Thursday, October 25, 2012

Copyright: Week 9 - Infringement

This is not legal advice. Leave audio feedback at (512) 686-6329

Expected Audience: Law Geeks. More so than a lot of weeks, the infringement discussion requires some knowledge of the framework of the US justice (I use that term loosely) system. If you are curious about infringement and you think the discussion is too high-level, please let us know. Between this week, next week and the week on contributory/vicarious liability, we should have six posts on the subject between Brian and me, so we have plenty of time to bring it down a level.

October 11 – Copyright Infringement I: the Reproduction Right & the Substantially Similar Copy (Casebook pp. 289-309)
October 23 – Copyright Infringement II: Contemporary Cases on Copying (Casebook pp.309-314; 317-323; 334-337)
##October 25 – Copyright Infringement III: the Reproduction Right & the Distribution Right (Casebook pp. 337-354; 358-362)

You can only infringe rights. There are five (or six, depending on how you count) rights, which are:
  1. reproduction
  2. distribution
  3. public display
  4. public performance
  5. creation of derivative works
  6. "in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission" 17 U.S.C. §106.
You can learn more about these rights in The Five Exclusive Rights and Moral Rights on Life of a Law Student.

Before I move forward in the discussion, since I know we have readers from all over, I wanted to mention where a few places are located as far as circuits are concerned (these are by no means exhaustive!).

Maryland/North Carolina are in the 4th Circuit.
Michigan/Kentucky are in the 6th Circuit.
Chicago/Wisconsin are in the 7th Circuit.
While the 7th Circuit has some important judges in Posner and Easterbrook, most of the important copyright cases come out of the 2nd Circuit (NYC) and 9th Circuit (CA). Unfortunately neither the table of contents nor the table of cases in our book lists the court for the cases, but I did randomly come across Bridgeport Music from the 6th Circuit in preparing for this post. This also got me thinking about the relative position of the circuits as far as population.

According to Wikipedia, the 9th Circuit covers almost 20% of the nation's population. If the circuits were of roughly equal size, we'd have 5 or 6 circuits, instead of 11. The 9th Circuit is also by far the largest in terms of land mass, serving California and Alaska (among other large western states). Unfortunately, Wikipedia doesn't offer

I have to say that this week I have really struggled to come up with a reasonably novel or controversial idea for Brian to rebut/critque, or at least one that I actually believe or feel competent enough to discuss. There is no doubt that circuit splits are irritating, but this is not something particular to infringement or even Copyright. Nonetheless...

Copyright needs a specialized tribunal like the Federal Circuit for patents.

Not to completely geek out on you, but in order to understand how this might work, you have to have *some* understanding of Article III of the US Constitution. I trust Brian can imagine how such a system will work, so I'll refrain from going into gory detail. If anybody wants the gory detail, next week is another infringement week, so maybe I can readdress the issue.

The obvious immediate rebuttal for my proposal is, "Where do you stop?" Certainly one might think specialized drug courts or specialized environment courts might make sense. The reason that I think drug courts and environmental courts are different is because those areas do not have full federal preemption. As has been discussed previously on Music Manumit and the Lawcast, Copyright preemption is not 100%, but it's pretty close.

Another major rebuttal to a special copyright court based on the Federal Circuit is that there is a sense that the Federal Circuit gets wrapped up in patents and forgets they have a duty to the public and not just the patent bar. Occasionally, SCOTUS must step in to smack them down. I don't accuse any judges at the Federal Circuit of intentionally skirting their duty to the public, but we probably are all a little guilty of tunnel vision when we get wrapped up in our work. Certainly a specialized Copyright Court could lose sight of the interplay between copyright law and any number of subjects which border it including telecommunications, trademarks, contracts, criminal law, etc. I bring up this additional rebuttal not because I want to squeeze Brian out of his rebuttal, but since he is not in Patent Law this semester the actions of the Federal Circuit will likely not be fresh on his mind.
Those are the two main reasons why I'm not necessarily convinced by my own proposal, but it provides us with a framework for discussion of circuit splits that goes a little beyond the "circuit splits are bad" thesis, which aside from the argument that it helps employ lawyers and (more importantly) provides SCOTUS with a variety of viewpoints, I don't think there's a lot to disagree with. I don't know, maybe Brian will surprise me.

An interesting thing that was brought up in class is that many people don't see the different tests in the 2nd and 9th circuits as being the type of split for SCOTUS to address. In theory the 2nd and 9th circuits are using different tests to get to the same conclusions. It would only be if the conclusions were different that SCOTUS would need to get involved. Of course, this does little to help individuals that don't follow the courts (i.e., non-lawyers) know when they are infringing and when they are not. A unified copyright court would help solve that problem.