Copyright Piracy Over the Internet

PART 1: OVERVIEW OF COPYRIGHT LAW

What is Copyright Piracy?

Unauthorized download, display, distribution performance, or reproduction of copyrighted work over the Internet.

COPYRIGHT
Copyright protects an authors original works that are fixed and reduced to some tangible means of expression.

Copyright Act of 1976, 17 USCA 101

Copyright protects the following types of works: 1) literary works; 2) musical works; 3) dramatic works; 4) pantomimes and choreographic works; 5) pictorial, graphic and sculptural works; 6) motion pictures and audio visual works; 7) sound recordings; and 8) architectural works.

Copyright Protections
Title 17 grant of a copyright gives the author/publisher the right to: 1) reproduce work, 2) prepare derivatives of it, 3) distribute copies for sale, gift, rental, lease, or lending, 4) perform publicly, and 5) display publicly.

Basic Copyright Rules

1.

2.
3. 4.

Facts, ideas, methods, systems, concepts, principles or devices are not copyrightable, but reducing the expression to writing is. Copyright for life plus 70 years. Represent copyright by [name] and date. E.g. John Doe 2002 Author automatically gets the rights when the work is created or reduced to some tangible expression.

What is copyrightable?
Telephone yellow pages Gambling charts based Contract bid proposal

upon duplicated formats Distilling mass amounts of facts into a readable form

with facts supplied in a form Baseball pitching form with pitching data. Sales and technical brochure with tables and graphs

Exceptions to Copyright Protection

Fair use per Section 107 of 1976 Copyright Act; Compulsory license, which provides limited use upon payment of specified royalties.

Work for Hire

Prepared under contract or by commission; or by

an employee within the scope of their employment. Test: 1) Partys control the manner and means of the creation; 2) skills required; 3) presence of employees benefits, 4) tax treatment of hired party; 5) who has the right to assign additional projects Other factors: location of work, is it a regular part of business, discretion over hours worked. Aymes v. Bonelli (2d Cir. 1992)

Copyright Infringement
Violation of the exclusive rights of the owner

including copying To establish a claim need to show:

Own the applicable right; Substantial similarity between works; Infringer had access to the work; and There was an unauthorized use of the work.

Remedies for Copyright Infringement

1. 2. 3.

4.
5.

Civil and criminal remedies under Copyright Act Injunctive relief Impound the infringing articles Damages and profit Cost and attorney fees

Defenses to Infringement
Fair Use Public domain Statute of Limitation-3 yrs

Sale of the purchased copy

Protecting Ideas
Protection of ideas results from an express or

implied contract, Or from a confidentiality agreement. Action for misappropriation is essentially a breach of contract action.

Elements for Misappropriation

Idea must be Novel, i.e., original, innovative and creative; Reduced to some tangible form, i.e., reduced to writing and fully developed Shared by the author with the expectation of payment

License or Assignment of Copyright

Copyright is personal property and is subject to state

laws regarding ownership, inheritance and transfer. Rights may be assigned or licensed in whole or in part on an exclusive or nonexclusive basis. Transfer of interests are by contract and require a writing signed by the owner.

Copyright Piracy Over the Internet

PART 2: INTERNET PIRACY

Computer Components

Diagram of a Network

Three Steps to Illegal Trading

Illegal download of work, 2) Middleware to make downloads available e.g. P2P, 3) Unauthorized reproduction of the work
1)

Enabling Technologies
MP3=Motion Picture Experts Group, layer 3 (audio

compression) P2P=Peer to Peer Network (access computer resources from any computer to share files)

MP3
An audio compression standard that allows the

compression of digital audio files to the original size w/o noticeable loss of sound quality. Eliminates background sound waves Open source so de facto standard

P2P-Napster
Download software, it searches the hard drive of

the computer and creates an index of the names of MP3 files that the user stores on her computer Index is transferred to a server that stores the music files along with the name of the IP address To find the desired music file, any user logged into the software is able to search the database of filenames stored on the server.

A&M v. Napster
Direct, contributory and vicarious liability to

facilitate illegal copying of copyrighted materials from a centralized server Posting and downloading infringed upon right to distribute and the right to reproduce Record industry won, shutting down Napster

Kazaa & Gnutella

P2P network that allows computer users running the

same software program to connect each other and directly access files from hard drives.

Self-Help Methods
Interdiction-Continuously downloads the same file

so cannot share it or blocks others from accessing it. Must turn it on and off. Redirection-Redirects file traders to files that dont contain the content but works only on networks that already have music downloaded.

Self-Help Methods
Spoofing/Decoy-Makes files that look like contain

desired file but is corrupted. Makes real file harder to find. Watermarking-Scans files to find a distinctive fingerprint to the work and then sends automatic email of infringement.

Legislative Response HR 5211

Amend Title 17, Sect. 514 Shields copyright owners from federal and state

liability for self-help actions to prevent piracy. Can use any technology to stop illegal file trade with exceptions

Exceptions to Safe Harbor

Cant alter or delete files from a P2P computer Cant impair trading of files that dont contain

copyrighted works Cant cause economic loss to anyone except file trader Cant cause more than $50 in loss to anyone other than trader Owner must notify Attorney General of method used

 Cant alter or delete files

Problems with HR 5211

from a P2P computer Cant impair trading of files that dont contain copyrighted works Cant cause economic loss to anyone except file trader

Inadvertent tampering

could occur or denial of service Once software is in place, no supervision Curbs legal use, fair use of copyrighted works Obligation on trader to sue

 Cant cause more than

Problems with HR 5211

Litigation cost for

$50 in loss to anyone other than trader Owner must notify Attorney General of method used

violation exceeds loss suffered No approval reqd Must submit w/in 1 year from incident Trader has to work harder than under current law. Any technology is OK

Problems with HR 5211

Trader can recover only if show no reasonable

basis for belief of infringement Increase litigation for infringement

Applies to any copyright owner which is overly broad, email; and gives them too much power Applies to WWW not just P2P networks

Problems with Legislation to Address

Overly broad definitions, e.g. copyright owners,

reasonably necessary Scope of legislation, e.g. overbroad to cover uncopyrightable works Burden is shifted to Traders to sue Gives Owners no control over technology used Many of self-help technologies are already legal and less intrusive

Discussion Questions
Should the government permit technology

solutions, even if they are deficient or imperfect? Is the nature of the problem sufficiently harmful to justify unintended consequences? Can limits in legislation be overcome to create controls narrowly tailored to harm sought to be protected?

Part 2

Trends and Solutions

Disclosure of Subscriber Identity per Subpoena

ISP can be compelled to disclose subscribers if it

stores infringing files on its server. Subpoena may be granted where there is a case or controversy pending.

Safe Harbor Provisions

ISPs are not liable if they are:

1. 2.

3.

4. 5.

Merely a conduit; System caching, i.e., intermediate or temporary storage under conditions; Infringing material on ISPs system at the direction of users; Linking users to on-line locations; or ISP is a nonprofit educational institution

Notification to ISP Required

Must be in writing; Authorized signature of owner; Identification of the copyrighted work;

Identification and location of material claimed

to be infringing that is to be removed or disabled; Sufficient information to allow contact to infringer; Good faith belief that not authorized; Statement of accuracy.

Metro v. Grokster
S.Ct. Held: One who distributes a device to promote its use to infringe copyright by affirmative action or clear expression may be contributorily liable for infringement.
Action must be more than mere distribution

with knowledge of third party action.

Imposes secondary liability on enablers.

Campaign by RIAA
Target lawsuits at major infringers and universities; Cease and desist letters; File suit against infringers;

Threaten suits against institutions as contributory

infringers;

Response from Educators

Use of firewalls to block enabling sites; Limit bandwidth available to students; Pledges of compliance;

Tracking software to locate hackers;

Education on copyright infringement; Develop software to track violators;

Cut deals with on-line music services

Context in E-commerce
1. How does Internet piracy impact on

E-Commerce? 2. Internet piracy affects business in what ways? 3. What are the interests of businesses?

Statement of Problem
Devise a scheme to permit access and download with

permission and/or payment of royalties that includes technical, business and legal components.

Identify Interests
RIAA: Protect copyright and get compensation Consumers: Access to music anytime from anywhere Equipment Mfg: No regulation that threatens

customer base

Prevalence of Piracy
About 90% of content on P2P systems is copyrighted

movies, software, images, and music.

Estimate 2.6 billion illegal downloads monthly.

Issues in E-Government
Common forms of infringement: 1. Use to create derivative or enhanced version in competition with the original; 2. Distribution of hard copy works; 3. Use parts of work to create digital sampling, and virtual and hard good collages; 4. Indexing materials, metatags and other source location to assist in retrieval

Why it is so prevalent?
Free or inexpensive to do, i.e., internet access fee,

disk of recordable memory; Push-button easy; Disconnect in end users minds and website owners of the theft; No foolproof copy code or encryption to prevent piracy; and Relatively risk-free.

Solutions
Business: Change the business model or go to low-

cost subscription service. Technical: Tracking via Watermarks, encryption, and management information systems. Legal: DMCA, HR 5211

Change the business model or go to lowcost subscription service.

Do nothing>>economic suicide? Take advantage of the low cost distribution network

of Internet; Discount if buy over Internet; Give away until it is critical, then start charging; Use it to create value-added to hard goods sales

Technical Solutions
Watermarking; Virus infection if pirate; Copyright Management Information Systems;

Interdiction;
Redirecting; Spoofing

Legal Solutions
Exclusive rights under the Copyright Act of 1976; DCMA-prohibits unauthorized removal of digital

management; No Electronic Theft Act-criminal penalties, I.e., fines, penalties and jail time

ASCAP Business Model

ISP provide end users with unlimited access for a fee

that is paid to an organization that will distribute to owners.

Legal Solutions
ISP or third party vicarious liability; Civil and criminal actions vs. infringers;

Piracy Surveillance
Extrajudicial self-help system for monitoring,

enforcing and deterring infringement.

Technical Solutions
Monitoring-Burden on Manufacturer to allow

tracking. Management-Built-into music code to force identification and tracking of activities. Interference-Variety of self-help that prevents infringement without identifying infringer