世界足球俱乐部排名,基德1漫画网,黄宝世
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Step 2: Illegal occupation and substantial similarity
Defendant Lamachia (Lamacchia), 21-year-old, MIT students, he has an electronic bulletin board (bulletin board Service,bbs) on the Internet through the computer system of the school, allowing others to use this bulletin board to upload (upload) and download (download) activities in the form of anonymous or kana computer software. The computer software involved in the software is widely used in the industry, and is pirated. Lamachia himself has not gained any economic benefit from it, with the rules of the computer hacker's game, he is only a system operator, helping to exchange software. The use of this bulletin board is particularly large, which has attracted the attention of the school authorities and the FBI. After the initial judicial process, the United States government accused him of "with unknown others" conspiracy, to the software manufacturing industry caused more than 1 million of dollars of U. S. losses, thus prosecuted. However, because the law of criminal liability of traditional copyright infringement requires that the defendant should have the purpose of "intentional and obtaining commercial interests or private financial income", the United States government can only circumvent copyright law, and it is accused of violating the Telecommunication Fraud Act (Wire Fraud Act) of Lamachia. The Federal District Court, which accepts the case, considers that the case does not apply to the Telecommunications Fraud Act, since the Telecommunications Fraud Act is directed against fraudulent acts carried out by the media, such as radio and television, and does not involve the act of copyright protection in the case. If it is permitted to apply the Telecommunications Fraud Act to accuse copyright infringement, the remedies of copyright law will be reversed fundamentally . The penalty liability stipulated in the copyright law applies only to the situation stipulated by the legislators in Congress. The court finally found that the criminal penalties relating to copyright infringement must be specially stipulated by Congress in copyright law, not by other laws. In view of the fact that the defendant Lamachia in this case has not profited from the beginning, nature does not constitute a copyright infringement criminal liability for "intentionally and for the purpose of obtaining commercial interests or private financial gains", thus the court judgement Lamachia innocence.
The court's verdict triggered a major discussion of amending copyright law that must plug the loopholes in the relevant laws and impose penalties on copyright infringement activities without intentional or profit-making. There are two different opinions in the United States. The pro believes that it helps to encourage the normal business of e-commerce. Opponents argue that it will hinder information exchange and technological development on the Internet.
The United States government apparently very dissatisfied with the verdict, and therefore urged the United States Congress to amend the law to remedy loopholes, December 26, 1997 formally passed the implementation of the "Anti-Electronic Theft Act" (no Electronic Theft Act, called Net Act) is the United States Congress in response to the Lamachia case verdict .
In the copyright infringement litigation, the core criterion for determining infringement is essentially similar. Substantial similarity is from the reader's point of view, that is, the average reader in the comparison of the two works, whether that there is a substantial similarity between the two. If they feel that there is a substantial similarity between the two, that is, there is infringement; if they feel there is no substantive similar between the two works, there is no infringement . But how to determine what is the general reader? In general, when the infringing works embezzled the expression of copyright works, making the reader feel that the two works have great similarity, some of which readers will go to buy infringing works. The reader in this process is the general reader we described above .
2.2 Fair use of copyright
The principle of fair use has traditionally been defined as "the privilege of the use of protected material in a reasonable manner without the permission of a person other than the copyright owner" .
Article 107 of the Copyright Act of 1976 requires the Court to determine whether a particular use is reasonable through a case-by-case review and provides for four non-exclusive factors as a result of the Court's review of the principle Assessment criteria.
(1) the nature and purpose of the use: the defendant is for the reasons for the use of protected works.
(2) the nature of copyrighted works: the nature of the protected works and their value to determine the rational use of our principles can also have a certain impact.
(3) the proportion and status of the used part: that is, from the quantity and quality of the two sides to examine the defendant's use of protected works is excessive.
(4) the impact of protected works on potential markets and values. This is the most important of a single measure.
Article 503 of the US Copyright Act provides that, in the course of the proceedings, if the court deems it necessary, it may order the seizure of the infringing copy and the tools used to make the infringing copy, such as plates, models, fonts, records, tapes, film negatives, etc. Wait. Article 503 also provides that in the final judgment the court may order "the destruction or otherwise disposition" of all infringing copies and the means for infringement. This is a step forward in the 1909 copyright law's "destruction" provisions, and the courts can flexibly deal with infringing goods in other ways other than destruction.
According to Article 504 of the US Copyright Act, the damages available to the victim include actual losses, infringing profits and statutory damages.
(1) the actual loss
The actual loss is the loss of the market suffered by the copyright owner as a result of the infringement, or the proceeds that he can obtain if there is no infringement . The actual loss is divided into two types:
First, sales losses.
Second, the license fee or market value.
(2) infringing profits
How to determine the infringing profits? The plaintiff must first prove the total income of the infringer. Total revenue is the total number of infringing copies multiplied by the unit price of the infringing copy. The plaintiff can use the market valuation method and the sample sample survey method to prove the defendant's total income, so that the burden of proof transferred to the defendant's head. The defendant must state which costs are not infringing profits.
(3) statutory damages
When the copyright owner considers that his actual loss and the profits of the infringer are difficult to prove or can not be proved, or if it is deemed that the actual loss and the infringing claim are unfavorable to himself, the legal damages can be chosen. And from the time point of view, before the court has not yet made a final decision he can always choose to statutory damages. So that even if he chooses the actual loss or infringement of profits in the proceedings, but if it is difficult to prove or may be unfavorable to their own, can also be made before the final decision to require statutory damages.
(4) litigation costs and attorneys' fees
Article 505 of the US Copyright Act provides that the court may, within the discretion of the court, award reasonable costs and attorneys' fees to any party. But by the United States Government or its officials as a party to the proceedings, shall not be awarded to them or by them to pay the appeal fee . In general, both the plaintiff and the defendant, as long as the victory can be exempt from litigation costs, the court also do not have to consider other factors. However, in the award of attorneys' fees, the court must consider whether the losing party is malicious.
(5) Criminal Relief
According to Article 506 of the US Copyright Act, criminal damages for copyright infringement: any person who intentionally infringes the copyright of others for commercial purposes or for personal money can be punished according to the Penal Code. The court may order the confiscation, destruction or otherwise disposition of all infringing copies, all machinery or equipment used to make infringing copies, when punishing an appeal for offenses.
(1) the meaning of the right to network communication
In the White Paper published in September 1995, the United States Congress has explained the application of the five rights, such as the right to reproduction, interpretation, distribution, performance and right to show in the network, that these five rights and the right to network close relationship . About "performance rights", Article 101 of the US Copyright Act, by definition: Performing a work refers to the recitation, performance, playing, action or manner, either directly or in the performance of the device or process to work, or in relation to movies or Audio and video works, in a continuous manner to express their image or let people hear the sound.
(2) the EU and Japan on the right to network communication legislation status quo
The draft Copyright Directive, adopted by the European Commission on 9 June 2000, provides for the dissemination of works and performances, phonograms, films and radio programs on the Internet. Japan also amended its copyright law on June 10, 1997, which stipulates "the right to the public" in the category of copyright .
(1) to help infringing
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