Syllabus last updated: 4/08/03
Advanced Copyright Law and Policy
Washington College of Law, American University
Wednesday 7:30 - 10:10
Spring 2003
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
Recommended Texts:
Siva Vaidyanathan, Copyrights and Copywrongs
James Lardner, Fast Forward
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, I recommend that all students read Pamela Samuelson's article about good legal writing before choosing a topic and possibly after choosing a topic as well: 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 two classes may adversely affect the class participation component of the grade. Students missing more than 25% of classes or more will preclude a student from submitting a final paper for a grade in the course.
Deadlines:
Proposed paper topics due: February 5, 2003
Paper bibliography due: February 26, 2003
Paper outline due: March 5, 2003
Paper draft due: April 2, 2003
Paper presentations: April 9 and April 16
Final draft due: May 10 (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 8
Introduction: Class administrative matters, review of copyright law, discussion of the tensions, current issues and discussion of future class topics
2 January 15
SBCCI v. Veeck : The boundaries of copyright protection and access
Fifth Circuit en banc decision and first dissent
All material available at: http://regionalweb.texoma.net/CR/filings.htm
Also read/skim the Executive Summary of The Digital Dilemma
Breaking News: Supreme Court Eldred Decision: Affirmed 7-2. Justice Ginsburg wrote the majority opinion and Justice Stevens and Justice Breyer dissented. We will discuss this development in class.
3 January 22
Fair Use review and application to technology: Discussion and review of Section 107,
Reverse engineering: Sega v. Accolade 977 F2d 1510 (9th Cir. 1992) and Sony Computer Entertainment, Inc. v. Connectix, Inc., 203 F. 3d 596 (2000) or here
Application to the Internet environment: Kelly v. Arriba Soft, 280 F.3d 934 (9th Cir. 2002)
David Nimmer's article "Fairest of them all" and Other Fairy Tales of the Fair Use Factors"
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: 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.
4 January 29
P2P Litigation– Napster, MP3.com, Morpheus, Grokster, Kazaa, Madster aka Aimster and ReplayTV
Digital Copyright pp. 151-170
Copy Fights, pp. 107-124, 185-188, and 197-220
LA Times article: File-Sharing Networks Relying on VCR Ruling
Read the Ninth Circuit decision in A&M Records v. Napster, 3239 F.3d 1004 (9th Cir. 2001) parts I (the Napster System) and III (Infringement and Fair Use)
Read MGM v. Grokster complaint, Grokster's motion for summary judgment, and Streamcast Networks and MusicCity Networks (Morpheus) motion or partial summary judgment.
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 5
Legislative Solutions and Policy Directions:
Copy Fights, pp. 107-124, 185-188, and 197-220
Self-help -- H.R. 5211 and spoofing
Government standards/broadcast flags -- S. 2048, see also CNET article on recent development: Antipiracy plan takes shape
Neil Netanel's proposed levy system
Jane Ginsburg's "Esssay -- How Copyright Got a Bad Name For Itself"
6 February 12
Limitations on liability relating to materials online: The DMCA's Section 512
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 Copyright Office's summary of the DMCA ( Read pp. 8-13)
(Also you can take a look at a good article on the legislation by Anrnold Lutzker, et al., Highlights of New Copyright Provision Establishing Limitation of Liability for Online Service Providers)
The 9th Circuit Napster decision (focus on the facts and § 512 defense in section VI.b)
Digital Copyright pp. 89-121 (Recommended)
Notice and takedown under § 512 : ALSscan v. Remarq, 239 F.3d 619 (4th Cir. 2001) (our focus will be on section III of the decision)
7 February 19
The 512 provision applied: Ellison v. Robertson, 189 F. Supp. 2d 1051 (C.D. CA 2002)
§ 512(h) subpoenas: RIAA v. Verizon decision, 2003 U.S. Dist. LEXIS 681 (D.D.C. 2003)
The RIAA's hollow victory over ISPs
Verizon appeals RIAA subpoena win
The FatWallet.com story and another and the Chilling Effects site
Recommended additional reading:
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)
8 February 26
Paper bibliography due
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
9 March 5
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
David Nimmer's article, Appreciating Legislative History: The Sweet and Sour Spots of the DMCA's Commentary
March 12 -- Spring Break
10 March 19
The Litigation under Section 1201
Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 346 (S.D.N.Y. 2000)
(Recommended Universal City Studios v. Corley, 273 F.3d 429 (2d Cir. 2001))
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)
See also current news: Hollywood, software firms aim at pirates
11 March 26
Paper draft due
The Litigation under Section 1201 (continued)
321 Studios v. MGM Studios' Complaint for Declaratory Judgment and Defendants' motion for partial summary judgment
Blizzard Entertainment v. Internet Gatewary's second amended complaint
The Chamberlain Group, Inc. v. Skylink Technologies, Inc. complaint and plaintiff's motion for summary judgment
Lexmark v. Static Control Components: the complaint and the district court's findings of fact and conclusions of law
News: Lexmark wins injunction in DMCA case and Injunction favours Lexmark in landmark copyright case
Dan Burk's article on Anticircumvention Misuse
12 April 2
Section 1201(a)(1)
The Anticircumvention Rulemaking
The Federal Register Notice for the 2003 Rulemaking and
2000 Copyright Office Recommendation to the Librarian of Congress
For further information about DRM issues: Berkeley's 2003 Digital Rights Management Conference Online Resource page
13 April 9
Finish discussion of DMCA issues and look to the future:
Suggested Changes to 1201: Proposals by Rep. Boucher (H.R. 5544 / H.R. 107) and Rep. Lofgren ( H.R. 1066 / H.R. 5522)
Consumer Technology Bill of Rights: Joint Resolutions from 2002 in the Senate (S.J. Res. 51) and the House (H.J. Res. 116)
14 April 16
** Required Student Paper Presentations **
May 10 All Student Papers Due!
Graduating Senior are requested to turn their papers in a day or two earlier if possible 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.