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Intellectual Property
Boston College Law School
January 31, 2007
Copyright – Indirect Liability
Fair Use
• 17 U.S.C. § 107. Fair Use– “Notwithstanding the provisions of section 106,
the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching …, scholarship, or research, is not an infringement of copyright….”
Fair Use• 17 U.S.C. § 107. Fair Use
– “In determining whether the use made of a work … is a fair use the factors to be considered shall include --
• (1) the purpose and character of the use, including whether such use is of a commercial nature …;
• (2) the nature of the copyrighted work;• (3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and• (4) the effect of the use upon the potential market for or value
of the work.”
Campbell v. Acuff-Rose
Dr. Seuss v. Penguin Books
Disney v. Air Pirates
Rogers v. Koons
Defenses
• Fair Use
• Independent Creation
• Consent or License (Express or Implied)
• Statute of Limitations
• Inequitable Conduct
• Copyright Misuse
• First Amendment
Third Party Liability
• Contributory Liability– 1. Knowledge of infringing activity– 2. Induce, causes, or materially contributes
• Vicarious Liability– 1. Right and ability to supervise– 2. Direct financial interest in infringing activity
Hypothetical
• Facts– Person posts copyrighted works on mySpace page
– Terms of service give mySpace right to remove docs
– Copyright owner gives notice to mySpace, demands removal
• Questions– Chances of liability?
– Advice for this case? Going forward?
Additional Examples
• Should liability extend to …– ISP hosting infringing content?– Auction site permitting sale of infringing stuff?– Search engine linking to infringing site?– Credit card company processing claims on site
w/ infringement?– ISP enabling infringer to reach the internet?
Policy Issues
• Why Third Party Liability?– Facilitate enforcement– Third parties may be morally culpable– Deter third parties from harmul activity
• Why Not Third Party Liability?– Imposes costs on third parties (e.g. monitoring)– Not always fair to impose burden– Not always efficient for third parties to enforce
Sony v. Universal
Administrative
• Next Assignment– Read II.H – Digital Copyright
• Skip material in syllabus on Digital Copyright Legislation (565-75)
• Read material on Enforcement (575-99) (note: includes extra case: Kelly v. Arriba Soft).