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					                 Copyrights
• A copyright is a form of protection provided by
  the laws of the United States and most other
  countries to those who create what the law refers
  to as “original works of authorship”. It is, in
  essence, a grant of certain exclusive rights to
  authors in order to allow them commercially to
  exploit their works.
• Whether in digital form or in print, most
  information is automatically protected by
  copyright from the moment it is created.
                                                      1
                   Copyrights
              The Berne Convention

• The Berne Convention,
  – is the principle copyright treaty for the Protection of
    Literary and Artistic Works, which was signed by 114
    countries in July 1995.
  – was first adopted at Berne in 1886.
  – extends the protection of the countries‟ copyright law to
    foreigners whose works are infringed within the borders
    of their country.
    This protection must last for at least the life of the
    author plus 50 years, and must be automatic without the
    need for the author to take any legal steps to preserve
    the copyright.
                                                            2
                          Copyrights
                     Copyrightable Works

•   Literary Works : text-based works such as books, plays
•   Databases : collections of data
•   Characters : fictional characters such as Superman
•   Musical Works : words, music, musical instrument digital interface
    (MIDI)
•   Sound Recordings : copyrightable regardless of the nature of the
    sounds recorded.
•   Photographs and Still Images : advertisements, cartoons, charts, comic
    strips … (GIF images of any these items are also copyrightable)
•   Motion Pictures and Other Audiovisual Works : film, videogame…
•   Software
•   Compilations and Derivative Works : catalogs, directories, anthologies
    …
•   Multimedia Works                                                      3
                  Copyrights
              Uncopyrightable Works

• Pure data such as names, addresses
• Facts
• Ideas
• Works prepared by federal government officers
  and employees
• Federal statutes (the Copyright Act, for example)
  and regulations
• Words, phrases, and titles
                                                      4
                 Copyrights
              Copyright Infringement

• Anyone who violates any of the exclusive rights of
  a copyright owner is an infringer.
• Copyright infringement is determined without
  regard to the intent or the state of mind of the
  infringer. Even those who infringe a copyright
  innocently are liable to the copyright owner. The
  making of even a single unauthorised copy may
  constitute an infringement.
• A copyright owner can recover actual or, in some
  cases, statutory damages from an infringer.
                                                   5
                        Copyrights
                        Implied Licences

• An implied license is one which though not expressly
  given, may be presumed from the acts of the party having a
  right to give it.
   – E-mail messages: By sending the message, the sender arguably
     consents to the necessary copying.
   – When a user views a Web page, the content of the Web page is
     copied onto the RAM of the user‟s computer. Since this conduct
     constitutes making a „copy‟, and thus constitutes at least a
     technical copyright violation, it must be presumed that the author
     who posted material on the Web site granted an implied license to
     make such copies.


                                                                                6
                                     http://legal-dictionary.thefreedictionary.com/License
                    Copyrights
                     Public Domain


• Copyrightable information is in the public
  domain generally only if,
  – The original copyright has expired (Copyright
    protection lasts for the life of the author plus 50 years)
  – The copyright has been abandoned by the
    copyright holder, or
  – The work was created by the federal
    government

                                                                 7
                   Copyrights
                  First-Sale Doctrine

• The Copyright Act gives the copyright owner the
  exclusive right to distribute the copyrighted work.
  After the copyright owner has sold a particular
  copy of the work (i.e. made the „first sale‟ of that
  copy), it has no right to control further disposition
  of that copy by the purchaser. This principle is
  known as the first-sale doctrine.



                                                          8
                        Copyrights
                              Fair Use

• The "fair use" of a copyrighted work, including use for
  purposes such as criticism, comment, news reporting,
  teaching, scholarship, or research, is not an infringement of
  copyright. Copyright owners are, by law, deemed to
  consent to fair use of their works by others. The Copyright
  Act does not define fair use. Instead, whether a use is fair
  use is determined by balancing these factors:
   – The purpose and character of the use.
   – The nature of the copyrighted work.
   – The amount and substantiality of the portion used in relation to the
     copyrighted work as a whole.
   – The effect of the use on the potential market for, or value of, the
     copyrighted work.
                                                                               9
                                   http://profs.lp.findlaw.com/copyright/copyright_6.html
                     Copyrights
                          Fair Use

The purpose and character of the use:
Courts consider two factors:
a) Whether the copying is for a noncommercial use, as opposed to
    a commercial purpose
b) Whether the copying involves a transformative use of the
    original
    The transformative use is one in which the copied material is
    incorporated into another work that has a different purpose or
    different character from that of the original, such as work that
    adds new expression, meaning, or message to the material
    copied from the original work. Copying in an attempt to
    duplicate the original and multiply the number of copies is not
    transformative use

                                                                   10
                             Copyrights
                                   Fair Use

•     Purpose and character of use:
        – Infinity Broadcasting Corp. v. Kirkwood (1998): where the courts
        concluded that retransmission of radio broadcast over telephone lines was
        not deemed transformative;
     Worldwide Church of God v. Philadelphia Church of God (2000): where
    the courts noted that copying a religious book to create a new book for
    use by a different church was not transformative;
     Nunez V. Caribbean International News Corp. (2000): Copying a
    photograph that was intended for use in a modelling portfolio and using it
    instead in a news article was deemed transformative by the courts. The
    use of a photograph in the newspaper transformed it into news, thereby
    creating a new meaning or purpose for the work.




                                                                              11
                       Transforming news articles into art
                       Sarah Lucas (Shine On 1991)
                       – Tate Modern Museum




“Love Letters
Building” in Berlin

                                              BBC news article




                      @cooey


                                                           12
                      Copyrights
                           Fair Use

• Purpose and character of use:
Sony Computer Entertainment America Inc. v. Bleem (2000):
Bleem‟s use of „screen shots‟ from Sony in Bleem‟s
advertisement was fair use as it increased purchasing public‟s
knowledge whilst Sony incurred very little loss of integrity.




                                                                 13
                      Copyrights
                           Fair Use

• Purpose and character of use:
 Los  Angeles News Serv. v. Reuters Television Int'l Ltd.. 149 F.3d
 987 (9th Cir. 1998): rejecting the fair use defence where
 television news agencies copied copyrighted news footage and
 retransmitted it to news organizations
 Basic  Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522,
 1530-31 (S.D.N.Y. 1991) see generally Leval, supra, at 1111:
 repetition of copyrighted material that "merely repackages or
 republishes the original" is unlikely to be deemed a fair use.




                                                                  14
            Copyrights
                Fair Use

The nature of the copyrighted work:
Courts consider two factors:
a) Whether the copyrighted work is
   published or unpublished
b) Whether the copyrighted work is factual
   or creative.


                                         15
                      Copyrights
                           Fair Use

The amount and substantiality of the portion used:
The greater the portion of a work that is copied, the less likely it is
that the copying will be considered fair use.
In 1984, the Supreme Court recognised that videotaping of television
programs for home use was not transformative and took the entirety of
the copyrighted works, and acknowledged that these facts argued
against a finding of fair use. However, the Court justified a finding of
fair use by the fact that the copying,
      1) was private
      2) was noncommercial
     3) was done to permit the consumer one viewing at a convenient
hour of copyrighted material that was offered to him free of charge
     4) caused no appreciable loss of revenue to the copyright owner
                                                                      16
               Copyrights
                   Fair Use

The effect of the use on the potential market
for the copyrighted work:
If copying a portion of another‟s copyrighted
work has no demonstrable effect upon the
potential market for, or the value of, the
copyrighted work, it may be considered a fair use.



                                                 17
                     Copyrights
                 Type of Permissions

• Assignment: You give up the ownership of
  copyright. E.g. the sale of a house
• Licence: You temporarily transfer your rights but
  retain the ownership of copyright. E.g. leasing a
  house
   – Exclusive licence: Only the licencee has the right to use
     the work in the ways specified in the licence.
     Everybody else, including the copyright owner is
     prevented using the work in those ways.
   – Non-exclusive licence: The copyright owner retains the
     right to use the work and may continue to grant similar
     licences to others who wish to use the work in the same 18
     way.
                            Copyrights
                               Case Study

  CopyMonsieur has recently asked Skippy the eco-warrior to produce a
  compilation of eco-poems, plays and paintings with environmental themes for
  the last century (1900-99). Skippy selects 3 poems of his mate Jim, who is an
  eco-poet of considerable standing. Skippy has also selected a play by Joe,
  who died 20 years ago, about environmental destruction of rain forests in the
  1960s. Skippy’s friend, Jenny, is happy for Skippy to use a TV documentary
  she produced, about the effect of motorway construction produced by Cynical
  TV, for his compilation. Jenny has also found the earliest novel on an
  ecological theme by her great grandfather, Jerry, who died about 90 years
  ago and Skippy will digitise the novel for his compilation as well.

Describe what kinds of licences and permission CopyMonsieur
will need from Skippy, Jim, Joe, Jenny and Jerry to comply with
                    the UK Copyright Laws.

                                                                             19
                          Copyrights
                             Case Study

  Describe the kinds of licences and permission CopyMonsieur will
 need from Skippy, Jim, Joe, Jenny and Jerry to comply with the UK
                           Copyright Laws.

•A licence from Jim and from Joe‟s estate (as he is now deceased)
allowing for the copying, performance and issue to the public of their
poems;
•An assignment (or exclusive licence) from Jenny in respect of the
compilation copyright and the material she has written;
•A licence from Cynical TV in respect of the broadcast; and
•An exclusive licence from Jim in respect of his live performance (this is
protected as a right in a performance, a right analogous to copyright).

                                                                             20
                     Copyrights:
Case Study – Plaintiffs:UMG Recordings, et.al. Defendant: Mp3.com

UMG Recordings, Inc and others (the Plaintiffs),
  record companies, have filed a lawsuit against
MP3.com (the Defendant) in the U.S. District Court
 for the Southern District of New York in May 4,
 2000. [UMG Recordings, Inc. v. MP3.Com Inc.]
  The Plaintiffs sought an injunction against the
  Defendant, MP3.com, as they have violated the
    copyrights of UMG Recordings and others.

                                                                            21
                        http://www.riaa.com/news/filings/pdf/mp3board/court_ruling.pdf
                     Copyrights:
Case Study – Plaintiffs:UMG Recordings, et.al. Defendant: Mp3.com
                          KEY FACTS


• On or around January 12, 2000, MP3.com
  launched its "My.MP3.com" service, which
  advertised that bona fide subscribers could store,
  customise, and listen to the recordings contained
  on their CDs from any place where they have an
  Internet connection. To make good on this offer,
  the Defendant purchased tens of thousands of
  popular CDs in which the Plaintiffs held the
  copyright, and, without authorization, copied their
  recordings onto its computer servers so as to be
  able to replay the recordings for its subscribers.
                                                                            22
                        http://www.riaa.com/news/filings/pdf/mp3board/court_ruling.pdf
                        Copyrights:
Case Study – Plaintiffs:UMG Recordings, et.al. Defendant: Mp3.com
                              KEY FACTS


• Specifically, in order to first access such a recording, a subscriber to
  MP3.com must either "prove" that he or she already owns the CD
  version of the recording by inserting his copy of the commercial CD
  into his computer CD-Rom drive for a few seconds (the "Beam-it
  Service") or must purchase the CD from one of the Defendant's
  cooperating online retailers (the "Instant Listening Service").
  Thereafter, however, the subscriber could access via the Internet from
  a computer anywhere in the world the copy of the Plaintiffs' recording
  made by the Defendant.
• Thus, although the Defendant seeks to portray its service as the
  "functional equivalent" of storing the CDs of the subscribers, in
  actuality the Defendant was re-playing for the subscribers, converted
  versions of the recordings it copied, without authorization, from the
  Plaintiffs' copyrighted CDs.

                                                                                23
                            http://www.riaa.com/news/filings/pdf/mp3board/court_ruling.pdf
                       Copyrights:
Case Study – Plaintiffs:UMG Recordings, et.al. Defendant: Mp3.com
                                RESULTS


• Defendants argue that such copying is protected by the
  affirmative defence of “fair use”. In analysing such a
  defence, the Copyright Act specifies four factors that must
  be considered:
   (1) the purpose and character of the use, including whether such use
      is of a commercial nature or is for nonprofit educational purposes;
   (2) the nature of the copyrighted work;
   (3) the amount and substantiality of the portion used in relation to the
      copyrighted work as a whole; and
   (4) the effect of the use upon the potential market for or value of the
      copyrighted work

                                                                                24
                            http://www.riaa.com/news/filings/pdf/mp3board/court_ruling.pdf
                         Copyrights:
Case Study – Plaintiffs:UMG Recordings, et.al. Defendant: Mp3.com
                                 RESULTS


• (1) The purpose and character of the use,
  including whether such use is of a commercial
  nature or is for nonprofit educational purposes:
   – The Defendant does not dispute that its purpose is commercial, for while
     subscribers to My.MP3.com are not currently charged a fee, defendant
     seeks to attract a sufficiently large subscription base to draw advertising
     and otherwise make a profit.
   – Here, although the Defendant recites that My.MP3.com provides a
     transformative "space shift" by which subscribers can enjoy the sound
     recordings contained on their CDs without lugging around the physical
     discs themselves, this is simply another way of saying that the
     unauthorized copies are being retransmitted in another medium -- an
     insufficient basis for any legitimate claim of transformation.


                                                                                 25
                             http://www.riaa.com/news/filings/pdf/mp3board/court_ruling.pdf
                       Copyrights:
Case Study – Plaintiffs:UMG Recordings, et.al. Defendant: Mp3.com
                              RESULTS


• (1) The purpose and character of the use,
  including whether such use is of a commercial
  nature or is for nonprofit educational purposes:
   – Here, the Defendant adds no new "new aesthetics, new insights
     and understandings" to the original music recordings it copies, but
     simply repackages those recordings to facilitate their transmission
     through another medium. While such services may be innovative,
     they are not transformative.




                                                                              26
                          http://www.riaa.com/news/filings/pdf/mp3board/court_ruling.pdf
                     Copyrights:
Case Study – Plaintiffs:UMG Recordings, et.al. Defendant: Mp3.com
                            RESULTS



• (2) The nature of the copyrighted work :
   – The creative recordings here being copied are
     "close to the core of intended copyright
     protection,“ and, conversely, far removed from
     the more factual or descriptive work more
     amenable to "fair use,“




                                                                            27
                        http://www.riaa.com/news/filings/pdf/mp3board/court_ruling.pdf
                     Copyrights:
Case Study – Plaintiffs:UMG Recordings, et.al. Defendant: Mp3.com
                            RESULTS



• (3) The amount and substantiality of the
  portion used in relation to the copyrighted
  work as a whole :
   – It is undisputed that defendant copies, and
     replays, the entirety of the copyrighted works
     here in issue, thus again negating any claim of
     fair use.


                                                                            28
                        http://www.riaa.com/news/filings/pdf/mp3board/court_ruling.pdf
                           Copyrights:
Case Study – Plaintiffs:UMG Recordings, et.al. Defendant: Mp3.com
                                   RESULTS


• (4) The effect of the use upon the potential market
  for or value of the copyrighted work:
   – It is the Defendant's activities on their face invade plaintiffs' statutory right
     to license their copyrighted sound recordings to others for reproduction.
   – The Defendant argues, its activities can only enhance plaintiffs' sales,
     since subscribers cannot gain access to particular recordings made
     available by MP3.com unless they have already "purchased" (actually or
     purportedly), or agreed to purchase, their own CD copies of those
     recordings.
   – However, any allegedly positive impact of defendant's activities on
     plaintiffs' prior market in no way frees defendant to usurp a further market
     that directly derives from reproduction of the plaintiffs' copyrighted
     works.


                                                                                   29
                               http://www.riaa.com/news/filings/pdf/mp3board/court_ruling.pdf
                         Copyrights:
Case Study – Plaintiffs:UMG Recordings, et.al. Defendant: Mp3.com
                                 RESULTS


• A partial summary judgment of the Court held that the Defendant has
  infringed the Plaintiffs' copyrights on the CDs. The court rejected the
  Defendant's argument that this was a fair use of the Plaintiffs' sound
  recordings. In reaching this conclusion, the court “held that
    – The Defendant's use was commercial (the Defendant intended to sell
      advertising on its site once it had adequate user traffic) and not
      transformative, the protected work was close to the core of those
      intended to receive copyright protection (repetition of copyrighted
      material that "merely repackages or republishes the original" is
      unlikely to be deemed a “fair use”), the Defendant had copied
      virtually all of the Plaintiffs' works and by its actions, adversely
      impacted the Plaintiffs' ability to license their works in this fashion.



                                                                                 30
                             http://www.riaa.com/news/filings/pdf/mp3board/court_ruling.pdf
   Online Service Agreements
• An online contract is a contract
  created wholly or in part through
  communications over computer
  networks.
• Assent by either words or
  conduct is mandatory.

                                      31
Online Service Agreements
    Shrink Wrap Licences:

               • Shrinkwrap used in the
                 licensing of tangible forms of
                 software sold in packages.
               • Frequently, such packaging
                 states that software use is
                 subject to the terms of an
                 enclosed license agreement that
                 permits buyers objecting to
                 such terms to return the
                 software for a refund. Many
                 courts have found that using
                 and failing to return such
                 software are sufficient acts of
                 assent to bind the user to the
                 license terms.
                                              32
Online Service Agreements
     Click Wrap Licences:

               •   In the case of a shrinkwrap
                   licence the user has to break a seal
                   that is on the clear packaging of a
                   software product he ore she has
                   bought in order to access the
                   contents of the package. Once the
                   seal is broken the user is expected
                   to use the enclosed computer
                   program after encountering notice
                   of the existence of governing
                   license terms. The 2nd Circuit
                   Court noted that the breaking of the
                   seal is regarded by „some courts to
                   constitute assent to those terms in
                   the context of tangible software‟
                   and the Court cited the 7th Circuit
                   Court earlier.
                                                     33
Online Service Agreements
     Click Wrap Licences:
              •   The term clickwrap, a kind of online
                  software licence agreement, has
                  evolved from the term shrinkwrap
                  used in the licensing of tangible
                  forms of software sold in packages.

              •   Clickwrap is essentially an icon on a
                  web page which is used to present “
                  the user with a message on his or her
                  computer screen, requiring that the
                  user manifest his or her assent to the
                  terms of the license agreement by
                  clicking on an icon. The product
                  cannot be obtained or used unless and
                  until the icon is clicked."


                                                     34
Online Service Agreements
     Click Wrap Licences:

               • Therefore by analogy, clicking
                 on a web-page's clickwrap
                 button after receiving notice of
                 the existence of license terms
                 has been held by some courts to
                 manifest an Internet user's
                 assent to terms governing the
                 use of downloadable intangible
                 software, see, e.g., Hotmail
                 Corp. v. Van$ Money Pie Inc.,
                 47 U.S.P.Q.2d 1020, 1025
                 (N.D. Cal. 1998).


                                               35
   Click Wrap Licences:
Specht and others v Netscape & AOL
                     SmartDownload is a program
                     that makes it easier for its users
                     to download files from the
                     Internet

                     The plaintiffs clicked the
                     “Download” box to obtain the
                     software and proceeded to
                     download the software on to the
                     hard drives of their computers.

                     No reference to license terms
                     appeared at the "Download" box.


                                                 36
   Click Wrap Licences:
Specht and others v Netscape & AOL
                       The sole reference on this
                       page to the License
                       Agreement appears in text
                       that is visible only if a visitor
                       scrolls down through the
                       page to the next screen.

                       The plaintiffs alleged that
                       the defendant invaded the
                       plaintiffs’ privacy by secretly
                       disseminating personal
                       information when the
                       plaintiff used the software
                       supplied by the defendant
                       SmartDownload
                                                  37
            Click Wrap Licences:
        Specht and others v Netscape & AOL

Court concluded that:
• plaintiffs neither received reasonable notice of the
  existence of the licence terms nor manifested
  unambiguous assent to those terms before acting on
  the webpage‟s invitation to download the plug-in
  program;




                                                         38
               Click Wrap Licences:
         Specht and others v Netscape & AOL

Court concluded that:
• plaintiffs‟ claim relating to the plug-in program is not subject
  to a separate arbitration contained in licence terms governing
  use of Netscape owned by Netscape Comms. Corp;

                           Arbitration: It is a process in
                           which one or more arbitrators hear
                           evidence from the parties to a
                           dispute and then issue an "Award"
                           that decides who gets what.

                                                                                             39
                                    http://law.freeadvice.com/litigation/arbitration/arbitration_defined.htm
               Click Wrap Licences:
         Specht and others v Netscape & AOL

Court concluded that:
• the legal doctrine that requires nonsignatories to an arbitration
  agreement to arbitrate when they have received a direct benefit
  under a contract containing the arbitration agreement does not
  apply to a website owner who allegedly benefited when users
  employing the plug-in program downloaded files from the
  website.
 Arbitration Agreement:It is a written contract in
 which two or more parties agree to use arbitration, instead
 of the courts, to decide certain disputes.

                                                                                              40
                                  http://law.freeadvice.com/litigation/arbitration/agreement_arbitration.htm
      Click Wrap Licences:
Case Study – Plaintiff:Register.com Defendant: Verio Inc.

   Register.com (the Plaintiff), a registrar of Internet
 domain names, has filed a lawsuit against Verio, Inc
    (the Defendant), which is a provider of Internet
  services, in the U.S. District Court for the Southern
      District of New York in December 12, 2000.
            [Register.com, Inc. v. Verio, Inc.]
     The Plaintiff sought an injunction against the
 Defendant, Verio Inc, as they have violated the terms
of use, Service Agreement, trademark of Register.com.


          http://www.icann.org/registrars/register.com-verio/order-08dec00.htm
                                                                      41
          http://www.spamseminar.com/materials/register-verio.html

				
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