Copyright

Professor Grimmelmann

New York Law School

Fall 2008

About the Course

Overview

This is a comprehensive course in copyright law, with a special technological focus. At least since the printing press, the history of copyright law has been the history of its interactions with new media technologies. Repeatedly, copyright has had to adjust itself to take advantage of disruptive new technologies–or to cripple them to fit its mold. By looking at old examples such as photography and the player piano, we’ll try to gain insight into the challenges copyright faces as it deals with new digital technologies. Along the way, we’ll study in detail the major doctrines of copyright and how they fit together.

Prerequisites

To enroll in this course, you must either have taken Intellectual Property (CIP155) already or have my permission. This course moves more quickly because I can assume that everyone in it already knows the general policies underlying intellectual property protections, the basic framework of copyright doctrine, and some of the central cases in the copyright canon.

I’ll grant permission to skip the prerequisite if you demonstrate mastery of these fundamentals or otherwise convince me that taking this class would be appropriate at this point in your legal education. I may be more willing to grant permission if you are enrolled in Intellectual Property simultaneously. If you aren’t certain whether you should take Copyright this semester, please come and talk to me and I can give you advice tailored to your situation.

Class Meetings

We meet Tuesdays and Thursdays, 11:15-12:30 in room B400.

Here’s what I expect from you in class:

• Please arrive promptly prepared to discuss the day’s assigned readings. Note that there are not dates by the individual assignments; you’re responsible for paying attention to where we are and reading the “next” assignment each time. I promise to stick closely to a one-assignment-per-class pace.
• Bring your casebook and statutory supplement with you to class.
• I call extensively on students, mostly at random. I will do everything I can to make the experience supportive and unthreatening.
• If you must miss a class session, please try to let me know beforehand.
• It is always okay to interrupt me with a question. If something seems unclear to you, it is likely that others are also wondering the same thing.
• In class discussions, you should be respectful of and courteous towards your classmates. One of the skills you are learning as law students is how to express disagreement in a friendly and professional manner.

Readings

You will need:

• Julie E. Cohen et al., Copyright in a Global Information Economy (2d ed. 2006), ISBN-13: 978-0-7355-5612-6
• Copyright in a Global Information Economy: Case and Statutory Supplement (Julie E. Cohen et al. eds. 2008), ISBN-13: 978-0-7355-6369-8

It is utterly essential that you have a copy of the statutory supplement, to which we will make frequent and detailed reference. Copyright is a statutory subject, and many questions can only be answered through a careful reading of the statutory text.

Do not read principal cases in the Supplement unless assigned. You should, however, read any notes and questions in the Supplement that correspond to notes and questions assigned in the Casebook.

Grading

There will be a 24-hour take-home self-scheduled final exam. The exam will be open book and subject to a strict word limit. You should not need to spend more than six hours on it. The 24-hour period is designed to allow you to take the exam under comfortable conditions and with no unnecessary stress. You are responsible for anything in the readings or discussed in class, with the emphasis on what has been discussed in class.

Last year’s final exam and final exam memo are available from the syllabus

I may adjust your grade by one third up or down for class participation. I consider good class participation to be anything that helps your classmates learn. NYLS has a blind-grading policy: I won’t know who wrote which exam until after I submit your grades.

Course Web Page

This syllabus is at http://james.grimmelmann.net/courses/copyright2008F/. As the semester progresses, I’ll post updates to it here.

Contact

Office: Room 706, 40 Worth St.
Phone: (212) 431-2864
Email: jgrimmelmann (at nyls) Office Hours: Tuesday 9:00 to 11:00 A.M. and by appointment

Please put “Copyright course” somewhere in the subject line of any course-related email to me so that I can give it proper attention quickly.

Schedule

Introduction, Theory, and History

• Casebook 3-33
• U.S. Const., art. I, § 8, cl. 8

Part I: Copyrightability (5 classes)

Originality

• Casebook 45-47 (overview)
• Casebook 57-72 (Burrow-Giles, Bleistein, Alfred Bell, Bridgeman)
• Copyright Act §102(a) (flush text)

Idea and Expression

• Casebook 72-90 (Baker, Hoehling, Delta Dental)
• Casebook 326-30 (Nichols)
• Copyright Act §102(b)

Compilations and Derivative Works

• Casebook 98-110 (Pickett, Feist, Roth, Mason)
• Smith v. Muehlbach Brewing Co., 140 F. Supp. 729 (W.D. Mo. 1956)
• Copyright Act §§101 (“compilation,” “derivative work”), 103

Subect Matter

• Casebook 209-18 (Mazer, Kieselstein-Cord)
• Casebook 226-33 (designs)
• Casebook 269-80 (Yankee Candle, Nelson-Salabes)
• Copyright Act §§101 (“literary works,” “pictorial, graphic, and sculptural works,” “motion pictures,” “audiovisual works,” “sound recordings,” “useful article”), 102(a)(1)-(8), 113, 120, ch. 9 (skim), ch. 13 (skim)

Boundary Cases

• Casebook 235-42 (Apple)
• Casebook 280-90 (MGM, Titan Sports)
• Casebook 301-04 (Matthew Bender)

Part II: The Mechanics of Copyright (8 classes)

Sole, Joint, and Government Authorship

• Casebook 110-18 (Lindsay, Erickson, Aalmuhammed)
• Casebook 134-38 (Veeck (notes))
• Casebook 725-32 (WIredata)
• Copyright Act § 101 (“joint work”), 105, 201(a)

Works for Hire

• Casebook 118-34 (CCNV, Aymes, Avtec)
• Casebook 200-07 (Tasini)
• Copyright Act § 101 (“work made for hire,” “collective work”), 201(b)-(c)

Fixation

• Casebook 47-50 (Williams), 53-57 (notes)
• Cartoon Network v. CSC Holdings, Background and Discusison pt. I
• Casebook 144-47 (Estate of Martin Luther King Jr.)
• Copyright Act §§101 (“copies,” “created,” “fixed,” “device, machine, or process,” “publication”), 117, 1101
• 18 U.S.C. 2319A

Formalities, Term, Renewal

• Casebook 139-44, 147-58 (formalities, term)
• Casebook 158-77 (Eldred, Abend) (skim)
• Copyright Act §§101 (“best edition,”), 302-05, 401-12

Transfers and Termination

• Casebook 182-200 (Effects Associates, Boosey & Hawkes, Rosetta Books)
• Casebook 177-182 (termination)
• Copyright Act §§101 (“widow”), 201(d)-(e), 202-05

The Copyright Lawsuit

• Casebook 735-53 (Bassett, Gerig, Roley, Eden Toys, Bryan Ashley, Chavez, Feltner)
• Copyright Act §§ 411, 507, 511

Remedies

• Supplement 411-13 (Abend)
• Supplement 416-26 (Grokster, Remeirdes)
• Casebook 776-80 (Frank Music)
• Casebook 788-99 (Storm Impact, Krypton Broadcasting, Fogerty)
• Copyright Act §§ 502, 503, 504, 505, 602

Scavenger Hunt

Part III: Copyright Infringement (9 classes)

Proving Copying

• Casebook 313-33 (Three Boys, Selle, Ty, Nichols (reread), Arnstein),
• Copyright Act § 106, 501

Substantial Similarity

• Casebook 336-64 (Steinberg, Boisson, Altai (pt. 2))

The Derivative Right

• Casebook 396-408 (Mirage v. A.R.T., Lee v. A.R.T., Galoob, Micro Star)

The Distribution Right

• Casebook 369-75 (Bobbs-Merrill)
• UMG v. Augusto, No.. CV 07-03106 SJO (CD Cal. summary judgment granted June 11, 2008)
• London-Sire v. Does, No. 04cv12434-NG (D. Mass. motion to quash granted Mar. 31, 2008)
• Supplement 370-74 (Perfect 10)
• Copyright Act §109

The Public Display and Performance Rights

• Casebook 426-43 (Redd Horne)
• Cartoon Network v. CSC Holdings, Discusison pt. III
• Copyright Act §§ 101 (“display,” “perform,” “publicly”) 108, 110—112, 117—119, 121, 122

The Music Industry

• Casebook 443-72 (Newton, Bridgeport)
• Copyright Act §§ 101 (“digital transmission,” “performing rights society,” “phonorecords,” “sound recordings”), 114, 115, 116, ch. 10. (skim)

Direct, Vicarious, and Contributory Infringement

• Shapiro, Bernstein, & Co v. H.L. Green, 316 F. 2d 304 (2d Cir. 1963)
• A & M Records v. Abdallah, 948 F. Supp. 1449 (C.D. Cal. 1996)
• Cartoon Network v. CSC Holdings, Discusison pt. II
• Casebook 473-77, 483-87 (Netcom (pts. 1 & 2))

Peer-to-Peer and Inducement

• Reread the discussion of Sony in Abdallah
• Casebook 488-501 (Grokster)
• Perfect 10 v. Visa Int’l Serv. Ass’n, 494 F.3d 788 (9th Cir. 2007)

Section 512; Criminal Infringement

• Casebook 501-23 (Moran, LaMacchia)
• Copyright Act §§ 101 (“financial gain”), 506, 512
• 18 U.S.C. §§2319, 2319B

Part IV: Fair Use (3 classes)

Transformation of the Original

• Casebook 525-51 (Harper & Row, Campbell, New Era)
• Supplement 387-91 (Bill Graham Archives)
• Copyright Act § 107

Transformation of Purpose

• Casebook 562-66 (Sega), 570-72 (notes and questions)
• Supplement 392-95 (Perfect 10)
• Rowling v. RDR Publishing, No. 07-Civ-9667 (S.D.N.Y. Sept. 8, 2008)

Market Failure

• Casebook 575-602 (Sony, Texaco, MDS, Napster)

Part V: Beyond Traditional Copyright (2 classes)

DRM and the DMCA

• Casebook 603-24 (Remeirdes)
• Casebook 640-44 (Kelly)
• Copyright Act §§ 1201—1205

Preemption

• Casebook 666-76 (Harper & Row (pt. 2), Video Pipeline)
• Casebook 705-12 (ProCD)
• Copyright Act § 301

Final Exam

• Final Exam
• Final Exam Memo