7. Copyright and IP


Introduction:  In a 2009 trial, a Maryland college student named Joel Tennenbaum admitted illegally downloading 3o songs. The jury awarded the RIAA and other music companies $675,000, or $22,500 per song.  In May of 2012, a federal appeals court upheld this verdict !

Clearly, something is badly broken in copyright law.  Traditionally, copyright, trademark and patent law has been considered part of the body of property law. Civil liberties such as free speech rights have not been a factor — until recently.

The law protecting the ownership of creative work involves copyright and other forms of intellectual property. The first laws were passed in the 1500s as a result of the widespread use of the printing press. Today it includes the right to copy or adapt any work  for a period of time (this is the duration of the copyright). After the time has expired, a work falls into the public domain category and can be copied by anyone. Before the time has expired, it may be possible to use copyrighted work either with permission or under a fair use exemption.

Music piracy  is probably the biggest current controversy involving copyright. On the one hand, music lovers have found it easy to share high quality copies of their favorite songs over the Web. They feel the costs of CDs and DVDs are too high for the value, and are exchanging copies without paying copyright fees. On the other hand, recording and movie industries are filing thousands of lawsuits to protect their property and, not incidentally, make up for their perceived losses.

The recording industry has successfully argued that they must be allowed to identify and sue users in P2P networks who thought they were anonymous, but they have had problems doing this on a mass basis.   They have also extended the duration of US copyright laws and made it easy to shut down potentially offending web sites. They have been less successful in getting the laws more deeply entrenched or preventing new technologies from reaching the American public. And have become notorious for their relentless and inhumane pursuit of relatively harmless people.

The “Stop Online Piracy Act” was one attempt to more deeply entrench restrictions and rein in copyright scofflaws. It failed after protests in January 2012.  The idea behind SOPA was to enable U.S. law enforcement to bar advertising and payment networks (like PayPal) from working with suspected copyright scofflaws,  to order blocks for  search engines  and ISPs to the websites. The law would have also made unauthorized streaming of copyrighted content illegal with a maximum penalty of five years in prison.

Parody is another area of dispute. Of course,  Amish Paradise   does not violate the copyright of Gangster’s Paradise   because parody is protected speech. In this case, Weird Al is making a direct parody of Coolio. But what if the parody is not so direct?  These controversies tensions between the free speech rights to parody a work and the rights of artists to protect their work.  Other court cases involve  2 Live Crew, Dan Fogerty or George Harrison.

Background / history  of Copyright 

In England, licensing of book printing began in 1534 when the Stationers’ Company was given a printing monopoly.   In 1710, first Copyright Act (called the Statute of Anne) introduced two new concepts – 1) the author was the owner of copyright and 2) A fixed term of protection for published works. It was originally 14 years, renewable for another 14 years.

The US Constitution of 1787 contained the power to grant copyrights and patents in Section 8, Clause 8:

“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”

Copyright Pirate, Puck Magazine,

Copyright Pirate, Puck Magazine, 1886,

While the US Constitution protected American works, it did not protect works registered in other nations. Similarly, works published in the UK by American writers, or in France by German writers, were also unprotected from exploitation in other countries. Charles Dickens, the 19th century author of Christmas Carol and Tale of Two Cities, was outraged by the imitations and outright thefts of his work that appeared in print in America. Dickens and other authors demanded an international copyright treaty. More influential was Victor Hugo, author of Les Miserables and the Hunchback of Notre Dame, who helped organize an international association to protect copyright.

The first treaty discussions (or “convention”) began in 1886, but the US refused to join until over a century later, in 1989, partly because of a general dispute over the role of the United Nations.

“You take the uncompleted books of living authors, fresh from their hands, wet from the press, cut, hack, and carve them … Now, show me the distinction between such pilfering as this, and picking a man’s pocket in the street.” — Charles Dickens in “Nicholas Nickleby”

Dickens’ complaints were heard in Britain. In 1875, a Royal Commission on British copyright law advised a copyright treaty with the US to provide reciprocal protection of British and US authors. After preparatory work had been carried out for the forthcoming Conference of Powers This resulted in the Berne Convention for the Protection of Literary and Artistic Works, also called the International Copyright Act of 1886.

The UK ratified the Berne Convention in 1887. The US took another 102 years to ratify the international copyright act, finally becoming a Berne Convention member in 1976.

Mark Twain

Mark Twain (Samuel Clemens) was also concerned about copyright law and in 1906 he testified before a Congressional committee that he thought copyright should last forever:

I am aware, that copyright must have a term, must have a limit, because that is required by the Constitution of the United States, which sets aside the earlier constitution, which we call the Decalogue. The Decalogue says that you shall not take away from any man his property. I do not like to use the harsher term, “Thou shalt not steal.” But the laws of England and America do take away property from the owner. They select out the people who create the literature of the land. Always talk handsomely about the literature of the land. Always say what a fine, a great monumental thing a great literature is. In the midst of their enthusiasm they turn around and do what they can to crush it, discourage it, and put it out of existence. I know that we must have that limit. But forty-two years is too much of a limit. I do not know why there should be a limit at all. I am quite unable to guess why there should be a limit to the possession of the product of a man’s labor. There is no limit to real estate. As Doctor Hale has just suggested, you might just as well, after you had discovered a coal mine and worked it twenty-eight years, have the Government step in and take it away–under what pretext!

Woody Guthrie

Woody Guthrie

But others had a different attitude about copyright. Woody Guthrie, the famous folk song singer of the 1930s – 50s,  said:

This song is Copyrighted in U.S., under Seal of Copyright #154085, for a period of 28 years, and anybody caught singin’ it without our permission, will be mighty good friends of ours, cause we don’t give a darn. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.

For more about the history of copyright, see this CSPAN video of Robert Spoo talking about his book “Without Copyrights.”

Three areas of intellectual property

Patent — Ideas, processes and inventions can be patented through the U.S. Patent Office, with protection lasting 28 years. In the area of communications, hardware is usually patented while software is usually protected by copyright. Since patents usually involve scientific and technical products, they don’t need to be covered in detail in a media law class.

Trademark — Commercial identification of goods in the marketplace, such as Coca-Cola ® is possible with trademark protection. A registered trademark ( ® ) or one being registered (TM) is renewable indefinitely. Trademarks must be used or they may be considered abandoned. Aspirin, cellophane, cornflakes, yo-yo, linolium, escalator and other are examples of abandoned trademarks. Trademark is regulated on the federal level under the Lanham  Act of 1946 but states also have concurrent jurisdiction.

Copyright — All kinds of creative work — dance, sculpture, writing and music — may be copyrighted and protected from infringement once they are fixed in a tangible medium. The work should have a copyright notice, but copyright is automatic once the creative expression is fixed.

Copyright duration is fixed (as follows),  after which a work falls into the public domain:

  • Works copyrighted by individuals after 1978 — Life of the author plus 70 years.
  • Works copyrighted by corporations (“works made for hire”) — 120 years from date of creation or 95 years from publication, whichever is shorter.
  • Works copyrighted before 1978 — 95 years;
  • Works in public domain before 1978 — stay in public domain.

Copyright frequently asked questions:

  • What can be copyrighted? — Most types of literary and artistic works may be copyrighted. Factual and historical information can’t be copyrighted, although a particular description of a news or historical event will have copyright protection. Generally, ideas can’t be copyrighted, only ideas expressed in a tangible medium.
  • How are things copyrighted?  In the US, copyright is registered at the US Library of Congress Copyright Office for a small fee. Original works not registered are still protected under Copyright law, but you should register in order to bring a lawsuit for infringement. In the United Kingdom, official copyright registration is not available, although several unofficial registrars can help with proof of possession of materials at certain times if needed. For more information, consult the UK’s intellectual property site. A worldwide list of copyright agencies is available through the World Intellectual Property Organization.
  • What is fair use?  Students, authors, pundits, educators and others are free to cite portions of copyrighted work for the purposes of discussion, debate or education so long as there is no commercial value in using these portions of the works. Just how small a portion, and how little commercial value is still being worked out, and over the years, the “fair use” concept has eroded. In the US, the four part test of Fair Use is described in the Copyright statute and also in court cases. It involves the following items:
  1. the purpose and character of the use, including whether the use is commercial or for nonprofit educational purposes;
  2. nature of material itself
  3. percentage used in relation to the work as a whole; and
  4. effect on the market for or value of the original works

Copyright statutory law

** Berne Convention  – International copyright law ratified by the US in 1989, also in DMCA 1998, is administered by the World Intellectual Property Organization under the WTO. The U.S. refused to join the Berne (Switz.) Convention for the Protection of Literary and Artistic Works when it first convened in 1886. Until the last few decades, the U.S. had been the worlds most flagrant copyright pirate, arguing that the common heritage of mankind — e.g., Dickens, Bronte, Hugo, and the other great European authors — belonged in the public domain. Naturally, once the U.S. became a major exporter of copyrighted work, not only was the Bern convention finally signed (in 1989) but the U.S. began pushing for even tougher sanctions on intellectual property law.

** Copyright Act of 1976 — US copyright law — Rewrite of the original 1790 Act and its 1910 revision, deals with what is copyrightable and how it is done. It brought the US into initial compliance with the Berne convention on international copyright. And it also attempted to deal with what  were then new problems like photocopying, audio and video recording and cable televison. See US Code Title 17.

** Digital Millenium Copyright Act,1998  — Brought US into compliance with WIPO and required embedded  anti-copying circuitry in VCRs. It also created penalties for circumventing  copyright protection devices and set up a controversial procedure for taking copyrighted works off the Web. The procedure works like this: If a server  administrator is notified of a potential copyright violation, the server administrator  must either shut down the users account immediately or file an affidavit (a statement  to the court) which says, under penalty of perjury, that the administrator  does not believe the user has infringed on a copyright. This procedure clearly  tilts the legal presumption of innocence away from the accused.

The DMCA also included “online service provider safe harbors,” especially Section 512(c), which protects commercial Web-hosting services from being held liable from the action of their customers so long as they did not profit from illegal action.  This allows (for example) criticism of restaurants, hotels, and other services by customers through sites like Angie’s List or Trip Advisor.  (A federal appeals court upheld Trip Advisor’s 2011 criticism of “the dirtiest hotel in America”).

Because the DMCA allows immediate take-downs, it is far more protective of copyrights (and intrusive on free speech) than copyright laws as applied to other media. For instance, presidential debates are copyrighted by the networks that run them. When other networks, or other candidate ads, run segments from those debates, they probably have a fair use claim. The copyright owners havent tested that fair use claim in court. However, they have ordered take-downs of web videos, according to a 2013  article in Southern Law Journal. 

** Sonny Bono Copyright Term Extension Act, 1998 —  Extended the duration  of copyright protection. In general, copyright terms were extended for an additional 20 years. In the case Eldred v. Ashcroft, the duration was challenged  under the idea that the Constitution only provided for a “limited”
amount of time for exclusive copyright to “promote the progress of science
and the useful arts.” The courts said it was up to Congress to decide what that meant.

Copyright CASE law

**FAIR USE: Campbell v. Acuff-Rose Music — 1994 — When 2LiveCrew parodied Roy Orbison’s 1960s classic “Pretty Woman,” the company run by Orbison’s heirs (Acuff-Rose) sued Luther Campbell of 2LiveCrew. The US Supreme Court, said that parodies are protected under the Fair Use doctrine provided that the parody has substantial transformative value. In other words, it must be true parody, not a cover.  Campbell’s version did have that value, so he won the suit. The idea here  is that artists are protected from performers who merely want to perform their work without permission, but not from people who want to make  a serious parody. Supreme Court decision: Campbell v. Acuff-Rose

** COPYRIGHT DURATION: Eldred v. Ashcroft Jan. 2003 — In oral arguments,  petitioners argued that the 1998 Sonny Bono Copyright Term Extension Act, which extended the term of subsisting and future copyrights by 20 years exceeds Congress’s power under the Copyright Clause and violates the First Amendment. Some have argued that Disney has pushed the extension. In the majority opinion, Justice Ginsberg said Congressional power to extend copyright terms was not limited. For a good commentary on this issue, see “Why Copyright Today Threatens Intellectual Freedom,” by Marjorie Heins.

** WHO OWNS A COPYRIGHT?: Community for Creative Non-Violence v. Reid, 1989 — A sculptor commissioned to do a work  concerning a homeless man by the community for creative non-violence was not  an employee of the group and, absent a specific contract, was the owner of  the copyright to his work even if CCNV paid for his time and the copy of the  sculpture. This is the case that defined the “work for hire” doctrine.

** WHAT CAN BE COPYRIGHTED: Fiest Publications v. Rural Telephone Service, 1991 — Only original arrangements of facts can be copyrighted,
not facts themselves. Fiest was competing with own telephone book.

copyright and technology

Generally, courts have changed from an open view of technological circumvention of copyright to a far more restrictive view, in part because of the way new digital technologies have allowed multiple generations of copies to be produced at the same quality level as the original.

** Sony v. Universal City Studios, 1984.  Universal sued to block the spread of Sony VCRs. The Supreme Court said that even though 100 percent of the  material was often copied, the purpose of its use was legitimate if it was non-commercial “time shifting” for home viewing. This ruling was central to the arguments in A & M v. Napster.

** A&M Records v. Napster, 239 F.23d 1004 (9th Cir. 2001) –Time  shifting as per Sony v. Universal City not valid when dissemination was deliberately widespread. MP3.com and Kazaa also embroiled in legal disputes over music   sharing. More on P2P networks and their legal problems at this Wired archive site.

** MGM Studios Inc. v. Grokster Ltd. 125 US 2764, 2005 — File sharing systems allow contributory copyright infringement when their principal object is the dissemination of copyrighted material to people who post or download music files. One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party  action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device’s lawful uses.

A s the Benedict.com copyright web site says of this case: ” Finding itself stuck between the Sony rule and the perceived egregious conduct of P2Ps, the court found an out by creating a new theory of secondary liability for copyright infringement – the Inducement Theory.  Sony’s rule limits imputing intent as a matter of law from the characteristics or uses of a distributed product. But nothing in Sony requires courts to ignore evidence of intent if there is such evidence, and the case was never meant to foreclose rules of fault-based liability derived from the common law.”

The Inducement Test states that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. The court goes to great pains to stress that the inducement rule premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or  discourage innovation having a lawful promise.


Free speech and Intellectual property 

Before the DMCA,  the courts consistently ruled that copyright infringement claims could not interfere with freedom of speech.   Three cases illustrate the point:

  • Rosemont Enterprises v. Random House, 1966 — When an author began researching a book about the mysterious billionaire Howard Hughes (the model for Mr. Burns in the Simpsons),  Hughes bought up magazines that had previously published articles about him.    He then tried to stop the research by suing the author.   But the courts ruled that copyright laws cant be used to keep public figures out of public eye.
  • Time Inc. v. Bernard Geiss, 1968, involved the use of sketches based on Zapruder film of Kennedy assassination. The sketches were not a copyright infringement because no one can prevent public discussion of controversial issues.
  • The Wind Done Gone April, 2001 — The 11th Fed. Circuit court temporarily blocked publication of “TheWind Done Gone,” a parody of the appallingly grandiose Southern historical fiction Gone With the Wind. The parody was written from the point of view of a slave in Scarlet O’Hara’s house. The injunction was soon lifted and in June, 2001 the book was published. A year later, the lawsuit on behalf of the heirs of the author of Gone With the Wind author was settled. The court’s final decision noted: “Copyright does not immunize a work from comment and criticism.” An ongoing issue is the extent to which prior restraint (in the form of a temporary injunction) should be used in copyright cases such as this one.

After the DMCA,  web sites with allegedly infringing materials could be taken down without much in the way of judicial procedure or due process.     According to an article on the Electronic Frontier Foundation site,  copyright claimants are increasingly misusing the Digital Millennium Copyright Act (DMCA) to demand immediate takedowns without providing any proof of infringement.  “Service providers fearful of monetary damages and legal hassles often comply with these requests without double-checking them despite the cost to free speech and individual rights.”  However, the DMCA has “safe harbors,” as noted above and as tested in the Viacom case:

** Viacom v. YouTube (Google) -  2012 –    Viacom is the parent company of Paramount and MTV, among many other media companies, and started take-downs and lawsuits against YouTube in 2007.  Some 160,000 YouTube videos were violating Viacom copyrights, the company said.  YouTube responded that the DMCA’s safe harbor provisions meant that it did not have to act as the policeman, which made it harder for Viacom to sue a lot of people at once.  In April 2012, a federal district court said YouTube “is protected from liability except where the company actually knew of (or was willfully blind to) specific instances of infringement of material at issue in the case, or facts of circumstances indicating such specific infringement.” (See April 5, 2012 EFF article by Corynne McSherry)

Sapient v. Geller – Jan. 2008 — Brian Sapient, a member of the “Rational Response Squad,” posted a YouTube video,  but Geller issued a “take down order” under the DMCA. This led to a suit, but the courts threw it out. Clearly, copyright infringement claims cannot stave off serious criticism.

Online Policy Group v. Diebold Inc — Oct., 2004 — In the ongoing debate over the security of electronic voting machines, a California court found Diebold Inc. guilty of deliberately misrepresenting its copyright claims under the DMCA as it attempted to silence criticism.  In his decision, Judge Jeremy Fogel wrote, “No reasonable copyright holder could have believed that the portions of the email archive discussing possible technical problems with Diebold’s voting machines were proteced by copyright .. . the Court concludes as a matter of law that Diebold knowingly materially misrepresented that Plaintiffs infringed Diebold’s copyright interest.” See links from the Electronic Frontier Foundation.

Copyright and Entertainment

The Happy Birthday song– Is it copyrighted? Yes, according to Snopes.No, the copyright is inappropriate says Professor Robert Brauneis of GW Law School, who notes that Justice Bryer’s dissent in Eldred v Ashcroft included a remark that the song is unoriginal and unworthy of copyright protection. Copyright law is in need of better administrative support, he observes.

Fogerty v. Fantasy, 1994, John Fogerty and former manager sued each other over copyright when Fogertys new songs sounded somewhat like his old ones whose copyrights were owned by his former manager at Fantasy Records. Fogerty won the right to sing the way he wanted to sing. The US Supreme Court review was also a landmark in recovery of attorneys fees. Fantasy did not want to pay Fogerty’s attorney fee and argued that defendants were not entitled to  recover the fees unless a plaintiff was acting in bad faith. The court rejected that argument as a double standard and said judges should treat plaintiffs and defendants alike in exercising discretion about who pays for the lawsuit. But the larger point — that artists have moral rights to their creations — is still in dispute in the U.S.

Bright  Tunes Music Corp. v. Harrisongs Music, Ltd. 1976 — Former Beatle George Harrison wrote a song entitled “My Sweet Lord” with a tune that sounded very much like the Chiffon’s song “He’s So Fine.”  Harrison admitted that he may have unintentionally infringed on the Chiffon’s Bright Tunes Music copyright, and the court found for Bright Tunes.

Buchwald v. Paramount Pictures, 1990, In the script for Coming to America with  actor  Eddie Murphy, the studio contracts were alleged to be so unfair as to be  inherently invalid. The problem was that writer Art Buchwald got percent  of net profits, not of gross profits. Creative accounting meant that there  was no net profit. The court found for Buchwald. A similar lawsuit over the script for Forrest Gump was settled out of court.

Cyber trademark

Panavision International v. Toeppen, 1998 — Cybersquatter’s purchase of  domain names for later resale violated  Trademark Act. Illinois man had  registered 240 names, including Eddie Bauer, Lufthansa, Nieman Marcus, and wanted $13,000 from Panavision to relinquish name. In response, Congress clarified the connection between Trademark and domain name with the Anticybersquatting Consumer Protection Act of 1999.

Brookfield Communications v. West Coast  Entertainment, 1999 — Both companies wanted to use “moviebuff.com” as a web site. The one with the earliest trademark claim was able to use it as a Web site.

Playboy Enterprises v. Welles  —  The Terre Web site had “meta” tags at the top describing the site that included the word “playboy.”  Playboy sued but lost, since  Ms. Welles was a bona fide playboy bunny at one time.