INNOVATIONS

PERFORMANCE RIGHTS IN SONGS

The copyright holder controls public (as opposed to private) performance

*"place open to the public"

*"any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered"

small business exception:

*use of a "single receiving apparatus of a kind commonly used in private homes"

Case: Broadcast Music Inc. v. Claire's Boutiques, Inc. (7th Cir. 1991)

Issue: Does Claire's meet the test of the small business exception?

*single receiving apparatus

*chain vs. small business

*commonly used in private homes

p. 472--new "bright-line" rule: "A store of less than 2000 square feet or a restaurant and/or bar less than 3750 square feet is free to play radio, television, or cable broadcast for their customers irrespective of the natue and size of the receiver/loudspeader used. Even for larger stores, restaurants, and bars, they are exempted if they satisfy specific limits on the number and size of the sets and speakers."

 

DIGITAL SAMPLING

Case: Jarvis v. A & M Records (D.N.J. 1993)

Def. used sampling of fragments of pl.'s song, "The Music's Got Me," in a composition called "Get Dumb! (Free Your Body," released on the A & M label. The pl. is alleging digital copying of a segments which amount to a "fragmented literal similarity" to the original. See p. 483-484.

 

Needs to go to trial to determine whether the fragments sampled rose to the level of copyrightable material.

 

IN THE NEWS:

Aug. 7, 2008-- D.J. Skirts Copyright Law

Oct. 3, 2008-- First Royalty Rates Set for Digital Music

 

WORKS MADE FOR HIRE--© belongs to the hiring party

1. work created by an employee in the scope of his/her employment

2. work commissioned for use as a contribution to a collective work

Test: hiring party's right to control the manner and means by which the product is accomplished

skill required

source of instrumentality, tools

location of work

duration of relationship between the parties

does the hiring party have the right to assign additional projects

hired party's discretion over when/how long to work

method of payment

hired party's role in hiring assistants

hiring party is in the business

employee benefits

tax treatment

Community for Creative Non-Violence v. Reid

"Third World America--and still there is no room at the inn" pp. 488ff.

 

 

INTERNET ISSUES

Universal City Studios, Inc. v. Reimerdes

8 movie studios sued to enjoin Eric Corley (operator of website 2600.com from distributing software that circumvents DVD ecryption [as well as linking to other websites that do.]

 

A & M Records, Inc. v. Napster, Inc.

18 record companies and 3 music publishers are suing Napster for "contributory copyright infringement" and "vicarious copyright infringement." Napster is not involved in direct copyright infringement; it does not copy, store or distribute MP3 files. It provides a free program, MusicShare, which permits users to locate and download MP3 files from computers owned by other MusicShare users.

Some findings of fact:

+Napster provides free, file sharing softward and sophisticated search methods as well as chat rooms

+At the end of 2000 there were 75 million users/10,000 music files per second [87% of which are owned by the plaintiffs].

+User's MP3 files are accessible only when he/she is online

+Napster plans to make $ off of targeted email, advertising links, . . . and especially its user base of 60-80 million.

+Napster's internal documents express the intent to threaten the continution of the record industry as it presently exists

+Napster's New Artist Program was introduced only after the lawsuit was filed and has only 11 new/unpublished artists (out of 1,150 NAP files sampled).

^Plaintiffs have a substantial investment of $, time and manpower

in creative endeavor

in actual or planned entry into the digital downloading market [pay-per-download]

^Plaintiffs' studies are more convincing than Napster's

survey--41% report napster replaced CD purchases; 21% report Napster helped purchase decisions

study of retail stores (1 mile radius of college/university campuses)

base

stores where college cut off Napster

top 40 wired colleges

Fair Use Analysis

purpose and character

nature of copyrighted work

amount/substantiality

effect on the potential market

Napster is not analogous to the Sony case

time [space]shifting

control

Conclusions:

*Napster users directly infringe copyright

*Napster is a contributory infringer: knows, has reason to know [constructive knowledge], or contributes to the infringing conduct of another

*Napster is a vicarious infringer: "has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities."

Metro-Goldwyn-Mayer Studios, Inc. v. Grokster (2005)

Grokster and Streamfast provide free software which can be used to download copyrighted music and movies (peer-to-peer sharing).

^conflict between artistic protection and technological innovation

^contributory infringement: "intentionally inducing or encouraging direct infringement":

*internal documents

*kit delivered to advertisers containing articles about potential to takeover Napster functions

*internal e-mail: "We have put this network in place so that when Napster pulls the plug . . . or if a court orders them shut down . . . we will be positioned to capture the flood of their million users that will be actively looking for an alternative"

^vicarious infringement

*neither company tried to develop filtering tools to diminish the opportunity to infringe

*profit: "the more the software is used, the more ads are sent out and the greater the advertising revenue becomes."