Review and Analysisof

MPCComputer and Network Use

AP 3720

Review conducted by Mary E. Cain, Esq.

3855 Via Nona Marie, Ste 301, Carmel, CA 93923O: (831) 534-5299 mobile: (831) 241-2599

Email: mcain@cainlawofcalifornia.com

I. Scope and Applicability

• Issues: Vague references to policies/guidelines

Suggestions: Clarify which policies and guidelines are incorporated

by explicitly referring to them in context Offer hyperlinks to incorporated policies and guidelines

Compels users to “understand and agree” to these terms Only use word “understand” once at the bottom when

requesting agreement.

I. Scope and Applicability

• The last portion of paragraph A is unclear but may be attempting to refer to 47 U.S.C. § 230 (portion of the federal Communications Decency Act that provides immunity from certain civil liability for providers and users of interactive computer services when the content at issue was provided by someone other than ISP).

I. Scope and Applicability

• For immunity to apply to MPC, MPC must be deemed a provider or user of an

interactive computer service, the cause of action (purported wrongdoing)

against it must require that plaintiff treated defendant as “publisher or speaker” of the harmful content, and

the harmful content must have been generated by an information provider other than MPC.

I. Scope and Applicability

• The last sentence of I.A appears to be an attempt to ensure 47 U.S.C. section 230-based immunity applies to MPC. If so, it must be modified to show (a) users acknowledge that MPC is a providing internet services but disclaiming publisher status and (b) users acknowledge and agree that MPC is not endorsing or publishing content transmitted over the system but provided by third-party information providers. Rework the language.

II. General Policies• A. Copyrights and Licenses

• 3. Copyrights

The HIGHER EDUCATION OPPORTUNITY ACT of 2008 requires colleges to

• Inform students on an annual basis that unlawful distribution of copyrighted materials may subject them to civil and criminal penalties as well as the actions of the college that such unlawful conduct may invoke (for an example of how this may be effectuated, see Stanford’s Copyright Reminder Notice’s sections on DMCA and Peer-to-Peer File-Sharing)

• Certify to the Secretary of Education that the college “has developed plans to effectively combat the unauthorized distribution of copyrighted material, including through use of a variety of technology-based deterrents

• Offer alternatives to illegal downloading or peer-to-peer distribution of IP to the extent practicable.

• The last portion shall be devised by the institution in consultation with its chief technology officer. An option for incorporating a link to MPAA’s legal download list site has been incorporated into II.A.3.

A Primer on Copyright Law

• What does it protect?Works of original authorship – that is, expression in

a tangible medium. Copyright protects works such as

• music recorded in any form, drama performances (movies, plays, etc.), written works (poetry, prose, computer software “code”), works of art (sculptures, architectural drawings, paintings, creative art affixed in any medium, including digital media), webpages, etc.

Copyright law protects nearly all forms of captured content with some exceptions.

Copyright Law: Rights • What rights are included in Copyright Law?

As soon as the expression is fixed in a tangible medium, it is endowed with copyright protection.

No registration is required for copyright to inhere in a work. (Registration is, however, required to obtain certain remedies for infringement.) Penalties for infringement are financially significant.

The author of a copyrighted work has the right to exclude others from doing certain things with his work.

In the absence of an exception that allows the use in question, no other person may (without the author’s permission):

– Copy the Work,– Distribute (Circulate, Disseminate) the Work,– Publicly Display the Work,– Publicly Perform the Work, or– Create a Derivative Work.

• In addition, some works of visual art have rights of attribution and integrity under both federal law (section 106A of the 1976 Copyright Act) and state statutes (CA, NY)

Copyright Law: Exceptions• EXCEPTIONS:• The Author’s rights are exclusive. However, the rights are

subject to limited exceptions and, in some cases, compulsory licensing with payment of royalties. In academia, there are five major exceptions that may apply dependent upon context: Fair use, Face-to-face teaching exception, Distance-learning exception, First-sale doctrine, and Library and Archives exception. These five exceptions are described in the next slides. Note the lack of any over-arching academic use exception.

Copyright Law: Fair Use Exception FAIR USE

• Under the Fair Use Doctrine, you may make certain limited uses of copyrighted materials for an educational or research purpose in the absence of the copyright owner’s permission.

• It is not a blanket exemption. • Upon challenge, a four-part test for fair use may be

applied. • Good Faith Fair Use Defense. Even if the use is found

to infringe, courts may refuse to award damages where the infringer *reasonably* believed the use was fair use.

Copyright Law: Fair Use ExceptionFair Use Four-Part Test

Step 1 – Consider the character of the use. Educational, nonprofit and personal use is favored for fair use, while commercial use is disfavored. Use must also be “transformative,” meaning that it builds upon, criticizes, comments on, parodies or otherwise adds something new.

Step 2 – Consider the nature or type of work to be used. Use of a work that is factual in nature is more likely to fall within fair use doctrine than is use of an imaginative work.

Step 3 – Consider the AMOUNT and SUBSTANTIALITY of the portion to be used.

Step 4 – Consider whether the use could negatively affect the market for or value of the copyrighted material. If the work may be purchased or licensed at a reasonable cost, then freely copying all or a significant portion of it is unlikely to count as fair use, even for use in the classroom. Conversely, if only a small portion is to be used and the educator would forgo the use were a purchase or license required, then fair use may apply. See http://www.copyright.gov/fls/fl102.html for guidance on Fair Use.

Copyright Law: Face-to-Face Teaching Activities ExceptionFACE-TO-FACE TEACHING ACTIVITIES

• The Copyright Act provides an exemption for the performance or display of copyrighted materials during face-to-face teaching activities.

• No permission, purchase or license is required. • Note, however, that this exemption does not

permit exploitation of other rights [Copying and distributing the work still require permission or another exception.

• Only displaying or performing it during class time is O.K. without permission.

Copyright Law: Distance Education Exception

DISTANCE EDUCATIONDistance Learning and the TEACH Act:• Basically, the TEACH Act provides a limited

extension of the Face-to-Face Teaching Exemption to the distance learning setting.

• The Teach Act allows transmissions of performances of entire non-dramatic works and reasonable and limited portions of any other performance or audiovisual works, provided that teachers adhere to the requirements of the Act.

Copyright Law: TEACH Act, cont’dTo be covered under the TEACH Act Exemption, the performance or display must be a regular part of mediated instructional activity;made by, at the direction of, or under the supervision of the instructor; anddirectly related and of material assistance to the content of the course.

And technological restraints must be in effect:the content must be accessible only to those students who are enrolled in the course (i.e., no “guest” visitors);the content must be accessible only for the duration of a class session; to the extent technologically possible, the content must be protected from further distribution ("downstream-controlled"); and to the extent technologically possible, the content must not be subject to retention by students.

Copyright Law: DE Required Notice

• IMPORTANT: All material displayed under the TEACH Act must contain the following notice:

“The materials on this course website are only for the use of students enrolled in this course for purposes associated with this course and may not be retained or further disseminated. The materials on this course website may be protected by copyright; any further use of this material may be in violation of federal copyright law.”

Copyright Law: When is it O.K. to Digitize Works?

Teachers may digitize works for display from an analog format provided that:

no existing licensed digital copy is available for use at the college; and

only a reasonably limited portion needed for transmission is digitized.

(These guidelines were adapted from Stanford’s Copyright Reminder Notice available at www.stanford.edu, which further links to a checklist for the TEACH Act developed by Georgia Harper, which is available at http://www.utsystem.edu/ogc/intellectualproperty/teachact.htm)

Copyright Law: The First-Sale Exception

THE FIRST-SALE DOCTRINE • If you own a lawfully obtained copyrighted work, you

have the right to dispose of that copy (lend, rent, sell, give-away, or otherwise dispose of it) without permission.

• Under the first-sale doctrine, a faculty member could lend out her copy of a book or a DVD to students.

• This exception does not apply to recorded music! • Whether it applies to software is debated, and many

software licenses prohibit the use of the first-sale doctrine.

Copyright Law: DMCA

• The DMCA (Digital Millennium Copyright Act)• Keep in mind that it is illegal to circumvent

any technological measure designed to restrict access to a copyrighted work.

• So, even if a use would otherwise be permissible as fair use, it could be illegal under the DMCA if you have to circumvent a technological restraint to gain access.

Copyright Law: Use of Links

LINKING• Safe bet: Link to it. Linking does not use any

exclusive rights. • Contributory infringement/Secondary liability

possible so make sure you link to an authorized online source of the information.

Copyright Law: Permission to Use

PERMISSION TO USE COPYRIGHTED MATERIAL• If the work is protected and no exception

applies, permission must be sought.• Requests may be made to the publisher’s

permissions department or author.• Rights of a copyright owner may be licensed

(e.g., a non-exclusive, non-transferrable right to reproduce and distribute X # of copies in Y region)

Copyright Law: Public Domain Works

• What about the Public Domain?Not all works are copyrightable, and all works fall into

the public domain eventually, but the duration of copyright is quite long.

Works published by the United States government and databases of facts are by their very nature not subject to copyright protection. However, state and local government works may receive copyright protection

Once the term of copyright protection expires, that work also falls into the public domain and may be freely used.

Copyright Law: Duration of Copyright

APPLICABLE TERMS:– Any work published in the United States before 1923 is in the public

domain. – Works published from 1923 through 1963 are protected for 95 years

from the publication date, if the copyright owner took certain steps to ensure renewal of the copyright, or if the work remained protected by copyright under another country’s laws. Many works published from 1923 through 1963 did fall into the public domain.

– Works published from 1963 through 1978 are protected for 95 years from publication date.

– Since 1978, works generally have copyright protection for the life of the author plus 70 years.

– The above terms are the default terms for works by individual authors; works-for-hire may have a different term. Also, authors are free to modify the scope of their exclusive rights willingly, such as by issuing Creative Commons licenses

Inquiry re: Copyright in Instructor-Authored Course Materials

• Instructional materials may be considered “works made for hire,” which include

• 1) a work prepared by an employee within the scope of his or her employment; or

• 2) a work specially ordered or commissioned for use as: ... an instructional text, a test, answer material for a test.... if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

Exemplar Policy• Confirm MPC’s work-for-hire provisions by reviewing policies and

any contractual provisions.• SU’s policy includes the following statement (see Copyright

Reminder, available at http://www.stanford.edu): “Copyright is the ownership and control of the intellectual property in original works of authorship which are subject to copyright law. It is the policy of the University that all rights in copyright shall remain with the creator unless the work is a work-for-hire (and copyright vests in the University under copyright law), is supported by a direct allocation of funds through the University for the pursuit of a specific project, is commissioned by the University, makes significant use of University resources or personnel, or is otherwise subject to contractual obligations. Please review the entire policy at http://www.stanford.edu/dept/DoR/rph/5-2.html.”

Additional Resources

• US Copyright Office http://www.copyright.gov/circs