Copyright laws & cases

INTERNATIONAL COPYRIGHT  AND DURATION 

**The  Berne Convention  is an international copyright treaty first established in 1886 that the US joined in 1976. It became effective in the US in 1978, was ratified by  Congress in 1989 and  also in 1998.  (These dates are significant because material copyrighted before then may fall out of copyright in the somewhat byzantine US system).

International copyright is administered by the World Intellectual Property Organization, which is part of the World Trade Organization of the United Nations.

Although the U.S. refused to join the Berne  Convention until 1976,   the U.S. has since been pushing for even tougher sanctions and longer duration of copyright protections.  This has to do (mostly) with the perception that the US had a wealth of intellectual property exports — from patented inventions to Hollywood movies —  by the end of World War II.

China joined the Berne Convention in 1992, and signed a copyright protection agreement in 2001. And even though it’s easy to get pirated copies of almost anything in China, copyright laws are starting to be seriously enforced, according to a 2017 article in the China Law Blog. 

Under European law,  a work enters the public domain 70 years after the author’s death (life+70).    Under African and Asian law, a work enters the public domain 50 years after the author’s death.  See this Wikipedia list of works entering public domain.

** US Copyright Act of 1976 —  was a rewrite of the original 1790 Act and its 1909 revision. It dealt with what is copyrightable and how it is done. It brought the US into initial compliance with the Berne convention on international copyright, especially duration (author’s life + 50) but also created a “work for hire” category that could extend copyright 75 years from publication or 100 years from creation, whichever expired first.   The 1976 Act also attempted to deal with what  were then new problems like photocopying, audio and video recording and cable television. 

** Sonny Bono Copyright Term Extension Act, 1998 —  Extended the duration  of copyright protection. In general, copyright terms were extended for an additional 20 years, from 75 to 95 years from publication.

Copyright duration 

One of the biggest arguments about copyright involves the extraordinarily long period of time that US copyright remains in force.  Under the Berne convention, which applies to most countries in the world, copyright lasts the life of an author plus an additional 50 years.

Under US copyright law,  works created after January 1, 1978 are protected for the life of the author plus an additional 70 years. Corporate works (anonymous, pseudonymous, or a work made for hire) have copyright terms lasting 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first.

This  law is built on the 1976 Copyright Act, which extended copyright protection to new technologies, codified Fair Use, and began to recognize  international copyright protections under the Berne Convention.

Twenty years later, as works from the 1920s were beginning to fall into the public domain, the Sonny Bono Copyright Term Extension Act of 1998 was passed, adding another 20 years, so that anything produced after 1923 would still be under copyright.  (See Why Congress kept Mickey Mouse out of the public domain, Washington Post, Oct. 25, 2013).

A Supreme court case challenging this copyright term extension was Eldred v. Ashcroft, the duration was challenged  under the idea that the Constitution only provided for a “limited” amount of time for exclusive copyright to “promote the progress of science and the useful arts.”  Clearly 95 to 110 years is hardly limited, but the courts said it was up to Congress to decide how terms were to be limited.

The legal scholar who brought the Eldred suit, Lawrence Lessig, describes some of the broader issues around public domain and copyright  in this highly recommended TED video. ,,,,

It’s interesting that in the Eldred v. Ashcroft (2003) case, the duration was challenged  under the idea that the Constitution only provided for a “limited”  amount of time for exclusive copyright to “promote the progress of science and the useful arts.” The courts said it was up to Congress to decide what that meant.

Even so, could Mickey Mouse go into the public domain in 2024?  Possibly yes, under current law. The first MM cartoon was published in 1929. But Mickey is also heavily trademarked. So even with the cartoons in public domain (and therefore easy to copy), no one but Disney would be able to use MM for modern day entertainment.

** Digital Millenium Copyright Act,1998  — Brought US into compliance with WIPO and required embedded  anti-copying circuitry in video players. It also created penalties for circumventing  copyright protection devices and set up a controversial procedure for taking copyrighted works off the Web. The procedure works like this: If a server  administrator is notified of a potential copyright violation, the server administrator  must either shut down the users account immediately or file an affidavit (a statement  to the court) which says, under penalty of perjury, that the administrator  does not believe the user has infringed on a copyright. This procedure clearly  tilts the legal presumption of innocence away from the accused.

The DMCA is not working, according to a June 2016 letter to Congress written by over 180 musicians and organizations. Included on the list are Paul McCartney, Cher, Taylor Swift and many others. The problem is that the law was designed to protect organizations like Google and YouTube, which have grown rich, but not musicians, whose income has fallen drastically since the digital revolution.

Farm and consumer groups have also challenged some of the DMCA regulations at the Library of Congress Copyright Office, according to National Public Radio (Aug., 17.  2015)

SOPA  Stop Online Piracy Act. —Also PIPA   Protect IP Act — (Neither were  enacted) Designed to protect US sites from offshore IPs, the over breadth of enforcement powers alarmed the digital free speech community.  Proponents said it would bolster enforcement of copyright laws, especially against foreign-owned and operated websites. According to a Wikipedia article on SOPA, opponents said it would have threatened free speech and innovation, allowing law enforcement to block  entire internet domains if they found infringing content posted on a single blog or webpage. This would have bypassed the “safe harbor” provisions of the Digital Millennium Copyright Act.   Massive internet protests took place in January of 2012. The act was not passed.

** Music Modernization Act, 2018 ( Pub.L. 115–264) is a new law that will  a modernize the performance and reimbursement structure of music and audio recordings to accommodate streaming and other new music distribution technologies.  Its main effects are:

  • Streaming services will pay musicians and copyright holders through a royalty arrangement;
  • Audio producers and engineers will also be paid ;
  • Music recorded before 1972,  not previously protected by copyright law, will now be protected.

COPYRIGHT CASE LAW

**PARODY / FAIR USE: Campbell v. Acuff-Rose Music — 1994 — The musical group 2LiveCrew created a parody of Pretty Woman. The song was Roy Orbison’s 1960s classic Pretty Woman,” and the company run by Orbison’s heirs (Acuff-Rose) sued Luther Campbell of 2LiveCrew. The US Supreme Court, said that parodies are protected under the Fair Use doctrine provided that the parody has substantial transformative value. (also see section 5.5, Music and copyright.

** COPYRIGHT DURATION: Eldred v. Ashcroft Jan. 2003 — In oral arguments,  petitioners argued that the 1998 Sonny Bono Copyright Term Extension Act, which extended the term of subsisting and future copyrights by 20 years exceeds Congress’s power under the Copyright Clause and violates the First Amendment. Some have argued that Disney has pushed the extension. In the majority opinion, Justice Ginsberg said Congressional power to extend copyright terms was not limited. For a good commentary on this issue, see “Why Copyright Today Threatens Intellectual Freedom,” by Marjorie Heins.

** WHO OWNS A COPYRIGHT?: Community for Creative Non-Violence v. Reid, 1989 — A sculptor commissioned to do a work  concerning a homeless man by the community for creative non-violence was not  an employee of the group and, absent a specific contract, was the owner of  the copyright to his work even if CCNV paid for his time and the copy of the  sculpture. This is the case that defined the “work for hire” doctrine.

** WHAT CAN BE COPYRIGHTED: Fiest Publications v. Rural Telephone Service, 1991 — Only original arrangements of facts can be copyrighted,
not facts themselves. Fiest was competing with own telephone book.

COPYRIGHT AND TECHNOLOGY

Generally, courts have changed from an open view of technological circumvention of copyright to a far more restrictive view, in part because of the way new digital technologies have allowed multiple generations of copies to be produced at the same quality level as the original.

** Sony v. Universal City Studios, 1984.  Universal sued to block the spread of Sony VCRs. The Supreme Court said that even though 100 percent of the  material was often copied, the purpose of its use was legitimate if it was non-commercial “time shifting” for home viewing. This ruling was central to the arguments in A & M v. Napster.

** A&M Records v. Napster, 239 F.23d 1004 (9th Cir. 2001) –Time  shifting as per Sony v. Universal City not valid when dissemination was deliberately widespread. MP3.com and Kazaa also embroiled in legal disputes over music   sharing. More on P2P networks and their legal problems at this Wired archive site.

** MGM Studios Inc. v. Grokster Ltd. 125 US 2764, 2005 — If VCRs and other copying technologies are legitimate under Sony v Universal City Studios, what about P2P file sharing software?  The court distinguished between technology with some legitimate uses and technology that was clearly focused on  sharing copyrighted music.  They did this by establishing an “inducement test.” Anyone who distributes a device  (or software) with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. The court went to great pains to stress that the inducement rule premises liability on purposeful, culpable expression and conduct, and thus does not compromise legitimate commerce or  discourage innovation with a lawful promise.

** Oracle America v Google Inc.   2016 — A trial in the 9th federal circuit over the operating system used by Google Android ended with a Google  victory. Jurors agreed that Oracle’s copyright to Java software had not been infringed when Google created a parallel programming language designed to work with Java and named some of the new language’s API functions in ways that were similar to Oracle’s Java.   Although the lawsuit only involved a fraction of Google’s revenues, a victory for Oracle would have meant that courts would be backing a legal theory that would have hampered  software compatibility.

FREE SPEECH AND INTELLECTUAL PROPERTY 

Before the DMCA,  the courts consistently ruled that copyright infringement claims could not interfere with freedom of speech.   Three cases illustrate the point:

  • Rosemont Enterprises v. Random House, 1966 — When an author began researching a book about the mysterious billionaire Howard Hughes (the model for Mr. Burns in the Simpsons),  Hughes bought up magazines that had previously published articles about him.    He then tried to stop the research by suing the author.   But the courts ruled that copyright laws cant be used to keep public figures out of public eye.
  • Time Inc. v. Bernard Geiss, 1968, involved the use of sketches based on Zapruder film of Kennedy assassination. The sketches were not a copyright infringement because no one can prevent public discussion of controversial issues.
  • The Wind Done Gone April, 2001 —  Alice Randall’s book was a parody of the once-popular 1930s novel and movie about the Civil War called Gone With the Wind.  In the novel, white Southerners experience discrimination.   Randall’s parody is written from the point of view of a slave in Scarlet O’Hara’s house. An  injunction stayed publication in 2000 but was soon lifted and in June, 2001 the book was published. A year later, the lawsuit on behalf of the heirs of the author of Gone With the Wind author was settled. The court’s final decision noted: “Copyright does not immunize a work from comment and criticism.” An ongoing issue is the extent to which prior restraint (in the form of a temporary injunction) should be used in copyright cases such as this one.

After the DMCA,  web sites with allegedly infringing materials could be taken down without much in the way of judicial procedure or due process.     According to an article on the Electronic Frontier Foundation site,  copyright claimants are increasingly misusing the Digital Millennium Copyright Act (DMCA) to demand immediate takedowns without providing any proof of infringement.  “Service providers fearful of monetary damages and legal hassles often comply with these requests without double-checking them despite the cost to free speech and individual rights.”  However, the DMCA has “safe harbors,” as noted above and as tested in the Viacom case:

Viacom v. YouTube (Google) –  2012 –    Viacom is the parent company of Paramount and MTV, among many other media companies, and started take-downs and lawsuits against YouTube in 2007.  Some 160,000 YouTube videos were violating Viacom copyrights, the company said.  YouTube responded that the DMCA’s safe harbor provisions meant that it did not have to act as the policeman, which made it harder for Viacom to sue a lot of people at once.  In April 2012, a federal district court said YouTube “is protected from liability except where the company actually knew of (or was willfully blind to) specific instances of infringement of material at issue in the case, or facts of circumstances indicating such specific infringement.” (See April 5, 2012 EFF article by Corynne McSherry)

Sapient v. Geller — Jan. 2008 — Brian Sapient, a member of the “Rational Response Squad,” posted a YouTube video,  but Geller issued a “take down order” under the DMCA. This led to a suit, but the courts threw it out. Clearly, copyright infringement claims cannot stave off serious criticism.

Online Policy Group v. Diebold Inc — Oct., 2004 — In the ongoing debate over the security of electronic voting machines, a California court found Diebold Inc. guilty of deliberately misrepresenting its copyright claims under the DMCA as it attempted to silence criticism.  In his decision, Judge Jeremy Fogel wrote, “No reasonable copyright holder could have believed that the portions of the email archive discussing possible technical problems with Diebold’s voting machines were proteced by copyright .. . the Court concludes as a matter of law that Diebold knowingly materially misrepresented that Plaintiffs infringed Diebold’s copyright interest.” See links from the Electronic Frontier Foundation.

Dec, 2009 — US and international parody web sites are being subject to inappropriate takedown orders, according to the Electronic Frontier Foundation. In one case, Peabody Coal objected to a climate change parody. In another, Environment Canada objected to a Danish web site hosting an American parody, and the site was taken down without due process.

Oct 2014 — Canada rewriting copyright laws to benefit political advertising.