Copyright Law Changes That May Affect You

Below are some major changes in copyright law that may affect you or your business.

Family Entertainment and Copyright Act of 2005

This Act: 1) makes it a criminal violation of copyright law to videotape or transmit video signals from inside a movie theater, (2) exempts from copyright and trademark claims, those who filter movies to eliminate objectionable content, (3) makes it a crime to knowingly place a copyrighted computer program, musical work, motion picture or other audiovisual work, or sound recording on a computer network accessible to the public for purposes of copying, (4) directs the Copyright Office to establish a pre-registration procedure for works that have not yet been published, (5) establishes rules for the National Film Preservation Act, and (6) permits, during the last 20 years of any term of copyright of a published work, certain rights of reproduction and distribution of copyrighted works for libraries or archives engaged in the preservation, scholarship, or research of those works.

The Grokster Case

In 2005 the Supreme Court analyzed the legality of peer-to-peer and other file sharing systems. The Court held that individuals or companies who own or permit the use of such systems with the goal of promoting their use to infringe copyright are liable for the resulting acts of infringement by third parties using the network. (Metro-Goldwyn-Mayer, Inc. v. Grokster Ltd. 545 U.S. 913, 2005).

Ownership of Software

Under copyright law, the owner of a computer program has certain rights under Section 117 of the Copyright Act, including the right to modify the program and a limited right to sell the program under a principle known as the first sale doctrine. However, the issue of ownership is irrelevant for most software users because the vast majority of software transactions are licenses—a limited right to use the software—and not a sale—a permanent transfer of ownership. Occasionally, however, courts must sort out whether a sale or license has occurred. In a 2005 case, the Second Circuit Court of Appeals established guidelines for making those determinations using a standard known as “incidents of ownership” Under this standard, a company was able to claim ownership because: (1) it had paid the developer substantial sums to develop the programs for its sole benefit; (2) the developer customized the software for the company’s operations (3) copies of the program were stored on the company’s computers and servers; (4) the developer never reserved rights in the copies and never stopped the company from possessing copies, (5) the company was free to discard or destroy the copies, and (6) there was no valid written or oral agreement demonstrating the presence of a license.(Krause v. Titleserv, Inc., 402 F3d 119 (2d Cir. March 21, 2005)).

The Two-Second Sample

The practice of using small segments of music without authorization to build or supplement a new composition (sampling) was dealt a blow when the Sixth Circuit Court of Appeals ruled that the use of a two-second sample was an infringement of the sound recording copyright. The court went further stating that when it came to sound recording there was no permissible minimum sanctioned under copyright law. (Bridgeport Music v. Dimension Films 410 F.3d 792 (6th Cir. 2004)).

VARA and the 6,000 Pound Swan

In a case involving the unauthorized dismantling of a 6,000 swan sculpture, a federal court ruled that in order for the Visual Artists Rights Act (VARA) to apply, the work at issue must have more than “artistic merit” or “some level of local notoriety;” it must be of “recognized stature” as an artistic work., (Scott v. Dixon, 309 F. Supp 2d. 395 (S.D. NY 2005).

Goodbye Anti-Bootlegging Law

In 1994, as part of the implementation of the GATT Agreement, the United States passed legislation that permitted a performer or record company to prevent the unauthorized recording of a live performance. Under this law, performers or record companies did not have to register with the Copyright Office in order to receive protection and there was no time limit for how long the protection lasted. In 2004, a federal court struck down the anti-bootlegging statute stating that the law appeared to provide “seemingly perpetual protection for unfixed musical performances.” As such, the court ruled, it violates Congress’ authority to regulate under the Copyright Clause. (United States v. Martignon 346 F. Supp 2d 413 (S.D. NY 2004).

Fighting Back Under the DMCA

Copyright claimants often use the “notice and takedown” provisions of the DMCA in order to force an ISP to remove infringing works, To protect against the unjustified use of this provision, Congress provided section 512(f) which permits Internet publishers to bring affirmative claims against copyright owners who knowingly and materially misrepesent that infringement has occurred. In one of the first published cases using this provision, two ISPs successfully asserted claims under 512(f) in a dispute against Diebold. The dispute centere on republication of emails from Diebold engineers allegedly sounding an alarm over flaws in Diebold’s electronic voting machines. A court ruled that the republication of the emails was a fair use because there was no commercial harm and no diminishment of the value of the works. (Online Privacy Group v. Diebold, 72 USPQ 2d 1200 (N.D. Cal. 2004).

Limits on Database Protection

The copyright owner of a software program that gathers public domain information cannot seek to extend database protection over the information that users gather with the software. In a 2004 case, a company sought pubic data about real estate from county and municipal assesors. Several municipalities refused to furnish the data, claiming that to do so would violate the copyright of a rival company that had already solicitied and categorized the information in a database using customized software. The Seventh Circuit Court of Appeals ruled that the process of furnishing (or extracting) the raw data did not violate copyright law and did not create a derivative work, (Assessment technologies of WI LLC v. WIREData Inc. 350 F.3d 640 (7th Cir 2003).

Downloading songs is not a fair use

A woman was sued for copyright infringement for downloading 30 songs using peer-to-peer file sharing software. She argued that her activity was a fair use because she was downloading the songs to determine if she wanted to later buy them. Since numerous sites, such as iTunes permit listeners to sample and examine portions of songs without downloading. the court rejected this “sampling” defense. BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005).

The Copyright Office implements preregistration procedures

As a result of legislation in 2005, the Copyright Office has instituted a preregistration procedure for certain classes of works that have a history of pre-release infringement. According to the Copyright Office, preregistration serves as a place-holder for limited purposes, mainly where a copyright owner needs to sue for infringement while a work is still being prepared for commercial release. Preregistration is not a substitute for registration, and its use is only appropriate in certain circumstances. A work submitted for preregistration must meet three conditions: (1) the work must be unpublished; (2) the work must be in the process of being prepared for commercial distribution in either physical or digital format—that is, film copies, CDs, computer programs to be sold online—and the applicant must have a reasonable expectation of this commercial distribution, and (3) the work must fall within the following classes of works determined by the Register of Copyrights to have had a history of infringement prior to authorized commercial distribution. The works determined to be eligible under this requirement are: motion pictures, sound recordings, musical compositions, literary works being prepared for publication in book form, computer programs (which may include videogames), advertising or marketing photographs. Preregistration is not a form of registration but is simply an indication of an intent to register a work once the work has been completed and/or published. When the work has been completed, it may be registered as an unpublished work, and when it has been published, it may be registered as a published work. A person who has preregistered a work must register the work within one month after the copyright owner becomes aware of infringement and no later than three months after first publication. If full registration is not made within the prescribed time period, a court must dismiss an action for copyright infringement that occurred before or within the first two months after first publication. To preregister, a copyright owner must apply online; no paper application form is available. The effective date is the day on which the completed application and fee for an eligible work have been received in the Copyright Office.

What’s protectible about a photograph?

In a provocative decision, a district court judge ruled that there are questions of fact as to whether infringement occurs when a company re-creates the elements of a photograph without duplicating the subject matter. A beer company, as part of a billboard campaign, recreated a photographer’s image of basketball player Kevin Garnett (using a stand-in). The beer company photographer posed the model in a similar way and shot from a similar angle. The photographer sued for copyright infringement. The judge held that the typical idea/expression analysis for textual infringement does not translate when measuring photographic infringement. In addition, the subject matter of a photograph is never protectible; anyone, for example, can photograph a basketball player. Instead the court determined that key factors in photographic infringement include rendition—the technical choices made when photographing a subject—and timing—taking a picture at the right time and right place. (Mannion v. Coors Brewing Company, 377 F. Supp. 2d 444 (S.D.N.Y. 2005).)

When is a work registered for purposes of filing infringement claims?

Can you file a lawsuit when the Copyright Office receives all of the required materials or when the Copyright Office approves or rejects the application? According to a recent Tenth Circuit decision, it’s the latter. (La Resolana Architects v. Clay Realtors Angel Fire, 416 F.3d 1195, 1200–05 (10th Cir. 2005).) That places the Tenth Circuit in opposition to the Fifth Circuit which holds that a suit can be filed once the Copyright Office receives the application materials.

You can rent an audiobook

You can’t rent musical recordings. Under the first sale doctrine, the owner of a copyrighted work can dispose of it in any manner. One exception to this rule is that musical works embodied on sound recordings cannot be rented. This exception does not extend to audiobooks. (Brilliance Audio, Inc. v. Haights Cross Communications, Inc. 2007 U.S. App. LEXIS 1706 (6th Cir. Jan. 26, 2007).)

Displaying a cached website in search engine results is not an infringement

A “cache” refers to the temporary storage of an archival copy—often a copy of an image of part or all of a website. With cached technology it is possible to search web pages that the website owner has permanently removed from display. An attorney/author sued Google when the company’s cached search results provided end users with copies of copyrighted works. The court held that Google did not infringe. First, Google was considered passive in the activity—users chose whether to view the cached link. Second, Google had an implied license to cache web pages since owners of websites have the ability to turn on or turn off the caching of their sites using tags and code. In this case, the attorney/author knew of this ability and failed to turn off caching, making his claim against Google appear to be manufactured. (Field v. Google Inc., 412 F. Supp. 2d 1106 (D. Nev. 2006).)

Not all thumbnails are equal

In a 2003 case, the Ninth Circuit ruled that thumbnail reproductions may be permitted under fair use principles. (Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003).)

Fair use in reproduction of Grateful Dead posters

In a case involving the reproduction of concert posters within a book, the Second Circuit determined that the reduced reproduction of concert posters within the context of a timeline was a fair use. Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006).