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)
 | Jessica Litman, Digital Copyright (Prometheus Press, 2001) |
| The 1976 Copyright Act 17 U.S.C 101 et seq. (Title 17) |
Optional texts:
| Pike & Fisher, The Digital Millennium Copyright Act: Text, History and Case Law (contains most of the cases and rulemaking material we will be covering) |
| James 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) |
| Copy Fights, Cato Institute |
| The 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.
| For ideas on research topics, the many recent copyright news articles linked at: http://www.kasunic.com/news.htm may provide leads. |
| 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. |
Evaluation:
| The 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. |
Deadlines:
| Proposed paper topics due by: February 23, 2006 |
| Paper outline due: March 16, 2006 |
| Paper draft due: April 13, 2006 |
| Final 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
Introduction:
| Class introduction |
| Discussion of Google Print Project and general views of copyright |
| Review of copyright basics with powerpoint slides |
Questions to consider for class:
| What's your view of the current state of copyright law? |
| What are the benefits? |
| What are the problems? |
2 January 18
| Review of copyright basics with powerpoint slides continued. |
3 January 25
Copyright Infringement -- Practice and Litigation:
| The exclusive rights, statutory limitations and remedies in practice |
| Review of a broad array of infringement cases in powerpoint presentation |
| Bouchat 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) |
| Bouchat v. The Baltimore Ravens, Inc. and NFLP, Inc., 346 F.3d 514 (4th Cir. 2003). (Damage Phase) |
| To view the works at issue, see: http://www.kasunic.com/cert_articles.htm |
| For 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:
| Is copyright litigation a practical alternative for most copyright owners? |
| What alternatives are possible? |
| Does the threat of litigation chill lawful use of copyrighted works, for example, see ChillingEffects.org |
4 February 1
| Litigation case review and discussion continued. |
5 February 8
The Balance in Copyright:
| Fair Use review and application to technology: Discussion and review of Section 107 |
| Fair use returns to its roots: Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) |
| Fair use and technology -- the Betamax: Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 104 S.Ct. 774 (1984) |
| Excerpts of the works on the Copyright Website |
Fair Use and Technology:
| 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 |
| Application 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) |
| Reconsideration of the Google Print Project in light of our discussion of the fair use analysis |
| Read the new district court opinion on Google's caching |
Questions to consider for class:
| Is fair use a right? |
| Is is merely the "right to hire a lawyer"? |
| Does the balance in copyright law rely on fair use? |
| Would we be better off with specific, more certain exemptions? |
| What does Campbell teach us about the fair use analysis? |
| How would you analyze the factors in the Google Print Project? |
| How does the Kelly decision affect your analysis? |
| How is it different from Kelly? |
| What are the "uses" involved? |
| Does 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
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Continue discussion of fair use. |
The Idea/Expression dichotomy, merger, scenes a faire, blank forms and de minimis authorship:
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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:
| Section 108 |
| Section 110 |
| Title II of the Family Entertainment and Copyright Act |
| Section 113 and "useful articles" in Section 101 |
| Section 120 |
The Copyright Office Orphan Works proposal
| The Report |
| The Proposed Legislative text |
8 March 1
Limitations on liability relating to materials online and the DMCA's Section 512:
| The Copyright Office's summary of the DMCA ( Read pp. 8-13) |
| Digital Copyright pp. 89-121 |
| The FatWallet.com story and another and the Chilling Effects site |
Optional additional reading:
| In re: Charter Communications, Inc., ___ F.3d ___ (8th Cir. 2005) |
| RIAA v. Verizon decision, 2003 U.S. App. LEXIS 25735 (DCC 2003) |
| Ellison 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)] |
| Read 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) |
| The 9th Circuit Napster decision (focus on the facts and § 512 defense in section VI.b) |
| ALSscan v. Remarq, 239 F.3d 619 (4th Cir. 2001) |
| Costar v. Loopnet, 164 F. Supp 2d 688 (D. Md. 2001) |
| Hendrickson v. eBay, Inc., 165 F. Supp. 2d 1082 (C.D. Ca 2001) or (here) |
| 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
| Jessica Litman's, Digital Copyright pp. Skim pages 11 - 88, Read pp. 122-150 |
Recommended:
| David Nimmer's article, Appreciating Legislative History: The Sweet and Sour Spots of the DMCA's Commentary |
The First Sale Doctrine and backup copies. :
| Read 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? |
| Consider 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
| Read closely: The Digital Millennium Copyright Act's Section 1201 |
| The statutory framework |
| The Copyright Office's summary of the DMCA on Technological Protection and Copyright Management Systems |
| General discussion of cases |
The Litigation under Section 1201
| Storage Technology Corporation v. Custom Hardware Engineering and Consulting, Inc., __ F.3d __ (Fed. Cir. 2005). |
| The Chamberlain Group, Inc. v. Skylink Technologies, Inc., 381 F. 3d 1178 (Fed. Cir. 2005) |
| Lexmark Int'l, Inc. v. Static Control Components, Inc., 387 F.3d 522 (6th Cir. 2005) |
Optional Additional Reading:
| Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 346 (S.D.N.Y. 2000) |
| 321 Studios v. MGM Studios, Inc., 307 F. Supp.2d 1085 (N.D. Ca. 2004). |
| Felten v. RIAA, bench decision transcript (HTML) and (PDF) and the cease and desist letter and other documents |
| US 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) |
| Universal City Studios v. Corley, 273 F.3d 429 (2d Cir. 2001) |
12 April 5
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The Litigation under Section 1201 (continued) and The Copyright Office Rulemaking on Section 1201(a)(1)
Recommended:
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| The 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.