UNIT 3 Exam Study Guide
What to LEARN for UNIT 3
Copyright and Trademark
The comparison Dr. Kerr used to explain the best way to think about the reality of taking intellectual property without permission.
- Taking intellectual property without permission is like speeding while driving. You may not get caught, but when you do get pulled over for speeding, the law is on the side of the police. So it is when you steal intellectual property, for it is often gotten away with, due to the advancement of technology. This advancement has also increased the level of punishment for dealing with Don't forget about the age old question of What are the advantages and disadvantages of an experimental design in an educational study?
people who do commit intellectual property theft. - The law views intellectual property the same way in order to keep owners from having their property stolen. - There is a significant societal interest in protecting property.
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What Dr. Kerr said are the two biggest reasons that the dynamics involved in intellectual property have been transformed so dramatically in recent years.
- The two biggest reasons for changes within dynamics of intellectual property and theft thereof are:
- 1) Technology opens up the possibility for the public to digitize almost any form of digital property - 2) People can electronically transfer/receive almost any kind of intellectual property sometimes instantly - Negative results..
- Digital Piracy- digital taking or recording of intellectual property without permission - Illegal Downloading- through the internet stealing digital property has become so common many people often don’t think it’s a serious crime
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The three-part test for determining copyright infringement.
- Plaintiffs must first prove:
- (1) Originality—that the material in question was original enough to be legitimately copyrightable - (2) Access—meaning its dependent on how widely available the work in question was (some ability to access) - Examples/Cases of Access: If you want to learn more check out A geologist collects hand-specimen sized pieces of limestone from a particular
area. a qualitative assessment of both texture and color is made with the following
results. is there evidence of association between color and texture for these
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- Miller Brewing v Carling O’Keefe (1978) - Miller Lite ads on TV were ruled clear evidence of access
- Bright Tunes Music v Harrisongs (1978) - a pop hit song owned by Bright Tunes Music was ruled as sufficient access for public to be copyrightable material - Jason v. Fonda (1981) - due to the fact that merely a few copies of a novel were in circulation was ruled not sufficient access - (3) Substantial similarity - Universal Studios v. Film Ventures (1982) - the key elements of the Film Adventures film “Great White” was ruled substantially similar, and therefore, copyrighted property of Universal Studios film “Jaws” - Warner Bros v ABC (1981) - the superhero character of an ABC TV series called “Greatest” the American hero was ruled not substantially similar to the well-known superhero in the film “Superman” Don't forget about the age old question of What is the personal and social impact of alcoholism?
Why the concept of “transformative expression” is important.
- Under the fair use doctrine when infringement is in question, proving transformative expression is a requirement for proving fair use - A crucial consideration is that the copying must add something new - an original contribution of transformative expression, meaning or message - to that which is copied
The four-part test for determining if a copyright infringement is a fair use -- and which part is specified as the most important.
1) Purpose and character of the use
- Most likely to qualify as fair use when copying involves reporting, criticism, commentary, teaching, scholarly or technical research - Advertising - unlikely to qualify as fair use - Corporate or commercial - generally not qualified as fair use - Personal entertainment qualifies - Sony v Universal Studios - Home recording of TV Shows - Parody qualifies - Campbell v Acuff-Rose Music (1994)
2) Nature of the copyrighted work - Basically the more original and or expressive the copyrighted work is, the less fair use tends to be allowed - More fair use is allowed with works that require little originality (dictionaries, lists, stock tables) than those that do novels, plays, movies) - Little fair use is allowed with poems, songs, and unpublished manuscripts and letters
3) Amount and substantiality of the portion use - Basically, the greater the amount of copying in relation to the size of the copying works is, the less fair use tends to be allowed - Fair use declines as proportion copied increases - The shorter the copyrighted work the less copying will be allowed as fair use
- Quality may negate fair use of even small amount - as the Supreme Court made clear in Harper and Row v. Nation (1985)
4) Effect upon the works potential market **most important factor in determining fair use**
- Key issues are profits made via the copying and diminished value caused by the copying itself - Will it diminish its value or potential value - Sony v Universal Studios (1984) - Supreme Court said noncommercial home recording would not damage market and might even boost market by adding
more viewers (time-shifting) - and time has proven that true - Basic Books v Kinkos (1991) - Commercial copying of course packs without permission was ruled to be damaging to publishers markets
How trademark and copyright differ.
- Trademark law protects property value in words, symbols, etc., that are not covered by copyright law - Signs, titles, names, slogans, etc. that businesses use to differentiate themselves - Originated in common law of unfair competition - Different from copyright law because it protects not original expressions, but rather marks established in commerce as distinctive - Prevents competitors from unfairly capitalizing on investment made to associate name with product
The two key elements involved in trademark infringement.
- In trademark infringement cases, the two factors courts particularly consider are likelihood of confusion and dilution of distinctiveness - Likely to confuse consumers as to what it conjures up and likely to dilute distinctiveness of trademark itself..distinctiveness is at the heart..found to be trademark infringement
- Estate of Presley v Russen (1981) - Elvis imitator ruled likely to create impression he was sponsored by Presley estate (Used Elvis Presley, the Elvis Pose, TCB) - Coca-Cola v Germini Rising (1972) - Use of distinctive script. color on Cocaine posters ruled potential dilution - Hasbro v Internet Entertainment (1996) - porn site candyland.com ruled potential dilution (candy land game) - Moseley v Victorias Secret (2003) - Victors Little Secret adult-novelty shop ruled not dilution
Broadcast and Internet law
The basis for why the First Amendment allows broadcast messages to be regulated in different ways from other messages.
- Broadcast comes through limited public airways
The role of the FCC in broadcast regulation.
- Control tv and all media like that, enforce regulations, develop new ones, FCC regulation of indecency in television programming - FCC can regulate indecency for broadcast but not for cable - FCC regulation related to television programming for children has very little regulation - Children's TV Act- requires 3 hours of child programming- most don't do this. v-chip- blocks programming for kids if you would like
The big difference from broadcast regulation in the way the First Amendment applies to regulation of the Internet. - It is extremely protected and has the same protection from gov as the press.
What principles have been most influential in media law concerning the Internet.
- Infinite number of sources, lack of gatekeepers, parity among senders and receivers, low cost, jurisdiction, ambiguity
The huge difference in what the Supreme Court said about First Amendment protection for advertising in the Valentine v. Chrestensen and Virginia Pharmacy cases. - Supreme Court said in the Valentine v. Chrestensen it was purely commercial advertising had no constitutional (1st amend) protection - Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976)
- First Amendment protection first established for purely commercial speech - Supreme Court said advertising of truthful information about entirely lawful activity is protected - The Court said consumers in a free-enterprise economy have a public interest in the free flow of factual commercial information to make intelligent, well-informed decisions
Which would be the most important First Amendment advertising case for advertisers AND which for consumers -- and why.
- To Advertisers: Virginia Pharmacy v. Virginia Consumer Counsel - gave truthful commercial speech (some) first amendment protection - To Consumers: Central Hudson v. PSC: created a test designed to protect consumer interests and fair bargaining process
What the important test established in Bolger v. Youngs Drug Products does AND how it does that.
- Tests whether speech is commercial or political:
1) is speech in ad format
2) does speech reference a specific product
3) is there commercial motivation to buy
What the Supreme Court established in MGM Studios v. Grokster concerning file-sharing services and copyright infringement.
- Supreme Court ruled that P2P file sharing services are liable for copyright violations of its users
What the Supreme Court established in Red Lion v. FCC that remains the most important precedent in broadcast law to this day.
- Ruling required broadcasters to provide opportunity to answer personal attack was held to enhance rather than abridge freedom of speech
*Precedent: Because broadcasters use public airwaves, broadcasters can be required to serve the public interest - which can be defined by congress/FCC
What the Supreme Court has said about FCC regulation of indecency on broadcast and cable television in its group of cases on the subject, particularly these three cases: (1) Pacifica, (2) Playboy, and (3) Turner Broadcasting. - Courts held regulation is justified on basis of limited broadcast spectrum requiring a duty to serve public interest - Regulate sexual words & images that aren't classified as obscene - Congress punishes more aggressively since Janet Jackson at the Superbowl - FCC v. (1) Pacifica; US v. (2) Playboy; FCC v. (3) Turner - (1) Supreme Court ruled broadcasting is more intrusive and accessible to children; so it is constitutional to regulate broadcast indecency - (2) Rules same indecency standard cannot be imposed on cable TV - (3) Cable operators ruled to have 1st am. rights greater than broadcasters but
not as great as written media; content-neutral regulation of cable is constitutional if narrowly tailored to serve an important gov. purpose & restrict free speech as little as possible
The very important principle that the Supreme Court established in Reno v. American Civil Liberties Union concerning the Internet.
- The Supreme Court declared the internet should receive "the highest protection from government intrusion” - Essentially has same 1st Amendment protection as the press, in contrast to relatively more limited protection that broadcast has - Considered top of the Hierarchy of Protection