Chapter 11- Intellectual Property: Protecting and Using Intangible Creations

Topic Overview:

At the start of this chapter there is a quote from Barack Obama, former President of the United States, "We're going to aggressively protect our intellectual property. Our single greatest asset is the innovation and the ingenuity and creativity of the American people. It is essential to our prosperity, and it will only become more so in this century."

This quote really sums up the importance of protecting individuals' intellectual property. People's creativity and innovation helps expand and make the world a better place. We have evolved and become more efficient because of copyright law, and each day we are reminded that other people's art, words, expression are often "intangible property" yet property that deserves legal protection. Also, Barack Obama's last sentence regarding "this century" is necessary to emphasize. Will the digital age there needs to be constant awareness, and protection of people's ideas and permission must be granted.

Defining Key Terms:

intellectual property law: The legal category including copyright, trademark, and patent law.

copyright: An exclusive legal right used to protect intellectual creations from unauthorized use.

Statute of Anne: The first copyright law, adopted in England in 1710, protected authors; works if they registered them with the government.

plagiarism: Using another's work or ideas without attribution.

work made for hire: Work created when working for another person or company. The copyright in a work made for hire belongs to the employer, not the creator.

Transmit Clause: Part of the 1976 Copyright Act that says a broadcast network is performing when it transmits content; a local broadcaster is performing when it transmits the network broadcast; and a cable television system performs when it retransmits a broadcast to its subscribers.

moral rights: Under U.S. copyright law, the rights to certain artists - creators of paintings, drawings, prints, sculptures and art photographs - to require that their names be associated with their works, to forbid others from claiming to be creators of the works and to prevent intentional harm to or modification of a work that would harm the artist's reputation.

first-sale doctrine: Once a copyright owner sells a copy of a work, the new owner may possess, transfer or otherwise dispose of that copy without the copyright owner's permission.

infringement: The unauthorized manufacture, sale, or distribution of an item protected by copyright, patent or trademark law.

statutory damages: Damages specified in certain laws. Under these laws, copyright being an example, a judge may award statutory damages even if a plaintiff is unable to prove actual damages.

fair use: A test courts use to determine whether using another's copyrighted material without permission is legal or an infringement. Also used in trademark infringement cases.

safe harbor: The takedown notification provision of the Digital Millennium Copyright Act that protects Internet Service Providers and video sharing websites from claims of infringement when they do not know about the infringement, do not earn money from the infringement and promptly comply with a takedown notice.

trademark: A word, name, symbol or design used to identify a company's goods and distinguish them from similar products other companies make.

tacking: Allows a trademark owner to slightly alter a trademark without abandoning ownership of the original mark.

Important Cases:
Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd. (2005) - Grokster and other companies distributed free software that allowed computer users to share electronic files through peer-to-peer networks. Meaning, users can share digital files between computers without the use of a central server. Users mostly used the software to download copyrighted files. The companies profited from advertising revenue, since they streamed ads to the software users. Movie studios and other copyright holders sued and alleged Grokster and others of violating the Copyright Act by intentionally distributing software that enable users to infringe copyrighted works.

The question before the Court was regarding whether companies that distributed file-sharing software, and encouraged and profited from direct copyright infringement using such software, liable for the infringement?

The Court found unanimously that, yes, companies that distributed software and promoted that software to infringe copyrights were liable for the resulting acts of infringement. Secondary liability doctrines must be applied here. So many people used the software and going after each individual infringer would be too difficult so the alternative was to go against the distributor.

American Broadcasting Companies Inc. v. Aereo Inc (2014) - Aereo Inc. provides a service that allows its subscribers to watch programs that are currently airing on network television or record programs that will air in the future over the Internet. Aereo allows subscribers to watch live television and record shows, as well as on mobile devices. Was only available to be people who subscribed in the New York City area and offered only New York City local channels but the problem was that Aereo did not have a license from the copyright holders of the programs to record or transmit their programs.

Two groups of plaintiffs filed separate copytight infringement suits against Aereo. The plaintiffs claimed that the transmission of the programs violated their right to "publicly perform" their copyrighted works. The district court held that Aereo's system was not substantially different from another that had been determined non-violative of the rights of copyright holders and that, while the injunction might prevent harm for the plaintiff's businesses, it would irreparably harm Aereo's.

The question before the Court was, does a company "publicly perform" a copyrighted televison program when it transmits the program to paid subscribers over the Internet? 

Court found that yes in a 6-3 majority. Aereo is functionally similar to community antenna television. Under Congress' definitions established in the Copyright Act, Aereo performs work because it shows images in sequence with the accompanying audio, and it does so publicly because those images and sounds are received beyond the place from where they were sent by a large number of unrelated people. Aereo is then a broadcaster.

Relevant Doctrine:

1. The U.S. Constitution: Copyrights and Patents - Congress shall have Power to 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. 

2. The 1976 Copyright Act - Copyright protection applies to "original works of authorship" that are "fixed in any tangible medium of expression." Works protected include: literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works. 

3. Infringing Copyright - A copyright plaintiff must prove the following:

1. The work used is protected by a valid copyright - meaning it is an original work fixed in a tangible medium. 
2. The plaintiff owns the copyright. 
3. The valid copyright is registered with the Copyright Office. 
4. And either: a) There is evidence the defendant directly copied the copyrighted work, or b) The infringer had access to the copyrighted work, and the two works are substantially similar.

4. The Public Domain -  Material that no longer is under the copyright protection is in the public domain. 

5. Fair Use Defense - 

1. For what purpose was the copyrighted work used without permission?
2. What was the nature of the copyrighted work that was used without permission?
3. How much and what portion of the copyrighted work was used without permission?
4. What effect did the unauthorized use have on the copyrighted work's market value?

6. Transformative Use - Transformative use is one of the primary defenses used today when arguing fair use. Transformative use is generally fair use if the answer to two questions is "yes":

1. "Has the material you have taken from the original work been transformed by adding new expression or meaning?"
2. "Was value added to the original by creating new information, new aesthetics, new insights and understandings?" 

7. Types of Marks - A trademark is only protected if it is distinctive. There is a spectrum of distinctiveness in trademark law. The more distinct a mark, the more likely it will be eligible for trademark registration. 

Fanciful marks - invented marks, including made-up words most likely to receive trademark protection (Lexus).

Arbitrary marks- words that have ordinary meanings unrelated to the product or service (Apple).

Suggestive marks - marks that suggest a product's source or manufacturer's business but do not describe what the product is (Playboy).

Descriptive marks - marks that describe the product or service and leave little to a consumer's imagination and that must attach a distinctive meaning to the product or service (called secondary meaning) to the be trademarked. 

My Questions/Concerns:

1. With the amount of media in the world, do copyright laws need to be made more clear? There seem to be so many complexities and rules so much so that it may be difficult to always distinguish between what is public domain or not.