Intellectual Property

Boston College Law School

February 1, 2007

Copyright – Digital Issues

Third Party Liability

• Contributory Liability– 1. Knowledge of infringing activity– 2. Induce, causes, or materially contributes

• Vicarious Liability– 1. Right and ability to supervise– 2. Direct financial interest in infringing activity

Sony v. Universal

Digital Copyright

• How is digital technology different?– Copying costs near zero– Distribution costs near zero– Copies are perfect– Search costs are low

Digital Copyright

• Legislative Changes– Audio Home Recording Act (1992)– DPRSRA (1995)– No Electronic Theft Act (1997)– Digital Millennium Copyright Act (1998)

AHRA (1992)

• Audio Home Recording Act (AHRA)– Response to introduction of DAT in 1980s– Basic provisions

• Manufacturers can sell digital recording devices• Consumers can make personal, noncommercial copies• Devices must include serial copy prevention technology• Royalty charged on devices and recording media

– Does not cover• Computer hard drives or CD burners• Blank CDs• MP3 Players (Diamond Multimedia case)

DPRSRA (1995)

• Digital Performance of Sound Recordings– New right given to sound recordings

– Covers digital performances of such• E.g. cable radio, direct satellite radio, internet radio

• Where digital radio received via subscription

– Rights depend on type of performance• Where interactively on-demand, must get license

• Where non-interactive broadcast, compulsory license

– Recall: must also get musical work rights, too

NET (1997)

• No Electronic Theft Act (1997)– Increased scope of criminal sanctions– Response to LaMacchia case

• Formerly, required commercial advantage

• Case where uploaded software for free; no liablity

– Change so that based on retail value of works• More than $1,000 of copyrighted works

• Within 180 day period

DMCA (1998)

• Digital Millennium Copyright Act– Technological protection mechanisms

• Anti-circumvention provisions

• Anti-device provisions

– Copyright management information– ISP liability provisions

DMCA (1998)

• Anti-circumvention provisions– Separate liability for acts of circumvention

• Independent of copyright infringement

• List of narrow defenses, but no fair use defense

– Applies to access and copy control technology

– Copyright Office can exempt certain works

• Anti-trafficking provisions– Bars distribution of circumvention technologies

– Where primary purpose is to facilitate infringement

DMCA (1998)

• ISP Provisions– Safe harbor for transmission and caching– Safe harbor for hosting content

• Notice and take-down procedure

• Immune from direct and contributory suits

– Subpoena power

A&M Records v. Napster

Napster Technology

NapsterFile Names,IP Addresses

MP3s

Grokster

Peer to Peer Technology

• Distributes Software and Updates• Serves Ads

All Files, FileNames, IPAddresses

Open Issues

• What is the Sony standard?– Capable of substantial noninfringing uses?– Actual evidence of such uses?

• Does Sony apply to on-line services?

• Is Sony the right standard?

Image Search

Google Book Search

Google Book Search

Google Book Search

Administrative

• Next Assignment– Start III. Trade Secret

• Read A and B