Lec 2 MIT 6.912 Introduction to Copyright Law

okay so this is six nine twelve the nine means it's experimental I wanted to finish some stuff that we were doing at the end of last week that we were kind of hurried about and then let's talk about the cases that we read for homework and then we can talk about copyright okay so what were we talking about at the end of last week yeah the nature of property that was so yeah that was more of last week than I had planned but I like that discussion but no at the end of last week we were talking about the structure of the federal government and we said that the federal government is divided into what three branches and what are the branches what's the most important one in the Constitution what's the first one yeah yeah I think you're right okay we'll edit this out on the video it's not true so the legislative branch and who's in that Congress and who's in that okay and the Senate why do they call it Congress I think it's the Senate in the house that get together in Congress what what's our Congress called in Massachusetts it's the general Court but nobody calls it that they just call it the Massachusetts legislature but it does have two houses also and there's some states that have like one house I think like is it Nebraska did every from a one house state there's a famous Supreme Court case about Communists and whether they should be expelled from the United States and one of the things that Congress wanted what the Communists excuse me was to eliminate the Senate because they said it was anti-democratic and it kind of is right because states like Nebraska get two senators and also states like California and Texas so and it went to the Supreme Court and the Supreme Court says well we can't really conclude that wanting to eliminate the Senate is you know so anti-american that you can be expelled from the country because Nebraska only has one house so thanks to Nebraska the Communists were saved I'm sure Nebraska is proud to be a front for communists in this country okay so this the legislative branch what's the next branch the executive branch and who's in there the president yes and the Vice President and who else the department's like the Treasury and defense and what's something that's in the executive branch that's not a department like the Federal Communication Service good and various other things and then the last branch the judicial branch and who's at the top of that the Supreme Court and who's right below that would say the Court of Appeals right and there's there's like at least 12 of them the courts of appeals sometimes these are called the circuit courts because there used to be these circuits and the judges would go around the country and making sure that the opinions would be in concert but they don't do that anymore but they still have the circuit courts of appeals and some newspapers like to say that the judges on the court of appeals they ride the circuit which is not really true anymore because they don't go anywhere but they used to and then below the course of Appeals is who the district courts now all this is the federal court system if you get caught with marijuana you probably don't go here right where would you go today we have been caught with marijuana we let's not move the camera over to you nobody here okay well if you did I think you would go to the Cambridge District Court which is people know that is by the mall the big ugly building by the mall yeah it's one reason not to do pot is you have to go to the ugly building especially if you're an architecture offends your sensibilities so you go to the Cambridge District Court and Massachusetts has its own court system that is you know similar to the federal system in structure there's district courts there's a there's superior courts there's Appeals course there's the Massachusetts Supreme Court which is called the Supreme Judicial Court and sometimes you can you can litigate your case all the way up to the Supreme Judicial Court and then you can challenge you know maybe your conviction here in one of these federal district courts and then you can have to litigate all through the federal court system sometimes you end up appealing through like six layers of the court hierarchy but in this class we're just talking about the federal course okay and what did we say what's I'm running out of space here but at the end of a district court case what sometimes happens okay but before that there's a judgment issued and if it's a you know if there's an interesting legal question what will the judge do write an opinion right and where and if it's an interesting opinion what will happen to the opinion it'll be published in a reporter and you'll be able to find it because it has a citation which is the most important thing in all of law it's not murders or property or tort citations okay and what will the citation look like some number okay so like twelve and then what does this number mean the volume it's like the book you get down off the shelf and then what will you have F supp oh very good federal supplement and who publishes that is that the government that's west and who owns West Thompson very good and where's Thompson I don't know Canada so all of our laws under the control of this Canadian company Thompson corporation which is not to be confused with the other Thompson which owns like Technicolor yeah they're fresh okay and then what's the last thing that's here page the page number so with these three things you can walk into any law library and you say the library excludes me where's your federal supplement and they're like what would they say that row of bookshelves but it's a lot it's like the Dungeons & Dragons manual I mean apparently and then you go to the you go to the bookshelf and you look for volume number 12 and you pull that down and then you go to page number 413 and that's where the opinion is supposed to start and what happens if you see a citation it's like 413 , 425 what does that mean that you really want page 425 but it starts at page 413 yes so the opinion starts at 413 but the citation that the person is really trying to direct your interest to is 425 why is it important always to have the 413 yeah and if you have LexisNexis this is the only way to get to it is by typing in this exact string if you type in 425 it's not going to pull it up so you always need to know the page number it begins up okay so this decision is published and you appeal and if you're in the district of Massachusetts where does your appeal go the First Circuit Court of Appeals and that's like in the same courthouse where they had the ring premiere okay and then you'll go and you'll go in front of how many judges three well the full First Circuit is like six judges which is the smallest Circuit yeah but when you get your appeal at least at the beginning they only give you three judges because the dredges are very busy hearing all those pot related Appeals okay so you'll go before these three judges and how long did the trial take by the way what seem was just on a jury so they take a long time they can take like weeks right like the OJ Simpson trial took like six months or something right and then it's rendered in a decision that can be like 80 pages or sometimes even four hundred pages there was actually a campaign finance case recently people remember that one about the mccain-feingold campaign bipartisan campaign Reform Act and that there was extensive litigation on that act and the District Court opinion was like 1,300 pages so they can be really long okay so courts of appeals so you go before three judges and that lasts how long is it weeks well like an hour yeah sometimes it's like 10 minutes and then they deliberate for like six months and then they issue an opinion maybe and if it's interesting how will that be cited right 92f and these days it's like f third series because there's been so many volumes of F and then another page number okay great and then if you want to you can appeal the Court of Appeals judgment right you can't exactly appeal you have to do what's called a collateral attack because the Supreme Court is so busy and they get so many thousands of Appeals they don't want to have to take them all they only take the really important ones and that's about seventy five every year so this is like many many many cases like tens or hundreds of thousands maybe ten thousand seventy five so things really get whittled down and if you follow a case as you can't in lectures all the way from district court sometimes from state courts to federal district court to appeals court to Supreme Court you can see that the issues get narrowed at each stage until the Supreme Court may be talking about one incredibly esoteric issue that the poor guy who was actually accused of having the pot it could totally care less about you know by the time I guess the Supreme Court is like does the rooker-feldman doctrine preclude consideration in nineteen thirty two of the merits of the advance death penalty act like who cares you know but that the Supreme Court is mostly concerned with important legal issues for the country not necess not generally at all about the actual case before it sometimes it is okay so it goes to the Supreme Court and they will almost I think always issue a decision opinion and it will always be published because the Supreme Court is so important and how will that look yeah it'll be in US and who publishes us not Canadians that's right the American government but also us is really slow to come out like you can't find an opinion in US until like three years after but so Canadians publish it quicker and a different set of volumes which have names like supreme court reporter that's the Canadian law and lawyers edition which is published by Lexus which is I think a Dutch company so anyway but eventually when it's in US you want to cite it there okay so that's what the judicial branch does and that's what we looked up on the homework let's talk about the executive branch for a second sorry the legislative branch for a second what do they do they make laws and how do they do how does a lost art yeah it's brought up in committee okay and eventually it ends up on the floor of one of the houses of Congress and it'll get a number like HR one two nine two or something and what does it have to do to become a law House of Representatives and sometime if the bill starts in the Senate it'll have a number like S which is Senate yeah three on the law and they have to agree on the exact same text there can't be any deviation and sometimes in history there has been a little deviation and that's a problem but nowadays with computers they don't have that I mean they actually have but it's not supposed to happen so the Senate in the house are supposed to pass the exact same law what happens if they pass different versions of a similar kind of law where does it go they had to reconcile them and they have these conference reports and the Republicans and the Democrats anyway so they get together and they they decide on a single version of the law and that then goes back to the House of Representatives and the Senate and they vote on it together and now they have what is it a law no what's it called at that stage it's still a bill yeah in fact once it's been passed by one house of Congress at the top of it they said before it's been passed by one has to call it a bill and after it's been passed by one house of Congress they call it an act it's not really an act yet is it it's still a bill but they they call it an act or at least they write that once it's been passed by both houses of Congress they enroll it and it's called an enrolled bill and that's printed on actual parchment it used to be on vellum which i think is made from cows but now it's on parchment which i think is made from sheep somebody want to correct me this is not really my area is that right okay so and I don't know where we get the Sheep from they may be Canadian which could cause problems ever since hurt of war anyway so there's an enrolled bill they print that on parchment and they send it to who to the President of the United States and he can sign it and that makes it a law or he can not sign it can it still become a law yes if two thirds of each house of Congress then pass it or how else can it become a law yeah he can forget about it then it becomes a law sort of by default so there's three ways something can become a law one of them involves the president's signature but it's but his president Bush ever vetoed an enrolled bill no but he is threatened yeah okay so the enrolled bill gets the president's signature it doesn't and then now what do we call it wait it's a law and what's a special name for a law that's been passed by the legislature as opposed to other kinds of laws a statute good so when people talk about a statute they're not talking about a court decision they're not talking about the MIT rules they're not talking about some regulation the statute really means a lot by a legislature what are some other kinds of law that are you know the law in in the federal government that are not statutes case law that's good regulations yeah those can have the force of law common law is certain like case law trees very good treaties are also the supreme law of the land which is not how things are in many other countries and in practice not how things are in America but at least formally treated as the supreme law of the land but none of those are statutes statutes are things passed by Congress okay so it's an enrolled bill and at this stage we can cite it and therefore it has validity and it'll have a name like the once a let's say the Communications Act of 2005 and Congress will give it on the parchment they'll give it a number like 109 public law number that's actually not how it's done sorry public law number 109 - 50 yeah so what does this mean what is the one in I mean this is the time that the Senate and House of Representatives have come together in Congress which they do every two years and the 50 means it's the 50th public law that they passed that year now does this let you so there's a piece of parchment and it goes into the National Archives and a vault I mean a few days later so it is not assigned so you have a public law that where for a vehicle no okay it's a sign that a few days after gets sent to the National Archives so and then there's this piece of parchment in the National Archives can you can you look at that I mean maybe if you like make a special appointment one time I called the National Archives this is on like September 25th 2001 and I was trying to get a copy of a very old enrolled bill and they were a little nervous I was like can I come and see it you know where is it they're like are you a terrorist I was like no no no no so they're a little nervous at the National Archives so but you see you can't just get this so what what he's supposed to do in the first like a hundred years of our nation's existence there was nothing better than this and the federal government depended on newspapers to publish the contents of the laws just on the you know the New York Times might be like a that was an interesting law and the reporter would go to the National Archives and copy it down and put it in the New York Times that didn't work out too well maybe because the law is really boring so they came up with this new system in like 1845 and what was that probably they decided to start publishing the laws and they hired this Boston firm of little and brown which is now part of a o L Time Warner to go and through the National Archives and find all the parchment laws and print them up in this series of books called the US statutes at large and they sent them out to all the libraries in the country and they're still there so this will also get a number in the United States statutes at large it'll be like it'll have a number like three hundred the abbreviation is stacked and it'll have a page number like two nine to six so what does that mean the 300th book of US statutes at large and page number 2926 I don't think they're actually up to 300 yet there's like enough I don't remember maybe in the hundreds okay so these still gets sent out although it's not published by a little and brown anymore it's by the US government and they're still in every library so if you if you now have this citation Communications Act of 2005 with this stat you could go get the law you could go to the law library you could say where's your statutes in large they'd be like that series of bookshelves you can find it or you could get it on LexisNexis now what's the problem with this system you know water passes yes so it's kind of confusing right I mean there's let's say that there's 300 books each 3,000 pages long if somebody asks you you know is it okay to make a phone call what are you gonna do I mean you can't just read this law and say oh it is or it isn't cuz there might be a future law that changed it or it might affect previous laws you wanta have to go through the entire 225 year history of our country looking for all sorts of laws on the same topic and figure out what the current state is does that make sense to people why this is a problem but they're not really organized so they have a solution to this which started in the 1920s which is that after this whole process is done a group of people in the House of Representatives takes the laws and tries to organize them by subject matter so they put out one book which is about Congress and the laws about Congress they put out it's about Indians and the laws about Indians they put another book about copyright and what about patents and all the laws that are about patents go into that book and about armies go into that book and they try and if something's repealed they're trying to lead it if something has something to do with something else they try to put them right next to each other and that process is called codification and the books that they put out are called anybody know codes yes and it's called the United States code and it comes out there's a new version that comes out every six years although the Canadians and the Dutch published a new version like every ten days that the official version comes out every six years so this citation if you saw it if somebody gave you this you'd be like oh come on man are you making things hard for me well you really want to see is Communications Act of 2005 and then some number like 47 u.s.c section no 271 that's what you really want to see and that doesn't that that's a lot better than oh go to the library and find book 300 and that'll tell you the law at this instant in time that'll actually tell you one that this has something to do with telecommunications because 47 is about telecommunications and 2 you'll know exactly where to look to find the current state of the law and whatever subject is being talked about because if some later law has come along and and amended it that amendment will also go in section 271 yeah it's a complete problem with the Supreme Court in the course yeah and and people write treatises that try and take court opinions together and sort of make them fit together and and be organized and there's some some of them are called restatements which which try and take but you know sometimes different court opinions can conflict in very subtle ways and it's not really clear so it's definitely a problem and people will argue about whether it an old Supreme Court opinion is still good law and you know it's definitely a problem and one of the things that you can do if you have a bunch of court opinions that are in disagreement is the legislature can step in and clarify by the law and we'll see that they did that with copyright yeah version still sees the same numbering system they do okay so they generally pick them up first how do they know what number to this it's a good question nowadays these natural archives people generally signal their intent about what section number they're gonna put it in when the law has passed even though they don't actually prepare the version until later so but they're not always the same and some typos and also these books are not really official at least sometimes they're not official so there can be mistakes in them Congress could have said one thing in Stata and that's what's official and the people who prepare these books who are not elected or anything can make mistakes and you can be reading this book and you can say oh it is legal to make a phone call and little did you know that it's actually not and the Supreme Court has had to decide cases based on that I think it recently is 1993 so sometimes they go back to the parchment so but generally that doesn't happen generally the United States Code is the only version anybody cares about okay so so when you see a citation to USC you know that you're looking at what a statute and when you see a citation to us you know you're looking at a Supreme Court opinion and Supreme Court opinions often interpret statues right what else can they interpret the Constitution yet are we do other countries have it that way that their top court interprets both the Constitution and the statutes how about like in France it does which can interpret further if a law is unconstitutional and it has already been passed anything so who has the job of stopping unconstitutional eyes before they get past the Constitutional Council so in France the highest court of appeal is sort of different from the Constitutional Council and many countries have that the court of last resort is not the same as the Constitutional Court and those countries generally put less importance on their judicial branch France we say has a civil law system and they sort of make fun of our common law system they're like how can you have the you know the courts just sort of deciding things on whim that have such importance you know like there's a case of Roe versus Wade that what did that decide but what more specifically about abortion Yeah right it said that even if the state wants to forbid somebody from having an abortion it can't do that if the state wants to permit somebody from having abortion there's no conflict but even if a state wants to provide a woman from having an abortion it can't do that because of the Federal Constitution and who got to argue in that case basically just one woman right Ms McCorvey and so people from countries with civil law systems would say that's ridiculous how can you have national policy for the entire country being decided by this one person and the particulars of her circumstance but that's how we have things anyway so so we give the the reason the Supreme Court has such importance in America is partly because we give it a-- thority is the court of last appeal and also it's the court of last appeal in civil matters and criminal matters and also it interprets the constitution so it has a a role that not that many other countries give to one court yeah if you have a separate constitutional court how do they choose what's a rule on well in France the legislature can choose to ask the constitutional court for an opinion before it's even passed the law and actually in Massachusetts the same is true the legislature can ask the Supreme Supreme Judicial Court for an advisory opinion and say hey if we pass this would it be constitutional they tried that in the federal court George Washington tried that with the Supreme Court he asked his friend John Jay who was the Chief Justice he's like can you give us an advisory opinion and what did John Jay say he was like screw you I would use harsh language but open you know this is going to be distributed to countries with more restrictive laws so he said no the Supreme Court does not give advisory opinions it only decides actual cases or controversies and that's from the Constitution okay so right so that's what the legislative branch does and very quickly what is the executive branch do it enforces the law it enforces the laws that Congress passes and also it enforces decisions that the judicial branch puts out it goes after people it prosecutes them and it also issues regulations sometimes the Congress will decide we don't want to get into the particularity of some subject matter so be like we want to have the radio spectrum be regulated but we Congress don't want have to decide who can have 47 megahertz and who can have 48 makers and you're gonna have 49 megahertz so they decide we're gonna set up something in the executive branch in this case the FCC and we're gonna invest them with our authority we're going to delegate to them and the FCC is going to be able to publish regulations that will have the force of law in some particular area and when the FCC publishes those regulations that are published in we're in the Federal Register the Federal Register which is like a magazine published by the US government that comes out every weekday and I don't oh yeah I do remember what the citations look like there's like a number in the front which is I think the year of the Federal Register and then there's a page number which is like fourteen thousand two hundred ninety six the page numbers start over every year and this tells you you know this tells you a single page in the Federal Register for that year and this comes you can go to the library they'll have the Federal Register from today and yesterday and the day before and they stack up and it's like three hundred pages a day of new regulations you can also get an email to you that's published by the US and so this would also be very inconvenient if you're trying to figure out who owned forty-seven megahertz and you had to go through the last 50 years of the Federal Register now would they give it to CBS yeah they gave to NBC here they so what do they do right they codified it in something very similar to the United States code that's called Caitlin the Code of Federal Regulations which is almost exactly the same as the United States Code in that they have these volume numbers in the front and then these section numbers I think 47 is the same and that 47 of us see is about telecommunications and ditto for the Code of Federal Regulations but it's not the same for copyright yeah a statute under the executive branch white except for apprentice under different well often Congress doesn't want to get involved in the nitty-gritty so Rick you know Congress you know they had to make a lot it's a lot of effort there have to be lobbyists and hearings and you know I mean there's an only a limited number of time at amount of time that Congress has they don't want to be consumed with the nitty-gritty like who will be a word at a particular piece of spectrum or you know on for the Transportation Security Administration decides exactly what length of knives will be permitted on airplanes and whether you can have medical knives or not and all sorts of questions like that and Congress just doesn't have the time to do with it so they delegate authority you know to these federal agencies and those agencies then have hearings on their own time and in their own buildings with their own lobbyists and then they publish these regulations so I mean they have the force of law at least to the extent that they're within the authority granted to them but they're not issued by Congress that's it's not because they're enforcers it's just sort of because that's where Congress decided to give the authority yeah that they should be where yeah well they're not I mean do you think that there's a constitutional problem with having the executive branch make regulations yeah it's true why it's part of their purpose yes to regulate it's part of their purpose but they're also supposed to be enforcing that the same regulations that they promulgate by the way statutes are enacted regulations are promulgated judicial decisions are I don't know issued it's true but they are in the executive brain I mean Congress has decided we're gonna delegate this authority to the executive branch there's a limited number of regulations that are issued by legislative branch entities like whether you have to wipe your shoes before going to the Library of Congress the Library of Congress is a legislative branch entity in fact the Copyright Office which does issue regulations is you know a legislative branch entity so the copyright regulations are from the legislative branch okay so when you see a citation to CFR that means it's a regulation this comes out by the way every year not by Canadians although they have they have a version that comes out like every day anyway so this this means it's a regulation USC means it's a statute us me to judicial decision okay so what did we look at on the homework did we look at any US C's yes no or any CFR s no we looked only at judicial decisions so who wants to talk about what we looked at what was the first one the phonebook one which one the phone book publications see if I can get that here okay who wants to so one of the things they teach you to do in law school is to brief the case and that basically just means putting the holding into your own words people know what I mean by the holding what's the holding of the case the result yeah it's sort of the part that really matters there can be what's called dicta which is when the Supreme Court's might say if things had been a different way we would have decided differently that stuff doesn't matter for the future what only matters is in this case in this situation we decided this that's called the holding and the holding is said to be on the question presented so the question might be if a law says that you go to jail for five years for having 50 grams of pot does that refer to the pot before it's been picked or after it's been picked that might be the question and the answer would be something very succinct like before it's been picked recently there was a case where says if a statute criminalizes some activity when it occurs within a hundred yards of a school does that mean within 100 yards as the crow flies or 100 yards along the street because you know there was a building in the way and you couldn't walk through it and people remember that case what did the Court decide there yeah they said as the crow flies because we don't want to have to worry about is the building open during the day and not during the night and was it open then and so they said as the crow flies was not this gives me not good for the defendant okay so what was the question presented in Feist publications who wants to give a stab at first of all how did this case get to the Supreme Court how did it start yeah in the district court and who did somebody sue who somebody the phone company sued Feist really okay and so who had won in the previous in the lower court the funk of need one so the Supreme Court was reversing the lower decision give also upheld the district court's decision and then it's been forever did the Supreme Court disagree a lot on this one yeah they got pissed off within the Supreme Court no who's you know except for one guy right write his own opinion opinion with that what's up with that you know there's in the Supreme Court they can do whatever they want black justice Blackmun concurred in the judgment that just means I agree with the holding here but I'm not gonna agree with any of the reasoning right so you're he didn't have to it's true they sort of can do it or they want so so we can see here that this previous court opinion if you look here it says disposition 916 F ii 718 was reversed so what is 916 f ii 718 they don't really give you a lot to guide you here but what is that it's a citation yes to what an appeals court opinion yes so now we so you see how you have to know the citations to know what the hell they're talking about so they're saying the appeals court opinion was reversed and it was unanimously reversed that means that everybody on the Supreme Court thought that the appeals court got it wrong so you can see these questions are not always easy and you should assume that any time a case gets to the Supreme Court it's not easy even if it's decided nationally unanimously reasonable people could could disagree and not just reasonable people like very smart justices so these cases are not easy and here they give it a sit aside we're just sort of giving away the answers here decision alphabetical listing of names accompanied by towns and telephone numbers and telephone book white pages held not copyrightable thus non-consensual copying of listings held not to infringe on copyright Wow okay who wrote that little decision line I think it was Canadians are Dutch actually what are those people called that's Dutch people Netherlanders it was a it was a Dutch man okay it was a Dutchman well it was probably somebody working for people anyway so this is one of the nice things about LexisNexis is that they they put in this information here to help you understand it so some lawyer working for Lexus has read this and this entire decision and decided that's this is the nut of it this is the holding but you should be able to do that in your own words and that's probably the best way to to understand these cases now who thought that the Supreme Court was correct one person okay the rest of you why was this people got wrong yuh-huh me who's the Supreme Court made the right decision here did anybody think they made a mistake yes okay why well they talked about how the little telephone company put the for fake entries in yeah if they copied that as I say that's so totally in the frame for vacancies right and then these dudes copied even that I don't remember I say get him okay well who wants to be mr. rural telephone service what would you say to that yeah I thought the point wasn't that the copy of whether that was okay yeah yeah I mean they could have made their own injuries that's where it makes room although they were original okay so now we're getting into something but if you are feisty obligations if you are mr. rural telephone service you would say look Feist we somehow came up with this sort of information we got the records and you know we painstakingly compiled them so you could go door-to-door and get the records too that might be what you would say but the Supreme Court said no why was that yeah they're gonna copyright for the phone book because it was itself conservative original work that's important cereal the actual addresses themselves it's factual information you claimed pieces out if you want a factual okay so the Supreme Court said this lacks originality what where does that requirement come from copyright law is it from the Constitution the Copyright Act well if they said it was from the Constitution they said they said I was from the Constitution yeah cuz they said when it's implied when they said the author of the work and key word itself Constitution right right by using the word author it implies some originality okay but would you say this decision is primarily about the Constitution or more about the statute yeah they claim that it's about the Copyright Act of 1976 okay I mean if the Supreme Court wanted to grant copyright on this kind of work could they sorry it's not just for it if Congress wanted to grant copyright on this kind of work could they well that's a really hard question but I think the answer is yes that's my personal Supreme Court okay but I think this the Congress was probably within its power to stop what vice publications did here we don't really know but in this case the room Supreme Court no said no because of this requirement of originality and everybody thinks they made the right decision I mean if you compiled the phone book and somebody ripped you off you'd be I mean it takes a lot of work to compile a phone book right isn't that investment in work what the copyright clause and the covered Act are supposed to protect yet Bob you can also say it's to make an argument that its original in your presentation or you're just the fact that you cop that usually can do it and that no one else had yeah this Rupert agree that it was original no they don't I think nice okay yeah maybe another war but since it's required from the company yeah what they don't have a choice so I hope you'd agree with this friend : they say they have no choice on this election days okay so they had no choice on the selection of names they arranged them you know alphabetically which they also basically had no choice yeah prediction the older building methods names okay somebody else yeah basically yelling at the lower circuit courts abusing the sweat of the brow argument the sweat of the brow it doesn't matter how much effort you put into getting the facts they're just facts unless you do something special them they're not copyrightable Wow okay okay so what are some contemporary situations where this this kind of question could be an issue yes Kalyn yes okay sure if the NBA versus step Inc and okay versus Pepsi and how did you find out about that case I read a book about baseball statistics okay what would be another way to find out about related cases that starts with the letter C sensation yes so what's one of the coolest things that you can do in reading a Supreme Court opinion all those citations you can read other Supreme Court opinions that cite it you can just follow the citations and those often have all sorts of interesting permutations and another thing you can do is you can use lectures to search for other cases that have cited in this case because the citation format is so constrained or not original well we'll get to that but the citation form is so constrained that you can be sure that future courts will have used the exact same format you can just search for that text you can find other cases that decided to cite this case and for Supreme Court cases Lexus has made it even easier for you they have a little button up here that says Shepards and you click Shepards and which in the olden days you had to actually get the book scheppers but now it's just unlike this and this will tell you the entire history of this case so it started out here as EPS up what's that and so what Court District Court and then it was affirmed without an opinion by F second which is the Tenth Circuit in Kansas and then they had they tried to get reconsideration and they lost and then it was reversed I'm not exactly sure what happened here the Supreme Court says no we're not going to take all this is later so you these are get confusing because it's 1992 anyway and then it gets to this citation and then they argued about who should pay the fees there's a whole history and then you can go down here you can see here's all the decisions where the Supreme Court later talked about this case it was explained by and cited here and cited in this case and cited in this case which you also read right and then here's let's say you're a lawyer arguing in Massachusetts what you really want to know is what is the First Circuit said about this well here they tell you here's all the First Circuit cases Johnson versus Gordon and this case and this can't they go on oh there's a case about Yankee Candle Yankee Candle Company versus Bridgewater candle company what is that probably about yeah maybe can you you read you know is it rough sense yeah I don't know if you can copyright a cent maybe that's what it's about or the names handle come I don't know you know so there's all these cases here's one Lotus development company versus Borland International people know what that was about that was about whether you can copyright control X and your arrangement of because I think what notice you Borland was actually with a corporate wt1 file I don't think so no you're right it was about the quadrant proheavy of and that was Lotus or Portland Metro is Portland so board that made that program had supported me this program that had a venue mode that you could turn on in that mode it completely presented the same you eyes lives 1 2 3 so all these people learned on Lotus 1-2-3 and all that so people learn oh it's Rolex do this ctrl C command X all cubed to do this and Borland wanted to make a program to compete with them and so they made it have the exact same key combinations and Lotus sued them and who do you think should having read this case vice publications who should win it's unclear do you think it's a it's okay to copy the control C control x command V I think it depends like if they created if they were original oh yeah no they totally create them yeah I think you know the control seek it means copy because it starts with the scene bit control acts like that's not cut and there's no accident catch okay so here's some so some issues where originality might be an issue Kaelin said basketball statistics sports stats and there's litigation about that what's in the case we're talking about here is command keys well okay command keys or what look-and-feel okay that Shepards button which on our school LexisNexis is only available for the Supreme Court you can get all sorts of permutations about similar issues that and when the Supreme Court decides this case about telephone books they know that they're not just deciding about telephone books right they know that their decision is going to be important for all these other similar disputes okay so sports stats look and feel what's another similar thing you can imagine people arguing about yeah so there is a case a very old case where the The Associated Press would put out the what's the Associated Press by the way it's a wire service it's a non-profit collaboration between newspapers when there's gonna be a press conference or something you know the New York Times doesn't want to have to send their guy and the Boston Globe send their guy and the Los Angeles Times send their guy does something that's probably boring anyway so they created this nonprofit coalition called The Associated Press that they fund that then ghost has sends one guy to the press conference and very quickly writes an article about what happened and if you go to cnn.com for instance almost all the articles there by The Associated Press or its competitors okay and there was some guy some other company that was ripping off The Associated Press as soon as the associate Preston put out a story on the wire this other company would rephrase it in their own words and then put it out themselves and the associate press sued them and you can find the case yourself if you want the result no I think The Associated Press won that case under this hot news jurisprudence that has yet has not a lot been said about that I think that's true I thought they said that the news of the day was factual and that it wasn't a credible I mean is one look and look it up okay so news lips something else there's this musical composition by this advant garde composer John Cage it's called 4:33 and it's what it's completely silent for four minutes and 33 seconds and if somebody else you know makes a piece that's two minutes of silence you know can the cage of states through them for copyright infringement it's another question about originality okay silence biographies yeah I think that's less about originality oh yeah so Lotus three Borland way to the Supreme Court and they decided it was too hard and they did not reach a decision copyright is but autobiography but they said he couldn't copyright the factory major comment so people that's read it make factual information represented I don't know about that case but that would make sense so there's also going to dispute recently about price lists because the day after Thanksgiving all these retailers have massive sales and Walmart and Amazon and target and the other retailers have these big sales and those price lists are closely guarded secrets and yet they somehow get out on these websites like super sales calm and the websites you know have been the Walmart really objects to that why might they objected that right people could compare the prices between Walmart and Target or whatever and they say no those price lists or our copyrighted works and you know and there's a lot of originality that goes into the prices we have to decide should the price of a Nintendo be one hundred ninety five dollars 198 192 and what does Target likely to do and what's Amazon likely to do a lot of originality goes into bed and website people say well come on it's just what price you're gonna charge it's completely factual information what do you guys think for those of you specify your sources can you get around if you for any of the things just saying well I got this from this article can you I don't think the site citation is really the although it does solve almost all problems in the law I don't think it solves this one I mean like the I mean if you say this is Beauty and the Beast by Disney that doesn't absolve you from copying it does it okay so the price list I'm not sure if that has been conclusively adjudicated yeah I think it's just like a ruined company gave up the numbers which they go sort of so the same thing Detroit oh you think it's like a signing a phone number assigning a price that would be that would be interesting argument yeah just prices you can notice for a cancel over there well that's true and you need the trade secret would apply if prices were to lives on this website say today is prior to to the event when Morrissey is this price or yeah yeah in America I don't think you can you can you could suppress that under trade secret unless the information were obtained improperly but if there's enough there goes through enough people then no well wouldn't be a secret as soon as you posted it on your website this is a new this is a new issue and trade secret law and I don't think it's been totally settled okay but so these are all so when you think about Feist publications you should be able to have in your mind all these other issues that the reasoning could apply to and one more thing that's been recently talked about is lockout codes and passwords let's say you make a printer like a laser printer now if you make a laser printer how do you actually make money is it by selling laser printers right it's by selling toner for laser printers is how you make money that's why you get all the spam emails that I buy the toner so so what some companies do is they have a password for the toner cartridge to work with the printer and the printer says I will not accept any toner cartridge unless it gives me this password and the password could be you know a megabyte long it could be really long the password and then in inside the toner cartridge the company puts the password and when they first connect up the toner cartridge sends this megabyte long password to the printer this is okay and so any competitor if it makes a toner cartridge that doesn't have that megabyte long work in it they can't that it won't print so what if some company rips off the the lockout code and puts it in their toner cartridge and copies it is that copyright infringement it's a it's not a secret I mean you connect up to the tuner cartridge it sends the password you yeah yeah that's a little different but anyway so all of these are sort of originality questions the decision on the Turner case that you could not copyright a little lockout code like you know 32 bytes but if you put a megabyte of you know some movie that your company Commission's I have no idea what that's I think the decision would be similar but I really don't know for sure so but these are all the sort of originality issues okay so that's Feist publications let's blow is the next case we talked about 2 Live Crew's Campbell vs. 8 Huff Rose music so by the way why did I sign these cases I mean do these give a comprehensive view of copyright no we haven't even looked at the copyright statute which I hope will get you today if you read enough cases that's true although the copyright you know how so how long is the copyright statute does anybody know it's like 280 pages just for the statute and in some sense even unlike more so than other areas of law the statute really matters to copyright and we haven't even gotten there yet in patents the court the passed court decisions are a lot more important but in copyright there's this long statute that precisely sets out all these different balances so to understand copyright you need to be able to read the statute and these courts you know all of these cases are about the statute in some sense okay what's the whoops Campbell versus acuff-rose music about about parity and why is parity important who is Campbell okay what does he do what does mr. Skywalker do for a living he's a rapper and what did they do they copy what is a coffee rose music what do they do they only cover it in the song pretty woman yeah Luke Skywalker is a pseudonym is that a problem well apparently he went by Campbell that's his real name right company those Luke Skywalker records has like extra wires anyway okay so acuff-rose music owns the copyright on this song pretty woman people know this song apparently has a distinctive guitar riff I don't know exactly how that goes but anyway so it ended did Campbell's group did 2 Live Crew you know did they reproduce the song we looked before at the exclusive rights of copyright one of those was to Reaper to reproduce the work did they reproduce the work or did they prepare a derivative work yeah but did they take the same guitar riff for instance the same melody through this really yeah so they definitely prepared a derivative work and the copyright let's just look at what the Copyright Act says what's it gonna say well who has the right to do that the copyright owner so happy so we're gonna look down at the statute how are we gonna do that okay so the Copyright Act is one law that was passed by Congress most recently in 1976 so people talk about the Copyright Act of 1976 that's not actually what it's called the actual name of the Copyright Act is title 17 that's the formal name of the Copyright Act and they call it that because it's title 17 of the United States Code so everything in copyright will start with 7 tene USC so just as 47 USC means telecommunications 17 USC means copyright and whenever Congress makes them change to the Copyright Act as they do and they've done many times since 1976 it always goes somewhere in title 17 and they just keep adding more and more sections they're up to like fourteen hundred or something there's not fourteen hundred sections but they they keep adding sections so we're gonna look at the Copyright Act and we're gonna type in 17 USC s the S stands for service which means we're getting the Canadian version or the Dutch version sorry no dots you just type 17 USC s and the source is the United States code you can also search the Constitution here but we're doing the code then people see how I got here here's where you start it oops when you go to did everybody manage to use LexisNexis correctly I hope you didn't just google the cases nobody did that that will admit to it okay so you go to LexisNexis if you just have a citation you put it in right here a citation for a case but if you're looking for something in the US code you have to do legal research and federal code and then for cabaret you put 17 USC s in the citation and it brings up the whole thing and how many sections is at 161 sections okay and so the one that we're worried about what was the central one we're talking about before 106 everything comes out of 106 the exclusive rights incorporated works so to be able to answer to speed and copyright for your own satisfaction you're gonna have to look at the statute and that's what these courts did and if if you want to find out what the answer is without having to go to court you're gonna have to look at the statute yourself so here are the let me zoom this in here so the owner of copyright has the exclusive right exclusive means nobody else can do to do and to authorize any of the following and one of those is to prepare derivative works based on the copyrighted work and later it says that if anybody infringes one of those exclusive rights you can sue them and make them stop and get money for them yeah right so there's exceptions to this yeah yeah well that's basically what the entire rest of the kind of your day is there but I didn't go to the sessions at the MIT libraries and the technology licensing office are running read copyright did anybody actually go to those yeah the they briefly touched on the definition of fair use but that was about as far as they go yeah so the the perspective that they gave in those sessions I don't want to the perspective they gave in those sessions was a more conventional perspective on copyright which is that of the author and I don't want to mislead you into thinking that all this stuff is how authors think about copyright when we talk about copyright academically we talk about the structure of government and property rights and intellectual and and rivalry and exclusion and all that stuff you know that's sort of an academic view about copyright but if you're an author and you just want to copyright stuff you know you have a very different discussion and I that's not really what you're getting here so I don't want to mislead you I mean what if somebody had to summarize copyright for their friend who was trying to write a book and protect it what would you say yeah I would say you write a book and nobody can copy it until seven years after you died you should register your copyright with the cowbird office which we haven't even touched on yet and if somebody adapts your book into a play or sells it without your permission or it copies it you can sue them that's you know basically the author view of copyright yeah it's not necessary to register your it could be kept protected by copyright but it is necessary in order to sue somebody we'll get to that but I just want to emphasize that the sort of academic study that we're doing here is not the sort of nuts and bolts that you would get from one of those MIT library sessions okay so you have the exclusive right to prepare derivative works based on the cupboard at work so is to Live Crew in trouble they infringe one of these exclusive rights why are they not immediately put in jail because parodies are allowed and in particular what was the first sense of this that I skipped over subject to sections 107 through 122 so I just blithely skipped over that but those are important because those are the exceptions and what the very first one is 107 which is fair use which says notwithstanding what you just read what is notwithstanding mean it means forget what you just read I'm the more important thing Congress will sometimes pass laws where the first words in the law are notwithstanding any other provision of law those are really scary because you know the United States code takes up an entire bookshelf it's you know 50 volumes and some of them are really big and when they write notwithstanding any other provision of law they're Wow yeah what happens with two laws contract themselves that's why we have highly paid judges I mean sometimes the more recent law take I mean there's general rules like the more recent law takes precedence or more likely you try and understand Congress's intent in fact there are some laws that are so important that they say this law cannot be overridden by by any law unless it specifically says that it overrides me so if you say notwithstanding any other provision of law that's not good enough to override this law you still have to say and notwithstanding the second subject so you can get yourself in all sorts of logical contradictions but fortunately we have judges to serve these things out and generally they're not really concerned with law you know with formal logic okay so notwithstanding what you just read but this notwithstanding this is also dangerous because we're depending on the people who write the u.s. code to put things in a reasonable order but as far as we know somewhere in title three there might be a section that says notwithstanding all of title 17 you can copy it as long as it's about pretty women that that law might be part of the United States code and we would have no idea yeah they're like a full-text search you can now but you know that's something you can do in the last 20 years and even so it's you know it's difficult and there's some federal laws that are not in the United States code like the Northwest Ordinance which created like Illinois and it's a federal law it's still in effect today still enforced but it's not in the United States code it's complicated anyway so now with standing what you just read the fair use of a copyrighted work including such use by reproduction in copies or phone records or by any other means for purposes such as criticism comment news reporting teaching scholarship or research is not an infringement of copyright in determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include the purpose of the use the nature of the work the amount of the portion used and the effect on the potential market that's what Congress has said now did Congress come up with that on their own no where did this come from it came from judges because the previous Copyright Act had no provision for fair use at all in the law and some people went to court over you know small changes or you know tricky issues and the court said well Congress could not have seriously intended to have no provision for fair use so we're just gonna invent one and there was this whole judge-made doctrine of fair use and when Congress enacted the Copyright Act in 1976 title 17 they said we're not going to disturb that judge-made doctrine we're going to preserve it and Lexus has attached probably what they said so Lexus has attached the sort of commentary that the House of Representatives row when they first issued this in 1976 they said the judicial doctrine of fair use one of the most important and well established limitations on the exclusive right of copper donors would be given express statutory recognition for the first time in section 107 so it was there it was given it was well established in Congress's view and yet it was nowhere in the statute so these things can be tricky anyway so we'll go back here so you're the Supreme Court and mr. camp mr. acuff-rose says you ripped off my song you prepared a derivative work that's undisputed and what is Luke Skywalker say he says it was what he says it was not an infringement of copyright because he was fair use and section 107 says notwithstanding your exclusive right my fair use is not an infringement of copyright that's what he says right yeah we include the lyrics and appendix yeah I like that okay so we're the Supreme Court let's look at this dispassionately we'll say okay Luke Skywalker we're gonna look at that maybe you're covered by the exception it says notwithstanding section 106 the fair use including such used by reproduction copies or phonorecords for purposes okay let's let's look at it such as criticism is that what they were doing okay criticism comment maybe news reporting no teaching no scholarship research no okay so but they're like it's it's criticism and comment and did the Supreme Court rigorously apply these four factors in deciding whether it was a fair use yes I mean do you think do you think that's how they made the decision well Supreme Court days are now in the feels these assumptions about one through four that are not true they change so much kind of seems like yeah I mean but how do you think that do you think that that's how the jut the justice has reached their conclusions or do you think they were like well come on it's just a joke let's write this reason why and we don't really know how they in their minds reach the decision and David Nimr who's probably the foremost copyright scholar today has written a paper called the fairest of them all which may be worded in this class where he analyzes you know like a hundred fair use decisions and finds that the judges opinion on these four factors has almost no predictive power about what the judge's ruling will be even what the judge actually has written about his opinion of the four factors has no has no effect no predictive power I think on the final ruling about whether it was fair use or not yeah what is he the minority opinion is across or what reach the home of the opposite decision to maturity and yeah so you know you have to understand although these are the criteria that Congress is set out for judges to take to help judges and reaching their decision in reality things are a lot more subtle than that and you know really what probably happens is that you know the judges sort of decide is this really a ripoff is this affecting the plaintiff in some bad way and yeah so you know that it's um it's more subtle than what's set out here I don't know and so and what what you know the vagueness of fair use in practice means that large entities just will not rely on it at all because you have you really don't know what very what is fair use and what is it I mean the victory for Luke Skywalker was by no means assured in this Campbell V acuff-rose case right and the consequence of that vagueness is that no publisher will rely on fair use so when when the MIT press is publishing a book and they want to quote some other author from some other book you know they always ask permission from Simon & Schuster whoever it is even if it's just a sentence and if they won't give permission they're extremely reluctant to include it even if they have a lock lock hard case of fair use have people know the author Douglas Hofstadter who wrote gödel Escher Bach so in his book through tome Buddha Malvo which is about translation at one point he wants to criticize part of the Catcher in the Rye by JD Salinger and so he he prepares in his book did he know the important thing about his book is that he laid it out it's the author laid out this book himself in a word processor because he wanted it to have a very particular kind of layout this is you know he's a famous author so the publishers like whatever and so in his book he's like and now let me show you what I mean about the bad parts of JD Salinger's capturing their eye : and then he has this long excerpt that's in its I shoulda brought this in but in the inset he says I've got a problem here this is not JD Salinger and the problem is that right before our publication date my my publisher called up JD Salinger's publisher and said can we excerpt this little excerpt from Catcher in the Rye and JD Salinger said no and I would have you know written around this or somehow fixed it but as I explained to you I've laid out this whole book in advance to have a certain layout in my word processor and I can't just delete this excerpt or it'll screw up my pagination so I'm just gonna sort of ramble on at length here until I reach the original length of the excerpt and then he goes back he's like can you believe JD Salinger wrote that I'll bring this in but the point is that here yeah Douglas Hofstadter is exactly criticizing Catcher in the Rye he has like a one paragraph or two paragraph excerpt from Catcher in the Rye who here has read Catcher in the Rye and you know we can look at the purpose and character of the use it was criticism the nature of the copyrighted work is this big book that's one of the classics of American literature he's excerpting well what's the amount and substantiality of the portion just one paragraph what's the effect of the use on the potential market for for Catcher in the Rye I mean are people gonna not buy a Catcher in the Rye because one paragraph has been excerpted in this Hofstadter book the effect is probably nil right yeah so here Douglas Hofstadter's publisher and the publisher by the way is basic books which I think is owned by HarperCollins which is owned by the News Corporation you know which is a gigantic company it also owns like Fox News and Fox TV and 20th Century Fox television and the Simpsons I'm a gigantic company which would have no problem paying lawyers to litigate a fair use to speed here and here you know seems to have an ironclad fair use case they just they won't risk it so the the fact that fairies this vague means that in practice you know cautious entities will not depend on it at all even if you might think that what you're doing is fair use okay did anybody have anything else to say about the to Live Crew yeah yeah it is related I mean rappers recently a rapper I don't remember which one you know they they do these samples where they take a small section of another recording and they put it in their recording and recently one of those you know rap bands or rep I don't know are they in bands one of the labels was hit with a judgment of like 50 million dollars for just sampling that you know and it's a sample like rip or something like that but they were hit with a judgement for 50 million dollars or a lot of million dollars I don't remember how much for that sampling so you really have to be careful and as we'll see if you mimic the sound that's completely okay if you make your own loop even if it sounds almost exactly like the loop that you're sampling that's fine that's not copyright infringement at all even if it's totally similar well that was about the musical work that was not about sampling the recording but anyway the point is you have to be very cautious about even the tiniest copy if you're a big commercial entity or even if you're not have to be cautious and there's a distinction here what was the defense that acuff-rose tried to raise I said well it might be a parody but it's not a parody of our song right did they raise this this issue of parody versus satire didn't they they talked about that what is the difference what's a parody oh I don't think so at all now a parody is when you use the work to make fun of it itself which is sort of like this to Live Crew thing I mean they were making fun of the song pretty woman but a satire can be when you use some work to make fun of something else completely so we you know weird al' take songs like American Pie and he turned it into what was it Star Wars pie what was it called it was about Anakin Skywalker in Star Wars and all that but it was not in any way making fun of Don McLean's song American Pie and and so we're now I think traditionally we say that parodies might be fair use but satire is not so so we're now who takes a song like American Pie and makes it to make fun of something completely different or how they took how you doing but what's that song yes pretty fly for a white guy weird out like that and he made it he made he called it what pretty fly for a rabbi which was all about this rabbi and you know all this stuff was not really making fun of the original song so weird out I think would have a very difficult fair use defense because he's not making fun of the songs that he takes he's using those songs to make fun of something else and there's another case where somebody took it was Walt Disney Company by the way whenever you see like Walt Disney Company's the plaintiff they almost always win so you never want to see one of those cases cited if you're not on the side of the copyright owner Walt Disney Company versus I think the company was called air pirates also not a good sign and the air pirates had taken like Mickey Mouse and Donald and used them in like some pornographic thing and they said oh no it's a parody of Mickey Mouse and the car was like no you're just doing porno with Mickey Mouse and of course doesn't he want so you have you know you might say oh it's a parody but no no no no the other guys is gay no it's a satire you're just using our work but it's not you're not making fun of our work you're making something one of something else yeah funny parity was also a rock sound and so we is good with the curve effect of the market potential market of some favorite charities right so then camp acuff-rose like well if we wanted to then later license a rap version of a pretty woman you know we'd be stuck because there already is this rap version and the supreme court was like well we don't think that's really likely yes Oh but you can see how sensitive these fair use decisions can be and I you know I wouldn't want to ever depend on a fair use determination because you really can't depend on this is one of my favorite cases yeah well they okay so here's one in the dark days of 1977 when the city of New York teetered on the brink of bankruptcy in its name had become synonymous with sin there came forth upon the land a message of hope sometimes the judges like to ham it up a bit on the television screens of America there appeared the image of a top-hatted Broadway showgirl backed by an advancing filings of dancers chanting I Love New York repeated again and again the musical accompaniment with increasing intensity throughout the commercial this slogan was to become the theme for an extensive series of advertisements that were to bring the nation assurances from the stars of Broadway ranging from Dracula to the Cowardly Lion that all was well and that they too loved New York as an ad campaign for an ailing City was an unparalleled success crucial of the campaign was the brief but exhilarating musical theme written by Steve Carmen who had previously offered a number of highly successful commercial jingles including weekends were made for Michelob well the aisle Avenue her song was written for the New York State Department of Commerce it was for New York City the success of this campaign did not go unnoticed in the entertainment world on May 20th 1978 the popular weekly variety program Saturday Night Live performed a comedy sketch over defendant NBC's Network in this sketch the cast of SNL portraying the mayor and members of the Chamber of Commerce of the biblical city of Sodom are seen discussing Sodom's poor public image with out of towners and the effect this was having on the tourist trade in an attempt to recast the city's image in a more positive light a new advertising campaign emphasizing the less sensational aspects of Sodom nightlife is unveiled as the highlight of this campaign the song Isle of Sodom is sung a cappella by a chorus line of three SNL regulars to the tune of I Love New York with the world I love Sodom repeated three times the plaintive Ellesmere music incorporated the cabra proprietor of I Love New York did not see the humor of the sketch it sued for copyright infringement so then you can see they go on and on and on about the four factors and the economic okay you see how these things go so and who who in your view should have won this case and we see this the Sodom they were not a party to this action anyway but you might think if you were you know who would care right but in fact these people did care people are very sensitive about these issues and they had to pay for this whole federal adjudication so sorry in this case the NB c-- did win but you know it wasn't totally clear in for instance one of the arguments was that the I Love New York song was made for New York State but NBC was only making fun of New York City's campaign you know that was part of the argument and there's another much more famous case in the Supreme Court called the nation vs. Harper & row which was a fair use case where some president it wasn't present for it his that the one we were talking about I think President Ford's some book was coming out published by Harper & row and it contained these quotations from President Ford I guess which the Nation magazine you know ripped off and printed in the nation they were just short you know small quotations from the book and Harper & row sued and said it's copyright infringement and the nation was like you know what the hell are you talking about it's just a few paragraphs it's this big book and who won that case Harper in a row right they you know the spring court said well it may be just a few paragraphs but those are the important ones which is obviously why the nation had chosen those paragraphs and so the nation was not successful on their fair use defense and that's a case it's very often cited by the you know plaintiffs in these actions when the defendants trying to assert a fair use defense okay any other questions okay what was the next case that we looked at on command video court versus Columbia Pictures industries yeah now was this was not a Supreme Court case right this is from a lowly trial court and those often end up talking about much more technical issues so I put this one in just for anyway so what can explain what this case was about have never you oh yeah go ahead it was defining what was actually public what was public that was part of it yeah this company anything on command video made this system anything if you say to hotel you can okay you know and then these Hollywood company-issued said pretty stuff heavily he said okay well you know this isn't okay this copyright infringement because we have what I think was exclusively there something public public so here's the exclusive right to tell you about the exclusive right of public performance now to understand this case we have to understand there was a already a previous case about this situation here's the hotel everybody's in the hotel here's the front desk of the hotel and they have these tapes and then they have this hallway and then here's your room that you rent from the hotel and there's a VCR hooked up to a TV and then there's the beds okay and here's the tapes okay so there's a previous case from 1986 where there's a hotel and if the people want to get a tape they walk down the hallway and they pay some money and they rent the tape from the hotel and they walk back to their room with the tape they put it in the VCR it gets transmitted over this short cable to the TV then they sit on the bed and watch it there in the room and they watch okay in that case the copyright owners sued and they said this is a public performance okay and and who won in that previous 1986 case the hotel won a previous area yeah the hotel one because section 101 of the Cochran Act which is the one with all the definitions says to perform or display work publicly means one to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family that social acquaintances is gathered or to to transmit or otherwise communicate a performance or display the work to a place specified by clause 1 that's one of those open to public places or to transmit it to the public by means of any device or process whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times so you can see how this is one of these definitions people can argue about for hours so in this first case the 1986 case is the hotel going number two now they're not really transmitting it at all they're just giving you the tape and you walk down the hallway which is not transmission there's another definition about that so are they doing number one to perform or display it at a place over to the public and yeah I mean presumably anyone who was for it for the most part most members of the public could choose to mentally yeah most of the public could choose to rent a room from that hotel yeah yeah so in this previous case that we didn't read the whole argument was is this hotel room a public space is it open to the public and they were like well yes it's open to the public because any member of the public can rent a room and the hotel is like well it's not really open to the public once you've rented it at that point it's only open to the people who've rented it and okay there's another previous case called the red horn case which concerned a video store like a blockbuster they had a room in the back that you could rent and you could you could rent your tape from the Blockbuster and go in the back and then watch the tape and the copyright owners sued saying no no you're performing it publicly because that room in the back is open to the public and who won that case the video store or the copyright owners the copyright owners well in that case because the court said well this room in the back is not really private because anybody can rent it and it's in your store so it's open to the public that's the red horn case so here's a hotel case that looks somewhat similar but in that case the court said well it's not really you know hotel rooms have long been understood to be private and for instance for for a search you know for the Fourth Amendment you can't just barge into a hotel room without a warrant even if the hotel says it's okay so you know there's all sorts of reasons but they said the hotel room inada not open to the public and so this hotel VCR tape lending scheme was approved by the court okay any questions about that one okay now in 1991 a hotel somewhere in California comes up with this scheme where there's the hotel and there's the front desk and they have the tapes and there's the hallway and here's the room and here's the TV and here's the bed except in this case the VCR is here and the wire goes all the way down the hallway and then into the TV okay and the people stay here and they maybe call the hotel on the phone the front desk and they say please put this tape and then somebody over here puts the tape into the VCR and plays it and then they watch it here people agree with my characterization of the factor okay doesn't really we don't I don't think we know and it doesn't matter does it let's say only one only one person's watch I mean one of them so it's like that so only one person can ever watch a particular tape at a time you can choose from that movie and it disappears okay okay so this case I mean it seems pretty similar to that other case but who won this one and when we read the copyright owners alone and why was that I think isn't the one didn't apply because the elements are private play to apply because you're transmitting this data over the wire it basically the on command video I think said well we're really it's this really an electronic rental not you know a transmission they did well they said look you're not transmitting it to a place specified by Clause one which is the first one open to the public but you are transmitting it to the public because these hotel members there's no screening criteria for hotel members anybody can be a hotel customer what are they called guests hotel guests and so you're not transmitting it to a place open to the public at least not once the room has been rented but you're transmitting it to the public so you lose now this is just one chord in California so you know it's plausible that some court in Massachusetts would reach a different conclusions but not likely once it's already been decided so you know many times when your head you know let's say you're an engineer you're designing some system and you have to decide whether you can do architecture a or architecture be you know some co-worker will be like it's the same thing anybody ever encountered an argument like that from a friend yeah so you know you might say well the quit you know the court approved a so let's go with a and the co-worker or your boss might say no no let's go with B it's much better and it's the same thing the only difference is the length of this wire and surely the copyright law doesn't care whether this wire is six feet in this case or sixty feet in this case I mean it's not a copyright question how long that wire is it's the same thing and people often their voice gets higher and higher the more emphatic they are about it and and are they right okay that's an interesting dividing line where is the wire I mean do you think Congress when they wrote the salon 1976 they said we intend you know this exact result that this will be legal and this would be not legal they think the Senators were there like what oh how long can the wire be no and this is what courts do ya say that since the wire was in a rubix case he gets the facility you see author we should be considered as police face which is a quote on short Island Council that in no matter what is fast because you can watch it on the TV so the real question whether it's transmitted to the public now why is this not a transmission to the public I mean it's transmitted from here to here for today Mike pretty well this time that was a transmission particular to its digital well okay maybe but the point is that when you're pressed to conclude something and somebody argues by analogy that is very dangerous and you should be very cautious because truly these questions even now that one court in California has rendered an opinion on these questions that doesn't mean that they're answered but the fact they might have been answered adversely is more reason for caution so when somebody gets high pitched in and says it's the same thing you got to be very cautious who here ever used Napster or Kazaa or one of those things yeah okay so have you ever like traded tapes with your friends like most people think that's perhaps fair use but people think trading a tape with your friend is maybe Freitas we're making a mixtape or something like that probably fair use perhaps fair use and in the Napster case Napster went to the eventually to the appeals court in California which is which Circuit the Ninth Circuit and Napster you know the copper donors went after Napster and they said your users are infringing copyright because they're distributing these sound recordings over the internet to other users and Napster says well come on distributing tapes you know to your friend next door is okay and just so they're for distributing them across the country it's the same thing and that was basically Napster's argument that's not giving them fairness actually professor nimmer the expert on cabaret thinks Napster should have won but they didn't win but and their argument that it's the same thing was completely unsuccessful there were okay internal movements about what they meant was like let's go over the record companies yeah yeah another thing to keep in mind is when you read these adjudications the amount of sympathy to the various plaintiffs is very important that their eyes party this is very important but anyway these arguments on the lines if it's the same thing you cannot get suckered in by those because the copyright law is a 300-page document I guess will I'll probably assign more of it to read and you you cannot you just can't argue by analogy like that because you'll be wrong that's the point I'm trying to make okay yeah they crash is about a pneumatic tape well you know but I don't know I think it would be fine go on you're the transmitting also involves caring so tell me Carrie because I think that may be answered okay to transmit a performance or display is to communicate it by any process device or process whereby images are sound are received beyond the place from which they are sent that's pretty broad I agree however well I just don't know I think that the court would not construe throwing the videotape to be transmission I think they would call that distribution which there's a whole separate law bass but but you know what if you had the tape on spool so that like the tape goes over here and then comes back you know who knows but my yes so okay okay and let's talk about the last case that we read which was what was the last case Sony versus Universal okay so how did this case reach the Supreme Court who started it Universal started it and did was Universal acting by itself there though like the other movies so why do we only just called it Sony Clark versus Universal City Studios so only people with stake no it's not true list of all that would be too long it's mostly because the rules on citations say that you list the first part in each side and you don't put at all I don't really know why the rules say that but those are the rules yeah and these names use suniye they just received what I think some iki amigas briefs nuclei I feel like the other you really think so why I don't I think it was both of the document based on the previous yeah generally it's their Association the Motion Picture Association that you know decides to have a suit and then they all sort of get in on it okay so here Russell and the other movie studios started this that's do they say who the parties are sometimes the Supreme Court never says you the parties are we have to look at the lower court well anyway go on so Universal and the other dude sued Sony and what was their cause of actions did they say Sony was Sony by the way is a movie studio right it's one of the biggest ones also one of the biggest music labels they certainly had movies at the time so so did Universal and friends allege that Sony was sitting there ripping off their programs these customers were doing it so why would Sony have been in trouble at all contributory infringement okay now is that precisely delineated when you're a contributory infringement when you're not not really that's what this case is what the case is really about is when are you a contributory infringement in favor of the movie studios how about yo-yo they argue that Sony in its marketing head for example had had known that the primary use for its Betamax would be to copy programs off of the television waves and most of these programs were copyrighted so they knew that people would be using the Betamax for okay so Sony knew that Sony was making money and they were selling this device to customers and Sony knew that what the customers were doing was was copyright infringement that was the argument there for Sony should be contributory liable yeah silly was commercially news of any customers right because it could be from the so there's this whole fair use analysis about how much of it and the studios major spokesman at that time until very recently was this man Jack Valenti who's one of the most eloquent lobbyists that Washington has ever seen and he went before Congress and he said I say to you that the vyas VCRs to the American film producer in the American public as the Boston strangler's to the woman home alone yeah no excuse desk move over I didn't interview him he was or had already been asked about that at the forum okay but you know if you if you read the entire congressional hearing where mr. Valenti testified you can see that he just blew away all the other advocates and he made the argument brilliantly about you know America's position in the world he told Congress you can give money to those Japanese companies but you'll just be taking money out of American coffers and giving it to Sony in the Japanese and he you know even Congress said okay today we heard from mr. Valenti and the other motion picture companies and tomorrow we'll have testimony from the Japanese companies I mean from the consumer electronics industry when he brilliantly framed it in in those kinds of terms and in fact the consumer electronics industry dwarfs the content industry and people know this in you know in revenue and market capitalization but partly thanks to mr. Valenti the the movie studios have been very successful in getting their their message out also of course the consumer electronics people have nothing to show if it weren't for the people who make the movies anyway but and you know what what this was what was this really about were they trying to get VCRs banned yeah but what did they they wanted money what this was really about was money they would have been fine if Sony been like we'll give you you know ten bucks on every VCR they move like great and there had been a previous dispute in the 1970s with very similar parties well very similar plaintiffs about cable television there are these cable TV channels people ever seen cable TV called CATV that stands for community antenna television and the cable TV people said we're gonna put up an antenna we're gonna receive NBC and ABC and CBS we're gonna get good reception of it and then we're gonna put it in a wire in the ground too you know all these homes and people gonna pay us to get good reception that's cable TV and the movie studios sued the cable TV providers and said what do you know and you're transmitting our content and you are infringing and you need to pay us if you're making money off of our programs and who won no the cable TV companies won I think it went to the Supreme Court the Supreme Court said come on they're just putting it on a better antenna it's a community antenna well we have to read that case maybe I'll sign it but anyway they said no it's just a big antenna you know who cares kisses you know you're not editing it you're not choosing what to do it's just a good antenna and the long wire that's what the Supreme Court said and then Jack Valenti went to Congress and got them to pass the law saying no no cable TV is infringement so now cable TV providers don't have to get permission but they do have to pay a royalty on what they do you know you supposed to read contributions oh if I yeah give me okay I'll try and get to that so anyway so now five years later they have the same argument about the VCR and Congress had basically said to mr. Valenti look if you can win in the Supreme Court then we'll consider legalizing VCRs in exchange for this royalty but I guess they said we're not going to just impose this royalty so they again went to the Supreme Court in an effort to have the Supreme Court declared VCRs illegal and so that the supreme court could legalize them in exchange for this royalty which is what they done with cable TV but the Supreme Court disagreed right it said no Sony is not contributorily liable and why was that one because not all of Sony's users are breaking the law which of Sony's users were breaking the law what is illegal that they said you could you can do with this device what illegal content does the spice allow what's he illegal what's against the law that you guys do he's a woman could be all right what's the particular activity that Supreme Court said was against the law right library building by the way was this decision unanimous no the other decisions we read both of them were unanimous right it was five to four so any new justice coming in might shift the balance okay so they said what's illegal is library building so who what is library building library buildings when you say I'm gonna record all of the episodes of Seinfeld that come on TV put them on these tapes put them on my wall and later when I want to watch an episode of Seinfeld I'm just gonna pull the tape off the wall and watch it that's library building that's against the law the people here do that yeah okay but they said no no not fair use because you know it might supplant the market for the original well in a Seinfeld episodes on TV with with ads you might say I'm not gonna watch that because I've got all the Seinfeld I could want on my wall yeah so that the trooper said that's not legal and if that were the only thing that Sony's customers did with Sony be in trouble yes but fortunately some of the users perhaps a small majority but some of these is do something that is not against the law that is Farias and what was that time shifting now we're there you know where there are a lot of users who appear before the Supreme Court and said Supreme Court we are not breaking the law we're arguing our case we're just time shifting did that really happen not really so the user is not really a major party to this action so Sony is sort of making these arguments on their behalf so the Supreme Court said but his time shifting is legal what's time shifting yeah I mean it's just shifting the funds of the time was Hamid and you can falcomon section you're going late but you can't do it that's easy that's sure you can't for the ads say we're dead set against it that's why they sued but you know you can also walk away doing it with ads like to go to the bathroom and then I think 2002 one of the the head of Turner Broadcasting made a famous remark that going to the bathroom during the ads is like seft but you know that's how these people make their monies from advertising so they take it very seriously okay so there's prenup or snippet time shooting is legal so time shifting who can give me an example of time shifting yeah we want to office program until today they have to work so you take this yeah okay yeah was that time city was really good because finally you invested in with a nice tape recorder in order to be able to do some time shifting or but you would it would because product to a potential market customers who would be willing to buy the movies images you see you know that do you watch it yeah so you know they weren't in agreement but five of the justices said time shifting was legal and you know reading the dissent is often more illuminating than reading the majority opinion because the dissenters always focus on the you know the juicy part okay and then why did the Supreme Court you know this was about Stoney's users but what did the Supreme Court say about Sony which was really what mattered they said Sony was not contribute orally liable why should they not be responsible for their duty to immigrants because they said the relationship between Saudi and its user and the users most a landlord-tenant rather than a daesil okay but if the only people had been that if all of their customers were just library building with Sloane you've been off the hook no so what did the Supreme what's the reason this Tony got off the hook substantial non-infringing use substantial non-infringing use that this is the really important holding of the Sony opinion it's not that time shifting is legal that's the important holding the important holding is that because time shifting is legal and because this device is capable of a substantial non-infringing use therefore Sony is not contributory liable that's the important holding of the case by the way did people actually have to be time shifting or did the device just have to be capable of a substantial non-infringing use so you say capable you said people had to be time well Rupert did you hear evidence I mean we we I think formally people assume that well I think it's formally expressed it merely has to be capable of substantial non-infringing use but the doctrine is still very muddy and in two thousand five Houlihan ago in 2005 the Supreme Court heard a grot a case about Grokster and whether grok stir which was sort of like Kazaa should be liable for its users some of whom are doing illegal things and some of whom might plausibly be doing legal things like trading the Bible or whatever I mean I know how to that all the time I'm like dude let's get the Bible so garage ster went before the Supreme Court and they said our device is capable of a substantial non-infringing use because people could be trading the Bible or Huck Finn or whatever and and they went before the Supreme Court they said as everybody knows in your Sony decision in 1984 you said a device just has to be capable substantial non-infringing use and we're off the hook and the Supreme Court justices who are basically you know many of them are still there they were like really I don't think Sony was that clear so you know here we have a case where everybody assumes they knew at that decision meant but not until you really get back before a court or even a court that's able to overrule it do you realize how shaky the foundations are it was sort of a middle ruling the Supreme Court held that they didn't have to address the issue because gerak stir it's on the facts presented roxtor had actually induced infringement itself so they didn't want to have to talk about if they hadn't induced infringement what the result would have been okay so for next week I think the homework is going to be to read some of the Copyright Act and maybe some more cases about it if any of you have more suggestions about what you'd like to talk about I'd love to hear them are there any we can turn off the tape but other any of the questions or whatever suggest