Universal Studios Infringement Notice to AT&T Broadband User

Sender Information:
Worldwide Anti-Piracy Operations
Sent by: Aaron Markham
[Private]
UNIVERSAL STUDIOS
100 Universal Cit
Universal City, CA, 91608, US

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Answer: In order for a work to be protected by copyright, it must be an original creation set in a fixed medium.

An artist or author does not have a copyright in material borrowed from someone else. Also, stock characters (the sidekick) or plot lines (boy meets girl) are not copyrightable.

The requirement that works be in a fixed medium means certain forms of expression, most notably choreography and oral performances such as speeches, are not copyrighted, (unless they are being recorded contemporaneously). For instance, if I perform a Klingon death wail in a local park, my wail of death is not copyrighted, and someone else may come along and do the same thing the next day. However, if I film the performance, then the Klingon death wail does become copyrighted (since it is now "fixed" according to copyright law). Contrary to popular belief, I do not have to register my copyrighted work for it to receive copyright protection. In the United States, I only need to register if I'm going to sue.

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Answer: To qualify for exemption under the safe harbor provisions, the service provider must give notice to its users of its policies regarding copyright infringement and the consequences of repeated infringing activity. [512(i)(1)(A)] The notice can be a part of the contract signed by the user when signing up for the service or a page on the service provider's web site explaining the terms of use of their systems. While there are no specific rules about how this notice must be made, it must be "reasonably implemented" so that subscribers and account holders are informed of the terms. [512(i)(1)(A)]

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Answer: In order for a work to be protected by copyright, it must be an original creation set in a fixed medium.

An artist or author does not have a copyright in material borrowed from someone else. Also, stock characters (the sidekick) or plot lines (boy meets girl) are not copyrightable.

The requirement that works be in a fixed medium means certain forms of expression, most notably choreography and oral performances such as speeches, are not copyrighted, (unless they are being recorded contemporaneously). For instance, if I perform a Klingon death wail in a local park, my wail of death is not copyrighted, and someone else may come along and do the same thing the next day. However, if I film the performance, then the Klingon death wail does become copyrighted (since it is now "fixed" according to copyright law). Contrary to popular belief, I do not have to register my copyrighted work for it to receive copyright protection. In the United States, I only need to register if I'm going to sue.

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Answer: The purpose of copyright law is to encourage creative work by granting a temporary monopoly in an author's original creations. This monopoly takes the form of six rights in areas where the author retains exclusive control. These rights are:

(1) the right of reproduction (i.e., copying),
(2) the right to create derivative works,
(3) the right to distribution,
(4) the right to performance,
(5) the right to display, and
(6) the digital transmission performance right.

The law of copyright protects the first two rights in both private and public contexts, whereas an author can only restrict the last four rights in the public sphere. Claims of infringement must show that the defendant exercised one of these rights. For example, if I create unauthorized videotape copies of Star Trek II: The Wrath of Khan and distribute them to strangers on the street, then I have infringed both the copyright holder's rights of reproduction and distribution. If I merely re-enact The Wrath of Khan for my family in my home, then I have not infringed on the copyright. Names, ideas and facts are not protected by copyright.

Trademark law, in contrast, is designed to protect consumers from confusion as to the source of goods (as well as to protect the trademark owner's market). To this end, the law gives the owner of a registered trademark the right to use the mark in commerce without confusion. If someone introduces a trademark into the market that is likely to cause confusion, then the newer mark infringes on the older one. The laws of trademark infringement and dilution protect against this likelihood of confusion. Trademark protects names, images and short phrases.

Infringement protects against confusion about the origin of goods. The plaintiff in an infringement suit must show that defendant's use of the mark is likely to cause such a confusion. For instance, if I were an unscrupulous manufacturer, I might attempt to capitalize on the fame of Star Trek by creating a line of 'Spock Activewear.' If consumers could reasonably believe that my activewear was produced or endorsed by the owners of the Spock trademark, then I would be liable for infringement.

The law of trademark dilution protects against confusion concerning the character of a registered trademark. Suppose I created a semi-automatic assault rifle and marketed it as 'The Lt. Uhura 5000.' Even if consumers could not reasonably believe that the Star Trek trademark holders produced this firearm, the trademark holders could claim that my use of their mark harmed the family-oriented character of their mark. I would be liable for dilution.

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Answer: Infringement occurs whenever someone who is not the copyright holder (or a licensee of the copyright holder) exercises one of the exclusive rights listed above.

The most common defense to an infringement claim is "fair use," a doctrine that allows people to use copyrighted material without permission in certain situations, such as quotations in a book review. To evaluate fair use of copyrighted material, the courts consider four factors:

1. the purpose and character of the use
   
2. the nature of the copyrighted work
   
3. the amount and substantiality of copying, and
   
4. the market effect.
   

(17 U.S.C. 107)

The most significant factor in this analysis is the fourth, effect on the market. If a copier's use supplants demand for the original work, then it will be very difficult for him or her to claim fair use. On the other hand, if the use does not compete with the original, for example because it is a parody, criticism, or news report, it is more likely to be permitted as "fair use."

Trademarks are generally subject to fair use in two situations: First, advertisers and other speakers are allowed to use a competitor's trademark when referring to that competitor's product ("nominative use"). Second, the law protects "fair comment," for instance, in parody.

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Answer: In 1998, Congress passed the On-Line Copyright Infringement Liability Limitation Act (OCILLA) in an effort to protect service providers on the Internet from liability for the activities of its users. Codified as section 512 of the Digital Millennium Copyright Act (DMCA), this new law exempts on-line service providers that meet the criteria set forth in the safe harbor provisions from claims of copyright infringement made against them that result from the conduct of their customers. These safe harbor provisions are designed to shelter service providers from the infringing activities of their customers. If a service provider qualifies for the safe harbor exemption, only the individual infringing customer are liable for monetary damages; the service provider's network through which they engaged in the alleged activities is not liable.

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Answer: The safe harbor provisions require the service provider to include in its copyright infringement policies a termination policy that results in individuals who repeatedly infringe copyrighted material being removed from the service provider networks. [512(i)(1)(A)] This termination policy must be made public in the terms of use that the service provider includes in its contracts or on its web site.

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Answer: In the US, trademark rights come from actual use of the mark to label one's services or products or they come from filing an application with the Patent and Trademark Office (PTO) that states an intention to use the mark in future commerce. In most foreign countries, trademarks are valid only upon registration.

There are two trademark rights: the right to use (or authorize use) and the right to register.

The person who establishes priority rights in a mark gains the exclusive right to use it to label or identify their goods or services, and to authorize others to do so. According to the Lanham Act, determining who has priority rights in a mark involves establishing who was the first to use it to identify his/her goods.

The PTO determines who has the right to register the mark. Someone who registers a trademark with the intent to use it gains "constructive use" when he/she begins using it, which entitles him/her to nationwide priority in the mark. However, if two users claim ownership of the same mark (or similar marks) at the same time, and neither has registered it, a court must decide who has the right to the mark. The court can issue an injunction (a ruling that requires other people to stop using the mark) or award damages if people other than the owner use the trademark (infringement).

Trademark owners do not acquire the exclusive ownership of words. They only obtain the right to use the mark in commerce and to prevent competitors in the same line of goods or services from using a confusingly similar mark. The same word can therefore be trademarked by different producers to label different kinds of goods. Examples are Delta Airlines and Delta Faucets.

Owners of famous marks have broader rights to use their marks than do owners of less-well-known marks. They can prevent uses of their marks by others on goods that do not even compete with the famous product.

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Answer: A service provider is defined as "an entity offering transmission, routing, or providing connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received" or "a provider of online services or network access, or the operator of facilities thereof." [512(k)(1)(A-B)] This broad definition includes network services companies such as Internet service providers (ISPs), search engines, bulletin board system operators, and even auction web sites. In A&M Records, Inc. v. Napster Inc., the court refused to extend the safe harbor provisions to the Napster software program and service, leaving open the question of whether peer-to-peer networks also qualify for safe harbor protection under Section 512.

There are four major categories of network systems offered by service providers that qualify for protection under the safe harbor provisions:

• Conduit Communications include the transmission and routing of information, such as an email or Internet service provider, which store the material only temporarily on their networks. [Sec. 512(a)]
  
• System Caching refers to the temporary copies of data that are made by service providers in providing the various services that require such copying in order to transfer data. [Sec. 512(b)]
  
• Storage Systems refers to services which allow users to store information on their networks, such as a web hosting service or a chat room. [Sec. 512(c)]
  
• Information Location Tools refer to services such as search engines, directories, or pages of recommended web sites which provide links to the allegedly infringing material. [Sec. 512(d)]

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Answer: Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright in the work. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.

So, a FanFic author who purchases a book does not also purchase the right to create a derivative work based on that book, for example a new story or a comic.

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Answer: Section 512(c)(3) sets out the elements for notification under the DMCA. Subsection A (17 U.S.C. 512(c)(3)(A)) states that to be effective a notification must include: 1) a physical/electronic signature of a person authorized to act on behalf of the owner of the infringed right; 2) identification of the copyrighted works claimed to have been infringed; 3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed; 4) information reasonably sufficient to permit the service provider to contact the complaining party (e.g., the address, telephone number, or email address); 5) a statement that the complaining party has a good faith belief that use of the material is not authorized by the copyright owner; and 6) a statement that information in the complaint is accurate and that the complaining party is authorized to act on behalf of the copyright owner. Subsection B (17 U.S.C. 512(c)(3)(B)) states that if the complaining party does not substantially comply with these requirements the notice will not serve as actual notice for the purpose of Section 512.

Section 512(d)(3), which applies to "information location tools" such as search engines and directories, incorporates the above requirements; however, instead of the identification of the allegedly infringing material, the notification must identify the reference or link to the material claimed to be infringing.

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Answer: A request to cease and desist is basically asking the party to immediately stop the infriging behavior and then permanently refrain from it.

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Answer: Law.com offers a good definition of perjury: "Perjury is the the crime of intentionally lying after being duly sworn (to tell the truth) by a notary public, court clerk or other official. This false statement may be made in testimony in court, administrative hearings, depositions, answers to interrogatories, as well as by signing or acknowledging a written legal document (such as affidavit, declaration under penalty of perjury, deed, license application, tax return) known to contain false information. Although it is a crime, prosecutions for perjury are rare, because a defendant will argue he/she merely made a mistake or misunderstood."

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Answer: Many C&Ds will say something like, "This letter shall not be deemed to be a waiver of any rights or remedies, which are expressly reserved." This is just legalese for saying, "Even if you do what we ask in this letter, we can still sue you later." The language is standard; do not be alarmed. Litigation is extremely unpleasant, and unless your opponent is irrational (always a distinct possibility, of course), it will not bring litigation after it has obtained what it wants.