Advanced Copyright Law and Policy

Washington College of Law, American University

Wednesday 7:30 - 10:10 

924-001   WCL 501

Spring 2006

Professor Rob Kasunic

Office hours by appointment 


                    Jump to Class #1   2   3   4   5   6   7   8   9   10   11   12   13   14


Required Texts: (Click links for purchase options)

bulletJessica Litman, Digital Copyright (Prometheus Press, 2001)
bulletThe 1976 Copyright Act  17 U.S.C 101 et seq. (Title 17) 
Note: Students may already have supplements containing title 17 from other courses that may be used. The entire code is available on the web at: http://www.copyright.gov/title17/ 
The complete text is available for purchase from the GPO at:  
http://bookstore.gpo.gov (search for Circular 92) 
Stock number: 030-002-00197-7 
Title: Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code, June 2003
ISBN: 0-16-067779-3

Optional texts: 

bulletPike & Fisher, The Digital Millennium Copyright Act: Text, History and Case Law (contains most of the cases and rulemaking material we will be covering)
bulletJames Lardner, Fast Forward: A Machine and the Commotion it caused [Sony Betamax]    (Out of Print, but has been put on reserve in the WCL Library)
bullet Copy Fights, Cato Institute
bulletThe Digital Dilemma (National Academy Press, 2000) (students can use the free online version)

Other required and recommended readings will be made available online, in handouts, or on reserve in the library. 


bullet For ideas on research topics, the many recent copyright news articles linked at: http://www.kasunic.com/news.htm may provide leads. 


bullet In addition, all students must read Pamela Samuelson's article about good legal writing before choosing a topic and are encouraged to read again it after choosing a topic: http://www.sims.berkeley.edu/~pam/papers/goodwriting.html.



bulletThe grade will be composed of 90% for the research paper (including outline and draft) and 10% for class participation. All students are expected to participate in class and each student will also discuss his or her research paper at the end of the course. Students may earn a participation credit in class by demonstrating familiarity with the course materials and verbally analyzing relevant legal issues. 


bulletProposed paper topics due by: February 23, 2006 
bulletPaper outline due: March 16, 2006 
bulletPaper draft due: April 13, 2006 
bulletFinal draft due: May 14 (Final day of exam period)

Each student must complete an original research paper of at least 20 double-spaced pages, including footnotes. You may also submit a longer paper (30 pages minimum) for satisfaction of the upper-level writing requirement.


Class Schedule


1     January 11    


bullet Class introduction
bulletDiscussion of Google Print Project and general views of copyright
bulletReview of copyright basics with powerpoint slides

Questions to consider for class:

bulletWhat's your view of the current state of copyright law?
bulletWhat are the benefits?
bulletWhat are the problems?


2     January 18 

bulletReview of copyright basics with powerpoint slides continued.


3     January 25

Copyright Infringement --  Practice and Litigation:        

bulletThe exclusive rights, statutory limitations and remedies in practice
bulletReview of a broad array of infringement cases in powerpoint presentation
bulletBouchat v. The Baltimore Ravens, Inc. and NFLP, Inc., 228 F.3d 489, 56 USPQ2d 1422 (4th Cir. 2000), cert. denied, (U.S. May 21, 2001) (No. 00-1494) -- (Liability Phase)
bulletBouchat v. The Baltimore Ravens, Inc. and NFLP, Inc., 346 F.3d 514 (4th Cir. 2003). (Damage Phase)
bulletTo view the works at issue, see: http://www.kasunic.com/cert_articles.htm 
bulletFor more interesting investigation of music infringement cases, take a look at the comprehensive Columbia University Library site and the Copyright Website

Questions to consider for class:

bulletIs copyright litigation a practical alternative for most copyright owners?
bulletWhat alternatives are possible?
bulletDoes the threat of litigation chill lawful use of copyrighted works, for example, see ChillingEffects.org


4     February 1        

bulletLitigation case review and discussion continued.


5     February 8

The Balance in Copyright:        

bulletFair Use review and application to technology: Discussion and review of Section 107 
bulletFair use returns to its roots: Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)
bulletFair use and technology -- the Betamax: Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 104 S.Ct. 774 (1984)
bulletExcerpts of the works on the Copyright Website

Fair Use and Technology:

bullet Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 104 S.Ct. 774 (1984) focus only on the fair analysis. You might also contrast the dissent's view of the fair use analysis
bulletApplication to the Internet environment: Kelly v. Arriba Soft,  336 F.3d 811 (2003) which was substituted for the prior opinion at 280 F.3d 934 (9th Cir. 2002)
bulletReconsideration of the Google Print Project in light of our discussion of the fair use analysis
bulletRead the new district court opinion on Google's caching

Questions to consider for class:

bulletIs fair use a right?
bulletIs is merely the "right to hire a lawyer"?
bulletDoes the balance in copyright law rely on fair use?
bulletWould we be better off with specific, more certain exemptions?
bulletWhat does Campbell teach us about the fair use analysis?
bulletHow would you analyze the factors in the Google Print Project?
bulletHow does the Kelly decision affect your analysis?
bulletHow is it different from Kelly?
bulletWhat are the "uses" involved?
bulletDoes the existence of the Open Content Alliance affect the case?

Recommended additional reading on this topic: James Lardner's "Fast Forward: A Machine and the Commotion It Caused" is an excellent book on the background and events surrounding the Sony Betamax's development and litigation (On Reserve at the Law Library)


6.    February 15        


Continue discussion of fair use.

The Idea/Expression dichotomy, merger, scenes a faire, blank forms and de minimis authorship:


Can "prices" constitute copyrightable expression? Look at NYMEX and the district court opinion in New York Mercantil Exchange, Inc. v. Intercontinentalexchange, Inc.


Is the arrangement of traditional yoga positions into a sequence copyrightable expression? Read about a recent suit and here for more information.


Are goal line celebrations by athletes and other sports moves copyrightable choreography? 


What role does the idea/expression dichotomy play in copyright?


Does the bar on copyrightability for de minimis authorship also serve a public purpose?


How should merger be viewed: as a bar to copyrightability or a defense to infringement?

7     February 22

Proposed Paper Topics Due!

Other limitations and defenses, including the proposed Orphan Work limitation on remedies:

bulletSection 108
bulletSection 110
bulletTitle II of the Family Entertainment and Copyright Act
bulletSection 113 and "useful articles" in Section 101
bulletSection 120

The Copyright Office Orphan Works proposal

bulletThe Report
bulletThe Proposed Legislative text


8     March 1     

Limitations on liability relating to materials online and the DMCA's Section 512:

bulletThe Copyright Office's summary of the DMCA ( Read pp. 8-13)
bulletDigital Copyright pp. 89-121
bulletThe FatWallet.com story and another and the Chilling Effects site 

Optional additional reading:

bulletIn re: Charter Communications, Inc., ___ F.3d ___ (8th Cir. 2005)
bullet RIAA v. Verizon decision, 2003 U.S. App. LEXIS 25735 (DCC 2003)
bulletEllison v. Robertson, 9th Circuit opinion (February 10, 2004) [the district court opinion is available at: Ellison v. Robertson, 189 F. Supp. 2d 1051 (C.D. CA 2002)]
bulletRead sections with headings on direct, contributory and vicarious liability in Religious Technology v. Netcom Online Communication Services, 907 F. Supp. 1361 (C.D. Cal 1995)
bulletThe 9th Circuit Napster decision (focus on the facts and 512 defense in section VI.b
bullet ALSscan v. Remarq, 239 F.3d 619 (4th Cir. 2001)
bulletCostar v. Loopnet, 164 F. Supp 2d 688 (D. Md. 2001)
bulletHendrickson v. eBay, Inc., 165 F. Supp. 2d 1082 (C.D. Ca 2001) or (here)
bullet Arnold Lutzker, et al., Highlights of New Copyright Provision Establishing Limitation of Liability for Online Service Providers


9     March 8   

Paper outline due

The Legislative Process generally and the legislative history of the DMCA 

bulletJessica Litman's, Digital Copyright pp. Skim pages 11 - 88, Read pp. 122-150


bulletDavid Nimmer's article, Appreciating Legislative History: The Sweet and Sour Spots of the DMCA's Commentary

The First Sale Doctrine and backup copies. :

bulletRead discussion of First Sale, Hard Copies and Digital Copies on the Patry Blog (Tues, Oct. 25th) and the link to the summary of the Copyright Office's Section 104 Report. Also read about the origins of the First Sale Doctrine in the Report (pp. 19-25). How would you analyze the issue? Is the blog posting too simplistic?
bulletConsider the question of backup copies of works. What is the scope of section 117? Should the Copyright Act expand the ability to make backups? See the 104 Report summary on the backup issue. What should be entitled to be backed up?


March 15  -- Spring Break


10     March 22   

        To be announced: Either guest speaker or reschedule class.


11     March 29  

Introduction to Section 1201 

bulletRead closely: The Digital Millennium Copyright Act's Section 1201  
bulletThe statutory framework
bulletThe Copyright Office's summary of the DMCA on Technological Protection and Copyright Management Systems
bulletGeneral discussion of cases

The Litigation under Section 1201

bulletStorage Technology Corporation v. Custom Hardware Engineering and Consulting, Inc., __ F.3d __ (Fed. Cir. 2005).
bulletThe Chamberlain Group, Inc. v. Skylink Technologies, Inc., 381 F. 3d 1178 (Fed. Cir. 2005)
bulletLexmark Int'l, Inc. v. Static Control Components, Inc., 387 F.3d 522 (6th Cir. 2005)

Optional Additional Reading:

bulletUniversal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 346 (S.D.N.Y. 2000)
bullet321 Studios v. MGM Studios, Inc., 307 F. Supp.2d 1085 (N.D. Ca. 2004).
bulletFelten v. RIAA, bench decision transcript (HTML) and (PDF) and the cease and desist letter and other documents
bulletUS v. Elcom, Ltd. and Sklyarov, 203 F. Supp. 2d 1111 ( N.D. Ca. 2002): Judge White's Order denying defendant's motion to dismiss on constitutional grounds (PDF)
bulletUniversal City Studios v. Corley273 F.3d 429 (2d Cir. 2001)


12     April 5         


The Litigation under Section 1201 (continued) and The Copyright Office Rulemaking on Section 1201(a)(1)

bulletThe Anticircumvention Rulemaking record
bulletThe Federal Register Notice for the 2003 Rulemaking,
bulletthe 2003 Register's Recommendation summary in the FR, and 
bullet2000 Register's Recommendation to the Librarian of Congress


bulletThe Full Recommendation of the Register of Copyrights
bulletDan Burk's article on Anticircumvention Misuse
bullet For further information about DRM issues: Berkeley's 2003 Digital Rights Management Conference Online Resource page
bulletThe Grokster case, peer-to-peer file sharing, and secondary liability


13     April 12    

        Paper draft due  

        Student Paper Presentations 


14     April 19       

           Student Paper Presentations 


May 5-13     Student Papers Due! 

Graduating Senior are requested to turn their papers in by May 8th since these grades are due May 15. Submissions of the papers may be accomplished electronically, however, if you want to be absolutely certain that your paper has been received on time, you may also submit a hard copy to the Registrar in Room 304 on or before Saturday May 13. Students are responsible for identifying the Saturday hours of operation for Room 304. Electronic submissions of paper  should be submitted to: rkasunic@kasunic.com and also copy me at rkas@loc.gov. I will send a confirmation of all electronic submissions as soon as possible after receipt. To avoid problems, submission the day before the deadline (OR electronic and hard copy submission) is advised.




Copyright 1999 - 2014 Robert Kasunic. All Rights Reserved. 
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