !ecrets

=hite v. 0amsung and Deutsch -ssociates

Issue: -ppropriation of @anna =hite+s name or li#eness ithout consent?

0ince the defendants did not actually use @anna =hite+s name or her real

li#eness in the ad they argue that they did not 'appropriate) her name or

li#eness

The most popular cele&rities are not only the most attractive to the

advertisers* &ut also the easiest to evo#e ithout resorting to o&vious means

such as name* li#eness* or voice

The dissent argued that the court had created a ne right

Aarody e


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The mar# is su&stantially similar and li#ely to cause confusion in the

minds of consumers a&out the source of a product

-nyone* even a noncompetitor* can &e guilty of dilution if they do

something to &lur or tarnish a trademar#Patents

6nited !tates patent law protects inventions that are novel* useful and notobvious

" patented business process

"maon'com


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Inevitable .isclosure of Trade !ecrets

hat happens when a software en(ineer leaves one company for another 4brin(in( with him or her not only (eneral skills and talents* but particular

knowled(e ac5uired over years with the first company1

Pepsico* Inc' v' 7edmond

Issue: 7edmond

Documents

518 Halbert Chap 9 Ip