Managing

User Generated Content in Virtual Environments: From Music to Machinima Tamiko Franklin

This chapter compares the laws of the United States of America, Canada, the Netherlands, and Germany and also discusses international law, namely, European law and the Berne Convention on Copyright.1 I. Introduction

Developing an effective rights management strategy in virtual environments requires a close review of current case law especially with respect to ongoing clarifications of mentioned statutory provisions as well as relevant provisions of international copyright laws. Of particular concern are provisions on copies and making available. Also of extreme importance are the decisions and or provisions, which establish liability and or impose responsibilities for hosting, transmitting, communicating or providing tools for downloading copyright protected content.2 II. Author Intent Shapes Content and Instructs Protection Mechanisms

The actual intent of the content creator when causing a work to appear in any given virtual environment plays an important role in determinations to be made under copyright laws. Access settings for controlling the display and accessibility of content also may affect intellectual property interests regarding virtual works. For example, one technical demonstration of intent with legal consequences is the choice offered in certain virtual spaces regarding whether content can be viewed online by the public or within publicly accessible areas of the service, as opposed to only by friends and family or within private areas of the service. Facebook, for example, allows users to select which content that they post will be available for viewing outside of the service, if any.3 Another option is to select that only the Facebook users friends can view content posted by that user. Second Life allows users to restrict access to certain areas of the service while other postings are publicly accessible to all users.4 Relatively recent cases in the United States illustrate, first, the relevance of the offer of copies online for streaming purposes as opposed to for downloading purposes, and, second, the importance of an authors intent in posting a copyrighted work. In United States v. American Society of Composers, Authors and Publishers (ASCAP), ASCAP appealed the District courts ruling that a download of a digital file containing a musical work does not constitute a public performance of that work.5 The facts of the case included that, in addition to performing music on Web sites and through services, the Internet companies, e.g., Yahoo!, Real Networks, and certain affiliated sites, offered to users copies of recordings of musical works through download transmittals.6 Only after the file is saved on the users hard drive can they listen to the song by playing it using a software program on that local computer or other device.7 It was undisputed that the [NOT FOR DISTRIBUTION] Page 1 of 15

downloads create copies of musical works, for which the copyright owners must be compensated.8 The nature of the rights that are being exchanged under offers made for the use of content in virtual spaces where downloading is not available as a part of the service is not so clear, however. The parties in ASCAP disputed whether downloads also constituted public performances of the musical works for which the copyright owners must be provided with separate and additional compensation.9 The Court of Appeals for the Second Circuit decided that those downloads did not constitute public performances.10 In answering that question the court turned to Section 101 of the Copyright Act, which states that to perform a work means to recite, render, play, dance, or act it, either directly or by means of any device or process. 17 U.S.C. 101. In excluding a download as neither a play or act the court determined it must decide whether a download fall within the meaning of recite, render or play. 11 The court found that the ordinary sense of the words recite, render and play refer to actions that can be perceived contemporaneously.12 In addition the court reasoned, the final clause of the 101 definition of to perform defines a performance in the audiovisual context as show[ing] the work or making it audible, reinforces its conclusion that to perform a musical work entails contemporaneous perceptibility. 13 The parties as well as the court agreed that streaming transmissions on the other hand do constitute public performances. 14 In virtual environments restricting downloadability, although fostering contemporaneous perceptibility via tools available inworld, streaming, the performance rights of owners of copyright protected virtual works are clearly implicated. For future reference, the Court highlighted the distinction between a transmittal of a work and a transmittal of a performance by stating in a footnote that Our opinion does not foreclose the possibility, under certain circumstances not presented in this case, that a transmission could constitute both a stream and a download, each of which implicates a different right of the copyright holder.15 In Moberg v. Leygues, the court was forced to consider the correlation between the posting of foreign copyrighted works on the Internet and how publication is or is not affected in the United States for the purpose of determining subject matter jurisdiction of the court to hear the plaintiffs copyright infringement claim in the United States.16 A professional photographer living in Sweden created a series of photographs outside of the United States in 1993. In 2004, he authorized his photos to be published on a German online art shop, blaugallery.com. Sometime later, at least in 2007, two French citizens, residing in France, hosting a commercial Web site in Delaware, displayed the images without the consent of the author. They were asked to remove the images by plaintiffs counsel and certain ones were removed, but others still remained online at the time the suit was filed in 2008. The [NOT FOR DISTRIBUTION] Page 2 of 15

plaintiff claimed that the defendants violated the United States Copyright Act17 and the Digital Millennium Copyright Act of 1998 (DMCA).18 The defendants argued that the work was a United States work, as it was published on the Internet and publication occurred simultaneously in the United States when it occurred in Germany. The Copyright Act states that a work is a United States work only if --- (1) in the case of a published work, the work is first published . . . . (B) simultaneously in the United States and another treaty party or parties . . . 17 U.S.C. 101. Germany is a treaty party.19 Under the Copyright Act, United States works are subject to the registration requirement of Section 411(a) [Except for an action brought for a violation of the rights of the author under Section 106A(a) and subject to the provisions of subsection (b), no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title] and because the Plaintiff never registered the work, there was no subject matter jurisdiction allowing the court to hear his infringement claim.20 The court agreed with the plaintiff that the work was not published in the United States simply by virtue of it being published on the Internet because to accept the defendants position would overextend and pervert the United States [c]opyright laws, and would be contrary to the Berne Convention.21 Although no case, up to that time, had considered the correlation between the Copyright Act, the Berne Convention, the technical aspects of Internet and online conduct, and what constitutes publication, the court explained, citing an article that did, The effect of the United States accession to the Convention is to exempt works the country of origin of which is not the United States from the registration requirement. 22 The court warned that the determination of country of origin is not so simple, as that determination hinges on whether the work is published, and if so where the work is published.23 Under the Berne Convention, [T]he country of origin shall be considered to be: (a) in the case of works first published in a country of the Union, that country; in the case of works published simultaneously in several countries of the Unionin the country whose legislation grants the shortest term of protection,24 and for unpublished works, [t]he country of the Union of which the author is a national.25 The United States Copyright Act provides that an unpublished work is a United States work if all the authors of the work are nationals, domiciliaries or habitual residents of the United States.26 In Moberg, the Court identified two issues: (1) whether posting on the Internet constitutes publishing, and (2) if so, whether publishing on the Internet causes the photographs to be published only in the country where the Internet site is located or simultaneously in every country in the world.27 Under Section 101 of the Copyright Act, publication means the authorized distribution of copies or phonorecords of a work to the public by sale or lease or lending.28 The distribution of [NOT FOR DISTRIBUTION] Page 3 of 15

copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, of a work also constitutes publication. A public performance or display of a work does not itself however constitute publication.29 The Berne Convention defines published works as works: published with the consent of their authors, whatever may be the means of manufacture of the copies, provided that the availability of such copies has been such to satisfy the reasonable requirements of the public having regard to the nature of the work. The performance of a dramatic, dramatico-musical, cinematographic or musical work, the public recitation of a literary work, the communication by wire or the broadcasting of literary or artistic works, the exhibition of a work of art and the construction of a work of architecture shall not constitute publication.30 The question of whether an Internet posting constitutes publication under United States law and the Berne Convention remains unresolved.31 The Moberg court decided that it did not need to resolve that issue because it held that, even assuming the German Web site published plaintiffs photographs, the photographs were not published simultaneously in the United States as a matter of federal statutory law.32 Perhaps the determination should focus on where the author intends to effect publication. Why would it not be possible for an author who does intend to effect publication simultaneously in additional jurisdictions to post the work within a virtual environment because they want to effect publication in the location where its servers are hosted? Columbia Universitys Professor Jane Ginsberg, in her online column discussing Moberg, stated: The court appears, without explicit statement, to require that there be more than simultaneity of copies; rather, the author must take steps specifically to effect first publication of the work in additional countries. Moberg first offered his photos to a group of persons in Germany, not in the United States. While his photos thus became available in the United States, that event, standing alone, may not suffice to establish his designation of the U.S. public as the first audience for his work . . . . Because the country of first publication carries consequences for the regime of protection, first publication is not something to be stumbled into. The possibility that some Internet users might in fact download the work within 30 days of its initial posting seems too random to meet that standard.33

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III.

Whether Uploading or Hosting Uploaded Content to a Virtual Space Constitutes Making Copies Publicly Available

The issue of first publication is relevant to the discussion content uploaded to virtual environments in two ways. It demonstrates that the nature of the content being uploaded must first be understood in order to make a determination of whether a copy of a copyrighted work is being offered. The District Court for the Western District of Seattle in Vernor v. Autocad in a footnote stated, Although the phrase copy of copyrighted material is awkward, the court uses it to emphasize the distinction between the copy and the copyrighted material.34 Copies, as defined in the Copyright Act, are material objects . . . in which a work is fixed by any method . . . and from which the work can be reproduced.35 This language plainly imposes two distinct, but related requirements. First, the work must be embodied in a medium, i.e., placed in a medium such that it can be perceived, reproduced, and so on from that medium, this being the so-called embodiment requirement. Second, the work must remain thus embodied for a period of more than transitory duration, this being the duration requirement.36 Also, the publication issue brings to the forefront the question of who actually publishes or makes, i.e., authors and controls, the copies of works being offered in virtual spaces and whether it matters for the purposes of the statute in the relevant jurisdiction. Is it the online service provider, who controls the original copy of the work, as well as the tools available to transmit a copy of the work within the environment from its creators inventory to the purchasers? Is it the user who orders the copy of the work using the tools of the service? Is it the creator who maintains the original copy of the work in their accounts inventory? Assuming that a copy is being made available, it must be determined whether the nature of transactions in virtual works, basically the act of displaying a copy of a work and at the same time offering it for sale and or download in a virtual environment, would constitute making a copy available for the purposes of fulfilling the requirements of copyright protection either under the Berne Convention or United States copyright law or would the ability to download the work be required. Concerning the first issue of the nature of content, it is also important to note that content may or may not be fixed for the purposes of Section 102 at the time when it is uploaded.37 A file containing a song, for example, will not require any transformation of the fixed copyright protected work to be uploaded and used in the virtual environment. A graphic or audio visual work such as a piece of virtual furniture, because it requires additional work or capturing for example, using a series of Photoshop [tm] images or editing software, will become fixed for the purposes of Section 102 after uploading and manipulating the basic textures in the environment. If it is animation, application, gesture, or script, then the content can be protected as literary works. Graphics, images, photos, or textures are protectable as works of visual art. An avatar can be protected as a graphic character under copyright law or as a source indicator under trademark laws, depending upon compliance with jurisdictional requirements regarding its use [NOT FOR DISTRIBUTION] Page 5 of 15

in connection with goods and services offerings. Contractual provisions in end user license agreements however, may modify what can be claimed as copyrightable user generated content. For example, the terms of service agreement for the Second Life virtual world is very broad and defines content as any works of authorship, creative works, graphics, images, textures, photos, logos, sounds, music, video, audio, computer programs, applications, animations, gestures, text, objects, primitives, scripts, and interactive features.38 Many virtual (MMORPG) gaming environments do not allow users to claim ownership of copyrightable content used in their environment. Computer programs such as animations, scripts, and gestures can be performed for the general in-world public, but this act alone may not constitute publication under Section 101 of the United States Copyright Act or under the Berne Convention. Both legal regimes require that copies must be made available.39 In the Netherlands, the Dutch Court of Appeal Den Bosch ruled that the showing of movies in private cabins constituted an act of communication to the public, making the work available to the public, and that it was irrelevant whether or not the work was communicated to an audience simultaneously.40 It is unclear, however, whether, if instead of performing for the general public instead the performance occurred within a virtual environment, whether a Dutch court would consider it a communication to the public. Or, for example, was performed only in designated areas of the virtual world, or offered for sale in advertisements in-world using Dutch language. Professor Ginsberg argues that whether copies are made available under the Berne Convention hinges upon the interpretation of the word copies, stating: If one interprets copies to include reproductions in RAM (a computers temporary memory), then posting a work on a Web site makes copies available to anyone who accesses the Web site. If one rejects the RAM copying theory, one might contest the characterization of the posting as a publication, on the ground that the Web site is simply making the material available as a public performance or display. These are not publications under the Berne Convention. Nonetheless, even if one interprets copies under [A]rticle 3.3 to mean more permanent embodiments, then any Web site that permits downloading (as opposed to streaming-only) would effect a publication because the downloading public can store the work to a more permanent format, such as hard disk or printout.41 It appears that Moberg may shed light on the nature of determining whether copyrighted content created by users in the United States or other member states is made available by virtue of display in interactive subscription-based virtual environments.42

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The offer of a license to display content, even without being granted in exchange for commercial value in a virtual space should constitute public availability for the purposes of Section 101.43 At the very least, Moberg brings into question the importance of the act of uploading a copy of a work by a creator in one jurisdiction into a virtual space for the purposes of display in multiple jurisdictions and, where at least one copy is hosted on a central server located in another jurisdiction, the work is offered to users physically located anywhere in the world. Contrary to the requirements for U.S. works, availability of copies for download may be required of foreign works uploaded to service Web sites, which are hosted on servers located in the United States.44 IV. International Perspective

Two recent cases decided by the Canadian Federal Court of Appeal affirmatively decided the question whether the transmission of a single download to an individual is a communication of that work to the public within the meaning of the Canadian Copyright Act.45 In Canada, Entertainment Software Assn. v. Society of Composers, Authors and Music publishers decided the issue of whether downloads can be communications within the meaning of s. 3 (1)(f). In that case the court held that musical works are not communicated, for the purpose of levying a performance right fee, by telecommunication when they are downloaded.46 But the question of whether a stream constitutes a communication within the meaning of s. 3(1)(f) of the Act remained undecided. Accordingly the issue in the case Rogers v. SOCAN, was whether a point to point transmission effected at the request of the recipient is a communication to the public from a website of an online music service or is it a private communication to an individual customer. The answer would determine whether streaming of files from the Internet triggered by individual users constitutes communication to the public of the musical works, contained therein by online music services who make the files available for streaming within the meaning of the Copyright Act, and requires payment of royalties to SOCAN.47 The court in Rogers found that nothing in the wording of s. 3(1)(f) implies a limitation that a communication is restricted to a purely non-interactive context.48
3. (1) For the purposes of this Act, copyright, in relation to a work, means the sole right ... ... (f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication, ... and to authorize any such acts. Section 2 of the Canadian Act broadly defines telecommunication as any transmission of signs,

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signals, writing, images or sounds or intelligence of any nature by wire, radio, visual, optical or other electromagnetic system.49

Further the court found that the online music service business model is to indiscriminately make musical works available to anyone with Internet access to the online music services website. Meaning, that the customers requesting the streams are not members of a narrow group, such as a family or a circle of friends. The Rogers court held that in these circumstances, the transmission of any file containing a musical work, starting with the first, from an online servicess website to the customers computer, at the customers request, constitutes communicating the work to the public by telecommunication.50 This interpretation is consistent with international law. Canada is a party of the Berne Convention, which sets out certain communication rights in literary and artistic works. Section. 3(1)(f) was based on Article 11bis.51 The seemingly subtle distinction between the word transmission under the US Act and communication under the Canadian Act and Berne, results in two completely different answers to the question who and what is the public for the purposes of demonstrating distribution of a copyrighted work. In the United States, section 101 of the Act defines to perform or display a work publicly as (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display to the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.52 In Cartoon Network, the issue on appeal was whether a download of a musical work constitutes a public performance of that work. In that case, the Internet companies sought a blanket license to publicly perform the entire ASCAP repertoire for certain of their website and services.53 In addition to performing music on websites and through services, the Internet Companies, to the dispute, did offer to users copies of recordings of musical works through download transmittals. The court observed that Internet companies generate revenue in two ways. From the advertisements accompanying performances, at no cost to users, of music, video and television programming on their websites and subscription services.54 Section 106 of the United States Copyright Act sets forth these various rights including the right to reproduce the copyrights work in copies and the right to perform the copyrighted work publicly.55

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In answering the question whether or not Cablevision would transmit a performance of the work to the public, the Court of Appeals for the 2nd circuit reasoned that the fact that the statute says capable of receiving the performance, instead of capable of receiving the transmission, underscores the fact that a transmission of a performance itself is a performance.56 Next the court examined who precisely is capable of receiving a particular transmission of a performance and concluded that because each RS-DVR transmission is made to a given subscriber using a copy made by that subscriber, that such a transmission is not to the public.57 Canada has also signed but not yet ratified the WIPO Copyright Treaty, a special agreement within the meaning of Article 20 of the Berne Convention. 58 The treaty stipulates that governments may grant more extensive rights under law that those granted by the Convention. Article 8 of the WCT states that the right of communication to the public includes the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them. Under the provisions of the Information Society Directive, It is important to note that there is a difference between Article 3(1) and Article 3(2). Article 3(1) requires Member States to provide authors with an exclusive right to authorize or prohibit any communication to the public of their works by wire or wireless means including the making available to the public. By contrast Article 3(2) requires Member States to provide four other categories of right holder with an exclusive right only to authorize or prohibit the making available to the public of other subject-matter.59 These differences have a decisive effect on the outcome of decisions of the courts in their respective jurisdictions regarding copying as well as copies, making works available and unauthorized communication of works to the public, all determinative factors in findings of copyright infringement. Many content creators wrongly assume that simply uploading their content into virtual spaces grants them the benefit of exclusive rights under copyright law. Whether copyright protection is extended to virtual content varies according to the type of content and the authors intent underlying decisions leading up to and including the moment that the content is uploaded. V. Does Transfer of a Virtual Work Create Ownership of a Copy for the Purposes of Triggering the First Sale Doctrine?

The Copyright Act grants several exclusive rights to copyright holders.60 Exceptions to these rights inure to an owner of a copy of copyrighted material.61 Courts are currently struggling with the concept of ownership, as opposed to the possession of data, all around the world, particularly as it relates to the ownership of a copy of software downloaded either from the Internet or from a compact disk.62 For example, German appeals courts have decided first sale doctrine cases, that required a determination of whether a granting a license to download computer programs constitutes a sale for the purposes of allowing a purchaser to resell without infringing the exclusive rights of the copyright holder.63 [NOT FOR DISTRIBUTION] Page 9 of 15

By analogy, a virtual work may be considered at least similar to, if not entirely depending on the specific work involved, a computer software program and must be copied by a computer in order to be used (displayed). So would a rights holder in an environment allowing download of their script or gesture programs for objects in world have no recourse to prevent later resale of copies of their work for example on Ebay or XstreetSL? In the German cases, legislative intent limiting the application of exhaustion to the right of distribution was determinative. As the principle of exhaustion of software was already considered by the European legislature, the national court decided not to provide for exhaustion of software distributed via the Internet.64 The Court of Justice however recently overturned these conclusions in Usedsoft GmbH v. Oracle International Corp..65 The exclusive distribution right of authors under the Copyright Treaty include authorizing the making available to the public of the original and copies of their works through sale or other transfer of ownership and the exclusive right of authorizing any communication to the public of their works by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.66 In the case, Usedsoft offered for sale already used licenses for the Oracle programs at issue.67 The national court below framed the question as whether the customers of Usedsoft can rely on national legislation implementing the exception provisions of Directive 2009/24 which states that the authorization of the rights holder is not required if the acts of the lawful acquirer are necessary for the use of the computer program.68 Oracles license agreements for the software at issue contain the following term, under the heading Grant of rights: With the payment for services you receive, exclusively for your internal business purposes, for an unlimited period a non-exclusive non-transferable user right free of charge for everything that Oracle develops and makes available to you on the basis of this agreement.69 The national court outcome also questioned whether the right to distribute a copy of a computer program is exhausted under the national law transposing Article 4(2) of Directive 2009/24.70 To determine the answer as to whether exhaustion applied to the copyright holders distribution of software programs via Internet download on appeal, the Court of Justice examined first the meaning of the term sale of a copy of a program. The court held that the transfer by the copyright holder to a customer of a copy of a computer program, accompanied by the conclusion of a user license agreement, constitutes a first saleof a copy of a program within the meaning of Article 4 (2) of Directive 2009/24.71 It explained that the exhaustion of the distribution right under the Directive concerns both tangible and intangible copies of a computer program. 72 [NOT FOR DISTRIBUTION] Page 10 of 15

In terms of resale of virtual goods particularly scripts and gestures purchased in the EU, this decision may mean that transfers in virtual goods could be considered sales subject to the same unauthorized resale and license. It remains a question however especially considering that the purchase of virtual goods is transacted inworld using virtual currency. A user wishing to purchase goods in world is required to purchase via credit card an equivalent amount of Linden dollars using national currency and subsequently with Linden dollars make the purchase of virtual goods. It is not clear whether this activity transfer of virtual goods via inworld currency within a virtual environment would be considered a sale. Would it matter if a TOS or EULA plainly stated that these transactions are not to be considered sales? Recital 13 in the preamble to Directive 2009/24 however states that the acts of loading and running necessary for the use of a copy of a program which has been lawfully acquired may not be prohibited by contract.73 VI. Conclusion

Developing an effective rights management strategy in virtual environments requires a close review of current case law especially with respect to ongoing clarifications of mentioned statutory provisions under copyright laws. Regarding copyright laws, of particular concern are provisions concerning communicating or making content available, as well as jurisprudence in all relevant jurisdictions concerning liability of online service providers for user requested actions using tools or copies hosted by the service provider. It is also helpful to be aware of the peculiarities that involve copyright protected content created for use in virtual spaces. There are differences in international systems of protection that affect the intellectual property rights in content; particularly so if the content in question is a work of visual art like a photograph or digital representation of a painting, a database, computer program, or a trademark or source indicator. Moral rights to certain types of content may also exist for certain works uploaded by authors located in jurisdictions other than the United States and be subject to different regulations that govern protection of and transactions in such content. It is very important to note the differences in the policies of the service provider towards use of bots, cheats and other third party programs within the environment and whether the users can under the provisions of the respective TOS EULA maintain claims to ownership of intellectual property rights to content created in that space.
Tamiko Franklin is a private practitioner and the President of the Virtual Intellectual Property Organization, Inc., She has served on the Anti Counterfeiting and Internet committees of the International Trademark Association (INTA) as well as the Intellectual property committee of AmCham Croatia. She was legal advisor to Richard Minsky in Minsky v. Linden Research and holds Juris doctorate and Master of Intellectual Property degrees from Franklin Pierce Law Center (University of New Hampshire Law School). From 2004-2012 she was Head of International Legal Services for a specialized IP law firm in Zagreb, Croatia. Ms. Franklin is a member of the Massachusetts bar as well as a qualified solicitor and can be contacted at atty.tamiko.franklin@gmail.com.

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24, 1971 and amended in 1979, S. Treaty Doc. No. 99-27 (1986) [The 1979 amended version does not appear in U.N.T.S. or I.L.M.] 2 For this chapter, virtual environments are online spaces supporting interactive phenomena and within which users are granted access to tools by the host which allow them to perform any number of actions including cloud computing, gaming, socializing, and role playing which, regardless of whether the account used to access the environment is provided free of charge or at monthly rates, 1) require establishing a user account; 2) require assent to a terms of service or end service (TOS) or end user license agreement (EULA), and 3) are not passive, meaning that they allow user interaction including the ability to post or upload content. 3 See Section 2. (4); Sharing your content and information; http://www.facebook.com/legal/terms 4 See generally http://wiki.secondlife.com/wiki/Private_Island 5 See United States v. American Society of Composers, Authors and Publishers (ASCAP) et al., No. 09-0539, 2010 WL 3749292 (2nd Cir. 2010) at p. 5. 6 See United States v. American Society of Composers, Authors and Publishers (ASCAP) et al., No. 09-0539, 2010 WL 3749292 (2nd Cir. 2010) at p. 7. 7 nd [p. 8; 2 Circuit Case No. 09-0539-cv-L decided September 28, 2010 citing 485 F.Supp. 2d 438, 442; Id. at 442, 446]. 8 See United States v. American Society of Composers, Authors and Publishers (ASCAP) et al., No. 09-0539, 2010 WL 3749292 (2nd Cir. 2010) at page 12. 9 nd See p. 12; 2 Circuit Case No. 09-0539-cv-L (Sept. 28, 2010). 10 nd See p. 12; 2 Circuit Case No. 09-0539-cv-L (Sept. 28, 2010). 11 nd See p. 13; 2 Circuit Case No. 09-0539-cv-L (Sept. 28, 2010). 12 nd See p. 14; 2 Circuit Case No. 09-0539-cv-L (Sept. 28, 2010). 13 nd See p. 15; 2 Circuit Case No. 09-0539-cv-L (Sept. 28, 2010). 14 nd See p. 18; 2 Circuit Case No. 09-0539-cv-L (Sept. 28, 2010). 15 See United States v. American Society of Composers, Authors and Publishers (ASCAP) et al., No. 09-0539, 2010 WL 3749292 (2nd Cir. 2010), at p. 18. 16 See Moberg v. Leygues Civil No. 08-625 (NLH) (JS) US District Court for the District of Delaware, at p. 8. 17 See 17 U.S.C. 501 et seq. 18 See 17 U.S.C. 1201 et seq. 19 Moberg v. Leygues Civil No. 08-625 (NLH) (JS) US District Court for the District of Delaware, at p. 6. 20 See Moberg v. Leygues Civil No. 08-625 (NLH) (JS) US District Court for the District of Delaware, at p. 8. 21 See Moberg v. Leygues Civil No. 08-625 (NLH) (JS) US District Court for the District of Delaware, at p. 7. 22 See Moberg v. Leygues Civil No. 08-625 (NLH) (JS) US District Court for the District of Delaware, at p. 9 (citing Thomas F. Cotter, Toward a Functional Definition of Publication in Copyright Law, 92 MINN. L. REV. 1749,(2008)). 23 See Moberg v. Leygues Civil No. 08-625 (NLH) (JS) US District Court for the District of Delaware, at p. 9. 24 Berne Convention, art. 5(4). 25 Berne Convention, art. 5(4). 26 17 U.S.C. 101. 27 See Moberg v. Leygues Civil No. 08-625 (NLH) (JS) US District Court for the District of Delaware, at pgs. 10-11. 28 17 U.S.C. 101. 29 See 17 U.S.C. 101. 30 Berne Convention, art. 3. 31 See Moberg v. Leygues Civil No. 08-625 (NLH) (JS) US District Court for the District of Delaware, at pg. 12. 32 See Moberg v. Leygues Civil No. 08-625 (NLH) (JS) US District Court for the District of Delaware, at pg. 12.

1 See Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised at Paris on July

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 Jane Ginsburg, Columbia University, Borderless Publications, the Berne Convention, and U.S. Copyright Formalities 3-4 (Oct. 20, 2009), <http://www.mediainstitute.org/new_site/IPI/2009/102009_BorderlessPublications.php>. 34 Vernor v. Autodesk Inc., Case No. C07-1187RAJ, at p. 5 (discussing 17 U.S.C. 202). 35 17 U.S.C. 101. 36 See Cartoon Network LP v. CSC Holdings Case No. 07-1511-cv at 13. 37 Section 102 of the U.S. Copyright Act requires that original works of authorship are fixed in order to be protected under the Act. See 17 U.S.C. 102 (a). 38 Linden Research, Inc. & Linden Research United Kingdom, Ltd. (collectively, Linden Lab), Second Life Terms of Service Agreement [Section 4. Second Life is a Virtual World Service, paragraph number 4.1] (Dec. 15, 2010), <http://secondlife.com/corporate/tos.php> [hereinafter, Second Life TOS]. 39 See 17 U.S.C. 101; Berne Convention, art. 3. 40 See Bernt Hugenholtz, Chronicle of the Netherlands Dutch Copyright Law, 1990-1995 at p. 16 discussing Court of Appeal of Den Bosch, 1 February 1994, AMI 1995, (GUFA/Havermans); footnote 41 reads: The GUFA decision demonstrates that the Dutch right of communication to the public is sufficiently flexible to be applied in the digital networked environment of the future, where delivery-on-demand of copyrighted works will be the rule not the exception. 41 Jane Ginsburg, Columbia University, Borderless Publications, the Berne Convention, and U.S. Copyright Formalities (Oct. 20, 2009), <http://www.mediainstitute.org/new_site/IPI/2009/102009_BorderlessPublications.php> (online column published by The Media Institute). 42 For a list of treaty parties, see U.S. Copyright Office, International Copyright Relations of the United States, Circular No. 38A, 4 (Sept. 2010), <http://www.copyright.gov/circs/circ38a.pdf>. 43 See 17 U.S.C. 101. To perform or display a work publicly means (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or separate places and at the same time or different times. Id. See Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised at Paris on July 24, 1971 and amended in 1979, S. Treaty Doc. No. 99-27 (1986) [The 1979 amended version does not appear in U.N.T.S. or I.L.M.] at Article 3 Criteria of Eligibility for Protection (3) Published works. See generally Entertainment Software Assn v. Society of Composers, Authors and Music Composers 2012 SCC 34 and Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada 2012 SCC 35. 46 See generally Entertainment Software Assn v. Society of Composers, Authors and Music Composers 2012 SCC 34 at paragraph 5. 47 See Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada 2012 SCC 35 at p.16 48 See Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada 2012 SCC 35 at p.31; paragraph 35. 49 See Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada 2012 SCC 35 at p. 25; paragraph 23
45 44

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 Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada 2012 SCC 35 at p. 40; paragraph 56. 51 See Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada 2012 SCC 35 at p. 34 at paragraph 42 ; Berne convention Article 11bis 52 Id 101. 53 See Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada 2012 SCC 35 at p.6 at paragraphs 1-3 [A blanket license is a license that gives the licensee the right to perform all of the works in the repertory for a single stated fee that does not vary depending on how much music from the repertory the licensee actually uses. [United States v. Am. Soc.y of Composers, Authors & Publishers, No. 41-1395 (WCC), 2001 WL 1589999, at *1 (S.D.N.Y. June 11, 2001).] See generally Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada 2012 SCC 35 at p.7. 55 17 U.S.C. 106(1), (4).
54

50

See Cartoon Network LP v. CSC Holdings Case No. 07-1511-cv at p. 31. See Cartoon Network LP v. CSC Holdings Case No. 07-1511-cv at p. 41. 58 See Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada 2012 SCC 35 at p.36; paragraph 49. 59 See Council Directive (EC) 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OJ L167/10 at Article 3. Right of communication to the public of works and right of making available to the public other subject matter.
57

56

See 17 U.S.C. 106. See 17 U.S.C. 109. 62 See generally Vernor v. AutoDesk, United States District Court Western District of Washington at Seattle, Case No. C07-1189RAJ; Vernor v. Autodesk, United States Court of Appeals for the Ninth Circuit, Case No. 09-35969. 63 http://www.twobirds.com/English/News/Articles/Pages/Software_publishers_prevent_resale_bare_licences.Aspx; see generally Decision of Courts of Appeals Frankfurt am Main, Case No. 11W15-09 of 12 May 2009; Judgment of OLG Dusseldorf Court of Appeals, Case No. 1-20 U 247/08 of 29 June 2009. 64 s.29 Recital 29 Council Directive 91/250/EEC. 65 See generally Usedsoft GmbH v. Oracle International Corp., Case C-128/11. 66 The World Intellectual Property Organisation (WIPO) adopted the WIPO Copyright Treaty (the Copyright Treaty) in Geneva on 20 December 1996. That treaty was approved on behalf of the European Community by Council Decision 2000/278/EC of 16 March 2000 (OJ 2000 L 89, p. 6). Article 4 of the Copyright Treaty, Computer programs, reads as follows: Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression. 67 See Usedsoft GmbH v. Oracle International Corp., Case C-128/11 at p. 5; paragraph 25. 68 See Usedsoft GmbH v. Oracle International Corp., Case C-128/11 at p. 5; paragraph 29; citing Article 5(1) Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (Apr 23, 2009) (full-text).
61 69

60

See Usedsoft GmbH v. Oracle International Corp., Case C-128/11 at p. 5; paragraph 23.

70 71

See Usedsoft GmbH v. Oracle International Corp., Case C-128/11 at p. 6; paragraph 31. See Usedsoft GmbH v. Oracle International Corp., Case C-128/11 at p. 8; paragraph 48.

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 72 See Usedsoft GmbH v. Oracle International Corp., Case C-128/11 at p. 9; paragraph 59.
73

See Usedsoft GmbH v. Oracle International Corp., Case C-128/11 at p. 12; paragraph 76.

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