Last updated: 1-22-04
Advanced Copyright Law and Policy
Washington College of Law, American University
Wednesday 7:30 - 10:10
924-001 WCL 501
Spring 2004
Professor Rob Kasunic
Office hours by appointment
Jump to Class #: 1 2 3 4 5 6 7 8 9 10 11 12 13 14
Required Texts:
 | Jessica Litman, Digital Copyright |
| Cato Institute, Copy Fights |
| The 1976 Copyright Act 17 U.S.C 101 et seq. |
Optional texts:
| Pike & Fisher, The Digital Millennium Copyright Act |
| James Lardner, Fast Forward |
| The Digital Dilemma |
Other required and recommended readings will be made available online, in handouts, or on reserve in the library.
| For ideas on research topics, the many recent copyright news articles linked at: http://www.kasunic.com/news.htm may provide leads. |
| In addition, all students must read Pamela Samuelson's article about good legal writing before choosing a topic and are encouraged to read again it after choosing a topic: http://www.sims.berkeley.edu/~pam/papers/goodwriting.html. |
Evaluation:
| The grade will be composed of 75% for the research paper (including outline and draft) and 25% for class participation. All students are expected to participate in each class and each student will also lead a discussion on his or her paper topic. Students can earn a participation credit in class by demonstrating familiarity with the course materials and verbally analyzing relevant legal issues. Since the class meets only once a week, missing more than three classes may adversely affect the class participation component of the grade. |
Deadlines:
| Proposed paper topics due: February 18, 2003 |
| Paper outline (including likely source material) due: March 10, 2003 |
| Paper draft due: April 7, 2003 |
| Paper presentations: April 14 and April 21 |
| Final draft due: May 15 (Final day of exam period) |
Each student must complete an original research paper of at least 20 double-spaced pages, including footnotes. With my prior approval only, you may submit a longer paper (30 pages minimum) for satisfaction of the upper-level writing requirement.
Class Schedule
1 January 14
Introduction:
| Class introduction and overview |
| General discussion of copyright law and the Copyright Office, the tensions, the current issues and possible alternative future class topics. |
| Read: Jane Ginsburg's "Esssay -- How Copyright Got a Bad Name For Itself" |
2 January 21
Copyright Practice and Litigation:
| The exclusive rights, statutory limitations and remedies in practice |
| Fred Bouchat v. The Baltimore Ravens, Inc. and NFLP, Inc., 228 F.3d 489, 56 USPQ2d 1422 (4th Cir. 2000), cert. denied, (U.S. May 21, 2001) (No. 00-1494) -- (Liability Phase) |
| Fred Bouchat v. The Baltimore Ravens, Inc. and NFLP, Inc., 346 F.3d 514 (4th Cir. 2003). (Damage Phase) |
| To view the works at issue, see: http://www.kasunic.com/cert_articles.htm |
| You may also want to consider a recent law review articles on the access and striking similarity issues in 13 Fordham Intell. Prop. Media & Ent.L.J. 653 (Winter 2003) and in 9 Vill. Sports & Ent. L Forum 97 (2002). |
3 January 28
The Balance in Copyright:
| Fair Use review and application to technology: Discussion and review of Section 107 |
| Application to the Internet environment: Kelly v. Arriba Soft, 336 F.3d 811 (2003) which was substituted for the prior opinion at 280 F.3d 934 (9th Cir. 2002) |
| Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 104 S.Ct. 774 (1984) -- read closely for an understanding of the specific facts and holding. Since this case is relied on in many of the recent P2P cases and Digital Video Recorder cases, a careful reading will be necessary for the next class as well. |
Highly Recommended:
| David Nimmer's article "Fairest of them all" and Other Fairy Tales of the Fair Use Factors" |
| James Lardner's "Fast Forward: A Machine and the Commotion It Caused" is an excellent book on the background and events surrounding the Sony Betamax's development and litigation (On Reserve at the Law Library) |
4 February 4
Peer-to-Peer Litigation:
| Read the Ninth Circuit decision in A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001) parts I (the Napster System) and III (Infringement and Fair Use) |
| Read: MGM Studios Inc. v. Grokster, Ltd., 259 F. Supp. 2d 1029 (C.D.Ca 2003) (Granting defendant's motion for summary judgment, in part, and denying plaintiff's motion for summary judgment) [Also, the audio file of the oral argument before the 9th Circuit is available here (choose audio file # 03-55894) |
| In re Aimster Copyright Litig., 334 F.3d 643 (7th Cir. 2003) |
Optional:
| For additional information you can take a look at the EFF site's P2P directories on Napster, Grokster, Morpheus and Kazaa and the Paramount v. ReplayTV directory and Newmark v. Turner |
| See also, CNET coverage of the P2P developments |
5 February 11
Policy Choices and Legislative Reactions to P2Ps:
| Digital Copyright pp. 151-170 |
| Copy Fights, pp. 107-124, 185-188, and 197-220 |
|
Self-help -- H.R. 5211 and spoofing |
|
Government standards/broadcast flags: FCC Rulemaking, S. 2048, Antipiracy plan takes shape |
|
The market effect: Listen's Rhapsody, Apple's iTunes, Pressplay, Musicnet and other licensed services |
|
Deterence and Education: H.R. 2517 |
|
Anonymity and subpoenas: Register of Copyrights testimony |
Optional considerations:
|
Neil Netanel's proposed levy system |
|
Lon Sobel's proposal of ISPs as Digital Retailers |
6 February 18 and 7 February 25
Proposed Paper Topics Due
Limitations on liability relating to materials online and the DMCA's Section 512:
| RIAA v. Verizon decision, 2003 U.S. App. LEXIS 25735 (DCC 2003) |
| Ellison v. Robertson, 9th Circuit opinion (February 10, 2004) [the district court opinion is available at: Ellison v. Robertson, 189 F. Supp. 2d 1051 (C.D. CA 2002)] |
| The Copyright Office's summary of the DMCA ( Read pp. 8-13) |
| Digital Copyright pp. 89-121 |
| Read sections with headings on direct, contributory and vicarious liability in Religious Technology v. Netcom Online Communication Services, 907 F. Supp. 1361 (C.D. Cal 1995) |
| The 9th Circuit Napster decision (focus on the facts and § 512 defense in section VI.b) |
| The FatWallet.com story and another and the Chilling Effects site |
Recommended additional reading:
| ALSscan v. Remarq, 239 F.3d 619 (4th Cir. 2001) |
| Costar v. Loopnet, 164 F. Supp 2d 688 (D. Md. 2001) |
| Hendrickson v. eBay, Inc., 165 F. Supp. 2d 1082 (C.D. Ca 2001) or (here) |
| Arnold Lutzker, et al., Highlights of New Copyright Provision Establishing Limitation of Liability for Online Service Providers |
8 March 3
Section 104 Study – Digital First Sale, buffer copies, and backups
| Read The Executive Summary of the 104 Study or here |
| You might want to look at public comments or testimony at the Office's hearing at the Study page |
March 10 -- Spring Break
9 March 17
Paper outline due
The Legislative Process generally and the legislative history of the DMCA
| Jessica Litman's, Digital Copyright pp. Skim pages 11 - 88, Read pp. 122-150 |
| Read closely: The Digital Millennium Copyright Act's Section 1201 and |
| The Copyright Office's summary of the DMCA on Technological Protection and Copyright Management Systems |
Recommended:
| David Nimmer's article, Appreciating Legislative History: The Sweet and Sour Spots of the DMCA's Commentary |
10 March 24
The Litigation under Section 1201
| Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 346 (S.D.N.Y. 2000) |
| 321 Studios v. MGM Studios, Inc., 2004 U.S. Dist. LEXIS 2771 (N.D. Ca. 2/19/04). |
Recommended:
| Felten v. RIAA, bench decision transcript (HTML) and (PDF) and the cease and desist letter and other documents |
| US v. Elcom, Ltd. and Sklyarov, 203 F. Supp. 2d 1111 ( N.D. Ca. 2002: Judge White's Order denying defendant's motion to dismiss on constitutional grounds (PDF) |
| Universal City Studios v. Corley, 273 F.3d 429 (2d Cir. 2001) |
11 March 31
Paper draft due
The Litigation under Section 1201 (continued)
| The Chamberlain Group, Inc. v. Skylink Technologies, Inc., 2003 U.S. Dist. LEXIS 20351 (N.D. Ill. August 29, 2003). |
| Lexmark Int'l, Inc. v. Static Control Components, Inc., 253 F. Supp. 2d 943 (U.S. Dist. , 2003) (this is a link to the case in the Lexis service) |
Recommended:
| Dan Burk's article on Anticircumvention Misuse |
12 April 7
Section 1201(a)(1) and The Copyright Office Rulemaking
| The Anticircumvention Rulemaking record |
| The Federal Register Notice for the 2003 Rulemaking, |
| the 2003 Register's Recommendation summary in the FR, and |
| 2000 Register's Recommendation to the Librarian of Congress |
Recommended:
| The Full Recommendation of the Register of Copyrights |
| For further information about DRM issues: Berkeley's 2003 Digital Rights Management Conference Online Resource page |
13 April 14
** Required Student Paper Presentations **
14 April 21
** Required Student Paper Presentations **
May 7-10 All Student Papers Due!
Graduating Senior are requested to turn their papers in by May 7th since these grades are due May 12. Submissions of the papers may be accomplished electronically, however, if you want to be absolutely certain that your paper has been received on time, you may submit a hard copy to the Registrar in Room 304 on or before Saturday May 10. Students are responsible for identifying the Saturday hours of operation for Room 304. Electronic submissions of paper are due by 5:00 p.m. (and preferably before) and they should be submitted to: rkasunic@kasunic.com. You may also cc the email to rkas@loc.gov. I will send a confirmation of all electronic submissions as soon as possible after receipt. To avoid problems, submission the day before or electronic and hard copy submission is advised.