Copyrights on the Internet Handout by Eric Goldman

Copyrights on the Internet
by Eric Schlachter, Esq.
Cooley Godward Castro Huddleson & Tatum

1. Basics of Copyright Law. Copyright law is a constitutionally based monopoly for
the creators of original and creative works that are fixed in a tangible medium of expression.  Governed by the Copyright Act of 1976.

2. Monopoly Powers Granted: Copyright holders have the exclusive rights to
reproduce, distribute, create derivative works of, publicly perform, publicly display and digitally perform their works.

3. Fair Use is a Limitations on Monopoly Powers.  Multi-factor test:

* purpose and character of use (educational/nonprofit use v. commercial use)

* nature of copyrighted work (unpublished and fiction works favor owner; published and factual works favor user)

* amount and substantiality of portion used

* effect of use on market for the work

4. Threats to Copyright on the Net.

* Ability to make large number of copies at no reproduction cost

* No loss of quality in copies

* No meaningful costs of distribution

* Ability to distribute through remailers

5. Legislative Response: the White Paper.

* Include “transmission” in the definition of “distribution”

* Digital Performance rights.  Already passed.

* Expand criminal law to include willful infringement of copyrights with retail value of $5,000 (anti-LaMacchia).  Already passed.

* Prohibit devices with primary purpose to infringe copyrights

* Prohibition on tampering with copyright management information

6. Technology Approaches: Pre-Infringement.

* Limited functionality software (i.e., cannot print or save)

* Date bomb

* Copy protection/serialized

* Encryption

* Contracts

7. Technology Approaches: Metering.

* Applets (Java)

* Debit cards

* Centralized Computing

* Copyright clearinghouse/microtransactions

8. Technology Approaches: Post-Infringement.

* Copyright litigation

* Agents

* Serial numbers/watermarks

9. Business Approaches.

* Sale of upgrades

* Sale of ancillary goods

* Sale of consulting services

* Sale of technical support

* Sale of customized solutions

10. Esoteric Issues to Consider.

* Is browsing infringement?

* Is linking infringement?

* Is caching infringement?

About the speaker: Eric Schlachter is an attorney practicing in cyberspace law with the Silicon Valley firm of Cooley Godward Castro Huddleson & Tatum.  He has a law degree and an MBA in entrepreneurial finance from UCLA.  He is an adjunct professor of Cyberspace Law at the University of San Francisco School of Law.  He can be reached at schlachtere@cooley.com or (415) 843-5154.

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