Law School: Liberty University School of Law
Course ID: LAW 661
Term: Fall 2019
Instructor: Prof. Connors
There are three philosophies justifying intellectual property:
Utilitarian theory says that intellectual property should be protected as is needed to protect consumers and encourage further innovation.
Trademarks protect consumers because without them, consumers could become confused and accidentally buy lower quality products without knowing.
Trademarks also encourage further innovation by rewarding companies who are the first to use a design with the exclusive right thereto. Without this protection, companies would have little reason to innovate when others could copy their work without penalty or having to work themselves.
This theory is advocated by the Constitution in Article I, Section 8, Clause 8—the intellectual property clause.
Locke said that property was created by the creation of value from a common resource by one's labor.
There are five types of intellectual property:
Copyrights protect creative expressions from unauthorized reproduction.
- Only the original expression though. All the ideas and facts of a work immediately go into the public domain. 17 U.S.C. § 102.
The power to regulate copyrights comes from Article I, Section 8, Clause 8.
For one to have a copyright, the work must be:
- literary works;
- musical works, including any accompanying words;
- dramatic works, including any accompanying music;
- pantomimes and choreographic works;
- pictorial, graphic, and sculptural works;
- motion pictures and other audiovisual works;
- sound recordings; and
- architectural works.
A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.
It does not have to be fixed for very long. Merely loading it into RAM is sufficient.
“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ‘’copies” includes the material object, other than a phonorecord, in which the work is first fixed.
“Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.
To be an original expression, it must only be minimally creative.
Having someone create something like your work independently does not invalidate the original's originality.
A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilation” includes collective works.
While facts are not protectable, compilations are. However, it must have at least some creativity. This is a very low bar however.
Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340
To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, “no matter how crude, humble or obvious” it might be.
Basically, it has to be anything more than an alphabetical list of people. Categorize it or something.
Copyright only protects expressions, not ideas or functions.
For there to be copyright infringement, there must be:
- a valid copyright
- a "copying of constituent elements"
- Violate an exclusive right in 17 U.S.C. § 106
- It doesn't matter if the results are the exact same if they were developed independently.
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:
- Isolate the abstract elements of the works and identify which are ideas and which are
- Filter out the non-protectable elements from the products
- 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.
- Derivate work
- Public performance
- Public domain
For profits, you can 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 published the work and registered it or register 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.
- To receive statutory damages, the work must either be registered before being infringed upon, or it must be published then infringed upon, then registered within three months of the initial publication.
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.
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.