Distribution, Performance & Display

Question 1

Does the distribution right extend to the rental of the protected work?

Answer 1

Yes

(to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending)

Question 2

Does the first sale doctrine apply to counterfeited works?

Answer 2

No – the seller must be the owner of a particular copy lawfully made

(or authorized by the owner)

Question 3

602(a) restricts importation of works acquired outside the US for the purpose of

Answer 3

distribution (generally for commercial gain)

Question 4

Does the first sale doctrine apply to works first sold abroad and imported to the US?

Answer 4

Under Kirtsaeng, yes, but Fisher seems to think that this area of law is unstable and vulnerable to change.

Question 5

In the 9th Cir Autodesk case, why were CTA and Vernor not protected by 109(a) when they sold the copies of AutoCAD?

Answer 5

109(a) applies to owners of copies, and Autodesk merely gave CTA a license to act as a kind of distributor, with various use & distribution restrictions.

Question 6

So according to Autodesk, a software user is a licensee rather than an owner where the copyright owner:

(3 things)

Answer 6

specifies that the user is granted a license,

significantly restricts the user’s ability to transfer the software, and

imposes notable use restrictions.

Question 7

According to Nimmer, the first-sale doctrine protects transactions if and only if:

4 things

Answer 7

1. a copy was lawfully manufactured with the authorization of copyright owner
2. the copy was transferred under the copyright owner’s authority
3. the defendant qualifies as the lawful owner of that particular copy
4. the defendant thereupon disposed of that particular copy, as opposed to, eg, reproducing it

Question 8

The public display right applies to all of the same works as the public performance right, plus:

Answer 8

PGS (pictorial, graphical, sculptural)

individual images of an audiovisual work

Question 9

The public display & performance rights apply to musical works, but not to

Answer 9

sound recordings

Question 10

What right attaches to sound recordings?

Answer 10

The right to control public performance by means of a digital audio transmission

Question 11

Performances & displays of copyrighted works can only give rise to liability if they’re done

Answer 11

publicly

Question 12

There are two “publicly” clauses. What are they?

Answer 12

the public place clause,

the transmit clause

Question 13

When a radio station broadcasts the song, is it engaged in a performance?

Answer 13

yes, “rendering a work by means of a device or process” includes sending radio signals

Question 14

When a boom box receives the radio signal and plays it in someone’s living room, is that a performance?

Answer 14

yes

Question 15

The public place clause includes two definitions of public. What are they?

Answer 15

• a place open to the public
• a place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered

Question 16

Every time a radio station (or cable company) broadcasts a signal containing a song, it is _______ ___________ both the _________ and the ________ __________.

Answer 16

publicly performing

composition
sound recording

Question 17

Cablevision: “Because each RS DVR playback transmission is made to a single subscriber using a _____ _____ copy produced by that subscriber, we conclude that such transmissions are not performances to the public and therefore do not infringe any exclusive right of public performance.

Answer 17

single, unique

Question 18

Did the fact that the the transmissions in Aereo were also from single copies requested by each subscriber matter?

Answer 18

No, Aereo was acting like a cable company and just trying to get around the public performance license fee

Question 19

8 exceptions & limitations to the public performance and display rights

Answer 19

classroom
distance learning
religion
nonprofit
homestyle 
FMLA (for bars and restaurants, v complex)
some webcasts
real-space displays (right to display a work to any viewers present at the place the copy is located)

Question 20

Does the real-space display exception apply to people who rent works?

Answer 20

No

Question 21

5 main compulsory licenses

Answer 21

public broadcasting
some webcasts
cable retransmissions
satellite retransmissions
jukeboxes