The Merger Doctrine of Copyright Law #iplaw #law #copyright

If you enjoy this post, please retweet it.

Blog posts cannot substitute for legal advice. If the topics discussed in this post are relevant to a real case you have, please consult an attorney.

This one’s a little dry, but it’s secretly relevant to the interests of the majority of readers of this blog. Also, it’s short.

A copyright protects the expression of an idea. For example, an author can write a poem about springtime, and because the text is sufficiently complex, it can give rise to a copyright as long as there’s at least some reasonable amount of creativity (a.k.a., originality) in that text. However, that doesn’t mean the author now owns the idea of springtime; the author owns only the particular expression of it (and all “substantially similar” variations of it). The reason the idea isn’t protected, but the expression is, should be obvious: If an author copyrighted the idea, then no one else could write about springtime during the life of the copyright. The public must be able to discuss springtime. It’s part of life. (Note: This is also why a single word is never sufficiently complex to earn a copyright. If someone could copyright the word, “spoon,” then the public couldn’t discuss spoons for quite some time.) On the other hand, the author’s particular expression of springtime can be copyrighted because there are a seemingly infinite number of ways for the rest of the public to write about springtime. That is, there are many other options that will allow others to write about springtime while still allowing the author the sole right to copy and profit off of their particularly clever and enjoyable expression, as well as any substantially similar variations of it. This is the essence of copyright.

However, what if there aren’t a seemingly infinite number of ways to express and idea, or what if all the other ways to express it are all substantially similar to one another? This is where the merger doctrine comes into play. In such a case, the expression is said to merge with the idea, such that the expression cannot be copyrighted regardless of how complex the expression is, and regardless of whether the author was actually the first person ever to express it. (In the case of my example of a poem about springtime, that was first done long before the concept of copyright existed.) This is an important doctrine for the reason given above: If not for the merger doctrine, in situations where there aren’t a reasonable number of options available to express and idea, then no one would be able to express it as long as that copyright exists. That is, the copyright would effectively extend to the underlying idea itself. Under current law, the term of copyright is far too long in my opinion, but even if the term of copyright were more reasonable, any amount of time to prohibit expression of an idea is too long. Fortunately, the law recognizes that.

Follow me on Twitter @gsllc (please retweet!)

Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with Cardinal Title Group, a Virginia title insurance and settlement company. Rob is also a licensed title insurance agent in Maryland and Virginia.

The First Sale Doctrine #iplaw #law #copyright

If you enjoy this post, please retweet it.

Blog posts cannot substitute for legal advice. If the topics discussed in this post are relevant to a real case you have, please consult an attorney.

A copyright is a bundle of exclusive rights, including the right to make copies of an item, However, once someone purchases a copy of a copyrighted work, the purchaser owns that specific copy of that work. For example, if Ann purchases a copy of Bob’s book, Ann may not make copies of that book, but she may resell the specific copy she purchased without fear of infringement.

This gets a bit more complicated with respect to the resale of software. Most software comes with a “shrinkwrap license,” which is a contract packaged with the software. Under the terms of such a contract, just using the software is considered acceptance of the terms of that contract, and those terms indicate that software is merely licensed to rather than owned by the purchaser. If there isn’t actually a sale, then does the “no transfer” clause in the license prevent resale?

In Vernor v. Autodesk, Inc., Vernor was reselling unused copies of Autodesk’s “Release 14” auto-cad software on eBay. In determining that Vernor was a licensee rather than an owner of a copy, the Court developed and applied a three-part test: (i) whether the copyright owner specifies that a user is granted a license; (ii) whether the copyright owner significantly restricts the user’s ability to transfer the software; and (iii) whether the copyright owner imposes notable use restrictions.

Note that this is an exception applicable to digital works. In the context of nondigital, copyrighted works, the first-sale doctrine still applies but may be limited in cases involving illegally obtained goods. If you steal it, you can’t resell it.

Summary

  1. Once you purchase a copy, the First Sale doctrine allows you to dispose of that particular copy as you see fit.
  2. Most software is licensed, not sold, so the First Sale doctrine doesn’t apply.
  3. You can’t rely on on the First Sale doctrine when selling stolen goods.

Follow me on Twitter @gsllc (please retweet!)

Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with Cardinal Title Group, a Virginia title insurance and settlement company. Rob is also a licensed title insurance agent in Maryland and Virginia.

Fair Use as an Affirmative Defense #iplaw #law #copyright

If you enjoy this post, please retweet it.

Blog posts cannot substitute for legal advice. If the topics discussed in this post are relevant to a real case you have, please consult an attorney.

This post is about understanding the risk associated with relying on fair use. A copyright boils down to a “bundle of rights,” and when those rights are violated, it’s said that the copyright is “infringed.” A common defense to infringement is fair use, and I can’t possibly count the number of times someone contemplating making a copy has said, “But this is fair use,” often coupled with the dreaded, “No infringement intended” (as if that’s a proper defense). Everyone seems to think any copying they do is fair use. Well, it’s not me you have to convince.

Fair use is an “affirmative defense,” which creates two problems for you. First, to raise that defense, you’re often admitting that you’re liable (or guilty in a criminal case) of the underlying infringement. Boom! You just admitted you’re the bad guy. As a result, you run into your second problem: The burden of proof now shifts to you to prove that your offense was justified, and even in a criminal case, that shift doesn’t violate the Constitutionally-protected presumption of innocence. Remember, you already admitted you did a bad thing; you’re just trying to say, “Hey, let this slide, okay?”

If we were to apply this to any other crime or tort (civil wrong), it would sound crazy. For example, assuming you’re not someone who enjoys murder, which position feels safer?

  1. “I didn’t kill the guy.”
  2. “I killed the guy — shot him right between the eyes — but I felt threatened.”

Even assuming the truth of #2, #1 seems infinitely preferable (if also true). It’s a better position in which to find yourself. Nevertheless, people tend to infringe first and justify it second, seeing fair use as a quick and easy bailout. Despite a wealth of case law helping to define fair use, it’s still a vague concept, relying not on “bright line” rule that clearly defines it, but instead relying on a series of factors (discussed on my other blog) that have to be applied to your specific facts. You can’t predict the outcome of your case based on the outcome of another case with an entirely different, complex set of facts. If you miss one critical fact in your analysis, your defense crumbles. Moreover, successfully predicting the outcome of your trial doesn’t guarantee that you’ve successfully predicted the outcome of an appeal of that decision. The copyright holder knows that and is certain to appeal. That will cost you even more money.

Going back to the analogy, you shouldn’t go around bad neighborhoods simply because you suspect that, if you have to shoot someone, you’re likely to be shooting a menacing person, so you won’t go to jail. Similarly, you shouldn’t dive head first into infringement unless you’re willing to accept the consequences, whether they’re a finding of guilt/liability or simply a ton of legal fees.

Fair use is a well-settled defense to infringement, but relying on it is quite risky. If you don’t follow my advice to seek counsel when filing a trademark application, fine, but you better follow that advice if you’re planning to infringe a copyright that’s sure to be brought to the copyright holder’s attention.

Follow me on Twitter @gsllc (please retweet!)

Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with Cardinal Title Group, a Virginia title insurance and settlement company. Rob is also a licensed title insurance agent in Maryland and Virginia.

Defending Copyrights and the Statute of Limitations #iplaw #law #copyright

If you enjoy this post, please retweet it.

Blog posts cannot substitute for legal advice. If the topics discussed in this post are relevant to a real case you have, please consult an attorney.

One of the most common mistakes non-lawyers make when considering intellectual property law is confusing the rules that apply to one form of IP with another. A good example of that is the misconception that, like a trademark, a copyright owner must zealously defend the copyright or lose it. That’s not true, but there is a statute of limitations. There’s a subtle difference between how these two ideas play out.

A trademark is any “word, name, symbol, or device, or any combination thereof” used as a way to identify a company’s products or services. If someone infringes a trademark, the owner must take action to protect it. Otherwise, the owner will probably lose the trademark. There’s no such rule for copyright. That is, the statute doesn’t state that the copyright is lost because it isn’t enforced, and the United States Supreme Court expressly held that the “laches cannot be invoked to bar legal relief” in copyright cases. Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. ___, 134 S. Ct. 1962 (2014). (The Doctrine of Laches is a defense to a lawsuit claiming that the plaintiff’s legal right or claim should not be enforced or allowed if there’s too long a long delay in asserting that right or claim, and the delay has prejudiced the defendant.)

Nevertheless, the law does provide a limitation on copyright suits at 17 U.S. Code § 507, which the Supreme Court upheld.

(a)Criminal Proceedings. Except as expressly provided otherwise in this title, no criminal proceeding shall be maintained under the provisions of this title unless it is commenced within 5 years after the cause of action arose.
(b)Civil Actions. No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.

There is a statute of limitations of three years for civil cases and five years for criminal cases. This applies to a single instance of copyright infringement. If there’s an infringement on 1/1/2016, and another on 1/1/2017, then as of 1/1/2019, the infringer can’t be sued for the 2016 infringement (from three years ago), but the owner can still recover damages for the 2017 infringement (only two years ago). Therefore, the copyright still has value.

The nature of copyright is such that it’s likely that one infringement will lead to subsequent infringements, so this is no small point. For example, an infringer makes a photocopy of a book and distributes it to friends. Seeing how much this is appreciated, the infringer may decide to continue doing so over the few months (or even years). As long as the copyright is still valid, the owner will be able to get compensation for any relatively recent infringement. That is, even if the first infringement is too old, all the subsequent infringements could still be enforced because the copyright is still valid. With damages potentially being very high, that’s still quite valuable to the copyright owner.

Follow me on Twitter @gsllc

Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with Cardinal Title Group, a Virginia title insurance and settlement company. Rob is also a licensed title insurance agent in Maryland and Virginia.

Pinned Post: Looking at My Stats and Revisiting My #RPG #Copyright Posts

If you enjoy this post, please retweet it.

The quarantine has me doing a bit of blogging lately, which means I’m also looking at my stats. With respect to my posts regarding copyright and RPGs:

The posts are broken into two separate issues. Part 1 and part 2 are about the copyrightability of RPG stat blocks, and part 3 (not relevant here) is about the OGL. As to the first issue, to date, part 1 represents ~30% of text by page count and has 17,037 hits (edit 10/20/2020: 17,667 hits), whereas part 2 (70%) has only 704 hits (edit 10/20/2020: 802 hits). Moreover, part 1 spends much of its text on going over basic copyright principles that don’t represent the actual argument. It’s clear by the stats and the basis of the criticism itself (often peppered with personal insults) that the vast majority of (non-lawyer) criticism I’ve received is from people that have read only 30% (at most) of that argument. I know it’s long, convoluted, and at times poorly written (mostly because it targets two very different audiences); and you’re under no obligation to read it (or even care about it). However, it’s all connected, and if you’re going to criticize it, you should probably understand it first.

Or not. Free speech and all that.

Endnotes:

  • Part 3 has only 703 hits (edit 10/20/2020: 849 hits), which is surprising. I thought it would be the most read post.
  • Part 3.5 provides necessary clarification and correction to Part 3.
  • Part 4 answers frequently ask questions and addresses frequently raised issues.
  • Over on a lawyers-only subreddit, the attorneys seemed to want to discuss only my side note on patentability of the Shadow of the Demon Lord initiative system. I guess it’s great that they all agree that my argument is trivially correct, but Rob Schwalb has seriously hijacked my glory. I let him have it when I saw him last February.

Follow me on Twitter @gsllc