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Question: Who may hold
a copyright?
Answer: A copyright ordinarily vests in
the creator or creators of a work (known as the
author(s)), and is inherited as ordinary property.
Copyrights are freely transferrable as property, at
the discretion of the owner. 17
U.S.C. §201(a), (d). In some cases,
however, the actual creator is not considered the
author of the work for copyright purposes: if a
work is created by an employee in the regular
course of her employment, it is considered a "work
for hire" and the employer, not the employee, is
considered the "author" of the work for copyright
purposes. For example, in the absence of an
agreement to the contrary, a staff writer for a
newspaper does not hold the copyrights in her
product, the newspaper does. This only applies to
works created in the ordinary course of employment:
if the same reporter writes a novel in her spare
time, she herself owns that copyright.
Certain commissioned works may also be considered
works for hire. 17
U.S.C. §201(b); Community
for Creative Non-Violence v. Reid, 490 U.S. 730
(1989). The term "work for hire" is defined in
17 U.S.C. §101.
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Question: What kinds of
things are copyrightable?
Answer: In order for material to be
copyrightable, it must be original and must be in a
fixed medium.
Only material that originated with the author
can support a copyright. Items from the public
domain which appear in a work, as well as work
borrowed from others, cannot be the subject of an
infringement claim. Also, certain stock material
might not be copyrightable, such as footage that
indicates a location like the standard shots of San
Francisco in Star Trek IV: The Voyage Home.
Also exempted are stock characters like the noisy
punk rocker who gets the Vulcan death grip in
Star Trek IV.
The requirement that works be in a fixed medium
leaves out certain forms of expression, most
notably choreography and oral performances such as
speeches. For instance, if I perform a Klingon
death wail in a local park, my performance is not
copyrightable. However, if I film the performance,
then the film is copyrightable.
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Question: What rights
are protected by copyright law?
Answer: The purpose of copyright law is
to encourage creative work by granting a temporary
monopoly in an author's original creations. This
monopoly takes the form of six rights in areas
where the author retains exclusive control. These
rights are:
(1) the right of reproduction (i.e.,
copying),
(2) the right to create derivative works,
(3) the right to distribution,
(4) the right to performance,
(5) the right to display, and
(6) the digital transmission performance right.
The law of copyright protects the first two
rights in both private and public contexts, whereas
an author can only restrict the last four rights in
the public sphere. Claims of infringement must show
that the defendant exercised one of these rights.
For example, if I create unauthorized videotape
copies of Star Trek II: The Wrath of Khan
and distribute them to strangers on the street,
then I have infringed both the copyright holder's
rights of reproduction and distribution. If I
merely re-enact The Wrath of Khan for my
family in my home, then I have not infringed on the
copyright.
Trademark law, in contrast, is designed to
protect consumers from confusion as to the source
of goods (as well as to protect the trademark
owner's market). To this end, the law gives the
owner of a registered trademark the right to use
the mark in commerce without confusion. If someone
introduces a trademark into the market that is
likely to cause confusion, then the newer mark
infringes on the older one. The laws of trademark
infringement and dilution protect against this
likelihood of confusion.
Infringement protects against confusion about
the origin of goods. The plaintiff in an
infringement suit must show that defendant's use of
the mark is likely to cause such a confusion. For
instance, if I were an unscrupulous manufacturer, I
might attempt to capitalize on the fame of Star
Trek by creating a line of 'Spock Activewear.' If
consumers could reasonably believe that my
activewear was produced or endorsed by the owners
of the Spock trademark, then I would be liable for
infringement.
The law of trademark dilution protects against
confusion concerning the character of a registered
trademark. Suppose I created a semi-automatic
assault rifle and marketed it as 'The Lt. Uhura
5000.' Even if consumers could not reasonably
believe that the Star Trek trademark holders
produced this firearm, the trademark holders could
claim that my use of their mark harmed the
family-oriented character of their mark. I would be
liable for dilution.
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Question: What happens
if an individual is found to repeatedly
infringe?
Answer: The safe harbor provisions
require the service provider to include in its
copyright infringement policies a termination
policy that results in individuals who repeatedly
infringe copyrighted material being removed from
the service provider networks.
[512(i)(1)(A)] This termination policy must
be made public in the terms of use that the service
provider includes in its contracts or on its web
site.
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Question: What defines
a service provider under Section 512 of the Digital
Millennium Copyright Act (DMCA)?
Answer: A service provider is defined as
"an entity offering transmission, routing, or
providing connections for digital online
communications, between or among points specified
by a user, of material of the user's choosing,
without modification to the content of the material
as sent or received" or "a provider of online
services or network access, or the operator of
facilities thereof." [512(k)(1)(A-B)] This
broad definition includes network services
companies such as Internet service providers
(ISPs), search engines, bulletin board system
operators, and even auction web sites. In
A&M Records, Inc. v. Napster Inc., the
court refused to extend the safe harbor provisions
to the Napster software program and service,
leaving open the question of whether peer-to-peer
networks also qualify for safe harbor protection
under Section 512.
There are four major categories of network
systems offered by service providers that qualify
for protection under the safe harbor
provisions:
- Conduit Communications include the
transmission and routing of information, such as
an email or Internet service provider, which
store the material only temporarily on their
networks. [Sec. 512(a)]
- System Caching refers to the temporary
copies of data that are made by service
providers in providing the various services that
require such copying in order to transfer data.
[Sec. 512(b)]
- Storage Systems refers to services which
allow users to store information on their
networks, such as a web hosting service or a
chat room. [Sec. 512(c)]
- Information Location Tools refer to services
such as search engines, directories, or pages of
recommended web sites which provide links to the
allegedly infringing material. [Sec.
512(d)]
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Question: If I am
accused of "piracy," what does this mean?
Answer: "Piracy" is slang for copyright
infringment, usually used to describe the unlawful
copying of software, videogames, movies or MP3s.
Copyright law gives a creator of software, music,
literature and other works a limited monopoly to
reproduce or distribute in the created work. If you
are accused of piracy, then someone is claiming
that you have violated their copyright by copying
part or all of their work without authorization, or
have enabled other people to make such copies.
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Question: Is all
copying piracy?
Answer: No. Copyright gives the owner
exclusive rights to reproduce, adapt, publicly
distribute, perform and display their work.
Nonetheless, the law allows "fair use" of
copyrighted material. Fair use permits, in certain
circumstances, the use or copying of all or a
portion of a copyrighted work without the
permission of the owner. Copyrighted works may be
used for purposes such as criticism, comment, news
reporting, teaching, scholarship, or research. To
decide whether a use is "fair use" or not, courts
consider, in part:
(1) the purpose and character of the use (including
whether such use is of a commercial nature or is
for nonprofit educational purposes);
(2) the nature of the copyrighted work (giving
creative works more protection than factual
works);
(3) the amount and substantiality of the portion
used in relation to the copyrighted work as a whole
(including size and quality- i.e. Does the portion
represent the "heart" of the work); and
(4) the effect of the use upon the potential market
for or value of the copyrighted work.
Courts balance these factors, placing an
emphasis on the fourth, however rulings have been
unpredictable. Parody may be protected by fair use
where the user is actually making a comment on or
criticism of the copyrighted material, even if a
profit is made from the use. Still, distributing
copyrighted software will rarely be fair use
because people will use those copies instead of
buying the software from the legitimate vendor.
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Question: Does a
copyright owner have to specify the exact materials
it alleges are infringing?
Answer: Proper notice under the safe
harbor provisions requires the copyright owners to
specifically identify and locate the infringing
materials. [512(c)(3)(A)(ii)] Rather than
simply sending a letter to the service provider
that claims that infringing material exists on
their system, this qualification ensures that
service providers are given a reasonable amount of
information about the infringing material to
effectively police its network.
[512(c)(3)(A)(iii)]
However, in the recent case of ALS Scan, Inc.
v. Remarq Communities, Inc., the court found
that the copyright owner did not have to point out
all of the infringing material, but only
substantially all of the material. The relaxation
of this specificity requirement shifts the burden
of identifying the material to the service
provider, raising the question of the extent to
which a service provider must search through its
system. OSP customers should note that this
situation might encourage OSP's to err on the side
of removing allegedly infringing material.
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Question: What are the
notice and takedown procedures for web
sites?
Answer: In order to have an allegedly
infringing web site removed from a service
provider's network, the copyright owner must
provide notice to the service provider with the
following information:
- The name, address, and electronic signature
of the complaining party
[512(c)(3)(A)(i)]
- The infringing materials and their Internet
location [512(c)(3)(A)(ii-iii)]
- Sufficient information to identify the
copyrighted works [512(c)(3)(A)(iv)]
- A statement by the owner that it has a good
faith belief that there is no legal basis for
the use of the materials complained of
[512(c)(3)(A)(v)]
- A statement of the accuracy of the notice
and, under penalty of perjury, that the
complaining party is authorized to act on the
behalf of the owner.
[512(c)(3)(A)(vi)]
Once notice is given to the service provider, or
in circumstances where the service provider
discovers the infringing material itself, it is
required to expeditiously remove the material from
its network. The safe harbor provisions do not
require the service provider to notify the
individual responsible for the allegedly infringing
material before it has been removed, but they do
require notification after the material is
removed.
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Question: What is
vicarious liability?
Answer: Vicarious liability, a form of
indirect copyright infringement, is found where an
operator has (1) the right and ability to control
users and (2) a direct financial benefit from
allowing their acts of piracy. User agreements or
Acceptable Use Policies may be evidence of an
operator's authority over users. The financial
benefit may include a subscription fee, advertising
revenues, or even a bartered exchange for other
copyrighted. Under the doctrine of vicarious
liability, you may be found liable even if you do
not have specific knowledge of infringing acts
occurring on your site.
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Question: Does a
service provider have to notify its users about its
policies regarding the removal of
materials?
Answer: In order to qualify for exemption
under the safe harbor provisions, the service
provider must give notice to its users of its
policies regarding copyright infringement and the
consequences of repeated infringing activity.
[512(i)(1)(A)] The notice can be a part of
the contract signed by the user when signing up for
the service or a page on the service provider's web
site explaining the terms of use of their systems.
While there are no specific rules about how this
notice must be made, it must be "reasonably
implemented" so that subscribers and account
holders are informed of the terms.
[512(i)(1)(A)]
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Question: What are the
counter-notice and put-back procedures?
Answer: In order to ensure that copyright
owners do not wrongly insist on the removal of
materials that actually do not infringe their
copyrights, the safe harbor provisions require
service providers to notify the subscribers if
their materials have been removed and to provide
them with an opportunity to send a written notice
to the service provider stating that the material
has been wrongly removed. [512(g)] If a
subscriber provides a proper "counter-notice"
claiming that the material does not infringe
copyrights, the service provider must then promptly
notify the claiming party of the individual's
objection. [512(g)(2)] If the copyright
owner does not bring a lawsuit in district court
within 14 days, the service provider is then
required to restore the material to its location on
its network. [512(g)(2)(C)]
A proper counter-notice must contain the
following information:
- The subscriber's name, address, phone number
and physical or electronic signature
[512(g)(3)(A)]
- Identification of the material and its
location before removal
[512(g)(3)(B)]
- A statement under penalty of perjury that
the material was removed by mistake or
misidentification [512(g)(3)(C)]
- Subscriber consent to local federal court
jurisdiction, or if overseas, to an appropriate
judicial body. [512(g)(3)(D)]
If it is determined that the copyright holder
misrepresented its claim regarding the infringing
material, the copyright holder then becomes liable
to the OSP for any damages that resulted from the
improper removal of the material.
[512(f)]
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Question: Can a
copyright owner find out the identity of the
individual responsible for the allegedly infringing
material?
Answer: The safe harbor provisions permit
a copyright owner to subpoena the identity of the
individual allegedly responsible for the infringing
activities. [512(h)] Such a subpoena is
granted on the condition that the information about
the individual's identity will only be used in
relation to the protection of the intellectual
property rights of the copyright owner.
[512(h)(2)(C)]
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