Digital Copyright Law Outline

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

  • Quality of copies don’t degrade (unlike previously)

  • Distribution became easier, reach more population faster

• Self-help Strategies:

  • 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 2^nd 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 1^st 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

     • “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.”

  • § 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

     • 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 internet

• Digital 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...

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