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177 Cards in this Set
- Front
- Back
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102a
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C exists in original works of authorship fixed in tangible medium of expression, now known or later developed, from which they can be perceived reproduced or otherwise communicated, either directly or with the aid of a machine/device
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Statutory works of authorship under 102a
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literary works, dramatic works, musical works, pantomimes, choreographic works, pictorial/graphic/sculptural works, motion pictures, AV works, sound recordings, architectural works
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102b
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no C protection for any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form
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Reasons for fixation requirement
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evidentiary, incentive, cultural
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Williams Electronics v. Artic Int'l
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computer games in this case met fixation requirement; fixation is when work is sufficiently permanent or stable to permit it to be reproduced or otherwise communicated for more than a transitory period
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MAI Systems v. Peak Comp.
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copying includes fixing by any method, from which work can be perceived, reproduced, communicated, other directly or with aid of machine/device; computer OS loaded onto comp is fixed (pretty broad)
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101 definition of fixation
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A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.
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Originality 2-part threshold
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1. require some degree of creativity
2. not a copy |
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Feist v. Rural Telephone (S.Ct. 1991)
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original means that work was independently created by author and possesses at least some minimal degree of creativity; can't just be sweat of the brow (phone book here wasn't orig)
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Burrow Giles Lithographic v. Sarony
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can have C in photos; statute includes maps, designs, etc. and photos aren't any different even if they just copy something in life
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Bleistein v. Donaldson Lithographing
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free to copy the subject, but not the photo itself
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Alfred Bell v. Catalda Fine Arts
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work of engraver requires individual conception so meets orig requirement; doesn't matter if they're reproductions of works in PD
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Meshworks v. Toyota Motor Sales
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if copying doesn't require any skill, no independent C (pure copying)
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Mannion v. Coors Brewing
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lots of factors go into making a photo original (rendition, timing, creation of subject)
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Baker v. Selden (S.Ct. 1879)
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C can't protect the system described in book, only the expression of the system
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Merger doctrine
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if you have to use the forms in order to use the system, you can't C forms; forms must be open bc necessary to system
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A.A. Hoehling v. Universal City Studios
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interp of historical event can't be C bc factual info is in PD; if you verbatim copy someone's else's interp, can be actionable
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ADA v. Delta Dental Plans Assoc.
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numbers classification in taxonomy can count for creativity/expression; doesn't have to be aesthetically pleasing
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103a
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subject matter of C under 102 includes comp and DW, but protection for work employing preexisting material in which C subsists doesn't extent to any part of work in which such material has been used unlawfully
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103b
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C in comp or DW extends only to the material contributed by author of such work, as distinguished from the preexisting material employed in work, and doesn't imply any exclusive right in preexisting material; independent C, doesn't affect scope, duration, ownership of protection in preexisting material
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101 defn of DW
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A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.
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L. Batlin v. Snyder
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author needs to contrib something more than merely trivial variation, and must be recognizable as his own (taking someone else's bank and copying it isn't C)
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Entertainment Research Group v. Genesis Creative Group
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Durham test says that to support C, original aspects of DW must be more than trivial and must reflect the degree to which it relies on preexisting material and can't affect scope of any C protection in preexisting; don't consider any functional/mechanical differences
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101 defn of compilation
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compilation is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated or arranged in such a way that the resulting work as a whole constitutes an original work of authorship
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101 defn of collective work
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a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole
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Statutory elements of C compilation
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1. collection and assembly of pre-existing material
2. selection, coordination, arrangement of materials 3. creation of original work of authorship (selection/arrangement or minimal level of creativity) |
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Roth Greeting Cards v. United Card
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even if text or pics on card by themselves aren't original, together the cards can be original and C (whole > sum of parts)
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Mason v. Montgomery Data
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maps aren't just facts bc there is a variety of ways to express; selection, coordination, and arrangement of info P depicted is sufficiently creative to qualify maps as orig compilations of facts
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201a
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initial ownership - C in a work protected under this title vests initially in author(s) or work; authors of joint work are co-owners of C in the work
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201b
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in a work made for hire, the employer or other person for whom work was prepared is considered the author for purposes of this title, and unless parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the C
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Lindsay v. Wrecked & Abandoned Titanic
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cinematographer can still be author of footage even if he didn't personally shoot footage as member of crew; this is bc C is supposed to protect orig, not work
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101 defn of joint work
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work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole
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Erickson v. Trinity Theatre
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use C test examining whether each part of joint author work is copyrightable; other test is de minimis, which looks @ if combined product of both authors is C
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Aalmuhammed v. Lee
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contribution alone doesn't make you an author (esp in movie where there are lots of creative contributors); must show INTENT to be joint authors
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101 defn of WMFH
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WMFH is when work is prepared by employee within scope of employment, or a work that is specially ordered/commissioned for use as a contribution to a collective work
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Community for Non-Violence v. Reid
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uses CL agency test to determine what is WMFH (as opposed to other tests like right to control product, actual control, or formalities in emp relationship)
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Aymes v. Bonelli
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control isn't enough to make it a WMFH; need to look @ totality of factors (hours, pay, tax, etc.)
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Roselin v. DC
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uses 3-factor test in RST to determine if WMFH: work within the kind he is employed to perform, occurs substantially within authorized time/space, actuated by purpose to serve the master
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105
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C protection not avail for work of U.S. gov't, but gov't can receive and hold C transferred to it by assignment, bequest, or otherwise
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102 list boundaries/scope
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102 lists out what can be C but doesn't tell us what is included in each of these categories
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Mazer v. Stein
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no distinction btwn purely aesthetic and useful works of art (after 1870 Act deleted fine arts clause); can C art/reproductions
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Kieselstein-Cord v. Accessories by Pearl
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belt buckle design can be C bc it was "conceptually separable structural elements" separate from its function as a belt buckle
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Carol Barnhart v. Economy Cover
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if design is required by function, can't C (mannequins here had to look that way bc they need to be like human body)
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Brandir International v. Cascade Pacific Lumber
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bike rack case - even if it was originally a sculpture, changing it for a functional purpose makes it industrial design so not C; would be diff if origins were outside the design process
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TRIPS agreement 10
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protect software as literary work
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Apple Computer v. Frankli Computer
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OS can still be C bc not merger even if only limited # of ways to arrange; not per se excluded just bc it's part of a machine
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Computer Associates Int'l v. Altai
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can't protect if necessary for function; use substantial similarity test - filter out the ideas (elements dictated by efficiency, external factors, and PD) and compare the core of protectable expression
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Softel v. Dragon Medical and Scientific
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put the filtered out stuff back if to det if D copied your original arrangement (look @ the whole thing)
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Lotus v. Borland
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can't copy a software menu bc it's a method of operation, but the code that you use to make the menu is a method of operation so could C that
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TRIPS agreement 10(2)
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databases should be protected as compilations bc the selection/arrangement constitutes intellectual creation
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Bellsouth v. Donnelly Information
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by copying just name and other contact info, didn't copy any original element of selection, coordination, or arrangement, so didn't copy any protected parts
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CCC Information Systems v. McLean Hunter Market Reports
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if it would take "professional judgment and expertise" to come up with prices (like with the car prices here), that is sufficient originality; so is selection/arrangement
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Formalities in 1790 and 1909 Acts
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opt in system; required formalities (publication notice, reg, deposit copy)
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Formalities in 1976 Act
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opt out system with no more formalities (due to Berne Convention; more relaxed requirements
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1976 Act fixation requirements
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required fixation instead of publication like in 1909 Act
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1976 Act notice requirement
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doesn't need to be actual notice but reasonable notice; wouldn't lose C bc of omitting notice, just make reasonable effort to cure it if it's within 5 years and only dist small # of copies
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1976 Act deposit requirement
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deposit 2 copies (if published) or 1 copy (if unpublished) of best edition with C office, but only a fine if you didn't do it
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1976 Act registration requirements
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can take place at any time in C term; if within 5 years of pub, prima facie evidence of validity of C; must register before filing infringement suit
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Duration for works created on/after 1/1/78
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if single author = life of author + 70 years
if joint authors = life of last surviving author + 120 years if anonymous or WMFH = 120 years from creation or 95 years from publication (whichever expires first) |
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Duration for works created before 1/1/78
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after pub with notice, 28 years that would extend for 28 more years; then 1976 added on 19 more years for any works already published (if not already pub, still C as long as it was fixed); then CTEA extended another 23 years; anything pre-1923 is PD
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Stewart v. Abend (S.Ct. 1990)
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heirs/executors of author's estate can renew or renegotiate a deal for rights; can't just assign away your C, need to get fresh set of rights from dead author's designee
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How to transfer rights
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need written K for most C bc it's an intangible asset so lots of interp problems; if it's nonexclusive license prob don't need to write down bc nonexc not in 101
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Transfer rights together or separately?
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106 has bundle of rights granted to C owners, and these rights can be transferred/owned separately
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101 defn of transfer of ownership
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assignment, mortgage, exclusive license or any other conveyance, alienation, or hypothecation of a C or of any of the exclusive rights comprised in a C, whether or not it is limited in time or place of effect, but not inc non-exclusive license
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204
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prescribes particular form of effective transfer of C ownership rights, stating that transfer of C ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memo of the transfer, is in writing and signed by owner of rights conveyed or by agent
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205
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authorizes recordation of transfers with C office and specifies procedures for recordation; not required to record but some benefits set forth in 205d for determining which claim prevails btwn 2 conflicting transferees
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Boosey & Hawkes v. Disney
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if you had a movie deal then moviemaker can also release videos bc that was a medium in existence when you made the deal
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Random House v. Rosetta Books
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if you had a book deal, can't later also release ebooks bc the forms of media aren't similar enough
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Diff btwn K and license
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K requires consideration, but license is like a gift with restrictions; license authorizes you to engage in activity that, without it, would be infringement
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Vernor v. Autodesk
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look this case up
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Jacobsen v. Katzer
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also look this case up
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Exclusive rights of C owners under 106
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copy/reproduce, distribute, prepare DW, public performance and display
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Asset Marketing Systems v. Gagnon
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looking @ parties objective intent, obviously intended to grant non-exclusive license even though no written agreement (not required if non-exclusive license)
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Right to copy/reproduce
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doesn't mean no one can copy anything, need to show a level of sameness btwn works that supports finding of infringement
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Nichols v. Universal Studios (S.Ct.)
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copying isn't limited just to text, but if your'e only copying the theme that's not enough to be infringement; D not liable if only taking non-C elements of work
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Arnstein v. Porter (2d Cir.)
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copying isn't enough; has to be unlawful copying (i.e. similarities were significant and had economic value); question of fact
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Steinberg v. Columbia Pictures (2d Cir)
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to see if right to copy was infringed, look @ whether average lay observer would recognize copy as having appropriated; if no proof of access need very high deg of similarity
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Boisson v. Banian (2d Cir)
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if D copied something initially taken from PD, can't just average lay observer test, but need to use discerning ordinary observer tests (filter out non-C elements); look @ total concept and fee
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Mannion v. Coors Brewing (2d Cir) (on copying issue)
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substantial similarity is a question of fact; in visual arts not clear line btwn ideas and expression so hard to filter
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Modern 2d Cir view on right to reproduce
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use avg lay observer for most things, but use discerning observer test if PD elements (filter out); hard to filter if visual arts
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Sid & Marty Krofft TV v. McDonalds (9th Cir)
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similarity of ideas is factual Q that doesn't depend on trier of fact (extrinsic); substantial similarity for expressions is a subjective Q that depends on views of ordinary person (intrinsic)
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Cavalier v. Random House (9th Cir)
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extrinsic is objective; intrinsic is subjective
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Swirsky v. Carey (9th Cir)
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when looking @ objective parts can't just reduce it down to measure by measure analysis
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9th Cir. approach to right to reproduction
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use the extrinsic/intrinsic test but don't break down the different parts of the work too much
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Computer Associations Int'l v. Altai (expert testimony issue)
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even though expert testimony usually wouldn't matter that much for ordinary observer test, might be helpful in tech cases since it's so technical; but judge/jury is still trier of fact
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Evidence of exact copying
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piracy cases (usually pretty clear except for difficulties in discovery); arguably privileged conduct (D might try to argue fair use or nonprofit use)
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106(3)
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gives C owners the right to distribute; almost the same as reproduction, but also lets C owners go after those who are dist but not actually reproducing
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106(1)
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right to reproduce
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106(2)
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right to prepare DW; extends to all subjects of C subject matter under 103a; DW meeting stat stnadards of 102 are themselves C, and de minimis transformation of underlying work can result in DW
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Capital Records v. Thomas
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even if D didn't copy or assist in copying, placing work somewhere (like Kazaa) that allows for easy copying still counts as distribution; doesn't matter if dist was only to P's agents, it's still dist as long as it was more than merely making avail (MAJ rule)
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Hotaling
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placing in lib and making avail to public violates right to dist (min rule)
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First sale doctrine
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ownership of C and material object is different; if you bought the material object, can sell/loan to others despite C owner's dist rights
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Bobbs-Merrill Company v. Strauss
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C owner has sole right to vent but can't restrict future sales of book or right to sell @ certain price per copy
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Unauthorized importation
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importing into U.S. without authority of C owner violates 602a
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Quality King v. L'anza Research (S.Ct. 1998)
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if selling unauthorized imports, infringing the C bc using the C in the label
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Omega v. Costco
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watch faces here weren't even C, but were made under foreign juris, so unauthorized importation doctrine doesn't even apply
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106(2)
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right to prepare DW
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101 defn of DW
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work based upon one or more preexisting works, such as translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed or adapted; a work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole represent an original work of authorship is DW
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scope of DW
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right to prepare DW extends to all copyrightable subject matter under 103a; DW meeting statutory standards of 102 are themselves independently C, and examples in the definition supplied by 101 indicate that de minimis transformation of the underlying work can result in DW
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Castle Rock Entertainment v. Carol Publishing (2d Cir)
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Seinfeld case; this is a DW and infringement bc there was substantial similarity found in the quantitative and qualitative copying that was more than de minimis and not just facts
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Warner Bros. v. RDR Books (SDNY 2008)
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Harry Potter case; can't say a it's a DW just bc it's based on another work; DW requires original work to be transformed into new mode of presentation; D used material from P's works, but didn't transform from one medium to another (rather, gave it another purpose)
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Modes of transformation
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ways to transform work from one medium to another to make it a DW
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Mirage Editions v. Albuquerque ART Company (9th Cir)
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taking published pics and mounting them on tiles is considered recasting/transforming and therefore can be DW; doesn't require originality to be DW
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Lee v. ART Company (7th Cir)
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mounting pics on tiles isn't DW bc it's not an original work of authorship
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Lewis Galoob Toys v. Nintendo
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DW must incorporate protected work in some concrete or permanent form, bc statute says "or any other form in which a work may be recast, transformed, or adapted" (game levels that are temporary are not DW)
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MicroStar v. FormGen (9th Cir)
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if you have detailed a/v displays, can still count as permanent/concrete form and therefore fixed for the purposes of deciding what is DW; Galoob is no bar to this
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106(4)
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C owners have right to public performance for literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other a/v works
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101 defn of public
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1. to perform or display at a place open to public or at any place where a substantial number of persons outside of a normal circle of family and its social acquaintances is gathered
2. to transmit or otherwise communicate a performance or display of the work to a place specified by clause 1 or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places at the same time or diff times |
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20th Century Music v. Aiken (S.Ct.)
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no longer good law bc of 1976 act section 101, but basically said that playing music in restaurant wasn't performance bc restaurant owner is audience and not performer
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Columbia Pictures v. Redd Horne (3d Cir)
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renting videos to watch in private room is still public bc it can be public even if not all gathered in same place
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Cartoon Network v. CSC Holdings (2d Cir)
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DVR doesn't count as public display bc not transmitting it to public; it's only given to the subscriber using a copy
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101 def of public display
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to show copy of work, either directly or by means of film, slide, TV image, or any other device or process or, in the case of motion picture of other a/v work, to show individual images non-sequentially
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Why aren't there a lot of public display cases?
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look @ 109 (first sale doctrine) - you can publicly display a work that you own a copy of, so this rule is stupid
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Video Pipeline v. Buena Vista Home Entertainment
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internet streaming of previews violates public performance and display rights
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Perfect 10 v. Amazon
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Google stores thumbnails but not full size images (only cache website with in-line link to full size image); use of thumbs doesn't violate public display rights bc it's just fair use
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Elements of infringement
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1. proof of ownership
2. copying in fact 3. substantially similar copy 4. damages |
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How to show copying in fact (element 2 for infringement suit)
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need to show that D violated one of the exclusive rights of C owner; can try to show admission or proof of copying, or can try to make circumstantial arg with access/similarity
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Three Boys Music v. Michael Bolton (S.Ct.)
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no direct evidence of copying here but could show thru circumstantial evidence that D had access to P's work thru widespread dissemination or subconscious copying; or can show the 2 works are similar enough such that reasonable juror could reject defense of independent creation
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Fred Fisher v. Dillingham, ABKCO Music v. Harrisongs
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these were mentioned in the Michael Bolton case; can show access thru widespread dissemination or subconscious copying
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Selle v. Gibb (7th Cir)
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when 2 pieces are so strikingly similar that there's just no other way they could both exist, can infer access; but still need to show some evidence that C work was available to the infringer
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Ty v. GMA Accessories (7th Cir)
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Selle didn't mean that no matter how similar works were need evidence of access (can show they're so similar that independent creation is highly unlikely); but if copied from PD need higher standards
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How to show substantially similar copy (element 3 for infringement suit)
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need to show that the parts copied actually mattered; look @ 9th and 2nd cir methods (extrinsic, intrinsic, qualitative, quantitative, etc.)
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Dual layers of copyright in music
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when you have a C in the written music and in the sound recording
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115
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compulsory license (can't say no) allows for reproduction in phonorecords (can reproduce and sell if you pay a fee); musical work must have been previously dist to public; applies to CDs, cassettes, etc.; also includes covers
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114
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limits 106(1) to right to duplicate sound recording in form of phonorecords or copies that directly or indirectly recapture actual sounds fixed in the recording
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DW and sound recordings
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if want recording to count as DW, need to alter it in some way
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Sampling
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permissible but need license from C owner or sound recording owner
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Newton v. Diamond
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if sampling was only de minimis and not substantial, not actionable ; here, had a license for the sound recording but not the composition, and you need both
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Fisher v. Dees
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in sampling, use is de minimis only if avg audience wouldn't recognize the appropriation
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Bridgeport Music v. Dimension Films
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if D took even a small portion, still has value; should have gotten a license for it and court wont go into de minimis test (de minimis reproduction of sound recording isn't ok)
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CROs (ASCAP, BMI, Harry Fox, etc.)
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provides blanket licenses to publicly perform works
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110 limitations to public performance
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home exceptions and educational exceptions
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Arista Records v. Launch
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not infringing bc D's launchcast product doesn't have predictability so doesn't fall under scope of DMCA's defn of interaction service created by individual users
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107
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not withstanding provisions of 106 and 106A, fair use of C work, inc such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of C
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4 factor fair use test
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1. purpose/character of use (inc whether use is commercial or not)
2. nature of C work 3. amount and substantial of the portion used in relation to the C work as a whole 4. effect of use upon the potential mkt for or value of the C work |
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Cultural interchange
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dissemination of knowledge as justification of FU
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Harper & Row v. Nation Enterprises
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Carter bio case; can't use public importance argument as only justification for FU, bc technically everything can be a scoop; if it's unpublished, want to give it additional protection (this is in the era of "author wouldn't care" justifications)
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Campbell v. Acuff Rose Music
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remanded on 4th factor bc not sure how parody would impact the market for original; parody is transformative and could be FU since it comments on underlying author's works; the more transformative it is the more likely it's FU (in the time of "author wouldn't care" justification for FU)
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Castle Rock Entertainment v. Carol Publishing (FU issue)
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Seinfeld case; court dindn't buy FU arg for the SAT bc it wasn't transformative enough, all fictional facts, and impaired market
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Nunez v. Carribean Int'l News Corp
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racy supermodel pic case; commercial would weigh against FU, but purpose of news is to inform and it's transformative (since it's used in news as opposed to publicity); use doesn't cut against it bc they had to use it, they attributed it, and they only used as much as they had to
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Bill Graham Archives v. Dorling Kindersly
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using Grateful Dead pics in coffee table book was ok bc transformed it from promotional pics to history so it was FU; diff markets; not a huge part of the book
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Sega Enterprises v. Accolade
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reverse engineering the game to be played on comp instead of game console was transformative enough to make it FU; it's commercial but for some reason this court didn't care
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Sony Computer v. Connectix
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reverse engineering just like in Sega case but court also focuses on the fact that it didn't interfere with mkt; Sprig says this is just device shifting and isn't transformative so he disagrees with these cases
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Perfect 10 v. Amazon (FU issue)
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Google only fair used the thumbnails; highly transformative
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Sony Corp v. Universal City Studios
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time shifting is ok bc just letting the individual tape it (non commercial, non profit); P carries burden of showing some harm
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DMCA protection
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2 types of protection: access (getting and using it) and copy (prevents you from copying something)
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1201a1
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prohibits individual acts of circumvention of access protection
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1201a2
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prohibits manufacturing or offering devices that circumvent access protection measures
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1201b
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prohibits manufacturing or offering devices that circumvent rights protection measures (copy)
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Universal City Studios v. Reimerdes (SDNY 2000)
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D distributed some program he figured out to break the DVD copying code and was found liable under DMCA; couldn't argue FU or 1st A
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501
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infringement of copyright; infringer is anyone who violates exclusive rights of copyright owner
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Registration requirement before suit
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U.S. copyright owners must register before they can file suit; federal jurisdiction
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502
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injunctions can be temporary or permanent as ct may deem reasonable to prevent or restrain infringement
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Factors to consider for injunction
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whether there is irreparable injury, adequacy of remedies at law, whether balance of hardships warrants a remedy, and injunction wouldn't be a disservice to public interest
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Abend v. MCA (9th Cir 1988)
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granting an injunction depends on equitable considerations; injunction wasn't granted in this case bc royalties would be sufficient
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eBay v. MercExchange (S.Ct. 2006)
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this was a patent case where D used patented work in small part of their business; court can't just presume irreparable harm
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503a
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ct may order impounding; can be ordered prior to judgment of liability and can cover infringing articles and means of reproduction
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503b
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ct may order destruction or other reasonable destruction; can cover infringing articles and means of reproduction; sprig asks if reasonable disposition might inc sale with $ going to P
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504
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covers damages and profits (policy: goal is to deter infringement)
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Efficient breach
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we don't want efficient breach in C so don't want expectation damages system
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504b
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actual damages = damages to P plus disgorgement of D's profits plus pro-P presumptions; profits are direct and indirect profits per Frank; use apportionment to determine profits under Frank
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504c
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stat damages - timely registration prior to filing is necessary to get stat damages and atty fees per Frank music
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kinds of infringement
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willful, ordinary, innocent
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Frank Music v. MGM (9th Cir 1989)
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actual damages = damages to P plus profits; to cal profits, P has to show gross revenue and D has to show deductions
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Columbia Pictures TV v. Krypton Broadcasting of Bham (9th Cir 1997)
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award stat damages per work infringed regardless of number of infringements that occur on it
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505
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allows costs and atty fees to prevailing party @ court's discretion
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Secondary liability
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this is holding someone liable for something they didn't do but they enabled; it's helpful when you can't get hold of the actual infringer
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Vicarious liability
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2 prongs:
1. D must have right and ability to supervise the conduct 2. D must have some direct financial benefit |
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Fonovisa v. Cherry Auction
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swap meet to sell pirated CDs; D definitely knew infringement was occurring and could have ejected the vendor but didn't; people were attracted to the low prices, which helped D make more money (could have also looked to money from sales fee, etc.)
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Contributory liability
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2 prongs:
1. knowledge of specific infringing activity 2. D induces/causes or materially contributes to infringement |
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Perfect 10 v. Amazon (vicarious liability issue)
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Google doesn't even know if these are infringing pics bc can't control this
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Willful blindness in contrib liability cases
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obvi it's not ok to set up business in a way that makes you willfully blind to infringement
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MGM v. Grokster
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it's closer to a P2P system than Napster was, but they still identify certain comps as supernodes; Sony insulates device makers who just make the device, but Grokster induces, and just bc device is capable of non-infringing use doesn't mean it's ok
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Napster case
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actual location of files/server wasn't P2P; Sony doesn't apply they had just made a machine but Napster continues to maintain the server
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Policy concerns of Grokster/Napster
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Ginsburg - wanted to clarify Sony rule by saying that when tech is platform for infringement, D needs to show non-inf uses
Breyer - want to presume tech protective understanding of Sony rule |
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512
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limitation on liability relating to material online; if OSP is actually passive, no liability (routing, system cashe, hosting)
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512c
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safe harbor for OSPs that says you have no secondary liability if you nominate an agent for purpose of receiving takedown notices, send notice of takedown to subscriber, let subscriber send counternotice (can put material back up with counter notification)
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