Friday, December 7, 2012

Copyright: Week 3-5 - The Ravings of a Mad Man

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

I believe it was Week 2 when Nick decided he needed to leave the Lawcast for health reasons. It I'm not sure if it was Week 5, but there abouts my grandmother died.

In the interim, Brian came on board and I worked on piecing together articles for those weeks. However, I as the semester went rolling by I never went back and got out those Week 3, 4 and 5 posts.

Below the fold I give you a rough draft of what I had going on. Some say that putting out unfinished content dilutes the brand, but I say release early and release often! Brian should be coming out with critiques of my last three articles and that will knock this off the front page. If people don't like the article it will float away into obscurity. Perhaps though, the unfinished thoughts will provoke some response. Maybe the people are really interested in what I have to say about these topics.

Either way, the people will speak, even if it is with their silence.

I apologize for taking so long to get this out to you.

Assigned Reading from Copyright In A Global Information Economy:
September 11 – Fundamental Principles of Copyright Law: Fixation & Originality (Casebook pp. 45-55; 57-65)
September 13 – Fundamental Principles (cont’d.): Originality & the Idea/Expression Dichotomy (Casebook pp. 67-72; 77-93)

September 18 – Derivative Works & Compilations (Casebook pp. 99-105 (stop after para. 3); 107-116)
September 20 – Who is an “Author”? (Casebook pp. 116-129)

September 25 – Formalities & the Basics of Duration (Casebook pp. 145-156; 160-165)
September 27 – Duration (cont’d): Renewals, Transfers & Terminations (Casebook pp. 165-186)

Before I get into the substance of the two class days, I wanted to mention that I also picked up two books from the library to help with my studies:
1) Patent, Copyright & Trademark: An Intellectual Property Desk Reference. 12th Edition. This is a book by NOLO. Much like the Lawcast, NOLO notes on their copyright page:
We believe accurate, plain-English legal information should help you solve many of your own legal problems. But this text is not a substitute for personalized advice from a knowledgeable lawyer.
The point of me quoting this is to point out that this is not a book designed for lawyers, so hopefully many readers will find it useful.

2) Examples & Explanations, Intellectual Property. Third Edition.
Unlike the NOLO book, this is a book designed specifically for law students. As the semester goes on, I'll probably give thoughts on whether either of the books is worthy of purchase, but for not I wanted to make that broad distinction.

Additionally, I wanted to mention I have started listening to the Legal Geekery Podcast. I'm not sure how long I'll stick with it. I was going to call the Apple shills, but turns out apparently "shilling" is a technical legal term. Even without the potential defamation lawsuit, I don't actually think they are paid by Apple. They are, it would appear, an Apple fan boy and fan girl. As a general rule, I can't stand this class of individual. I have this same problem with This Week in Law. The male co-host of Legal Geekery even claims to be an open source guy. WHAT? If that was ever true, your gushing love of the iPhone has certainly taken that card away. I mention this in case people are looking for more information on copyright - particularly now that I'll only be doing one post a week 

Professor Wong is finally back from Asia! Because of this, we spent some time going back over the Constitution. In case you missed it the first time:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
We then looked at §102.
original & fixed
now known or later developed, from which they can be perceived, reproduced, or...

not "idea, procedure, process, system, method of operation, concept, principle, or discovery"

For some reason, we back tracked and went back to §101. The definitions section (§101, in this case) is super-important

A work is "fixed" in a tangible medium or expression when its embodiment in a copy or phonorecord, by or under the authority of the author , is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration ...

4 pieces of the definition:

1) copy

2) authority

3) permanence

4) more than transitory duration

White Smith v Apollo (1908) to Williams Electronics v Artic Int'l (1982)

more 101
material objects, other than phonorecords, in which...

material objects in which sounds, other than those accompanying a motion picture

Williams Electronics, Inc. v Artic International, Inc. (page 48)

MAI Systems Corp v Peak Computer, Inc(page 50)
     why fixed?

Cartoon Networks v CSC Holdings(page 53) <-- a notes case
     we will come back to this when we do infringement

Originality...which we will continue on Thursday
1909 - "all the writings of an author"
1976 - "original works of authorship"
     did notdefine originality in Section 101

* The work must have originated from the author AND 
* It must possess a minimaldegree of creativity.

original does not really mean creative.

cult of the author in Romanticism

Fiest and Sony are two big ones.

Burros-Giles v Sarony(1884) -- page 61
     Author: "he to whom anything owes its origin"

Bleistein v Donaldson(1903)
     crass commercialness is not a problem!
     lawyers and judges make bad art critiques

Fundamental Principles (cont’d.): Originality & the Idea/Expression Dichotomy (Casebook pp. 67-72; 77-93 )
"technology posses a problem"
originality, in this context, means to "originate"
"aesthetic nondiscrimination" -- judges are not art critiques!

Feist Publications vs. Rural Telephone Service
     one of the most important cases of the 20th century

Three types of originality for photographs:
     * Rendition
     * Timing
     * Creation of subject matter

originality may depend on type of work

Domestic US law: 102(b)
domestic law and TRIPS don't mirror exactly, but they mirror in spirit
Internationally, TRIPS Art 9(2)
first time trade and IP were tied.
"Berne Convention" - mother of all copyright treaties <-- no one has ever used its dispute resolution provisions
"as such" gives people a lot of grief

     * Ideas, facts & data are not protected unless they are expressed in an original manner. Why?


Next Week: More Originality and the Idea/Expression Dichotomy