> After accession to Berne in 1988, can *anyone* safely say that he/she did
> not know or have reason to know that a copyright was being infringed? I
> have not seen this point addressed in any cases that I have read, but it
> seems to me that it should be addressed. I feel that almost any
> infringement committed after 1988 would be willful. I guess it could be
> argued that the general public has no knowledge of this point, and might
> well be unaware of infringement. The preceding discussion assumes that
> there is no notice on the work, of course.
>
> Gregg Jansen
> gljansen[_at_]lnusde.delcoelect.com
>
Hmmmm. Consider the following cases:
- I copy a work of Shakespeare from a 1926 text; unbeknownst to me,
the publisher has altered the work to detect copying, and introduced
copyrightable expression in the process.
- I copy the Dead Sea Scrolls, and am sued by the descendent of whoever
wrote them in the first place. I am quite surprised to find that US
copyright protection still subsists.
- I copy a movie I know without a doubt is in the public domain, but
(because I don't regularly read the Federal Register) I am unaware that
copyright in the movie has been "restored" under 104A.
- I license the work from the "copyright owner," who was assigned the
rights by the original "owner", who [unbeknownst to me or the "copyright
owner"] stole it from someone else. [Only the most incredible parts of
this example are true -- see Lipton v. Nature Co., 2d Cir. 1995]
- My personal favorite: I follow the general rule, absolutely observed
in my industry and by everyone I know, and which I as a nonlawyer would
swear was law, that it's always OK to copy less than 10 seconds from a
song [or 100 words from a book, or a musical composition provided you
change every eighth note, or less than 30% of the source code, or any of
the other pervasive copyright myths].
Stop me before I hypothesize again . . .
Mark Lemley
Assistant Professor, University of Texas School of Law
Of Counsel, Fish & Richardson, P.C.
mlemley[_at_]mail.law.utexas.edu
For information on the Intellectual Property program at UT, see
http://www.utexas.edu/law/intelprop/
Received on Mon Oct 28 1996 - 22:03:50 GMT