Copyright Law Ronald W. Staudt

Class 14March 9, 2009

Winnipeg Man Faces 52 Copyright Charges After Huge CD, DVD Pirating BustBNA's Internet Law News - 3/5/09

A man faces 52 charges under the federal Copyright Act after what has been called Canada's biggest CD and DVD pirating bust in a decade. Rajdeep Singh Ramgotra, 32, was arrested last March after RCMP seized more than 200,000 CDs and DVDs from Winnipeg-based Audiomaxxx.com.

§ 201.  Ownership of copyright (d) Transfer of ownership.

   (1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.

   (2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.  

A "transfer of copyright ownership"

is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license.

§ 204.  Execution of transfers of copyright ownership

(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.  

Scope of Transfer

Cohen v. ParamountMedium Cool – “Merry Go Round”

$69k

Perhaps the primary reason why the words "exhibition by means of television" in the license cannot be construed as including the distribution of videocassettes for home viewing is that VCRs for home use were not invented or known in 1969, when the license was executed.

Boosey & HawkesFantasia – “The Rite of Spring”

$360,000k

Barsch rule of construction: "if the words are broad enough to cover the new use, it seems fairer that the burden of framing and negotiating an exception should fall on the grantor," at least when the new medium is not

completely unknown at the time of contracting.”

“…intent is not likely to be helpful when the subject of the inquiry is something the parties were not thinking about.”

past dealing, custom similarly useless in interpretation

“Neither the absence of a future technologies clause in the Agreement nor the presence of the reservation clause alters that analysis.”

Boosey & HawkesFantasia – “The Rite of Spring”

$360,000k

“If a new-use license hinges on the foreseeability of the new channels of distribution at the time of contracting -- a question left open in Bartsch -- Disney has proffered unrefuted evidence that a nascent market for home viewing of feature films

existed by 1939.”

Questions p. 368

Cohen and Boosey consistent?“unambiguous core.” approach, favoring

authors“uses that reasonably fall within the medium”

neutral approach

Distribution right?

Why favor grantor/drafter?

What to do???

Random House Inc. v. Rosetta Books, Llc.:

Exclusive right to publish the works “in book form” What is a book? “Noncompete” clause Photocopy clause Boosey and Bartsch?

LanguageMedium Original v derivative worksAnti-progressive incentives

Contributions to collective works 17 U.S.C. 201 (c)

Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.

Tasini v. New York TimesFacts

What is a newspaper?What does LexisNexis display?How is each database prepared?

What are the best analogies?Microfiche?Individual articles cut out?

Is it just a matter of money?When did the infringement occur?What about history & research?

Supreme Court Argument Tribe

Muchnick v. Thomson Corp. (In re Literary Works in Elec. Database..., 509 F.3d 116  

This class action copyright litigation arises from the unauthorized electronic reproduction of various written works. Named plaintiffs and class members consist mainly of freelance writers who contracted with publishers to author the works for publication in print media, and retained the copyrights in those works. The contracts  did not grant the publishers the right to electronically reproduce those works or license them for electronic reproduction by others. But the publishers did so anyway.

Plaintiffs then brought this class action on the theory that such electronic reproduction infringed their copyrights. After years of negotiations, class and defense counsel finally agreed on a settlement. …District Court for the Southern District of New York certified a class and approved the settlement. …

The overwhelming majority of claims within the certified class arise from the infringement of unregistered copyrights. We have held, albeit outside the class action context, that district courts lack statutory subject matter jurisdiction over infringement claims arising from unregistered copyrights. …

The precise issue on appeal is whether the District Court had jurisdiction to certify a class consisting of  claims arising from the infringement of unregistered copyrights and to approve a settlement with respect to those claims. We hold that it did not.

Community Property

Worth

Rodrigue

Beneficial Ownership

§ 501.  Infringement of copyright ***  (b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it.

Fantasy v. Fogarty