C22Pre

Class 22Copyright, Spring, 2007Preemption: 

Class 22 Copyright, Spring, 2007 Preemption Randal C. Picker Leffmann Professor of Commercial Law The Law School The University of Chicago 773.702.0864/r-picker@uchicago.edu Copyright © 2005-07 Randal C. Picker. All Rights Reserved.

Sec. 301. Preemption with respect to other laws: 

Sec. 301. Preemption with respect to other laws (a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title.

Sec. 301: 

Sec. 301 Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.

Sec. 301: 

Sec. 301 (b) Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to (1) subject matter that does not come within the subject matter of copyright as specified by sections 102 and 103, including works of authorship not fixed in any tangible medium of expression; or …

Sec. 301: 

Sec. 301 (3) activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 … (d) Nothing in this title annuls or limits any rights or remedies under any other Federal statute.

Sec. 301: 

Sec. 301 (e) The scope of Federal preemption under this section is not affected by the adherence of the United States to the Berne Convention or the satisfaction of obligations of the United States thereunder.

Taking and Using Pictures: 

Taking and Using Pictures Hypo Tiger Woods wins a golf tournament; afterwards, he drinks a Diet Coke Smith photographs Woods with the drink and sells her rights in the photo to Coke Coke uses the picture in an advertisement: “Tiger Wins with Diet Coke; You will Too.” Can Smith sue? Tiger? Under copyright?

Answer: 

Answer

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Owning Data: 

Owning Data Hypo Illinois passes a law providing that “no person may copy the data in telephone books distributed by phone companies.” Entrant wants to copy incumbent’s phone book Can the entrant do so? Is this different than the prior case on the right of publicity?

Is This the Answer?: 

Is This the Answer? H.R. Rep. No. 94-1476: As long as a work fits within one of the general subject matter categories of sections 102 and 103, the bill prevents the States from protecting it even if it fails to achieve Federal statutory copyright because it is too minimal or lacking in originality to qualify, or because it has fallen into the public domain.

Live Comedy: 

Live Comedy Hypo Student goes to Second City show to watch improvisational comedy Student takes camcorder and records the show Students sells copies of the show Copyright violation? Other violation?

Answer: 

Answer If Second City records the show We have fixed copyrighted work and student infringers under 106 If Second City doesn’t record We have an unfixed work, and under 301(b)(1), state law can protect that

Legislative History: 

Legislative History H.R. Rep. No. 94-1476 On the other hand, section 301(b) explicitly preserves common law copyright protection for one important class of works: works that have not been “fixed in any tangible medium of expression.” Examples would include choreography that has never been filmed or notated, an extemporaneous speech, “original works of authorship” communicated solely through conversations or live broadcasts, and a dramatic sketch or musical composition improvised or developed from memory and without being recorded or written down.

Legislative History: 

Legislative History As mentioned above in connection with section 102, unfixed works are not included in the specified “subject matter of copyright.” They are therefore not affected by the preemption of section 301, and would continue to be subject to protection under State statute or common law until fixed in tangible form.

NBA v. Motorola: 

NBA v. Motorola Core Facts NBA plays games Those games are broadcast on radio or TV Motorola runs SportsTrax Motorola employees to watch basketball broadcast Type in basic factual info about the state of the game

NBA v. Motorola: 

NBA v. Motorola SportsTrax distributes those accounts to pagers using wirelines, satellites and FM radio spectrum NBA alleges copyright violations and state law misappropriation Who wins?

Copyrighting the Game: 

Copyrighting the Game NBA Claim NBA games are copyrightable, as such, independent of whether those games are broadcasted, so long as the games are fixed in some fashion How should we assess this? Are games different from improvisational comedy or jazz? Are those copyrightable?

Copyrighting the Game: 

Copyrighting the Game What would be the consequences of giving the NBA copyrights in the game?

Copyrighting the Broadcast: 

Copyrighting the Broadcast Broadcasting an NBA Game Many games, one set of images transmitted to the world What is the work? How is it classified? Is it copyrightable?

Answer: 

Answer Yes The work is the set of transmitted images Will be classified as a motion picture (see 102(a)(6)) “Motion pictures” are audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.

Answer: 

Answer “Audiovisual works” are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.

Answer: 

Answer Fix through simultaneous recording at time of broadcast A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

The Misappropriation Claim: 

The Misappropriation Claim Key Question Under what circumstances, if any, should a state be able to create additional protections?

Legis History: 

Legis History H.R. Rep. No. 94-1476 “Misappropriation” is not necessarily synonymous with copyright infringement, and thus a cause of action labeled as “misappropriation” is not preempted if it is in fact based neither on a right within the general scope of copyright as specified by section 106 nor on a right equivalent thereto. For example, state law should have the flexibility to afford a remedy (under traditional principles of equity) against a consistent pattern of unauthorized appropriation by a competitor of the facts (i.e., not the literary expression) constituting “hot” news, whether in the traditional mold of International News Service v. Associated Press, 248 U.S. 215 (1918), or in the newer form of data updates from scientific, business, or financial data bases.

2nd Cir Test in Motorola: 

2nd Cir Test in Motorola Five Elements Plaintiff gathers info at a cost Info is time-sensitive Defendant free-rides on plaintiff’s efforts Defendant’s service competes with that offered by plaintiff Free-riding would “substantially threaten” plaintiff’s incentives to produce the product in question

Identifying the Relevant Products: 

Identifying the Relevant Products Three Possibilities NBA Games TV and Radio Broadcasts of NBA Games Additional Add-On Products, such as SportsTrax

Court’s Final Answer: 

Court’s Final Answer Yes, time-sensitive, and yes NBA has directly competing service, Gamestats But: SportsTrax does not compete with games or broadcasts No free-riding by Motorola on Gamestats; Motorola gets info on its own from broadcasts Motorola wins

ProCD v. Zeidenberg: 

ProCD v. Zeidenberg Core Facts CD of 3000 telephone directories Assumed not copyrightable after Feist License attempted to segregate users into serious business users and casual consumer users

Basic Structure of Interaction: 

Basic Structure of Interaction Forming the Contract ProCD sells CD Box states software comes with license Running software triggers appearance of license In normal course, must click “yes” to get access to the software Disagree? Return software for full refund

Possible Views: 

Possible Views Z. and the Lower Court CD in box on shelf constitutes offer Purchase constitutes acceptance License irrelevant? 7th Circuit View Offer not made at store, rather made at point of click-through Click-through constitutes acceptance

Contract Questions: 

Contract Questions Key Question Was a contract formed? When? On what terms? Not Today

The Value of Price Discrimination in IP Goods: 

The Value of Price Discrimination in IP Goods Cost Structure of IP Goods Substantial fixed costs, here more than $10 million to create database Next to zero marginal costs Need Pricing Mechanism to Cover Fixed Costs

Assume Contract: 

Assume Contract Does 301 preempt it?

Writing 301(b)(3): 

Writing 301(b)(3) Starts with Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to …

Writing 301(b)(3): 

Writing 301(b)(3) The Adopted Version (3) activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106; A Prior Draft Version (3) activities violating rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106, including breaches of contract, breaches of trust, invasion of privacy, defamation, and deceptive trade practices such as passing off and false representation.

Legis History on Draft: 

Legis History on Draft H.R. Rep. No. 94-1476 Nothing in the bill derogates from the rights of parties to contract with each other and to sue for breaches of contract; however, to the extent that the unfair competition concept known as “interference with contract relations” is merely the equivalent of copyright protection, it would be preempted.

Easterbrook’s Key Point on Equivalence: 

Easterbrook’s Key Point on Equivalence Copyright v. Contract Copyrights are rights good against the world Contractual rights usually only bind the contracting parties The ProCD restrictions limit Zeidenberg, but not third parties Hence not “equivalent” to copy rights, hence not preempted