Fair Use of Copyrighted Images in Visual Search Engines: Kelly v. Arriba and Remedies, Slides of Law

Download Fair Use of Copyrighted Images in Visual Search Engines: Kelly v. Arriba and Remedies and more Slides Law in PDF only on Docsity! Wrap-Up Point: Reverse Engineering and Fair Use • The courts have repeatedly held that reverse engineering can be a fair use. See e.g. Sega v. Accolade, Sony v. Connectix. Docsity.com Kelly v. Arriba • Was Defendant's display on a visual search engine of lower resolution "thumbnails" of copyrighted images appearing elsewhere on the Internet, without the copyright owners' permission, a fair use? • What about the display of the full image? • Does Google’s visual search engine infringe copyrights? Docsity.com REMEDIES • Section 504 • A. DAMAGES (either actual damages and profit OR statutory damages) s. 504 • B. INJUNCTIVE RELIEF (s. 502) • C. SEIZURE/IMPOUNDMENT (section 503) • D. COSTS/ATTORNEYS FEES (s. 505) • (PROPERTY TYPE OF REMEDIES) Docsity.com INJUNCTIONS • More routine than in many other civil cases • Preliminary injunctive relief is generally awarded if P establishes p.f. case on validity and infringement (irreparable injury is presumed) • Permanent injunction generally awarded if copyright validity and infringement are found Docsity.com OTHER NONMONETARY RELIEF • Impounding and destruction of infringing articles (section 503) Docsity.com INFRINGER’S PROFITS • What profits is a prevailing plaintiff permitted to recover in a copyright infringement action? What must P prove? - see Davis case Docsity.com INFRINGER’S PROFITS • Prevailing P can recover infringer’s profits if attributable to infringement • Plaintiff is only required to prove D’s sales that are reasonably related to the infringement • Burden then shifts to D to prove elements of costs to be deducted from sales in arriving at profit. • Doubt about computing costs/profits should be resolved in P’s favor. Docsity.com FRANK MUSIC • Had defendant met its burden in proving element of costs to be deducted from sales in arriving at profit? • Why or why not? • Can a copyright proprietor recover “indirect profits”? • How should profits be apportioned? • To what extent are joint defendants liable for an award of profits? Docsity.com STATUTORY DAMAGES • See s. 504© • Statutory damages can be between $750 and $30,000 per work “as the court considers just” • For willful infringement, statutory damages can be increased to no more than $150,000. • If infringement innocent, statutory damages can be reduced to $200 Docsity.com COMPILATIONS/ DERIVATIVE WORKS • For purposes of statutory damages, all parts of compilation/derivative work are to be regarded as constituting a single work Docsity.com ENGEL V. WILD OATS • What was the issue for the Southern District of New York? • How did it resolve this issue? Docsity.com Law: Protection for Technological Protections • WIPO Copyright Treaty of 1996 (WCT) (Art. 11) see (46 members on 3/24/2004) at: http://www.wipo.int/treaties/en/ip/wct/index .html • entered into force 3/6/2002 Docsity.com WCT Art. 11 • Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law. Docsity.com DMCA • Digital Millennium Copyright Act of 1998 (DMCA) is U.S implementing legislation for the WCT – previous attempts to introduce similar legislation prior to the WCT had failed • Why did the copyright industries demand additional legal protection for digital works? Docsity.com Access Controls: DMCA section 1201(a)(1): • “No person shall circumvent a technological protection measure that effectively controls access to a [copyrighted] work…” • This prohibits access to a work that is encrypted or protected by similar technologies, not just access to a copy of the work. • Thus this right broadens copyright owner’s rights. • Does this result in overprotection? Does it destroy fair use? Docsity.com DMCA 1201(a)(2): Anti- Trafficking Provisions – Access • Prohibits manufacturing, importing, offering to public, provide, traffic in technology that is primarily designed to circumvent technological protection measures that effectively control access, has only limited commercially significant purposes except to circumvent technological protection measures, or is marketed by that person with knowledge for use in circumventing technological protections. • How is this different from the access control provisions? Docsity.com Anti-trafficking: Copy Controls – s. 1201(b)(1) • Rather similar to access controls but bars manufacture or trafficking in technologies that are primarily designed or produced for the purpose of circumventing technological measures that effectively protects a right of the copyright owner [as opposed to access to the copyrighted work] Docsity.com Does Fair Use Survive the DMCA? Docsity.com Does Fair Use Survive the DMCA? • S. 1201(c) (1) provides: “Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.” • -also doesn’t affect vicarious or contributory liability or free speech rights Docsity.com DMCA s. 1201 (d)-(j) • Section 1201 (d)-(j) provides exceptions for, e.g., certain reverse engineering, law enforcement activities, certain library uses, certain encryption research, privacy protection, protection of minors, security testing of computer systems • Also – rulemaking provision under s. 1201(a)(1)(B)-(D). Docsity.com Second Triennial Inquiry • Announced Oct. 23, 2003 • Exempts 4 categories of works Docsity.com Exempted category 1 • 1) Compilations consisting of lists of Internet locations blocked by commercially marketed filtering software applications that are intended to prevent access to domains, websites or portions of websites, but not including lists of Internet locations blocked by software applications that operate exclusively to protect against damage to a computer or computer network or lists of Internet locations blocked by software applications that operate exclusively to prevent receipt of email. Docsity.com Exempted category 2 • (2) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. Docsity.com Universal City Studios v. Reimerdes CB p. 581 • Plaintiffs: 8 major motion picture studios • Defendants included (l) Eric Corley a.k.a. Emmanuel Goldstein, publisher of 2600: The Hacker Quarterly • Ps alleged violations of DMCA – how did defendants respond? Docsity.com Jon Johansen: Creator of DeCSS • Norwegian teenager: 15 years old when he created DeCSS • Prosecuted under s. 145(2) 145(2) of the Norwegian Criminal Code, which punishes "any person who by breaking a protective device or in a similar manner, unlawfully obtains access to data or programs which are stored or transferred by electronic or other technical means." • Acquitted in Jan. 2003, under appeal Docsity.com • See an essay by Nowegian professor Jon Bing at: http://www.eff.org/IP/DRM/DeCSS_prosec utions/Johansen_DeCSS_case/20000125_bi ng_johansen_case_summary.html For a Norwegian legal perspective Docsity.com JUDGE KAPLAN • Finds (after full jury trial) • 1. Posting DeCSS was a violation of 1201(a)(2) that was not protected by statutory exceptions for fair use, good faith encryption research, or security testing or by fair use, as was linking where knew offending material on linked-to-cite and knew unlawful circumvention technology and link created to disseminating that technology.. • 2. Anti-trafficking provisions constitutional under first Amendment • 3. Awards injunctive and declaratory relief- to deter Docsity.com REIMERDES APPEAL • Second Circuit ruled in November to affirm Judge Kaplan’s order • Kathleen Sullivan, the Dean of Stanford Law School and a noted constitutional scholar, argued the appeal for the defendants. • Review by the U.S. Supreme Court is not sought Docsity.com More DMCA litigation • Considerable number of cases have been brought under the DMCA • Some, such as EFF Fred Von Lohmann, have alleged that the unintended consequences of the DMCA litigation is that it is being used not to control piracy but to stifle competition, to impede free expression and scientific research, and to jeopardize fair use. See: http://www.eff.org/IP/DMCA/20030102_dmca_u nintended_consequences.html • Some prominent commentators like Pamela Samuelson have argued for revision of DMCA • Copyright industries counter that the DMCA is necessary to combat the growing problem of piracy Docsity.com