November 2006
BNA International Piracy and Brand Awareness
Authored by Mai-Trang D. Dang and Esther H. Lim
Exploding availability of media in digital formats has opened copyright holders to a world of new possibilities in how their content is produced, consumed, distributed, marketed, and priced. Unfortunately for copyright holders who provide content in digital format, a coincident growth in file sharing has made illegal copying much easier and faster for those who would defy copyright law.1 Responding to perceived loss of revenue from illegal copying, copyright owners have developed software and hardware solutions that restrict digital files with measures such as encryption, digital watermarking (where files contain identifiers used to track illegal uses), or "Trusted Computing."2 Such Digital Rights Management (DRM) technology is hardly perfect, however, and hackers usually need only a short time to overcome new obstacles.
Once digital media began to flourish, copyright holders saw their efforts to enforce their DRM schemes thwarted quickly, even before their products entered the market. To alleviate the problem of DRM's diminishing effectiveness, Congress enacted the Digital Millennium Copyright Act (DMCA) in 1998.3 The DMCA makes trafficking in "anti-circumvention" devices punishable by fines and/or imprisonment.4 But the DMCA has not sufficiently comforted copyright holders to prevent them from investing in ever-escalating technology to circumvent hackers. Control of digital products on personal computers spawned a complex debate between individual rights and fair use advocates, who argue that certain technological self-help measures allow copyright owners to exceed the rights granted to them by intellectual property law, and the entertainment and software industries, who argue that illegal copying of digital products deeply threatens their markets5 and the national economy.6
Although copyright owners are presently legally unrestricted in how they may implement DRM measures, courts and legislatures may soon limit DRM to accommodate users' rights. To ensure that their digital content protection will endure forthcoming challenges, copyright owners should consider the legal danger zones discussed below when developing and releasing new DRM technology.
Currently, the legal framework in the United States gives copyright holders considerable freedom in how they may protect digital content. Opposition to DRM, voiced mainly by legal scholars and public advocacy groups, has focused on its use by copyright holders to restrict access to content purchased by individuals. Specifically, the complaints about technological protection measures most often involve three types of user rights that DRM technology implicates: the fair use principle of copyright law, freedom of speech and association, and a user's right to privacy. Critics often argue that traditional enforcement of copyright law not only left those rights intact, but encouraged them by allowing room for individual usage of copyrighted material. Because digital technology has greatly modified the abilities of both users and copyright holders, however, new enforcement methods necessarily clash with those individual rights.
Although temperatures run high in the public debate over DRM and individual rights, legal challenges to DRM measures have reached the courts mainly in the form of complaints alleging copyright holders committed deceptive trade practices or violated computer crime laws.7 Outside the United States, legislators have audibly grumbled about antitrust actions against Apple for their technological restrictions on the song files sold on iTunes; but they have so far been unsuccessful in persuading Apple to open its FairPlay DRM scheme to music devices other than the iPod.8 Even though the law has not yet been able to significantly influence the course of DRM technologies, copyright holders would be prudent to think beyond the goal of preventing illegal copies while developing tighter and stronger technology. Not only may lawsuits against copyright holders soon involve infringement of fair use and constitutional rights, the consequences of DRM technology can reach beyond legal into public relations and financial realms, as distributors like Sony9 and Apple10 have discovered. Thus, copyright holders should contemplate the danger zones discussed below when implementing their DRM rules.
Some fear that the use of technological measures by private entities have become the primary means of enforcement of copyright law for material in digital format,11 often termed "self-help" for copyright owners. DRM began as an effort to enforce legitimate uses of copyrighted material, but the technology is currently not legally tied to the framework of copyright statutes and case law. DRM is tied to marketed products. Therefore, some worry that the technology has or will restrict access to materials that have traditionally been unprotected by copyright law, thereby shrinking the public domain.12 In addition to preventing access to public domain works, DRM has the ability to prohibit the user from skipping through content,13 which is also outside the limits of copyright law, critics have suggested.14
Three major areas of controversy have emerged in the discussion about where DRM may infringe on certain individual rights. The first is the fair use exception to a copyright holder's exclusive right to copy, for which most protective technologies do not accommodate. The second is the individual right to free speech and association, which some find is in danger of violation by DRM controls such as forced viewing of content. Lastly, many critics fear that DRM (such as Trusted Computing systems) threaten users' right to privacy, eliminating the traditional element of anonymity in the consumption of creative works and requiring much more personal data than necessary from consumers of digital content.
Copyright holders have something shy of an absolute right to exclude others from reproducing their content. Some reproductions of a copyrighted work are in the public domain15 under the judicially-created (and later Congressionally codified) doctrine of fair use, which dictates that:
"some opportunity for fair use of copyrighted materials is necessary to fulfill copyright's very purpose, ‘to promote the Progress of Science and useful Arts' …".16
But what uses are legally fair is often the subject of conjecture, so copyright holders may find accommodating for fair use in DRM technology challenging.
The Supreme Court has acknowledged that the fair use doctrine has "no generally applicable definition".17 Rather, the following four factors are relevant to the analysis:
The four-factor balancing test is extremely difficult to apply to emerging technologies such as digital media, yet new technology is precisely where the law needs to determine fair use. And not only is fair use difficult to discern given the novelty of digital technology; fair use applications are a moving target because they evolve as technology changes. For example, during the advent of video recording, television broadcasters sued to prevent home recording of television programmes, which until then had never been possible. The Supreme Court held that recording televised programming for later viewing, which it called time-shifting, was fair use.18 More recently, the Ninth Circuit found "space-shifting" to be a fair use in the context of copying music files onto a portable player.19 Two years later, the same court found "space-shifting" not to be a fair use where copies of copyrighted content are stored in a central system where they can be easily copied by a large number of file-sharing users.20 As is shown by these examples, what constitutes fair use in a new technological environment is not always clear.
Even given its vague boundaries, Constitutional rights advocates find the fair use exception an important doctrine in copyright law because material used under the exception is public domain. Public domain is precious because the public use of existing content can foster creativity in derivative works, satire, etc. Some content providers may find fair use guidelines simply too vague to be applied to DRM. But wise owners of copyrighted digital content will recognise that the lack of definition of fair use in the context of new digital technology may be of great advantage to them. The ambiguity built into the doctrine of fair use may allow copyright holders to make the first assessment of what digital uses are fair, thereby influencing the definition of fair use early on. If the legality of DRM technology is to be tested in the courts in the future, copyright holders who have attempted to allow for fair use in their DRM technology will likely fare better than those who have not. This may be especially true in courts' evaluation of the fourth fair use factor, where copyright owners might have a stronger argument for the adverse effect of a use upon the work's value if the profit margin already accounts for some copying. Apple's FairPlay technology arguably accommodates for fair use by allowing unlimited copying of a music file, but restricting number of computers that can play the file.21 FairPlay's limited restriction arguably allows for fair use by letting users share files with a few others, but prevents large-scale illegal copying.
Rights advocates also worry that fair use of digital media may also be eclipsed by the DMCA's prohibition on trafficking in DRM anti-circumvention tools,22 which effectively makes working around a DRM measure for a fair use illegal. Although the DMCA prohibits trafficking in those tools and does not explicitly prohibit circumvention of a use control (as opposed to an access control) for the purpose of fair use, its effect is still to restrain fair use by making the tools unavailable to the average consumer.23 Copyright holders may be wise to attempt to accommodate fair use within DRM technology in order to minimise the likelihood that the DCMA will be successfully attacked by fair use and individual rights advocates.
Freedom of speech is closely tied to fair use as it relates to copyright law because the fair use doctrine helps to balance the competing constitutional rights of protection for authors and the freedom of expression through the consumption of the ideas expressed in the works.24 The Supreme Court has accounted for both needs.
"Copyright's idea/expression dichotomy strikes a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression."25
Professor Jack Balkin wrote that the emergence of cheaply published, instantly distributable, digital content impacts free speech in four different ways:
As a consequence of digital technology enabling much more participation by individuals in producing and consuming content, it has become an increasing source of power, which makes control over the use and access of that content much more valuable to businesses.27 Professor Balkin sees the tension between intellectual property and freedom of speech as a result of a conflict of values brought on by the advent of digital information technology.28
Free speech advocates do not generally dispute the right of content providers to limit mass illegal reproduction of products such as DVDs and CDs. However, they argue that the same technology used to stifle piracy also places more controls on individual consumption that may implicate free expression, such as forced viewing of advertisements and warnings, and restrictions on what type of machine must be used to consume the content. Further, critics fear that the DMCA, which adds a layer of legal protection to DRM technologies, has been upheld in recent court decisions to prohibit the publication of information and links to programs such as DeCSS. DeCSS was an application that circumvented CSS, an encryption technology that prevents content users from copying their DVDs, playing their DVDs on certain players, and playing them on computers that run the Linux operating system.29 The Second Circuit upheld a New York District Court's decision to force a website owner to remove all links to information about DeCSS from his site.30 First Amendment advocates complain that the DCMA, by reinforcing DRM through prohibiting anti-circumvention activities, has had the effect of keeping scientists, especially computer security experts, from sharing scientific research and even scheduling conferences in the United States.31 They argue that together, the DMCA and DRM may be impeding the goal of intellectual property written into Constitution itself: the Progress of Science and useful Arts.
Copyright holders argue that what DRM technology takes away in fair use and free speech, it returns to the public by extending content to more people through price discrimination. Content providers can tailor their products to allow some users to pay less for more restricted content, DRM, then, augments consumer choice because:
"It allows content owners to tailor their offerings to what consumers want … You must be able to get people to pay for the privilege of watching movies … DRM technology allows studios to offer copies of movies that consumers want to own, and a viewing only opportunity, usually at a much lower cost, to those who don't want a permanent copy", wrote Fritz Attaway, an executive of the Motion Picture Association.32
In other words, DRM arguably enhances speech because more users can choose whether or not to buy the work with various restrictions placed on them.33
Copyright owners may assume that the Free Speech argument against DRM technologies has little chance to succeed when balanced against the interests of businesses in protecting the value of their digital media. But although the New York District Court found that the website owner's free speech was outweighed by the rights of the DVD publishers to protect their content, courts may be less willing to subordinate free speech to DRM protection in instances where the circumvention method is less publicised or where the "speech" is considered political and public. DRM technology's potential infringement on free speech could be minimised by making price discrimination schemes transparent to the public. Where users pay a higher price for more use and access to content, and very low price for limited, minimal access, individuals arguably have as much access to digital files as they do to books in the library.
As far as enforcement of anti-circumvention activity under the DCMA, copyright holders would greatly benefit from making some allies of computer security experts in order to elicit their help and to diffuse the vengeance from the free speech advocates. And because overprotection can result in high costs and bad public perception,34 content providers should also weigh the benefits and risks of publicity resulting from DMCA suits against the impact on revenue from illegal copying.
Privacy advocate Professor Julie Cohen has written that the closer DRM technologies move toward perfect control over access and use of digital files, the more they implicate the spatial and informational privacy rights of content users.35 Professor Cohen and policy groups are concerned with those DRM technologies that monitor user behavior and automatically create consumption data that can personally identify users and expose the data to others.36 Considering that copyrighted content contains works such as books and movies, the data likely concerns what individuals read, view, or listen to, which is especially sensitive information in the context of First Amendment protection against prohibiting socially or governmentally disfavoured information.37 The data may also have secondary effects on users' privacy by enabling content providers to aggregate data into user profiles, to be either used in marketing or sold to third parties.38 Aggregated profiles are particularly threatening in the context of Trusted Computing systems, which can cause the passage of individualised data without the users' knowledge.39 Surveillance features such as digital watermarking of individual files also ensure that a file is authorised for use. Privacy advocates worry that the increased enforcement in the form of surveillance technology may have the effect of restraining peoples' activities in the home, threatening consumer privacy without the benefit of judicial oversight.40
Copyright holders may resolve some privacy issues by offering content with varying requirements for information. If copyright holders were to offer more access to content in return for more information about users, users would not give up privacy unknowingly. Copyright holders could tread more lightly in the area of individual privacy by clearly describing what information their DRM technology requires so that users may make informed choices, perhaps at the moment just before user data is sent. Users could then choose to send their data on or forego whatever use or access they were trying to obtain. Also, copyright holders could refrain from sharing user data with third parties, or at the very least, strip sensitive data before sharing it. The question of whether the use of aggregated consumer data will come into wide usage by DRM technology remains to be seen; but users of digital content have become increasingly sensitive about the privacy of their information, not to mention governmental agencies.41 Copyright holders who contemplate the importance of user privacy while protecting their content will have the advantage of positive publicity and, possibly, market preference over those who do not.42
The battle between the protection of IP rights using DRM technology and the three areas discussed above questions where the equilibrium lies. Settling the tension among competing rights may be achieved by requiring copyright holders to accommodate for fair use, free expression, and user privacy. Some commentators have called for placing legal limits on DRM and the DMCA to that effect. But if copyright holders were to make an attempt to build legitimate rights of users into their DRM technologies, they could pre-empt new legal limits.
Somewhat in effect now is a free-market solution to the controversy, which allows consumers of content to agree to trade some user and access rights for lower-priced content. "Click-wrap" and "shrink-wrap" contracts have become ubiquitous in online transactions and software and media purchases, limiting the terms of the purchase to restricted licenses in place of outright sales. But the question of whether contract law, in conjunction with DRM, can find common ground between IP rights and aforementioned individual rights is much debated. Procedurally, these contracts are almost universally accepted; "click-wrap" licenses, even without checkboxes to indicate assent, have been found generally enforceable by courts.43
However, fair use exceptions are not normally included in click-wrap license agreements; and privacy and free speech advocates share some trepidation over contracting these rights away. Professor Cohen argues that markets for privacy are dysfunctional and do not reflect the general public's extreme sensitivity to abuses of privacy in commercial settings.44 Contractual waiver to privacy rights, she argues, should be limited by the courts to reflect compelling non-economic values of privacy, just as they are limited to protect human dignity, bodily integrity, and self-determination.45 Courts have not yet explicitly struck down waiver to privacy rights in click-wrap licenses, but they have refused to enforce some copyrights where the licensing contracts seem to exceed the legal scope of their intellectual property rights, implying copyright misuse.46 But the application of copyright misuse is limited to a defence to infringement of a copyright, and may not preclude contract claims asserted by the copyright holder.47 Therefore, as long as content providers aim to contract within their rights as copyright holders and do not sue in excess of those rights, contracts with users are a stable way of reinforcing DRM rules and alerting users as to what they have purchased.
If the legislature and the courts leave publishers and consumers the freedom to settle the disputes among themselves, contracts involving digital copyrighted material may eventually allow providers and users to opt out of the copyright system altogether. In that case, fair use, privacy, and free speech rights may be freely traded away for access to more content and less usage. But in that same free market option, the reach of DRM may be voluntarily limited by content providers in response to the market's negative reaction to strong DRM measures. Alternatively, the legislature may limit DRM technology to preserve individual rights. Copyright holders may prefer to control their DRM technologies themselves, apart from legislative or judicially-drawn limits. In order to gain the advantage of being the first to move, publishers and distributors of digital content must openly seek technological solutions to the naturally opposed forces of digital copy protection and fair use, free speech, and privacy. By self-policing the reach of DRM technologies, copyright holders will have the most control over what technological measures they can legally use to protect copyrighted digital content from illegal use.
Endnotes
1 Christopher D. Kruger, Passing the Global Test: DMCA 1201 as an International Model for Transitioning Copyright Law into the Digital Age, 28 Hous. J. Int'l L 281, 287-90 (2006), Ryan Roemer, Trusted Computing, Digital Rights Management, and the Fight for Copyright Control on Your Computer, 2003 UCLA J.L. Tech. 8.
2 Trusted Computing is a system in which software and content providers can require the user's PC to expose stored identification data in order to access protected works.
3 Pub. L. No. 105-304, 112 Stat. 2860 (1998).
4 See 17 U.S.C. 1201-04 (2000).
5 BBC News, "Music Piracy 'Threatens Industry,'" January 22, 2001, at http://news.bbc.co.uk/2/hi/entertainment/1131260.stm (last accessed October 5, 2006).
6 Motion Picture Association, http://www.mpaa.org/piracy_Economies.asp(last accessed October 5, 2006); Microsoft PressPass, "Q&A: How Software Piracy Undermines Economic Recovery," (October 19, 2001) at www.microsoft.com/presspass/features/2001/oct01/10-19piracyqa.mspx (last accessed October 5, 2006); Michael D. Eisner, Testimony Before the Senate Committee on Commerce, Science & Transportation (Feb. 28, 2002) at http://commerce.senate.gov/hearings/022802eisner.pdf(last accessed October 7, 2006).
7 BBC News, "Sony sued over copy-protected CDs," November 10, 2005, at http://news.bbc.co.uk/2/hi/technology/442454.stm (last accessed October 19, 2006).
8 David Berlind, "Apple to meet with Norwegians, Danes, and Swedes over alleged unfairness of FairPlay," ZDNet, August 17, 2006 at http:/blogs.zdnet.com/BTL/?p=3515 (last accessed October 22, 2006).
9 Wikipedia: 2005 Sony BMG CD Copy Protection Scandal, at http://en.wikipedia.org/wiki/2005_Sony_CD_copy_protection_scandal (last accessed October 19, 2006) ("As a copy protection measure, Sony BMG included the Extended Copy Protection (XCP) and MediaMax CD-3 software on music CDs. XCP was put on 52 albums and MediaMax was put on 50 albums. This software was automatically installed on desktop computers when customers tried to play the CDs. The software interferes with the normal way in which the Microsoft Windows or Mac OS X operating systems play CDs, opens security holes that allow viruses to break in, and causes other problems. It is widely described as spyware. … As a result, a number of parties have filed lawsuits against Sony BMG; the company ended up recalling all the affected CDs; and greater public attention was drawn to the issue of commercially-backed spyware.").
10 "Apple v. France," BusinessWeek Online, March 21, 2006, at www.businessweek.com/technology/content/mar2006/tc20060321_144066.htm (last accessed October 19, 2006). ("A law, passed by the French National Assembly by a vote of 296 to 193, requires companies that sell digital-music files in France to open up their digital rights management systems so that the files can be played on any device. The law, if ultimately enacted, may set the stage for Apple to shut down its digital-music sales operations in the country, though Apple hasn't said one way or the other if that is the case.").
11 Mark S. Nadel, How Current Copyright Law Discourages Creative Output: The Overlooked Impact of Marketing, 19 Berkeley Tech L.J. 785, 836 (2004) ("Excessive technological content protection could be even more detrimental to creative output than current copyright law.").
12 Pamela Samuelson, "DRM {and, or vs.} the Law," Communications of the ACM, Vol. 46. No. 4, p. 42 (April, 2003).
13 See Wikipedia: User Operation Prohibition, at http://en.wikipedia.org/wiki/User_operation_prohibition (last accessed October 6, 2006).
14 Pamela Samuelson, supra note Error! Bookmark not defined. at 42.
15 Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417, 433 (1984).
16 Chad Woodford, Trusted Computing or Big Brother? 75 U. Colo. L. Rev. 253, 266-67 (2004) (citing Campbell v. Acuff-Rose Media, Inc., 510 U.S. 569, 575 (1994)).
17 Sony, 464 U.S. at 455-56.
18 Id. at 421.
19 Recording Indus. Assoc. of Am. v. Diamond Multimedia Sys.,180 F.3d 1072, 1079 (9th Cir. 1999).
20 A & M Records v. Napster, 239 F. 3d 1004 (9th Cir. 2001).
21 See "itunes Store Customer Service: Authorizing your computer", at www.apple.com/support/itunes/musicstore/authorization/ (last accessed October 5, 2006) ("Songs purchased on the iTunes Store can be copied to an unlimited number of computers. However, only five computers at a time can play your purchased music. … You can enable a computer to play your purchased music by 'authorizing' it. You can remove a computer from the authorization list by 'deauthorizing' it. Deauthorizing your computer does not erase your music files; it simply prevents your purchased music from playing until you authorize that computer again.").
22 Fred von Lohmann, Fair Use and Digital Rights Management: Preliminary Thoughts on the (Irreconcilable?) Tension Between Them, Electronic Frontier Foundation, Computers, Freedom, and Privacy, April 16, 2002.
23 Chad Woodford, supra note Error! Bookmark not defined. at 278.
24 Id. at 266.
25 Harper & Row, Publishers v. Nation Enters., 471 U.S. 539, 556 (1985) (internal quotations omitted).
26 Jack Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for The Information Society, 79 N.Y.U.L. Rev. 1, 7-10 (2004).
27 Id. at 15.
28 Id.
29 Universal Studios v. Reimerdes, 111 F.Supp.2d 294, 346 (S.D.N.Y. 2000), aff'd sub nom Universal City Studios v. Corley, 273 F.3d 429, 434-45 (2d Cir. 2001).
30 Universal City Studios v. Corley, 273 F.3d 429, 434-45 (2d Cir. 2001).
31 Derek J. Schaffner, The Digital Millennium Copyright Act: Overextension of Copyright Protection and The Unintended Chilling Effects on Fair Use, Free Speech, and Innovation, 14 Cornell J.L. & Pub. Pol'y 145, 155-60 (2004).
32 Id.
33 Id.
34 See "Sony sued over copy-protected CDs," supra note Error! Bookmark not defined; see also Free Software Foundation: "Tuesday, October 3rd a 'Day Against DRM'," at www.fsf.org/news/day-against-drm, (last access October 20, 2006) ("As consumer frustration grows over the Digital Restriction Management (DRM) technology imposed by Apple through its popular iPod and iTunes store, 10,000 technologists are preparing to take direct action to raise public awareness of the larger threats posed by DRM, with more than 200 'actions' planned across the globe on Tuesday October 3rd".).
35 Julie E. Cohen, Symposium: The Law and Technology of Digital Rights Management: DRM and Privacy, 18 Berkeley Tech. L.J. 575, 575-76 (2003).
36 Id.
37 Jonathan Weinberg, Symposium: Cyberspace and Privacy: A New Legal Paradigm? Hardware-Based ID, Rights Management, and Trusted Systems, 52 Stanford L. Rev. 1251, 1270-71 (2000).
38 Julie E. Cohen, supra note Error! Bookmark not defined. at 584-86.
39 Jonathan Weinberg, supra note Error! Bookmark not defined. at 1254.
40 Sonya Katyal, Privacy vs. Piracy, 9 Int'l J. Comm. L. & Pol'y 7 (2004).
41 Federal Trade Commission: Privacy Initiatives, at www.ftc.gov/privacy/ (last accessed October 21, 2006) ("Privacy is a central element of the FTC's consumer protection mission. In recent years, advances in computer technology have made it possible for detailed information about people to be compiled and shared more easily and cheaply than ever. That has produced many benefits for society as a whole and individual consumers. … At the same time, as personal information becomes more accessible, each of us – companies, associations, government agencies, and consumers – must take precautions to protect against the misuse of our information.").
42 See Jefferson Graham, "eadSony BMG releases first song that works with all music players.insidehead" USA Today, July 21, 2006 at www.usatoday.com/money/media/2006-07-20-sony-usat_x.htm (last accessed October 21, 2006) ("Record labels have refused to sell songs without digital rights management (DRM) in the past. Consumer advocates hope this is the beginning of a trend. 'It's about time,' says Fred von Lohmann, a senior attorney with the public interest group Electronic Frontier Foundation. 'This is an important signal that the labels may be finally realizing that DRM is hindering the size of the market.'"); but see John Borland, "CNet News.com: Sony Sailing Past Rootkit Controversy," November 21, 2005 at http://news.com.com/Sony+sailing+past+rootkit+controversy/2100-1027_3-5965243.html/?tag=nl (last accessed October 21, 2006).
43 Hughes v. McMenamon, 204 F.Supp.2d 178, 181 (D. Mass. 2002); Register.Com, Inc. v. Verio, Inc., 126 F.Supp.2d 238 (S.D.N.Y. 2000).
44 Julie E. Cohen, supra note Error! Bookmark not defined. at 607-08.
45 Id. ("One may not sell one's organs for transplant, research, or any other use… Providers of health care and of mass-marketed products, respectively, may not contract out of medical malpractice liability or liability for a defective product even if the patient or customer asserts willingness to risk injury in return for a lower price. Still another, more recent example is set forth in a New York trial court's ruling enjoining a software developer from forbidding licensees to publish critical reviews of its products.") (internal citations omitted).
46 Mark A. Lemley, Beyond Preemption: The Law and Policy of Intellectual Property Licensing, 87 Calif. L. Rev. 111, 153-58 (1999), citing Lasercomb America, Inc. v. Reynolds, 911 F.2d 970 (4th Cir. 1990); DSC Commc’ns Corp. v. DGI Techs., 81 F.3d 597 (5th Cir. 1996); Practice Mgmt Info. Corp. v. American Med. Ass'n, 121 F.3d 516, 520-21 (9th Cir. 1997), amended by 133 F.3d 1140 (1998) (finding that AMA license of its works to government agency on the condition that they did not use a competing work was copyright misuse, even though the clause was not enforced); PRC Realty Sys. v. Nat’l Ass'n of Realtors, No. 91-1125, 1992 U.S. App. LEXIS 18017 at 36 (4th Cir. Aug. 4, 1992) (invalidating a license agreement for copyright misuse because it precluded competition by licensees); F.E.L. Pubs., Ltd. v. Catholic Bishop, 214 U.S.P.Q. 409, 413 n.9 (7th Cir. 1982) (noting in dictum that "it is copyright misuse to exact a fee for the use of a musical work which is already in the public domain").
47 Id.
Copyright © Finnegan, Henderson, Farabow, Garrett & Dunner, LLP. This article is for informational purposes and is not intended to constitute legal advice. This memorandum may be considered advertising under applicable state laws.
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