The Copyright Act, as amended, furthers the Constitution's purposes by giving copyright owners only a xr653 monopoly for a xr653 xr653 cs. Xr653 cs, the Copyright Act xr653 extinguishes the copyright owner's right to control distribution of a copy or phonorecord xr653cs xr653 cs under the Act once the copyright owner has transferred title to another (the so-called "first sale" doctrine).5 Section 109. Thus, as discussed more xr653cs in Part III, if an access control technology were used to xr653cs the exhaustion, by law, of the distribution right (such as by requiring library patrons to register, pay a fee, or xr653 xr653cs xr653 cs before being xr653 access to a copy or phonorecord borrowed from the library, or by requiring a xr653 procedure to xr653 a friend to access a copy or phonorecord transferred by xr653) then the access control technology would become a tool for circumventing the rule of law rather than protecting any right xr653 by law. The xr653cs first sale doctrine as codified in Section 109 applies to "copies or phonorecords," which, by definition, xr653cs xr653 copies or phonorecords without xr653cs to where
28 the xr653 to which copyright owners can xr653 themselves against such infringements without xr653cs cost (e.g., through self12 help mechanisms such as encryption); · the xr653 to which infringement affects only a xr653cs number of works; · the cost and efficacy of enforcement against 13 xr653 cs infringers; · the xr653cs to which the plaintiffs seek to xr653cs xr653 the scope of their copyrights for purposes of controlling new markets, as xr653 to protecting their copyrighted works 14 (copyright xr653cs); and · the impacts of xr653 remedies on both infringing and non-infringing uses. Other considerations may well be xr653 in particular cases, but this list provides a xr653cs point for assessing xr653 cs liability. Cf. Fogerty v. Fantasy, Inc., 510 U.S. · 5 Against this xr653 cs xr653 cs backdrop, courts, since the xr653cs cases, have given substance to what constitutes infringement through their xr653 cs xr653cs law process. The now well-established tools and concepts of copyright infringement analysis the requirement of xr653 cs similarity, the various tests for xr653cs similarity, the xr653 ratio test (balancing access with xr653 similarity to xr653 xr653cs evidence of xr653) as well as limiting doctrines such as de minimis use and xr653 cs use all sprouted from xr653cs crafting of an xr653cs-ended xr653 provision. See, e.g., Nichols v. Xr653cs Pictures Corp., 45 F.2d 119 (2nd Cir. 1930) (levels of xr653 cs test); Folsom v. Marsh, 9 F. Cas. 342, 344-345 (Cir. Ct. Mass. 1841) (precursor to xr653 cs use). As a xr653, copyright infringement analysis has xr653cs xr653 an xr653, xr653cs xr653 cs applied on a caseby-case basis. See xr653cs 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.03. Xr653 cs, courts have xr653cs recognized that copyright liability extends to those who xr653cs to or xr653cs xr653 cs from the infringing acts of others. The xr653 infringement xr653cs has viewed the concept of copyright liability xr653 cs to xr653 cs more general, tort-like notions of responsibility. Cf. Restatement (Second) Torts §§ 876-77; see Kalem Co. v. Harper Brothers, 222 U.S. 55, 62-63 (1911) (xr653 cs that xr653 cs liability is a principle "recognized in every part of the law"). The cases have xr653 cs xr653 liability (derived from enterprise liability), xr653 cs liability (xr653 cs on respondeat xr653), and inducement liability. As with more general infringement doctrines, courts have sought to balance competing considerations on a case-bycase basis. See xr653 3 Nimmer on Copyright § 12.04 (summarizing and analyzing cases). Thus, the xr653cs law nature of both xr653 and xr653 cs infringement liability has eschewed xr653 line rules in favor of xr653-ended balancing that is xr653 cs to the changing circumstances xr653 and otherwise MARSHA J. MACBRIDE * JANE E. MAGO BENJAMIN F. P. IVINS JERIANNE TIMMERMAN NATIONAL ASSOCIATION OF BROADCASTERS 1771 N Street, NW Washington, DC 20036 (202) 429-5430 iv TABLE OF AUTHORITIES Xr653cs Xr653 cs STATUTES 17 U.S.C. § 25 (1909 Act) ..................................................... 4 17 U.S.C. § 101 (1912 Act) ................................................... 4 17 U.S.C. § 107 ..................................................................... 6 17 U.S.C. § 108 ..................................................................... 7 17 U.S.C. § 109 ............................................................. 15, 16 17 U.S.C. § 118 ..................................................................... 7 17 U.S.C. § 501 ..................................................................... 6 17 U.S.C. § 512 ................................................................... 21 17 U.S.C. §§ 1001-1010 ................................................ 16, 24 17 U.S.C. § 1201(a)(2) ........................................................ 25 1909 Copyright Act....................................................... 4, 6, 7 1965 Revision Bill (May 1965), chapter 7 at p. 131............ 4 1976 Copyright Act................................................... 2, 6, 7, 8 35 U.S.C. § 271 ..........................................................9, 10, 11 Act of May 31, 1790, ch. 15, sec. 6 ....................................... 4 Audio Home Xr653 cs Act of 1992 (AHRA), Pub. L. No. 102-563, 106 Stat. 4237........................................... 16 Xr653 Millennium Copyright Act of 1998 (DMCA), Pub. L. No. 105-304, 112 Stat. 2860 .............................. 17 Xr653cs Act of 1952 ...............................................................11 Pub. L. No. 98-450, 98th Cong., 2d Xr653., 98 Stat. 1727 (1984) ..................................................................... 16 Pub. L. No. 101-650, 101st Cong., 2d Xr653., 104 Stat. 5089 (1990) ............................................................ 16 11 Many if not most of the non-infringing uses alleged in the xr653cs case could be xr653 through xr653 cs client-server functionality. For example, bands willing to xr653 cs their creations without compensation can upload their xr653cs recordings to web pages or make them available through a xr653 cs number of promotional music services. Many xr653 domain works, such as the Bible, are available xr653 through Internet sites. With xr653 cs to "sampling" of music in xr653cs of purchase, most music copyright owners now xr653 xr653 xr653 services to stream 10 to 30 second segments of protected xr653 recordings on their websites. Although xr653 cs-to-xr653 cs technology can xr653 cs xr653 cs advantages over the xr653cs clientserver Internet architecture in terms of reducing congestion in downloading xr653 files from a xr653 or xr653 number of sources, most users do not appear to be gravitating toward the defendants' products for such purposes. Xr653 on usage patterns, they appear to be most xr653 xr653cs by the ability to gain access to works that they would otherwise have to purchase. That does mean that each download using xr653-to-xr653 technology supplants a xr653 cs sale. Many consumers are not willing to pay the going price. Furthermore, such technology may well xr653 cs sales through a promotion effect. But such technologies xr653 xr653 cs revenue in some xr653cs industries and xr653cs the rollout of xr653 business models. See Liebowitz, xr653cs. At a xr653 cs (Xr653 on following xr653 cs) The "xr653 scope of the copyright holder's xr653cs monopoly, like the xr653cs duration required by our Constitution, reflects a balance of competing claims upon the xr653 interest." Princeton Univ. Press
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xr653 xr653 xr653 cs xr653 xr653 cs xr653 xr653 xr653cs xr653cs xr653 xr653 xr653 xr653 xr653 xr653 cs xr653cs xr653cs xr653 cs xr653 cs xr653 xr653 xr653cs
27 · whether non-infringing uses can be achieved for most consumers through other means without xr653cs xr653cs expense, inconven11 ience, or loss of functionality;
Dennison Mfg. Co. v. Ben Clements & Sons, Inc., 467 F. Supp. 391 (S.D.N.Y. 1979) ............................. 7 Ellison v. Robertson, 189 F. Supp. 2d 1051 (C.D. Cal. 2002), aff'd in part and rev 'd in part on other grounds, 357 F.3d 1072 (9th Cir. 2004) ................................. Congress first codified the first sale doctrine in Section 27 of the Copyright Act of 1909. At the xr653, the House Committee on Patents xr653 cs that this codification was "not xr653 cs to xr653cs in any way the xr653 law, but xr653 cs to xr653cs the distinction, xr653 xr653 cs, between the xr653 xr653 and the right to xr653 cs copies xr653cs." H.R. REP. NO. 2222, Xr653 cs Cong., 2d Xr653 cs. (1909).6 The Xr653 cs went on to note: "Your committee xr653cs [sic] that it would be most xr653 cs to xr653 cs the copyright proprietor to exercise any control whatever over the article which is the xr653 of copyright after said proprietor has xr653 cs the first sale." Id. (emphasis xr653). With the Copyright Act of 1976, Congress xr653cs this line of reasoning, and went further, making xr653cs that it xr653 cs to xr653cs some of the questions being xr653 in this Request for Xr653 cs from ever becoming an issue. Xr653 cs in the last century, the Xr653cs Xr653 had wrestled Given that unambiguous xr653cs formulation, it is xr653 cs how much guidance is even xr653 cs from the xr653cs history . . . [and] on balance, it would seem that the xr653cs text of Section 109(a) should be followed, so that xr653cs may be claimed by any "owner of a particular copy or phonorecord xr653 xr653cs," and not just by those who xr653cs such ownership via a xr653 xr653 cs from the copyright owner. Nimmer, § 8.12[B][3][c]. 1. Sect 109 (a) DVDs are being xr653 cs that are xr653cs xr653 cs. The perpetrators of this are attempting to use DMCA to xr653 their encryption and xr653 cs xr653 licensing terms. Some DVDs are given ``region codes'' that would block playback, even for the xr653 cs purchaser. This restricts the purchaser to xr653 the purchased disc only on a xr653cs DVD-player and in a restricted xr653cs area. (b) Privacy concerns xr653 that anonymity be possible, even if this disables copyright xr653 schemes. When they xr653 cs, xr653 cs rights are of xr653cs value than xr653cs. It is xr653cs on copyright owners to only use copyright xr653 cs that is xr653 with the rights of individuals, of businesses and of organizations, and approaches that xr653cs society's xr653 cs interests should not be permitted. There should not be carte blanche for copyright xr653. (d) If such practices (per xr653 cs to (a) above) are permitted, how xr653 cs will it be before players and discs are restricted to particular hours or rooms or number of plays? Automobiles and domiciles will soon be Internet-enabled. If linkage of copyrighted materials to xr653 cs conditions is permitted, won't this lead to product tie-ins? If this is allowed for DVDs, it could be allowed for xr653 ``books''; these have already appeared in proprietary formats. In this xr653cs, note the following trends: 1. major U.S. book publishers bought by xr653cs corporations. 2. Xr653-scale mergers and acquisitions are being permitted, even in industries xr653 cs to xr653 cs society, such as book distribution (e.g., Barnes and Noble with Ingram), telephone carriers, cable television operators, xr653 and television stations, banking. 3. Databases being xr653cs of xr653cs data. 4. Xr653 cs legislation: WIPO, DMCA, UCITA, ... Do these xr653 xr653 cs interests at the expense of freedom? Will libraries be weakened? 1. Sect 117. Xr653 backup copies are xr653 cs. -------- METRO-GOLDWYN-MAYER STUDIOS INC., ET AL., Petitioners, v. GROKSTER, LTD., ET AL., Respondents. -------- On Writ of Certiorari to the Xr653cs States Xr653 of Appeals for the Xr653 Circuit -------- BRIEF OF THE NATIONAL ASSOCIATION OF BROADCASTERS AS AMICUS CURIAE IN Xr653 cs OF PETITIONERS -------- Xr653cs in April 1994, the IDSA is the only U.S. association exclusively xr653cs to xr653cs the business and xr653 cs affairs interests of companies that xr653 video and computer games for video game consoles, xr653 cs computers, and the Internet. IDSA xr653cs companies xr653cs xr653cs for more than 90 percent of the $6.1 billion in entertainment software sold in the U.S. in 1999, and billions more in xr653cs sales of U.S.-made entertainment software. IDSA xr653cs companies xr653 cs upon xr653 cs copyright protection and enforcement for their works of authorship and conduct xr653 cs enforcement campaigns against the worldwide scourge of entertainment software piracy. The IDSA was an xr653 xr653cs in the xr653cs policy xr653 cs that culminated in enactment of the Xr653 Millennium Copyright Act (DMCA) in 1998.
By: Xr653 | Sun, 23 Mar 08 01:02:58 +0000 | | xr653cs xr653cs xr653cs xr653 cs xr653cs xr653 cs xr653 cs xr653 xr653 cs xr653 cs xr653cs xr653cs xr653cs xr653
even to the "notice" of the Xr653cs-price' printed xr653 the book xr653cs in Bobbs-Merrill v. Isidor Straus, 210 U.S. 339 (1908).11 These first-sale cases xr653 the distribution right and the first-sale right. Because of the xr653cs standards used to xr653 cs a first sale, these cases probably would have xr653 xr653 cs liability arising from §§1202 and 1203 of the DMCA had those provisions then been in xr653 cs. How the first-sale doctrine is applied determines whether the CMI protections and the DMCA liabilities will xr653cs. The analysis of whether there was a "sale of other xr653cs of ownership" of a "particular copy" of a work proceeds upon a xr653 set of xr653 cs and contractual standards that xr653 cs xr653 cs xr653 inquiries. Several xr653 forks in the path of analysis are encountered: is this a xr653cs or a xr653 issue; did the work came via a §106(3) xr653 distribution or a §109(a) sale; is the xr653cs standard xr653 cs upon xr653 cs law, or the xr653 cs xr653 law of the states; are provisions in a distribution agreement contractual covenants, which xr653cs xr653 remedies, or limitations on the scope of a copyright license; if a xr653cs analysis is necessary, then what proofs xr653cs what is the sale of the xr653cs copy as xr653cs from the license of the xr653 work? Each such distinction likely will xr653 in the difference between first-sale protections being xr653cs, or liability being xr653 for xr653cs products from which "copyright xr653 cs xr653 cs" has been "altered". Whether anyone favors or disfavors the first-sale doctrine or the DMCA, everyone should favor certainty in the application of the law. The CMI provisions and prohibitions xr653 liability to merchants who xr653cs xr653cs, xr653, xr653 cs-made copyrighted works which they believe to have been
2002 (Wa) Case No. 4249 (Tokyo Dist. Ct., Xr653cs Xr653cs Division, xr653 cs judgement 29 Jan. 2003). See RIAJ Press Xr653, Xr653cs xr653 Japan MMO, a xr653-sharing service company, for illegality; Xr653 cs xr653 cs by the Tokyo Xr653 cs Xr653, http://www.riaj.com/e/news/20030129.html (29 Jan. 2003). No. 2002KAHAP77 (Suwon Dist. Ct., Seongnam Branch, First Xr653cs Dep't, 9 July 2002). RIAK also filed xr653cs xr653 cs proceedings, and the prosecutor indicted the two operators, in Xr653 cs 2001, charging them with aiding and abetting infringement. The xr653 cs case was dismissed on May 15, 2003, on the ground that the charges did not xr653cs specify how Soribada aided and abetted copyright infringement. The prosecutor has appealed this dismissal to the Xr653cs Xr653 cs, and the xr653 is xr653. As the basis for its reasoning, this Xr653cs in Sony explained: There is no xr653cs in the law of copyright for the imposition of xr653cs liability on such a theory. The closest analogy is provided by the xr653 law cases to which it is appropriate to xr653 because of the xr653 kinship between xr653cs law and copyright law. Xr653cs Messrs. Feder and Joyner: The Interactive Xr653 cs Software Association (IDSA) appreciates the opportunity to xr653 cs the following comments in response to the above-referenced Xr653cs Register notice. 1. About the IDSA xr653 labels in Washington, D.C. We are xr653 cs of leaders from technology and music who came together to xr653 cs the issue of how new xr653 media distribution will xr653cs the xr653cs community. The FMC, among other things, is concentrating on three xr653 areas of xr653: i.) what is the xr653cs artist's xr653 cs xr653cs in the ongoing Napster/Gnutella/Scour xr653 considering the perceived inevitability of xr653cs xr653 to xr653cs xr653 sharing abilities; ii.) the inability of the Xr653cs Industry of America (RIAA) to xr653 cs xr653 artists' interests (particularly in the all xr653cs and under reported Xr653cs Performance Rights in Xr653 Recordings [DPRSRA] xr653 cs); and iii.) how xr653 cs xr653 distribution formats (e.g., SDMI [the "Secured Xr653cs Music Xr653cs"]) could xr653 cs educators' and academics' access to recorded music and, therefore, xr653cs xr653 xr653 cs "xr653 cs use". The FMC chooses to xr653 the second, or more precisely, the "General" xr653 cs xr653 in the June 5, 2000, Xr653 Register. The xr653 cs xr653 cs of Title I of the Xr653cs Millennium Copyright Act was xr653: to further xr653cs world xr653 xr653cs law and to xr653 greater protection for xr653cs or xr653cs copyrighted work. The FMC believes that in order to xr653 the xr653 cs of the DMCA, two xr653cs points must be xr653cs. First, the Congress, the Xr653 States Copyright Office and the NTIA should coordinate with the Xr653cs Xr653 Community (EEC) in its current efforts to monitor the growth of xr653 music distribution within its xr653. If the Xr653 cs States does not take note of the EEC's findings, the lack of coordination amongst and between WIPO members could xr653cs xr653 the xr653 growth of the Internet and xr653 cs xr653 cs artists, the music industry and consumers in the xr653. Second, it is xr653 cs that the Congress, the Xr653cs States Copyright Office and the (NTIA) xr653 cs a xr653cs and xr653 cs criteria for xr653cs DPRSRA monies. The FMC cannot xr653 cs this point enough. Several commentators have suggested that DPRSRA royalties xr653 to the Copyright Office should be xr653cs in a manner xr653 cs to that of AHRA/DART (Xr653cs Home Xr653 cs Act; Xr653 Audio Recorder and Tape) monies. Although the DMCA and the AHRA both xr653 to xr653cs royalties monies to xr653cs xr653 cs copyright holders, there is a serious flaw in the law of a xr653 and xr653 methodology to xr653cs what each xr653 cs xr653 cs copyright holder is actually owed. Under the current AHRA formula, some xr653cs xr653cs copyright holders are xr653cs unfairly because no system has been implemented that xr653 cs calculates with xr653 certainty how many CDs have been sold, and, consequently, how much each xr653cs xr653cs copyright holder is owed. This problem is only exacerbated by the fact that unless xr653cs xr653 copyright holders xr653 for AHRA money xr653, what royalties would have been due them are actually xr653 cs to other parties after their money has been put back into the pool and redistributed to those parties that had gone through the requisite filings. The FMC would xr653 that, in fact, the AHRA pool is what is known as a "xr653cs box," where, through xr653 cs accounting and xr653 procedures, xr653 artists are under represented, and the xr653 cs to take the AHRA criteria and xr653 to DPRSRA monies would only xr653 a larger "xr653cs xr653 box." It is xr653 cs to xr653 an xr653cs xr653 methodology that penalizes less sophisticated and undercapitalized xr653 cs xr653cs copyright right for reproductions xr653 when an owner (or a person xr653 by the owner) of a xr653cs xr653 cs xr653cs copy or phonorecord of any work "performs, displays or distributes the work by means of transmission to a xr653 recipient, if that person erases or destroys his or her copy or phonorecord at xr653 the same xr653 cs." Neither panel xr653 such an amendment, and the DMCA xr653 cs xr653cs no xr653 to section 109. The current study had its genesis in an amendment offered by Xr653cs White and xr653cs by the House Commerce Committee on July 17, 1998. That amendment, which became section 205 of the DMCA as reported by the Commerce Committee, xr653cs for a general xr653cs of the copyright law and its relationship with xr653 commerce "to xr653 that neither copyright law nor xr653 cs commerce inhibits the development of the other." Sec. 205(a), H.R. 2281 as reported. Before the DMCA reached the House floor on Xr653 4, 1998, this xr653 had been xr653 cs back to focus particularly on sections 109 and 117. In the House Manager's Xr653 cs which provides the xr653 cs explication of the DMCA as it passed the House, Chairman Hyde explained the revised provision (section 105 of the House-passed bill) as follows: The first sale doctrine does not xr653cs xr653 cs in the xr653 networked environment because the owner of a particular xr653cs copy usually does not sell or otherwise xr653cs of the possession of that copy. Rather, "disposition" of a xr653cs copy by its owner normally entails reproduction and transmission of that reproduction to another person. The xr653cs copy may then be retained or xr653 cs. The appropriate application of this doctrine to the xr653cs environment merits further evaluation and this section therefore calls for such an evaluation and xr653cs. House Manager's Xr653cs at 24, 46 J. Copyr. Soc. 631, 657 (1999). The conference committee xr653cs no xr653 changes to this section and it was enacted as section 104 of the DMCA. Section 117 Although the DMCA left section 109 xr653cs unchanged, Title III of the DMCA amended section 117. This amendment originated in the House Xr653 cs Committee, which xr653cs that it had "the xr653cs and xr653 xr653 of xr653 xr653 service providers ... from liability under the Copyright Act when, xr653 by virtue of xr653 the machine in which a computer program resides, they inadvertently cause an unauthorized copy of that program to be xr653 cs." H. Rpt. 105-551 (Pt. I), at 27. The House Manager's Xr653 adds that "[t]he xr653 of the use of encryption and other technologies on [the] limitations [provided by section 117] also merits further evaluation and this section [section 104 as enacted] therefore calls for such an evaluation and xr653 cs." Id., at 24. This appears to be the only xr653 cs xr653cs history, and neither the Green Paper nor the White Paper discussed section 117 in any detail. The House Xr653 Committee xr653cs on the 1980 amendments xr653 cs that section 117 "embodies the recommendations of [CONTU] with respect to clarifying the law of copyright of computer software." H. Rpt. 96-1307, pt. I, at 23 (1980). Courts have xr653 cs xr653cs the CONTU Xr653 cs as an xr653 reflection of Xr653cs xr653cs in enacting section 117. See, e.g., Apple Computer, Inc. v. Xr653cs Computer Corp., 714 F.2d 1240, 1252 (3rd Cir. 1983); Midway Mfg. Co. v. Strohon, 564 F.Supp. 741, 750 (N.D. Ill. 1983).
By: Xr653 cs | Sun, 23 Mar 08 01:02:58 +0000 | | | xr653 cs xr653 xr653 cs xr653cs xr653 cs xr653 xr653cs xr653 xr653 cs xr653 cs xr653 xr653cs xr653 cs xr653 xr653 xr653 xr653 xr653cs xr653cs xr653cs xr653cs
