A & M Records, Inc. v. Napster, Inc. was an incredibly significant court decision in that it was the first to address copyright laws in peer to peer file-sharing. Shawn Fanning’s Napster was the first major user-friendly service to download music on the internet and the record companies were very concerned that this would impact their sales. The recording companies accused Napster of copyright infringement. Napster responded by pointing out three kinds of fair use in sampling, where users could listen to a song before buying it; space shifting, where users could get a song on their computer that they already own on CD; and permissive distribution of songs from artists who chose to use Napster as a tool to get their music out to the public.

The court ruled that Napster infringed on the copyright holder’s exclusive rights of reproduction and distribution. The court said that samples were not fair use because they were permanent copies on the user’s computer. The court also ruled that the space-shifting argument was not valid because the shift made the song available to everyone else on the network and not just for their personal use.

The legacy of this case is that those who run websites or online services can be held liable for connecting people to copyrighted work. In the aftermath of this case, many companies tried to bypass this ruling by setting up their servers in different ways or making the transfer of digital material untraceable. Ultimately, the Grokster decision pretty much stated that the owner can be liable by knowingly facilitating the infringing of copyrighted material regardless of how their service is technically set up.

The MGM Studios, Inc. v. Grokster, Ltd. Supreme Court decision is the basis for my argument that the decision in this case has stopped the process in which technology has continually stayed ahead of the law. In the ruling, Justice Souter wrote: "We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." The ruling here put the burden on the company producing new technologies to not do anything that could be construed as promoting illegal activity through the use of their product. No longer could a company sell a product that was capable of enabling illegal activity and turn a blind eye to how its customers used it.

The court also made a point to say that a company cannot be found liable if there is no evidence to support that it has promoted illegal activity if it has not taken steps to prevent infringement, only if the product has other substantial non-infringing uses. This is significant in that it does not halt technological development that could be used for infringing, but tries to strike a balance between protecting technological advancement and intellectual property.

The Grokster decision effectively ended Grokster as a file sharing service and forced Grokster to pay $50 million to the recording industry. The court ruled that Grokster had shown intent of providing its service for the illegal infringement of copyrighted materials by its users. This case has taken the focus of copyright infringement off of the technological aspect to the intent of the company issuing the technology. As a result, companies must be very careful about how their intent can potentially be seen by a court and also smaller companies may have trouble with creating new innovations if they are forced into costly litigation with much larger companies.

“Sony Corp. of America v. Universal City Studios, Inc.” was a significant decision in copyright law dealing with new technologies that made it possible to record copyrighted television shows. The ruling in this case, also referred to as the “Betamax Case” which was the original VCR player that Sony produced, was that time-shifting is within the boundaries of fair use and is not copyright infringement. The court said that the manufacturers of such products could not be held liable for copyright infringement. This would come up during the Grokster case and it would ultimately be decided that manufacturers could be held liable if the product was intended to be used for infringing on copyrighted material.

The court stated that private time-shifting was a significant non-infringing use of the new technology. The court went on to say that just because some people could use the device for copyright infringement, the fact that there are substantial legal uses for it outweighs that. If the nature of the reproduction of works was non-commercial and non-profit then the court saw that there was nothing wrong with it.

It is quite ironic that Disney, who fought to keep Sony from producing the Betamax, was actually one of the biggest beneficiaries of the new home video technology by making a lot of money off of home videos. This case is important for my argument because this ruling has become the standard to which other copyright infringement cases have been held to for many years. The ruling in the Grokster case changed this precedent slightly by making the producer liable if it could be shown that they somehow encouraged or facilitated illegal copyright infringement.

THE FAIR USE COMMERCIAL PARODY DEFENSE AND HOW TO IMPROVE IT -- Jonathan M. Fox, 46 IDEA 619, 2006 (LexisNexis -- SEARCH IN “LAW REVIEWS” USING THE TITLE IN THE “KEYWORD” FIELD)
    In this article, Fox lays out the divergence between the dictionary definition of parody and the legal one, and concludes that “Supreme Court's current definition of parody has allowed certain works, completely devoid of the elements of literary parody, to qualify as fair use parodies” (I). This is because he argues that the court has given parodists too much flexibility by interpreting too broadly what a “parody” is.

    Fox writes, “It appears that the purpose of fair use is to be fair to the party accused by the copyright holder of infringement” (V). This is because of the disconnect between what dictionaries say is “parody” versus what the courts say it is:

Although most would find 2 Live Crew's version of Pretty Woman to be at least mildly amusing, the Supreme Court made it very clear that the work's humorous component was not what made the song a fair use. Instead, it was primarily the song's transformative character coupled with the fact that it commented on or criticized the original. Both of these characteristics that won the song fair use protection are only tangentially related to the traditional definition of parody. Similarly, in its decision in SunTrust Bank, the Eleventh Circuit established that "judges need not set themselves up as arbiters of whether the product is funny. (V.A)

Fox then goes on to list ways in which copyright law can be changed to curtail the possibility that courts will grow too lenient with parodies. “Although commercial parodies are deserving of protection from a First Amendment perspective,” Fox writes, “their strong commercial status renders their position in the realm of copyright law decidedly more suspect” (VI).

    Fox makes the pertinent observation that legal definitions need to conform to dictionary ones, or else it leaves future courts with little ability to analyze and apply precedent. Furthermore, he argues that that if parodists are all but immunized from infringement suits, then it has the possibility to negatively affect the progress of arts and science by curbing the creation of new works--after all, it would essentially negate the purpose of copyrights, to give security to authors that their work will not be stolen, if all anyone has to do to copy it is to claim fair use through parody.

The Fair Use Doctrine in the U. S. American Copyright Act and Similar Regulations in the German Law -- Holger Postel and Jean-Luc Piotraut, 5 Chi.-Kent J. Intell. Prop. 142, Spring 2006 (LexisNexis -- SEARCH IN “LAW REVIEWS” USING THE TITLE IN THE “KEYWORD” FIELD)
    This article analyzes the differences between American and German copyright laws as they relate to fair use. In large part, the differences amount to different interpretations based on natural rights. For instance, the article notes, “Campbell shows that there is no distinction between musical work and other forms of work as long as the purpose is in accordance with one of the criteria set out by section 107. While the German Copyright law does not allow an artist to use musical works without the licensee of the copyright holder, the American law does not recognize this distinction” (II.1).

    Both the American and German legal systems interpret parody narrowly, mainly out of pragmatism: if they do not, it would “open the floodgates” to excessive parodying (which “ THE FAIR USE COMMERCIAL PARODY DEFENSE AND HOW TO IMPROVE IT” argues is already happening). However, as the article notes, “The dilemma courts face is that parody is a form of art and courts are generally cautious in defining art” (II.2). The dilemma also entails the problem of how do you protect copyrighted works on the one hand, while not stifling creative and transformative parodies on the other.

    Interestingly, German law does not allow for music parody at all, though it does allow for other forms of fair use and parody similar to those in the US, including videotaping, photocopying, quoting, and news reporting. However, often American and Germans laws have similar ends, though their means differ.

    Ultimately, both German and American laws will begin to come together more and more than in the past because of globalization. Especially as a result of the internet, the rules are changing and the world is getting smaller and smaller, and countries will soon no longer be able to have legal structures that are vastly different for fear of being incompatible with a neighbor, as evidenced by the streamlining of laws and codes with the Berne Convention the European Union.

SUNTRUST BANK v. HOUGHTON MIFFLIN COMPANY (268 F.3d 1257) -- LexisNexis
    This is the Eleventh Circuit appeal of the of the case brought by Suntrust against Houghton Mifflin charging infringement on Margaret Mitchell’s Gone With the Wind by Alice Randall’s The Wind Done Gone. In this case, Judge Birch ruled in favor of Houghton Mifflin by virtue of First Amendment rights. Interesting, he writes in a footnote:

I believe that fair use should be considered an affirmative right under the 1976 Act, rather than merely an affirmative defense, as it is defined in the Act as a use that is not a violation of copyright. ... However, fair use is commonly referred to an affirmative defense, see Campbell v. Acuff-Rose Music, Inc. ... Nevertheless, the fact that the fair use right must be procedurally asserted as an affirmative defense does not detract from its constitutional significance as a guarantor to access and use for First Amendment purposes. (n3)

Birch rules that The Wind Done Gone had value beyond what fair use laws afforded it because the nature of the work was a social commentary meant to create dialogue and end the myths about the Antebellum South. “Freedom of speech requires the preservation of a meaningful public or democratic dialogue,” he writes (II.B). In essence, Birch held that Randall was merely continuing a discussion that Mitchell had established; by adding her own expression, Randall was free to “use or discuss the idea” (II.B.1).

    This was a landmark, but controversial decision, as discussed more in “ The Wind Done Gone, the Law Done Wrong?” and tangentially in “Fair Use Commercial Parody Defense.” I agree with the outcome, though I’m undecided about the rationale. Instead, I think a less controversial justification for ruling for fair use would be to allow satires--which The Wind Done Gone is more of than a parody--the same protections afforded to parodies. This is discussed further in “Unfair Use.”

Hays and Macdonald v Sony  847 F.2d 412; 1988 U.S. App.

     This was one of the few cases I could find that specifically dealt with the academic exception at a high school level. 

     Hays and MacDonald were two high school business teachers who developed a handbook for a word processor that the high school owned.  They distributed the handbook to the staff and students of the high school.  When the high school purchased new word processors from Sony, the school gave the handbook to Sony asking them to adapt it for the new word processors.  Sony did so by taking large parts of the document and copying it into the new handbook.  Sony then gave it back to the school at no charge.  When Hays and MacDonald found out about the new handbooks they sued Sony for copyright infringement arguing that they owned the rights to the handbook.  The District Court found for Sony.  Hays and MacDonald tried to appeal the decision but they filed their appeal to late.  The Appeals Court thus denied their appeal and they lost their case.  However in issuing the denial the Appeals Court discussed the case in more depth, exploring the issues as if the case had been heard.  They argued that that since Sony didn’t make any direct profits from the handbook there would have been no damages to be awarded based on the arguments made by the plaintiffs.  However the court did say that it appeared that Hays and MacDonald were the rightful owners of copyright and so might have been entitled to an injunction.  They also discussed the nature of the work for hire clause of the 1976 Copyright Act.  They said that although it appears to have eliminated the academic exception there seems to have been no intent by Congress to do so and therefore if another case came before this Appeals Circuit they might be inclined to uphold the academic exception.

     This case relates very well to Mauro v Allentown.  Both occur at the high school level, and both deal with teachers preparing works beyond the basic scope of the classroom.  The fact that this case ended with a denial of appeal makes drawing any concrete conclusions from it more difficult, but it does appear that if Mr. Mauro did proceed with his case his might be able to receive an injunction to prevent the high school from performing his work without his permission.

Weinstein v University of Illinois et al.  811 F.2d 1091; 1987 U.S. App.

     This case decided in 1987 is the most recent ‘major’ decision in the ‘academic exception.’  Marvin Weinstein was an assistant professor in the University of Illinois’ College of Pharmacy.  He was told that he needed ‘publish or perish’ in his tenure track position.  If he didn’t publish enough papers he would be fired and there was no opportunity for a renewal of his position short of being tenured.  He wrote a paper with a colleague named Belsheim.  When Belsheim submitted the paper for publication he put the names in alphabetical order and Weinstein was upset because he felt that his name should have been placed first, being the primary author of the article.  He sued Belsheim and the university on the grounds that this was his work and he should control how it was published.  Since this case was filed after 1976 the work for hire clause could have been applied.  However the university declared that they had no interest in maintaining the copyright of professors' works and that it was a general understanding that professors owned their own research and papers despite them working for the university.  Weinstein lost his case but more importantly created the beginnings of an academic exception after the 1976 copyright act.

     This case related to Mauro v Allentown in several ways.  The first is this case re-establishes the idea of an academic exception, not necessarily an ironclad exception, but it brings it to light.  It also brings up the exception for work related to the job but not necessarily required in the actual performance of the job.  Weinstein was not required to write, but if he didn’t he would not have his contract renewed.  In the same way Mauro was not required to write his medley, it was outside the strict interpretation of his position.  The potential problems for this case are that Weinstein is explicitly dealing with university professors and not high school teachers, and also that the university stated that they did not seek to hold the copyright of their professors.  So if Allentown does declare that they wish to maintain control of their professor's copyrights then there may be fewer legal recourses for Mr. Mauro to pursue.

Williams v Weisser, 273 Cal. App. 2d 726

     This case from 1969 is the second, and by far the most famous, common law decision to establish the concept of an ‘academic exception.’ 

     The case concerns B. J. Williams a professor at UCLA and Edwin Weisser a man who had a business selling class notes to UCLA students.  Weisser hired a student to attend Williams’ class and using the notes the student took created a product that he sold to other students.  Williams sued Weisser to stop him from doing this saying that as the owner of the lecture notes he had the right to decide when and how they were published.  Weisser disagreed saying that the notes were a work for hire and therefore the university owned the rights and Williams had no grounds to sue.  UCLA produced a letter they had sent to all professors saying that they did not make a claim to own any of the professor’s lecture notes.  The courts eventually ruled that Williams did own the rights to his notes and thus Weisser was in the wrong.

     This case is one of the clearest cases establishing the academic exception.  There is no other claim for Weisser other than that the notes are a work for hire.  When both the employer and the employee deny that and say that the very notion of a university having claim to the copyright of their employees lecture notes is unecessary, then they have established the idea of the academic exception very strongly.

     There are downsides to this case with regards the Mauro v Allentown case.  First, the case decided the academic exception at the university level and did not address the high school level.  However it does establish it for class notes and the Irish medley is a classroom aid similar to a set of class notes, produced by the instructor, and not necessarily essential to the teaching of a class, only beneficial.  Second, and more importantly, the case was decided prior to the implementation of the 1976 Copyright Act, which clearly defines the work for hire clause.  That definition seems to allow no wiggle room for the academic exception.  This means that other decisions would be needed to extend and further establish the academic exception.

Shaul v Cherry Valley-Springfield School District et al. 363 F.3d 177; 2004 U.S. App.

    This case was filed by William Shaul against his former employer accusing them of illegally confiscating his personal property from his classroom.  Shaul was fired from his position as a teacher in the high school.  He was given permission to return to his office and classroom to remove his personal effects.  However he said that he wasn’t given enough time to get everything.  When he went back to get more he was not allowed in and when he tried to get the district to surrender his remaining effects he was not given them.  Shaul says that because the school didn’t give him enough time to remove his personal items they violated his fourth amendment rights to reasonable search and seizure.  Among the items he claimed were various photos and also his class notes and quizzes, which he claimed to own based upon the academic exception.  The court found in favor of the school district saying that in general enough time was given for him to remove his belongings.  And specifically they addressed his class notes saying that because he was not the author of the quizzes and that class notes were created directly from him performing his job they were the property of the school district under the work for hire clause.

     This case while only tangentially dealing with the academic exception does address the issue of whether Allentown High School took the score from Mauro's possession without his permission in Mauro v Allentown.  There are a few extenuating circumstances such as whether or not Mauro gave the sheet music to the students prior to his removal from his position.  And also the fact that Mauro was told not to remove any music when he was allowed to remove his personal belongings from his classroom could be a factor in the decision, however this is a remarkably similar case in which the school was the winner.