Copyright Infringement Instructor: Lissa M. Rackley 1

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Internet Law 101Copyright Infringement

Instructor: Lissa M. Rackley

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This course is designed to easily explain the 17 U.S.C. which is more commonly known as the Copyright Act. In this web class we will cover what defines a work that can be copyrighted, what copies of said work is considered infringement, exclusive rights of authors, limitations on exclusive rights for computer programs (i.e. machine maintenance and repair), remedies for infringement and to help better understand we will discuss the case of Cartoon Network versus CSC Holdings, Inc. and Cablevision Systems Corporation. The link to said case is included here:

http://scholar.google.com/scholar_case?case=13763893657469687275&q=536+F.3d+121

This course is the first of a 5 part series with a focus on Internet Law so please enjoy and learn! I am always but an email away for any questions about my courses!

Course Summary

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17 U.S.C § 101-1302 The Cartoon Network LP, LLLP vs. CSC Holdings

536 F. 3d 121 (2008)

References

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Section 1: Introduction to Internet Law Section 2: 17 U.S.C § 101-106 Section 3: Cartoon Network vs CSC Holdings Section 4: 17 U.S.C. § 107-1302 Conclusion

Course Outline

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“Ignorantia juris non excusat”

Translated: “Ignorance of the law does not excuse”

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Internet law is a domain that covers various areas of law and regulations. In this broad term you will encounter topics such as: internet access and usage, privacy, freedom of expression and jurisdiction.

Areas of law: ◦ Intellectual Property (copyright, rules on fair use, copyright

protection for digital media)◦ Regulations on the uses to which computers and computer

networks may access◦ Data Privacy◦ Spam

Section 1: Introduction to Internet Law

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Areas of law continued:◦Governing Trade ◦ Taxation ◦Consumer Protection and Advertising

Laws on Censorship ◦How and if the public can access certain government

information ◦What individual information is allowed to be held by

private entities ◦What data is considered private and what can be

retained by law enforcement


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As technology has advanced the United States has equally advanced with the establishment of laws and regulations for this cyber age:◦Copyright Act◦ Trespass/Computer Fraud Act ◦ Trademark and Domain names ◦ Laws that regulate privacy


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Section 2: 17 U.S.C § 101-106

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§ 101: ◦Copies are material objects…in which a work is fixed by

any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine.

◦Copyright owner, with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right.

◦A work is created when it is fixed in a copy…for the first time; where a work is prepared over a period of time, and where the work has been prepared in different versions, each version constitutes a separate work.

Section 2: 17 U.S.C § 101-106

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§ 101: ◦ A derivative work is a work based upon one or more

preexisting such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted.

◦ Publication is the distribution of copies…of a work to the public by sale or other transfer of ownership. The offering to distribute copies…to a group of persons for purposes of further distribution.

◦ The author’s widow…is the author’s surviving spouse under the law of the author’s domicile at the time of death.

Section 2: 17 U.S.C § 101-106

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§ 102: Subject matter copyright◦Copyright protection subsists, in accordance with this

title, in original works of authorship fixed in any tangible medium of expression…from which they can be perceived, reproduced…either directly or with the aid of a machine.

§ 105: Subject matter of copyright: United States Government Works ◦ This section explains that the protection under this law is

not available for any work of the United States Government.

Section 2: 17 U.S.C § 101-106

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§ 106: Exclusive rights in copyrighted works ◦ The owner of the copyright under this title has the

exclusive rights to do and to authorize any of the following: To reproduce the copyrighted work in copies; To prepare derivative works based upon the copyrighted work; To distribute copies…of the copyrighted work to the public by

sale or other transfer of ownership; In the case literary, musical, dramatic, and choreographic

works, pantomimes, and pictorial, graphic, or sculptural works…to display the copyrighted works publicly;

In the case of sound recordings, to perform, to perform the copyrighted work publicly by means of a digital audio transmission.

Section 2: 17 U.S.C § 101-106

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Section 3: Cartoon Network vs CSC Holdings

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This case was brought to the United States Court of Appeals on October 24, 2007 and ultimately decided on August 4, 2008.

In March 2006, Cablevision introduced a new system for cable users called Remote Storage Digital Video Recorder (RS-DVR). This system allowed customers who do not have a stand alone DVR to record cable programming on central drives housed by Cablevision.


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Cablevision notified its providers about the new system to be put into place but they did not seek a license from the providers in order for them to operate or sell the RS-DVR.

Cartoon Network then decided to sue Cablevision for declaratory and injunctive relief. Cartoon Network alleged that Cablevision’s proposed operation of the DVR would directly infringe on their exclusive rights to both reproduce and publicly perform their copyrighted works; and that it was a direct infringement.


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§ 106 as we reviewed in section 2 grants the copyright holder exclusive rights. The rights that are of concern in this case are: the right to reproduce the copyright work in copies and the right to perform the copyrighted work publicly.

The District Court found that Cablevision infringed the right of reproducing copies by buffering the data from its programming stream and copying content onto the Arroyo server hard disks in order to enable playback of a program requested by a customer.


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Process of buffering the data: ◦Cablevision takes the content from one stream of

programming◦ Then they store it one small piece at a time

By buffering the data, does Cablevision reproduce the work in copies per § 106 and thereby infringes the copyright holders reproduction right?


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Let’s review the definition once again: ◦ § 106: gives exclusive rights to the copyright holders and

those include (1) to reproduce the copyrighted work in copies.

Now, data in the buffer can be reformatted and transmitted to the other components of the DVR; data in the primary ingest buffer can be copies onto the Arroyo hard disks IF a user has requested a recording of that data. Thus a works embodiment in either buffer is sufficiently permanent to permit it to be reproduced.


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Does any such embodiment last for a period of more than a transitory duration? No it does not.

The data only remains in the buffer for less than 1.2 seconds. Since these works are in the buffer for such a brief amount of time it is not considered an infringement per the copy definition of § 106.


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Does the conduct caused by the copying of work infringe Cartoon Network copyright? ◦After the subscriber selects a program to record a copy

of the program resides on the hard disks of the server and this creation is not authorized by the copyright holder. But, who made this copy?

The District Court in this case made the mistake of considering Cablevision as a direct infringer rather that a contributory infringer.


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Direct infringement is defined as someone who actively induces infringement.

Contributory infringement is someone who is not directly infringing but is making contributions to the infringing act of others.

Each DVR playback transmission is made to a single subscriber using a single unique copy produced by the customer, the appeals court concluded that such transmissions are not performances to the public and the person who copies is the customer. Therefore Cablevision does not infringe any exclusive rights of the copyright holder Cartoon Network in terms of publicly performing the work.


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Cablevision has not control over what programs are made available or when they will air and they possess far less control over recordable content but they simply provide the paying subscriber access to the material they want, Cablevision does not directly infringe the copyrighted work by making copies because as was stated previously, the subscriber is the one who physically makes and demands that copy to made after the pay for that service.


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Section 4: 17 U.S.C § 107-1302

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§ 107: Limitations on exclusive rights ◦What is NOT considered infringement: ◦ The reproduction in copies for purposes such as

commentary, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.

§ 108: Limitations on exclusive rights: Reproduction by libraries and archives ◦As this explains, it also NOT considered an infringement

for a library or archives, or any of their employees acting within the scope of their employment, to reproduce no more than one copy of a work.

Section 4: 17 U.S.C § 107-1302

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§ 111: Limitations of exclusive rights: secondary transmission of broadcast programming by cable◦ It is not considered infringement when: the secondary

transmission in not made by a cable system provider and is relaying by the management of a hotel, is made by a carrier who has no direct or indirect control over the content, is made by a satellite provider with license to do so or made by a governmental body or nonprofit organization.

Section 4: 17 U.S.C § 107-1302

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§ 114: Scope of exclusive rights in sound recordings◦ The exclusive rights of the owner of the copyright in a

sound recording are limited to the rights specified by the following:

◦ To reproduce the copyrighted work in copies;◦ To prepare derivative works based upon the copyrighted

work;◦ To distribute copies…of the copyrighted work to the

public by sale or other transfer of ownership. (§ 106 )

Section 4: 17 U.S.C § 107-1302

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§ 115: Scope of exclusive rights in non dramatic works◦ In the case of nondramatic musical works…are subject to

compulsory licensing under conditions specified in this section like the following:

◦Scope of compulsory licensing◦Royalty payments are entitled under compulsory license

§ 117: Limitations on exclusive rights: Computer programs ◦ It is NOT infringement for the owner of a copy of a

computer program to make or authorize the making of another copy of that computer program.

Section 4: 17 U.S.C § 107-1302

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§ 117 (cont.): When machine maintenance or repair is being performed it is not infringement for the owner or lessee of a machine to make or authorize the making of a copy of a computer program if such a copy is made solely by virtue of the activation of a machine that lawfully contains an authorized copy…for purposes of maintenance of that computer if:◦Such a new copy is used in no other manner and is

destroyed immediately after maintenance is complete

Section 4: 17 U.S.C § 107-1302

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§ 119: Limitations on exclusive rights: secondary transmissions of distant television programming by satellite◦ In general, secondary transmissions of a performance or

work that is made by a satellite carrier to the public for private home viewing is subject to statutory licensing but is not considered infringement.

Section 4: 17 U.S.C § 107-1302

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Chapter 2: Copyright Ownership and Transfer § 201: Ownership ◦ Initial ownership: the creator of an original work. ◦ Works made for hire: the employer for whom the work was

prepared for is considered the author for purposes of this title. ◦ Contributions to collective works: copyright in each separate

contribution work is distinct form copyright in the collective work as a whole and vests initially in the author of the contribution.

Transfer of ownership: this can be transferred in whole or in part by any means and may be given by will.

Section 4: 17 U.S.C § 107-1302

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§ 202: Ownership of copyright as distinct from ownership of a material object ◦Ownership of a copyright is distinct from ownership of a

material object because the transfer of that material object does not itself convey any rights in the copyrighted work embodied in the object nor in the absence of an agreement, does not transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.

Section 4: 17 U.S.C § 107-1302

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Chapter 3: Duration of Copyright § 302: Duration of copyright◦Copyright in a work created on or after January 1, 1978

endures for a term consisting of the life of the author and 70 years after the author’s death.

§ 304: Duration of copyright: Subsisting copyrights◦Any copyright, the first term of which is subsisting on

January 1, 1978, shall endure for 28 years from the date it was originally secured.

Section 4: 17 U.S.C § 107-1302

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Chapter 4: Copyright Notice, Deposit and Registration

§ 409: Application for copyright registration◦Name and address of the copyright claimant◦ For work made for hire; a statement to this effect ◦ If the copyright claimant is not the author, a brief

statement of how the claimant obtained ownership◦ The title of the work◦ The year it was completed ◦When and if it was published and the year

Section 4: 17 U.S.C § 107-1302

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§ 411: Registration and civil infringement actions◦ No civil action for infringement shall be instituted until

preregistration or registration of copyright claim has been made. § 412: Registration as a prerequisite to certain remedies for

infringement◦ An action for infringement of the copyright of a work that has been

preregistered before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months before the first publication of the work or 1 month after the copyright owner has learned of the infringement, no award of damages shall be made for any infringement of an unpublished work before the effective date of registration or any infringement of copyright commenced after the first publication but before the effective date of registration.

Section 4: 17 U.S.C § 107-1302

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Chapter 5: Copyright Infringement and remedies § 501: Infringement of Copyright ◦Anyone who violates any of the exclusive rights of the

copyright owners as provided by § 106…is an infringer of the copyright.

◦ The legal owner of an exclusive right under a copyright is entitled to institute an action for any infringement of that particular right committed while he or she is the owner.

◦ For a secondary transmission by a cable system which is actionable as an act of infringement; a television station holding a copyright to transmit the work shall be treated a legal owner of the transmission.

Section 4: 17 U.S.C § 107-1302

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§ 502: Remedies for infringement: Injunctions◦ Any court having jurisdiction of a civil action arising under this

title can grant temporary and final injunction in order to prevent infringement of the copyright.

§ 503: Remedies for infringement: Impounding and disposition of infringing articles◦ While the action is pending the court may order the impounding

of copies claimed to have been in violation; of plates, molds, film negatives, records etc.

§ 504: Remedies for infringement: Damages and profits◦ An infringer is liable for the copyright owners damages and any

profits of the infringer and statutory damages.

Section 4: 17 U.S.C § 107-1302

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§ 505: Remedies for infringement: Costs and attorney’s fees◦ In a civil action the court at its discretion may allow the

recovery of full costs by or against any party. § 506: Criminal Offenses ◦Any person who willfully infringes a copyright shall be

punished if the infringement committed was: for purposes of commercial gain; the distribution earned a retail value of more than $1,000 or by distributing the work on a computer network making it accessible to members of the public.

Section 4: 17 U.S.C § 107-1302

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§ 507: Limitations on actions ◦ Criminal proceedings: No criminal proceeding shall be

maintained under the provision of this title unless it is commenced within 5 years after the cause of action arose.

◦ Civil action: No civil action shall be maintained under the provision of this title unless it is commenced within three years after the claim.

§ 512: Limitations on liability relating to material online◦ A service provider shall not be liable for monetary relief, for

injunction, for infringement of copyright by reason of the provider’s transmitting, routing or providing connections through a system controlled by the service provider if:

Section 4: 17 U.S.C § 107-1302

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§ 512 (cont.): ◦ (a) The transmission of the material was initiated by the

direction of a person other that the service provider; ◦ The transmission, routing or storage is carried out through

an automatic technical process without selection of the material by the service provider;

◦ The service provider does not select the recipients of the material except as an automatic response to the request of another person;

◦No copy of the material made by the service provider in the of course of such intermediate storage is maintained on the system in a manner ordinarily accessible to anyone.

Section 4: 17 U.S.C § 107-1302

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§ 512 (cont.): ◦ (b) System caching: A service provider shall not be liable for

monetary relief, for injunction, for infringement of copyright by reason of the provider’s transmitting, routing or providing connections through a system controlled by the service provider if:

◦ The material is made available online by a person other than the service provider; the material is transmitted from a person through the network to a person other than the person described previously at the direction of that other person or the storage is carried out through an automatic technical process for the purpose of making the material available to users of the system after the material is transmitted.

Section 4: 17 U.S.C § 107-1302

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§ 512 (cont.): ◦ (c) Information Residing on systems: A service provider shall

not be liable for monetary relief, for injunction, for infringement of copyright by reason of the provider’s transmitting, routing or providing connections through a system controlled by the service provider if: the service provider does not have knowledge that the material on the system is infringing; upon knowing the act is infringing takes action to remove or disable the material or did not receive financial benefit.

◦ (i) Conditions for Eligibility: the conditions shall apply if the service provider: informs subscribers and account holders of their policy for the termination of accounts who are repeat infringers and accommodates and does not interfere with standard technical measures.

Section 4: 17 U.S.C § 107-1302

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Chapter 6: Exportation of Infringed Goods § 602: Infringing importation or exportation ◦ Importation into the United States or exportation without

the authority of the copyright owner of work is considered infringement under this title.

Chapter 7: Copyright Office◦Specific to the regulations, forms to be filled in order to

gain copyright of the Copyright Office. Chapter 8: Proceedings by Copyright Royalty

Judges

Section 4: 17 U.S.C § 107-1302

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Chapter 9: Protection of semiconductor chip products § 901: Definitions ◦A semiconductor chip product is the final form of any product

having two or more layers of metallic, insulating, deposited a piece of semiconductor material in accordance with a predetermined pattern and intended to perform electronic circuitry function.

Chapter 10: Digital recording devices and media Chapter 11: Sound recordings and music Chapter 12: Copyright Protection and management

systems

Section 4: 17 U.S.C § 107-1302

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§ 1201: Circumvention of copyright protection systems ◦ (a) Violations regarding circumvention of technological

measures: No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

Chapter 13: Protection of Original Designs § 1301: Designs Protected ◦ The designer or owner of an original design of a useful

article which makes the article attractive to the purchasing may secure the protection provided by this chapter.

Section 4: 17 U.S.C § 107-1302

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§ 1302: Designs not subject to protection◦Protection under this chapter is not available if:

If the design is not original or A familiar symbol, pattern, shape, something common.

Section 4: 17 U.S.C § 107-1302

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In this course, Internet Law 101: Copyright Infringement we covered what is considered infringement of a copyright, definitions of copies which are one of the most common types of infringement committed, exclusive rights from authors of copyrighted work to widows and next of kin. Hopefully this course has helped to have a better grasp of this broad subject. If there are any questions about this course please feel free to contact me or catch me during my office hours!!!

Conclusion

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Next Course: Internet Law 101: Trespass/Computer Fraud and Abuse Act

Documents

Copyright Infringement Instructor: Lissa M. Rackley 1