Copyright Tutorial

As a legal concept, at least in statutory form, copyright dates back to the year 1710 and the Statute of Anne, which was the first copyright law in the Kingdom of Great Britain.  The purpose of the act was: "for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the times therein mentioned." A visual reproduction and old English translation can be found here.

A more complete history of the Statute of Anne and its relationship with British common law can be found in Lawrence Lessig's book "Free Culture" (available here ). In the U.S. the Constitution gave Congress the power to enact laws establishing a system of copyright. Congress enacted the first federal copyright law in May 1790, and the first work was registered within two weeks. Originally, claims were recorded by Clerks of U.S. District Courts. Not until 1870 were copyright functions centralized in the Library of Congress under the direction of the then Librarian of Congress Ainsworth Rand Spofford. The Copyright Office became a separate department of the Library of Congress in 1897, and Thorvald Solberg was appointed the first Register of Copyrights. Additional information regarding the functioning of the U.S. Copyright Office can be found here.

While the historical perspective makes for fascinating reading (for some), this copyright tutorial focuses on U.S. Copyright law as it exists today, and from the point of view of how it is applied day-to-day on the Internet and elsewhere.

This page of the tutorial highlights key subsections from the respective section of the statute. The entire section can be found here.

§ 102. Subject matter of copyright: In general

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Comments: This is the universe of works that get copyright protection. The term "original" as used here means a work of independent creation that entails a "modicum of creativity." Courts have set the threshold for creativity to be quite low. The term "original" does not mean "new or artistic." A leading USSC case dealing with "originality" is Feist Publications v. Rural Telephone Service. This section also highlights the fact that ideas cannot be copyrighted, but rather it is the expression of ideas captured in a tangible medium that gets protection.

106. Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Comments: This is the "bundle of rights" that an author obtains via copyright. When someone infringes on an author's copyright they have misappropriated one or more of these rights. For example, if someone has taken all or part your website (i.e. without your consent) then they have violated your right to make a copy of your work, unless they can make a prevailing argument using a legally recognized defense (e.g. see Fair Use below). These rights can be sold, licensed or assigned in whole or in part.

§ 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(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;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Comments: As indicated above, courts recognize certain uses of a copyrighted work to be "fair." However, as a practical matter, prevailing with a fair use defense can be quite an expensive proposition, and it is usually simply more cost effective to be in compliance than it is to risk the litigation costs necessary to assert this defense, and worse yet the costs of not prevailing. There is the "rule" and then there is the "reality" of how it is applied. Certain uses will not prove problematic at all (e.g. most classroom uses), but other cases are not so clear. The factors are balanced and no one factor is controlling (see the Fair Use Doctrine for more information).

The entire section of the statute can be found here.

§ 201. Ownership of copyright

(a) Initial Ownership.— Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work.

(b) Works Made for Hire.— In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

(c) Contributions to Collective Works.— Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.

(d) Transfer of Ownership.—

(1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.

(2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.

(e) Involuntary Transfer.— When an individual author’s ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title, except as provided under title 11.

Comments: Both author, and for joint works co-author, are terms of art. However, neither is defined in the definitions section of the statute. A leading case with respect to co-authors and joint ownership is Aalmuhammed v. Spike Lee (9th Circuit 2000) . Joint authors must intend their contributions be merged into inseparable or interdependent parts of a unitary whole.
There is a distinction between making a copyrightable contribution and being a joint author—a creative contribution will not suffice to establish authorship.

Comments: To determine when a work is made "for hire," where there is no express agreement, the courts look to principles of agency and consider a host of factors including: (1) who has the right to control the way the product is made; (2) the skill required; (3) duration of the relationship between the parties; (4) where the work was being done; etc. It is best to avoid the uncertainty regarding how a court might determine the outcome (i.e. based on these factors) by having an express agreement as to who owns the copyright. This can become critical with respect to "contracted" work for website development. Many business people simply ignore the copyright issue until they are faced with a subsequent infringement suit (i.e. when they determine that despite having paid for the work, they may not necessarily own the copyright). A leading case here is Community for Creative Non-Violence v. Reid (USSC 1989) .

§ 202. Ownership of copyright as distinct from ownership of material object

Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.

Comments: The copyright is a separate intangible intellectual property right from the "thing" in which the right is embodied (e.g. separate from the book). While you often have a right to re-sell the "thing," this does not impact, in and of itself, the property right in the copyright (see First Sale Doctrine ).

The entire section on duration can be found here. 

§ 302. Duration of copyright: Works created on or after January 1, 1978

(a) In General.— Copyright in a work created on or after January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 70 years after the author’s death.

(b) Joint Works.— In the case of a joint work prepared by two or more authors who did not work for hire, the copyright endures for a term consisting of the life of the last surviving author and 70 years after such last surviving author’s death.

(c) Anonymous Works, Pseudonymous Works, and Works Made for Hire.— In the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first. If, before the end of such term, the identity of one or more of the authors of an anonymous or pseudonymous work is revealed in the records of a registration made for that work under subsections (a) or (d) of section 408, or in the records provided by this subsection, the copyright in the work endures for the term specified by subsection (a) or (b), based on the life of the author or authors whose identity has been revealed. Any person having an interest in the copyright in an anonymous or pseudonymous work may at any time record, in records to be maintained by the Copyright Office for that purpose, a statement identifying one or more authors of the work; the statement shall also identify the person filing it, the nature of that person’s interest, the source of the information recorded, and the particular work affected, and shall comply in form and content with requirements that the Register of Copyrights shall prescribe by regulation.

Comments: The following is a summary of the current duration of copyright: life of the author +70 years or if the work is by a corporate, anonymous or pseudonymous entity,  or if work is for hire, 95 years from publication, or 120 years from creation, whichever is less. The Copyright Term Extension Act (CTEA) of 1998 (aka The Sony Bono Copyright Term Extension Act) extended the duration from 20 to 70 years. The extension was challenged and upheld by the USSC in Eldred v. Ashcroft (2003). There are unique durations (and extensions) for works published prior to January 1, 1978. All terms of copyright provided run to the end of the calendar year in which they would otherwise expire.

The entire notice, deposit and registration section of the statute can be found here.

§ 401. Notice of copyright: Visually perceptible copies

(a) General Provisions.— Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device.

(b) Form of Notice.— If a notice appears on the copies, it shall consist of the following three elements:
(1) the symbol © (the letter C in a circle), or the word “Copyright”, or the abbreviation “Copr.”; and
(2) the year of first publication of the work; in the case of compilations, or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying text matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful articles; and
(3) the name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.

(c) Position of Notice.— The notice shall be affixed to the copies in such manner and location as to give reasonable notice of the claim of copyright. The Register of Copyrights shall prescribe by regulation, as examples, specific methods of affixation and positions of the notice on various types of works that will satisfy this requirement, but these specifications shall not be considered exhaustive.

(d) Evidentiary Weight of Notice.— If a notice of copyright in the form and position specified by this section appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504 (c)(2).

Comments: Since the U.S. joined the Berne Convention, formalities are largely voluntary and failure to comply does not risk forfeiture; but historically it has been otherwise.  Still, while a copyright notice is no longer required it is still imperative that one be used. Why? Primarily because of the evidentiary reasons listed in (d) above. In an environment like the Internet where it is a easy to copy someone else's work, you want to mitigate any potential defense of "innocent infringement." If the notice is prominently displayed then this argument is harder for a potential defendant to make. Although an "innocent infringement" defense is not a complete bar to recovery, it may reduce that actual amount of damages that a plaintiff gets. There is simply no good reason not to use a copyright notice for most (if not all) artifacts created for the web.

§ 408. Copyright registration in general

(a) Registration Permissive.— At any time during the subsistence of the first term of copyright in any published or unpublished work in which the copyright was secured before January 1, 1978, and during the subsistence of any copyright secured on or after that date, the owner of copyright or of any exclusive right in the work may obtain registration of the copyright claim by delivering to the Copyright Office the deposit specified by this section, together with the application and fee specified by sections 409 and 708. Such registration is not a condition of copyright protection.

Comments: You do not need to register a work with the U.S. Copyright Office to get the "bundle of rights." But registration, like notice, has it benefits. In the U.S. (with a few exceptions) a registration is required before an infringement suit may be brought. Another benefit of registration is that registration creates a presumption of validity, and validity of the copyright is often a defense that a defendant will assert. Registration simply makes it easier for a plaintiff to bring a cause of action against an infringer, allowing the potential recovery of up to $150,000 (and possibly attorney's fees) without having to establish monetary harm.

Comments: The registration process is relatively straightforward and inexpensive. Copies of the work will need to be deposited with the U.S. Copyright Office and the nature of the deposited copies will depend on the type of work (e.g. software requires a different type of deposit than a music video). In addition, the type of work will determine the type of form (e.g. a literary work will require a different form than the one required for a work of the visual arts) that must be used. In general, the registration should occur within three months publication (or before the infringing act) in order to get the aforementioned benefits. As a practical matter, registration should occur as soon as the work is published, otherwise the registration process is likely to be ignored.

The entire section on infringement and remedies can be found here.

§ 501. Infringement of copyright

(a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A (a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A (a). As used in this subsection, the term “anyone” includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity.

(b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. The court may require such owner to serve written notice of the action with a copy of the complaint upon any person shown, by the records of the Copyright Office or otherwise, to have or claim an interest in the copyright, and shall require that such notice be served upon any person whose interest is likely to be affected by a decision in the case. The court may require the joinder, and shall permit the intervention, of any person having or claiming an interest in the copyright.

Comments: Examples of copyright infringement on the Internet are numerous and highly publicized (e.g. the recording industry's challenges with the illegal download of music files). The term "piracy" is often used with respect to copyright infringement and its use within this context apparently goes back over a hundred years. Most business people on the Internet are likely to face infringement suits from less obvious illegal activities such as inappropriately copying text or the illegal use of copyrighted images (e.g. photos). Much of this illegal use goes unchallenged simply because it is either too time consuming for the author to track, or the infringer appears to lack assets sufficient to make a suit worthwhile. Of course, this all changes when/if your business "takes off."

§ 504. Remedies for infringement: Damages and profits

(a) In General.— Except as otherwise provided by this title, an infringer of copyright is liable for either—
(1) the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection(b); or
(2) statutory damages, as provided by subsection (c).

(b) Actual Damages and Profits.— The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

(c) Statutory Damages.—
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was:
(i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or
(ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.
(3)
(A) In a case of infringement, it shall be a rebuttable presumption that the infringement was committed willfully for purposes of determining relief if the violator, or a person acting in concert with the violator, knowingly provided or knowingly caused to be provided materially false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering, maintaining, or renewing a domain name used in connection with the infringement.
(B) Nothing in this paragraph limits what may be considered willful infringement under this subsection.
(C) For purposes of this paragraph, the term “domain name” has the meaning given that term in section 45 of the Act entitled “An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes” approved July 5, 1946 (commonly referred to as the “Trademark Act of 1946”; 15 U.S.C. 1127).

Comments: As noted above, an infringer may be on the hook for either actual damages, or if the plaintiff can show willful infringement, then up to $150,000 of statutory damages, and usually attorney's fees. In general, a plaintiff will have to prove the following: (1) that they own a valid copyright (here registration provides a rebuttable presumption of validity/ownership); (2) that there was actual copying of the work; (3) some sort of misappropriation (i.e. what was copied was not a fact, idea, theme, etc.); and (4) that there are no defenses available (e.g. fair use). With respect to "actual copying," the courts will often use a standard of "striking similarity" (coupled with access) to establish this element. The semi-permanent nature of the Internet, via tools such as the "way back machine," are quite helpful evidentiary tools that often work to the benefit of plaintiffs. Finally, depending on the type of work, criminal penalties may also be imposed.

This section refers to chapter 10 of the copyright statute, otherwise known as the Audio Home Recording Act (AHRA). The entire section can be found here. It is a specialized section of the copyright statute that was added in 1992 primarily as a response to the music industry's concerns regarding the potential widespread illegal copying that would be enabled through the sale of various consumer recording devices and digital media.

The AHRA is essentially government mandated , technology based, anti-circumvention legislation designed to provide a technological foundation against copyright infringement. The use of technological controls was later expanded in the Digital Millenium Copyright Act. The AHRA also provides for the payment of royalties (from manufacturers) to the music industry via the U.S. Copyright Office (as a kind of "middleman") to various industry organizations.

Chapter 10 of the copyright statute represents Congress' attempt to respond to market forces in the still emerging digital economy. It is likely that over time there will be more market driven legislation as the digital economy continues to permeate the daily lives of consumers. As mentioned above, this is a specialized area of the statute and, in general, does not have a widespread business impact outside of those businesses/individuals that are directly implicated.

§ 1101. Unauthorized fixation and trafficking in sound recordings and music videos

(a) Unauthorized Acts.— Anyone who, without the consent of the performer or performers involved—
(1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation,
(2) transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance, or
(3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States, shall be subject to the remedies provided in sections 502 through 505, to the same extent as an infringer of copyright.

(b) Definition.— As used in this section, the term “traffic in” means transport, transfer, or otherwise dispose of, to another, as consideration for anything of value, or make or obtain control of with intent to transport, transfer, or dispose of.

(c) Applicability.— This section shall apply to any act or acts that occur on or after the date of the enactment of the Uruguay Round Agreements Act.

(d) State Law Not Preempted.— Nothing in this section may be construed to annul or limit any rights or remedies under the common law or statutes of any State.

Comments: Essentially you cannot make "bootleg" copies of live performances, or from other "fixations" of sound recordings, for the purposes of "trafficking" therein. Part of the "bundle of rights" is that an author is entitled to his/her public performances. Any violation of said public performances is grounds for an infringement action.

The Digital Millennium Copyright Act (DMCA) is a complex piece of legislation that contains a "hodgepodge" of legislative themes including: the implementation of WIPO treaties, the criminalization of anti circumvention technologies (i.e. digital rights management technologies or DRM) and the limitations of liability contained in Title II.  The DMCA amended Title 17 of the U.S. Code (i.e. the copyright statute) and consists of five titles. The five titles are listed below and the full text of the legislation can be found here.

Title I, the “WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998,” implements the WIPO treaties.

Title II, the “Online Copyright Infringement Liability Limitation Act,” creates limitations on the liability of online service providers for copyright infringement when engaging in certain types of activities.

Title III, the “Computer Maintenance Competition Assurance Act,” creates an exemption for making a copy of a computer program by activating a computer for purposes of maintenance or repair.

Title IV contains six miscellaneous provisions, relating to the functions of the Copyright Office, distance education, the exceptions in the Copyright Act for libraries and for making ephemeral recordings, “webcasting” of sound recordings on the Internet, and the applicability of collective bargaining agreement obligations in the case of transfers of rights in motion pictures.

Title V, the “Vessel Hull Design Protection Act,” creates a new form of protection for the design of vessel hulls.

Comments: Essentially Title II added section 512 to the copyright statute which is located here. Sectiion 512 creates four new limitations on liability for copyright infringement by online service providers. The limitations are encomapassed in the following categories: (1) transitory communications; (2) system caching;(3) storage of information on systems or networks at direction of users; and (4) information location tools. They each mitigate liability based on the conduct of the service provider. Each category is dealt with separately below. If complied with, each category will prevent a plaintiff from recovering money damages from a service provider and may also restrict a plaintiff's ability to get injunctive relief. The categories are independent from each other, qualifying under one does not imply a qualification under the others. Finally, failure to qualify does not mean that other defenses are not available to the provider (e.g. fair use).

Transitory Communications

This refers to section 512(a). Essentially this category says that a service provider (SP) will not be liable simply because they provide the "pipes" by which infringing material is carried. To obtain protection the SP must be "out of the loop." The SP cannot initiate the transfer, or determine the recipients, or edit/modify the content. As long as the transfer is "automatic" and the SP does not exercise additional control, then protection is triggered.

System Caching

This refers to section 512(b). Caching is technical jargon for the maintenance of temporary copies of content (usually in a high speed access storage medium) for the more efficient delivery of the same content with respect to a subsequent request. Again the SP cannot maintain any kind of control of the content and the cached copy must be promptly removed upon notification that the content is infringing.

Storage of Information on Systems or Networks

This refers to section 512(c). This category limits the liability of the SP for end user content hosted on its information storage system(s) (e.g. a website). In order for protection to trigger the SP cannot have knowledge of infringing content, and if the SP has the ability to control said content, it cannot receive financial benefit from any infringing activity. Furthermore, upon notice of infringement the SP must "takedown" (or block access) to the infringing content. The SP is required to register an agent with the U.S. Copyright Office in order to receive notifications of infringement. Section 512(c)(3) provides the procedures for the notice and takedown procedure.

Information Location Tools

This refers to section 512(d). This section essentially provides the SP protection from "links" to content that contain infringing material. The same notice and knowledge rules apply here as in section 512(c).

Comments: In addition to the limitations of liability discussed above, section 512 contains safeguards with respect  to fraudulent notifications and specific requirements that must be met in order to qualify as an SP.  It also contains some special rules regarding liability with respect to nonprofit educational institutions.

The copyright statute does not prohibit all copying of copyrighted material. The fair use doctrine is codified under section 107 located here. Section 107 does not provide any "bright line" rules regarding what is or is not fair use but rather lists the factors that courts consider when performing "fair use" analysis. The factors are as follows: (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; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

If fair use is found then no compensation is due the copyright holder. Essentially this means that a non licensed use of the work is allowed as a matter of right. However, this right is only determined once a court has found the use to be fair (i.e. only after the copyright holder has brought a cause of action). The factors above are analyzed as part of a "balancing test" with no one factor controlling. Each factor is considered briefly below. Courts will often weigh one factor more than another depending on the specific context of the case before them. The analysis is highly "fact dependent" and therefore outcomes are difficult to predict. The best guide to a potential outcome lies in comparison of the current factual context with established precedent (see Case Law Summary for additional information). It should be noted that the factors are illustrative and not exhaustive. Courts are free to consider other relevant factors, although there is empirical data that suggests that they rarely do so.

Factor 1: the purpose and character of the use

The first factor looks at whether the use in question provides some benefit to the public consistent with the constitutional intention of the copyright statute (i.e. does the use further the "progress of the arts" by providing some additional value?). A key consideration under Factor 1 is whether the current use is transformative as opposed to derivative. Remember that part of the "bundle of rights" that a copyright holder has is the right to make derivative works. It appears that the "transformative" analysis is now more controlling than whether or not the use is commercial, at least with respect to this factor. If a work is found to be transformative then there is some empirical data to suggest that fair use will be found. Parodies of the original work are often found to be transformative and therefore protected under the fair use doctrine.

Factor 2: the nature of the copyrighted work

The second factor looks at whether what was copied was protected (e.g. the creative aspect of the work) or unprotected (e.g. facts and ideas contained within the work). However, these are not the sole considerations. In general (but with some exceptions), a copyright holder is entitled to the first publication of his work, even if what was copied subsequently (but prior to the holder's first publication) would be "fair use." This is the basic holding from Harper & Row v. Nation Enterprises (USSC 1985). That said, the lower courts have subsequently gone both ways regarding the published versus non-published issue, post Harper. This re-emphasizes the highly fact specific nature of the analysis.

Factor 3: the the amount and substantiality of the portion used in relation to the copyrighted work as a whole

The third factor addresses both the quantity of the work copied and the "criticality" (i.e. to the original work) of what was copied. The latter is often discussed in terms of whether the "heart of the work" was copied, and does not necessarily refer to a large quantity. Even a small quantity can comprise the "heart of the work," or in other words, the "essence of the work." Generally, apart from the essence question, courts are more apt to find fair use when a small part of the work has been copied (e.g. a small quotation from the original work). When the entire work was copied there is empirical data to suggest that a plaintiff will prevail. Similarly, when a court finds that the essence of the work was copied (regardless of quantity) then the plaintiff is likely to prevail.

Factor 4: the effect of the use upon the potential market

The fourth factor has to do with whether the plaintiff can "show the court the money." Here the plaintiff must show either that the use has already hurt the market for the original work, or whether, if such use were widespread, it would harm the potential market of the original work. While none of the four factors is independently controlling, there is empirical data to suggest that the party that prevails on Factor 4, nearly always prevails with respect to the "fair use" argument. That is, if the plaintiff can show that the market for the original work (or the potential market) is damaged by the defendant's use, then the plaintiff is likely to prevail. Conversely, where the defendant can show little or no damage to the market, then the defendant prevails.

Comments: As a practical matter (as alluded to above), the "right" of fair use is only available to a defendant in a law suit as an "affirmative defense." Which means that the defendant can raise this defense after litigation has commenced, and if the defendant's assertion is correct, then they win. But as many small businesses (and individuals) have realized, "winning" is relative, given the costs associated with defending a suit. It is often (nearly always) more cost effective to either license the use, or refrain from using the work at all. Of course, if your use falls within those categories of uses that are not problematic (e.g. educational or journalistic uses) then you are likely to be on safe legal ground. But, the reality is, with respect to other types of uses, you should err on the side of caution. As a general rule, a fair use defense is only available to those with "deep enough pockets" to assert it. In addition to "deep pockets," there should be, from a business perspective, some economic justification for doing so. Additional information regarding fair use can be found on Stanford's Copyright & Fair Use page.

The first sale doctrine highlights the difference between the right to distribute/own the "thing" versus the intellectual property right of the copyright itself. This is perhaps best understood by way of an example. Lets say that you bought the latest Harry Potter book from Amazon. Who owns the book? You do. Who owns the copyright? It may not be clear whether it is the author or the publisher, but one thing is certainly clear, it is not you. Can you sell the book once you are done reading it? Yes. Is this not a form of distribution? No. Why? Because you did not make a copy, you sold the copy that you owned. The copyright holder (or their licensee) is entitled to make its profit from the first sale. Could you make a copy of the book and sell it? No. Clearly that would be an infringing activity.

The first sale doctrine is also known as the "exhaustion of rights" doctrine, and it applies with its own unique variations to both patent and trademark law. Internationally the concept is principally known by this latter term. The first sale doctrine is codified in section 109 of the copyright statute located here. Things get a little more abstract when we consider digital artifacts that are copyrighted. Assume that you bought five songs from iTunes. Also, further assume that digital rights management is no longer attached to the content, so that you are "free" to make copies (i.e. there are no technological impediments to making copies). Can you sell the songs that you bought? Yes and no. You can sell them if you were to delete any copies that you own, at least conceptually the same rules apply as with the Harry Potter example. However, non-protected digital artifacts can be copied in their entirety with little or no effort, and this is where the analogy to the Harry Potter book fails.

Copyright owners of digital content are rightfully concerned with the ability of end users to sell perfect copies of their work. They attempt to limit their ability to do so via the law of private agreements otherwise known as contract doctrine. In general, courts have heretofore been willing to go along with these agreements, but this is an area of the law that is evolving (although for all intents and purposes the entire software industry believes that it is "settled" and the marketplace may indeed have the last word), and is the focus of significant amounts of research and commentary.

Section 102(b) of the copyright statute, located here, states: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." It has long been settled law that ideas cannot be copyrighted. Had this been allowed in the U.S., it is almost certain that the American "economic miracle" would not have occurred.

It is the expression of ideas, fixed in a tangible medium, that are protected. But what happens when there is simply only one way to express an idea? Here the law treats the idea as having "merged" with the expression and denies copyright protection. Were it to be allowed under these circumstances then essentially the copyright holder would "own the idea" having been given the "bundle of rights" to the only mechanism for expressing it.

From the discussion above it should be clear why copyright law is often considered to be "metaphysical law." What may be apparent in the written word (i.e. the statutory language) quickly turns into "layers of abstraction" that courts are forced to contend with. How does a court decide that there is only one way (or an extremely limited number of ways) to express an idea?

In Morrissey v. Procter & Gamble (5th Cir. 1967) the court denied protection to rules for conducting a contest related to a particular product. The issue was not whether there was only one way to express a particular rule in question, but rather, whether there were so fews ways to do so, that a clever plaintiff might copyright all the common variations so as to completely appropriate the subject matter. In this regard the court stated: "we cannot recognize copyright as a game of chess in which the public can be checkmated" and held for the defendant.

This doctrine is also known as the idea/expression dichotomy. Invariably when this doctrine is discussed the case of Baker v. Selden (USSC 1879) is cited, despite being well over a hundred years old. Why? Because it clearly illustrates the idea/expression divide, and is also useful for pointing out the differences between copyright law and patent law. Baker wrote a book (with forms) illustrating the core ideas around double entry accounting. Selden borrowed the idea, including the forms, and implemented them for his own use. Baker sued under a copyright theory and the court held for Selden, indicating that Baker's copyright did not extend to the idea of double entry accounting and that a book purporting to teach, could not thereafter complain that its methods were used by consumers. If Baker wanted to protect the method, he would need to seek a patent, which requires a significantly higher hurdle to meet before it is granted.

Infringement suits regarding software present even more knotty issues related to the separation of ideas and other non-protected elements from that which can be protected. This is especially true with respect to user interface issues. A leading case here, where the "filtration" concept was applied, is Computer Associates v. Altai, wherein after the filtering process was applied by the court found there was nothing left to protect.

There are simply far too many cases (without writing a case book) to do this summary justice. Therefore, what follows are widely recognized cases that illustrate important concepts in copyright law. The cases are listed by category, although the selection of categories is somewhat arbitrary and a particular case can, and often does, fit into more than one. The idea is to provide a brief one or two sentence summary of the holding/rule and then to point to the full text of the opinion where available.

As practical consideration, please take note that many of the cases have "big name" plaintiffs and defendants. This is indicative of the "big time litigation" (read dollars) that are associated with these kinds of cases. These are not waters where small to medium size e-businesses want to swim in, nor most large businesses for that matter. It is clear that compliance is the "low risk" strategy. Any other strategy may lead to gray and murky waters.

Copyrightable Subject Matter

Case: Baker v. Selden (USSC 1879)
Summary: copyright protection does not extend to ideas and methods. [full text]

Case: Morrissey v. Proctor & Gamble (1st Cir. 1967 )
Summary: the idea/expression divide can extend to a limited number of expressions. [full text]

Case: Roth Greeting Cards v. United Card Company (9th Cir. 1970)
Summary: the entire concept of the greeting cards warranted copyright protection, despite the fact that the specific words and art work were not infringed upon. [full text]

Copyright law is obviously of global importance both to the developed world and also to the emerging (and increasingly powerful) developing world (e.g. China, India, Brazil, etc.). The Internet is everywhere and nowhere. It is the omnipresent communications infrastructure of the global economy as well as the  infrastructure of choice for local economies. Copyright law is "foundational" and underpins all of it.

What follows is a brief summary of relevant treaties. As always, links are provided to more in depth treatment and, where appropriate, to specific treaty language. This cursory introduction cannot begin to address the myriad of complexities associated with international copyright law. Suffice it to say that this topic (and international intellectual property law in general) will remain "front and center" as globalization continues to impact the world economy in the years ahead.

The Berne Convention

This is the grandfather of international copyright treaties. The full text is available here on the World Intellectual Property Organization's (WIPO) website. WIPO is an authoritative source for international intellectual property law including: copyright, patents, trademarks, and more. Victor Hugo played a significant role as a proponent of the initial treaty, and hence it continues to maintain a heavy international copyright law legacy (e.g. the inclusion of "moral rights"). The Berne treaty requires no formalities with respect to obtaining the respective "bundle of rights." It was first accepted in 1886, but the U.S. did not become a signatory until well over a hundred years later (i.e. March 1, 1989).

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

TRIPS is administered by the World Trade Organization(WTO) and the full text can be found on the WTO website here. TRIPS mandates minimum intellectual property (IP) rights that all signatories must provide, including rights specific to copyright imported by and large from Berne. Its mission can best be summarized by the introductory language of its preamble:

"Desiring  to reduce distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade;. . .[We] Hereby agree as follows:"

TRIPS was negotiated as part of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994 and remains the single most encompassing treaty regarding international IP.