Copies, copies, and More Copies:

Making more people more nervous more often.. Copyright...MetaArchive Cooperative30 May 2007

©Dwayne K. Buttler, J.D.

Professor, University Libraries

Evelyn J. Schneider Endowed Chair for Scholarly Communication

(and Sometimes Swell Guy)

dwayne.buttler@louisville.edu

U.S. Constitution - Article 1, Section 8, Clause 8

Federal Statute - Title 17 United States Code

Case Law - Districts, Courts of Appeal, the Supremes

©

© as Information Policy…

• the balancing act– exclusivity meets necessity

• policy choices– unprotectables (do you know ’em

when you see ’em?)– fair use (limits to exclusivity?)– public domain (a “public good”?)– “duration (with a straight face?)– access (who needs it and what cost?) – 1st Amendment (whose “speech” is it?)

the basic questions…

1. Is the work copyrighted at all?

2. How do you plan to use the work?

3. Is the work covered by a license?

4. Does the law contain a specific exception allowing your use?

5. Will I need permission from the copyright holder?

what is infringement?

• valid copyright – no copyright = no infringement

• access to protected work– direct, i.e. “okay you caught me…I just

made thousands of these MP3s”• data marking, false information, ???

– circumstantial evidence

• violation of exclusive right– “hot off the CD, DVD, MP3 burner” – “substantial similarity”

Get your T-Shirt here…

The Congress shall have Power To …

promote the Progress of Science

and useful Arts, by securing for

limited Times to Authors and

Inventors the exclusive Right to their

respective Writings and

Discoveries… . Art. 1, § 8, Cl. 8.

how to GET copyright…

• original work of authorship– “modicum of creativity”

• fixed in “tangible medium” – infinite range of possibilities

• automatic protection– no notice– no registration– no renewal– no record (if you’re looking)

the Unprotected

• facts • ideas • “merger” doctrine (idea = expression)• expired works• statutory defects - notice and

renewal under the 1909 Act• U.S. government works

– what about other works or “laws”?• Veeck v. Southern Bldg Congress Intl.,

293 F.3d 791 (5th Cir. 2002)

the Exclusive Rights

• reproduction

• distribution

• preparation of derivative works

• public performance

• public display

“anti” clauses (ho-ho-ho)

• “anti-circumvention” of TPS

• “anti-removal” of CMI

• “anti-bootlegging” of live performances

• “moral rights”(§106A)

• “sound recordings” and “digital transmission”

Duration, Duration, Dura…

• Works created after 1978– life of the author plus 70 years– “work-for-hire”

• 95 years from publication date• 120 years from creation date

• Works created before 1978– 28+47+20=95 UNLESS– published w/out notice or not renewed

who is liable…

• direct (you are)– direct infringement is required to

support “secondary liability” theories.

who is liable 2 …

• “secondary” (you & someone else)– contributory (akin to “aiding & abetting”)

• knowledge of underlying infringement• material contribution

– vicarious (akin to respondeat superior)• right and ability to control• direct financial benefit• knowledge unnecessary

– inducement (MGM v. Grokster, 125 S.Ct 2764(2005))

• affirmative act of encouragement• intent to promote infringement

… and for what?

• actual damages and profits (money) • statutory damages (money)

– $750 to $30,000 to $150,000 for willful

• attorney fees (a lot more money) • injunction (stop (& give us money))• impoundment (what’s yours is mine)

– destruction or other disposition

• off to the federal penitentiary– NET/DMCA – up to 5 years (don’t ask)

number of © suits filed…

• 2005 = 5,796• 2004 = 3,007• 2003 = 2,448• 2002 = 2,084• 2001 = 2,446• 2000 = 2,050• 1999 = 2,093

Source: Judicial Facts and Figures, Analytical Services Office,

Administrative Office of the U.S. Courts, March 2003 at table 2.2.<http://www.uscourts.gov/judicialfactsfigures/contents.html >Visited 23 March 2007.

limits on exclusive Rights

• Sec.107 - “fair-use”

• Sec.108 - libraries & archives

• Sec.109 - transfer of copies

• Sec.110 - performances & displays

Sec. 107 - the 4 factors

• Purpose– ‘transformative” (v. literal copying?)?– scholarly?– preservation?– “dark archive”?

• Nature • Amount

– entire work?• Effect

– existing market?– who has access to copies?

Sec. 107 - who isn’t liable?

• Special Note: “employees” of nonprofit educational institutions.– Sec. 504(c)(2)

• requires court to remit statutory damages if you use good faith and reasonably believe that your use is fair use.

• understanding fair-use analysis may evidence “good faith” and “reasonable.”

• CAUTION: court may still award actual damages and attorney fees.

Sec. 108 - “Ground Rules”

• open to the public or available to outside researchers

• no purpose of direct or indirect commercial advantage

• each instance of copying is isolated from and unrelated to prior copying

• only one copy except three copies for preservation and replacement

Sec. 108 - “Ground Rules”

• “notice of copyright” on original or statement of copyright

• exclusions - no musical, sculptural, graphic, motion picture, or audiovisual works UNLESS…– solely for preservation or replacement– work in last 20 years (108(h))– audiovisual work “dealing with news”– graphic that is adjunct to work

Sec. 108(b) - Unpublished

• meet the “Ground Rules”• up to three copies• preservation & security or for

research in another library• in the collection of copying library• digital copy not otherwise distributed

in digital format or not made available to public “outside the premises” of library (huh???)

Sec. 108(c) - Published

• meet the “Ground Rules”• up to three copies• original “damaged, deteriorating,

lost or stolen” or obsolete format • “unused replacement” not available

at “fair price” (“reasonable effort”)• digital copy not made available to

public “outside the premises” of library “in lawful possession” of it (ouch!!!)

Sec. 108(h) - Last 20 years

• meet the “Ground Rules”• within last 20 years of protection• copy, display, or performance for

preservation, scholarship, or researchUNLESS “reasonable investigation” shows that work is…– subject to “normal commercial

exploitation”– available at a reasonable price ; or – notice that either of those conditions

apply to the work.

Contract - no Surprise?

• theory = “freedom to contract”– “meeting of the minds” reflected by

signature and assumed by courts• enforcement @ state & common law

– copyright & patent is federal only – defines legal & practical relationships

• embodies “mutual promises”• allocates “benefits and burdens”• memorializes “agreement”• enforced between “parties” (mostly)• “parol evidence” =“four corners” of K

contracts and IP

• IP law creates “rights” & contract “licenses” them between parties

• the Practical questions…– what do you want to accomplish?– for how long?– at what cost?

• the Contract questions…– who wants what?– who needs what?– who holds what?

a checklist of sorts

• “recitals”?– what do parties want to accomplish?– “whereas”… so yesterday, yesterday..– precatory language ≠ a “promise”

• parties?– identify all clearly and all need to sign

• subject matter - law & stuff…– law (copyright, patent, trademark?)– stuff (what is the focus of the K?)– CAVEAT: confidentiality is important to

some IP and other contracts.

a checklist of sorts

• ownership of IP?– us or them? “bundle of rights”– physical custody of originals & copies– enforcement of IP rights

• revisions of K or subject matter?– how, who, when, why (where)?– in writing or by notice?– who controls and who gets credit?

• duration of contract?– fixed or renewable?– enforcement after expiration?

a checklist of sorts

• costs?– “milestones”?

• liabilities?– shifting strategies…

• “indemnification”• “hold harmless”

• “representations and warranties”?– can you verify those facts and are you

willing to incur costs of violations?– limits for “unforeseeable damages”?

a checklist of sorts

• enforcement– what about “breach”?

• termination or period to “cure”?• when or how cured?• who decides?

– Uni or bilateral decision making?• who has best information or opportunity?

• any excuses?– force majeure and other reasons?

• “mitigation” of damages?• are you willing to file suit?

a summary of sorts

• mean what you say– “legalese” has a place but sparingly– lawyering IS “interpretation”…

• say what you mean– signature constitute agreement – if you don’t agree, don’t sign...

• read what you sign… and Keep it.– always keep a copy of the contract and

wear a hat when its cold….