IP class 10

recap.
- reproduction right. usually have to rely on circumstantial evidence of access (that D likely/had a way to get the work) and similarity. a very very strong degree may lessen need for proof of access -- for example, we may infer access based on publishing or something. but just the fact that something was copied by the D doesn't mean that the D is infringing. because CR is not concerned with that: the real issue is improper appropriation -- we want to know if the layman would perceive the D as having taken something that belonged to the P.

defenses to copyright.

the nichols case makes us have to think of what kind of similarities we're trying to discover and what we're protecting. the higher the level of abstraction, the more similarities we will find but the less they will have to do with CR because ideas, abstract themes, and characters are the stock and trade of creativity that we want available to all. from a legal aspect, this means we as lawyers have to think of where similarities fall on the level of abstraction spectrum to determine where the infringment on reproduction has been satisfied.

anderson v. stallone -- by creating a derivative work of a CR work, you're infringing the owners' rights as well as your own! you can certainly arrange materials that you don't own such that your new contribution will be protected (such as in feist v. rural) but if you lack permission to the creative recreation of original, creative product, you don't get that same protection.

rights of CR owners

distribution rights: 17 USC s.109(a)
exclusive right to "perform or display a work publicly' means... to do so at a place open to the public or at any place where a substantial number of person outside of a normal circle of family and social acquaintances is gathered..."

for example: if you play a CD in your apartment, are you liable for CR infringement? what if you sell tickets? 

TV show -- performance
painting -- display
choreography -- performance

remedies - what does CR owner get from infringer?

well, first s/he must register the CR. not necessary to successfully register, you can even get refused in your registration and still bring suit.... not a burdensome requirement. your success is divided in two categories - injunctive relief and damages.

-- injunctive remedy (after eBay, courts find that there's more analysis needed for CR and patent cases than just boom, injunction)
-- impounding and disposition - 17 USC s.503: for example, if someone made a bunch of copies of your book and they're sitting in a warehouse, the judge can order the infringing copies be destroyed/ given over to you/ etc
-- damages and profits - 17 USC s.504: there's (1) actual damages and (2) statutory damages
statutory damages are the leverage in the peer-to-peer online infringement
-- costs and attorney fees: 17 USC s.505
-- criminal penaltieis: 17 USC s.506

1. fair use doctrine: there are some uses of copyrighted material that we want to protect
*** gotta see slide with fair use analysis**** 

17 USC 107 - limitations on exclusive rights: fair use

Fair Use

• 17 USC 107
• Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright
• Not an exhaustive list

Exceptions – the rights are not unlimited – cable retransmission rights for broadcast, school plays, religious performance. Limited by first sale doctrine – once you buy authorized copy that terminates the distribution rights of the owner. You have the right to redistribute it if you want. Limitation that you heard the most about is the concept of fair use – not an exception. It is a defense – it is not an instance of saying there was no copying. It is a defense of the assertion of actionable copying.

There are some policy reasons we allow a defense for copyright infringement. Courts were creating exceptions because they were so patchwork and inconsistent so Congress codified it in 1976. This is not an exhaustive list – it leaves a lot of discretion for the Court to determine what is fair use. It has become too broad and too uncertain. We have for a long time viewed that there is great advantage of having an inexact rule because there are cases involving new facts patterns and using content.

Why do we have a concept of fair use in the first place? Why do we have a fair use concept in copyright and not one in patent? Copyright is automatic, no notice, and no registration so we want to have a safety valve. There is a notion that promoting a progress means defending the public’s right to use and access the work. Fair use helps to protect the right of public access. We administer the patent system to a much higher degree – it is easier to check than it is in a copyright instance. There is no examination in copyright, which means fair use is a safety valve for lack of administration. We want to make it easier for people to create creative works and we don’t want the government to disturb that. It creates a system of non-perfect enforcement – helps us to create a system that allows the public to use, access, and create but balance out the author’s right in the creation.

Long duration of copyright terms – it goes on a long time. Part of what fair use does is it allows the re-uses of the work in certain instances. Would the reasonable copyright owner have consented to this use? The 1^st amendment is the quintessential justification behind fair use. It is the 1^st amendment safety valve – protect the rights of free expression. Two constitutional clauses – 1^st amendment and copyright. One provision says that in order to promote science and useful arts, we will give people monopoly rights and the ability to control reproduction and distribution of those stories. The problem is that it infringes on others to tell their stories. It creates a limitation on the form of expression that the next person down the line is able to use. From a democratic standpoint, we don’t want to limit someone’s right to speak. The defense is not clearly defined, it often has to be argued in court, but we are seeing new challenges every day and these challenges are popping up because of new technology. 

harper and row, inc v. nation enterprises
471 U.S. 439 (1985)(full-text).

Factual Background

-         Can fair use apply as a defense in the case of an unpublished work?

-         Can fair use apply as a defense

-         Which trumps: The Nation’s 1st Amendment argument of the right to engage in news reporting or Harper’s argument that it has a copyright of the manuscript and it has a right to control the reproduction and distribution of the text of the copyrighted work?

Facts: The Nation magazine published excerpts from Gerald Ford’s autobiography before Time magazine published it. This led Time to cancel its agreement with Harper & Row that it would purchase the exclusive right to publish excerpts of the autobiography. Harper & Row sued The Nation and The Nation argued fair use. It was not about writing an article about the book. It was quotes from the book and includes paraphrasing and facts from the work. It includes a lot of verbatim text from the book – it is portions of the book itself. What copyrights are allegedly being infringed here? The right to make copies and the right to distribute. Time has bought serial rights – right to make the magazine story and this has been scooped out from under them. Time cancels its agreement with Harper and it is out over $12,000 but they are concerned they lost more than that. Harper sues the Nation for copyright infringement. They win and it goes up on appeal and the decision is reversed and it goes up to the Supreme Court who side with Harper & Row.

What is the essence of the Court’s holding? Why does the Court ultimately decide that this use is not a fair use? It takes away their right to control how it’s going to be public, how it’s going to be disseminated for the first time. This behavior robs the author of the control of where and when this work is going to be made public. It benefits the author and public when the author is assured of the leisure time to develop their ideas free from fear of expropriation. Control arguments outweigh a defense of fair use when it takes away basic control rights of the author. In this case, we are dealing with an unpublished work and the issues of control become much more public and the scope of fair use is narrower of unpublished work. People would not write memoirs if they are afraid people are going to steal the memoir before it’s finished.

What does the defense argue? The defense says this is a news story. We have the right to report the facts of Nixon’s pardon and/or the assassination of President Kennedy. We are not dealing with just anybody but the former president of the US and we have a free speech right. How does the courts balance these competing rights? The classic Fair Use Test (MUST MEMORIZE TEST AND APPLY FACTORS!!)

Fair Use Test

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes – what was the work used for? Is the goal to supplant or replace the copyright holder’s right? Courts will talk about work being transformative – if the work simply repeats and simply supplants the original work, there is less likelihood of finding fair use. If it is different in character, there is a higher finding of fair use.
2. The nature of the copyrighted work – is it fact or fiction? The more factual it is, the weaker the copyright, the greater the likelihood of finding fair use. The more fictional, the less likelihood of finding fair use
3. The amount and substantially of the portion used in relation to the copyrighted work as a whole – how much of the work did you take? Did you copy the whole book – less finding of fair use. Not just a question of pure quantity. Did you take the heart of the work, the best of, the classic scenes? Or did you take something tangential or minor?
4. The effect of the use upon the potential market for or value of the copyrighted work – it has to not impair the market for the work or the market for the creation of derivative works, or markets into which the copyright owner is likely to enter.

How do you determine what is the potential market? There is no clear answer to this question. The 4^th factor is really a vague rule.

Purpose of the Use

-         What was the nature of the use? Here, The Nation says the nature of the use is news reporting. Court says this went beyond simply reporting to exploit the headline value of its infringement.

-         Was it commercial? Yes, they are selling magazines. The crux of this question is not whether the main motive was to profit but whether the intended purpose was to supplant the copyright holder’s commercially valuable right of first publication. When the commercial use is aimed at depriving the copyright owner of an economic right, it weighs against finding a fair use

-         Was there good faith and fair dealing? No, there is a purloined secret manuscript. In the Court’s interpretation, a purloined manuscript weighs against a finding of fair use

Nature of the Work

-         What was the work at issue? It is an unpublished, historical narrative. It’s an autobiography and very factual. Fair use as a defense favors fact over fantasy. We tend to view factual narratives as fair use. Fair use is applicable to facts over fiction.

-         What was the nature of the material copied? Is it the dates and figures and statistics? No, it is descriptions and portraits of public figures. The court says this power lies in the author’s individualized expression. This weighs against The Nation. If they had taken only the facts, this would have been fair use. But they took the most expressive elements. Would this case have come out differently if they published this article 2 weeks after the Times story? If they were using this for a transformative use, it is not simply news reporting but they are adding some extra commentary from the cleaning lady who was there, etc. It is no longer depriving the author of the valuable pre-publication right that is at issue here. They were done for the reason for engaging in commentary. What if instead of having published this manuscript when it did, Ford had sat on the manuscript for 20 years and he dies and the estate decides to release his story? Would it have changed anything?

Amount and Substantiality of the Portion Use

-         In absolute terms? How much of the work as a percentage of the whole was taken? It only took 1% of the language of the book as a whole. This favors The Nation.

-         Qualitative Nature? The court found they took the heart of the work – the most powerful expressive passages. This weighs against the Nation

-         Role in the Infringing Work – 13% of the new work is built around these passages and is the focal point – this is central – if you got rid of the 13%, this would not be the same works. This weighs against the Nation

Book reviews – you copy the most expressive language. It is ok as long as it doesn’t supplant the author’s right of first publication.

Effect on the Market

-         Impairment of marketability? Whether there has been a material impairment of marketability? In this case, the contract with Time has been canceled and it has a material impairment on the right to sell serial rights. The Nation article may promote book sales in the market for the work.

-         If it became widespread practice? Should the practice become widespread, would it adversely impact? We look to harm to the market of original and derivative work. There is direct competition by the defense for a share of the market for pre-publication excerpts – Court says we don’t like this as a widespread practice and on balance, taking all these factors together, the Court finds against The Nation and against a finding of fair use.

 

Purpose

-         nature of the use: news reporting

-         commercial: yes. Is sole purpose to supplant copyright holders comerically valuable right of first publication.

-         good faith n fair dealing? No …

-         it exploited headline value

-         so purpose: against finding of fairu use

Nature

-         work is unpublished historical narrative

-         autobiographical facts

-         weighs for fair use

-         whats copied? Dates figures stats? No descriptions eetc. And these are the authors..favors against use of fair use

-         overall against fair use

Amount and substantiality

-         how much of work as % of whole taken

-         here only 1% taken? In favor of fair use

-         qualitative: took heart of it. So against fair se

-         role: 13% of new work is built as focal point. Its central to new work…this percent is against faiur use. The 1% is central to their new work.

-         So book reviews : are okay.

Effect of market

-         had material impairment on K that was cancelled

-         if its widespread would it adversely impact? Larger picture on derivative works effect..direct competition by defense for share of market for pre pbulciation excerpts.

 
The Nation magazine clandestinely obtained the unpublished memoirs of former President Gerald Ford just before Time Magazine had scheduled a story about the book. The Nation quickly published an article focusing on Ford’s revelations about his pardon of Richard Nixon. Time canceled its story and did not pay the memoir publisher, Harper & Row, $12,500 due under the exclusive license. The Nation did not dispute that its verbatim copying of Ford’s “original language totaling between 300-400 words and constituting some 13% of The Nation article” “would constitute infringement unless excused for fair use.”^[1]

U.S. Supreme Court Proceedings

The Supreme Court first found that “the unpublished nature of a work is a key, though not necessarily determinative, factor tending to negate a defense of fair use,”^[2] and that “[u]nder ordinary circumstances, the author’s right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use.”^[3] The Court also refused to expand either the first amendment protections inherent in the idea-expression dichotomy, or the fair-use doctrine, to include “a public figure exception to copyright.”^[4]
Finally, the Court turned to the four fair use factors and resolved every factor against The Nation:

1. Purpose and character of use — Although The Nation’s use of Ford’s work was news, it also was for profit, was intended to supplant other news stories, and was based on knowing exploitation of a purloined work. a. purpose - news reporting, teaching and comment ... but commercial use doesn't fit the bill b. character - the news isn't that ford pardoned nixon, it's ford's words about why he pardoned nixon... this is something different than straight news reporting that may be something that CR may be created to protect but if purpose is defined too broadly then there would be no such thing as fair use because everything can fall into the general category of purpose.

2. Nature of the work — The memoir was essentially facts and “the law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy,” but Ford’s work was also unpublished and this was “key.” a. the right to make the first copy is the right to make copies/reproduce. is the right to make the 1000th copy different than the right to make the first copy?  yes: distribution is an important right as well, and so we care that the way a copy is released can have an effect on the market

3. The amount and substantiality of the use — The district court held that The Nation took what was essentially “the heart of Ford’s book.” a. 

4. Effect on the market — “[T]he single most important element of fair use,”^[5] also goes against The Nation, particularly because of damages (actual and potential) to serialization rights.

how is SCOTUS describing reasonableness? "a reasonable copyright owner"

Sony Corporation of America. v. Universal City Studios, Inc., 464 U.S. 417 (1984)

            Facts: Sony developed Betamax, a video tape recording format (VTR), that allowed consumers to tape copyrighted televised programs. Universal Studios and Walt Disney sued Sony, alleging that because Sony was manufacturing a device that could potentially be used for copyright infringement, they were liable for any infringement that was committed by its purchasers (contributory infringement). District Court ruled for Sony, on the grounds that non-commercial home use recording was considered fair use. The Court of Appeals 9^th Circuit reversed in part, finding Sony liable for contributory infringement.

            Issue: Was Sony, in supplying Betamax to consumers, liable to Universal and Disney for contributory infringement by aiding the public to infringe copyrighted material?

            Holding: No. The Supreme Court reversed the Court of Appeals decision.

            Reasoning: The Court borrows from patent law to create a standard for copyright. It states, “But in both areas the contributory infringement doctrine is grounded on the recognition that adequate protection of a monopoly may require the courts to look beyond actual duplication of a device or publication to the products or activities that make such duplication possible. The staple article of commerce doctrine must strike a balance between the copyright holder’s legitimate demand for effective – not merely symbolic – protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial non-infringing uses.”

            “[The court found that a substantial portion of the public’s use of the VCRs did not implicate copyright at all, and also that the most common use – time-shifting – was a fair use]… The Betamax is, therefore, capable of substantial non-infringing uses. Sony’s sale of such equipment to the general public does not constitute contributory infringement of respondent’s copyrights.”

campbell v. acuff-rose
2liveCRew's reps contacted roy orbisons' reps and asked, "we'd like to use the song pretty woman. may we?" 
summ judg for 2liveCrew.
6th circuit overruled, and said commercial use overrules fair use.
now at SCOTUS - is there a fair use defense?
1. purpose and character of use
2. nature
3. substantiability
4. effect on the market

Campbell v. Acuff-Rose Music Inc.

* More fair use analysis to figure out whether there is an infringement 

• Concerns another area of fair use different from what we’ve talked about – the idea of parody
• Another form of speech which we wish to protect for first amendment reasons but also a part of market failure that if we didn’t create a valve then it would be a mess
• What happens here…?
  • Roy Orbison writes and records “Oh pretty woman” and assigns the rights to Acuff who registers the CR. They then become the litigant in the case
  • 2 live crew writes a wrap song called “pretty woman”
  • They contact Acuff and offer to pay a royalty
  • Acuff refuses
  • 2 Live Crew releases the album anyway and sells lots of albums
  • 2 Live Crew doesn’t claim a cover license which would mean that they could have gotten a compulsory license and just paid a fee.  They say look we have a right to cover the song but they don’t do it. But, to be a cover, they have to copy the song in essentially the same way and instead they make a derivative work here and so they change the strategy and argue fair use in defense.
  • On appeal, 6^th circuit says this is blatantly commercial use here and they are doing it to make a buck and that the blatant commercial purpose prevents the parody for being fair use
  • What public interest fair use should be allowed? As a matter of public policy, what should be allowed? What sorts of uses should be allowed?
  • Supreme Court does:
    • Factor 1: What is the purpose/nature of the use here?
      • 2 questions – was it commercial or not for profit/educational use?
        • Here it is commercial but it’s a parody and there is a distinction between satire and parody. To be a parody u have to use some elements of the prior authors work to create a work to at least in part comments on the original authors work. VERSUS
        • Satire – used to critique the work itself – here not the case
        • Presumption of fair use is reduced but commercial vs non commercial is not itself dispositive. Not focused on non profit vs profit but more so on the nature of the use.
        • Sliding scale – balance the facts is it heavily commercial and the nature of the use
        • No one given use that is presumptively fair use – we must balance the inquiry and the nature and character of the use weighs in favor of fair use.
    • Factor 2: Was it transformative?
      • Does it always have to be transformative to be fair use? NO.  Ex. Educational/scientific research would be ok. But, there is a much stronger finding of fair use when we look for and find a transformation of the original work that is new and different and essentially serves a different purpose.
      • Complicated slightly the fact that the determination that what constitutes a transformative parody (commenting on the old work) does begin to get the court into aesthetic judgments
      • What is parodic is a tricky area but again, there is a sense of for social reasons, we should protect parody otherwise no CR owner would let.
      • So, what is the nature of the material copied? Fact v. Fiction. Fact in favor of fair use. Fiction, not so much.
      • Here, the song is expressive and therefore fiction. The nature of the material copied is expressive and the factor in this case is not much help in determining fair use v. infringer
      • Where doe we fall on the line between idea and expression? Is it highly expression or pushes more towards the idea (original to the author)
      • Public interest rationales for allowing the use of certain types of work
      • Public interest rationals like parody that allow for the certain use of types of work
      • CR in expressive work (more expressive work, more CR), we would allow for fair use in the realm of fantasy as in realm of fact

• Factor 3:
  • Take away – extent of permissible copying varies with the nature of the work – parody is more permissible
  • Have to figure out how the new work factors into the old work
  • Not just that copies of the journal articles were made
  • Not that someone took passages from somewhere but that how they are used in the next work – what role they play nad how necessary
  • Parodies art lies in the tension between the known original and the parodic town. If they cant recognize the original then its not a parody. More is permissible here than in a reporting context
  • Market failure argument – authors are not going to consent to certain copying (authors wont contest to being ridiculed) no market place fix to this…no amt that anyone will let u pay
  • So the law steps in and allows for the copying.
  • Market failure would be Acuff saying NO! you cant have the song

Factor 4

• No evidence that the parody killed the market place for the original
• What abt market for derivative works? And widespread practice?
• Derivative market for rap music also has to be looked at…so they send it back down to plug the evidentiary hole
• Have to always ask what is the harm to the market to the original and what is the harm to the market for the new work? What would happen if we let everyone out to make parodies?
  • If there is a market, it needs to be protected (licensing and CR-ing)
  • Tricky part is that suppression of the market is not the same as usurpation. Ex. If you write a bad review of a book and suppress the market is not the same s taking away their market. If you’ve written a book review, you have not tried to sell the original book. Creating a parody maybe u suppress the market for the original but you didn’t kill it totally.
  • We are asking ourselves here whether the infringer in this case essentially stealing a commercial opportunity from an original copying owner and do we see a need to protect for certain social purposes and first amendment purposes and do we see a need to actually protect the market for the original.

biz org class 19

Form S-1 - SEC registration statement

avoiding security registration:
the process is very expensive so there will likely be an argument that its not a security or that it's a private placement offering (an exemption) - there are many exemptions under 1933 act.
first should look at the instrument and determine if its actually a security. becuase if there is then the offering must be registered under s.5 of the 1933 act. if it should be but isn't registered, there will be civil liability under s.12.

doran v. petroleum:
if you offer securities to just a handful of sophisticated people, you may have a private offering.
doran is both an offeree and purchaser. the company's argument is that not only was doran sophisticated, he also had access to information that a person might get from a form S-1 and therefore he didn't need the protection of registration. the court rejected the argument. why? because the company has to determine sophistication in regard to not only the handful of purchasers, but in regards to public offering that happened with respect to all offerees.

what are the arguments and provisions per the 33 ACT?
s. 5 -- requires registration of securities.
whenever s.5 is violated, there's cause of action for recovery, civil liability under s.12
s. 4(2) -- private placement exemption states that a small offering for small money is potentially exempt

the lower court said that this was a private placement because doran had sophisticated knowledge.

4 factors:
1. offerees (number, level of sophistication and access to assess and evaluate the offered securities, relationship between offerees)
2. number of units
3. size of offering
4. manner of offering

escott v. barchris

the document at issue is the registration statement: the statement was filed at the same time the company was going bankrupt and omitted and affirmatively changed and misstated misinformation.
was the statement misleading?
if so, who is liable? anyone who signs the statement including directors, experts who prepared the doc, and also underwriters of the debentures.

what this case clarifies is the identity of the experts. if we say that experts are potentially liable then we have to be clear of who those parties are. in escott v. barchris there's three examples of experts: accountants, appraisers and engineers. what about lawyers?
escott says that they're not.
but why did the defendants argue that the lawyers were experts? what argument did the court reject?
the court says that the only portion that experts prepared is the "expertised portion" prepared by the accountants

due diligence defense, s. 11 of 1933 Act. the burden of proving this for non-experts with respect with the expertised portion is low, and just have to show that counsel did due diligence. barchris is strictly liable and cannot defend against that, but the other parties have responsibilities of due diligence and that defense is available to barchris.

due diligence defense standard for non-experts for the non-expertised portion of the statement.
1. establish reasonable investigation
2. reasonable grounds
3. believed the statement was true

the expert accountants are only responsible for hte expertised portion. their defense is basically the same as the other defendants with respect to the docs that they prepared:
1. had reasonable grounds to believe the statements provided were true
2. reaosnable investigation
3. believed the statements provided were true

but now with respect to the expertised portion, what's the defense for non-experts? they don't have to show reasonable investigation - instead they get to rely on the experts' info and opinion.

proRo class 19

bus company that hit the woman is owned by a parent company that is your client. turns out no one has done any work for the subsidiary. the parent co is responsible for insurance coverage and indirectly responsible for any insurance liabilities and premiums the sub needs to pay and the general counsel of parent co is the dad of the top dog at the bus company and in fact the bus co has numerous instances where there's been mismanagement. parent counsel has insisted that the bus company increase its insurance as a result.

what
assume the bus company is not a client. what potential conflicts still exist?

litigation strategy - if GC finds out that its own representative firm finds out that the firm wants to sue a parent or sub company, will probably find it to be an act of extreme disloyalty. do you think it will be best to withdraw? you can under rule 1.16. but you will still owe a duty to the woman under 1.9. the woman can then say, whoa! you can't represent the bus company - you're my former attorney!!

N.B. more judicial ethics is on the MPRE than in this class

ABA's code of conduct is the most influential doc on judicial ethics. it's a kind of template for codes throughout the country and for federal court. just like the model rules for lawyers, the model code is just a model and individual jurisdictions do their own rules and have their own disciplinary committees.

two issues - CONFLICT and BIAS

rule 2.11: if his/her impartiality may be questioned, then .... requires a neutral observer.

see the Bush v. Gore conflict question: the "money coming into the pocket book" rule is pretty standard. usually expect that there should be a monetary gain. but there's also an argument that pure financial gain shouldn't be the deciding factor, because there are non-monetary incentives for people's behavior as well.

the more mrs. thomas focuses and disseminates information that has a particular adversarial bent, is she not infringing on the impartiality of the judiciary? is this an infringement to freedom of speech? how far will we allow this to go (DG says, a one step removal)? 

DG thinks it's an important point to note that spouses in the modern age don't have to have the same political bent as their husbands.

judge was a trustee of loyola but wasn't aware that there were extracontractual relationship with regards to a piece of real estate. the judge rendered decision in favor of the real estate contractor in a different case, and the results of the case "grease the skids" with respect to loyola. the judge doesn't know any of this at the time of ruling and rules for the real estate contractor. before the ruling was issued, brought this up.

this is the RECUSAL STATUTE. this case is in the scope of s.455(a) "judge must excuse himself where his impartiality may reasonably be questioned"

is this too rough of a standard? is there a sense of lying and/or impropriety?

the issue isn't of the outcome of this case. the problem is with legitimacy and preventing future injustice.

judicial ethics rule 2.11 requires recusal where the judge "while a judge/candidate has made a public statement other than a court proceeding or opinion that commits or appears to commit the judge to reach a particular result in the proceeding controversy"

for example, let's say the judge makes a statement "if elected i will impose the death penalty on anyone convicted of 1st deg murder"

for example, "if elected i will impose the death penalty on anyone convicted of 1st deg murder if he deserves it "

for example, "i support marriage equality"

scalia: "there's a problem with the homosexual agenda"
sotomayor: "any wise latina having had her culture's men shipped to prison in droves, would limit expansive reading of 2nd amendment"

should it make a difference if the comments are said publicly or in a private context?

do we want judges to do this? as litigants, we like this because we can direct our motions towards the ideas that we want to sway reachable justices.

READ THE JUDICIAL CANON Rule 2.11, 3.3 - 3.6

Rule 3.6 - no invidious discrimination

for example, if a judge is a member of a club that only admits men, must he resign that club?
if a judge is a member of an italian-american lawyers guild, must he resign?
if a judge is a member of a club for ex-marines, does he have to withdraw because the military has a DODT policy?
or, does the judge not have to withdraw before the dist ct gave its opinion, but now that the decision has been handed down, does s/he have to withdraw?
does a judge have to withdraw from the roman catholic church because it discriminates against the hiring of women as priest?
does a judge have to withdraw from an organization that discriminates on the basis of religion?

** must be invidious discrimination, not any kind of celebration **

ADR class 9

opening statement - typical mistakes:
1. race through the opening too quickly. remember that you're dealing with people who have come to you for help, you want to make eye contact and speak deliberately and cover all the topics.
a. remind everyone that he was the mediator selected and that they are co-authors of the process.
b. a few words about my process as a mediator - i'm not a judge or arbitrator and i have no power to mandate any judgments. you won't have a decision handed down from the mountain top here.
c. my job is to help you to resolve your situation yourselves so you will have no need for arb or court.
d. this process is informal. there's no procedural requirements except for common courtesy. and our mediation will be differnt from litigation also, because we will try to move away from the adversarial positions you have to take in court, and see if your real underlying needs can be better met and better served in some way other than a continuing lawsuit.
e. i have no power to decide or annex anything. i can only report to the court that the issue has/not been resolved.
f. we'll begin by asking each side what s/he thinks the case is about and we'll go from there. at some point, we'll break for court recess, and i'll speak to each side independently. when i meet with you, i will help you identify the strenghts and weaknesses of your case as well as the sterngths and weaknesses of the otehr party's case.
g. if you tell me something in a sepaarte session that you want kept confident, you can tell me, just let me know that it must be kept in confidence.
h. since the claimant brought us here, i'll ask him to speak first... or you could ask them to flip a coin, etc.

prof. mollen's checklist:
1. if you want, we can go through together. then we're going to break into separate rooms.
2. we're gonna order lunch in so we don't need extra time. there's facilities down the hall. we want you to be comfortable.
3. i emphasize confidentiality, and anything said to me remains confidential
4. we're going to treat each other with civility and respect and it will be a meaningful discussion.
5. any questions

bitter separation between parties. wife took the 13-year old child to GA. husband wants the child returned. will pay for college but only if in a 2-hr drive from NYC. also is concerned that kid is not doing well in school. wife doesn't want to return the child, she wants favorable property settlement, she wants college unrestricted, she thinks change of environment will adversely affect the kid.

wife.

nothing to submit.

presentation should be like most of class period.

biz org class 18

Dodd Frank Act

SOX Act

the 1933 and 1934 Acts - responses to the Great Depression: in the early 1930's the country was in a depression and it's not clear if the market crash caused the depression but it was clear that it's easy for the populace view to blame Wall Street for everything. the response was the executive response (SOX response to Enron, Dodd Frank to the risky Wall St trading, the Roosevelt responses as seen in Jones v. Harris.

33 Act is about disclosure: companies have to disclose information about their business and capital structure. they engage in the disclosure by filing an S-1 form with SEC. this form is drafted by accountants and lawyers together, and is filed and inside the form is a doc called the prospectus, which is a shorter document that is given to potential shareholders and contains info about the company. shareholders will decide whether to invest based on the prospectus

some state laws do prohibit risky ventures. some ventures like apple were procluded by state law. but under federal law, risky offerings aren't prohibited. all the info needed about the company so that the investor can make an informed decision: that's the goal of the Act is to create the info so that investors can make informed decisions. also, it's to help companies raise capital under the 33 and 34 acts. but the primary goal is to give investors the information they need.

primary market: sale of securities from the primary market.



about both disclosure and regulations.

see section 2.1 of 1933 Act: laundry list of items that are considered to be included in definition of securities. this continues

LLCs: an unincorporated business structure which combines favorable tax treatment of partnerships with the limited liability of a corporation.
- more flexibility of management than either a corp or GP
- members
- operating agreement is a contract that governs organization, structure and management

what if you're dealing with an interest that is not a stock option? what if you're dealing with an investment instrument of a different kind?

robinson v. glynn doesn't involve a corporation, it involves an LLC. as a member of an LLC, you have the same status as a shareholder in a corporation because you are shielded from personal liability.glenn made misrepresentations of giaphone technologies when he sold the phone to robinson, but the trial court gave summary judgment to glenn. why???not called stock, doesn't have characteristics of stock,

is there a transaction underwhich a person invested money?
is there an investment of money in a common enterprise?
is there an investment where investor expected profits to be derived from the (significant) efforts of others (that would make the venture a success or failure)?

common enterprise requirement: idea that there's a pooling of interest and investment for a common enterprise, as opposed to a single investor who invests in a kind of scheme or something.

is an investor passive ro active?
if active, doesn't need the protection of federal securities laws. has all the information required because of participation in the management of the business. but if passive investor, do need the protection.

general partnerships are not investment contracts because you're becoming a partner so you don't need a protection from S-1 registration because you have that information directly. as a limited partner, you don't have any right ot participate in management, and so it is an investment contract and therefore it is a security for S-1 protection.

commercial arbitration class 9

see notes in chapt 4.

case review of shaffer

case review of cole

armandariz: most important thing out of this type of case is that where there is an overt attempt to exclude remedies that would/should be available by statute, it is unlawful to use arbitration to exclude a remedy that is available by statute (for example,  attorney fees, limit remedy in a reinstatement employee case, recovery of backpay, emotional injury)

"only can pay type of expenses an employee would have to pay in court" - very limited and strict

have tried to set up in a jurisdiction that is not well known, like the floss case. the EE agree to bring their cases to this tribunal and the ER would be a 3dPB. usually tehse types of tribunals would not have the kind of protective policies that FINRA and AAA have.

due process protocol for EE/ER arb: joint work of the ABA and the AAA. ducks the issue of whether EEs should be held to mandatory arb of certain claims. but do discuss arb, keeping fees down, discovery, depositions (which the AAA actually didn't have anything about), neutral roster of trained arbitrators who know and are bound by applicable statutes

previously, in our study there was no duty to comply with the law. but still there's only limited judicial review, so there's still not a full adherence requirement to the law. arbitrators *should* apply the statutes at issue.

as we'll see it's not very thorough. but review the data, taht work place discrimination doesn't fair better or worse in or out of court than in arbitration.

MONDAY NOV 22 - review with arely!!!!!!

proRo class 18

there is a fedex accident involving a driver. att interviews everyone privy to the accident. is a conversation between the corp and the worker protected under att-cli privilege?

the client is the company, not the driver. individual employees are not the entitites who can waive privilege.

upjohn.
pharma manufacturer who finds out that the subs may have paid off forgein gov'ts to obtain biz. upjohn investigates with a questionaire to collect info about practices. managers are instructed by GC that the answers are "completely confidential" and the responses are sent under that assumption to GC. upjohn submits a report to the SEC which discloses the questionable practices totalling $4.1mill. the IRS wants to see questionaires, memos, notes, info, etc. upjohn says NO - att/cli. "only for indivs at level of company (diretors) with responsibility for legal advice" CONTROL GROUP TEST

the CONTROL GROUP TEST reads the scope of att-cli narrowly.

instead, SCOTUS uses the subject matter test:

what about rhenquist's argument?
corps have all kinds of methods to induce employees to tell them what they know. why is this the CJ's argument - do we really think it's true that corps need the att-cli priv to get info from EE?

att-cli: the privilege belongs to the COMPANY.

if senior exec decide that it's important to reveal EE info to a 3d party, EE has no right to object: therefore, an EE who was more open with GC, in the expectation that his comments would be confidential, is a mistaken EE and can get squeezed by the company. caught between wanting to please/not wanting to be fired, and being nervous about what will/won't be disclosed to others and what power and control they would have over disclosure.

do you think that corp officers would support a broader att-cli for some other reason? to shield information from other outside parties, protect more work-product,

samaritan.
asking legal advice -- that's under att-cli
but notice that even when the EE is asking, an EE who merely witnesses an event and approaches counsel, this is not att-cli protected because it's factual evidence presented to counsel. the inquiry must be made to assist the counsel to assist the legal needs of the corp client. NARROW READING OF THE UPJOHN DECISION

back to fedex example: let's say EE went to counsel and reported... that would not be covered under att-cli

remember Nissig rule 1.4(2) issue, and NYS interpretation...

if you read upjohn broadly, you also think in Nissig that all employees of a corp should be considered agents of the client for purposes of the no-contact rule, then the ability of opponents of the corp to get info is seriously impaired because you're constructing a rule around the corp

the AZ legislature essentially overruled the case because you have created additional liabilityprotection around the company

Rule 1.13(a) - basic conflict of interest rule dealing with corporations, that the client is the organization
Rule 1.13(b) - if you're an att for an org and you know that an associate is either engaged in/intents to/refuses to act in a way that is a violation of law that can reasonably be imputed to the org, you as att should proceed in way that is best interest of the corp.... what does that mean?
additionally, unless you as att think it's necessary in best interest of org, then you must refer the matter to a higher/highest authority that can act on the orgs behalf.

what should you be considering? see comment (4)
-
-
- policies of org
- any other relevant consideration
- ordinarily referral would be necessary

Rule 1.13(c) is two part test:
1. if highest auth insists on doing act/failing to do in timely manner and
2. att reasonably believes the violation is reasonably certain to result in substantial injury to the org,
then att may reveal info related to rep to anyone (such as gov't prosecutors, etc)

whether or not Rule 1.6 allows this disclosure and Rule 1.13(b) is reporting up, Rule 1.13(c) is reporting out... this rule is like an additional exception to Rule 1.6(b), when it is permissible to disclose confidences.


Rule 1.13(d) says that 1.13(c) is not applicable with respect to information relating to the lawyer's representation of investigating/defending against allegation of violation of law.... don't report out under Rule 1.13(c) if you were higher specifically for investigating or defending against illegal conduct. why??? because that would defeat the very purpose of hiring you

Rule 1.13(e) what happens if you're fired or you withdraw? you must proceed as you deem reasonably necessary so that the org is informed of the facts of your discharge/withdrawal... very noncommital

Rule 1.13(f) - what should you do if you know that the interests of an org's constituent members conflict with that of the org itself? you have an affirmative obligation to explain to the constituents that the org is the client if there is this confusion

Rule 1.13(g) - allows the att to also rep an indiv assoc with the org so long as there's no 1.7 conflicts, so you have to go through the 1.7 analysis. it's like 1.13(g) goes over 1.7

you know that someone plans to do something to harm the corporation.
1. under comment 4, you see that the "get them to stop" option is available, if it's the result of a mistake or error.
but generally, if step 1 doesn't work
2. proceed in a way that is in the best interest of the corp, by reporting up the corp ladder. if that doesn't work,
3. you can disclose under Rule 1.13(c)

tekni-plex.
a corp with 18 shareholders. over time, tang becomes the sole shareholder and ceo.
M&L has represented techni for 23 years, with respect to various enviornmental issues, investigations by the state, etc.
tang plans to sell the company. acquisition is created by a different firm with the sole purpose of creating new techniplex. tang sells to acquisition for $43mill. techniplex merges into acquisition. the agreement contains certain warranties about the compliance of the company, and says that if all's not up to snuff, you can go after the shareholder. tang retains M&L to represent him in arbitration against the buyer, who also wants to retain M&L. the buyer says NO, tang shouldn't be able to use M&L. buyer also wants M&L to turnover all docs that belong to old techni.

issues: can the firm be disqualified for long term client conflict? and does att-cli pass to new management when control of the corp passes to new management?

attorney client privilege goest to new company.

grand jury subpoena. 

IP class 9

sweat works - we're not giving copyright protection to things that are works of discovery and sweat equity. with sweat works, there are costs associated with giving copyright create situations that society wants to avoid.

ideas, concepts under 102(b) - like facts, ideas are in the public domain (baker v. selden)

forms themselves might be the ideas, or forms of the idea that can be protectable because the idea is susceptible to so few forums (morrissey v. proctor and gamble) such that the idea and the item merge.

channeling rights: channel rights of intellectual effort from one system to another (brandir). why?

to avoid issues where a useful invention could have super long 70+ patent gained through copy right. we dont' want that.

brandir: what do we do with something like this??? it's both artistic and useful.

copyright protects original expression. how does the understanding of copyright play into our understanding of how we deal with something like this?
- we take the creator's intention into consideration, and we take the public perception into consideration.

what are we using copyright to achieve? if the reward is the subject of the inquiry, then we should ask the creator and determine if that's the type of conduct that the copyright is right to take for whther an article is a useful article.

if we're looking to whether something is copyrightable or not, what state of mind will be sufficient to put the item into the copyright system and how sufficient to put it towards utility.

how else may we satisfy the issue between the creativity and the usefulness? does judge winter's suggestion help?

distinguishing between pictoral, graphic, literal work and useful article: conceptual separability...
"if design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separble from the utilitarian elements. conversely, where design elements can be identified as reflecting the deigner's artistic judgment exercised independently of functional influences, conceptual separability exists."

looks at the subjective intention of the designer during creation. winter says that we should think of it only by the public view and idea of how to use it.

Rights of Copyright Owners: 17 USC s.106

"the owner of copyright... has the exclusive rights to do and to authorize any of the following:

1. to reproduce the copyrighted work...

2. to prepare derivative works based on the work;

Reproduction Right: Arnstein v. Porter

independent creation can be a defense in copyright, unlike in patent law where it's not. however, in

steps of analysis
1. copying
2. unlawful appropriation

difficulty of proof: tin pan alley music will likely have some quantum of similarity, and so it may be difficult to blur the first and second elements of the test

what would constitute proof of copying?
porter saying i copied.

what proves that there wasn't copying?
- proof of access: if there was no way that porter could hear the song, he couldn't have copied it
- proof of similarity: if there's no similarity, then there's no copying even if there's access
- it's a sliding scale: where both of the elements may be present, there's a question of fact of whether one or both of these were present, and how comprehensive the elements were.

once something is made publicly available then there's public access. arnstein had published. so there's then a different level of proof of access. so would the level of similarity displayed ever justify a finding of infringment?

who's point of view are we looking at? the creator, the public, the expert of the field, the audience, people generally??

dangers with infringment doctrines that are based on less than wholesale literal copying...

maybe the issue is that both creativity and copying work in subtle ways.

maybe the public's opinion and interpretation shouldn't be the issue of copyright law. there's a concern for the autonomy of the process of creation for the underlying policies of how we want our copyright system to work.

so what's improper appropriation?
we're thinking from the ears of the lay person who might be a consumer of the work, where there's a particular member of a particular audience

distinctions between the prongs: the copying test
improper appropriation has to do with what is the needs and interests of the market place and society, and the innovation that feeds into the market.

Test for Copyright Infringement

 

Is there actual copying?

      Direct evidence (admission) or

      Circumstantial evidence

Was there access to the work?

Was there an opportunity to copy?

If evidence of access is absent, are the similarities so striking as to preclude possibility that ∏ and ∆ independently arrived at same result?

Is there enough similarity b/w works to infer that there might have been access?

If there are no similarities, no amount of evidence of access will suffice to prove copying.

Is there improper appropriation? 

"Ordinary lay hearer test": What we care about is whether the person who bought the original record bought the replacement instead.

nichols v. universal pictures
is the thing copied something that we as the public are concerned about?

an idea--discretion dichotomy: see baker v. selden. exclusive rights to the "useful art" is only available by patent; the description or expression itself is protectable by copyright. once we say that there's something that can be copyrighted, there's a scope of ideas.

creation from a 30,000 foot view of the structural issues isn't engaging a scope of ideas, but instead just increasing the distance between the specific and the archetype. it's just a new perspective on stock characters.

copyright is of the expressions and not of an abstract idea.... there's certain archetypes that allowing copyright would foreclose the whole point of property protection of ideas, because they're so much a part of our social conscious and lexicon that they are essentially public domain.

how do we know what that level is, at which there is a distinction?

there's not really an opportunity for a bright line rule...
what is the law of this area of copyright? is there any?
-- a possible solution could be evidence of how the market is impressed by the plaintiff and defendant's works comparatively

but still, what would this prove towards a level of abstraction?
-- the virtual identity test: the stronger the archtype/ the more broad the concept/ the more basic the structure, we'll require more proof that the idea was literally taken by the defendant

the takeaway: how slippery the infringement analysis is....

right to prepare derivative works

- 17 USC s.101: a work based on one of more pre-existing works.
- 17 USC s.103(a): protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully
 

anderson v. stallone: a preparation of a derivative rocky movie is under the copyright of the original. stallone has the exclusive right to prepare derivative works of rocky. anderson created a derivative work based on the characters and storyline of rocky.

17 USC 103(a): anderson can't recover if it's found he was infringing in the first place...

see p.505 -- difference between derivative works and compilations

gives the right for not only the work but also for anyone who wants to build on that work.

and another new problem that there's derivatives and arrangements/compilations....

IP class 8

review of patents (see slide)

patentability
- subject matter
- enablement
- utility
- novelty
- nonobviousness

should be reviewed by PTO in order


infringment/ rights of patentees
- claim construction (metes and bounds, scope of the monopoly rights)
- literal infringment (for each element of patentability, ether literally or by...)
- doctrine of equivalents (estoppel and XX)


remedies to protect the rights of patentees
- injunctive relief (not forgone conclusion. an equitable balancing test must be done to see if injunctive relief is the appropriate remedy. "patent trolls" are a concern too. even if injunctive relief isn't available,
- damages must be available to compensate the patentee for infringment. damages can include loss of profits (difficult) but usual a "reasonable royalty" to reflect what we think the two parties in negotiation would have arrived at in an agreement
- willful infringment: there may be punitive damages imposed.


defenses to claims of infringment
- experimental use: moribund defense that doesn't carry much weight
- inequitable conduct: if you withhold/ provide false info to PTO then your patent is invalidated so it's not just an individual's defense
- patent misuse: attempts to deal with the problem with where the market can confer power on the patentee to restrict or limit competition in a separate market


copyrights

17 USC - Copyrights 

Intro. CR spends most of its history trying to catch up to technological innovation. In line with this development, there is parallel development in the CR term. Patent term is 20 years, but CR terms have increased drastically over the centuries.

1790: 14 years + 14 years
1831: 28 years + 14 years
1909 Act: 28 years + 28 year renewal
1976 Act/ Berne Convention: life of the author + 50 years
1998 ("Sonny Bono Extension Act"): life of author + 70 years, for all works from 1923

The Digital Age: enhancements to copyright protection considering the advancements in and increased access to digital technology

Even as technology allows for cheaper, wider and faster distribution, the copyright protection becomes longer period. Why?
- Original 14 years term was based on 2 periods of apprenticeship. Also, people live longer.
- Creative works become more important to the economy as they're created and distributed, which takes a longer period. Want to incentivize the creation of these creative works.
- Mickey Mouse would fall into the public domain if not for Sonny Bono (will have to consider if different regimes should be employed to protect Mickey)

Power of creators to control their distribution.

How do we create a legal regime to balance the pressures between creators desire for protection and use for the public?

Ownership of a valid CR conveys protection from:
- Copying
- Derivative work
- Distrib
- Performance
- Anticircumvention: such as encryption
- Moral Rights: prevent distortion and mutilation of work

Criteria for CR Protection 
- Originality
- Fixation
- Limits on Copyright
   - subject matter
   - useful articles
   - idea/expression

The CR Regime: an Overview
CR subject matter - broad range of literary and artistic expression
Threshold for protection - only a modicum of originality is required
Formalities - notice, regis, publish, deposit
Authorship - must be created by party bringing suit, or have been transferred to party bringing suit
Internet CR issues 
Duration - life of author plus 70 yrs, or 95 yrs for anonymous works


Requirements
Originality 
17 USC s.102(a)
original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be preceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device...

17 USC s.101: "fixation", "copies" and "phonorecords"

- a work is fixed in a tangible medium when its embodied 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.... (this distinction becomes important when thinking of internet CR protection) 

if you haven't fixed it, it's not subject to CR

-"copies" are material objects other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

- "phonorecords" are materials objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

why require fixation?
- efficiency
- (recording at 30 min)

original works = independent creation (not copied from other sources) with some modicum of creativity

sheldon v. MGM: "the 'author is entitled to a copyright if he independently contrived a work completely identical with what went before; similarly although he obtains a valid copyright, he has no right to prevent another from publishing a work identical with his, if not copied from his."

alfred bell v. catalda fine arts: courts do not judge the artistic merit of a work... rarely are artistic works found to be de minimus originality threshold of copyright law.

should copyright protect mechanical works? "sweat of brow theory" has 2 rationales
1. economy: compilation is necessary and efficient
2. fairness: unjust to permit one person to benefit from another's hard work

why are we concerned about not chilling invention but chilling creativity?
- public policy: there's something more personhood interests invested in creative endeavors
than in scientific and mechanical inventions 
- utilitarian interest: 1st amendment reflects the fundamental commitment of our society to freedom of expression, and CR is an infringment to that right to say "you can't say that, i said it first"
- efficiency: much more difficult to draw distinction between creativity

feist v. rural
"feist is not a telephone co, let alone one with monopoly status, and therefore lacks indep access to any subscriber info... fiest aproached each of the 11 telephone cos operating in NW ka and offered to pay for th eright to use its wihite page listings. .. only rural refused to license its listings. feist used them without rurals approval. 1,309 of the almost 47K listings in feist's directory were identical to listings in rurals. four were even fictitious id tags! rural sued for CR infring

axiom of CR -- "no author may copyright his ideas or the facts he narrates (i.e. facts and discoveries are not CR protected)." see harper v. nation

to qualify for CR, a work must be original, meaning only that hte work was indep created by the oughtr and possesses at lest some miminal deg of creativity. the req level of creative is extremely low, even the lsight amouth uwill suffice. ORIGINAL is not same as NOVEL!

originality is const mandated. the trademark cases -- "the const scope of writings. "originality is required, fuites of intellectual labor, embodied in print and the like."

facts are not CR - facts do not have authorship. creation v. discovery; the diff is person finds and reports discoveries, doesn't create them.

but factual COMPILATIONS may have the req originality. chooses what facts to include, order, arrangement, etc. even a directory with only facts may meet the const min for CR if it features an original sellection or arrange.

just because a work is CR, not every E is CR, only the components with originality.

not all copying is CR infring. to est infring:
1. ownership of CR must be proven
2. copying of protected E that have originality

did feist, by taking 1309 names from rural CR infring original work? NO - these are unCR facts.

so did rural, by selecting, arranging, etc make the UnCR facts in a CRable way? NO, garden variety white pages arranged in alpha order with no creativity exercised, even though the threshold is low.

CR estoppel: "equity and good morals will not permit one who asserts something as a fact which he insists his readers believe as the real foundation for its appeal to those who may buy and read the work, to change that position for profit in a lawsuit."

**listen to recording at 54:00 **

we want everyone to be able to come up with different ways of arranging facts and sharing them. the arrangement and expression of facts might be copyrightable. but what about something that's pretty big, like a phone book?

reason for CR is to promote the disemmination of knowledge. but for some products using a monopoly right would be harmful rather than helpful.

brenner -- "a patent is not a hunting license" if you haven't created something useable, then

protectable and unprotectable elements of a work: with respect to facts, we think that copyright is a bad way to get them. with extent to the way that facts are shared and arranged, we think that's cool and we're willing to give a copyright, but absent a modicum of creativity we don't think that CR is a good bargain for us as society.

17 USC 103: Compilations

"the subject matter of CR... includes compilations... but... copyright in a compilation... extends only to the material contributed by the author of such work, as distinguished from the pre-existing material employed in the work" 

fixation.
the existing requirement that a work be "fixed in a tangible medium of expression"
that this medium may be one "now known or later developed"
and that the fixation is sufficient if the work "can be perceived, reproduced,
or otherwise communicated, either directly or with the aid of machine or device."
-- this language is derived from white-smith v. apollo co

in a work consisting of sounds, images, or both, that are being transmitted, the work is regarded as fixed if a fix is being made at the same time as the transmission. unless/until, the work doesn't qualify for CR

17 USC 106(1): CR owner has the exclusive right to "re the cr work in copies or phone" where "copies is "material obj in which a work is fixed," thus a D does not infringe the right to rep unless s/he has rep the CR work in fixed form.


copyrightable subject matter
limitations on copyrightability: distinct function and expression

17 USC s.102(a)

works of authorship include the following categories:

1. literary works

2. musical works, including accompanying words

3. dramatic works and accompanying music

4. pantomimes and choreography

5. pictorial, graphic, and sculptural

6. motion pictures and audioworks

7. sound recordings

8. architectural works

(listen to recording at 1:09) idea-expression dichotomy 17 USC 102(b): concerned about XX
"in no case does copyrighting protection for an original work of authorship extend to any idea

baker v. selden
copyright of a book "selden's condensed ledger" sues complaint against D baker for an infringement of the CR of his condensed ledger.

if it be assumed the system is open to public use, it seems to be equally difficult to contend that the books made and sold by D are a violation of the CR of the P's book considered merely as a book explanatory of the system. where the truths of a science or the methods of an art are the common prop of the whole world an author has the right to express the one, or explain and use the other, in his own way. asa n author, selden explained teh system in his way.

an unfixed work of authorship, such as an improvisation or unrecorded choreography, performance or broadcast, would continue to be subject to protection under common law or statute, but would not be eligible for federal statutory protection under 17 USC 102.

no doubt that a book on bookkeeping can be CR material!!novelty of the art has nothing to do with validity of the CR.

info on the subject contained the book is given freely to the public, like a phys desk reference. public derives application and use from the info of the book. if the subject should be protected, need a patent. CR just protects the printed material. "description of the art in the CR material in no way lays exclusive claim to the art itself."

distinguishing idea and expression: "upon any work, a great number of patterns of increasing generality will fit equally well.. (see 416)

**listen to recording at 1:18**

CR office does not CR blank forms, time cards, graph paper, account books, diaries, etc.

morrissey v. proctor and gamble co
morrissey is the CR owner of a set of rules for the sales promo contest of the "sweepstakes" type involving the SSID of participants. P provided the rules as evidence. the district court followed the decision of gay v. gillis and decided that since the substance of the contest was not CR (correct), and the substance was simple, it must follow that P's rules spriung from the substance and contains no original creative authorship. App court holds for the D: UnCR subject matter is very narrow: if not only one form of expression, at best only a limited number, to premit CR would mean that a party by CR a mere handful of forms could exhaust all possibilities of future use of the substance.

you can't just write down a set of rules and say, "aha! now i have created the sweepstakes and its the only kind!!"

the merger doctrine: when there is only one or but a  few ways of expressing an idea, the courts will find that the idea behind the work merges with its expression and is not CRable.

CR law doesn't protect historical facts, because they're not original works.

CR doesn't protect "incidents, characters or settings which are as a practical matter indispensable to a treatment of a given topic."


useful art doctrine.

17 USC 101: "pictorial, graphic, and sculptural works... including works of artistic craftsmanship insofar as their form but not their mechanical or... (see rest of slide)

why? because if you can get patent protection, why not get trademark protection... channeling of intellectual property laws and ideas into the right value of protection for the material.

brandir int'l v. cascade pacific lumber co.
useful articles are excluded from CR claim protection.

"RIBBON rack" bicycle rack made of bent tubing said to have originated from wire sculpture.

the conceptual separability is distinct from the physical separability and when present entitles the creator of a useful article to a CR on the design.

Denicola test: statute directive required a distinction between works of industrial design and works whose origins lie outside the design process, despite the utilitarian environment in which they appear. CR - ultimately should depend on the extent to which the work reflects artistic expression uninhibited by function considerations. if design E reflect a merger of aesthetic and functional considerations, can't say concept is separate from utility. but when design E is artistic judgment sep from functional consideration, then they're separable.

trier of fact will determine whether the aesthetic design E are significantly influenced by the functional considerations.. court found RIBBON is not CRable. brandir argues correctly that a CR work of art does not lose its protected status b/c later put to functional use. while the rack is derived from "works of art" it is in its final form essentially a product of industrial design. adapted the original aesthetic E to accommodate and further a utilitarian purpose.

** it is not enough the rack may stimulate in the mind of a reasonable observer a concept separate from the bicycle rack concept. the RIBBON rack may be worthy of admiration for its aesthetic qualities alone, but it remains nonetheless the product of industrial design. no artistic element that exists independently.

therefore, affirm on the copyright claim.

but who's perspective should we use to determine if something is useful? the majority uses Denicola, and the subjective perspective of the creator: whether he was influenced by the utilitarian components of the design or if it simply manifested in a utilitarian way. just one drop of utilitarian consideration will make it a useful item instead.
(a) look at it from the designer's process
(b) if 1 drop is useful, it's not CRable