Download day 5 - Bradley University

Copyright and digital copying:
DVR, Music Locker/Cloud
services, and downloading
IM 350
© Ed Lamoureux/Steve Baron
Important issues
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DVR/Music Lockers
– Copies?
– Performances?
– Enacted by? (does it matter?(
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DMCA copyright safe harbor
 Illegal downloading & penalties
Cartoon Network v. CSC
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Who’s Who?
– CN owns copyrights to movies and tv programs
 Content owner
– CSC operates cable tv system
 Content distributor
Cartoon Network v. CSC
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What are they fightin’ about?
– CSC plans to launch Remote Storage DVR
System
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Customers can record shows on central hard drives
housed and maintained by CSC at remote location
CSC did not seek a license from CN
– CN sues for direct copyright infringment
 Seeks declaration and injunction
Cartoon Network v. CSC
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In the Federal District Court (New York) District
Court
– Cartoon Network wins
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Court finds RS-DVR directly infringes CN
copyrights
– Briefly storing data in ingest buffer
– Copying programs onto server
– Transmitting data from server to customers
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Summary judgment entered against CSC
Injunction against CSC to prevent operating RSDVR withou a license
Cartoon Network v. CSC
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In the Second Circuit?
– The decision is reversed and remanded back to
the District Court
Cartoon Network v. CSC
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Rationale of appellate decision:
– Analysis of “transitory duration”
 No bit of data remains in buffer for more than a
fleeting 1.2 seconds
 So, the act of buffering does not create a “copy”
under copyright law
Cartoon Network v. CSC
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Rationale of appellate Court:
– Who makes the copy?
 CSC or customer?
 Court holds that customer makes copy and so CSC
is not liable for direct copyright infringement.
– CSC “closely resembles a store proprietor who charges
customers to use a photocopier on his premises…”
Cartoon Network v. CSC

Rationale of appellate court:
– Is RS-DVR playback a transmission of a
performance to the public?
– Answer: No. Because each playback
transmission is made to a single subscriber
using a single unique copy produced by that
subscriber, such transmissions are not “public”
and do not infringe any exclusive right of
public performance
The chapter text file
Top Trends In Copyright
Scraping data from a web site – when is it
legal and when is it illegal?
 Fair use – federal law in state circumstances
 Fair use – when is a mashup transformative
versus derivative?
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Scraping
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Generally: Use of a computer program or process to
automatically make requests to web sites or other network
accessible resources, retrieving the contents in order to analyze,
manipulate, and/or re-use or re-distribute (processes that
automatically submit data are conceptually similar)
 Also Known As:Scrapers, Spiders, Crawlers, Robots/Bots,
Data-Miners
 “Crawling” and Retrieval: the program follows each link
presented in the retrieved data and makes the request again,
retrieving additional data for processing from each page
accessed. Such programs are capable of submitting thousands
of requests per minute
 Indexing / Storage: The program “parses” the retrieved data,
relying on some known schema for formatting the data, to
extract the desired information
 Re-Use:Scraped materials are then modified and re-used or redistributed for a variety of purposes
Why Scrape?
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Indexing / Search:Search engines of all kinds crawl the internet continually
to index the information available on the web and to enable keyword or
other types of searching through their own systems
•Timely Updates:determine when particular online content changes to
ensure information is up-to-date, or power other types of alert services.
•Competitive Analysis:monitor information published by competitors, such
as availability and pricing, and the nature and frequency of changes to that
information.
•Value Added Services:retrieve data on third party products and services
(or submit information) in order to provide value added products or services
in connection with use of the third party products or services.
•Aggregation:retrieve information distributed widely across the internet for
the purpose of centralizing and organizing that content in a single location.
•Automate Use of 3P Systems:automatically send messages to email
addresses found published online, or submit “Contact Us” forms, post, play
a game, etc.
•Real Time Processing:retrieve third party content, process / optimize for
end users (e.g. optimize web content for mobile)
What do Publisher’s Think about
Scraping?
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Indexing / Search:Publishers are generally amenable to being crawled
and indexed by legitimate search engines, as it increases the likelihood
that end users will find and use their site or online resource in the manner
it was originally intended. Some exceptions (e.g. news sites)
•Other Uses:Publishers typically object to crawling or scraping of their
content for other purposes for a variety of reasons, including:Drain on
traffic: loss of ad revenue / unpaid redistribution of premium content
Increased load on server resources
Investment in content creation
Devalues source material
Inability to participate in value creation
•Common Measures Taken to Prevent / Curtail Scraping:Terms of
Service
 Robots.txt
 IP / User Agent filtering
 Lawsuits (injunctions, direct and statutory damages, fines)
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Is scraping copyright
infringement?
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U.S. Copyright Act: Copyrightable Subject Matter: Original
works of authorship, fixed in a tangible medium
 Exclusive Rights: reproduction, distribution, public display,
public performance, and preparation of derivative works.
•Infringement:Unauthorized modification / redistribution of
copyrightable material
 Even if only used internally, scraper makes a copy in the act
of downloading the content
 RAM copies (MAI)
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•Default: All rights reserved.
•Remedy: Statutory damages up to $150,000 per infringed
work for willful infringement of registered works
Copyright Infringement
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Non-Copyrightable Subject Matter Factual, public domain,
no rights in UI / layout, merger, etc.
 However, copyrightable elements, including selection and
arrangement may still be infringed
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•Fair Use Transformative uses
Intermediate copying of copyrightable materials in order to
extract non-copyrightable material
•Express / Implied License: Where no terms expressly
prohibit, scrapers may argue an express or implied license to
access and use the content
Copyright default is “all rights reserved”. An implied license
is likely to have a very narrow scope
Scraping and DMCA
– DMCA: Prohibits both circumvention of technological
measures implemented by a copyright holder to control
access to copyrighted works, as well as development or
marketing of tools for such purpose. Technological Measures:
IP / Header / User-Agent filtering and blocking, CAPTCHA
challenges.Robots.txt ?
– Circumvention: IP / Header / User-Agent masking and
rotation, modification, and masking, automatic OCR and
response to CAPTCHA challenges.
– Remedy. Civil and criminal liability. Willful violations
punishable by fines up to $1 million and up to 10 years
imprisonment
Fair Use – Federal Law in State
Circumstances – AIME v. UCLA

Maker of educational videos and trade
association sue university for placing a
DVD of Shakespeare plays on university
network so students could stream it from
remote locations.
 Seems like a pretty clear case of copyright
infringement, but the plaintiffs lose. Why?
Fair Use – Federal Law in State
Circumstances – AIME v. UCLA
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Sovereign immunity
 Lack of standing – of AIME
 Copyright
–
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Defendants had right to publicly perform
Streaming not “distribution”
Copying for network was incidental fair use
No proper allegations of DMCA antitrafficking violations
Fair Use – Are Mashups
“Derivative” or “Transformative”?
Fair use factors:
 the purpose and character of the use
 the nature of the copyrighted work
 the amount and substantiality of the portion
used
 the effect of the use on the market for the
original
Fair Use – Mashups
“Truthiness”
Fair Use – Mashups
AP v. Shepard Fairey