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Agenda
• Review coevolution of Digital technology and copyright law– Legislation vs. litigation
• Grokster case study
• Kelly and Amazon: fair use and digital distribution
Functionalspecifications:
Typically involvesthe making of intermediate copies
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Reverse Engineering
• Note: Accolade’s games competed with the disassembled work, yet still fair use
• Accolade disassembled Sega’s game cartridges to discover an initialization code necessary to make games execute on the Sega Genesis game console.
Sega v. Accolade
• Ninth Circuit held the disassembly a fair use because necessary to understand functional requirements for Genesis compatibility
Reverse Engineering
Dual nature of software: IPNTA 5th p. 658
• Relates to “nature of the work” element under section 107
• Text or expression
• But also utilitarian article
• A “writing that performs work, that executes on its own”
IPNTA 5th at 660
“[T]he use of a clean room would not have avoided the need for disassembly because disassembly was necessary in order to discover the functional specifications for a Genesis-compatible game.”
IPNTA 5th at 662
“We conclude that where disassembly is the only way to gain access to the ideas and functional elements embodied in a copyrighted computer program and where there is a legitimate reason for seeking such access, disassembly is a fair use of the copyrighted work, as a matter of law.”
Atari v. Nintendo
• Atari disassembled “lock-out” code in the Nintendo game console using source code obtained from the Copyright Office deposit under false pretenses
• Fed. Cir. held disassembly a fair use where necessary to understand the work’s ideas, processes, and methods of operation
• Atari’s unclean hands precluded finding of fair use
Reverse Engineering
Digital Milliennium Copyright Act (1998)
When is disassembly “strictly necessary” (Atari) or “the only way” to gain access to ideas (Sega)?
• Prohibits circumvention of technological measures that control access to a work and the manufacturing, importation, and offering of any device or service that is primarily designed for the purpose of circumventing such measures.• Exception for reverse engineering for the “sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program . . .”
Reverse EngineeringRemaining Questions
Interoperability and Standards
• Common criticism: patents interfere with interoperability and standards in the software industry
IP Rights and Interoperability
• Key Point: IP rights NOT inherently inconsistent with interoperability
• Many standards and protocols that are covered by various IP rights are widely licensed and therefore de facto “open”
Why have IP rights on an open system?
• To maintain quality control, prevent unauthorized versions
• To enable selective licensing
– Keep open the option to selectively exclude
What about the problem of “monopoly via standard ownership”?
• Not a very common problem: usually, standard owner wants to encourage use of the standard– Often, standard interface technologies are given
away for free: e.g., Adobe Acrobat
– Microsoft: the exception – antitrust law can deal with this problem
Matsushita VHS; Adobe Acrobat; Sun Java
Internet protocol; Open Source software
Apple II, Apple MacIntosh, Microsoft Windows; Sony Betamax
Cisco acquisition strategy; Disney succession plan
Product Strategy
IP Strategy
Open
Closed
ProprietaryNon-proprietary
Examples
Core
IP Rights are OPTIONS; you can assert them or waive them, as strategy dictates
Waive more rights – expand open component
Assert more rights; reduce open comp-onent
Why voluntary dealmaking?
• For products that exhibit “network effects,” the market often requires it
– No special legal rules required to get Matsushita to license VHS technology
– No special rules required to get Sony and Philips to license CD and DVD technology
Elena G. Irwin, The Effects of Open Spaces on Residential Property Values, 78 Land Economics 465 (2002)
- Proximity to public space increases residential land values
Appropriate Divergence
• Network Leverage: tiny property right leveraging huge market– Video game/fair use cases
• When property rights completely block massive economic opportunity– “Charles River Bridge” scenario
Markets often protect consumers better than
regulation
• Competition for platform ownership will lead to openness; more effective (often) than regulation
Coevolution of digital tech and copyright law
• Digital Audio Tape legislation, 1995
• A model accommodation of IP and new technology?
“Media Taxes”
• Surcharge on technology and media
• Distribute pool of proceeds to artists/creators in some way
Music compulsory license
• Lessig proposes an internet-wide compulsory license for downloading of music
• Separate compensation from control
Larry Lessig and Terry Fisher
• Compulsory license, paid for via a tax on all content
• Is there a better way? I think so …
This form of property is a wrong turn, I would argue
• Merges, “Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations,” 84 CLR 1293 (1996)
• Compulsory license vs. private negotiations
• Difficulty of bargaining “in the shadow of” imminent legislative intervention
Webcasting: Case Study
Sec. 106. Exclusive Rights in Copyrighted Works
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
(a) The exclusive rights of the owner of copyright in a sound recording are limited to the rights specified by clauses (1), (2), (3) and (6) of section 106, and do not include any right of performance under section 106(4).
Section 114: 3 main categories• “Exempt” transmissions: digital broadcasts by
established broadcasters
• Non-exempt transmissions: compulsory license for non-interactive subscription services
• Interactive services (not really broadcasting): requires license from sound recording copyright owner
Sec. 114
(d) Limitations on Exclusive Right. — Notwithstanding the provisions of section 106(6) —
(1) Exempt transmissions and retransmissions. — The performance of a sound recording publicly by means of a digital audio transmission, other than as a part of an interactive service, is not an infringement of section 106(6) if the performance is part of —
Sec. 114 (cont’d)
(A) a nonsubscription broadcast transmission;(B) a retransmission of a nonsubscription
broadcast transmission: Provided, That, [the retransmission is basically by analog broadcast repeater, and not over the internet]
[114(d)](2) Statutory Licensing of Certain Transmissions. — The performance of a sound recording publicly by means of a subscription digital audio transmission not exempt under paragraph (1), an eligible nonsubscription transmission, or a transmission not exempt under paragraph (1) that is made by a preexisting satellite digital audio radio service shall be subject to statutory licensing, in accordance with subsection (f) if —
(A)(i) the transmission is not part of an interactive service;
(3) Licenses for transmissions by interactive services. — …
(C) Notwithstanding the grant of an exclusive or nonexclusive license of the right of public performance under section 106(6), an interactive service may not publicly perform a sound recording unless a license has been granted for the public performance of any copyrighted musical work contained in the sound recording: Provided, That such license to publicly perform the copyrighted musical work may be granted either by a performing rights society representing the copyright owner or by the copyright owner.