Assignment #2
I. The Agenda
Our aim in this second block of material and discussion is to continue
our analysis of the "difference of digital," but shifting the
emphasis from the activities of this course to the parties and
stakes involved.
The questions we'll explore include the following (several of which
were broached but not extensively explored in connection with last week's
assignment):
- We established in this past week's discussion that if any member of
the class (a category that includes me) places copyright-protected materials
on the course website or in the Webboard conference area without permission
of the copyright holder, under circumstances where the poster is arguably
an infringer (the potential defense of "fair use" hangs over
this example), retrieval of that material by the others is, under the "White
Paper's" view of the law, also infringement. If that is so, what is
the theoretical liability exposure of those who download without knowledge
that permission has not been granted? What is the theoretical liability
exposure of those who download knowing (or strongly suspecting) that permission
has not been obtained?
- Under what circumstances, if any, am I or my university liable for
postings by members of the class that infringe? And if liable, with what
theoretical exposure?
- Some underlying facts are these:
- I am teaching this course as part of my Cornell teaching load.
- As the Webboard software is set, all can post directly to the
conference. (It could have been set up so as to require my prior approval of any posting.)
- As moderator, however, I can delete a posting.
- The computer running the Webboard software, holding all postings and
attached files on its hard drive, and loading them into RAM in response to
data requests from users is owned by Cornell Law
School.
- The Director of the law school's Information Technology is the Webboard
administrator and can also delete postings (including mine).
- What understanding should we reach with one another about our exchange
of written messages in this course (using e-mail or our Web-based course
conference)? Should we view this as a "joint work" or many
works of individual authorship? Is it possibly a "collective
work"? Should we have sort of explicit license agreement amongst
ourselves? What are our respective rights if we don't?
II. Readings
Copyright Act --
- Identify and review the Act's provisions that bear on the above questions.
- Review the White
Paper's gloss on the statute on these points (and also the copyright
casebook or treatise of your choice).
Three Cases --
In addition to the case I assigned for last week which we did not specifically
address
- Marobie-FL, Inc. v. National Ass'n of Fire Equipment Distributors,
983 F. Supp. 1167 (N.D. Ill. 1997) (copyright portions only) - LEXIS
| WESTLAW
These cases -- like the rest I'll be assigning throughout the course
-- are not excerpted. Read them accordingly. That is, read closely those
portions of the decisions that bear on this week's topic but skip over
or skim those portions devoted to other legal issues (e.g., trademark).
Background Reading --
During the early part of the course we will devote the bulk of our discussion
to legal issues, building our understanding of application of the current
Copyright Act to digital activities by bringing statute, decisions, and
commentary to bear on representative situations and problems. Even as we
do this I want you to begin thinking about the deeper policy questions
that must be addressed as changes in the Copyright Act and supplementary
law are being urged "because of" new information technologies.
Each week I'll be assigning or suggesting commentary dealing with these
matters. Last week it was Prof. Litman's article. This week I would like
you to read the cover article of the September Atlantic Monthly,
entitled "Who
Will Own Your Next Good Idea?"
III. How We'll Proceed
Since this week's is really a continuation of last week's topic I'll
start pushing the discussion in the Webboard conference in these directions
tomorrow.