Intellectual Property

Copyright Infringement

For there to be copyright infringement, there must be:

  1. a valid copyright
  2. a "copying of constituent elements"
    1. The standard is "substantial similarity."
    2. Access is usually used as evidence of copying.
Substantial Similarity
Abstraction-Filtration-Comparison Test

The Abstraction-Filtration-Comparison test is a test used to determine if the non-literal parts of computer programs are substantially similar. It comprises three steps:

  1. Isolate the abstract elements of the works and identify which are ideas and which are expressions.
  2. Filter out the non-protectable elements from the products.
  3. Compare the remaining elements.

In determining substantial similarity, the intended audience must be considered. If something targets an expert group, it should be tested if it is substantially similar to that group, not to lay people.

Exclusive Right

Holding a copyright gives one the exclusive right to:

  1. Reproduction
  2. Derivative works
  3. Distribution
  4. Public performance
  5. Public domain?

For damages, the copyright owner can either get profits or (if registered) statutory damages. 17 U.S.C. § 504(a).

For profits, you can get actual damages plus all profits attributable to the infringement, and the burden of showing actual damages shifts to the infringer. (You get all profit unless the infringer can show just actual damages.) 17 U.S.C. § 504(b).

For statutory damages, you can get $750–$30,000 per work infringed upon. (not per infringement) If willful, it can go up to $150,000. 17 U.S.C. § 504(c). You can also get attorney's fees and possibly punitive damages.

  • For statutory damages, you have to have registered an unpublished work or register a published work before or within three months of publishing it. 17 U.S.C. § 412.
  • Statutory damages are subject to the innocent infringement defense. If the infringer had no reason to believe that his acts constituted copyright infringement, the damages may be reduced, to a minimum of $200. This defense cannot be raised if there was a notice of copyright with the work.
De Minimis

Copyright infringement is de minimis if the average audience would not recognize the appropriation.

Fair Use

A copyrighted work may be reproduced without constituting copyright infringement if it is for a protected purpose and if it is fair use. In determining whether a use is fair use, four factors are considered.

Fair use is largely judicially-created, as it was created and defined before being codified in the Copyright Act and statutory law is not very specific about how to define it.

Protected Purpose

A protected purpose is something such as criticism, comment, news reporting, teaching, scholarship, or research.

Parody is a subset of criticism or commentary, and thus parody works must direct commentary or criticism at the work. Just being a parody or funny is not a protected purpose. The leading case on the matter is Dr. Seuss Enterprises v. Penguin Books.

  1. Purpose and character of the use
    • Commercial or non-profit?
  2. Nature of the copyrighted work
    • Has it been transformed into something beyond the work itself?
    • Fact-based works are more likely to be fair use than creative works
  3. Portion of the copyrighted work used
  4. Effect of the use on the market
    • Hardest to determine
    • Most important
Secondary Liability

Secondary liability is imposed on one who did not commit the legal wrong directly, but is found responsible for encouraging, facilitating, or profiting from it.

Secondary liability is entirely based on common law.

For there to be secondary liability, there always has to be underlying direct liability for copyright infringement.

Contributory Infringement

Contributory infringement is imposed on one who has control over an unauthorized use.

Vicarious Liability

Vicarious liability is imposed on one who has the right and ability to supervise the infringing activity and has a direct financial interest in the activity.

Inducement Liability

A third, newer form of secondary liability is inducement liability.

[O]ne who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. MGM Studios Inc. v. Grokster, Ltd.