F2F: Course introduction

• Introductions
• Course overview
  • Writing with Style
  • Editing your own and others' prose
  • Legal reading and writing
    • IRAC (issue, rule, apply, conclude)
    • How to brief a case
  • Course methods
• Sources of copyright information
  • Legal materials & authority

In-class exercise: Brief the case, Baker v. Selden, 101 U.S. 99 (1879), and discuss.

Copyright Act: Copright Office Web Site (explore site so you are familiar with what's here)

How to Brief a Case (Pyle) (7 pages)

Editing Your Own Prose: Choose a resource to use throughout the semester. My favorite self-editing guru: John Trimble, Writing with Style; Other examples to purchase. Examples of online resources: The Writing Center: University of Wisconsin-Madison; UC Berkeley Academic Writing Resources;

Introduction to Legal Research (Kimber) (recommended but not required)

Introduction to Basic Legal Citation by Peter W. Martin (for reference only)

CNI-COPYRIGHT-digest@cni.org (send email to subscribe)

Politech (to subscribe)

Online: Copyright Basics

• Copyright basics
• Foundations of American copyright law
• Alternative conceptions

Lecture: Online "lectures" are short documents that comment on the week's readings, why I chose them, their relationships to the topic for the online week and the following face-to-face week, and what you might look for and/or think about while you read.

Study questions -- Study questions usually, but not always, will ask you to reflect on what you have read and use it to analyze a problem. They are not meant to be short papers. Short, one paragraph answers are fine, though thoughtfulness is important. Your answers to the questions are preparation for the face-to-face class that follows the online class. Answers should be posted and discussed in the course's Blackboard discussion area not later than noon on the day of the online class.:

1. How would you describe the "grand scheme," as it were, behind U.S. copyright law? Provide several examples of how the law achieves its objectives, that is, describe the legal mechanisms the law relies upon to "promote the progress of science."

2. Assuming that your description in study question 1 outlines the ideals associated with our copyright system, in your experience, how does the reality differ from the ideal?

Copyright Act Sections 106, 107, 108, 109, 110, 121 (skim only)

Copyright Crash Course Tutorial (text only), Harper (30 pages)

The Law and Economics of Intellectual Property, Richard A. Posner (8 pages)

Copyright's Highway, Goldstein, Ch. 1 (28 pages)

Ex Ante versus Ex Post Justifications for Intellectual Property, Mark A. Lemley, 71 Univ. of Chicago L. Rev. 129 (2004) (recommended but not required)

Timeline: A History of U.S. Copyright Law (fyi only)

3

Sept. 8

F2F: Impact of the Digital Environment on Copyright's Balance

• Opportunities and threats
• The response of legislators
• The response of the courts

First Short Paper Due: Prepare a short paper for discussion in class. Bring 2 copies (physical copies) -- one to trade with a classmate for the editing exercise below and one to provide to me. Topic: In light of this and last week's readings, analyze the legal questions presented in a recent article published in the popular press on an aspect of copyright. Your goal should be to understand and bring to bear our authors' points of view on the analysis of current copyright problems. (2-3 pages)

Editing exercise: At the end of class, we will trade papers so each of you may edit a classmate's paper according to the guidelines supplied with your syllabus and the resource you have chosen to use for this purpose (see class 1): macro-editing for overall organization, logical flow, unanswered questions, etc., and micro-editing for clarity, brevity, punctuation, word choice, etc.

Return edited papers to their authors by Monday (Sept. 13). You may revise and resubmit your papers to me if you wish. If you want to submit your revised paper to be graded in place of your original, it must be turned in by 5:00 pm Sept. 15 by attaching it to a message in the discussion area set up for that purpose.

You will be expected to edit your next paper on you own before turning it in, carefully enough that I do not need to do that for you. If a paper turned in for credit needs more than minor edits, it will affect your grade.

Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, Lawrence Lessig (306 pages plus notes)

Copyright and a Democratic Civil Society, Neil Netanel Weinstock, 106 Yale L. J. 283 (1996) (recommended but not required)

Copyright and Digital Media in a Post-Napster World and Five Scenarios for Digital Media in a Post-Napster World (recommended but not required)

Copyright Issues in Digital Media, Congressional Budget Office August 2004 Report (fyi)

4

Sept. 15

Online: Fair Use

• The "approach" of fair use
• Four factor fair use test
• Application to different media
  • Text
  • Images
  • Music
  • Audiovisuals
• Guidelines

Lecture

Study questions: 1. Provide a fair use analysis for one of the three fair use scenarios presented at the end of the Crash Course Tutorial from your readings on Sept.1. Indicate the sources you use to make your analysis.

Note: I am going to do the following exercise with you: 2. Brief the majority opinion in the Texaco case, following the guide we discussed in our first class. The brief should be 1-2 pages long. In the discussion section of your brief, focus on the implications of this case for fair use in educational settings, such as fair use for a class like this one.

Post your brief. Read others' briefs. Discuss by (for starters) answering the following questions about briefing this case: Was this hard? How long did it take (assuming you did it as part of the process of reading the case, that is combined time to read and brief)? What questions do you have about the process or your results? Does your brief look like others' briefs? Did you miss something? What might account for differences? Should there be differences, other than perhaps in the analysis section of the brief?

NOTE: Edited papers from last week are due 5:00 pm today if you choose to submit them in lieu of last week's draft.

Copyright Act, Section 107

Copyright Crash Course: Fair Use of Copyrighted Materials (14 pages)

American Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2nd Cir. 1994) (approx. 30 pages)

IUPUI Copyright Management Center: Fair Use Issues (fyi)

Copyright Clearance Center (fyi)

F2F: Fair Use

• Exercising fair use today
• The future of fair use

Second short paper due today: Do you see a future for fair use in an increasingly digital world? (3- 5 pages)

Edit your paper carefully. If you want help with editing, let me know ahead of time.

Our fair use discussion in class will encompass this week's readings, last week's readings and your papers. Submit your papers as attachments to the discussion topic set up for this subject (though our discussion takes place live, in class) and bring a copy to class with you for your use in the discussion.

Special note about readings: the last two recommended readings are about the standards for contributory infringement. Though we are studying fair use this week and Sony obviously shows us a Supreme Court fair use analysis, contributory infringement was the primary issue at stake in the case. Unfortunately, we will not study contributory infringement in any detail, so, if you are interested in learning more about what's happening today with respect to the Sony standard, the last two readings will interest you. The Grokster case is also important in this regard as it is probably the case that motivated the introduction of the Induce Act.

Sony v. Universal City Studios, 464 U.S. 417 (1984) (46 pages)

Redefining the Market Failure Approach to Fair Use in an Era of Copyright Permission Systems, Lydia Pallas Loren, 5 J. Intel. Prop. L. 1 (1997) (22 pages plus notes)

Free Culture, Lawrence Lessig, review Ch 7, 8, 9 (pp 95 - 115)

Illegal Art and review of Exhibit (a totally fun and engrossing site -- you'll get sucked in, so watch the clock)

Consumers and Creative Destruction: Fair Use Beyond Market Failure, Raymond Shih Ray Ku, 18 Berkeley Tech. L. J. 539 (2003) (14 pages plus notes)(recommended but not required)

Fair Use as Market Failure: A Structural Analysis of the Betamax Case and its Predecessors, Wendy J. Gordon, 82 Colum. L. Rev. 1600 (1982)(obtain through General Libraries journals online) (recommended but not required)

Sony Revisited: A New Look at Contributory Copyright Infringement, Lee A. Hollaar (June 2004 draft) (17 pages) (recommended but not required)

S. 2560 Inducing Infringement of Copyrights Act of 2004 (one page) (recommended but not required)

6

Sept. 29

Online: Libraries and Copyright: Archiving, Copies for Patrons and Lending

• Archiving and preservation (108)
• Serving patron's needs (108)
• Interlibrary loan (108)
• Other subprovisions of 108
• Historical function of first sale (109)
• Will first sale survive in the digital age?

Lecture

Study questions: 1. We have little to guide us in making judgments regarding exactly what our rights are under Section 108, as few if any cases interpret this section of the Copyright Act. As a result, the risk tolerance of the individual making the judgment will affect his or her interpretation of the rights considerably. Examine one of the rights provided by Section 108 and explain how a risk-tolerant approach will differ from a risk-averse approach. Relate the right you analyze to realistic library and archive projects (that is, projects that you either know are of a type currently undertaken by libraries and/or archives, or realistically might be undertaken).

2. Read sections 107 and 108 carefully. How do they differ? Contrast the approach the drafters of section 108 took with the approach taken in defining fair use in section 107.

Copyright Act Sections 108, and 109

Library Digitization Projects and Copyright (Mary Minow) (12 pages)

Interlibrary loan guidelines (1 page)

First Sale: The Basics (3 pages)

The First Sale Doctrine and Digital Phonorecords , Bob Hyde (12 pages plus notes)

F2F: Libraries and Copyright: Licensing

• Good practice; licensing and fair use
• Checklists
• Contracts replacing copyright law

In-class discussion: Please prepare notes for a discussion of the following two (2) topics: 1. What (in 5 words or fewer) is the underlying purpose of contract law? (You won't find this in your readings -- you'll have to do some Googling to come up with a succinct answer.) Compare this purpose to that of copyright law (also stated succinctly in 5 words or fewer). Use these and other insights from earlier classes to defend or oppose this proposition: "There's nothing wrong with contract law's displacing copyright law as the source of protection for owner's rights and authority for public uses. If the market can provide what people want at a reasonable price, what's the problem?"

2. Might Judge Dyk's dissent in Baystate v. Bowers some day become a majority opinion? Support your position.

Copyright in the Library: Licensing, Harper (2 pages)

The Right to Read, Stallman (2 pages)

Review Copyright's Highway, Goldstein, Ch.1

Federal Preemption of Shrinkwrap and On-line Licenses, Dennis S. Karjala, 22 U. Dayton L. Rev. 511 (1997) (15 pages plus notes)

Baystate v. Bowers: Opinion (including Dissent), Brief of amici curiae and Discussion (38 pages altogether)

8

Oct. 13

Online: The public domain and the cultural commons

• How does a work become protected
  • How is the current protection mechanism different from the mechanism that preceeded it?
  • What are the implications of this change for authors, owners, and the public?
• How long: terms of protection and the public domain
• The creative commons as the sum of all the rights the public has to use others' works
  • fair use (107)
  • first sale (109)
  • idea/expression distinction (102)
  • fact/expression distinction (102)
  • all other exemptions (108, 110, etc. up to 122)
  • public domain (expired or "waived" copyrights)

Lecture

Study question: Identify the holding of Feist and explain the court's reasoning in your own words. In the more than 10 years since this case was decided, so-called "database legislation" has been introduced in every session of the legislature, but so far has failed to pass. What does this suggest to you about the line Feist draws between the proprietary right and the public right in this context (ie, the line between protected expression and unprotected facts)?

MID-TERM PAPER: DUE FRIDAY NEXT WEEK: Notice that the central conflict in the Greenwich Workshop case involves an interpretation of the relative reaches of the derivative works right and the first sale doctrine. (Imagine they are on opposite ends of a continuum, as we have discussed in class.) The case is not about making copies or the idea/expression distinction. It is not about the term of copyright or what is copyrightable. It is about where the right to redistribute a work you have purchased, that is, a public right, ends, and where the right to control derivative works, that is a proprietary right, begins. Thus, it presents the same basic question that we have been discussing (the relative scope of proprietary versus public rights) in one more context. Discuss 3 of the 5 cases from this or next week's readings, integrating them into a coherent and logical argument to support or refute this proposition: The public commons is in real trouble. (5-7 page paper)

Be aware that the two cases you do not incorporate into your argument nonetheless should be addressed. You can't simply ignore a case that doesn't fit with your opinion. You have to show why it does not undermine your point of view. You have to explain it away, or explain away any implications from it that might contradict your argument.

Copyright Act Sections 102, 103, 302, 303, 304, 305

Copyright Term and the Public Domain in the US, Peter Hirtle (2 pages plus notes)

Feist v. Rural Telephone, 499 U.S. 340 (1991) (13 pages)

Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003), cert den. [citation - Nov. 3, 2003] (7 pages)

Amicus Brief supporting Satava, filed by Professor Ralph D. Clifford (10 pages)

Greenwich Workshop, Inc. v. Tinker Creations, Inc. 932 F.Supp 1210, C. D. Cal. 1996 (5 pages)

Lee v. A.R.T. Co., 125 F. 3d 580 CA 7 (Ill.) 1997 (3 pages)

F2F: The public domain and the cultural commons

• The public domain is dead! Long live the public domain!

MID-TERM PAPERS DUE FRIDAY OCT. 22: Deposit e-copy in digital drop box; bring a copy of your "not quite final draft" to class to use in our discussion.

DECIDE ON A TOPIC FOR YOUR FINAL PAPER, due the last day of class. You will trade a draft with an editing partner on November 10, three weeks from today. This draft should be developed enough that you will be able to benefit from your editing partner's comments and that you will make his or her job of helping you easier.

Final paper topic framework: Choose one of the topics around which this "problems" class is organized (fair use, library privileges, licensing, creative commons/public domain, anti-circumvention, owner initiatives to facilitate public distribution and use); describe the challenge to the public's use and enjoyment of creative works presented by that area of the law and ideas for improving such use and enjoyment. Integrate perspectives of two or more authors we have read (or will read) this semester. For example, your paper should describe or comment upon the problems from an author's perspective ("Lessig identifies this as a critical issue for the survival of a competitive marketplace...") and identify, based on an author's point of view, whether a proposed solution would comport or conflict with his or her point of view ("following his logic, this probably would not work, but according to her way of thinking, we have to start somewhere and this is a good starting point..."). (7-10 pages)

In-class discussion: Recall Lessig's explanation of what went wrong with Eldred ("How I Lost the Big One," see p. 229 Free Culture). Given our discussions thus far this semester, can you think of other factors that might explain the outcome of the Eldred case? Try using Westlaw to find cases that cite to Eldred. These will give you an idea of how courts are using the holding in related contexts. See, for example, the Constitutionality discussion in the Lemley/Reese readings below for week 11, Nov. 3 (anti-circumvention).

Is the public domain dead? Is this a cause worth fighting for? Can such a fight be won? (Discussion based on your mid-term papers.)

Eldred v. Ashcroft, 537 U.S. 186 (2003) (83 pages)

Free Culture, Lawrence Lessig, review Chs 13, 14, Conclusion and Afterward (pp. 213 - 306)

A New Dynamism in the Public Domain, Robert P. Merges, 71 Univ. of Chicago L. Rev. 183 (2004) (approx. 15 pages plus notes)

GNU's Not Unix/Free Software Foundation

Creative Commons

Online: Anti-circumvention

• Anti-circumvention legislative history: what did legislators intend?
• Are the courts interpreting the statute in line with legislators' expressed intentions?

Lecture

Study questions: Compare licensing provisions that dictate terms of use with technological protections that do the same. What are some possible consequences of the evolution of law in this direction?

Copryight Act, Sections 1201, 1202

Universal Studios v. Corley, 273 F.3d 429 (2d Cir. 2001)(25 pages)

U.S. v. Elcom, Ltd., 203 F.Supp. 2d 1111 (N.D. Cal. 2002)(21 pages)

NYT Editorial on the Elcom case (Lessig)(4 pages)

Legislative History of the Anti-circumvention provisions (36 pages) (recommended but not required)

11

Nov. 3

F2F: Anti-circumvention

• Anti-circumvention and the threat to fair use and other statutory exemptions

Before class: Locate and evaluate current legislative proposals dealing with anti-circumvention, including but not limited to those proposing to modify its effect on fair use.

In-class discussion: 1) Current legislative proposals; 2) Are the anti-circumvention provisions unconstitutional?

• According to Ginsburg, what must happen for a copyright statute to warrant First Amendment "scrutiny?"
• If First Amendment scrutiny is warranted, what is the test for a statute's being unconstitutional in this context (ie, a statute regulating speech)?
• Does this statute (1201 et seq.):
  • warrant First Amendment scrutiny;
  • pass the test for constitutionality?

Unintended Consequences: 5 Years Under the DMCA (EFF)(12 pages)

Online & Digital Copyright: 2004 Update (excerpt), Mark Lemley and Tony Reese (6 pages)

ReviewGinsburg's Eldred opinion regarding when First Amendment review of a statute is needed; Find the test announced in O'Brien (described in Universial Studios v. Corley from last week) to determine whether a statute offends the First Amendment.

Raymond Shih Ray Ku, Copyright, the Constitution & Progress, Case Research Paper Series in Legal Studies 04-8, June 2004 (recommended but not required)

The Constitutional Law of Intellectual Property after Eldred v. Ashcroft, Pam Samuelson (recommended but not required)

Online: Ownership and use in scholarly communities and beyond

• Open access archives and self-publishing as alternatives to formal publication for scholarly communication
• Creative Commons licenses
• Music: intentionally free downloads
• Implications for digital distribution generally

Lecture

Study questions: It may be that solutions to their problems being sought by scholars are ideosyncratic to that small part of the publishing world, but is there something that other creator/distributor/consumer communities might learn from what's taking place in academic publishing? How might scholarly experiments with other methods of communication affect, for example, the music industry? Hollywood? New York book publishing?

TRADE DRAFTS WITH EDITING PARTNERS TODAY! EDIT AND RETURN TO OWNERS BY NEXT MONDAY, NOV. 15, TO PROVIDE TIME TO INCORPORATE SUGGESTIONS INTO WEDNESDAY'S PRESENTATION. WE'LL DISCUSS THE EDITING PROCESS AS WELL.

Trends in Scholarly Communication, (a powerpoint pdf) Richard Fyffe

The Self-Archiving Alternative, Steven Harnad (2 pages)

Workshop on Alternative Publishing (Summary) , Heather Ganshorn (Canada) (10 pages)

About Open Access, PubMed Central (1 page)

Review the Creative Commons Website

Sonic Awareness, A Musical Community, and Full Service Promotion Company

Online:

• Developing a politics of Intellectual Property
• Developing more productive discourse

Study questions: To be announced.

A Politics of Intellectual Property: Environmentalism for the Net?, James Boyle (19 pages plus notes)

Copyright Nonconsequentialism, David McGowan, 69 Missouri L. Rev. 1 (2004)(recommended but not required)(very esoteric -- a discussion about the discussion. I have written a 6 page summary that I will share with you if you would like.)

F2F: Where do we go from here?

• Changing the law
• Changing business models

FINAL PAPERS DUE: Deposit in digital drop box and bring a copy to class for discussion.

In-class discussion: Where do you think the law and business models are going? What can we likely expect the copyright world to be like in 10 years?

Impose a Noncommercial Use Levy to Allow Free P2P File Sharing, Neil Netanel (approx. 45 pages plus notes)

Alternative Copyright Systems: The Problems with a Compulsory License, Dr. Stan J. Liebowitz (21 pages)

A Better Way Forward: Voluntary Collective Licensing of Music File Sharing, EFF (6 pages)

Intellectual Property Issues (Negativeland) (fyi)