Copyright

Professor Grimmelmann

New York Law School

Spring 2008

First Assignment

For our first class, please do the readings listed below on the schedule for January 15.

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, 2:30-3:45 in room A700.

Here’s what I expect from you in class:

• Please arrive promptly prepared to discuss the day’s assigned readings.
• 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. 2007), ISBN-13: 978-0-7355-6369-8

The casebok is unusually well-edited. We’ll read almost all of it, mostly in order. You should pay special attention to the excellent notes and questions following the principal cases. They often discuss issues I’ll raise in class (hint hint).

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.

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.

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/copyright2008/. As the semester progresses, I’ll post updates to it here.

Contact

Office: Room 706D, 40 Worth St.
Phone: (212) 431-2864
Email: jgrimmelmann (at nyls)

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

January 15: Introduction, Theory, and History

• Casebook 3-42
  • We won’t discuss in detail the international issues described on pages 33-42
• White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1 (1908)
• U.S. Const., art. I, §8, cl. 8

Part I: Copyrightability (7 classes)

January 17: Fixation; Originality

• Casebook 45-57 (Williams, MAI)
• Casebook 57-67 (Burrow-Giles, Bleistein)
• Copyright Act §§ 101 (“copies,” “created,” “fixed,” “device, machine, or process,”), 102(a) (flush text), 117, 1101
• 18 U.S.C. 2319A

January 22: No class (legislative Monday)

January 24: The Idea/Expression Dichotomy

• Casebook 72-90 (Baker, Hoehling, Delta Dental)
• Supplement 349-53 (Mannion)
• Copyright Act §102(b)

January 29: Derivative Works

• Casebook 67-72 (Alfred Bell, Bridgeman v. ART)
• Casebook 90-101 (L. Batlin, ERG, Pickett)
• Copyright Act §§101 (“derivative work”), 103

January 31: Databases

• Casebook 101-06 (Feist)
• Casebook 290-310 (Bellsouth, CCC, Kapes, Matthew Bender)
  • We won’t discuss in detail the section on “new paradigms” at pages 305-10
• Copyright Act §101 (“compilation,” “collective work”)

February 5: Subject Matter; Useful Articles

• Casebook 209-35 (Mazer, Kieselstein-Cord, Carol Barnhart, Brandir)
  • We’ll talk a little bit about the SCPA and the VHDPA, but otherwise won’t discuss in detail the section on “new paradigms” at pages 226-35
• Supplement 357-58
• Copyright Act §§101 (“literary works,” “pictorial, graphic, and sculptural works,” “motion pictures,” “audiovisual works,” “sound recordings,” “useful article”), 102(a)(1)-(8), 113(a)-(c), ch. 9 (skim), ch. 13 (skim)

February 7: Compilations; Architecture; Characters

• Casebook 106-10 (Roth Greeting Cards, Mason)
• Casebook 269-80 (Yankee Candle, Nelson-Salabes)
  • We won’t discuss Yankee Candle in detail. In Nelson-Salabes, we’ll discuss (1) how the parties wound up in court, and (2) how the copyrightability analysis is or is not a compilation anlaysis. Please read the notes in this section carefully; the rules for architectural works and architectural plans can be confusing.
• Casebook 280-90 ((MGM, Titan Sports)
• Copyright Act §§101(“architectural work”), 120

February 12: Computer Software

• Casebook 235-69 (Franklin, Altai, Softel, Lotus)
  • This is hard material and will require more careful reading than usual. We won’t discuss in detail the section on “new paradigms” at 264-69.
• Copyright Act §§101 (“computer program”)

Part II: The Mechanics of Copyright (3 classes)

February 14: Authorship

• Casebook 110-38 (Lindsay, Erickson, Aalmuhammed, CCNV, Aymes, Avtec)
• Copyright Act § 101 (“joint work,” “work made for hire”), 105, 201(a)—(b)

February 19: Formalities, Duration

• Casebook 139-69 (Eldred)
  • We won’t discuss in detail formalities or duration for pre-1976 works. You should still read these sections; these rules are important in copyright practice.
• Supplement 355
• Copyright Act §§101 (“best edition,” “publication”), 302-05, 401-12

February 21: Transfers

• Casebook 169-207 (Effects Associates, Boosey & Hawkes, Rosetta Books, Tasini)
  • I’ll lecture on the material on termination of transfers (pages 169-82); you should read it but won’t need to be prepared to discuss it in class
• Supplement 355-56
• Copyright Act §§101 (“collective work,” “copyright owner,” “transfer of copyright ownership”, “widow”), 201(c)—(e), 202—05

Part III: Copyright Infringement (8 classes)

February 26: The Elements of Infringement

• Casebook 313-26 (Three Boys, Selle, Ty), 326-36 (Nichols, Arnstein, Kroft)
• Listen to the songs from Three Boys, Selle, and Arnstein
• See a clip from H.R. Pufnstuf and a McDonald’s commercial.
  • There’s lots more on YouTube, including clips that provide a good side-by-side comparison of the Honorable Pufnstuf and the Honorable McCheese, and a performance of the H.R. Pufnstuf theme song in the style of Eddie Vedder.
• Copyright Act §106

February 28: The Reproduction Right

• Casebook 341-58 (Boisson, Altai (pt. 2), Cavalier, Swirsky)
• Listen to the songs from Swirsky
• Copyright Act §§112, 118 (skim), 121 (skim)

March 4: The Distribution Right; The Public Display and Performance Rights

• Casebook 365-75 (Hotaling, Bobbs-Merrill)
• Casebook 426-41 (public performance and public display) * As with formalities and termination of transfers, I will cover this material primarily via lecture.
• Supplement 363-70 (Perfect 10)
• Copyright Act §&sect 101 (“display,” “perform,” “publicly”) 108 (skim), 109, 110, 111 (skim), 119 (skim), 122 (skim)

March 6: The Derivative Right

• Casebook 386-403 (Castle Rock, Dam Things, Mirage v. A.R.T., Lee v. A.R.T., Lewis Galoob)
  • Dam Things is a strange case because of the §104A issue. Take it for granted that the case’s outcome will turn on whether Russ’s trolls are “derivative works,” and focus on the anaysis (starting in the last paragraph of 392) of the difference between the tests for originality and for infringement.
• Supplement 364

March 11: Moral Rights

• Casebook 408-26 (Gilliam, Helmsley-Spear, Martin, Dastar)
• Copyright Act §§101 (“ “work of visual art”), 106A, 113(d)

March 13: The Music Industry

Class will not meet today. Please listen to this audio version of the day’s lecture instead.

• Casebook 443-72 (Newton, Bridgeport)
• Supplement 370
• Copyright Act §§ 101 (“digital transmission,” “performing rights society,” “phonorecords,” “sound recordings”), 114, 115, 116, ch. 10. (skim)
  • Listen to the sound recordings at issue in Newton and Bridgeport (warning: adult language)
  • Read Steve Albini, The Problem with Music

March 25: Direct, Vicarious, and Contributory Infringement

• Casebook 473-501 (Netcom (pts. 1 & 2), Fonovisa, Grokster)
• Supplement 371-72

March 27: Online Intermediaries, Criminal Infringement

• Casebook 501-23 (Moran, LaMacchia)
• Supplement 372-74
• Copyright Act §§101 (“financial gain”), 506, 512
• 18 U.S.C. §§2319, 2319B

Part IV: Fair Use (3 classes)

April 1: Parody and Commentary

• Casebook 525-53 (Harper & Row, Campbell, New Era, Castle Rock (pt. 2))
• Supplement 375-80 (Bill Graham Archives)
• Copyright Act § 107

April 3: Technical Interchange

• Casebook 554-75 (Nunez, Sega, Connectix)
• Supplement 380-84 (Perfect 10 v. Amazon)

April 8: Market Failure and New Uses

• Casebook 575-602 (Sony, Texaco, MDS, Napster)
• Supplement 384

Part V: Beyond Traditional Copyright (4 classes)

April 10: DRM and the DMCA

• Casebook 603-27 (Remeirdes)
• Supplement 385-86
• Copyright Act §§ 1201, 1203, 1204, 1205

April 15: The Limits of the DMCA

• Casebook 627-47 (Chamberlain, Lexmark, Kelly)
• Supplement 387-92 (IQ Group)
• Copyright Act § 1202

April 17: Preemption

• Casebook 666-84 (Harper & Row (pt. 2), Video Pipeline, Baltimore Orioles, Brown)
• Copyright Act §301

April 22: Contract, Misuse

• Casebook 699-712 (Vault, ProCD)
• Casebook 718-34 (Napster (pt. 2), WIREdata)

Part VI: Procedure (2 classes)

April 24: The Copyright Lawsuit

• Casebook 735-53 (Bassett, Gerig, Roley, Eden Toys, Bryan Ashley)
• Supplement 393-94
• Copyright Act §§501, 507, 511
• 28 U.S.C. sect;1338

April 29: Remedies

• Casebook 771-72 (Lemley & Volokh)
• Casebook 776-80 (Frank Music)
• Casebook 788-99 (Storm Impact, Krypton Broadcasting, Fogerty)
• Copyright Act §§ 502—505, 509

Final Exam

• Final Exam
• Final Exam Memo