Copyright Law

Gave monopoly on printing to members of the guild (only members could publish anything)

• Created concept of public domain
• Created author's protection (21 years w/ renewal)
• New works based on old works had to add something new; simple reprinting was not enough for ©
• Limited publisher's right to control distribution

Common law ©; said authors had ability who could publish their works into perpetuity

Saind common law © gave rights to publishers; publisher controlled the right of who sold his works

• Had to register in all 13 colonies;
• BUT, all 13 colonies immediately passed © statutes

Increased term to life + 50 years (in conformity w/ Berne) [now life + 70]

Doesn't exist. © is statutory, now.

Can't be had; must readily be available to the populous

• 1. ©-ability
• 2. Ownership
• 3. Ifringement
• 4. Defenses/limitations/exemptions
• 5. Remedies

COIDR

Lays out © generally

Says what © doesn't cover

• [subject to §107–122]
• Gives © owner's exclusive rights

Limitations/exceptions

• Didn't exist until 1976 (was a natural right)
• Author has a right to be the first one to publish his work

• 1. Substantial likelihood of success
• 2. Irreparble harm if injunction is not granted [harm against movant is greater than harm against non-movant]
• 3. Not other adequate remedy
• 4. Public interest will be served

SIRI

Foreign © cannot be granted less rights than a non-foreign ©. © holder of the treaty country has the same rights as the country's own citizens

• Treaties set minumum stds below which a country cannot go (except as to its own citizens)
• NB: If you give citizens of your country something better than min. stds, foreigners get the same protection
• E.g., Berne Convention: Life + 50; member countries can give citizens less than 50 years, but not international authors

• Very low
• E.g., "Breakout" was ©-able by Atari because of the multicolors and the unnatural behavior of the ball w/ regard to physics
• E.g., billing codes for dental items are protectable

• Generally, the shorter, the less ©-able
• But see: Picasso's line drawings; Foxworthy jokes

• It's not up to the courts to decide if something is art or of social val. (except in the most obvious of circumstances)
• Takeaway: Courts don't determine the worth of works

Can't © the deptiction, but you can prevent copying the depiction

©-able. Photographer chooses lighting, setting, pose, expression, etc.

• Not ©-able. Flowers/nature is not fixed; they are constantly changing
• NB: A photo of a flower is protectable; the garden itself is not

Sounds and images that are being transmitted and simultaneously recorded are ©-able

• When depicting certain objects/scenes, there are sometimes bound to be simlarities; this only affords "thin" protection that protects against virtual identical copying
• E.g., Skyy Bottle Case: Vodke buttle must be in the picture, must be lighted, etc.

• A license can only go so far; if you're licensed to make an illustration bsed on a photo, you cross the line when the illustration because more photographic in nature
• E.g., boat was flipped and discolored (and a mast was completed), but it still highly resembled the photo in positioning, etc.

• Copying nature is okay, but not copying the already-created depiction of nature
• E.g., Beanie Baby pig: copied it's wrong number of toes, etc.; could have copied real pigs, but once it copies Ty's stylized pig, it crossed the line

• Not okay because there is no orginality upon which you can protect the derivative
• E.g., Seligman: Took a photo of a girl and sold © to the pic, took a simiar photo 2 years later. Not okay. Though there were differences, the similarities outweighed

• Changes dictated by the media in which you're working are not ©-able
• "To support a ©, there must be at least some substantial variation, not merely a trivial variation such as migh toccur in the translation to a different medium."

• Reproducing something w/ great exactitutde may result in ©-ability, despite being an exact copy
• E.g., God's hand case: Copied Rodin's God's Hand sculpture; BUT SEE Alfred Bell held that a meticulous mezzotint of a master's painting was not ©-able

The toys themselves reflect no indep. creation, no distinguishable variation from preexisting works, nothing recognizable in the author's own contribution that sets Tomy's figures apart from he prototypical Mickey, Donald, and Pluto that were authored by Disney.

• Digital copies of items are slavish copies; nothing new, no infusion of creativity
• E.g., Bridgeman: Corel couldn't © tranparencies they created from famous photos
• E.g., Meshwerks: Mesh wireframe of Toyatas were slavish reproductions; copies of already existing itm (that weren't made to benefit society). They were made to look exactly like real work, 3D objects viewable on a computer screen

Expression is protectible, idea behind the expression is not

• Where there is no alternative to a particular expression (E.g., Meshwerks 3D model), it isn't protectable. But when there is variety, protection is afforded.
• E.g., barbie-face case: there are many ways to express a pert, upturned nose; bow lips; wide set eyes; etc.
• E.g., Ears on a teddy bear can't be ©'d cause all bears have ears

• Unprotectable materials
• Not an exhaustive list
• E.g., Chuck Blore had an original advertising style; even though copy was extremely different, the style was protectable

Just because facts are ©-able, the compilation thereof may be.

• Not ©-able generally
• (unless in an orginally compiled compilation)

• Where it's not possible to differentiate between ©-able material and non-©-able material, you can't get ©
• NB: The more marrow the idea, the more ltd. the amt. of expression there will be

• Covers compilations
• NB: Only extends to the creativity in which you ordred the materials
• E.g., a "Day Runner" only has a thin © protection; only ©'d in regard to arrangements and selection of elements in the organizer

• "Sweat of the brow" doesn't cut it; there must be a spark of originality
• E.g., making a phone book alphabetical is not original; no creativity in its compilation

Sweat of the brow ≠ © protection

• Cuts against it
• E.g., Feist's competitor was legally required to make a phonebook for the area of service

9 states, arranged w/in 3 cats, may be protectable; it can't be said so as a matter of law, though.

Doing something in a mechanistic fashion is not creative; E.g., Matthew Bender I, Westlaw pagination case: decision where to place cases in a book is not creative (e.g., Tex. case next to Ala. case shows no rhyme or reason to compilation)

If facts are compiled creatively, they can be ©'d

• Substantial similarity is the key; virtual identicality is not needed
• E.g., BUCs case: 4500 listings were identical to BUC's, 50 weren't; this is substantially similar

• Items that look factual, but were made from analyses and judgment, are protectable
• E.g., Redbook car prices: car prices in a guide are the author's guess and evaluation. Original and protectable.

If functionality drives a choice, it's not ©-able

• Even if a fact is speculative, but is put forth as a fact, it's not protectable
• E.g., Dillinger case

• When an external factor drives a decision, it's not protectable
• E.g., Lexmark: there are many ways to achieve a goal of locking out non-Lexmark ink cartriges, but efficiency dictates taht only one can be used

A command hierarch is not protectabel because it was simply a way to get a fxn done (split decision)

• 1. Abstraction: What is the abstract idea of the program? What does it do?
• 2. Filtration: Take away all things included out of necessity and scenes a faire
• 3. Comparison: Observe the differences between the "golden nuggets" that are left

The idea and expression are inseparable and unprotectable

To protect a code (e.g., building code) would be to protect the idea behind the code––can't © it

• 1. ©-ability model: If you have merger, the work can't be protected
• 2. Infringement model: A work may still be protective against a different type of infringement; P wouldn't lose all protectability

• Archetypes are not protectable; no monopoly on themes
• Literally: Scenes that are indispensable, or at least std., in a work

• Just because something is patentable doesn't mean it's not ©-able
• E.g., lamp case
• See also, e.e., Animal-nose masks (a specific sculpture of a nose is protectable, but the idea of making a mask out of a nose is not)

• Are aesthetics apart from finality?
• E.g., a belt-buckle's design is separable from what it does
• E.g., a ribbon bike rack's undulations were chose for their fxnality

• Protectable to the extent the work is original
• NB: Does not include scenes a fair (e.g., elevators being near stairs)
• E.g., copying blueprints is infringement, but using a building as inspiration is not

It's possible to infringe characters when they have been developed to a point that you can percceive the creativity that went into making the character

• If a portion of a character's works are public domain and a portion remain ©'d, you can only copy the part in the public domain. Any developments in the ©'d character's story are off limits
• E.g., Amos 'n' Andy case

• Characters that are represented in a strictly graphical way get more protection thatstrictly literal characters
• E.g., Sam Spade v. Mickey
• NB: this isn't follow as much these days (e.g., James Bond)

Outlays rights granted in ©

• Not copying because the provider does nothin but buffer (which isn't an infringing use); the user is the one who directs the copying and transmission
• NB: This could be contributory infringement, though

• A recording made for a ltd purpose can be used by a broadcaster w/o negotiating a license (very ltd; confined to a local service area; e.g., small TV station)
• NB: National distributor would not get this protection

Mechanical (compulsory) license

• Can copy work when:
• 1. Inform artist w/in 30 days before usage;
• 2. Comply w/ strict accounting requirements

• Compulsory license onyl works on phonorecords, not AV works
• E.g., Karaoke doesn't get compulsory license because the lyrics on screen make it AV

• Broadcast entities compulsory licenses
• Very limited

Provide consumers w/ flexibility for already-purchased music (e.g., transfer music from record to cassette)

AHRA prevents the selling of audio recording devisces that don't ahve proteciton on them

Reproduces directly, or from a transmission, a digital music recording

• Digital music recording: doesn't include a material obj. in which on or more computer programs are fixed (e.g., HDD)
• e.g., device that can receive broadcast signals and make copies from the broadcast

• Library copying exemption
• Broad exemption for making copies for a particular purpose
• E.g., replacements of books that have fallen into disrepair

• Computer programs exemption
• Program owner (and licensee) can make needed copies in the operation of a program
• E.g., copy of the program in the HDD, RAM, etc.
• NB: Copies made in the normal course of diagnosing problems is okay, too

• Ephemeral copies exemption
• Copies that exist for a limited time for a ltd. purpose
• E.g., copies of works a broadcaster needs to run its business (and must be destroyed w/in 6 mos)
• E.g., copies needed to fax to someone

• Reproduction for the benefit of certain disabled persons
• E.g., casebooks in braille

Basing a work upon another pre-existing work, or any other form in which a work may be recast

• 1. Recast;
• 2. Transformed

• E.g., tiles case: not derivative. mounting to a tile is essentially changing the frame
• E.g., nintendo game genie case: needed Nintendo to play and didn't actually recast or adapt a game
• E.g., Duke Nukem custom levels: Derivative. Used essential elements of the game in a DVD sold for a profit

• After an artist sells his work, a person can do what they like with that copy
• E.g., precisou moments fabric being used in pillow cases and comforters

• 1. Labeled a license
• 2. Does user have to return or destroy a copy?
• 3. Does the license impose notable use restrictions?

Public libraries are allowed to rent computer software and records

• §109 applies to goods sold elsewhere and resold in US
• NB: This only applies to "round trip sales": sold from US to a foreign co then sold back to a US co. Does not apply when a US co. licenses a foreign co to make their protucts which are made abroad and then sold to the US
• E.g., Omega Watches: watch face made in Mex. according to license and then resold to US co. Infringement.

• Perform work in a place open to the public (audience not required; place, not people, is what matters)
• Perform in a place where substantial numebr of people, outside of family, are gathered (substantial number? Legis. history = 20–30 people)

Transmitting performance from one ocation to another is public

• If there isn't simultaneous perceptibility, there is not a public performance by transmission
• McBee and Bruno's: bar was closed on Sunday, even if transmission was intercepted, was not a public performance

• Over the air broadcasts that contain performance or displays of a work, played on a single piece of equipment commonly found in homes ≠ infringement.
• E.g., claire's boutique

Communication of transmission of a performance exemption

• 1. Fee is charged to listen to music; or
• 2. Transmission is futher transmitted to public

• 1. Single receiving apparatus is used;
• 2. Appartus is of a kind commonly used in private homes;
• 3. Transmission is provided free of charge; and
• 4. Transmission is not "further transmitted" to public
• NB: This doesn't apply to CDs and MP3s because they aren't publicly rec'd broadcasts

• 1. establishment (not bar or restaurant) has <2000 sq. ft. of space; OR if >2000 sq ft. and:
• - performance is audio, not transmitted on more than 6 speakres (no more than 4 in one room or outdoor space); OR
• - performance is AV and not transmitted by more than 4 AV devices w/ ≤55" screen (≤4 speakers in room)
• 2. A restaurant or bar ≤3750 sq ft.; OR if >3750 and:
• - same as above

Contract w/ an org that is certified by ASCAP (e.g., Muzak) where the license fee is incorporated into K

Education public performance exception

• 1. Face-to-face teaching activities
• 2. nonprofit educ. institution
• 3. in a classroom or similar place
• Unless,
• - for AV works, the copy wasn't lawfully made; and
• - the person responsible knew or had reason to believe was not lawfully made

Second Education public performance exception

• 1. performance or display is made by, at the direction of, or undr the supervision of an instructor as an integral part of a class offered as a egular part of the instruction activities
• 2. display is directly related and of material assitance to teaching

Church/nonprofit public performance exception

• 1. made in the course of services (for churches)
• 2. no admission
• 3. if charge is levied, the entire proceeds go to a charitable purpose
• NB: If © owner objects to work being performed, the org. no longer has the right to perform work

Fair public performance exemption

Ag or horticultural exemption; only extends to organizers, not the band performing

Record store public performance exception

• Allowed when the purpose is to promote the sale of the music
• Can't be transmitted beyond establishment (or charge to get in)

Visual handicap public performance exemption

Allows changes to performances or displays for th aid of those w/ visual handicap

Fraternal org public performance exemption

• Nonprofit veteran's org. (when open to public) or fraternal org. (where public is not allowed) are exempt when proceeds are for charitable purpose
• NB: Frats are not included (unless strictly for a charitable purpose)

Hotel/motel public performance exception

hotel can use signal booster for better reception (secondary transmission exception)

• Music and recording are separate rights
• e.g., blarin music in car is not infringement to performer (but could be to song writer)

Very limited right; subject to §109(c)

• Allows display of certain graphical works in art museums, etc.
• BUT, is ltd. to one display of that work (e..g, can't display a work on two diff. terminals at once)

• Google doesn't host images, only points to where they can be found.
• Not infringement.

Moral rights of creators of works (never explicitly recognized in US; §106A is closest we have)

Droit moral for US (VARA)

• Authors of visual art may:
• 1. clain authorship of a work;
• 2. prevent others from using his name on works he didn't create;
• 3. prevent intentional distortion that would prejudice his reputation;
• 4. prevent usage of his name on distorted version of art; and
• 5. prevent destructino of a work of a recognized stature

Pre-VARA: No cause of axn for taking down fresco. Also, no way to recover w/o causing structural damage

Post-VARA: Edited version of a work compromises the artistic integrity of a work

Willful destruction of publicly recognized work is a basis for a cause of axn (and enhanced damages)

• Owner of a work can relocate work
• Site is not the art work, the works are the art work; therefore, the relocation of pieces fit w/in public presentation exception fo VARA
• See Chicago Park Dist.: Living orgs are not fixed, can be moved
• See Mass. Museum Case: Unfinished art is protected by VARA

Operates outside the realm of © ("quasi-©")

Anticircumvention

Can't unauthorizedly circumvent protection of a ©'d work to get to the ©'d work

Libraries can 'hack' if the reason is strictly for the purpose of seeing if they want further legit. use of that work (only as long as hacking is needed to make the determination)

Law enforcement can hack DBs to look for bad materials

Protection measures can be broken down for interoperability purposes

Exemption for encryption research

• Mgmt of © info
• Can't delete or misstate © info; can't remove indications of © ownership
• NB: Doesn't just apply to electronic copies of things; applies to works that are digitized
• Takeaway: §1201 violation is not needed for there to be a §1202 violation

• Civil remedies
• E.g., §1203(c): statutory damages

• Criminal offenses under the DMCA
• Willful violation of §1201/02 for the purposes of pecuniary gain

• §1201(a)(1): no person shall circumvent
• §1201(a)(2): no person shall provide or traffic in tech that is primarily designed to circumvent (prevents access)
• §1201(b): Permits access but iprevents copying

• 1st amend doesn't provide absolute rights if there is a compelling state interst in protecting the tech measures designed ot prevent access to ©'d works.
• NB: The prevention of decryption "free speech" is focused at the function of the speech, not the actual speech

Authorship matters: co. can't take P's designs, end their relationship, then have 3d party produce the designs the P made

• So long as employee's works don't pertain directly to gov't (nor done on ov't time), work can be ©'d
• (§105 only applies to the Fed., state gov'ts can © their works)
• NB: Fed can require that grant-winners give fed. their ©

• Two ways to use ©
• 1. License
• 2. Transfer (which is a subset of license)

• Must be the subj. of an instrument, note, or memo;
• That is a signed writing
• (like Stat. of Frauds)

Transfer writing requirement

• NB: Writing must be specific that deals with the rights the owner wants to convey (can't just be a "legend" on a signed check)
• NB: General licenses can be conveyed orally

• Termination right alienability
• Termination right is inalienable; owner always has the right to terminate a transfer

• Termination can occur:
• 1. in 5 year period beginning at the end of 35 years from date of execution of grant; OR
• 2. if grant includes right of publication: 5 years beginning 35 years from the date of publication OR at the end of 40 years from the date of the execution of the grant, whichever is earlier

Allows © owner to recapture those rights he assigned to another so that he can renegotiate and make more money (heirs have rights, too)

Widow/orphan provision

When author dies after transferring a © to another entity, the right to terminate passes to widow/children. Even if he wills the © to someone else (because he had no interest at the time of death; his interest doesn't kick in until the 35/40 year period)

None. Can be oral.

• Implied license granted when the licensee:
• 1. requests creation of the work;
• 2. the licensor makes and delivers the requested work to the licensee; and
• 3. the licensor intends that the licensee copies and distributes his work throughout the licensee's system
• NB: Implied license is broad, non-exclusive, and allows the right to modify the software.

• Authors must intend the work be combined into inseparable or interdependent parts of a unitary whole
• Each contributor's contribution must be independently ©-able
• NB: Can be created by agreement, too (even if one contributes non-©-able materials)

• Each has the same rights
• E.g., one joint author licenses a work to anyone who will have it; causes problems

• 1. objective manifestation (e.g., K or witnessed convo)
• 2. superintending work by amt. of control (how much control did putative author have?)
• 3. Did audience appeal of the work apply to both putative authors? (e.g., music and lyrics)

Some works are collection of other authors' works. Poses a challenge as to who gets ©

Collections

• 1. privilege of reproduction and distributing the contribution as part of that collection;
• 2. any revision thereof (e.g., extra editions of a newspaper)
• 3. a later collective work (e.g. book of greatest TIME stories)
• NB: Collection must include all the stories as a whole, as opposed to electronic DBs (digitization is not included in the license)

§201(c) only deals w/ work as submitted, has nothing to do w/ preparation of derivatives

When someone creates something for an employer, as an employee, the © to the thing is owned by employer

• 1. How did he get paid? Regularly?
• 2. Taxes withheld?
• 3. Author provide his own workspace and materials?
• 4. What control did employer hold over work?

Notice and registration

• Required to get into court
• Done ≤90 days from creation allows the greatest range of remedies

Must provide library of Cong. w/ a copy (builds a great national library)

Not allowed (Beavis and Butthead)

Registration can apply to unregistered versions of a program if there are enough similarities to the original, registered work

Life + 70 years (95 years from creation if institutional or unknown author)

So long as not perpetual, © term can be very long

• Was there copying?
• 1. Yes. Unlawful appropriation?
• - Yes. Infringement
• - No. Fair use or other defense
• 2. No. Was there access?
• - Yes. Is there substantial similarity? (look for extrinsic (PCPMSS) and intrinsic (ordinary listener/observer) evidence)
• - No. Inverse ratio test (more access = less proof and vise versa)

• If similarities extend to:
• 1. Ideas/concept: no infringement
• 2. PCPMSS: getting closer to © infringement

• **Version of substantial similarities used when works are of two different media**
• 1. Extrinsic analysis: look at external similarities (theme, plot, etc.)
• 2. Intrinsic analysis: Ordinary observer test

• Three approaches
• 1. D copied enough to infringe, but it's so trivial the law won't prosecute
• 2. Copying has occurred to such a small extent that it doesn't reach © infringement threshhold
• 3. Amt. and substatiality is so minimal that it affects and influences a fair use defense
• E.g., BET case: Background usage of artwork was de minimis

Get a license. Even if used portion is small, it could be so recognizable to = infringement

• 1. Was there access? Yes? then...
• 2. Is there substantial similarities between the works? Yes? Then...
• 3. Extrinsic/intrinsic analysis
• - Extrinsic: look at the actual score, video, etc.: test for similarities in ideas
• - Intrinsic: ordinary observer test

Nearly impossible to get. By its own term, ex/in analysis requires "ordinary observer test"; jurors are best ordinary observers

• Some combos of unprotectable elements can lead to protectable work
• E.g., title/hook phrase; shifted cadence; instruments; etc.

• Could member of the intended audience find similarities?
• NB: Differs from ex/in test in which you look at any ordinary observer, not just the intended audience
• E.g., work is intended for a 5 year old; instruct jury to look at work from mindset of a 5 year old
• E.g., choral directors: bring in choral directors to analyze works

• 1. Abstraction: Eliminate abstract components
• 2. Filtration: Eliminate elements that are dictated by fxn.
• 3. Dissection: compare the "golden nugget" that is left

Mere opportunity for access is not significant access. Similarities would have to be substantial.

Even if a composer isn't setting out to copy a work, he can still be liable for infringement if he had access (e.g., mass media) and his work is substantially similar

• Some circuits: Gibb: Even if similarities are striking, there must be some proof of access (even Gibb has moved away from this analysis)
• Other circuits: Striking similarities give a de facto inference of access

• Most invoked defense to infringement
• Judicially created (later codified) was for ©'d works to be used for limited purposes, w/o licensing

Fair use

• 1. Purpose and character
• 2. Nature
• 3. Amt. and substantiality
• 4. Effect upon potential market

• More likely fair when:
• 1. noncommercial
• 2. criticism or comment; teaching and scholarship; research...
• 3. News/public interest; and/or
• 4. Transformative (including parody)

• More likely fair when:
• 1. Informational
• 2. Published
• 3. Not commercial

Amt. of work used is not as important as the relative proportion used ("heart" of the work test)

• **Most important factor**
• If challenged use becomes widespread, it would aversely afect the market.
• NB: There doesn't have to be a current market, only potential (e.g., Salinger may not want his memoirs published now, but he might later)

• Even if something can be used for an infringing use, if it has a substantial non-infringing use, it may be okay
• E.g., Sony Betamax case

Even if a copied amount is very small, if it takes the heart of a work, it could preclude fair use

• 1. Did D add value to the work? A new perspective, insight, etc. that was not in the original?
• 2. Did it become a "transformative use"? Does it supplant the original work?

News reporting is often protected under fair use, but news co.s can still infringe if they take the "heart" of a work; courts must look at all factors in context

• Originally, Sony set up that commercial usage set up a rebuttable presumption of unfair use
• 2LC changed this (Cochran said ct. accused other of misreading Sony rather than just saying they got it wrong)
• NB: If comercial and non-trans: prolly not fair; commercial and trans: weighs towards fair
• Takeaway: The parody usage is unlikely to supplant a market and won't have that much of an effect on a work's marketability

• E.g., Ty case
• 1. Adult version: small photos, factual info on secondary market [likely fair; thumbnails are not substitutes]
• 2. Child version: glossy, large photos, silly descriptions [likely a derivative work]

• E.g., Grateful Dead case
• Even if posters were copies 100%, they were being used for a different purpose and the posters were much smaller than the originals; couldn't supplant the market

• E.g., Gaylord Korean war statue case
• "Jest because nature decided to snow doesn't take away Gaylord's protection."

• E.g., Bleem emulator case
• There is little market for screenshots and comparative advertising is a good thing; further, a screenshot is 1/30 of a second of a game; not substantial

P can't say, "If D had licensed, I would hvae made money; they didn't license, so I was financially harmed." They must show a potential market exists and that it was affected by the D's conduct

Humorous representation of a work; often for th epurpose of social commentary (one of the reasons for fair use)

D uses P's work to make fun of a 3d party

Parodies generally must use the heart of a work to evoke memories of the work; otherwise, it wouldn't be seen as a parody

Generally slight. Parodies don't usually supplant market (e.g., someone wanting Orbison's "Pretty Woman" wouldn't be satisfied w/ 2LC's version)

• Usually adds something to a previous work; results in transformation
• BUT SEE e.g., Naked Gun Demi moore case: Just because something is different doesn't mean it's necessarily transformative; it must send a different message or comment (which the poster in question did)

Parody usu. comments on a creative work (no one parodies an encyclopedia); not an important factor in parody analysis

Parodist msut take enough of the original so that the viewer can recognize the target of the pardy; but he needn't stop there; no "bare minimum usage"

Visual parodies genearlly need to use a greater portion of a work to conjure up the original (e.g., Barbie photo case)

Reverse engineering is okay so long as ©'d code does not end up in the final product; intermediate usage is okay

Softwar lies further away from protectability than other literary works because it has so much un©able stuff w/in

• Generally not okay (unless allowed). Not okay to download songs/software. It's infringement.
• NB: Not only individuals are accountable for things like this; universities and large corps are liable, too, under contributory infringement

Even if use is prevented beyond what license allows, intalling same software on more computers han license allows is not okay

Website owners must use fair use in a determination of whether material should be taken down

Not allowed. Must license w/ an organization that allows copying of ©'d journals, etc.

• Many factors may be used; list isn't exclusive
• E.g., first amendment criticism of exam; didn't have to reproduce entire questions of unpublished test
• E.g., stationary case; TM case also included a © claim: ct. leaned heavily to fair use because it simplified issues and there's not a market for Lucent stationary

© is not always completely taken away by gov't adopting it

• TB Harms test:
• Suit "arises under" © Act if:
• 1. Complaint is for a remedy expressly granted by the Act (e.g., infringement of the suit); or
• 2. The complaint asserts a claim requiring construction of the © act
• Very basic, misses nuances so © claims have to be very carefully crafted (e.g., make sure its not presented as a contract claim; i.e., "video" means something different than it did 20 years ago, thus making a K claim [doesn't arise under]).

• Can only sue if someone infringement actually happened in U.S.
• E.g., video was publicly performed in Canada, but was publicly displayed in US (public display is what you sue on)
• E.g., video was reproduced unauthorizedly in US, but transmitted in UK, Sue for reproduction right, not transmission

• 1. Who owns the work published? Use law of origin country
• 2. How was it infringed in US? Use law of US
• E.g., Russia vests © for news articles in authors, not papers, so a paper couldn't sue, even though a US newspaper unauthorizedly published stories from the Russian paper in its own paper

The fed has waivd SI, but states have not; Cong. is working to abolish this, but hasnt yet

• Where cong. has stepped in and said there can be protection of something, states are not free to come in and carve out extra niches for protection (e.g., trade dress laws)
• E.g., Sears lamp case: Patents are for novel things, if you can't get a patent, can't use stat elaw to protect unpatentable item
• E.g., vessel hull case: vessel hulls weren't protected by ©, if cong. wanted to protect them, they could have (cong. has since protected them)

Preemption

• If any state act conflicts w/ rights assured to © owners, the © Act preempts
• Takeaway: © owner has specific rights and state cannot supersede those rights; where a state statute grants a right that is equiv to a right in the © act, the © act controls

• 1. Express: Specific statement expressly preempts state law
• 2. Field: Fed law so thoroughly occupies a field that its reasonable to infer cong. left no room to supplement fed. law
• 3. Conflict preemption: A state enacts legis. that robs P of a fed. right

• Protects works that aren't ©-able when taken by another entity when:
• 1. P generates or gathers at a cost;
• 2. info is time-sesitive;
• 3. D's use of info constitutes free riding on P's effors;
• 4. D is in direct competition w/ a product or scv offered by P; and
• 5. ability to free-ride on P reduces incentive to produce material

• Split
• E.g., Orioles case: taping and broadcasting baseball game doesn't represent breach of righ tof publicity; MLB has © in the broadcase and players have bad Ks [heavily criticized[]
• E.g., Ames bootleg CD compliation using names and likenesses; person have protection in their rights of publicity
• E.g., Wendt animatronict Cheers case: actors have a right to their publicity, even if the work being depicted is protected under © law

© superseded right ot publicity of original creators of a work, otherwise they could protect a work indefinitely

It's possible to lose fair use defense by agreement through K

• 1. Info only (doesn't give rise to personal jx.)
• 2. Intermediate
• 3. Clearly does bus. in the state (gives rise to personal jx.)

• 1. Substantial likelihood of success
• 2. No adequate Remedy at law
• 3. Will server public interest
• 4. Irreparable harm (money won'y be enough to make claimant whole)
• SIRI

• Injunctions, though borne of equity, should not be given lightly.
• P must provide factual basis of irreparable harm; can't just assume de facto harm
• E.g., Balsam: no injunction for infringed blueprints because it would make many old, poor people homeless
• E.g., Eve of Milady: Partial injunction. Wouldn't take dresses that were already delivered, even if not picked up. Non ordered were takeable. Ordered but paid for might be takeable.
• E.g., Devil's Film: Federal marshals have better things to do than pick up porn

Actual damages

Can recover damage that you actually incurred

• Most be done in a careful way; give ct. something to hang it's hat on
• E.g., Schlitz: Don't ask for entire malt liquor sales profit from 10-note usage of a song; make reasonable compensation scheme

Statutory damages

• Can request any time before final jgmt.
• Allows "little persons" to recover damages.
• $750-$30,000 per work infringed (e.g., use one song several times, only get one damage reward)