Copyright+Infringement

=What is Copyright?=

All creative pieces of original work expressed in a tangible form such as written compositions, music and software are protected by a copyright. The owner has exclusive rights to the work, and a copyright registration and certificate proves ownership of their product.

=What is it?=

Infringement is, "the violation of a law or a right." This includes issues such as [|patent infringement], copyright infringement and [|trademark infringement]. [|Copyright infringement] occurs when one distributes or shares information without the permission of the copyright holder who has the exclusive rights to control reproduction or distribution of their intellectual property. According to the Berne Convention (the international source for copyright law) an original expression is protected by copyright as soon as the words leave your brain and land on paper or the computer screen, you're protected, and no further action is required on your part. The Berne term of copyright is the lifetime of the author plus 50 years in Canada and 70 in the US as a result of the Sonny Bono Copyright Term Extension Act (CTEA) which added 20 years to the life of a copyright. In this information age, the Internet provides users with unlimited opportunities and space to create and share their own work. Canadian court's system relies on judgments passed in the United States courts when faced with copyright issues. U.S. has a higher population and deals with more cases then does Canada and hence has more laws written. In 1998 the US passed the Digital Millennium Copyright Act (DMCA). The act illegalizes production and dissemination of technology to protect copyright and heightens the penalties for copyright infringement on the Internet.

The free rider problem exists for those who copies and disseminates works of others without their permission. In this digital era, most up-to-date piracy involves deeplinking, framing, software decryption, digital duplication, and P2P. Despite the internet having a wide range of information available for users and easy duplication systems, the copyright law strives to protect the product of the mind the same way as any form of real property.

Illegal downloading, copying, decrypting, linking, and framing may seem harmless but copyright infringement cuts down the royalties the IP holder deserves. Copyright Law exists to support the IP holder becauase virtually, any type of file can be duplicated and distributed inexpensively. Those who are caught are charged, jailed and must pay the owner of the copyright any profit received or that could have been recieved. Some user's decrypts softwares and attaches worms, viruses that infects other computers when fully downloaded. The penalties of copyright infringements have serious security implications, users still downloads, uploads, decrypts on a regular basis unconciously.

Deep Linking
"Deep linking is the practice of publishing a hyperlink from a page on one site to a page "inside" another site, by passing the "home" or "portal" page." (W3C). Tim Berners- Lee's dream of using hyperlinks is disputed because organizations feel that when their articles are deep-linked from other wepages without their permission, copyright infringements occur and they lose commercial profits.

Framing
Frames display contents from one webpage or site within another webpage. When users click a link, the parent frame refreshes itself and displays external contents in the same frame. If webpage A frames information from webpage B, then webpage A violates copyright law because the URL states that the content in the frames belong to Webpage A. The user will be confused and have the wrong impression that all the information belongs to webpage A. If external contents are linked to a blank target, users will know that the content belongs to two different sites because the URL will differentiate the two webpages.

Decrypting Softwares
Decrypting softwares is considered to be a copyright infringement because circumventing the anti-copying protection from software means that the software can be copied and distributed for a profit. Those who own the software programs build a digital wall, also known as encrypting the software with an anti-copying protection which prevents users from copying and disseminating the software.

Digital Duplication
Digital copies of files such as mp3's, documents, games, softwares, movies, literature, images, animations etc., are easy and costless to duplicate. Pirates and regular users violate the copyright law by duplicating digital copies of files in their daily life. The internet gives users the chance to publish their work online and also allows users to use them without permission. For example, consumers can buy CD's from HMV and rip it onto their desktops to manipulate or distribute across netweoks to other users because it is costless, efficient, and quick. Music files such as mp3's can be iteratively duplicated without any loss in

P2P
In the digital era, the use of networked computers, faster modems, and upgraded communication networks allows faster data transfer from one location to another within seconds. Extracting copyrighted music from CD's, compressing the files into mp3 format and transferring them through chatrooms, websites, or P2P networks like Kaaza, eDonkey, and limewire. Along with music, movies, images, software's, games are also downloadable from websites or P2P networks. Now days, MSN, Yahoo, or AOL messenger are networks to distribute files such as music, imges, documents and also share hyperlinks to refer to an idea or a creative work that one finds interesting. Users who are interconnected by global electronic communication networks share and download these digital copies of music with a clikc of a button without paying a penny. Record companies cannot controlthis dissemination of the copies of digital files. the process of developing and producing musical recordings are costly.

=Types of Infringement=

The copyright act defines three different theories of infringing acts. Direct infringement, contributory infringement and vicarious infringement.

Direct Infringement
“under which a work is infringed by a person who without a specific intent to infringe, does anything that only the owner has the right to do under the Copyright Act”.
 * **//[//****//Playboy Enters Inc vs Frena]//** where a bulletin board operator was held liable for direct infringement for the unauthorized distribution and display of images uploaded to and downloaded from Playboys system.

Contributory Infringement
A person who sells a material part of a patented invention as well as a person with the knowledge or reason to know of the infringing activity causes or materially contributes to the conduct of the direct infringer.
 * **//[Sega Enterprises Ltd. vs Maphia]//** a case where the courts did not find a bulletin board operator to have committed a direct infringement but nevertheless contributed to an infringement altogether. The users of the bulletin board were the direct infringers. The bulletin board operator in this case had knowledge that a user was copying document and carelessly avoided rectifying the situation thus contributed to copyright infringement.

Vicarious Infringement:
Vicarious infringement is related to certain commercial activities, such as selling infringing copies of books or other types of intellectual works.

All of the above activities are considered infringements of the owner’s rights. Innocence or ignorance of the existence of copyright is not considered a valid excuse to an action for direct infringement (Erola, Fox 67).

=**Remedies for Copyright Infringement**=

If there is a copyright of infringement and the case goes to court, the plaintiff can sue for monetary damages, statutory damages, attorney’s fees or preliminary injunction or a Temporary Restraining Orders. Respectively, the plaintiff can sue for the actual damages of the infringement and for any profits that is made by the defendant using the copyrighted material. If the copyrights are registered in the Copyright Office before the infringement, the plaintiff is entitled to statutory damages. The plaintiff can also recover part of the attorney’s fees provided by the defendant. Lastly, preliminary injunction or a temporary restraining orders can be set before the trial begins.

=Infringement Tests=

The courts have been trying to find fair ways to determine whether infringement has taken place. Of course, one of the safest tests is to check if the work appears to be similar to the original work. Courts generally use the term “copying” for a violation of the copyright owner’s exclusive rights. In order to prove copyright infringement, the plaintiff must prove the ownership of the copyright and copying of the work by the defendant in an infringement case. If the plaintiff is the copyright owner, all he needs to prove is the copying of the work by the defendant. In most cases, the plaintiff cannot provide solid evidence of copying. Because of this, courts have developed tests for determining copyright infringement when the plaintiff fails to show proof of direct copying. One of the tests is to show both sides have access to the work and substantial similarities exist between the infringing work and the copyrighted work. If the defendant can show there was no access to the work, in other words, the work was created independently. There will be no copyright infringement even if the works appear to be exact copy**.** If the defendant knew about the copyrighted work, but it is substantially different from it, there is no liability for copyright infringement. “Substantial similarity in the works is a highly fact-intensive inquiry and varies from case to case.” ** =Limitation on Copyright Law=

The fair use doctrine states that there are certain fair uses of a copyright that are authorized by law and do not require the consent of the copyright owners. There are four factors to consider whether there is a need of consent prior to using copyrighted materials. The first is determining the purpose of the use, commercial or educational. The second is the nature of the copyright materials. Newsworthy events or solely information based are considered appropriate. The third is the amount of the copyrighted material used in relation to the whole work. Lastly is the impact of the use on the potential market value of the copyright material. Diminishing the value of the copyright material is of course, not included.


 * Fair Use Defense (USA)
 * Fair Dealing Defense (Canada)

The US Copyright Act considers those four factors for Fair Use to be upheld (context and purpose, content, amount and impact of potential market). The US Copyright laws are fairly rigid and straightforward. Fair dealing has a similar meaning, stipulating that although the owner has exclusive rights, it cannot control all reproduction of his/her work by others. However the four factors are not exactly the consideration for fair dealing to be upheld. Research, education and charitable work are three specified activities where fair dealing is upheld. Criticisms, reviews, news reporting, and newspaper summaries are a few other exceptions that are also upheld. Canadian legislation for fair dealing is more narrow and doesn’t specify the same four factors as US does for Fair Use, but permits that the fair dealing exceptions cite the source and the name of the author/performer/broadcaster or who ever is primarily liable and responsible for the activity. (Shade, Regan. Leslie, 1995)

=Cases of Copyright Infringement=

Napster v. Grammys case Swirsky v. Carey case (2004)
 * || Cases Association of American Publishers (AAP) v. Google Inc ||
 * || Napster v. The Recording Industry Association of America (RIAA) ||

//The Justice Department of the United States v. Jeffrey Gerard Levy// The following case between //The Justice Department of the United States v. Jeffrey Gerard Levy//, dealt with Levy who had illegally posted computer software programs, musical recordings, entertainment software programs, and digitally recorded movies on his Internet Website. He was allowing the public to download and copy these copyrighted products. The United States District Judge Michael R. Hogan sentenced him for his involvement in criminal infringement of copyrights. The judge sentenced Levy to a two-year period of probation. “Levy was the first person convicted under the No Electronic Theft ("NET") Act, enacted in 1997 to punish Internet copyright piracy. The NET Act makes it illegal to reproduce or distribute copyrighted works, such as software programs and musical recordings, even if the defendant acts without a commercial purpose or for private financial gain” (Defendant Sentenced for First Criminal Copyright). This case is an example of the penalties received to a user who has committed an offense against copyright infringement. However harsh this penalty may seem, penalties are subject to change depending on how serious the offense is. For example under the No Electronic Theft Act, if a “defendant reproduces or distributes 10 or more copyrighted works that have a total value of more than $2,500, he or she can be charged with a felony, and faces a sentence of up to 3 years imprisonment and a fine of up to $250,000. A defendant who reproduces or distributes one or more copies of copyrighted works with a value of more than $1,000 can be charged with a misdemeanor, and face up to one year in prison and a fine of up to $100,000” (Defendant Sentenced for First Criminal Copyright).

Publishers vs. Google Print Library Project In one of the recent cases, the Internet company Google faced a legal action over its plan to launch its Google Print Library project in 2005. Google was trying to scan and digitalize copyrighted books and make them searchable online. Publishers and authors were extremely critical of the idea. The authors claimed that Google’s new project infringes the copyright of these individual authors. Some of them asked for damages and demanded an order to halt further copyright infringements (Shapiro 2005). However, Google had previously said that copyright holder could to have their books excluded from the database. But the authors argued that “this logic was backwards and that Google should first have approached representatives of writers and publishers to negotiate a fee for using the works”. (Shapiro 2005) The court decided to stop Google’s Print Library project for three months.

Copyright Laws Influence on Privacy of Individuals
Newly proposed changes to copyright laws if implemented will infringe on privacy of individuals. Proposed changes to copyright law don’t allow the public to enjoy copyrighted works freely and privately. An example of the restrictive nature of the proposed changes is that they outlaw the disabling of spy ware that monitors how people listen to songs, read e-books or watch DVD’s, making it illegal to break locks on content. Threats to freedom of speech are caused if a notice and termination system gets implemented in which copyright holders are able to generate notices and give them to internet service providers pressuring them to cancel access to thousands of Canadians, thereby blocking access to websites for material like health, financial and email services. Consequently, newly proposed changes to copyright laws infringe on peoples personal privacy as suggested by the article “[|The Truth about Copyright Revision]”.

Also, the newly proposed changes to copyright law will be a threat to Canada’s culture as discussed in the article “The Truth about Copyright Revision”. Consumer rights will be violated if new changes take place that allow multinational corporations to block small amounts of copying that traditional copyright law permits. These changes would be a great threat to Canadian culture because our culture thrives on creative work. Facts suggest that if the new changes to copyright law are in fact passed incorporated in law, they will increase the culture deficit that is already very large. “For example, for every one dollar earned by Canadians abroad in royalties, five dollars flows out of the country.”If the recommendations by the parliamentary committee are put fourth, it would mean millions more dollars flowing to American interests. And, a threat to innovation will be created because large multinational corporations will have monopolies over copyrighted material making it more difficult for smaller businesses to survive and create new products. Thus, the newly proposed changes to copyright law will be a threat to Canada’s culture as discussed in the article “The Truth about Copyright Revision”.

Besides, if the proposed changes to copyright are in fact passed into law, it will be a threat to Canada’s national security as argued in the article “The Truth about Copyright Revision.” Security research in Canada will be compromised if newly proposed copyright laws get passed. For example, computer scientists and academics in the United States lived in fear of conducting security research because they might infringe on copyright laws and be jailed for it. Many academics changed career paths because of fear of being prosecuted. Canada as a nation would be less secure if new copyright laws were introduced because researchers can’t test information systems for flaws. Therefore, if the proposed changes to copyright are in fact passed into law, it will be a threat to Canada’s national security as argued in the article “The Truth about Copyright Revision.”

=Works Cited=

__Defendant Sentenced for First Criminal Copyright Conviction Under the__ "__No Electronic Theft" (NET) Act for Unlawful Distribution of Software on the__ __Internet.__ December 01, 2001. U.S. Department of Justice United States Attorney's Office District of Oregon. Available at http://www.usdoj.gov/criminal/cybercrime/levy2rls.htm [ accessed from 23 February 2006]. Internet Business News. __US Authors to Sue over Google Print Library Project__. 21 Sept, 2005. AllBusiness. Feb 28, 2006. . Robert J. Shapiro. __Google vs. the Publishers__. 20 Jan, 2006. Texas Newspaper. Feb 28, 2006. http://www.statesman.com/opinion/content/editorial/stories/01/20Shapiro_edit.html. Gerald R. Ferrera, Stephen D. Lichtensten, Margo E. K. Reder, Robert C. Bird, William T. Schiano. __Cyberlaw Text and Cases.__ United States of America: Thomson Corporation, 2004. Judy Erola, Francis Fox. __A White Paper on Copyright__. Canada: Minister of Supply and Services Canada, 1984. David V. Radack. __Remedies for Copyright Infringement__. 1998. The Minerals, Metals & Materials Society. Feb 6, 2006. .