CogSci 3
Copyright Basics

Take a crash course from http://www.utsystem.edu/ogc/intellectualproperty/cprtindx.htm#top (the University of Texas)

And other excellent crash course in intellectual property was written by Intellectual Property attorney Georgia Harper. It's available at: http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm.

Patent vs. Intellectual Property

The patent process is by no means infallible; some one needs to read the patent material, understand what is being proposed, and then decide how different it is from other concepts. For amusement, go to www.uspto.gov/patft/index.html and then search for patent number, 6,368,227.

On the other hand, intellectual property is also the result of creative or artistic thinking, but does not lead to a tangible object. A work like a novel, a piece of music, a dance, or a software program are all examples of intellectual property.

For more of an overview of patents and intellectual property, see http://www.aipla.org/overview.html, from the American Intellectual Property Law Association.

What is Copyright?

In the United States, copyright is exclusively federal law, and derives from the "copyright clause" of the Constitution (Art. 1, sec. 8, cl. 8), which provides Congress with the power "to promote science and the useful arts, by securing for limited times to authors ... the exclusive right to their ... writings."

The standard for originality is very low. "Original" in this context means only that the work has its origin in the author. There is no requirement that the work be different from everything that has come before: it need only embody a minimum level of creativity and owe its origin to the author claiming copyright. To use an extreme example, if two poets, each working in total isolation and unaware of one another's work, were to compose identical poems, both of the poems would meet the originality requirement for purposes of the copyright statute.

To use a cyber example: image you create a list of URLs. URLs, themselves, are not copyrightable because they are addresses (facts), like a street address or like a phone number. However, if you have a sufficient number (intensionally vague) and arrange them creatively (also vague), then the resulting list is probably copyrightable!

As with the patent, the motivation behind copyright is to allow writers, musicians, and other artists to reap the benefits of their creativity.

What Rights Does a Copyright Give the Author/Creator?

1. the reproductive right: the right to reproduce the work in copies;
2. the adaptive right: the right to produce derivative works based on the copyrighted work;
3. the distribution right: the right to distribute copies of the work;
4. the performance right: the right to perform the copyrighted work publicly;
5. the display right: the right to display the copyrighted work publicly;
6. the attribution right (sometimes called the paternity right): the right of the author to claim authorship of the work and to prevent the use of his or her name as the author of a work he or she did not create;
7. the integrity right: the right of an author to prevent the use of his or her name as the author of a distorted version of the work, to prevent intentional distortion of the work, and to prevent destruction of the work.

Not all rights apply to all works. For instance, the display right does not apply to sound recordings.

The Public Domain

It used to be that a work needed to be explicitly copyrighted (i.e., a copyright notice). However, in March 1988, a change in the law elimenated the notice requirement. Nowadays, a work is considered copyrighted as soon as it is rendered in tangible form. That is, you don't have to put a © notice in your work for it to be copyrighted! (But it helps if you have to sue and go to court.)

But you can't copyright just anything. Some works can not be copyrighted, and so are in the public domain. For instance:

• Works of the U.S. Government are not copyrightable except for reference data published by the U.S. Secretary of Congress. However, the government can hire a contractor to write/create something, and then than contractor could copyright his work. But that contractor can assign the copyright back to the government, in which case those government works can be copyrighted. Sigh!
• The copyright expired.
  • Rights 1-5 listed above last for the life of the author, plus 70 years (95 years for corporate held copyrights).
  • Rights 6-7 last for the life of the author.
• Ideas can't be copyrighted; the idea must be put into some tangible form (e.g., written down, painted, recorded, saved on computer disk).
• Short works, like titles, slogans, names, and short phrases can't be copyrighted. But they might be trademarked.
• The copyright might have been abandoned. The author needs to do something explicit and overt to put her work in the public domain. Simply publishing something publicly (e.g., on the World Wide Web) does not remove the copyright.
• The copyright might have been forfeited by publishing it with out a copyright notice prior to the 1988 change in the law.

If there is any restriction upon the use of the work, even the restriction that it cannot be sold, the work is not public domain. Rather, it's copyrighted, and the restrictions are essentially limitations on a licensee using one or more of the exclusive rights described above. For example, the restriction that a work may only be given away for free is a limitation on the distribution right.

Once a work is truly in the public domain, it can never be copyrighted again!

Examples of this cropped up during the 1980s when the "free software" movement was getting started. Software authors were happy to let others use their software for free as long as there was no "commercial gain". Basically, a person could copy and use the software, but not then sell it; seems reasonable. However, the fact there was a restriction ("no commercial gain") meant that such software was really not public domain but licensed instead. On the other hand, suppose the author gave up her rights, and put her software in the public domain explicitly (see above). Then a company could use, perhaps modify, and then sell that same software. Not really fair to the original author, and probably not what she intended!

The Free Software Foundation (http://www.fsf.org/) has taken the idea of free software past these hurdles. They have invented the copyleft license ( http://www.fsf.org/copyleft/copyleft.html). The copyleft license allows you to copy and change and sell the software as long as the copyleft license is passed along; i.e., the users have those same copy, change, sell rights.

The Copyright Notice

• It's a "no brainer", and is easy (and free to do).
• It provides a protection against an "innocent infringement" plea. That is, some one can't claim they didn't know the work was copyrighted.

A copyright notice consists of 3 things:

1. © (A C in a Circle) or the word Copyright, or the abbreviation Copr
2. The date of first publication
3. Your name

Register It with the Copyright Office

If you file before the infringement, you have more rights than if you file afterwards, namely statutory damages (those named in the copyright law, up to $100,000), and attorney fees.

To register is simply a matter of filing the appropriate form along with 2 copies of the work and a $20 fee.

Fair Use

• Quotation of excerpts in a review or criticism for purposes of illustration or comment;
• Quotation of short passages in a scholarly or technical work for illustration or clarification of the author's observations;
• Use in a parody of some of the content of the work parodied;
• Summary of an address or article with brief quotations, in a news report;
• Reproduction by a library of a portion of a work to replace part of a damaged copy;
• Reproduction by a teacher or student of a small part of a work to illustrate a lesson;
• Reproduction of a work in legislative or judicial proceedings or reports;
• Incidental and fortuitous reproduction in a newsreel or broadcast, of a work located in the scene of an event being reported.

The Tests for Fair Use

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work. If its a factual discussion, like a newspaper article, as opposed to a creatative work, then there is less likelihood of infringement.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.

Your topic.html page

On the other hand, the earlier index.html assignment is probably not.

And it's probably okay that we copied those images because

1. You did provide citations for the original
2. The percentage of work that you copied is small (fair use principle)
3. The purpose of your new work was educational (not commercial) (another fair use principle)

Copyright in Cyberspace

The technology by which web browsers work complicates things right off the bat. When you are viewing a web page in a browser, you have, in some sense, copied the HTML, images, etc. for that page from the HTTP server to your computer. Is that copyright infringement? Probably not. You can then simply view or SaveAs the HTML Source. Is that copyright infringement? Harder to tell, but most probably is!

http://www.benedict.com/digital/www/webiss.htm has a discussion of some of the issues of publishing on the web, which is complicated by the fact that the web is a "multimedia" form. That is, a web page consists of many different elements, text, images, possibly sounds. These units are undoubtedly all copyright, but may not say so, unlike the page itself which probably does have a copyright notice. So it may not be obvious that the image of an arrow, or other icon is also copyright.

Hyper links and Deep Linking

As a web author, I can use an absolute URL in my <IMG SRC="..."> image tags to point to your copyright images on the web. Then they look like mine, since they are located on my page(s)!

Furthermore, using the HTML frame tag, I can make your pages appear as a window on my page--I've hijacked your page! Search engines do this all the time, but in an environment where the reader should know that they are looking at information from a site than other than the search portal. It's much more subtle if I use frames to point to your site.

There have been court cases about the issue of linking into a page within a site, rather than the home page for the site. This so called deep linking was deemed not a copyright violation a couple of years ago, but now has come up again.

DEEP-LINKING DISPUTES RESURFACE

Two years ago U.S. District Judge Harry Hupp declared that deep linking, the practice of hyperlinking to a specific page within a Web site rather than the site's home page, was not a violation of copyright law. The dispute has come up again, however, in several recent complaints by site operators. The Danish Newspaper Publishers' Association has asked that the practice be disallowed, and Belo, the owner of "The Dallas Morning News," this week sent a stern letter to BarkingDogs.org demanding the end of deep links to the newspaper's Web site. If deep links were ultimately declared illegal, this would have significant implications for many sites, including search engines, which consistently bypass home pages. A spokesman for Belo said they feel they should have some control over the use of their content and that deep links undermine the advertising model for Web sites. Wired News, 1 May 2002 http://www.wired.com/news/politics/0,1283,52213,00.html

GERMAN COURT DECIDES AGAINST DEEP LINKING

A ruling by Munich's Upper Court determined that using a search engine to find stories on a newspaper's Web site violates European Union law. The decision is the latest ruling in a two-year court battle between German newspaper Mainpost and German search service NewsClub. Mainpost claims that searching through and linking directly to Mainpost content flouts the EU "Database Directive," which grants copyright protection to database creators for selecting and arranging the information in a database even when they do not hold the copyright on the information. The law also protects against unfair extraction of items in a database, specifically downloading or hyperlinking. NewsClub faces more legal hearings, but without any expectation that the Upper Court decision will be reversed. Wired News, 25 July 2002 http://www.wired.com/news/politics/0,1283,54083,00.html

Cyber Publishing

The Internet has changed that because now it is easy and relatively cheap to "publish" something that reaches (potentially) millions of readers. That something might be a "web log" or blog.

The DMCA

To prevent copyright violations in the cyber age, there is the DMCA, Digital Millennium Copyright Act:

SENATE PASSES ONLINE COPYRIGHT EXTENSION

The Senate unanimously approved the Digital Millennium Copyright Act, which offers the same protection to online computer software, music, movies and written works that they enjoy in more tangible form. In a key provision, the legislation exempts libraries and online services from prosecution for copyright violations committed by patrons and customers. Individuals who violate copyrights for financial gain will be liable for $1 million in fines and up to 10 years in prison. (Wall Street Journal 15 May 98)

However,

CO-FOUNDER OF NETSCAPE SAYS COPY PROTECTION IS DOOMED

Marc Andreessen, a co-founder of Netscape, said to a general session of the National Association of Broadcasters convention that digital music, movies, and television programs will never be copy-protected. He said, "If a computer can see it, display it, and play it -- it can copy it." His address compared the current situation of digital entertainment files to the early days of software, when Bill Gates struggled with software piracy in a new market. As the market for digital entertainment balloons, Andreessen argued, the industry should appreciate the enormous demand for their products, flood the market with inexpensive music files, and remind consumers that swapping files is illegal. San Jose Mercury News, 9 April 2002 http://www.siliconvalley.com/mld/siliconvalley/3031836.htm

Digital Watermarks, or "Branding" Your Work

For documents that are binary in nature, like images and audio clips, there is a lot of interest in digital watermarking. Basically, it's a way of changing the bits in the original document to create a "brand" but it a subtle way that is not easily detected by the ear (for audio) or eye (for video). Special software, however, can detect the brand, and therefore tell if the document has been copied illegally or not.

How might this work? Recall your web page and work with colors on http://icogsci1.ucsd.edu/~cg3x/cg3.font.color.html. Each pixel (dot) of a digital image consists of those 3 bytes of RGB information. The lower 4 bits of each byte do not contribute very much to what we can see in the image. Imagine a code put into those lower 4 bits!

Or how about the reverse, sticking your message into an image? That's what software from In the Picture (http://www.intar.com/ITP/) does.

Microsoft, for different reasons, has decided to "brand" each document created with its Windows 98 software with a unique serial number. That seems like it should protect your documents on the net! However, is it more dangerous than the problems it attempts to fix? (From Edupage):

MICROSOFT RESPONDS TO PRIVACY ISSUE

Reacting to a controversy started when a programmer in Brookline, Mass., discovered Windows 98 generates a unique serial number that is implanted in every electronic document and that can be used to trace the identify of its author, Microsoft said it will create a software tool to allow customers to remove the number, which was created to help support specialists diagnose problems for customers who call with questions. Jason Catlett, who lobbies on privacy issues, says, "This is going to be a cleanup job larger than the Exxon Valdez oil spill. There are billions of tattooed documents out there." (AP 8 Mar 99)

The Music Industry and Copyright

On the other hand, consumer groups and the manufacturers of the audio recording devices argued that the consumers had purchased the album and should be allowed to do whatever they wanted with it. In particular, consumers wanted to be able to play a copy of their favorite album in the tape player in their car. This was before the popularity of CDs; playing an album in a moving car was not a viable option, so audio tapes were the only technologically available medium for cars.

Eventually, a compromise was reached. Every blank audio tape has a surcharge added to its price; that money goes to the recording industry as partial payment for potential lost sales. While the consumers got a special law, the Audio Home Recording Act, was passed in October, 1992, making it (basically) "fair use" to record (on tape) your own CDs and records for noncommercial use.

No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.

Note, although CDs did exist at the time the Audio Home Recording Act was passed, CDs were not recordable by consumers. I.e., the act only really covers audio tape, not CDs! A number of countries, recently including Canada, charge a "levy" on each blank CDR to help compensate the recording industry. See http://neil.eton.ca/copylevy.shtml for details and an FAQ.

CONGRESSMAN MOVES TO PROTECT THE RIGHT TO COPY DIGITAL FILES

Rep. Rick Boucher (D-Va.), a member of the Judiciary Subcommittee on the Courts, the Internet, and Intellectual Property, said he will propose an amendment to the Digital Millennium Copyright Act (DMCA) that will protect the right of consumers to copy digital files. The act classifies tools used to copy digital material, such as songs on a CD and DVD movies, as illegal, but Boucher thinks they should be kept legal, while people who make unauthorized copies should be subject to sanctions. The congressman also issued a letter to the Recording Industry Association of America implying that copy-protected CDs may constitute a violation of the 1992 Audio Home Recording Act. In the letter, he expressed his concern that technologies such as encryption are being used to block home recording, even though consumers already compensate the entertainment industry for any potential copying loss whenever they purchase a blank recordable CD. (Los Angeles Times, 8 January 2002)

MP3

MP3 could provide a whole new way for the music industry to sell music! Imagine being able to select only the tracks on a CD that you liked, buying them, and downloading them to a player like RIO. You could create your own music compilations of just the songs you like! Seems like it should be good for the music industry (fewer overhead costs) and great for the consumer.

It's also great for artists; new artists can upload demos of their work without having to go through a recording company, while established artists (like the Grateful Dead and Tom Petty) could market their own music. Musicians typically only receive a small royalty from each album sold. (This may be yet another reason that RIAA opposes MP3 music.)

It's not MP3, per se, that concerns, the RIAA; it's the ability of a desktop computer to digitize audio (music), and then upload the resulting (MP3) file to a site on the Internet. This means that you could copy an artist's copyrighted music, and stick it on your webpage for millions of people to download (and then play) for free!

It seems that the RIAA worries are probably justified. See the RIAAs page on MP3: http://www.riaa.com/piracy/pir_op.htm There are hunderds of MP3 sites that spring up and then disappear (as they are located and shutdown by the RIAA.) In fact, Lycos, a well known search engine/portal discovered that mp3 was the second most searched for word on it's site, second only to "sex". Lycos now has a special server: mp3.lycos.com especially for MP3 searches.

Following on the popularity of MP3 music (legal and illegal) on the Internet, a new web-based company mp3.com has recently (June 1999) gone public (meaning its stock is being traded in the stock markets). [By the way, the former CEO, Michael Robertson, is a former UCSD Cognitive Science student.]

The RIAA first tried to stop MP3 with an injunction against the manufacturers making the MP3 players, especially the portable ones. Now the Recording Industry is attempting to "out flank" MP3 by creating their own, new standard, SDMI -- Secure Digital Music Initiative, that will include the equivalent of a digital watermark that will allow music players to tell if a particular recording has been illegally copied (and then not play it). See http://www.sdmi.org

In April 2001, researchers from Princeton, Rice University, and Xerox Palo Alto Research Center (PARC) planned to present a paper at the Fourth International Information Hiding Workshop. The paper described how the researchers were able to break all 4 methods of copy protection contained in SDMI. The RIAA panicked and threaten the researchers, their institutions, and the sponsors of the workshop with lawsuits; the researchers withdrew their report. The RIAA needs to get a working digital watermark system, and one that will be accepted by consumers.

Peer to Peer Networks

If you would like an MP3 version of some song, you connect to the Napster server, and use the database to look up which other "servers" (peoples computers) have a copy of that song. Then you download it from one of those servers. Initially, there wasn't any music on napster.com itself, just on subscriber computers.

You can probably see that the RIAA was worried that people would create illegal copies of copyright music and stick it on their hard drives and then make that available via Napster. (The latter is arguably a problem).

Napster was a problem for Universities, as many students are interested in obtaining MP3 music. Students downloading music consumed large amounts of the total bandwidth to the Internet for a given University, effectly slowing or shutting down Internet access. Aside from the bandwidth issue, many Universities decided to ban Napster traffic in order to avoid potential copyright lawsuits by the RIAA.

Napster should also make you think about the safety of information on your own computer. Napster effectively turns your computer into an anonymous file server! Is it really limiting access to only the MP3 files?

There is an (oldish) online story on Napster developments at: http://www.wired.com/news/mp3/0,1285,34382,00.html

Beyond Napster

• The RIAA has tried suing the companies who created the software for these networks
• The RIAA has tried suing the ISPs (Internet Service Providers) who provided Internet access to people using peer to peer networks and software. In general, the courts have ruled that ISP are not responsible for materials their users/customers publish. But the law suits worry universities like UCSD, which act as ISPs for their resident hall students.
• The RIAA is now suing individuals (like you!); particularly those who appear to have a large number of copyrighted works that they are sharing.

Some Irony

Upset with this ad-ware, some computer hackers have released "cleansed" or "lite" versions of the KaZaA software (i.e., without the ad-ware). As stated in 4/25 CNET: "Hackers turn tables on file-swapping firms" KaZaA is upset because their intellectual property has been damaged and has sued to stop the distribution of the "lite" versions. Ironic, since the whole point of KaZaA is to allow the trading of copyrighted materials!

Myths about Copyright

Terms to Know

©opyright 1996-2004 Mark R. Wallen Last updated: Sun Sep 19 12:20:23 2004