Copyright
Spring 2007
Associate Professor Paul Ohm
Syllabus
Course Description
This course investigates the principal system of legal protection for expressive content under American law. In the information economy, Intellectual Property in creative works comprises a large and growing percentage of the wealth held by many corporations and individuals. Strong Copyright protection encourages new creative works and helps American companies stay competitive in the global marketplace. At the same time, Copyright Law is a balance, drafted and construed to allow artists, authors, musicians, and others to build and borrow on the creative works that have come before. Striking this appropriate balance is one of the central policy challenges explored in this course.
This is a course that emphasizes statutory interpretation. The Copyright Act is a complicated, often counter-intuitive text, and we will try to make sense of parts of it, consider how to improve it, and speculate about how it evolved into its present form.
Class Times and Office Hours
The class will meet every Monday and Wednesday from 1:00pm – 2:15pm in Room 205. I generally will be available for office hours immediately after class, on Monday and Wednesday afternoons from 2:30pm – 3:30pm in Room 433 or at any other time by appointment. I can also be reached via e-mail at paul.ohm@colorado.edu.
Course Expectations
Grading. Grades for the course will be based on (1) a final exam, (2) a short written assignment accompanying a role-playing exercise, and (3) class participation. I value class participation highly and will count it toward your final grade. Grades can be increased or decreased up to three points to reflect participation.
The final is worth 70% of your grade, and the role-playing exercise is worth 30% of your grade, although I will curve the exercise so that the large majority of the class receives the same "pass" grade. Some students will receive a "high pass" and some students may receive a "low pass," (although it is possible that none will) scores which will have a greater effect on final grades. I anticipate that fewer than 20% of the class will receive these high and low grades, although that is a prediction, not a promise. The assignment is described in more detail in the next section, "Course Methodology."
Participation. I expect you to be prepared to participate every class and will call on you without prior notice. If, however, you are unable to prepare for class on a particular day for whatever reason, please attend anyway. Send me an e-mail at least one hour before we begin, or leave me a note on the podium at the front of the room before class starts and I will not call on you during that day. You may not use this "pass" more than three times during the semester unless you come talk to me about your situation. If you do not leave me a note but are completely unprepared when I call on you, your grade will be negatively affected.
In addition to the call system, voluntary participation is encouraged. Your grade will be positively affected by consistent, insightful contributions.
I will pass around a seating chart on Wednesday, January 24th. Be aware that I make heavy use of the overhead, computer projector, so consider your ability to see the screen when choosing your seat.
Knowledge of Technology. Although many of the cases in this class involve technology, with a particular emphasis on computer and Internet technology, no prior technical background or knowledge is required. Any technology that needs to be understood will be explained in class, and students should not hesitate to ask for further clarification.
Course Methodology
Although this class is taught in a fairly traditional manner, be aware of a few novel aspects of the course:
Classroom Technology. I do not use chalk and chalkboard in my class. Instead, I use a technology known as mind mapping software and in particular, I use a product called MindManager made by a company called MindJet. This product provides many of the advantages of PowerPoint with few of PowerPoint's weaknesses. For each class, I will start with a skeleton mindmap which I will fill in during the class with student contributions. At the end of each class (usually on the same day), I will upload a pdf version of the mindmap to the course website. Please choose a seat in the classroom that allows you to see the computer images projected on the screen.
Role-playing Exercise. Once during the semester, students will participate in a role-playing exercise. Students will be assigned the role of partisans, such as the RIAA, EFF, Open Source Community, and Google, in a particular copyright conflict. As partisans, the students will engage in a classroom activity such as an oral argument, legislative drafting exercise, or something similar. Students will be asked to prepare a short (5-10 pages) written assignment, due two weeks after the exercise, reflecting on the exercise. The date for the exercise will be announced before the end of January, and it will probably take place shortly before Spring Break. See "Course Expectations," above, to learn how the exercise will be graded.
Open Source Conference. On Monday, March 5th, from approximately 3:00 to 6:30 PM, the Law School's Silicon Flatirons program will host a conference in the Law School on Open Source. Students are required to attend at least two of the three sessions at this conference, and we will not meet as a class at our regularly scheduled time on that date. Reading will be assigned before that date, and I reserve the right to call on students during the conference. If you cannot attend the conference due to prior scheduling conflicts, you must let me know in advance, and a make-up assignment will be offered. Failure to attend will be factored into the participation grade.
Course Materials
Required Texts. Our primary source will be a casebook: Joyce, Leaffer, Jaszi, and Ochoa, Copyright Law (7th Ed. 2006). Additionally, you are required to own a complete set of the current Copyright statute and, ideally, the 2006 Cumulative Supplement to the Casebook, which has also been made available in the bookstore.
A note on casebook notes: Assume that all "Notes and Questions" that fall within the assigned pages listed below are to be read and considered, unless the assignment specifically instructs skipping the Notes.
Optional Texts. For further background, four optional books are recommended. Two of these are available in limited supply in the bookstore:
The other two optional books have been made available in their entirety on the web:
Other Resources. Rebecca Tushnet, a Professor at Georgetown, has made available an online database full of multimedia files (images, audio, and video) relating to important copyright cases and concepts. She provides access to this database to any interested law professors and students. I borrow heavily from this site for my classroom materials, and I invite you to browse the collection at your leisure. To access the site, visit http://www.law.georgetown.edu/IntellectualProperty/index.cfm?FuseAction=IntellectualProperty.Home and use the user ID and password provided in class.
In addition, Columbia Law School hosts a repository of information relating to copyright cases involving music. For just about every significant copyright-related music case, the database contains background information and clips and videos of the musical works in question (often in copyright-friendly short excerpts, naturally). You can access this site at http://ccnmtl.columbia.edu/projects/law/library/introduction.html.
Course Website. Our course website is at paulohm.com/classes/copr07. Here, you will find class mind maps, important announcements, supplemental readings (most of which are mentioned in the day-by-day syllabus, below), changes to the reading, and links to other resources. Supplemental readings will be made available at least two classes prior to the assigned date. The top part of the website will list "Latest Changes to the Site" which can be scanned to see what is important and new. Students are advised to consult the website before every class, particularly when a class is missed. I dislike TWEN and will use it sparingly if at all.
Assigned Topics and Reading
Chapter 1: Introduction: The Landscape of Copyright
§§ 1.01, 1.02[A]
W 1/17 pp. 1-3, 14-26, and 49-61. [29]
Skim pp. 3-14. [skim 12]
Chapter 2: Prerequisites for Copyright Protection
§ 2.01 Fixation
M 1/22 pp. 63-79 [17]; §§ 101 ("copies", "created", "device, machine, or process,"
"fixed," and "phonorecords"), 102(a), 1101.
§ 2.02[A]-[D] Originality
W 1/24 pp. 80-101 [22]; §§ 101 ("created"), 102(a).
§ 2.02[E], [F] Idea/Expression Dichotomy
M 1/29 pp. 102-28 [27]; §§ 102(b).
Chapter 3: Works of Authorship
§ 3.01 [A] Introduction
§ 3.01 [B] Literary Works and Software
W 1/31 pp. 133-60 [28]; §§ 101 "including" and "such as", "literary works"), 102(a).
§ 3.01[C] Musical Works, Dramatic Works, and Pantomines and Choreographic Works
§ 3.01[E] Motion Pictures
§ 3.01[F] Sound Recordings
§ 3.01[D] Pictorial, Graphical, and Sculptural Works and Useful Articles (part one)
M 2/5 pp. 165-67, 193-99, 167-89 (note out-of-order sequence) [33]; §§ 101 ("audiovisual
works", "motion pictures," "pictorial, graphic, and sculptural works,"
"sound recordings," "useful article"), 102(a), 113(a-c).
§ 3.01[D] Pictorial, Graphic, and Sculptural Works and Useful Articles (cont.)
§ 3.01[G] Architectural Works
W 2/7 pp. 199-213 [15]; §§ 101 ("architectural work", "pictorial, graphic, and
sculptural works"), 120.
§ 3.02[A], [B] Derivative Works
M 2/12 pp. 213-28 [16]; §§ 101 ("derivative work"), 103.
§ 3.02[C] Compilations (Feist)
W 2/14 pp. 228-50 [23]; §§ 101 ("collective work" and "compilation"), 103.
Chapter 4: Ownership and Transfers
§ 4.01 [A] Initial Ownership: Introduction
§ 4.01 [B] Works Made for Hire
M 2/19 pp. 251-71 [21]; §§ 101 ("copyright owner," "work made for hire"), 201(a, b).
§ 4.01 [C] Joint Works
§ 4.01 [D] Collective Works
W 2/21 pp. 271-291 [22]; 101 ("collective work" and "joint work"), 201(c), 202.
Chapter 7: Exclusive Rights and Their Limitations
* Read statutory sections closely for this Chapter.
§ 7.01[A][B] Overview
§ 7.02 The Reproduction Right
§ 7.04 The Distribution Right
M 2/26 pp. 435-37; 445-55; 479-89 [25]; §§ 106(1, 3); 108, 109; § 101 (relevant terms).
* Assignment Changed from Syllabus version one.
§ 7.01[C] Statutory (or “Compulsory”) Licenses
§ 7.02[C] Reproduction in Phonorecords
§ 7.03 The Adaptation Right
W 2/28 pp. 437-40; 456-58; 464-79 [23]; Ringtones handout (paulohm.com)
§§ 106(2), 114(a-c), 115(a-c), 117; § 101 (relevant terms).
* Assignment Changed from Syllabus version one.
Open Source
M 3/5 Silicon Flatirons Open Source Conference
Reading TBA (on website, paulohm.com).
No regularly-scheduled class. All students must attend at least two of the three panels at the conference in the Wittemeyer Courtroom instead. Be prepared to ask questions of the panelists.
§ 7.05 The Public Performance Right
§ 7.06 The Public Display Right
W 3/7 pp. 494-513; 531-41 [18]; §§ 101 ("perform", "publicly"); 106(4, 6); 109(c);
110 (skim); 113.
Chapter 8: Infringement Actions
§ 8.03[B] Copying
M 3/12 pp. 599-616 [18]; § 501(a).
§ 8.03[C] Improper Appropriation (part one)
W 3/14 pp. 616-43 (through Note 10) [28].
In-Class Legislative Drafting Exercise
M 3/19 In-Class Legislative Drafting Exercise.
pp. 308-312 [5].
Other Materials TBA (distributed no later than Wednesday, March 7th).
Class Absences must be cleared with Professor in advance.
§ 8.03[C] Improper Appropriation (part two)
W 3/21 pp. 643 (from Note 11) – 67 [25].
Spring Break: No Class M 3/26 and W 3/28.
Chapter 9: Secondary Liability
§ 9.01 Contributory Infringement and Vicarious Liability
§ 9.02[A] Manufacturing and Distributing Copying Devices (Part One: Sony)
M 4/2 pp. 691-709 [19].
§ 9.02[C] Manufacturing and Distributing Copying Devices (Part Two: Grokster)
W 4/4 pp. 721-47 [27].
Chapter 10: Fair Use and Affirmative Defenses
§ 10.01 Introduction
§ 10.02 The Fundamentals of Fair Use
M 4/9 pp. 773-99 [27]; § 107.
§ 10.03 Conceptual Issues in Fair Use
W 4/11 pp. 799-810; 822-33 [24].
§ 10.04[B] Fair Use and the Internet
§ 10.06 Other Affirmative Copyright Defenses
M 4/16 pp. 849-58; 868-74 [17]; Perfect 10 v. Google Handout (paulohm.com).
Chapter 11: Remedies and Preemption
§ 11.01 Remedies
W 4/18 pp. 875-87; 903-12 [23]; §§ 502-06.
Revisiting Chapters 4, 5, 6: Formalities and Duration
§ 5.01[A][B] Duration
M 4/23 pp. 313-322; 340-356 [27]; §§ 302-303, 304(a, b).
§ 4.02 Transfers of Rights
§ 6.01 Publication
§ 6.02 Notice
§ 6.03 Deposit and Registration
W 4/25 pp. 291-308 [18]; §§ 201 (d, e), 204, 205.
Skim 383-85; 400-04; 411-16 [skim 14].
Review Sessions
Review sessions are tentatively scheduled for:
Tuesday, 5/8, 2 pm.
Wednesday, 5/9, 10 am.
Final is Thursday, 5/10, 8:15 am (Don’t take my word for it! Double check!).