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"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;" - Constitution Section 8

The Basics

First, the basics. What is a copyright?

A copyright is a government created property right of limited duration [Duration of Copyright] for creative works. [Constitution] A copyright protects original creative works in fixed tangible form. [17 U.S.C. § 102(a)] It must be in tangible form - but tangible forms are very broad. These include such things as webpages, emails, blogs, and webcasts. Copyrights attached immediately upon creation.

Material does not need to be published and it does not need to have a copyright notice on it (although both add additional copyright benefits - note that material that is "published" is subject to mandatory deposit with the Library of Congress) [LOC 7d].

Not everything is covered: facts, ideas, procedures, and collections of information are not copyrightable. [17 U.S.C. § 102(b)] [LOC 31]. Databases are generally not copyrightable although if the data is arranged in a unique of specific way, that arrangement might be copyrightable.

A copyright is not a single right but rather is a bundle of several rights, each of which is unique. These are the rights to

  • reproduction,
  • derivative works,
  • distribution,
  • public performance,
  • public display, and
  • digital transmission of sound recordings.

The acquired right to utilize copyrighted material under one of these rights does not imply the right to use it under another (for example, purchasing a copy for home performance does not give the possessor the right to perform the material at a theater).

"Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to strengthen our copyright laws in all of the ways available to us. As you know, there is also Jack Valenti's proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress." Rep. Mary Bono Mack, Congressional Record (105th Congress, 2nd Session), Vol. 144,, No. 139, October 7, 1998, p. H9952. See Wikipedia.

Term: Copyrights last for the life of the author plus 70 years; [17 U.S.C. 302] [Eldred] after that the material in theory becomes a part of the public domain and may be used and copied freely.

Copyright notices are not required but are useful in preventing claims of innocent infringement and giving notice of the copyright owner. A proper copyright notice consists of (1) the symbol ©, (2) the year of first publication, and (3) the name of the owner of the copyright. The notice is to be positioned so as to "give reasonable notice of the claim of copyright" which as a matter of custom has come to be the little bitty fine print on the bottom of webpages. Copyright owners may use copyright notices without permission from or interaction with the Copyright Office. [LOC 4]

Enforcement

In order to establish a case of copyright infringement, a party must establish two things: (1) that the party owns the copyright in the first place and (2) that one of the above described rights has been infringed. A party can make a case for direct (courts have generally found that, where ISPs act passively as conduits for content created by third parties, they cannot be held liable for direct copyright infringement) [Netcom], vicarious, or contributory infringement [Harlan]. Before a lawsuit based on infringement can be initiated, the copyright must be registered with the Copyright Office at the Library of Congress. [Enforcement] An Internet service, that might otherwise be held liable under copyright law, may be protected from liability pursuant to the Digital Millennium Copyright Act.

Violations of copyright law are also enforced by the Computer Crime and Intellectual Property Section of the Department of Justice. [17 U.S.C. § 506(a) ; 18 U.S.C. § 2319]

Public Domain

"The public domain is not a place. A work of authorship is in the "public domain" if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner." LOC FAQs Definitions

U.S. Government Copyrights (Public Domain)

Steal government works (just like this website does)! US Government works are in the public domain; the feds cannot prohibit you from copying government created works. [17 U.S.C. § 105]. Think of it this way. In a government of the people and for the people, the content created is the people's. Democracy is benefited when government material is widely disseminated. Thus, if the government has produce material of interest or use to you, take it, use it, be happy (but be careful, I said copyright, not trademark - certain agencies do not take kindly of unauthorized or counterfeit uses of their seals or other trademarks. You cannot, for example, use the seal of the Department of Veterans Affairs without the permission of the Secretary of the Department - also, note that it is government content that is not copyrighted; the government may be using third party sources that is copyrighted.).

Note, however, there is some stuff you should not swipe. First, just because it is published by the government on a website or in a report does not mean it was created by the government and therefore in the public domain; a lot of graphics and other material used by the feds are licensed from private copyright owners and remain under copyright protection - of course, the trick is, how do you know. Second, badges, identification cards, and insignia may not be copied. [18 USC s 701]

Laws

  • Constitution, Article 1, Section 8.
  • 17 U.S.C. § 102(a).
  • 17 U.S.C. § 302. The Constitution gave Congress the ability to create copyrights for a limited time. The idea was that it is vital for a democracy and also for commerce that, after that limited time, the work be release into the public domain. For example, the book Alice in Wonderland is currently in the public domain and has been published by several different publication houses. Not everyone things that life plus 70 years is a Constitutionally limited time. Current before the Supreme Court is litigation suggesting that such a copyright term is in fact excessive, unconstitutional, and should be reduced. Note that the term for works-for-hire is 95 years from first publication, or 120 years from creation, whichever expires first.
  • 17 U.S.C. Chapter 5 Copyright Infringement and Remedies.
  • See also First Sale Doctrine: A purchaser of a copy may resell or otherwise disposed of a copy (unless it is a recording or a computer software program)
  • 18 U.S.C. § 2319
  • See also the Fraudulent Online Identity Sanctions Act (criminalizing false WHOIS records)

Consumer Information

Caselaw

  • Eldred v. Ashcroft, No. 01-618 (S.Ct. Argued Oct. 9, 2002). (claim that copyright extension is unconstitutional fails, but Ginsburg reaffirms centrality of fair use in traditional copyright) Stanford Cyberlaw
  • New York Times, Inc. v. Tasini, No. 00-201 (S.Ct. June 25, 2001).  Free lance authors had written articles for inclusion in the New York Times.  New York Times uploaded those articles to an electronic database, LEXIS/NEXIS.  Authors sued arguing that the right to publish in the newspaper was not the same as the right to include the work in the electronic database.  The Supreme Court agreed.
  • A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001) (affirming in part and reversing in part injunction on defendant's MP3 file sharing service)
  • RIAA v. Diamond Multimedia Systems, Inc.,180 F.3d 1072 (9th Cir. 1999) "For the foregoing reasons, the Rio is not a digital audio recording device subject to the restrictions of the Audio Home Recording Act of 1992. The district court properly denied the motion for a preliminary injunction against the Rio's manufacture and distribution."
  • Recording Industry Association of America v. Diamond Multimedia Systems (9th Cir. 1999) (affirming that computers are exempt from payment pursuant to the Audio Home Recording Act - this Act imposed a 2% fee for DAT recordings payable to the Register of Copyrights).
  • Sega Enterprises v. MAPHIA , 857 F. Supp 679, 682 (N.D. California 1994) (defendant was a bulletin board that permitted the sharing of gaming software. The court found defendant guilty of contributory infringement).
  • MAI Systems Corp. v. Peak Computer, Inc . , 991 F.2nd 511, 518 (9th Cir 1993) (A computer repair person who was not a licensed owner of the computer, turned on the computer in order to check the error log. In so doing, the repair person loaded the system into RAM memory. According to the court, saving a copy of a work to RAM memory constituted a copy of the work.)
  • Playboy Enterprises, Inc. v. Frena , 839 F. Supp. 1552 (M.D. Fla, 1993) (bulletin board owner permitted for a fee individuals to upload pictures to bulletin board; those pictures included 170 Playboy photos. Court ruled that defendant infringed plaintiff's exclusive right to distribute and display the photographs)
  • Betamax Case,
  • Sony v. Universal City Studios (1984) (VCRs time shift)
  • Robert Hendrickson v. Ebay, Inc., et al., Case No. CV 01-0495 RJK (RNBx) (C.D. Cal. 2001) Discussion Phillips Nizer  Kent Law

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