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Digital Copyright Law Outline

LLM Law Outlines > Intellectual Property (IP) Law Outlines

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06. Digital Copyright Law
Copyright Protection for Computer Software
MML 717-23, 804-11, 650-64, 544-57 17 U.S.C. §§ 101, 106(6), 107, 109(b), 114, 1003-1007, 1201
Copyright Enforcement in the Digital Age
- Modern concerns of content owners

Copying became cheaper--

o Quality of copies don't degrade (unlike previously)
o Distribution became easier, reach more population faster
Self-help Strategies:
o Digital Rights Management
 DMCA s.1201

Contract: not to copy
Indirect Enforcement

Immunities/ Safe Harbors
 Sony doctrine
 DMCA s.512
 Fair Use

Inducement/ Tort Theories
 Groksker
Direct Enforcement

Fair Use

Making available?
First Sale Doctrine for rental: Copyright owners worried that stores were providing rental of these work and often selling them for people to make copies at their store  Industry asked congress to exclude rental for First Sale Doctrine

Legal Development
- Audio Home Recording Act (AHRA) 1992 §1001-1010

Copyright owners worried that digital copy of their work, undercutting their sales due to emerge of DAT and DCC that allow people to make copies of their work  resulted in new legislation

1. Technological design constraints on the manufacture of copying devices, with the Serial
Copy Management System
 Added requirement of putting technological controls (Device controls: SCMS) that prevents copying beyond first generation
 Blocked 2nd generation digital copying. Allowed someone to make a copy from CD,
but couldn't make a copy from a copy
 Prohibited importation of devices that did not incorporate technological controls

2. Established a royalty on devices and blank recording media
 to compensate copyright owners for 1st generation copies that would go to owners of musical compositions

3. Immunity for home copying for infringement
 If non-commercial use of home copying  no infringement

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"No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings."
The Rio merely makes copies in order to render portable, or "space-shift," those files that already reside on a user's hard drive. Cf. Sony. Such copying is paradigmatic non-commercial personal use entirely consistent with the purposes of the Act. RIAA
v. Diamond Multimedia, 180 F.3d 1072 (9th Cir. 1999)
AHRA does not cover the downloading of MP3 files to computer hard drives….
Computers do not make "digital music recordings" as defined by the AHRA. A&M
Records, Inc. v. Napster, 239 F.3d 1004 (9th Cir. 2001)

Violations of AHRA are not copyright infringement  AHRA has its own enforcement mechanism s.1009-10
Only applies to devices that are primarily designed to copy sounds and music
 relives makers of computers from having to pay royalties on hard drive/ incorporating
SCMS into them since they have wider purposes
 doesn't include media that are used by consumers for making copies of computer programs and databases
 sale and use of this equipment is not explicitly protected
 consumers who use computers to copy music still might be liable for copyright infringement (not subject to immunity) + sellers of computer equipment might face responsibility for customer infringements Sony
But digital audiotapes never took off because:
 It was supplanted by better technology
 The act itself caused failure of this technology

Public Performance of Sound Recordings
- No public performance right for sound recording

Except public performance by digital audio transmission

e.g. online streaming: transmitter needs authorisation from copyright holders in the musical work + sound recording)
- But § 106(6): "in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission."
o § 106(6) "Subject to §§ 107 - 122, the owner of copyright under this title has the exclusive rights to do and to authorize… (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission."
- § 114(d) Limitations on Exclusive Right  Created a 3-tiered system based with sound recording sales:

1. Interactive transmissions: specific authorization
 Allowed recipient to choose what music was being played or predict with specificity what music would be played
 E.g. Spotify:

2. Less interactive transmissions: compulsory license
 Don't use a signal that causes receiver to change from one program channel to another 2 Copyright

Cant preannounce upcoming songs

Basically reduced interactivity or knowledge of what would be played
 Royalties set by voluntary agreement or by r industry panel

3. Completely non-interactive transmissions: freely available.
 E.g. traditional radio over the internetDigital Millennium Copyright Act (DMCA) 1998

In mid-1990s, content owners encrypt their work to prevent unauthorized distribution  but still vulnerable to hacking/ decrypting (threat of distribution)  sought to expand copyright protection to include limits on decrypting or circumventing of technological protection systems and the trafficking in such decryption tolls (or content owner would not release online; content distributor did not want too many restrictions)  Congress passed the DMCA
 DMCA addresses

1. threat of unauthorized reproduction and distribution of copyrighted works in the digital age

2. ensure the efficacy of technological control measures put in place by copyright owners

Anti-circumvention prevention: safe harbors for internet service providers + telecom companies

§1201: two functional categories of technological protection measures (TPMs)
 (a) [Control access] prohibits acts to circumvent the technological measure + the manufacture, importation, trafficking in, and marketing of devices that
 (1) primarily designed/ produced for the purpose of circumventing a technological measure that effectively controls access to a copyrighted work
[breaking and entering]
 (2) only limited commercially significant purpose/ use other than to circumvent such technological protection measure; [Device Trafficking]
 (3) are marketed for use in circumventing such technological protection measures
 e.g. encryption that blocks access to e-book
 (b) that permit access but control copying of copyrighted works
 No Copying, single use only
 [Limited Authorised Access (fair uses) + Device Trafficking]
 e.g. digital rights management system that authorises the user to watch a film within 24 hours; DVD project can be viewed on laptop or any standard settop player, but cannot make copies
 Does not prohibit act of circumvention  only prohibit acts of trafficking and marketing devices of circumvention devices. Rationale: public lack ability to circumvent, but uses devices to do so
 Designed not to impair users ability to make fair use of content to which they have been given access  e.g. measures that prevent an ebook reader to print the book  not liable if you find a way to print the book, but liable if you traffic in device that allows people to print these books
 Difference between (a) and (b)
 More limited protection in (b) to impair users' ability to make fair use of content to which they have been given access.

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Assumption that many of those circumventing the technological measures would be using it as fair use.
 Largely unhelpful because most people wouldn't be able to bypass technological measures
§1202: copyright management info
 Prohibits falsification, removal or alteration of copyright management info (e.g.
digital watermarks and identifying info) when done with intent to encourage or conceal infringement.
§1203: Remedies
§1204: Criminal Remedies
Violation of the DMCA does not constitute copyright infringement, as the DMCA governs specific remedy's for circumvention
DMCA Anti-Circumvention Exceptions §1201: [0:32]
 Research on anti-security
 Adverse effect on s.1201 on fair use
 Authorizes librarians of Congress to exempt any classes of copyrighted works from these protections where people making uses would likely be affected by ban and those uses would be non-infringing
 e.g. jailbreaking a smartphone
 Authorizes circumvention of technological protection measures to reverse engineer computer program
First generation cases: court largely shutdown litigation on traditional attempts to circumvent
DMCA measures
 Universal City Studios v Reimerdes DVDs encrypted with a Content Scrambling
System (SCC): cannot just copy the DVD and gain access  only an authorised player would decrypt it  teenager wanted to access DVDs and wrote a program
SCSS to decrypted the SCC and shared it online  got sued by copyright owner for violating the DMCA  Court found violation for sharing the decrypting code online
 s.1201 (a)(2) "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that
 (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
 (B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
 (C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.
 No Fair use exemption in DMCA  it is its own law and not part of Copyright Law
Second generation cases: People brought cases for secondary market issue
 People own a market in a product such as a Gillette razor and own after market in razor blades
 Lexmark Int'l v. Static Control Corporation: Lexmark sells printers for a lower price and sell their toner for a higher price  require their toner and not other third party toner  another company sell cheaper toner + static decrypted digital code and made 4

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