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Lecture 10

PUBPOL 373 Lecture 1: September 15th Reading Notes

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Public Policy Studies

September 15 Reading Notes Computer Associates Intern, Inc. v. Altai  A programmer will normally attempt to maximize the program’s speed, efficiency, as well as simplicity for user operation, while taking into consideration certain externalities such as the memory constraints of the computer upon which the program will be run  Williams was aware of both the CA-SCHEDULER and ADAPTER programs. However, Williams was not involved in their development and had never seen the codes of either program  Arney went to work creating OSCAR at Altai’s offices using the ADAPTER source code  Arney had copied approximately 30% of OSCAR’s code from CA’s ADAPTER program  After Arney confirmed to William’s that CA’s accusations of copying were true, Williams initiated OSCAR’s rewrite. The project’s goal was to save as much of OSCAR 3.4 as could be used and to excise those portions which had been copied from ADAPTER  From that point on, Altai shipped only OSCAR 3.5 to its new customers. Altai also shipped OSCAR 3.5 as a “free upgrade” to all customers that had previously purchased OSCAR 3.4. While Altai and Williams acted responsibly to correct Arney’s literal copying of the ADAPTER program, copyright infringement had occurred  CA asserts that the test applied by the district court failed to account sufficiently for a computer program’s non literal elements  Copyright protection extends beyond a literary work’s strictly textual forma to its non- literal components  CA argues that despite Altai’s rewrite, the resulting program remained substantially similar to the structure of its ADAPTER program  Copyright protects computer programs only “to the extent that they incorporate authorship in programmer’s expression of original ideas, as distinguished from the ideas themselves.”  The variations of expression found in purely creative compositions, as opposed to those contained in utilitarian works, are not directed towards practical application. o The copyright to a work on mathematical science cannot give to the author an exclusive right to the methods of operation which he propounds, or to the diagrams which he employs to explain them, so as to prevent an engineer from using them whenever occasion requires  Distinguish protectable expression from that which “must necessarily be used as incident to” the work’s underlying concept  Examine the structural components at each level of abstraction to determine whether their particular inclusion at that level was “idea” or was dictated by considerations of efficiency, so as to be necessarily incidental to that idea; required by factors external to the program itself; or taken from the public domain and hence is non-protectable expression  “When there is essentially only one way to express an idea, the idea and its expression are inseparable and copyright is no bar to copying that expression.” The expression is said to have “merged” with the idea itself  While hypothetically, there might be a myriad of ways in which a programmer may effectuate certain functions within a program, i.e. express the idea embodied in a given subroutine-efficiency concerns may so narrow the practical range of choice as to make only one or two forms of expression workable options o It is quite possible that multiple programmers, working independently, will design the identical method employed in the allegedly infringed work. If this is the case, there is no copyright infringement  Where “it is virtually impossible to write about a particular historical era or fictional theme without employing certain ‘stock’ or standard literary devices,” such expression is not copyrightable o In many instances it is virtually impossible to write a program to perform particular function in a specific computing environment without employing standard techniques  Patent registration, with its exacting up-front novelty and non-obviousness requirements, might be the more appropriate rubric of protection for intellectual property of this kind American Broadcasting Companies, Inc. v. Aereo, Inc.  Aereo provides a service that allows viewers to watch television programs over the internet at about the same time as the programs are broadcast over the air  Aereo neither owns the copyrights in those works nor holds a license from the copyright owners to perform those works publicly  Aereo streams a person copy it made of the show to each viewer via the internet  Aereo was infringing their right to “perform” their works “publicly,” as the Transmit Clause defines those terms  Aereo claimed it does not perform publicly within the meaning of the Transmit Clause because it does not transmit “to the public.” Rather, each time Aereo streams a program to a subscriber, it sends a private transmission that is available only to that subscriber  To “perform” an audiovisual work means “to show its images in any sequence or to make the sounds accompanying it audible”  Both the broadcaster and the viewer of a television program “perform,” because they both show the program’s images and make audible the program’s sounds  “The concept of public performance… covers not only the initial rendition or showing, but also any further act by which that rendition or showing is transmitted or communicated to the public.”  A copy shop is not directly liable whenever a patron uses the shop’s machines to “reproduce” copyrighted materials found in that library o Aereo should not be directly liable whenever its patrons use its equipment to “transmit” copyrighted television programs to their screens  One may transmit a performance to the public “whether the members of the public capable of receiving the performance… receive it… at the same time or at different times Were the words “to transmit… a performance” limited to a single act of communication, members of the public could not receive the performance communicated “at different times.” o When an entity communicates the same contemporaneously perceptible images and sounds to multiple people, it transmits a performance to them regardless of the number of discreet communications it makes  A copy of a work is simply a “material object… in which a work is fixed… and from which the work can be perceived, reproduced, or otherwise communicated.” So whether Aereo transmits from the same or separate copies, it performs the same work; it  An entity performs publicly when it performs at “any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered  An entity does not transmit to the public if it does not transmit to a substantial number of people outside of a family and its social circle Three Boys Music Corp. v. Bolton  A jury found that Michael Bolton’s 1991 pop hit “Love is a Wonderful Thing,” infringed on the copyright of a 1964 Isley Brothers’ song of the same name  The original song was not released on an album, only on a 45 record as a single  The song was never listed on a
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