Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P23 pps

Willful copyright infringement can be a federal misdemeanor, punishable by as much as $10,000 or one year’s imprisonment. Criminal prosecutions on this ba sis require that infringe- ment be for the “purposes of commercial advantage or private financial gain” (17 U.S.C.A. §506[a]). Criminal prosecutions for copyright infringement are generally rare. Nevertheless, PIRACY of music and motion picture record- ings—in which criminals mass-produce such recordings without permission and without paying royalties—has become increasingly com- mon. This fact led to the passage of the Piracy and Counterfeiting Amendments Act of 1982 (18 U.S.C.A. § 2318), which allows punishment of up to $250,000 in fines or five years in prison for pirating one thousand phonorecords or 65 films within 180 days. The fraudulent use or removal of copyright notices is also a punishable offense. Fair Use Fair use is a judicial doctrine that refers to a use of copyrighted material that does not infringe upon or violate the exclusive rights of the copyright holder. Fair use is an important and well established limitation on the exclusive right of copyright owners. Examples of fair use include the making of Braille copies or audio recordings of books for use by blind people and the making of video recordings of broadcast television programs or films by individuals for certain private, noncommercial use. Examples of fair use typically involve, according to the Copyright Act of 1976, the reproduction of authored works for the purpose of “criticism, comment, news reporting, teach- ing … , scholarship, or research” (17 U.S.C.A. § 107). The same act also establishes a four-part test to determine fair use according to the following factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educa- tional purposes; (2) the nature of the copy- righted work; (3) the amount and substantiality of the portion used in relation to the copy- righted work as a whole; and (4) the effect of the use upon the potential market for, or value of, the copyrighted work (17 U.S.C.A. § 107). It is usually considered fair use of an authored work to take small quotations or excerpts and to include them in another work, as when quotations are taken from a book and inserted into a book review. However, courts have found that such quotation is not fair use when material is taken from unpublished sources, as happened in the 1985 case Harper & Row v. Nation Enterprises, 471 U.S. 539, 105 S. Ct. 2218, 85 L. Ed. 2d 588. The Harper case involved publication by The Nation magazine of quotations from Gerald R. Ford’s unpublished memoir, A Time to Heal. Harper & Row, publisher of the memoir, sued The Nation, claiming that the magazine’s actions had caused it to lose a lucrative contract with Time Magazine to publish excerpts from the memoir. The Court ruled in favor of Harper, citing the economic value of first publication to the copyright holder as an important factor in its decision. It found that The Nation had infringed Ford’s copyright by becoming the first publisher of his original expression, thereby inflicting economic losses on Ford. It rejected The Nation’s argument that it was simply reporting news. Lower courts have subsequently applied the Court’s reasoning to other cases involving quotations from unpublished works. In Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987), a federal appeals court blocked publication of a book that used extensive quotations from unpublished letters of the author J. D. Salinger. The court ruled that the author retained copyright ownership of the “expressive content” of the letters, even when the letters themselves were deposited in university library collections. Parody often constitutes fair use of copy- righted material. In cases involving parodies of copyrighted works, courts typically assess the purpose and intent involved in taking material from the original expression, and whether or not the author of the parody has borrowed a reasonable amount of material in producing the parody. For example, in the 1994 case of Campbell v. Acuff-Rose Music, 501 U.S. 569, 114 S. Ct. 1164, 127 L. Ed. 2d 500, which involved a parody by the rap group 2 Live Crew of the Roy Orbison song “Pretty Woman,” the U.S. Supreme Court ruled that a parody could be fair use under copyright law even if it is created for commercial purposes. Copyright Registration, Deposit, and Notice Registration of copyright involves recording the existence of an authored work and the identity of its author with the U.S. Copyright Office, which is a part of the LIBRARY OF CONGRESS. Deposit involves placing the work in its recorded, physical form with the same office. Notice, or notification, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 208 COPYRIGHT involves placing on an authored work the ª or the word Copyright or the abbreviation Copr., along with the year of first publication and the name of the owner of the copyright. Many of the major copyright acts in U.S. history have required that works be registered and deposited with a U.S. district court or with the U.S. Copyright Office, in order to be legally enforceable. Over time, however, de- posit, registration, and notice of copyright have increasingly become formalities. Under the Copyright Act of 1976, authors automatically receive federal copyright protection when they fix their work in a tangible medium. Even if a copyright is not registered and an authored work is not deposited, the author maintains exclusive rights to the work. Nevertheless, registration and deposit may have significant legal consequences. Most im- portantly, owners of copyright cannot sue for copyright infringement until they have regis- tered the copyright (17 U.S.C.A. § § 411, 412). Deposit is not a requirement for copyright protection, but federal law requires that two copies of a published work be deposited within three months of publication. Failure to deposit a copy after it has been demanded by the U.S. Copyright Office is an offense punishable by a fine. Registration of copyright requires the deposit of at least one copy of a work and two copies of a published work. The U.S. Copyright Office has the power to vary these requirements. Copyright notice serves a number of func- tions. A lack of copyright notice has tradition- ally informed users that a particular work is in the public domain, whereas the presence of a notice has warned users that a work is copy- righted and identifies the date and year of the work. Despite these traditions, copyright notice is optional for works distributed after October 31, 1988. Under prior law, an omission of copyright notice resulted in a loss of copyright protection. Digital Millennium Copyright Act Copyright laws have had to evolve in order to protect the interests of owners of copyrights from in fringement through transfer of digital copies of protected works. Internet users may employ a myriad of methods to transmit digital files, and much of the information contained in these files consists of copyrighted works. Given the sheer number of Internet users—estimated by some at more than 500 million in 2002—and trillions of pages on the World Wide Web, protection of electron ic publications and media is a global concern. In 1998, President WILLIAM JEFFERSON CLINTON signed the Digital Millennium Copyright Act (DMCA), Pub. L. No. 105-304, 112 Stat. 2860 (17 U.S.C.A. §§ 101 et seq.), into law following a99–0 vote in the U.S. Senate. This legislation was the focus of intense lobbying efforts on the part of a wide range of interest groups. These groups included telecommunications compa- nies and online service providers; consumer- electronics manufacturers, library, museum, and university groups; and the publishing, recording, film, and software industries. The primary goal of this legislation was to adapt U.S. copyright laws for the digital age. Passage of the DMCA was also required for the United States to keep pace with changes in international copyright treaties. In December 1996 the World Intellectual Property Organiza- tion (WIPO), an agency of the UNITED NATIONS, negotiated the Copyright Treaty and the Per- formances and Phonograms Treaty at a meeting in Geneva, Switzerland. WIPO is responsible for the advancement and safeguarding of intellec- tual property throughout the world, and it has 170 member countries. The treaties, ratified in 2002, provide increased protection for copyrighted materials in the digital world. By signing, each country agrees to put into place laws, based on their own legal system, in order to enforce the treaties. The DMCA serves that purpose for the United States. The DMCA consists of five main sections: WIPO Treaties Implementation, Online Copy- right Infringement Liability Limitation, Comput- er MAINTENANCE or Repair Copyright Exemption, Miscellaneous Provisions, and Protection of Certain Original Designs. Title I, WIPO Treaties Implementation, contains an “anti- circumvention” provision, making it illegal to “manufacture, import, off er to the p ublic, provide, or otherwise traffic any technology, product, service, device, component, or part thereof,” for the primary purpose of “cir- cumventing a technological measure that effec- tively controls access to” a copyrighted work. Thus, technologies that are designed to protect digital material are safeguarded. Moreover, this provision makes the act of circumventing a “technological measure that effectively controls access to a work protected” GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COPYRIGHT 209 by copyright illegal. Every three years, the librarian of Congress, the register of copyrights, and the assistant secretary for communications and information of the COMMERCE DEPAR TMENT must determine whether people with legitimate noninfringing uses of copyrighted materials are being unfavorably affected by the law. The law does state that fair use is not affected, but this nevertheless has been a controversial provision. Libraries, museums, and scholars were con- cerned about digital materials only being available on a pay-per-use basis. An exemption was included for nonprofit libraries, archives, and educational institutions allowing them to circumvent technical protection measures for the purpose of determining whether or not to purchase the copyrighted work. Title I of the DMCA contains another addition to U.S. copyright law required by the WIPO treaties. This section prohibits the deletion or alteration of information associated with copyrighted material. Organizations will benefit from this provision because it will help protect information and images on their Websites. Furthermore, it prohibits the distri- bution of false copyright-management informa- tion. The DMCA provides for civil and criminal enforcement. However, archives, schools, non- profit libraries, and public broadcasting stations are exempt from criminal prosecution. The DCMA also limits the liability for copyright infringement by providing safe harbors for online service providers. The definition of an online service provider is generous. Other organizations may qualify for protection, which could be useful if they provide Internet access, have a company bulletin board or in-house email system, or chat rooms. Prior to the passage of the DMCA, online service providers could have been liable if infringing materials were posted on their sites, even if they were unaware of the problem. The DMCA explains the responsibilities of copyright owners and service providers. Under specific conditions, online service providers are exempt from having to pay monetary damages as long as they are not benefiting financially from infringing activity and as long as they remove the material promptly from the Internet. Limitations have also been set on exclusive rights for computer programs. A provision allows users to copy programs that are needed in order to maintain and repair a machine. Any such copies must be des troyed as soon as the machine is repaired, however. One significant exemption for libraries and archives was included in Title IV of the DMCA. Up to three copies may be made of a copy- righted work without the permission of the copyright owner for research use in other libraries or archives through interlibrary loan. The word facsimile has been struck from the former copyright law, thus allowing for digital formats. Libraries and archives can now loan digital copies of works to other libraries and archives by electronic means. Copies for preser- vation and security purposes are also permitted when the existing format in which the material is stored becomes outdated, or if the work is lost, stolen, damaged, or deteriorating. Title IV also established guidelines for licensing and royalties in regard to copyrighted music transmitted over the Internet and in other digital forms. Transmissions are not subject to licensing if transmitted with encoded copyright information and with permission from the copyright owner of the sound recording. No Electronic Theft Act The concerns surrounding the protection of the copyrights of electronic data extend to comput- er software. In 1997 Congress approved the No Electronic Theft (NET) Act (Pub. L. No. 105-147, 111 Stat. 2678), which substantially enhanced existing federal copyright law. Aimed primarily at the rampant theft of computer software, i t allows the prosecution of anyone who violates the copyright of materials worth more than $1,000 in a six-month period by copying, distributing, or receiving software. Congress passed the law in November 1997 after the software and entertainment industries strongly lobbied for it, claiming losses amount- ing to $2 billion in 1996 in the United States alone. In particular, the law closed a narrow loophole in existing federal law, which made criminal prosecution for copyright violation only possible if the violation resulted in financial gain. Under the NET Act, individuals face fines and jail sentences even if they do not profit financially from the violation. The l aw was enacted over protests by scientists who feared that it would hinder their research. Lobbyists pointed to what became known as the “LaMaccia loophole.” This term refers to an unforeseen weakness in federal law that was exposed by the failed federal prosecution of computer hacker David LaMacchia in 1994 (United States v. LaMacchia, 871 F. Supp. 535 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 210 COPYRIGHT [D. Mass. 1994]). LaMacchia, then a 21-year-old student at the Massachusetts Institute of Tech- nology, had used an electronic bulletin board to freely distribute countless commercial software programs. Although he was indicted for wire FRAUD under 18 U.S.C.A. § 1343 for allegedly causing software companies losses of more than $1 million, the case was dismissed. Richard Stearns, the U.S. district court judge, ruled that criminal sanctions did not apply because LaMac- chia had not profited from his actions. According to the software industry, the decision paved the way for piracy of material through Web pages and other commonly used Internet sites. Software manufacturers were not only concerned about deliberate piracy by computer hackers; they also wanted to stop the casual lending and copying of computer software between consumers and within offices as well. Joining them in this effort were the music and film industries, which have increasingly become partners of software companies in the production of multimedia CD-ROMs. Additionally, the music industry viewed with alarm the widespread distribution of commercial recordings by fans, which became popular over the Internet in 1997 with the development of new software technology for digitally copying songs. The NET Act was designed to close the LaMacchia loophole. Swiftly passed by the House and subsequently approved by the Senate, the act accomplished this by amending two key parts of federal copyright law: Titles 17 and 18 of the United States Code. These laws previously defined copyright violation strictly in terms of financial gain. The NET Act broadened them to include the reproduction or distribution of one or more copies of copyrighted works and considers financial gain simply to be the possession of copyrighted work. It defines a misdemeanor violation as occurring when the value of the copied material exceeds $1,000 over a 180-day period; a felony occurs if the value exceeds $2,500. Penalties range from a one-year jail sentence and up to $100,000 in fines for first- time offenders to five years’ imprisonment and up to $250,000 in fines for repeat offenders. FURTHER READINGS Electronic Frontier Foundation. 1995. To Have and to Hold: Can Copyrights Extend to Cyberspace without Increased Costs and Threats to Privacy? (June 8). Goldstein, Paul. 2003. Copyright’s Highway: From Gutenberg to the Celestial Jukebox. Rev. ed. Stanford, Calif.: Stanford Univ. Press. LaFrance, Mary. 2008. Copyright Law in a Nutshell. St. Paul, Minn.: Thomson/West. Vaidhyanathan, Siva. 2001. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York: New York Univ. Press. CROSS REFERENCES Copyright, International; Infringement; Intellectual Property; Internet. COPYRIGHT ARBITRATION ROYALTY PANEL Three-member ad hoc board empowered to make decisions regarding ratemaking and distributions of copyright royalties collected for compulsory licenses under the Copyright Act of 1976. In order for a person to use another’s copyrighted work, the person must generally obtain a license from the COPYRIGHT owner. The terms of the agreement normally depend upon market conditions at the time of the agreement. However, the Copyright Act of 1976, codified in Title 17 of the United States Code, creates an exception under some circumstances whereby a prospective user may obtain a compulsory license that allows the individual to use a copyrighted work without the owner’s permis- sion. The compulsory license applies so long as the person applying for the license meets statutory requirements and pays the required royalties. Congress in the 1976 act created the COPYRIGHT ROYALTY TRIBUNAL (CRT), an indepen- dent federal agency empowered to distribute royalties collected under the compulsory license provisions, as well as to make periodic adjust- ments to the royalty rates attached to the compulsory licenses. The original copyright act provided for four compulsory licenses, including those for CABLE TELEVISION, musical mechanical, noncommercial broadcasting, and jukeboxes. In 1992 Congress extended respon- sibility to the CRT to include distribution of levies collected from manufacturers and impor- ters of digital recording devices. The Copyright Royalty Tribunal was con- troversial from its inception. Although the ratemaking provisions were generally clear, the statute was rather ambiguous regarding the methods by which the tribunal should distribute royalties. The tribunal’s decisions with respect to its ratemaking powers led to frequent criticism and litigation. Moreover, critics charged that Congress had created a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COPYRIGHT ARBITRATION ROYALTY PANEL 211 full-time independent agency to perform a part- time job. In 1990 Congress reduced the number of commissioners on the tribunal from five to three, and during hearings in the House of Representatives in 1993, two of the three commissioners testified that they were in favor of abolishing the Copyright Royalty Tribunal. In 1988 Congress enacted the Satellite Home Viewer Act, Pub. L. No. 100-667, 102 Stat. 3935, which created, at that time, a fifth compulsory license. However, the act required the formation of ad hoc arbitration panels to amend royalty fees for satellite retransmissions, thus bypassing the authority of the CRT. The success of these arbitration panels persuaded Congress to use them for the other forms of compulsory licenses under the Copyright Act. The Copyright Royalty Trib unal Reform Act of 1993, Pub. L. No. 103-198, 107 Stat. 2304, immediately abolished the Copyright Royalty Tribunal and allowed for the formation of ad hoc copyright arbitration royalty panels. The 1993 act did not change the system of compulsory licenses, but rather it shift ed authority from the CRT to the new panels. Arbitrators on these panels are appointed and convened by the librarian of Congress, who acts on the recommendation of the Register of Copyrights. The arbitrators must meet mini- mum criteria set forth under the statute in order to quality for the position. At the time of the creation of these arbitration panels, the librarian of Congress was directed to adopt the rules and regulations of the CRT in their entirety, though the CRT no longer existed. These rules and regulations were to remain in force until the librarian decided to supplement or supersede them. The adoption of the tribunal’s former rules and regulations presented problems, however, because the 1993 act eliminated a single body—the CRT—and replaced it with a system of ad hoc panels. In December 1993 the librarian of Congress adopted the former CRT rules on an interim basis. One year later, the librarian issued new rules governing the panels, effective January 6, 1995. Additional revisions to the rules govern- ing the panels have also been made since the 1994 revisions. Like the CRT, the arbitration panels make decisions regarding distribution of royalties and ratemaking for royalties under the compulsory license provisions. Unlike the CRT, the purposes of the copyright arbitration royalty panels are set out clearly in the statute. Among the many purposes of the panels in the statute is the maximization of the availability of creative works to the public; the assurance that copy- right owners receive a fair return for their creative works; and the guarantee that the roles of the copyright owner and the copyright user in the product made available to the public were reflected. 18 U.S.C.A. § 801(b) (1998). The statute lists other purposes as well. The copyright arbitration royalty panels have proven more popular than the former CRT, although disputes still arise regarding ratemaking or distribution decisions by the panels. Convening a panel to make a rate adjustment is more difficult than the procedure that was followed under the CRT, which was a permanent body. The time frame under which a panel decision must be completed is also a concern for those involved in a pane l proceed- ing. All actions by the parties—including discovery, testimony, studies, arguments, motions, and so forth—as well as rulings, orders, and final report issued by the panel, must be completed within 180 days after the librarian of Congress directs the formation of the arbitration panel. Nevertheless, these pro- cedures are generally believed to promote efficiency when these panels make these deter- minations, and the panels have not been subjected to the same level of criticism as the former tribunals. FURTHER READINGS Davis, Mark J. 2003. “Practice before the Copyright Arbitration Royalty Panel in 17 U.S.C. § 111 Distribution Proceedings.” Vanderbilt Journal of Entertainment Law and Practice 11. Available online at http://law.vanderbilt. edu/publications/journal-entertainment-technology-law/ archive/download.aspx?id=1707; website ome page: http://law.vanderbilt.edu (accessed July 16, 2009) Goldstein, Paul. 2005. Copyright (4 Vols.). 3d ed. Clark, NJ: Lawbook Exchange. Nimmer, Melville B., and David Nimmer. 2003. Nimmer on Copyright. Newark, N.J.: Matthew Bender. CROSS REFERENCES Copyright; Copyright, International; Copyright Society of the U.S.A. COPYRIGHT, INTERNATIONAL The manner in which the exclusive rights to reproduce and distribute copies of various intel- lectual productions may be obta ined in foreign countries. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 212 COPYRIGHT, INTERNATIONAL INTERNATIONAL COPYRIGHT protection can be secured in only two ways: (1) by obta ining separate and independent COPYRIGHT protec- tion in each of the countries where such protection is sought, in compliance with the laws of each country; or (2) through interna- tional conventions or treaties that provide for the mutual recognition and protection of the literary an d INTELLECTUAL PROPERTY of the citizens of the natio ns that ar e partie s to such treaties or conventions. Citizens of the United States who seek copyright protection in foreign countries may sometimes avail themselves of the first me thod, somet imes the second, and sometimes neither, depending upon the l aws of the countries in which the foreign copy- rights issue. In 1989 the United States for the first time became a signatory to the oldest and most widely approved international copyright treaty, the Berne Convention for the Protection of Literary and Artistic Works (828 U.N.T.S. 221, S. Treaty Doc. No. 99-27). In doing so, the United States ended a long history of noncom- pliance with the Berne Convention, finally joining the vast majority of developed countries. As of the mid 1990s, 96 countries had signed the Berne Convention. Among the works protected by the Berne Convention are books, pamphlets, and other printed materials; dramatic and dramatico- musical works and musical compositions; drawings and paintings; works of architecture, sculpture, engraving, and lithography; illustra- tions and geographic charts, plans, and sketches; translations, adaptations, arrangements of mu- sic, and collections of various works; and cinematographic and photographic works. History of the Berne Convention The Berne Convention was first adopted on September 9, 1886, in Berne, Switzerland, and was later revised at several conferences: Pari s, 1896; Berlin, 1908; Berne, 1914; Rome, 1928; Brussels, 1948; Stockholm, 1967; and Paris, 1971. The agreement grew out of a perceived need in the late nineteenth century to protect authored works from international PIRACY,or unauthorized copying. A growing demand for new printed materials during this era was motivating many publishers to reprint unau- thorized versions of foreign works. Authors whose works were pirated had little recourse against those publishers because copyright laws were typically enacted on a national basis. Such laws gave copyright protection only to authors who were nationals of the country in which the laws were enacted. A few countries negotiated bilat eral treaties— two-party contracts termed reciprocal agree- ments—that protected the nationals of both countries, but such arrangements were rare. In the mid nineteenth century, a nongovernment organization, the Association Littéraire et Artis- tique International, was formed in Paris and led the movement for international copyright pro- tection. This organization created the draft of what eventually became the Berne Conventio n. Among the first countries adhering to the Berne Convention were France, Germany, and the United Kingdom. The Berne Convention established several principles of international copyright that have remained through all of the treaty’s versions. First, rather than operating on a system of reciprocity (under which a country protects foreign authors only to the extent that its own authors are protected in return), the convention works on the principle of national treatment (under which a country extends the same protection to foreigners that it accords to its own authors). Second, rather than trying to impose the same standards on all nations, the convention solved the problem of national differences in copyright protection by establish- ing minimum standards of protection that all signatories must meet. Thus, member countries may treat the copyrighted work of their own nationals in any way they choose, but they must treat works from nationals of other treaty members according to minimum treaty stan- dards. Third, the convention provides for auto- matic protection of copyrighted works as soon as they are created, without any required formalities, such as notice or registration. The United States and the Berne Convention Influenced greatly by its early status as a net importer of copyrighted materials, the United States resisted joining the Berne Convention for over a century. Adherence to the treaty’s conventions would have required U.S. publish- ers of foreign works—many of whom produced pirated copies—to pay royalties and fees to foreign copyright holders, thus causing a significant amount of money to flow overseas. However, by the end of WORLD WAR II, the United GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COPYRIGHT, INTERNATIONAL 213 States had become a major exporter of copy- righted materials, and it became clear that it would be to the country’s economic advantage if its own authors and copyright holders could be assured of receiving royalties from overseas publishing. At that point, rather than joining the Berne Convention, the United States lobbied for a different international treaty, the Universal Copyright Convention (UCC) (25 U.S.T. 1341, T.I.A.S. No. 7868), established in 1952 under the auspices of the U.N. Educational, Scientific, and Cultural Organization (UNESCO). The United States became a member of the UCC in 1955. Many countries that already belonged to the Berne Convention—including France, West Germany, and Japan—also joined the UCC. The UCC generally operated on the national- treatment principle, thus allowing U.S. authors to receive the same copyright protection in a specific country that the country afforded its own authors, and not requiring the United States to reciprocate that treatment for foreign authors. The United States experienced still more international pressure to join the Berne Con- vention after passage of the Copyright Act of 1976 (17 U.S.C.A. §§ 101 et seq.). This statute brought several important features of the Berne Convention into U.S. law, including relaxed standards on the formalities of copyright registration, deposit, and notice, and new provisions that extended the duration of copyright protection to the Berne minimum of the author’s life plus 50 years (which has since been extended to life plus 70 years). The act also phased out a protectionist manufac tur- ing clause that had required foreign works to be set in type in the United States in order to receive U.S. copyright protection—a clause that had benefited U.S. printers for decades. (In fact, lobbying by printers had long stym ied attempts to make the United States part of the Berne Convention.) By the 1980s the United States was still one of the few major developed countries not abiding by the Berne Convention. When it became clear that the United States’ role as a pariah in international copyright circles had begun to erode its position in reaching other trade agreements concerning intellectual prop- erty, Congress finally passed the Berne Conven- tion Implementation Act of 1988 (Pub. L. No. 100-568, 102 Stat. 2853). That act made the United States a party to the Berne Convention beginning in 1989, officially ending U.S. copyright isolationism. Protection of Copyright in the Digital Age Protection of the interests of copyright owners and enforcement of their rights has become more difficult since the rise of INTERNET around the world. The World Wide Web, a component of the Internet, consists of trillions of individual web pages, and according to some estimates, the number of Internet users has increased to more than 500 million. The Internet has created a new avenue for copyright infringement on a global scale. Although virtually all types of works that are subject to copyright law can be transferred through digital networks, transfers of music recordings have received the most attention. A web-based company, Napster, during the 1990s became the most well-known and heavily used portal for transferring electronic files containing copies of music. Users of this system were capable of transferring copyrighted works in a format called MP3 (MPEG-1 Audio Layer 3) to their home computers, with a sound quality that was comparable to that of a compact disc. The musical compositions in most of these files were copyrighted, and owners of those copyrighted materials com- plained that the file transfers infringed their copyrights. The Recording Industry Association of America sued Napster, eventually prevailing and causing Napster to close down. Napster was not merely a phenomenon in the United States and North America. The company had an estimated 16.9 worldwide users, and the system accommodated about 65 million downloads. Domestic copyright law is limited in its protection of some of these works because the Copyright Act generally has no application outside of the United States. For example, in Subafilms, Inc. v. MGM—Pathe Communica- tions Co., 24 F.3d 1088 (9th Cir. 1994), U.S. Court of Appeals for the Ninth Circuit noted as much in holding that a copyright holder could no t sue individuals who distributed the plaintiff’s movies abroad, because the infringe- ment occurred outside of U.S. soil. Although the Berne Convention, as well as such interna- tional intellectual property treaties as the Geneva Phonograms Convention, the Rome GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 214 COPYRIGHT, INTERNATIONAL Convention, protects such copyrights, addition- al protection was needed. In 1996 the World Trade Organization approved the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which requires member countries to provide certain levels of protection for copyright holders in their countries. Additional protection came in the form of so-called “digital treaties” approved by the World Intellectual Property Organization, including the Copyright Treaty and the Perfor- mance and Phonograms Treaty. Both of these treaties, which became effective in 2002, clarified and extended the Berne and TRIPS provisions by allowing copyright holders to encrypt their works in order to protect their rights. COPYRIGHT ROYALTY TRIBUNAL The Copyright Royalty Tribunal was established by an act of October 19, 1976 (90 Stat. 2594; 17 U.S.C. 801). The tribunal makes determinations concern- ing the adjustment of COPYRIGHT royalty rates for records, jukeboxes, and certain CABLE TELEVISION transmissions. After compulsory cable television and jukebox royalties have been deposited with the register of copyrights, the tribunal distributes the fees and, in cases of controversy among claimants, determines their distribution. The tribunal also establishes and makes determinations concerning terms and rates of royalty payments for the use by public broad- casting stations of published nondramatic compositions and pictorial, graphic, and sculp- tural works. Cost-of-living adjustments are made to these noncommercial broadcasting rates in August of each year. Factors involved in tribunal decisions in- clude the existence of economic conditions, the impact on copyright owners and users and the industry involved, and the maximization of the availability of creative works to the public. Recognizing the right of copyright owners to receive a fair return, the tribunal ensures them access to information about the use of their works. COPYRIGHT SOCIETY OF THE U.S.A. The Copyright Society of the U.S.A. was founded in 1953 to promote the protection and study of INTELLECTUAL PROPERTY rights in areas such as art, literature, motion pictures, and music. Its primary function is gathering, disseminating, and interchanging information concerning protection and use of copyrighted materials. The organization undertakes and engages in research in the field of copyright law in cooperation with universities, law schools, libraries, governmental agencies, law- yers, and industry representatives in the United States and foreign countries. It also seeks to promote better understanding of copyright and the vital importance of legal and economic protection of intellectual prop- erty in general, and copyright in particular, among the general public, in industry, and in theacademicworld.Italsoprovidesinforma- tion to the public through its web site, http:// www.csusa.org. To accomplish its goals, the society has undertaken a wide-ranging program including symposia on copyright subjects; work shops for people in such fields as music, motion pictures, and publishing, stressing the practical aspects and mechanics of copyright administration; and publication of materials relating to copyright that otherwise would not be available. Its members are lawyers, laypersons, firms, librar- ies, universities, and publishers. The society publishes a journal and holds annual meeti ngs. In 2001 it launched its Copyright Kids web site (http://www.copyrightkids.org), a compre- hensive resource for school-age children that explains copyright facts and regulations and answers questions about the importance of copyright protection. CORAM [Latin, Before; in the presence of.] The term coram is used in phrases that refer to the appearance of a person before another individual or a group. Coram non judice, “in the presence of a person not a judge,” is a phrase that describes a proceeding brought before a court that lacks the jurisdiction to hear such a matter. Any judgment rendered by the court in such a case is void. CORAM NOBIS [Latin, In our presence; before us.] The designa- tion of a remedy for setting aside an erroneous judgment in a civil or criminal action that resulted from an error of fact in the proceeding. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CORAM NOBIS 215 In civil actions, a petition for a writ of coram n ob is was addressed to the court in which the judgment was made, unlike an appeal, which is made to a superior court. The petition asserted that the court had made an erroneous judgment due to the defendant’s excusable failure to make a valid defens e as a result of FRAUD, duress, or excusable neglect, such as illness. Coram nobis could not be used where a party caused an error because of NEGLIGE N C E . The writ of coram nobis has been abolished in civil actions by the rules of federalcivil procedure and similar provisions of state codes of CIVIL PROCEDURE that, instead, establish differ- ent methods for setting aside judgments. In CRIMINAL PROCEDURE, coram nobis serves the same purpose as it did in civil actions and is a recognized procedure in federal criminal prosecutions. Traditionally, it was available to direct the court’s attention to information that did appear in the trial record and was not admitted into evidence because of fraud, duress, or excusable mistake. A DEFENDANT could not use coram nobis to relitigate the same charges if, through his or her own fault, such facts were not introduced as evidence. Modern statutes have expanded the grounds for relief based upon the principles derived from the ancient writ of coram nobis. It is no longer a common-law remedy, but statutes provide for the vacation of a conviction and usually order a new trial if there is insufficient evidence to sustain the conviction, newly discovered evidence, erroneous instruction to the jury, or prejudicial comments or conduct by the prosecutor during the trial. CORAM REGE [Latin, In the presence of the king himself.] After the Norman Conquest of England in 1066, court was held before the king himself— coram rege—whenever matters affecting the royal interest were in issue. When the king began to appoint a tribunal to hear cases for him, it was called the CURIA REGIS, or the King’s Court. From the Curia Regis developed the royal COMMON-LAW COURTS. v CORBIN, ARTHUR LINTON Arthur Linton Corbin was a leading legal scholar and professor who made significant and influential contributions to the develop- ment of U.S. contract law. Corbin was born October 17, 1874, in Cripple Creek, a small mining town near Colorado Springs. He was raised in Cripple Creek and then left Colorado to attend the University of Kansas, from which he graduated in 1894. He went on to the Yale Law School, graduating magna cum laude in 1899. After several years of practicing law and teaching high school back in Cripple Creek, he returned to Yale in 1903 to accept a position as an instructor in contracts. He became a full professor in 1909 and remained at Yale until his retirement in 1943 at the age of 68. During his tenure at Yale, Corbin played a major role in establishing the institution as a major national law school and center for legal scholarship. He was instrumental in recruiting more highly qualified students to the school by convincing the administration to tighten admis- sion standards. He also drew praise for his efforts to persuade the school to hire and Arthur Linton Corbin 1874–1967 ▼▼ ▼▼ 18501850 19001900 19251925 19501950 19751975 18751875 ◆◆◆◆◆◆◆ ❖❖ 1861–65 U.S. Civil War 1874 Born, Cripple Creek, Colo. 1894 Graduated from the University of Kansas 1899 Graduated from Yale Law School 1903 Joined Yale Law School Faculty 1909 Made full professor at Yale 1914–18 World War I 1932 Restatement of Law, Contracts, published 1943 Retired from Yale Law School 1939–45 World War II 1950–53 Korean War 1961–73 Vietnam War 1967 Died, New Haven, Conn. 1950 Corbin on Contracts first published GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 216 CORAM REGE maintain a full-time faculty that would be committed to teaching and writing, instead of relying on judges and practicing lawyers who taught only part-time and thus were not alw ays available to students. In addition, Corbin helped to implement the CASE METHOD of teaching at Yale, in which students glean the principles of law through the study of cases rather than simply by rote without reference to COMMON LAW as developed by the courts. Corbin was a popular and committed teacher, even filling in as a writer and editor for the Yale Law Journal when the First World War left a serious shortage of student editors and contributors. Corbin made his greatest contribution to contemporary legal thought through his exten- sive and widely studied writings on the law of contracts. He authored many books and articles on the subject and served as adviser to the reporters of the first and second Res tatement of Contracts, treatises designed to set forth and analyze the relevant principles governing con- tract law. Corb in is best known for his own eight-volume treatise on contracts, Corbin on Contracts: A Comprehensive Treatise on the Working Rules of Contracts Law, which was first published in 1950, seven years after his retire- ment from Yale Law School. Corbin kept his work up-to-date until his death, through his own revisions and by adding new material to “pocket parts” at the back of each volume. Corbin on Contracts quickly became a classic in the field for practicing attorneys and is still considered essential reading for students of contract law. Corbin ascribed to a “realist” philosophy in his legal writings and thought. He believed that the law is a critical part of everyday life and that resulting rules governing conduct had to reflect a changing social context. He wrote, Law does not consist of a series of unchange- able rules or principles…. Every system of justice and of right is of human develop- ment, and the necessary corollary is that no known system is eternal. In the long history of the law, one can observe the birth and death of legal principles…. The law is merely part of our changing civilization. In 1954, on his 80th birthday, Corbin reiterated his belief that law is inextricably tied to human experience, stating that the “develop- ment of our law—common, statutory, and constitutional—is part of the continuing evolu- tionary development of life in society.” Corbin’s legal realist views are strongly evident in his approach to contract law. The main purpose of a contract, he stated in his treatise, is “the realization of reasonable expec- tations that have been induced by the making of a promise.” Reasonableness, he maintained, is an expression of customs and mores, which in turn could be discerned from what he called the operative facts of judicial decisions. To solve a contractual dispute, Corbin believed, a judge should first determine the intention of the parties, and thus the terms of the promise or agreement; then analyze the intention in terms of reasonableness; and finally apply rules, doctrines, or other principles to determine what remedy should be offered. Above all, Corbin believed that the reasonable expectations of the parties should be protected. Thus, according to Corbin, even if the price term were left open in an agreement that otherwise had been concluded, the court should consider whether the parties had intended to be bound by the contract. The court, he maintained, should make every effort to fill in the gaps of an agreement by looking to reasonable terms consistent with what the parties had previously agreed upon. The contract should fail only if it appears that the parties did not intend to be bound, or if reasonable terms cannot be ascertained. Corbin further believed that in resolving contractual disputes, courts should not be limited to a contract’s “four corners” (the explicit terms of the agreement) or to the “plain meaning” of those terms. The parties’ intent should be gleaned from what they stated and from their conduct; their prior COURSE OF DEALING , trade practices, or any other pertinent circumstances also should be considered. Cor- bin’s views are evident in the UNIFORM COMMER- CIAL CODE , adopted in 49 states, and in the law of contracts as developed by the courts since the mid 1900s. Corbin’s views often stand in contrast to those of another leading American scholar in contracts, SAMUEL WILLISTON. Williston sub- scribed to the theory of legal formalism, which views the law as a body of scientific rules from which legal decisions can be readily deduced. Legal formalism dominated legal thought in the early twentieth century, and those who advo- cated its application viewed law as essentially conservative. Williston applied many of his theories in the first Restatement of Contracts, which the American Law Institute completed in WHERE NEITHER CUSTOM NOR AGREEMENT DETERMINES THE ALLOCATION OF RISK , THE COURT MUST EXERCISE ITS EQUITY POWERS AND PRAY FOR THE WISDOM OF SOLOMON. —ARTHUR CORBIN GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CORBIN, ARTHUR LINTON 217 . from Yale Law School 1 939 –45 World War II 1950– 53 Korean War 1961– 73 Vietnam War 1967 Died, New Haven, Conn. 1950 Corbin on Contracts first published GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 216. federal law that was exposed by the failed federal prosecution of computer hacker David LaMacchia in 1994 (United States v. LaMacchia, 871 F. Supp. 535 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E. designa- tion of a remedy for setting aside an erroneous judgment in a civil or criminal action that resulted from an error of fact in the proceeding. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CORAM