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Fair Use & Open Source Software


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Fair Use & Open Source Software

  1. 1. Fair Use & Open Source SoftwareROPES & GRAY LLP
  2. 2. Introduction • Vasanth Sarathy Associate Sarathy, – BS, SM, JD – Management and strategic development of intellectual property • Nate Kurtis, Associate – BS AB, MBA, JD BS, AB MBA – Use, licensing and other transactional applications of intellectual property ROPES & GRAY
  3. 3. DisclaimerThis presentation is provided for informationalpurposes only. It does not constitute legaladvice and should not be relied upon as legaladvice. For specific legal advice, please d i F ifi l l d i lconsult with an attorney.WhileWhil every effort has been made to provide ff h b d idaccurate and up to date information in thispresentation,presentation laws and rules vary by state andcountry, and change over time. You shouldverify the current local rules and laws thatgovern your legal issues. ROPES & GRAY
  4. 4. Agenda g• Copyright Background• Fair Use• Open Source Software ROPES & GRAY
  5. 5. What is Copyright? py g• System of Rights to Exclude• Rights Granted in the Public Interest – Constitutional Basis: Article I, Section 8, Clause 8 – Private Incentives v. Public Benefit• Traditionally Common Law, Increasingly Statutory y – Title 17 of the United States Code ROPES & GRAY
  6. 6. Title 17 of the United States Code Sec. 101 Definitions Reproduce Sec. 102 Protectability Distribute Sec. Sec 105 Perform P f Sec. 106 Exclusive Display Rights Create Derivative Works Sec. 107 Digital Retransmission Exceptions Do or Authorize The Doing Sec. 120 Sec. 200+ Transfer & Assignment Sec. 400 + S Registration i i Sec. 500+ Litigation ROPES & GRAY
  7. 7. Title 17 of the United States Code• Protectable: – “…original works of authorship fixed in any tangible medium of expression, now known or later developed…” – Literary, Musical, Dramatic, Pantomimes and Choreography, Pictorial, Graphic, Sculptural, Audiovisual, Sound Recordings, and Architectural Works• Not Protectable: – any idea, procedure, process, system, method of operation, concept, principle, or di ti t i i l discovery ROPES & GRAY
  8. 8. Exceptions to Copyright p py g• Fair Use (107)• Reproduction by Libraries and Archives (108)• Course Use (110, Circular 21)• The TEACH Act• Oth Others ROPES & GRAY
  9. 9. Libraries and Archives• A library or archive may create and distribute one copy if: – No direct or indirect commercial advantage – Open to the public or researchers in a set field – Includes a copyright notice• Three copies for archival purposes• Only applies to isolated and unrelated reproductions and distributions, not p systematic or concerted ROPES & GRAY
  10. 10. Course Use• Section 110 (1) – Classroom or instructional performance or display of a lawful copy of a work by an instructor or pupil in the course of face to face teaching activities of face-to-face a nonprofit educational institution is not infringement• Circular 21 • One copy for instructor for research and p p work py prep • One copy per pupil for classroom use: – Requirements: Brevity, Spontaneity, Non-cumulative – Not a substitution or replacement of the work ROPES & GRAY
  11. 11. The TEACH Act, Section 110 (2) , ( )• Provides a statutory exemption to enable distance learning. – Intended to merely allow the application of the same principles applicable to in-face teaching found in Section 110 to distance and asynchronous education. h d ti• However, the language is limiting. ROPES & GRAY
  12. 12. The TEACH Act, Section 110 (2) , ( )• Limitations: – “[R]easonable and limited portions” of copyrighted works, other than non-dramatic literary and musical works, and works created for mediated instructional use. – Only available to g y government bodies and “accredited” non-profit educational institutions. – Only allows transmissions to students officially enrolled i th course or t government ll d in the to t employees as part of their official duties. – Requires technological protection measures be taken to prevent retention of the work and further downstream dissemination. ROPES & GRAY
  13. 13. Agenda g• Copyright Background• Fair Use• Open Source Software ROPES & GRAY
  14. 14. Copyright Fair Use py g• It is a statutory (affirmative) defense not a defense, permission or a limitation on scope! – Argued post infringement infringement. – Defendant’s burden to raise and prove.• C t apply a f t Courts l fact-specific, f t d ifi factored analysis. – SCOTUS: “…the fair use determination calls for case-by-case analysis, and is not to be simplified with bright-line rules ” bright line rules. ROPES & GRAY
  15. 15. Copyright Fair Use py g• Fair Use Factors: 1: The purpose and character of the use – such as criticism, comment, news reporting, teaching (including multiple copies for classroom use) use), scholarship, or research 2: The nature of the copyrighted work 3: The amount of the work used 4: The effect on the market or value of the work Key: Is the use “Transformative”? – Does the use supersede the original or does it add something new, with a f further purpose or different ff character, altering the original with new expression, meaning or message? ROPES & GRAY
  16. 16. Copyright Fair Use py g• Don’t jump to fair use! Don t• Be very careful anytime your business plan hinges on fair use: – It won’t prevent litigation. – Fact-specific, factored analysis does not provide predictability of outcome. – Th defense can fail. The d f f il• There is no cutting edge technology exception to copyright law! ROPES & GRAY
  17. 17. UMG Recordings, Inc. v. g ,• Fair Use? – Purpose: • Commercial – Nature: • Close to Copyright Core – Amount: • Entire Works – Eff t Effect: • Usurps Further Market• Not Fair Use. Use ROPES & GRAY
  18. 18. Leibovitz v. Paramount Pictures ROPES & GRAY
  19. 19. Leibovitz v. Paramount Pictures ROPES & GRAY
  20. 20. Leibovitz v. Paramount Pictures• Fair Use? – Purpose: • Humorous commentary, but $ – Nature: • Moderate protection – Amount: • More than required to “conjure” – Eff t Effect: • Limited adverse effect – Highly Transformative• Fair Use. ROPES & GRAY
  21. 21. Castle Rock Entertainment, Inc. v.C l P bli hi GCarol Publishing Group, I Inc.The SAT: – 643 Trivia Questions – Back Cover: • “Hundreds of spectacular q p questions of minute details from TV’s greatest show about absolutely nothing ” nothing. ROPES & GRAY
  22. 22. Castle Rock Entertainment, Inc. v. C l P bli hi G Carol Publishing Group, I Inc.• Fair Use? – Purpose: • Commercial, sold the book – Nature: • Expressive, protected – Amount: • More than needed to comment – Eff t Effect: • Replacing – Repackaging not Transformation Repackaging,• Not Fair Use. ROPES & GRAY
  23. 23. Brownmark Films LLC v.Comedy P tC d Partners• Brownmark Films LLC Video Clip –• C Comedy P t d Partners Vid Cli Video Clip – episodes/s12e04-canada-on-strike i d / 12 04 d t ik – Parody begins at 7:52 ROPES & GRAY
  24. 24. Brownmark Films LLC v. Comedy P t C d Partners• Fair Use? – Purpose: • A “classic parody” – Nature: • Expressive –A Amount: t • Minimum amount needed to comment – Effect: • Limited or none. – Highly Transformative• Fair Use ROPES & GRAY
  25. 25. Kelly v. Arriba Soft Corporation y p• Fair Use? – Purpose: • Commercial, but not highly exploitative p – Nature: • Creative, published, protected – Amount: • Necessary to copy entire image – Effect: • No harm – Transformative –Different Different function• Fair Use. ROPES & GRAY
  26. 26. Kelly v. Arriba Soft Corporation y p ROPES & GRAY
  27. 27. Academic Use ≠ Fair Use• Simply using materials in an academic context does not, by itself, mean it is a fair use. – Which is why people write and publish textbooks and royalties are paid on bookpacks. y p p • Princeton University Press v. Michigan Book Services ROPES & GRAY
  28. 28. Academic Use ≠ Fair Use• Neither does use in a research context: – It is not surprising that authors favor liberal p photocopying; g py g; generally such authors have a far y greater interest in the wide dissemination of their work than in royalties -- all the more so when they have assigned their royalties to the publisher But publisher. the authors have not risked their capital to achieve dissemination. The publishers have. Once an author has assigned her copyright, her approval or disapproval of photocopying is of no further relevance • American Geophysical v. Texaco (J. Leval) ROPES & GRAY
  29. 29. Princeton University Press v. Michigan D Mi hi Document S i t Services, I Inc.• Fair Use? – Purpose: • Commercial – Nature: • Creative, expressive –A Amount: t • Major ideas copied, not insubstantial, smallest excerpt > 8,000 words – Effect: • If widespread, would adversely affect the potential market. – Not Transformative, used in same manner as original.• Not Fair Use. ROPES & GRAY
  30. 30. Blackwell Publishing, Inc. v. Excel R E l Research G h Group, LLC• Fair Use? – Purpose: • Commercial – Nature: • Creative, expressive –A Amount: t • Major ideas copied, not insubstantial amount – Effect: • Able to undersell fee-paying competition – Not Transformative, used in same manner as original. g• Not Fair Use. ROPES & GRAY
  31. 31. Cambridge University Press. v. GSU• Fair Use? – Purpose: – Nature: – Amount: – Eff t Effect: – Transformative?• Stay Tuned!! ROPES & GRAY
  32. 32. Agenda g• Copyright Background• Fair Use• Open Source Software ROPES & GRAY
  33. 33. Goals1.1 What it is and what it’s not it s2. How it works3. Appreciate its impact ROPES & GRAY
  34. 34. What is Open Source? p Open Source is a software development model ROPES & GRAY
  35. 35. The Typical Open Source Model yp p Project lead volunteer volunteer l t volunteer volunteer ROPES & GRAY
  36. 36. What else is Open Source? p Open Source is also a software licensing distribution model – In many ways, like commercial software – Pay attention to restrictions and obligations y g ROPES & GRAY
  37. 37. How does it work? Two-step p1.1 Copyright Law Rights to the Owner – Copyright attaches to a software module when created and stored – Owner initially has the exclusive right to copy, modify or create derivative or collective works of protected expression ROPES & GRAY
  38. 38. How does it work? Two-step p2.2 Contract Law – Software module is then made g available under an agreement (open source license) • Conditions use on accepting the agreement’s terms ’ • Can include important restrictions and effects ROPES & GRAY
  39. 39. Common Open Source Models p• GNU General Public License (GPL)• GNU Lesser General Public License (LGPL)• BSD, MIT, Apache• Mozilla, IBM, Apple, Sun ROPES & GRAY
  40. 40. GNU General Public License (GPL) ( )• “Virally” requires that source code be made Virally available to future licensees• Generally precludes the use of proprietary license• Disclaims warranties• Commonl seen in Lin applications Commonly Linux• Lesser GPL (LGPL) – Somewhat easier for licensees to combine the LGPL code with a separate program and distribute the combination under separate licenses p ROPES & GRAY
  41. 41. BSD/MIT/Apache Style Licenses p y• More permissive than GPL or LGPL – Allows free distribution, modifying, and license g change – No “viral” open source requirement – May require attribution – Enables proprietary software distribution• Di l i Disclaims warranties ti ROPES & GRAY
  42. 42. Mozilla/IBM/Apple Style Licenses pp y• Combines facets of GPL and BSD Styles – Distribution of original code (and certain modifications) has to include access to source ) code. – Not viral in reach• Explicitly contemplate patent licenses ROPES & GRAY
  43. 43. Effect of Models• Different models handle modifications differently BSD GPL/Mozilla GPL/M ill If you change a The changed module The changed module software module: may be licensed under may not be licensed any combination of under a proprietary proprietary and open license source licenses• No license provides recipients explicit patent indemnification ROPES & GRAY
  44. 44. What Open Source is not! p• Open Source is not free – Strings attached to use – “No free beer”• Open Source is not in the public domain• Open Source is not immune from patent rights ROPES & GRAY
  45. 45. General Drawbacks of Using OpenSource• IP Infringement• No Patent Indemnification• Warranty and Liability Issues are Unclear ROPES & GRAY
  46. 46. Commercialization/IP• The use of Open Source software does not prohibit the commercialization of research efforts or exploitation of IP – But may significantly impact the value• Data generated through the use of Open Source software is not subject to the Open Source license and may be sold or licensed ROPES & GRAY
  47. 47. QQuestions? // // Dear maintainer: // // Once you are d done trying to i optimize i i // this routine, and have realized what a // terrible mistake that was, please // increment the following counter as a // warning to the next guy: // // total hours wasted here = 16 total_hours_wasted_here // ROPES & GRAY
  48. 48. Fair Use & Open Source SoftwareROPES & GRAY LLP