Five Immutable Canons of Copyright

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Five Immutable Canons of Copyright Powered By Docstoc
					                                                                                                                                                                     InformationToday             17
                                                                                                                                                                November 2009

                                               several new standards that apply to
      Legal Issues                             search warrants for electronic files.                 Intellectual Property
(continued from page 15)                           First, the government must waive the

that they must “particularly describ(e)
the place to be searched and the persons
or things to be seized.”
                                               plain view doctrine in order to obtain a
                                               warrant. Second, the forensic analysis
                                               must be done by specialized computer
                                               personnel or an independent third party.
                                                                                               Five Immutable
    The legitimate challenge for the gov-
ernment in the case of computer records
is that “particular” records can often be
                                               The case investigators are not permitted
                                               to participate in the analysis; likewise,
                                               they are not allowed to see any “non-re-
                                                                                               Canons of Copyright
difficult to identify on a computer drive      sponsive” information obtained during                                                            of receiving protection. (In fact, in an odd
containing hundreds or thousands of            the analysis. Both of these conditions          by K. MATTHEW DAMES |                            twist, the validity of a work’s copyright sta-
records. In addition, records are often        limit the ability of government investi-                                                         tus typically is not challenged until the pre-

                                               gators to obtain and use information that               or better or worse, copyright law sumptive owner sues a defendant for in-
                                               is not “particular” to the search warrant.              is as important to the average fringement and the defendant raises lack
           More importantly,                       In the BALCO case, the government                   person as it ever has been. But it of copyrightability as an infringement
                                               outlined the legitimate challenges and          is not any easier to learn or figure out. In defense.) In contrast, a person seeking a
             the court issued                  risks of loss of computer information,          one way or another, I have been dealing patent or trademark must register the
                   strong new                  such as mislabeling and encryption.             with copyright issues for more                               work with USPTO. That agency
                                               However, because MLB, the MLBPA,                than 30 years. Yet I continue                                thoroughly reviews the patent
                 guidelines on                 and CDT were not subjects of the inves-         to get flummoxed by issues I                                 and trademark registrations
                the seizure of                 tigation, there was little actual risk of in-   have reviewed dozens of times.                               for compliance and potential
                                               formation loss in this particular case.             Despite the complicated                                  conflicts before granting the fi-
           electronic records                  The 9th Circuit now requires warrant            statutory scheme that con-                                   nal, certified, respective form of
               and data files.                 and subpoena applications to disclose the       tains our nation’s copyright                                 intellectual property.
                                               actual risk of information loss due to          law and much of the erroneous                                    But the lack of a registration
                                               these actions. The court can’t merely say       information that passes as in-                               requirement also contributes to
encrypted, password-protected,                 that there is a “possible” risk.                terpretation of it, there are                                the orphan works problem, in
or mislabeled (perhaps deliberately) to                                                        some concepts that retain              K. Matthew Dames      which works are presumed to
provide increased security or to avoid de-                                                     their consistency year after                                 be protected by copyright, but
tection. Finally, records may also be stored
                                               Jumping From Court to Court                     year. I teach these concepts as copyright’s for which an owner cannot be found after
remotely, where they may be commingled            The government must also disclose all        lasting rules, and they provide creators a reasonable investigation.
with the records of hundreds, thousands,       previous efforts (including those in other      and users of copyrighted works a level of            The second cause of copyright’s perva-
or hundreds of thousands of other people.      jurisdictions) to obtain the information        certainty in a field that currently tends siveness is due to a recent and stark ex-
   Previous court decisions have held          to avoid the government jumping from            to be vague and obtuse. Here are five top pansion in the types of works that qual-
that the government could physically or        court to court to try different angles in       copyright rules to remember:                     ify for copyright protection. Current U.S.
electronically seize computers, servers,       order to get the response it wants. Fi-                                                          law affords copyright protection to virtu-
hard drives, backup tapes, or other de-        nally, the court ordered that the govern-       Rule No. 1:                                      ally any work that meets the following re-
vices, if the devices have records that the    ment must destroy or return any data                                                             quirements: 1) it is original, and 2) it can
government is seeking. This is permitted       that was nonresponsive or not covered by        Copyright Is Ubiquitous                          be recorded in a way that others can rec-
to secure the information and allow the        the search warrant.                                 Without question, copyright is the ognize. This means virtually any original
government the opportunity to analyze             The impact of this ruling may be slow        easiest form of intellectual property for writing or recording likely qualifies for
the computer or drive forensically and         in being fully implemented. Because of          which a person can qualify; it is the eas- copyright protection, including writings
obtain the information it seeks.               jurisdictional rules, the court’s ruling is     iest form to maintain, and it lasts the to which we give little thought insofar as
                                               only binding on federal courts in western       longest. The pervasive nature of copy- copyright is concerned, such as emails,
                                               states. It is not binding on federal courts     right has several root causes, the first of mobile phone pictures, tweets, and even
In Plain View                                  outside the 9th Circuit or on state courts.     which is systemic. Of the major forms of snarky SMS missives.
    However, it is not uncommon for other      One commentator suggested that the 9th          federal intellectual property (copyright,            This was not always the case. Not only
information to be accessed in the process      Circuit was issuing these guidelines in         trademark, and patent), copyright is the has this increase widened the number
of looking for particular records. In the      its capacity as the “supervisor” to the         only form that vests automatically with- and types of works eligible for copyright
BALCO case, the government invoked a           lower courts and not issuing them be-           out federal agency examination, inspec- protection to include adaptations (the de-
legal concept known as “plain view” to         cause the Fourth Amendment required             tion, or validation. Under current U.S. rivative work has been codified into copy-
seize additional records showing positive      them, which could weaken their impact.          law, an author’s creation qualifies auto- right law only since 1978, the effective
steroid tests by other ballplayers. The        However, other commentators have ar-            matically for copyright protection once year of the current Copyright Act) but also
plain view doctrine provides that a police     gued that this decision may be persua-          the creation is original and “fixed in a new types of works that originally never
officer or government investigator may         sive on other courts dealing with warrant       tangible medium of expression” (or received copyright protection. For exam-
seize any evidence of criminality that is      requests for electronic records.                recorded in a way in which the work can ple, photos were not protected under
Description: For better or worse, copyright law is as important to the average person as it ever has been. But it is not any easier to learn or figure out. Despite the complicated statutory scheme that contains the US' copyright law and much of the erroneous information that passes as interpretation of it, there are some concepts that retain their consistency year after year. These concepts provide creators and users of copyrighted works a level of certainty in a field that currently tends to be vague and obtuse. Here are five top copyright rules to remember: 1. Copyright is ubiquitous. 2. The Copyright Act features more exceptions than rights. 3. Copyright is a divergence from the public domain. 4. The purpose of copyright is to encourage learning. 5. Contracts change everything.
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