Fair Use &Open Source SoftwareOpen Source Software

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Introduction

• Vasanth Sarathy AssociateVasanth Sarathy, Associate – BS, SM, JD

Management and strategic– Management and strategic development of intellectual property

• Nate Kurtis, AssociateBS AB MBA JD– BS, AB, MBA, JD

– Use, licensing and other transactional applications of intellectual property

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applications of intellectual property

Disclaimer

This presentation is provided for informationalThis presentation is provided for informational purposes only. It does not constitute legal advice and should not be relied upon as legal

d i F ifi l l d i ladvice. For specific legal advice, please consult with an attorney.Whil ff h b d idWhile every effort has been made to provide accurate and up to date information in this presentation laws and rules vary by state andpresentation, laws and rules vary by state and country, and change over time. You should verify the current local rules and laws that

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govern your legal issues.

Agendag

• Copyright BackgroundCopyright Background• Fair Use• Open Source Software

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What is Copyright?py g

• System of Rights to ExcludeSystem of Rights to Exclude• Rights Granted in the Public Interest

– Constitutional Basis: Article I, Section 8, Clause 8– Private Incentives v. Public Benefit

• Traditionally Common Law, Increasingly Statutoryy– Title 17 of the United States Code

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Title 17 of the United States Code

Sec. 101 Definitions

Sec. 102Protectability

Sec 105

Reproduce

Distribute

P fSec. 105

Sec. 106 ExclusiveRights

Perform

Display

Create Derivative Works

Sec. 107Exceptions

Digital Retransmission

Do or Authorize The Doing

Sec. 120

Sec. 200+ Transfer & AssignmentS 400 i i

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Sec. 400 + RegistrationSec. 500+ Litigation

Title 17 of the United States Code

• Protectable:Protectable:– “…original works of authorship fixed in any tangible

medium of expression, now known or later developed…”– Literary, Musical, Dramatic, Pantomimes and

Choreography, Pictorial, Graphic, Sculptural, Audiovisual, Sound Recordings, and Architectural Works

• Not Protectable:

– any idea, procedure, process, system, method of ti t i i l dioperation, concept, principle, or discovery

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Exceptions to Copyrightp py g

• Fair Use (107)Fair Use (107)• Reproduction by Libraries and Archives

(108)(108)• Course Use (110, Circular 21)• The TEACH Act

Oth• Others

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Libraries and Archives

• A library or archive may create andA library or archive may create and distribute one copy if:– No direct or indirect commercial advantage– No direct or indirect commercial advantage– Open to the public or researchers in a set field

Includes a copyright notice– Includes a copyright notice

• Three copies for archival purposes• Only applies to isolated and unrelated

reproductions and distributions, not

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psystematic or concerted

Course Use• Section 110 (1)

– Classroom or instructional performance or display of a lawful copy of a work by an instructor or pupil in the course of face-to-face teaching activities ofin the course of face to face teaching activities of a nonprofit educational institution is not infringement

• Circular 21• One copy for instructor for research and prep workpy p p• One copy per pupil for classroom use:

– Requirements: Brevity, Spontaneity, Non-cumulative

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– Not a substitution or replacement of the work

The TEACH Act, Section 110 (2), ( )

• Provides a statutory exemption to enableProvides a statutory exemption to enable distance learning.– Intended to merely allow the application of the– Intended to merely allow the application of the

same principles applicable to in-face teaching found in Section 110 to distance and

h d tiasynchronous education.

• However, the language is limiting.

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The TEACH Act, Section 110 (2), ( )• Limitations:

– “[R]easonable and limited portions” of copyrighted works, other than non-dramatic literary and musical works, and works created for mediatedmusical works, and works created for mediated instructional use.

– Only available to government bodies and y g“accredited” non-profit educational institutions.

– Only allows transmissions to students officially ll d i th t tenrolled in the course or to government

employees as part of their official duties.Requires technological protection measures be

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– Requires technological protection measures be taken to prevent retention of the work and further downstream dissemination.

Agendag

• Copyright BackgroundCopyright Background• Fair Use• Open Source Software

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Copyright Fair Usepy g

• It is a statutory (affirmative) defense not aIt is a statutory (affirmative) defense, not a permission or a limitation on scope!– Argued post infringement– Argued post infringement. – Defendant’s burden to raise and prove.

C t l f t ifi f t d• Courts apply a fact-specific, factored analysis.– SCOTUS: “…the fair use determination calls for

case-by-case analysis, and is not to be simplified with bright-line rules ”

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with bright line rules.

Copyright Fair Usepy g• Fair Use Factors:

1: The purpose and character of the use– such as criticism, comment, news reporting, teaching

(including multiple copies for classroom use)(including multiple copies for classroom use), scholarship, or research

2: The nature of the copyrighted work3: The amount of the work used4: The effect on the market or value of the workKey: Is the use “Transformative”?

– Does the use supersede the original or does it add f ff

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something new, with a further purpose or different character, altering the original with new expression, meaning or message?

Copyright Fair Usepy g

• Don’t jump to fair use!Don t jump to fair use!• Be very careful anytime your business

plan hinges on fair use:plan hinges on fair use:– It won’t prevent litigation.– Fact-specific, factored analysis does not provide

predictability of outcome.Th d f f il– The defense can fail.

• There is no cutting edge technology

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exception to copyright law!

UMG Recordings, Inc. v. MP3.comg ,

• Fair Use?Fair Use?– Purpose:

• Commercial

– Nature:• Close to Copyright Core

– Amount:• Entire Works

Eff t– Effect:• Usurps Further Market

• Not Fair Use

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• Not Fair Use.

Leibovitz v. Paramount Pictures

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Leibovitz v. Paramount Pictures

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Leibovitz v. Paramount Pictures

• Fair Use?Fair Use?– Purpose:

• Humorous commentary, but $

– Nature:• Moderate protection

– Amount:• More than required to “conjure”

Eff t– Effect:• Limited adverse effect

– Highly Transformative

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Highly Transformative

• Fair Use.

Castle Rock Entertainment, Inc. v.C l P bli hi G ICarol Publishing Group, Inc.The SAT:The SAT:

– 643 Trivia QuestionsBack Cover:– Back Cover:

• “Hundreds of spectacular questions of p qminute details from TV’s greatest show about absolutely nothing ”absolutely nothing.

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Castle Rock Entertainment, Inc. v.C l P bli hi G ICarol Publishing Group, Inc.

• Fair Use?Fair Use?– Purpose:

• Commercial, sold the book

– Nature:• Expressive, protected

– Amount:• More than needed to comment

Eff t– Effect:• Replacing

– Repackaging not Transformation

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Repackaging, not Transformation

• Not Fair Use.

Brownmark Films LLC v.C d P tComedy Partners• Brownmark Films LLC Video ClipBrownmark Films LLC Video Clip

– http://www.youtube.com/watch?v=fbGkxcY7YFU

C d P t Vid Cli• Comedy Partners Video Clip– http://www.southparkstudios.com/full-

i d / 12 04 d t ikepisodes/s12e04-canada-on-strike– Parody begins at 7:52

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Brownmark Films LLC v.C d P tComedy Partners

• Fair Use?– Purpose:

• A “classic parody”

– Nature:• Expressive

A t– Amount:• Minimum amount needed to

comment

– Effect:• Limited or none.

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– Highly Transformative

• Fair Use

Kelly v. Arriba Soft Corporationy p• Fair Use?

– Purpose:• Commercial, but not highly

exploitativep

– Nature:• Creative, published, protected

– Amount:• Necessary to copy entire image

– Effect:• No harm

Transformative Different

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– Transformative –Different function

• Fair Use.

Kelly v. Arriba Soft Corporationy p

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Academic Use ≠ Fair Use

• Simply using materials in an academicSimply using materials in an academic context does not, by itself, mean it is a fair use.use.– Which is why people write and publish textbooks

and royalties are paid on bookpacks.y p p• Princeton University Press v. Michigan Book

Services

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Academic Use ≠ Fair Use

• Neither does use in a research context:Neither does use in a research context:– It is not surprising that authors favor liberal

photocopying; generally such authors have a far p py g; g ygreater interest in the wide dissemination of their work than in royalties -- all the more so when they have assigned their royalties to the publisher Buthave assigned their royalties to the publisher. But the authors have not risked their capital to achieve dissemination. The publishers have. Once an author has assigned her copyright, her approval or disapproval of photocopying is of no further relevance

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further relevance• American Geophysical v. Texaco (J. Leval)

Princeton University Press v.Mi hi D t S i IMichigan Document Services, Inc.

• Fair Use?– Purpose:

• Commercial

– Nature:• Creative, expressive

A t– Amount:• Major ideas copied, not insubstantial, smallest excerpt > 8,000

words

– Effect:• If widespread, would adversely affect the potential market.

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– Not Transformative, used in same manner as original.

• Not Fair Use.

Blackwell Publishing, Inc. v.E l R h G LLCExcel Research Group, LLC

• Fair Use?– Purpose:

• Commercial

– Nature:• Creative, expressive

A t– Amount:• Major ideas copied, not insubstantial amount

Effect:– Effect:• Able to undersell fee-paying competition

– Not Transformative, used in same manner as original.

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g

• Not Fair Use.

Cambridge University Press. v.GSUGSU

• Fair Use?– Purpose:

– Nature:

– Amount:

Eff t– Effect:

– Transformative?

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Transformative?

• Stay Tuned!!

Agendag

• Copyright BackgroundCopyright Background• Fair Use• Open Source Software

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Goals

1 What it is and what it’s not1. What it is and what it s not

2. How it works

3. Appreciate its impact

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What is Open Source?p

Open Source is a software development model

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The Typical Open Source Modelyp p

Project lead

l t volunteervolunteer volunteer

volunteer volunteer

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What else is Open Source? p

Open Source is also a software licensing distribution modeldistribution model

– In many ways, like commercial software– Pay attention to restrictions and obligationsy g

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How does it work? Two-stepp

1 Copyright Law Rights to the1. Copyright Law Rights to the Owner– Copyright attaches to a software– Copyright attaches to a software

module when created and stored

– Owner initially has the exclusive right to copy, modify or create derivative or collective works of protected expression

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How does it work? Two-stepp

2 Contract Law2. Contract Law– Software module is then made

available under an agreement g(open source license)

• Conditions use on accepting the ’agreement’s terms

• Can include important restrictions and effectsrestrictions and effects

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Common Open Source Modelsp

• GNU General Public License (GPL)GNU General Public License (GPL)• GNU Lesser General Public License

(LGPL)(LGPL)• BSD, MIT, Apache• Mozilla, IBM, Apple, Sun

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GNU General Public License (GPL)( )

• “Virally” requires that source code be madeVirally requires that source code be made available to future licensees

• Generally precludes the use of proprietary licenseGenerally precludes the use of proprietary license• Disclaims warranties

Commonl seen in Lin applications• Commonly seen in Linux applications• Lesser GPL (LGPL)

– Somewhat easier for licensees to combine the LGPL code with a separate program and distribute the combination under separate licenses

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p

BSD/MIT/Apache Style Licensesp y

• More permissive than GPL or LGPLMore permissive than GPL or LGPL– Allows free distribution, modifying, and license

changeg– No “viral” open source requirement– May require attributionMay require attribution– Enables proprietary software distribution

Di l i ti• Disclaims warranties

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Mozilla/IBM/Apple Style Licensespp y

• Combines facets of GPL and BSD StylesCombines facets of GPL and BSD Styles– Distribution of original code (and certain

modifications) has to include access to source )code.

– Not viral in reach

• Explicitly contemplate patent licenses

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Effect of Models

• Different models handle modificationsDifferent models handle modifications differently

BSD GPL/M illBSD GPL/MozillaIf you change a software module:

The changed module may be licensed under any combination of

The changed module may not be licensed under a proprietaryany combination of

proprietary and open source licenses

under a proprietarylicense

• No license provides recipients explicit

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patent indemnification

What Open Source is not!p

• Open Source is not freeOpen Source is not free– Strings attached to use – “No free beer”

• Open Source is not in the public domain

• Open Source is not immune from patent• Open Source is not immune from patent rights

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General Drawbacks of Using Open SSource• IP InfringementIP Infringement

• No Patent Indemnification

• Warranty and Liability Issues are Unclear

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Commercialization/IP

• The use of Open Source software doesThe use of Open Source software does not prohibit the commercialization of research efforts or exploitation of IPresearch efforts or exploitation of IP– But may significantly impact the value

Data generated through the use of Open• Data generated through the use of Open Source software is not subject to the Open Source license and may be sold orSource license and may be sold or licensed

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Questions?Q

// // Dear maintainer:// // d i ' i i '// Once you are done trying to 'optimize'// this routine, and have realized what a // terrible mistake that was, please// increment the following counter as a// increment the following counter as a // warning to the next guy://// total hours wasted here = 16// total_hours_wasted_here 16 //

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Fair Use &Open Source SoftwareOpen Source Software

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