Copyright Meet Speech

Check out this article on some of our online service/social networks and the impact that private companies have on our free expression by clicking here.  Certainly the first amendment doesn’t give us much protection in private areas like shopping malls or the private homes of others (or even the sidewalk around the back of a Post Office, for that matter, or a military base if you are an anti-war protester), but online systems like youtube and myspace represent a whole new frontier, entirely governed by private terms of service contracts with individual users.  The Supreme Court has held, as far as copyright is concerned, that the rules on fair use balance an individual’s free expression against the property interests of the copyright holder.  Is fair use a sufficient standard, however, when the determination of fair use is entirely in the hands of an editor at a web site operator?  Especially when there is no clear path to appeal an adverse decision of the operator, and no constitutional remedy?

eBay Copyright Infringement in France

eBay, according to Yahoo News, was held liable for infringement of a number of copyright holders based in France.  See the Story.  This is a surprising result, especially given the large fine against the online retailer.  With regards to vicarious liability, under US Copyright law I would imagine this result would be quite surprising, especially when eBay serves so many customers and has not built its business around selling or buying counterfeit products.  eBay got its start advertising to individuals to sell their old junk, and they still are known as the online garage sale or flea market.

Duration and Renewal

Under the present copyright act, the typical duration of a copyright is the life of the author, plus 70 years (works for hire and anonymous works endure for 120 years from creation or 95 years from publication, whichever is shorter). Section 302(a), (c). Unfortunately, it gets a little more complicated for works fixed before 1978 when the current copyright act went into effect. The rules vary for works based on whether they were published or not before 1978.

Under section 303, published works that were fixed before 1923 (95 years is the maximum copyright duration for works published before 1978) are now in the public domain. Works published after 1923 and before 1978 enjoy a maximum of 95 years of copyright protection under the act. However, that copyright protection is tied up with the renewal process, which was required every certain period of years under the 1909 act. If a published work required a renewal to be filed with the copyright office before 1964, and the author failed to appropriately renew, that published work would become a part of the public domain and lost its copyright protection. However, the authors of the 1976 act did look back to works that required a renewal after 1964, and made the renewal automatic for all those works. As of today, the maximum period of copyright protection is 95 years for works that were published before 1978.

As to unpublished works, these works were not protected by federal copyright until 1978. Therefore, states provided varying degrees of protection. The 1976 act authors wanted to preempt state copyright protection, by providing protection for all works that were fixed, regardless of whether the work was published or not. For unpublished works that were made recently to 1976, giving these works protection for the life of the author plus fifty years (now seventy years) would be reasonable. But what about works that were unpublished but originally fixed in the 1800s? Some state laws provided for perpetual copyright protection, which the federal law could not provide because of the constitutional mandate.

Congress decided that section 303(a) would provide a savings clause for works unpublished before 1978: if published between 1978 and 2002, the works would enjoy protection until at least 2047. If the works were unpublished in 1978 and remained so in 2002, copyright protection would continue until at least 2002.

Now, renewals are today automatic under the Act. However, the renewal intervals serve a second purpose, which is found in section 304 – the ability of the heirs of a deceased author to terminate transfers of rights of the author’s copyright by providing notice to the party or parties to whom the copyright was assigned. The timing to terminate such a grant is keyed to the renewal cycle of the copyright. See Section 304(c)(2).

Contributory and Vicarious Liability

The Supreme Court has addressed the problem of second party liability in a series of cases that go back to the 1980’s with Sony. In that case, the Supreme Court addressed the question of whether a neutral technology such as the VCR, with substantial non-infringing uses, could survive a copyright infringement lawsuit, and by extension, whether the manufacturer of that technology could be liable for the infringement of its end users. The Court held by a narrow margin that the VCR, because it could be used to record non-copyrighted materials or could be used for time shifting of copyrighted materials for later viewing, was covered under the doctrine of fair use.

In the late 1990’s, technology had advanced with the sharing of mp3 music files on such popular file sharing programs as Napster, Gnutella, LimeWire, and Grokster. Each of these variations on the mp3 file sharing technologies got its day in court, and all were held to be infringers who were not exempted by section 107’s fair use safe harbor. Why the change? Sony in the 1980’s was not marketing expressly to infringe on the copyrights of others. In addition, the parties representing the copyright holders were a smaller group of the overall parties with a copyright interest in the Sony case. However, by the time that Napster came to court, the Recording Industry Association of America (RIAA) represented most of the interested copyright holders as plaintiff, and evidence of illegal file sharing was quite clear from the statistical analysis and data collected from the defendant applications by the plaintiffs.

Justice Suter, writing for the Court in Grokster summed it up as there could just be no way that a court could find for the defendants, given the enormity of the evident theft of copyrighted materials via the Grokster service. Further, the defendant specifically marketed itself as a way to continue to infringe otherwise valid copyrights once Napster’s service was shut down by court order.

Service of Process

If you are litigating in Maryland, the Maryland Rules will govern how you are required to effect service of process for your initial pleadings. Service of Process is a jurisdictional matter; failure to achieve effective service of process will divest the court of jurisdiction to hear your case. The Maryland Rules for service of process are found at 2-121 through 2-126. Note that there are special rules for effecting process on corporations or other business entities, as described in 2-124(d)-(h).

Work for Hire

Section 101 provides a definition for work for hire: “(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument…”

If a work is considered a work for hire, the hirer or employer holds the copyright of the work.  Much litigation has ensued about this between parties that have worked together to make some final work, and between employers and employees.  The Supreme Court in Community for Creative Non-Violence v. Reid established a set of factors from the Restatement of Agency to aid courts in determining if one of the parties was an employee of the plaintiff.  These factors include: (a) right of hiring party to control manner and means of production, (b) the skill required to complete the work, (c) source of instrumentalities and tools for the work, (d) location of the work, (e) duration of the relationship of the parties, (f) whether hiring party has right to assign other projects to hiree, (g) discretion of the hiree over when and how long to work, (h) method of payment for the work, (i) hiree’s role in hiring and paying others to assist with the work, (j) whether the work is regular work of hiree, (k) employee benefits, and (l) tax treatment of the hiree.  In Aymes v. Bonnelli, the court held that not all these factors are equally important, and whether or not the employer pays social security taxes and other benefits for the alleged employee will always be relevant to a finding of the status of the hiree.

If the hiree is found to be an employee, the next question is whether the employee was acting within the scope of his employment.  Avtec v. Pfieffer held that the factors in section 228 of the Restatement of Agency would be used to determine if the work was completed with the scope of the employee’s employment.  These factors are (a) if the work is of the kind the employee is employed to perform, (b) the work occurs substantially within the authorized time and space limits of the employment, and (c) the work is actuated by a purpose to serve the master.

If the employee is not acting within the scope of his employment, plaintiffs will then look to determine if part two of the work for hire definition is relevant.  Generally, courts require there to be a written agreement between the parties indicating that the party commissioning the work will own the copyrights to the work, and the work itself must fit within one of the categories in the statutory definition.

If neither of the two clauses of the work for hire definition fit the fact pattern, the independent contractor will hold the rights to the copyright.

Intel Mac and Parallels

The Intel Macs released by Apple in 2006 support the operation of a Windows XP SP2 or Vista workstation running virtually, or as an alternate boot-up operating system through Boot Camp (which now ships with OSX 10.5). Parallels and VMWare Fusion are two virtualization software packages that are designed for OSX and are generally reliable for running Windows software packages like Microsoft Office (which does run more quickly natively in Windows than in the versions for Mac). Both Parallels and VMWare Fusion create a separate Windows partition on your Mac’s hard drive in the free space, and then install from your Windows XP SP2 disk. Note that you may need to create a bootable SP2 disk if you are an owner of the original Windows XP disk. There are several software packages that will allow you to integrate the original XP source files with the service pack files, and then burn the final collection to a bootable CD for the XP install.

I’ve personally been using Parallels (version 2 and then version 3) for about two years. Parallels performs reasonably well on the Mac – you should allocate at least 512 MB of RAM to Parallels when operating your virtual Windows PC. This generally means that you should get at least 2 gigabytes of RAM for your Mac (the newer Macs support up to 4 gigabytes) so you can still switch back to OSX for programs that work better natively in Mac (for example, Firefox still works better for Mac than Windows, as does itunes).

Parallels also allows you to share your virtual Windows installation’s hard drive to your Mac, which makes it easy to move files between the two packages. A word of caution: just because you have a virtual Windows computer on a Mac, don’t think that the virtual computer doesn’t need anti-virus software. It is, for all intents and purposes, a “real” Windows computer with the same security problems as all those physical installations of Windows. Note, however, that you can save yourself from horrible screams of agony by using the Parallels snapshotting feature, which allows you to roll your virtual machine back to a safe point in time and be back up and running again in a few minutes (I’ve had to use it a few times because of installing software that caused problems with my virtual machine). Once you have your virtual machine up and running, and configured to be useful (with the appropriate software and applications, patches, etc installed) be sure to make a snapshot with the snapshot manager.

Snapshotting’s drawback is that your virtual disk will grow with changes made to the virtual machine after the snapshot was made. You can manage this by periodically deleting your old snapshot and making a new one (if you are certain that your virtual PC is currently operating ok). Snapshots are not a substitute for regularly backing up your data to a separate disk or media. However, what’s nice is that you can back your entire virtual machine file (which is stored in a single directory on your Mac’s hard drive) and restore that file to another installation of OSX/Parallels all together. This is also a simple way of implementing identical virtual machines across several Macs, should you run into such a thing.

Overall, I would recommend that you use the virtual PC software for Mac, especially if you are thinking about getting a new laptop and aren’t sure you want to get a new PC.


An “author” is not defined by the Act. However, the implication of the Act is that an author is a human that is able to bring about a creative work that can be protected by the Act. This definition also implies that a non-human author, for example, a computer program, could not create copyrightable works on its own; only people can own copyrights.

An author need not directly make the thing to be copyrighted to be the copyright holder. For example, in Lindsay, the plaintiff director had created detailed instructions for an underwater crew to make video footage of the salvage of the Titanic. The plaintiff himself did not travel, for safety reasons, with the underwater crew, and did not personally operate the video equipment to make the footage. However, he did retain authority over what footage was acceptable and what was not, and consistently exercised a directorial role over the film crew. The plaintiff won his claim of authorship to the film and movie rights.

The Act also recognizes works that have joint authors, when the court is able to determine that parties collaborated with the intent of creating a unitary work, and treated each other as authors. For example, the two parties exercised joint say over the final work, and otherwise acted as equals in the work. However, a court will not view a mere contributor to a film as an author for purposes of copyright ownership, even if that contributor’s efforts are important to the film and substantial in nature. This is especially true where the contributor signs a contract acknowledging that he is not an author and does not exercise dominion or control over the final product. See Aalmuhammed v. Lee.

Fixation Issues

When is a thing “fixed” for purposes of the copyright act? Section 101 provides a definition of “fixed:” when a work is embodied in an embodiment that is “sufficiently permanent or stable to permit it to be perceived, reproduced or otherwise communicated for a period of more than transitory duration.”

Within the context of technology, this question is raised when something is presented to an end user in the working memory of a computer – is this sufficiently fixed for protection under the Act, even though it may never be saved to the hard drive or to a network storage device? What parts of video games are fixed, in light of the fact that the audio visual presentation on screen to the user may vary based on the input of the user? Fixation is also a question when a party argues that a work is a derivative of another’s work. For example, in Lewis Galoob Toys, the court was faced with the question of whether the defendant’s product created a derivative work when used in conjunction with plaintiff Nintendo’s game system. Here, the court ultimately held that the defendant’s product did not create derivative works when it allowed video game users to alter their character’s statistics or vulnerability to harm within the video game. The court reasoned that the product did not incorporate a portion of the copyrighted work in a concrete or permanent form – there was not fixation in the manner in which the Act intended.

Copyright Basics

17 U.S.C. et. seq. is the statutory scheme the implements the constitutional protection of intellectual property in Article I section 8 clause 8: “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Copyright creates exclusive ownership of a wide variety of intangible matters, but the statutory scheme also creates counter-balances to those rights for the general public, all in the interest of furthering the discovery and creation of useful things.

Section 102 of the Act describes the general subject matter of copyright, and the requirement that protected works be original and fixed in a tangible medium of expression. “Original” works of authorship need not be terribly original in the dictionary sense – but the Supreme Court has interpreted this language to be a modicum more than just rote copying of the same content of others. In any case, ideas, principles or concepts cannot enjoy the monopoly protection of the copyright act. Section 102(b) both carves out things from copyright protection that are dedicated to the public and things that should be protected by patent law.

Section 106 of the Act spells out the six general areas of exclusive rights in copyrighted works: (1) reproduction, (2) derivative works, (3) distribution, (4) “public” performance, (5) “public” display, and (6) the public performance of sound recordings in a digital audio transmission. These exclusive rights have garnered special meaning over time as the result of various court opinions, and changes to the statutory scheme itself. For example, sound recordings did not enjoy federal protection until the early 1970’s.

Sections 107-122 of the Act describe the various statutory limitations on the exclusive rights described in section 106. “Fair use” described in section 107 has been the subject of a number of Supreme Court opinions that have broadened and narrowed the protection this section has granted to copyright infringers. In addition, the copyright act rights have gone through some changes as a result of the technology boom that began in the 1980’s and continues today in such mediums as the world wide web, Napster and other music sharing services, and other technology changes in audio and video display and performance (like youtube, for example).

Chapter 2 of the Act discusses the copyright ownership and transfer. Chapter 3 provides for the complex durational rules for the exclusive rights (which can survive the author and pass to his or her heirs). Chapter 4 describes the notice, deposit and registration requirements for copyright. Chapter 5, supplemented by extensive case law, covers copyright infringement. For more details, see other posts or check out the Copyright Office’s website for more information.  Chapters 6 through 13 cover more detailed or sophisticated sections of the copyright act, and other related acts.