Last updated: 3-24-05
Advanced Copyright Law and Policy
Washington College of Law, American University
Wednesday 7:30 - 10:10
924-001 WCL 313
Spring 2005
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: (Click links for purchase options)
 | Jessica Litman, Digital Copyright (Prometheus Press, 2001) |
| The Digital Dilemma (National Academy Press, 2000) (students can use the free online version) |
| The 1976 Copyright Act 17 U.S.C 101 et seq. (Title 17) |
Optional texts:
| Pike & Fisher, The Digital Millennium Copyright Act: Text, History and Case Law (contains most of the cases and rulemaking material we will be covering) |
| James Lardner, Fast Forward: A Machine and the Commotion it caused [Sony Betamax] (Out of Print, but has been put on reserve in the WCL Library) |
| Copy Fights, Cato Institute |
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 class and each student will also discuss 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. |
Deadlines:
| Proposed paper topics due by: February 23, 2005 |
| Paper outline due: March 16, 2005 |
| Paper draft due: April 13, 2005 |
| Final draft due: May 14 (Final day of exam period) |
Each student must complete an original research paper of at least 20 double-spaced pages, including footnotes. You may also submit a longer paper (30 pages minimum) for satisfaction of the upper-level writing requirement.
Class Schedule
1 January 12
Introduction:
| Class introduction |
| Preview of Fair Use in the Digital Age |
| The Jib Jab parody "This Land" and the threat of suit |
| Carter Family's "When the World's on Fire" from the EFF's Deep Links |
| The Chillingeffects site and other threats |
| The Copyright Office site |
2 January 19
Copyright Infringement -- 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 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). |
| Music infringement -- the Columbia site and the Copyright Website |
3 January 26
The Balance in Copyright:
| Fair Use review and application to technology: Discussion and review of Section 107 |
| Fair use returns to its roots: Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) |
| Excerpts of the works on the Copyright Website |
| 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) |
| Is fair use a right? |
| Is is merely the "right to hire a lawyer"? |
| Does the balance in copyright law rely on fair use? |
| Would we be better off with specific, more certain exemptions? |
| What does Campbell teach us about the fair use analysis? |
Highly Recommended:
| David Nimmer's article "Fairest of them all" and Other Fairy Tales of the Fair Use Factors" |
4 February 2
Fair Use and Technology:
Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 104 S.Ct. 774 (1984) -- please 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.
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)
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) |
5 February 9
Secondary Liability:
| Read: MGM Studios Inc. v. Grokster, Ltd., 380 F.3d 1184 (9th Cir. 2004) [Also, the audio file of the oral argument before the 9th Circuit is available here (choose audio file # 03-55894) and check the Supreme Court docket -- the date of oral argument is March 29, 2005. |
| In re Aimster Copyright Litig., 334 F.3d 643 (7th Cir. 2003) |
| Take a look at the EFF site's collection of amicus briefs to the Supreme Court on the Petition for Certiorari. |
| See also, CNET coverage of the P2P developments |
6 February 16
| Grokster continued... |
| Why Wilco Is the Future of Music |
| Brief filed by and amici on behalf of the Petitioner are here |
| Briefs of interest: |
Senators Patrick Leahy and Orrin Hatch (Amici Curiae in Support of Neither Party )
Professors Kenneth Arrow et al. (Amici Curiae in Support of Petitioners) Law Professors,
Economics Professors and Treatise Authors (Amici Curiae in Support of Petitioners)
Professors Menell, Nimmer, Merges, and Hughes (Amici Curiae in Support of Petitioners)
BSA (Business Software Alliance) (Amicus Curiae in Support of Petitioners)
Digital Media Association et al. (Amici Curiae in Support of Neither Party)
Audible Magic, Digimarc Corp., and Gracenote (Amici Curiae in Support of Neither Party)
IEEE-USA (The Institute of Electrical and Electronics Engineers, Inc.) (Amicus Curiae in Support of Neither Party)
7 February 23
Proposed Paper Topics Due
Policy Choices and Legislative Reactions to P2Ps:
What's the solution
| Digital Copyright pp. 151-170 |
|
Civil Disobedience? See this Wired article. |
|
Deterence and Education: H.R. 2517 |
|
Suits against direct infringers (RIAA Sues the Dead) |
|
Self-help -- H.R. 5211 |
|
Spoofing |
|
Digital Rights Management and technological protections |
|
Government standards/broadcast flags: S. 2048, Antipiracy plan takes shape |
|
The market effect: Real's Rhapsody, Apple's iTunes, Napster and other authorized services |
| Legislation: INDUCE Act and the Copyright Office proposal |
| Alternative Compensation Systems (see below) |
|
Anonymity and subpoenas: Register of Copyrights testimony |
Optional considerations:
|
Neil Netanel's proposed levy system |
|
Terry Fisher's Alternative Compensation System |
|
Lon Sobel's proposal of ISPs as Digital Retailers |
| MUSICMATCH INTRODUCES FIRST ON-DEMAND MUSIC SERVICE INTEGRATED INTO ALL-IN-ONE JUKEBOX |
| Solving the P2P Problem |
| Napster Has a Go at iTunes |
8 March 2
Limitations on liability relating to materials online and the DMCA's Section 512:
| In re: Charter Communications, Inc., ___ F.3d ___ (8th Cir. 2005) |
| 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 |
March 9 -- Spring Break
9 March 16
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 |
| The Section 104 Report |
| 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 23
The Litigation under Section 1201
| The Chamberlain Group, Inc. v. Skylink Technologies, Inc., 381 F. 3d 1178 (Fed. Cir. 2005) |
| Lexmark Int'l, Inc. v. Static Control Components, Inc., 387 F.3d 522 (6th Cir. 2005) |
Recommended:
| Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 346 (S.D.N.Y. 2000) |
| 321 Studios v. MGM Studios, Inc., 307 F. Supp.2d 1085 (N.D. Ca. 2004). |
| 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 30
The Litigation under Section 1201 (continued) and The Copyright Office Rulemaking on Section 1201(a)(1)
|
| ||||
| 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 |
| Dan Burk's article on Anticircumvention Misuse |
| For further information about DRM issues: Berkeley's 2003 Digital Rights Management Conference Online Resource page |
12 April 6
| General discussion about new litigation, legislation, the current state of copyright law and its proper role in the future. |
For discussion purposes, please review summary of Kahle v. Ashcroft here, H.R. 1201 (formerly known as H.R. 107) available here, Larry Lessig's Creative Commons project, AFP suit against Google (see story), and any other issues you'd like to discuss.
13 April 13
Paper draft due
Student Paper Presentations
14 April 20
Student Paper Presentations
May 6-14 Student Papers Due!
Graduating Senior are requested to turn their papers in by May 9th since these grades are due May 16. 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 also submit a hard copy to the Registrar in Room 304 on or before Saturday May 14. Students are responsible for identifying the Saturday hours of operation for Room 304. Electronic submissions of paper should be submitted to: rkasunic@kasunic.com and please also copy me at 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 the deadline (OR electronic and hard copy submission) is advised.