Abstract
In general terms, copyright provides an author with a tool to protect a work from being taken, used, and exploited by others without permission.1 The owner of a copyrighted work has the exclusive right to reproduce it, prepare derivative works based upon it, distribute copies by sale or other transfer of ownership, to perform and display it publicly, and to authorize others to do so.2
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References
See Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 359–60, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) (rejecting argument that effort expended on creating a publication, in this case a directory, can translate into copyright protection).
See West Publ. Co. v. Mead Data Central, Inc., 799 F.2d 1219, 1226–27 (8th Cir. 1986), cert, denied, 479 U.S. 1070, 107 S.Ct. 962 (1987) (West’s arrangement of legal decisions entails enough intellectual labor and originality to receive copyright protection)
See Grand Upright Music, Ltd. v. Warner Bros. Records, Inc., 780 F.Supp. 182 (S.D.N.Y. 1991) (use of digitized sample in song may infringe copyright).
This argument is made by the plaintiffs in Religious Technology Center v. Netcom On-Line Communication Services, No. C-95-20091 RMW (N.D. Cal. filed Feb. 8, 1995).
Notably, the U.S. Court of Appeals for the Ninth Circuit, has decided that a copy of a computer program loaded into RAM is “fixed” for purposes of copyright protection. MAI Sys. Corp. v. Peak Computer, 991 F.2d 511, 518–19 (9th Cir. 1993), cert. denied, 114 S.Ct. 671 (1994); see also, Advanced Computer Sews. v. MAI Sys. Corp., 845 F.Supp. 356, 362–64 (E.D. Va. 1994).
See Tasini v. New York Times Co., 93 Civ. 8678 (S.D.N.Y. filed Dec. 16, 1993) (suit by freelance writers over reproduction of articles on online services without consent).
See Religious Technology Center v. Netcom On-Line Communication Serv., 907 F.Supp. 1361 (N.D. Cal. 1995) (“Where works contain copyright notices within them, it is hard to argue that a defendant did not know the works were copyrighted.”)
17 U.S.C. § 504(c).
Ibid. § 410(c).
Ibid. § 412(2).
Ibid. § 407(a).
Ibid. § 501(a).
Ibid. § 106.
Sid & Marty Krofft Television Prods, v. McDonald’s Corp., 562 F.2d 1157, 1162 (9th Cir. 1977).
See Costello Publ. Co. v. Rotelle, 670 F.2d 1035,1044 (D.C. Cir. 1981).
Playboy Enters, v. Frena, 839 F.Supp. 1552, 1559 (M.D. Fla. 1993) (there are indications in the trademark part of the opinion, however, that the system operator was not an innocent third party without a hand in what was going on); see also, D.C. Comics Inc. v. Mini Gift Shop, 912 F.2d 29, 35 (2d Cir. 1990) (“[A] finding of innocent infringement does not absolve the defendant of liability under the Copyright Act...The reduction of statutory damages for innocent infringement requires an inquiry into the defendant’s state of mind to determine whether he or she ‘was not aware and had no reason to believe that his or her acts constituted an infringement’ “).
Religious Technology Center v. Netcom On-Line Communication Sew., 907 F.Supp. 1361 (N.D. Cal. 1995).
Ibid.
Though this is relevant to a criminal copyright infringement prosecution. See 17 U.S.C. § 506(a); United States v. LaMacchia, 871 F.Supp. 535, 541–42 (D. Mass. 1994).
Sega Enters, v. MAPHIA, 857 F.Supp. 679 (N.D. Cal. 1994).
See Sony Corp. v. Universal City Studios, 464 U.S. 417, 435, 78 L.Ed.2d 574, 104 S.Ct. 774 (1984)
See Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971).
See Apple Computer, Inc. v. Microsoft Corp., 821 F.Supp. 616, 625 (N.D. Cal. 1993), aff’d in part and rev’d in part, 35 F.3d 1435 (9th Cir. 1994), cert. denied, 130 L.Ed.2d 1129, 115 S.Ct. 1176 (1995); Demetriades v. Kaufmann, 690 F.Supp. 289, 294 (S.D.N.Y. 1988).
Religious Technology Center v. Netcom On-Line Communication Sew., 907 F.Supp. 1361 (N.D. Cal. 1995).
Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 306 (2d Cir. 1963) (copyright infringement action against owner of department store chain where concessionaire was selling counterfeit phonograph records); Religious Technology Center v. Netcom On-Line Communication Sew., 907 F.Supp. 1361 (N.D. Cal. 1995).
Religious Technology Center v. Netcom On-Line Communication Serv., 907 F.Supp. 1361 (N.D. Cal. 1995).
Cf., Fonovisa, Inc. v. Cherry Auction, Inc., No. 94–15717 (9th Cir. Jan. 25, 1996) (sufficient allegation of direct financial benefit found where alleged facts reflect “defendants reap substantial financial benefits from admission fees, concession stand sales and parking fees, all of which flow directly from customers who want to buy the counterfeit recordings at bargain basement prices”).
See Sega Enters, v. MAPHIA, 857 F.Supp. 679 (N.D. Cal. 1994).
See Frank Music Corp. v. CompuServe, Inc., 93 Civ. 8153 (JFK) (S.D.N.Y. filed Nov. 29, 1993) (later settled, the case was based on allegations that a CompuServe music forum allowed users to post and copy copyrighted songs).
It is not clear, however, that shrinkwrap license agreements are enforceable.
No. C-95-20091 RMW (N.D. Cal. filed Feb. 8, 1995).
800 F.Supp. 928, 931 (E.D. Wash. 1992).
See Chapter I, part M. First Amendment, infra.
Twin Peak Prods, v. Publications Intern’l, 996 F.2d 1366, 1378 (2d Cir. 1993).
Despite the fact that custom, practice, and common sense reject the claim, there is support for the argument that the mere viewing of the source file is an infringingact. In MAI Sys. Corp. v. Peak Computer, 991 F.2d 511, 519 (9th Cir. 1993), cert, dis-missed, 126 L.Ed.2d 640, 114 S.Ct. 671 (1994), the U.S. Court of Appeals for the Ninth Circuit held that the mere loading of computer software into random access memory (“RAM”) may violate copyright law. See also, Advanced Computer Sews. v. MAI Sys. Corp., 845 F.Supp. 356, 364 n.9 (E.D. Va. 1994) (collecting cases); but see Religious Technology Center v. Netcom On-Line Communication Services, 907 F.Supp. 1361 (N.D. Cal. 1995) (“In any event, users should hardly worry about a finding of direct infringement; it seems highly unlikely from a practical matter that a copyright owner could prove such infringement or would want to sue such an individual”).
But see Lotus Dev. Corp. v. Borland Int’l, 49 F.3d 807, 815 (1st Cir. 1995), aff’d, ___ U.S. ___ (1996) (Lotus 1–2–3 menu command hierarchy is an unprotectable “method of operation”); Computer Assocs. Intern’l v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992).
See West Publ. Co. v. On Point Solutions, Inc., Civ No 1:93-CV-2071-MHS, 1994 U.S. Dist. Lexis 20040 (N.D. Ga. 1994) (permanent injunction based, among other things, on intermediate copying of West cases scanned by On Point, with West head-notes and syllabi temporarily stored on On Point’s computers and then deleted prior to creation of On Point disks); Sega Enters, v. Accolade, Inc., 977 F.2d 1510, 1519 (9th Cir. 1992) (intermediate copying of Sega’s code would constitute copyright infringement unless Accolade could show that it was entitled to claim the benefit of an exception in the circumstances of the case); Atari Games Corp. v. Nintendo of America, Inc., 975 F.2d 832, 843 (Fed. Cir. 1992) (fair use intermediate copying of protectable expression “must not exceed what is necessary to understand the unprotected elements of a work”).
991 F.2d 511 (9th Cir. 1993), cert, dismissed, 126 L.Ed.2d 640, 114 S.Ct. 671 (1994); see also, Advanced Computer Servs. v. MAI Sys. Corp., 845 F.Supp. 356, 364 n.9 (E.D. Va. 1994) (collecting cases).
See McCastle v. Scanlon, 337 Mich. 122, 59 N.W.2d 114 (1953); 25 Am. Jur. 2d Easements & Licenses § 137.
See A.C.L.U. v. Reno, No. 96–1458, Slip Opinion (3rd Cir. June 11, 1996), in which the court states that “43. Web publishers have the choice to make their Web sites open to the general pool of all Internet users, or close them, thus making the information accessible only to those with advance authorization. Many publishers choose to keep their sites open to all in order to give their information the widest possible audience.”
See Effects Assoc, Inc. v. Cohen, 908 F.2d 555, 558–59 (9th Cir. 1990), cert, denied, 498 U.S. 1103, 112 L.Ed.2d 1086 (1991) (granting nonexclusive license to incorporate special effects footage into movie); Gracen v. Bradford Exchange, 698 F.2d 300, 303 (7th Cir. 1983) (issue of fact existed on scope of implied license to make a derivative work—a painting of Dorothy based on the film “The Wizard of Oz”).
See Lotus Dev. Corp. v. Borland Int’l, 49 F.3d 807, 815 (1st Cir. 1995), aff’d,___U.S___ (1996) (Lotus menu command hierarchy held an uncopyrightable “method of operation”).
821 F.Supp. 616, 622 (N.D. Cal. 1993), aff’d, 35 F.3d 1435 (9th Cir. 1994), cert. denied, 130 L.Ed.2d 1129, 115 S.Ct. 1176 (1995).
Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1442 (9th Cir. 1994), cert. denied, 130 L.Ed.2d 1129, 115 S.Ct. 1176 (1995).
See Salinger v. Random House, Inc., 811 F.2d 90, 94–95 (2d Cir.), cert, denied, 484 U.S. 890, 98 L.Ed.2d 177, 108 S.Ct. 213 (1987) (“The author of letters is entitled to a copyright in the letters, as with any other work of literary authorship…. The copyright owner owns the literary property rights, including the right to complain of infringing copying, while the recipient of the letter retains ownership of ‘the tangible physical property of the letter itself.’”); Meeropol v. Nizer, 560 F.2d 1061, 1070–71 (2d Cir. 1977), cert, denied, 434 U.S. 1013, 54 L.Ed.2d 756 (1978) (unauthorized incorporation into book of substantial portions of copyrighted letters written by Ethel and Julius Rosenberg).
See Macromedia, Inc. v. VRHacker, et al., Case No. C95–1261 (N.D. Cal. filed April 13, 1995) (suit against individual America Online subscribers, alleging they infringed Macromedia copyrights by copying and distributing its works through use of America Online’s e-mail system).
See 18 U.S.C. §2511.
18 U.S.C. § 2511 (2)(a)(i); see United States v. Beckley, 259 F.Supp. 567, 571 (N.D. Ga. 1965) (“Where, as here alleged, a corrupt employee allows long distance calls to be made without charge and in a manner which bypasses the regular bookkeeping procedures of the company the only reasonable means of protection is the monitoring of such calls.”)
See Religious Technology Center v. Netcom On-Line Communication Services, 907 F.Supp. 1361 (N.D. Cal. 1995).
17 U.S.C. § 204(a).
Ibid. § 101.
E.g., the work was created in the course and scope of employment such that the employer is the “author” and owner of the copyright.
This argument is made by the plaintiffs in Religious Technology Center v. Netcom On-Line Communication Services, No. C-95-20091 RMW (N.D. Cal. filed Feb. 8, 1995).
See Religious Technology Center v. Netcom On-Line Communication Services, 907 F.Supp. 1361 (N.D. Cal. 1995).
See Salinger v. Random House, Inc., 811 F.2d 90, 94–95 (2d Cir. 1987) (“The author of letters is entitled to a copyright in the letters, as with any other work of literary authorship…. The copyright owner owns the literary property rights, including the right to complain of infringing copying, while the recipient of the letter retains ownership of ‘the tangible physical property of the letter itself’”).
See MAI Sys. Corp. v. Peak Computer, 991 F.2d 511, 519 (9th Cir. 1993), cert. dismissed, 126 L.Ed.2d 640, 114 S.Ct. 671 (1994); Advanced Computer Servs. v. MAI Sys. Corp., 845 F.Supp. 356, 364 n.9 (E.D. Va. 1994); Religious Technology Center v. Netcom On-Line Communication Services, 907 F.Supp. 1361 (N.D. Cal. 1995).
By storing text and images in a cache, the Netscape Navigator allows a user to return to a previously viewed site without having to reload its data.
But as technology changes, such use may no longer be seen as fair. See American Geophysical Union v. Texaco Inc., 37 F.3d 881, 892 (2d Cir. 1994) (quoting the District Court, the Second Circuit stated, “To the extent the copying practice was ‘reasonable’ in 1973… it has ceased to be ‘reasonable’ as the reasons that justified it before [photocopying licensing] have ceased to exist”).
17 U.S.C. § 506(a).
Ibid. § 506(b).
Ibid. §§ 506(c), (d).
Ibid. § 506(e).
See 18 U.S.C. § 3571, which provides for a fine of up to $250,000 for an individual, and up to $500,000 for an organization found guilty of an offense.
18 U.S.C. §§ 2319(b)(1), (b)(2).
United States v. LaMacchia, 871 F.Supp. 535 (D. Mass. 1994).
18 U.S.C. §1343.
United States v. LaMacchia, 871 F.Supp. 535, 536 (D. Mass. 1994).
Ibid., 871 F. Supp. 535, 541–42 (D. Mass. 1994).
Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 549, 85 L.Ed.2d 588, 105 S.Ct. 2218 (1985).
17 U.S.C. § 107.
See Atari Games Corp. v. Nintendo of America, Inc., 975 F.2d 832, 843 (Fed. Cir. 1992); Sega Enters, v. MAPHIA, 857 F.Supp. 679, 687 (N.D. Cal. 1994).
See Sega Enters, v. Accolade, Inc., 977 F.2d 1510, 1527–28 (9th Cir. 1992) (intermediate copying allowed to understand unprotected ideas and processes); but see West Publ. Co. v. On Point Solutions, Inc., Civ. No. 1:93-CV-2071-MHS, 1994 U.S. Dist. Lexis 20040 (N.D. Ga. 1994) (permanent injunction based, among other things, on intermediate copying of West cases scanned by On Point, with West headnotes and syllabi temporarily stored on On Point’s computers and then deleted prior to creation of On Point disks).
Religious Technology Center v. Netcom On-Line Communication Services, No. C-95–20091 RMW, Order Granting in Part and Denying in Part Plaintiffs’ Application for a Preliminary Injunction and Defendant Erlich’s Motion to Dissolve the TRO…. (N.D. Cal. filed Sept. 22, 1995).
According to the Supreme Court, it is important to note whether the new work “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message….” Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164, 1171, 127 L.Ed.2d. 500 (1994).
Religious Technology Center v. Netcom On-Line Communication Services, No. C-95–20091 RMW, Order Granting in Part and Denying in Part Plaintiffs’ Application for a Preliminary Injunction and Defendant Erlich’s Motion to Dissolve the TRO…. (N.D. Cal. filed Sept. 22, 1995).
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Twin Peak Prods, v. Publications Intern’l, 996 F.2d 1366, 1378 (2d Cir. 1993).
Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 556, 85 L.Ed.2d 588, 105 S.Ct. 2218 (1985).
Ibid.
17 U.S.C. § 109.
This rule is also known as the “first sale” doctrine.
17 U.S.C. § 109(b)(1)(A); see also Central Point Software v. Global Software & Accessories, 880 F.Supp. 957. 964 (E.D.N.Y. 1995) (“Congress intended to proscribe not only transactions that are called rentals, but also practices that are in substance rentals”).
Information Infrastructure Task Force, Working Group on Intellectual Property Rights, Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights (Sept. 1995).
See “NII Copyright Protection Act of 1995,” 104 S. 1284, 104 H.R. 2441.
See P. Samuelson, “The Copyright Grab,” Wired 4, no. 1 (Jan. 1996): 134.
See Sega Enters, v. Accolade, Inc., 977 F.2d 1510, 1527–28 (9th Cir. 1992); cf. ProCD, Inc. v. Zeidenberg, 95-C-0671-C, 1996 U.S. Dist. Lexis 167 (W.D. Wisc. 1996) rev’d, No. 96–1139, Slip Opinion (7th Cir. June 20, 1996).
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Rosenoer, J. (1997). Copyright. In: CyberLaw. Springer, New York, NY. https://doi.org/10.1007/978-1-4612-4064-8_1
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