TUTORIAL ON COPYRIGHT LAW

1. TUTORIAL ON COPYRIGHT LAW Based on materials prepared by Profs. Pamela Samuelson & David Post for the Computers Freedom & Privacy Conference, April 4, 2000 Edited and amended by Mike Godwin, CDT, for Stockholm ANW, June 2001

2. WHAT IS “INTELLECTUAL PROPERTY” (A.K.A. “IP”)? • Rights in commercially valuable information permitting owner to control market for products embodying the information • Copyrights for artistic & literary works (including software) • Patents for technological inventions (also including software)

3. WHAT IS “IP”? (2) • Trade secrets for commercially valuable secrets (e.g., source code, Coke formula) • Trademarks (e.g., Coca Cola, Coke) to protect consumers against confusion • Copyright and trademark law are the areas most likely to have international, civil-liberties significance on the Internet, and, of the two, copyright law is more likely to be significant than trademark law.

4. ELEMENTS OF ALL IP LAW • Subject matter to be protected • Qualifications for protection • Who can claim • Procedure for claiming • Substantive criteria • Set of exclusive rights (rights to exclude other people's uses of the IP) • Limitations on exclusive rights • Infringement standard • Set of remedies

5. ELEMENTS OF COPYRIGHT • Subject matter: works of authorship • E.g., literary works, musical works, pictorial works. NB: software is a “literary work” • Qualifications: • Who: the author (but in US, work for hire rule) • Procedure: rights attach automatically (but US authors must register to sue; remedies depend on regis.) • Criteria: “originality” (some creativity); [in US] works must also be “fixed” in some tangible medium

6. COPYRIGHT ELEMENTS (2) Set of exclusive rights (right to exclude others): • to reproduce work in copies, • to prepare derivative works, including translations • to distribute copies to the public, • to publicly perform or display the work, or communicate it to the public (broadcast) • “moral rights” of integrity & attribution • some rights to control acts of those who facilitate or contribute to others’ infringement (e.g., ISPs)

7. COPYRIGHT ELEMENTS (3) Limitations on exclusive rights: • Fair use (e.g., Sony Betamax, Acuff-Rose) in US • Fair dealing in UK and Canada • First sale (e.g., libraries, bookstores) • Library-archival copying (e.g., ILL, course reserves) • Classroom performances • Special inter-industry compulsory licenses (e.g., cable-network TV) • Other (e.g., playing radio in fast food joint) • Constructing functional item from an expressive work (e.g., building a bicycle from a design)

8. COPYRIGHT ELEMENTS (4) • Limitations on exclusive rights: duration • Berne standard: life + 50 years • EU & US: life + 70 years; 95 yrs from publication • Infringement standard: violating exclusive right (often copying of “expression” from protected work based on substantial similarity) • Remedies: injunctions, lost profits, infringers’ profits, “statutory damages,” costs, & sometimes attorney fees

9. “UNCOPYRIGHTABLE” STUFF • Ledger sheets and blank forms • Rules and recipes • White pages listings of telephone directories • Facts and theories (although particular expressions of facts or theories are copyrightable) • Ideas and principles • Methods of operation/processes

10. COMPILATIONS AND DERIVATIVE WORKS • Creativity in selection and arrangement of data or other elements = protectable compilation. (There has to be some small degree of creativity at the very least -- see, e.g., Feist v. Rural Telephone.) • Original expression added to preexisting work = protectable d/w (e.g., novel based on movie) • Compilation or derivative work copyright doesn’t extend to preexisting material (e.g., data or public domain play) • Use of infringing materials may invalidate copyright in compilation or derivative work

11. INTERNATIONAL TREATIES • Berne Convention for Protection of Literary & Artistic Works • Basic rule: “national treatment” (treat foreign nationals no worse than do own) • Berne has some minimum standards (duration, exclusive rights, no formalities) • WIPO administers treaties, hosts meetings to update, revise, or adopt new treaties

12. INTERNATIONAL TREATIES (2) • TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement • Sets minimum standards for seven classes of IPR, including copyright, that binds WTO members • Must have substantively adequate laws, as well as adequate remedies and procedures and must enforce effectively • Dispute resolution process now available

13. DIGITAL COMPLICATIONS • Digitized photographs of public domain works (e.g., Microsoft claims ownership in some) • Very easy to reselect and rearrange the data in databases; uncreative databases may be very valuable; EU has created a new form of IP right in contents of databases to deal with this. (New right is analogous to copyright, but not the same as copyright. Database protection can have civil-liberties, freedom-of-inquiry implications. May affect journalism, scholarship.)

14. DIGITAL COMPLICATIONS (2) • Digital environment lacks geographic boundaries • Very cheap and easy to make multiple copies and disseminate via networks • Very easy to digitally manipulate w/o detection

15. DIGITAL COMPLICATIONS (3) • Can’t access or use digital information without making copies. (U.S. courts began this analysis by stating that even ephemeral RAM or transmission copies are "copies" regulable under copyright law.) • New ways to appropriate information (e.g., Motorola violated the law by “stealing” data from NBA games for sports pager device)

16. DIGITAL COMPLICTIONS (4) • People see that much Internet information is free and expect it all to be (or nearly so). • Many people think that private copying doesn’t infringe copyright; much of industry disagrees. Some in industry would like to meter access to copyrighted works, so that all private use is for-pay.

17. DIGITAL COPYRIGHT CONTROVERSIES • Linking, framing • iCraveTV case • Cyberpatrol case - extracting list of sites • RIAA v. Diamond (Rio player case) • UMG Recordings v. MP3.com • Napster case • DeCSS cases

18. WIPO COPYRIGHT TREATY (1996) • Reproduction right applies to digital works (but no agreement on temporary copies) • Exclusive right to communicate digital works to the public by interactive service • Fair use and other exceptions can apply as appropriate; new exceptions OK • Merely providing facilities for communication not basis for liability

19. WIPO TREATY (2) • Tampering with copyright management information to enable or conceal infringement should be illegal • Need for “adequate protection” and “effective remedies” for circumvention of technical protection systems • Treaty not yet in effect, but US has ratified and implemented through DMCA; Canada has signed; EU has adopted a directive similar to DMCA (see Hugenholtz analysis/criticism).

20. DMCA • Digital Millennium Copyright Act (1998) • “Safe harbor” provisions for ISPs based on notice and takedown • Section 1201: anti-circumvention rules • Section 1202: false copyright management information(CMI)/removal of CMI

21. DMCA ANTI-CIRCUMVENTION RULES • WIPO treaty vague • Campbell-Boucher bill in US: proposed to outlaw circumvention of technological protection systems to enable copyright infringement • MPAA: wanted all circumvention outlawed • DMCA: illegal to circumvent an access control, 17 U.S.C. s. 1201(a)(1) • But 2-year moratorium; LOC study; 7 exceptions

22. EXCEPTIONS TO CIRCUMVENTION RULE • Legitimate law enforcement & national security purposes • Reverse engineering for interoperability • Encryption research and computer security testing • Privacy protection & parental control

23. ANTI-CIRCUMVENTION DEVICE PROVISIONS • Illegal to “manufacture, import, offer to public, provide or otherwise traffic” in • any “technology, product, service, device, [or] component” • if primarily designed or produced to circumvent technological protection systems, if only limited commercial purpose other than to circumvent technological protection systems, or if marketed for circumvention uses

24. MORE ON DEVICE RULES • 1201(a)(2)-- prohibits manufacture etc. of devices to circumvent effective access controls • 1201(b)(1)--prohibits manufacture etc. of devices to circumvent effective controls protecting right of cop. owners • Actual & statutory damages + injunctions • Felony provisions if willful & for profit

25. PROBLEMS WITH ACCESS/CIRCUMVENTION REGS • Existing exceptions overly narrow • No general purpose exception • Not clear that fair use circumvention is OK

26. MPAA v. REIMERDES • CSS is effective access control for DVDs • DeCSS circumvents it & has no other commercially significant purpose • Injunction vs. posting of DeCSS on websites or otherwise making it available

27. DVD-CCA v. McLAUGHLIN • Trade-secret misappropriation case (actually, a copyright case presented as if a trade-secret case). • CSS = proprietary information; DVD-CCA took reasonable steps to maintain secret • Inference: someone must have violated clickwrap license forbidding reverse engineering • Breach of agreement was improper means • Even though DeCSS on web for 4 months, not to enjoin would encourage posting trade secret on Web

28. DIGRESSION: ELEMENTS OF TRADE-SECRET LAW • Information that can be used in business that is sufficiently valuable & secret as to afford an economic advantage to the holder • Outgrowth of unfair competition law • No “exclusive rights” as such, but protected vs. use of improper means & breach of confidence • Independent development & reverse engineering are legitimate ways to acquire a trade secret • Relief generally limited to period in which independent development would have occurred

29. IMPLICATIONS OF DVD-CCA • Anti-reverse engineering clauses are common in software licenses; enforceability much debated • Judge treat information obtained through alleged reverse engineering as trade secret • Johansen didn’t reverse engineer, nor did many posters, yet held as trade secret misappropriators • Judge enjoined information that had been public for several months may be error

30. CONCLUSION • Digital technology has posed many difficult questions and problems for copyright law • Much remains in controversy; how current cases are resolved matters a lot • Possible to build balance into law, but US “selling” broad anti-circumvention rules. • Gap in perception about law between copyright industry and the public • Easier to see the risks than the opportunities