Unit 3 Copyright Law

True

Striking similarity is a ruling used by the courts when the plaintiff can't prove access but there is no reasonable possibility that the defendant independently created the work.

True

The statute of limitations period for copyright infringement claims begins to run from the moment the infringement begins

True

The use of an unpublished work is less likely to be considered a fair use than that of a published work

General Agreement of Trade and Tariffs

Includes an agreement on intellectual property called the Trade Related Aspects of Intellectual Property Rights

True

A commercial use creates a presumption of an adverse impact on the market for the copyrighted work.

True

A copyright infringement suit may only be filed in federal court

False

A copyright infringement suit must be filed in federal district court where the plaintiff is located.

True

A copyright owner may be able to recover profits that the infringer earned indirectly as a result of its infringement

Statutory Damages

A copyright owner may elect to receive at any time before the court makes its final judgement of liability in the case.

Injunction

A court telling someone to do or stop doing something

True

A digital music file uploaded from a computer to a website is a reproduction

False

A person who infringes a copyrighted work unintentionally, even without reason to believe that he is infringing, is ALWAYS liable for infringement.

True

A plaintiff may be awarded the profits of the infringer that are attributable to the infringement

False

A reproduction occurs when a work is entered into a computer for only a temporary period

False

A signed document abandoning copyright MUST be recorded with the US Copyright

True

A statute of limitations is a law that specifies a maximum time period during which a claim can be made

True

A transmission of music over the internet can constitute a public performance

Actual Damages

A type of compensatory remedies intended to compensate in order to be awared, the copyright owner must prove the amount of money it has lost because of the infringement

Universal Copyright Convention

Allows members countries to require some formalities as conditions to copyright protection.

The Uruguay Round Agreements Act

Amended Section 104(a) of the 1976 Copyright Act, providing for automatic restoration of copyright for certain foreign works that previously entered the public domain in the United States due to publication without copyright notice

True

Analysis of whether the value of the of the copyrighted work is affected by fair use requires a consideration of any actual harm to the market for the work and any harm to potential markets.

Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms

Became effective in the US on March 10, 1974

True

Because the copyright statute does not define substantial similarity, the court often applies the "ordinary observer" test

True

Circumstantial evidence of access may be established by showing the work was well known and widely available to the public.

False

Circumstantial evidence of copying may be proved by either access or substantial similarity

True

Copyright infringement occurs whenever someone exercises any of the exclusive rights without permission, provided there is a profit made.

Actual Damages

Damages awarded are equal to the fair market value of the use made by the infringer.

Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms

Designed to provide international protection against record piracy by recognizing the rights of reproduction, distribution, and importation of sound recordings.

The Berne Convention

Each member country's laws must provide for some fair use of copyrighted works for purposes such as education and news reporting

NAFTA

Enables producers of sound recordings to authorize or prohibit a recordings direct or indirect reproduction, importation of unauthorized copies, first public distribution, and commercial rental.

Attorneys' Fees and Court Costs

Encourage owners to bring infringement suits even when actual damages and profits or statutory damages may not sufficiently cover the expenses of litigation

NAFTA

Entered in 1992 by the United States, Canada, and Mexico

False

Even if a defendant can prove that he or she created the work independently and any similarities between the works are coincidental, the defendant will be liable for infringement.

False

FECA provides for criminal penalties for circumventing copyright protection systems and tampering with copyright management information.

True

Fair use is a priviledge that allows someone other than the copyright owner to use a copyrighted work in a reasonable manner without the owner's consent.

Only the defendant in a copyright infringement lawsuit may hire an expert witness to testify

False

True

For an infringement to considered willful, the government must prove that the defendant knew that its acts constituted copyright infringement or, at least, knew that there was a high probability that its acts constituted copyright infringement.

False

Fragmented similarity is the concept used when multiple small parts of a work have been copied.

The Berne Convention

Held in 1866 and resulted in a multi-national treaty.

True

In the first file sharing lawsuit to reach a jury decision, Jammie Thomas was found to have willfully infringed the copyrights in 24 sound recordings.

False

If a court finds a defendant guilty of infringement, the court must order the destruction of all infringing articles

False

If a use is for a nonprofit purpose, it can never be considered a fair use.

True

If a work is registered with the Copyright Office within 5 years of initial publication, the court will presume that the information contained in the registration is valid.

True

If an essential portion of a copyrighted work is used, it will weigh against fair use

False

If an infringement is made willfully, the infringer may be subject to criminal liability.

False

If an infringement is willful, statutory damages of up to $1,500,000 awarded to the plaintiff

True

If an infringer proves that he or she was unaware and had no reason to believe that his or her acts constituted an infringement of copyright, the court may reduce an award of statutory damages from the generally applicable minimum of $500 to not less than $200

False

If credit is given to the author or copyright owner, the use is considered a fair use

True

If defendant was not aware and had no reason to believe that its acts constituted infringement, the court may reduce the award of statutory damages to $200

Statutory Damages

If elected, a copyright owner does not have to prove the amount of its losses or the defendant's profits from the infringement

True

If the defendant reasonably believed that its use of a work was a fair use the court may decide not to award any statutory damages

False

If the infringement is of a continuing nature, the limitations period begins to run from the date of the first act of infringement.

True

If the plaintiff proves access and substantial similarity, the court will presume copying.

False

In US v LaMacchia, the court found that LaMacchia was subject to criminal liability based on the NET Act.

Statutory Damages

In order to be eligible, the copyrighted work must have been registered either before the infringement began or within 3 months after the work's initial publication

True

In some circumstances, some Circuit Courts might decide that, although material from a copyrighted work was copied, the amount copied is insubstantial and inconsequential, and therefore does not constitute infringement.

False

Irreparable harm is not normally presumed to exist in copyright infringement claims

Preliminary Injunction

Issued by the court when it seems likely that the plaintiff will be successful in proving infringement and the plaintiff would be irreparably harmed if not issued

True

It is a crime to knowingly make a false representation of a material fact in an application for copyright registration

True

Many radio stations transmit their broadcasts over the Internet through websites, a process known as "webcasting"

Injunction

May be temporary (pending resolution of the suit) or final

FAlse

Most often the copying of a work is proved by an admission of the alleged infringer that he or she copied it.

Virgin Records v Thomas

On Oct 4, 2007, the jury unanimously found that the defendant willfully committed copyrighted infringement and awarded statutory damages of $9,250 for each infringement (for a total of $222,000).

Effect of the use upon the potential market or value of the copyrighted work.

One of the fair use factors the court finds to be most important is:

False

Only the owner of a copyright may sue for infringement

False

Parody involves the use of a copyrighted work in order to comment on or make fun of something other than the copyrighted work, such as society in general.

True

Parody involves the use of a copyrighted work in order to criticize or make fun of the work

The Uruguay Round Agreements Act

Passed by the US in 1994 in order to implement the obligations imposed by TRIPS

NAFTA

Provides for a minimum copyright term of 50 years for sound recordings

Contributory Liability

Refers to a part who has knowledge of the infringing activity and induces, causes or materially contributes to the infringing conduct

Vicarious Liability

Refers to a party who has the right and ability to control an infringer's activity and receives a direct financial benefit therefrom.

Direct Liability

Refers to the person who actually commits the infringement

Secondary Liability

Refers to third parties who aid, contribute to, participate in or benefit from infringement.

Universal Copyright

Required certain min. levels of protection, such as a term of at least the life of the author plus 25 years

The Berne Convention

Required the protection of the right of reproduction, translation, adaptation, and public performance.

The Berne Convention

Requires that each country agree to give citizens of foreign countries the same degree of copyright protection that it gives to its own citizens.

True

Sending a cease and desist letter is often the first step taken if someone believes his or her work has been infringed

Three

The 1976 Copyright Act provides that a claim for copyright infringement must be brought within ________ years from the date upon which the infringement should reasonably have been discovered.

False

The DMCA makes it a criminal offense to make copyrighted work available to the public before they are officially released.

False

The DMCA makes it legal to manufacture, import, distribute, or provide products or services that are primarily designed or produced for the purpose of circumventing technological measures used by copyright owners to protect their works.

True

The DMCA provides for protection of information embedded into a digital file that identifies the work such as the author, the copyright owner, the performer, and the terms and conditions for the use of the work

True

The DMCA's Anti-Piracy Provisions include anti-circumvention and the protection of copyright management information

False

The First Sales Doctrine applies to a reproduction but does not apply to a distribution

True

The NET Act expanded the Copyright Act's definition of financial gain to include the receipt, or expectation of receipt, of anything of value including the receipt of other copyrighted works and including the receipt of other copyrighted works.

Sony BMG v Tenenbaum

The RIAA contacted the defendant in 2005, demanding that it stop the infringing activity and offereing to settle the matter. The defendant did not comply

MGM Studios v Grokster

The SC held that the defendants were likely guilty of contributory copyright infringement by inducing and encouraging users of their software to infringe.

The Berne Convention

The US joined in 1989

Universal Copyright Convention

The United States joined on Sept. 16, 1955.

True

The court in Atlantic v Howell held that making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right of distribution

Atlantic Records v Napster

The defendant argued that it had not committed any infringements because the files traded, instead of being stored on its computer servers, were stored on individual computers

The Berne Convention

The duration of copyright protection must be at least for the life of the author plus 50 years.

True

The first case to apply fair use involved an infringement suit brought in 1841 by the copyright owner of a 12-volume historical work on George Washington against a defendent who had made a condensed version of the plaintiff's work

False

The four factor test to be used to determine whether a specific use is fair is found at 17 USC 701

False

The general range of statutory damages is $750-$150,000

Witnesses' memories fades, relevant documents are lost, witnesses die

The longer one waits to bring a legal claim, the more difficult it is to resolve a dispute fairly because:

False

The primary two ways music is distributed over the Internet are digital downloading and stealing

False

The rule regarding how much of a copyrighted work may be copied and still considered fair use is an absolute rule.

MGM Studios v Grokster

This case establishes that a company can be held liable for copyright infringements committed by users of it technology only if the company takes active steps to induce infringement

False

To prove infringement, you must prove either ownership or copying.

false

To provide substantial similarity, the plaintiff must show that a minimum of 2 notes were copied

True

Under 17 USC 512(a) of the Copyright Act, an online service provider is not liable for the transitory communications

False

Under 17 USC 512(c) of the Copyright Act, an online service provider is liable for infringing material on websites which are hosted on their systems at the direction of the user.

True

Under 17 USC 512(d) the liability of service providers that link users to websites (through hyperlinks, directories, search engines, etc.) which contain infringing material is limited

True

Under first sales doctrine, a copy or phonorecord containing a copyrighted work which has been legally acquired can be sold without the copyright owner's consent.

True

Under the DMCA, the penalty for repeat offenders who circumvent copyright protection systems may be increased to a fine of up to $1,000,000, imprisonment of up to 10 years, or both.

Impoundment

Upon the filing of an affidavit by the plaintiff identifying the number, value, and location of the alleged infringing copies or devices, the court can order a federal marshal to seize and hold the materials identified in the affidavit

False

Use that criticize or comment, and uses related to education are ALWAYS considered fair use

True

When determining whether a copyright owner has abandoned his or her rights in the copyrighted work the court will look for intent and the manifestation of intent through come overt act.

True

When you stream a song, no permanent copy of the music transmitted is made on your computer because the audio is merely "streaming" through the computer on its way to speakers connected to the computer

TRIPS

member countries must agree to enact copyright laws that give effect to the substantive provisions of the Berne Convention

TRIPS

provides for a practical international enforcement system for intellectual property rights, the lack of which has been a major weakness among all of the other multinational treaties

TRIPS

provides for a term of protection for performers and producers of phonograms of 50 years from the date of the performance or fixation and 20 years for broadcasts from the year in which the broadcast took place