Amazon Sellers’ Guide: Copyright Law
By: CJ Rosenbaum Esq., Anthony Famularo Esq., Levi Stewart, and RJ Cherpak
Chapter 8: Conclusion ……….. 87
I. Brief History of Copyright Law Review ……….. 87
II. General Outline of Copyright Law Review ……….. 89
III. Digital Millennium Copyright Act Review ……….. 92
IV. Copyrightable Works on Amazon Review ……….. 95
V. Protecting Your Brand & Fighting Infringers Review ……….. 96
VI. Defenses to Copyright Infringement Review ……….. 96
VII. Copyright Claims, Complaints & Suspensions ……….. 98
Chapter 8: Conclusion
I. Brief History of Copyright Law Review
The history of copyright law dates back to the 1400s, when the printing press was introduced in Europe. Johannes Gutenberg’s invention of the printing press quickly spread throughout Europe and would transform the reproduction process for books, laying the foundation for the establishment of copyright law. 
Authors were met with the unique ability to reproduce their works in an efficient and inexpensive fashion.  As an unintended consequence, one’s ability to copy another author’s work and illegitimately take credit was also made easier. Soon, the very first statutes to recognize copyrights as a concept were signed into law.
In America, the Copyright Act of 1909 brought about many necessary changes to the copyright law landscape. It allowed works to receive federal statutory copyright protection upon publication and the acquisition of a copyright notice. This granted unpublished works the ability to receive copyright protection, exempted foreign works in foreign languages from having to undergo publication in the U.S., granted a 14-year extension to the copyright protection renewal period, and provided owners of musical compositions with mechanical recording rights. 
Next, the Copyright Act of 1912 added motion pictures to the list of works that qualified for copyright protection.  The Sound Recording Amendment of 1971 was then implemented to protect sound recordings and address piracy issues that had arisen due to the invention of the audio tape recorder.  In response to the major technological advances that society had experienced, Congress implemented the 1976 Copyright Act which provided protection for any work expressed through “any tangible medium of expression” and that is an “original work of authorship” would be eligible for protection. 
On October 31, 1998, the Berne Implementation Act of 1988 was signed into law, through which the U.S immediately provided 24 new countries with copyright relations and granted U.S. artists, authors, and copyright holders with the highest possible quality of international copyright protection.  The CTEA extended the terms of copyright protection, extending the protection term for works created prior to 1978 to 95 years total. It also extended the term of protection for works created on or after January 1, 1978, to the life of the author plus 70 years.  The DMCA helped the U.S. adjust to the digital age, acclimate to the emergence of the Internet, and combat online copyright infringement issues which had arisen. 
II. General Outline of Copyright Law Review
To recap, a copyright is provided by U.S. law to authors of “original works of authorship” that are fixed in a tangible form of expression.  An “original work of authorship” is a work independently created by an author that contains some degree of creativity.  A work is considered to be fixed if it is presented in an adequately permanent form so that the work can be received, produced, or communicated for more than a short period of time.
The exclusive rights guaranteed by a copyright include the right to: (1) reproduce the work in copies or phonorecords; (2) create derivative works based on the original work; (3) sell or transfer ownership of copies or phonorecords of the work to the public; (4) perform the work publicly if it is a choreographic, dramatic, literary, or musical work; and (5) authorize the use of these exclusive rights to others in accordance with certain statutory exceptions. 
The use of copyright-protected work is allowed as long as the user pays the required statutory fees.  Moral rights in copyright law protect the noneconomic interests of the copyright holder and include the right of attribution and the right of integrity.  The copyright is jointly owned by the authors unless the parties make some alternative agreement.  However, sellers should understand that just because one offers ideas for a work, makes improvements to a work, or provides guidance in the creation of a work does not make that person a joint author of the work. 
A work made for hire is created if the work is commissioned by an employer. Sellers should understand that an employer who hires the employee who creates the work is the owner of the copyright for that work, not the actual hired employee or assigned creator of that work.  Further, when two or more parties have equal exclusive rights in a work, one joint owner does not usually need another joint owner’s approval to transfer their own individual interests in the copyright, as a joint owner does not have the right to restrict, transfer, or license another’s interest in the copyright. 
In order to register a copyright, one must satisfy various requirements on their application for copyright registration, including: (1) the name of the copyright owner; (2) the year of first publication; and (3) include the word “copyright,” “copr,” or the symbol © for observable or visual copies or the symbol ℗ for phonorecords of protected sound recordings.  Another major takeaway is the benefits of registering a copyright, which include: (1) enabling someone to bring a lawsuit for copyright infringement; (2) providing a copyright owner with the ability to recover statutory damages and attorney’s fees in an infringement action; and (3) how registration serves as prima facie evidence to support the legitimacy of a copyright as long as that copyright is registered within five years of the work’s first publication.  Aside from a few exceptions, a work is deposited with the Library of Congress, and although failing to make a deposit may not result in the loss of your copyright, a Seller may still be subject to certain fines. 
III. Digital Millennium Copyright Act Review
Some of the primary goals of the DMCA are to outlaw the distribution, production, and usage of circumvention technologies that are used to render technological protection measures ineffective.  Another major objective of the DMCA is to shield online service providers from liability for copyright infringement, which is the purpose of the safe harbor provisions.
The DMCA is comprised of a few different titles, including: (1) Title I, the WIPO Copyright Performances and Phonograms Treaties Implementation Act of 1988; (2) Title II, the Online Copyright Infringement Liability Limitation Act; and (3) Title III, the Computer Maintenance Competition Assurance Act.
The WIPO Copyright and Performances and Phonograms Treaties Implementation Act contains a provision that grants copyright protection to other WIPO copyright treaty member country’s works that have not become part of the public domain in their own country, but were still denied protection in the U.S.  It is primarily known for its anti-circumvention provisions. Anti-circumvention provisions prevent the use of circumvention tools, devices, or technologies to get around technological protection measures or access controls such as passwords or encryption codes in order to access a copyright protected work. 
The anti-circumvention provisions do not apply to works that belong to the public domain since these works are not accorded copyright protection. For sellers, these provisions outlaw three forms of conduct when it comes to the circumvention technologies: (1) the production; (2) distribution; and (3) usage of these technologies.  A tool, device, or piece of technology will likely to be considered circumvention technology if the technology’s purpose and scope of use is primarily to circumvent or exploit technological protection measures, is marketed for these purposes, and has minimum commercial value.
Title II, entitled the Online Copyright Infringement Liability Limitation Act, consists of various safe harbor provisions designed to protect online service providers from liability for copyright infringement.  In particular, there are four safe harbor categories, for: (1) transitory digital network communications; (2) system caching; (3) information residing on systems of networks at the direction of users; and (4) information location tools.  Although these safe harbors limit an online service provider’s liability, sellers should be cognizant of the two requirements that apply to every provider in order for them to qualify for these protections under the safe harbors, which is that: (1) providers must adapt some policy that terminates the use of repeat infringers; and (2) providers must not interfere with the technological safeguards in place to protect copyrighted work. 
Following our discussion of the Online Copyright Infringement Liability Limitation Act, we then touched on the Computer Maintenance Competition Assurance Act. This Act, which is Title III under the DMCA, is significant in that it allowed the owner or lessee of a computer to make copies of a computer program in order to service, maintain or repair the computer.  Although this act provides much more freedom to computer owners and lessees, sellers and readers should remember that the act’s statutory language is fairly restricted in its application, as the act only applies to program copies that are automatically produced when the computer turns on and applies only to computers that are in lawful possession of a program copy in the first place. 
IV. Copyrightable Works on Amazon Review
Generally, images and text are the works of authorship that are copyrightable on Amazon, as a person who takes an original photo of a product should be allowed to upload this to their product detail page but would need to obtain permission when using a photo from someone else’s website.  The same idea applies to text. A person who drafts his or her own verbiage to describe his or her product is entitled to use that verbiage on their product detail page but will need to obtain permission if he or she uses product verbiage from another’s website. 
As a general matter, a seller generally grants Amazon and its affiliates the license to use the images that it uploads to its product detail pages. Sellers should always aim to use their own photos and verbiage when drafting a listing. Sellers should also be aware of any copyright interests present that may be attached to the products they are selling, as this could also lead to potential legal issues if a seller is selling a work that was not originally created by them.
V. Protecting Your Brand and Fighting Infringers Review
In order for an Amazon Seller’s picture to qualify for copyright protection however, it must possess an adequate amount of creativity which can be satisfied in a variety of ways.  This can be done through the photographer’s placement of the camera or selection of the subject matter. Further, a copyright registration requires: (1) a completed application form; (2) payment of the nonrefundable filing fee; and (3) a non-refundable deposit of a copy or copies of the works that you are seeking to register. It is more efficient to submit an application online as opposed to by mail because of lower filing charges, the ability to pay with a credit or debit card, and a quicker application process.  The mandatory deposit requirement mandates that the owner of a copyright or owner of an exclusive right of publication submit the best edition of their work with the Copyright Office, regardless of whether they plan to apply for copyright registration, in order to ensure that the Library of Congress possesses a copy of every possible copyrightable work in the U.S.
VI. Defenses to Copyright Infringement Review
The two requisite elements needed in order to succeed on a copyright infringement claim are that: (1) one must prove “ownership of a valid copyright” and (2) there must be “copying of constituent elements of the work that are original.”  There are a few potential defenses one could attempt to invoke when being subject to a copyright claim. The first is the fair use doctrine. Sellers should remember that the fair use doctrine is one of the most commonly raised defenses to infringement claims and provides that a copyrighted work is used fairly when it is used for criticism, commentary, news reporting, teaching, or research purposes.  A four factor test is used to determine whether a work is used fairly. However, it is important to remember that a party does not have to prove all four factors in order to succeed in invoking the defense.
The second defense is the doctrine of de minimis use. The de minimis use doctrine provides that a copying party should not be found liable for copyright infringement when that party copies only a very minimal or insignificant portion of a work.  The last defense is the first sale doctrine. When one goes about obtaining a copy of a copyright protected work in a lawful manner, he or she has the freedom to distribute or dispose of that particular copy in any way that he or she wishes without having to take the interests of the copyright holder into consideration. Although this can serve as a valuable defense, there are some limitations, namely that the defense does not apply to those that have unauthorized copies of a copyrighted work, and that it cannot be raised by those who do not have actual ownership of a copy such as renters or lessees of a particular copy. 
VII. Copyright Claims and Suspensions: A.K.A “Rights Owner” Complaints & Suspensions
Sellers should be aware that any allegation against them claiming that they have infringed on someone else’s intellectual property right will likely result in the suspension of their seller’s account by Amazon. Once suspended, sellers should be aware that the burden will be placed on them to prove that intellectual property claim being brought against them is baseless or without merit.
Sellers should also be aware of infringement claims that are mistakenly brought against them, as the Seller will need to notify the complaining party that it is their burden to prove that actual infringement occurred and, in the event that complaining party agrees, the Seller will also need them to notify Amazon that he or she and the complaining party have resolved the issue and the complaining party wishes to withdraw the complaint. A seller should begin their POA by providing the cause of the suspension in the first place, which is generally due to one of the three primary claims: (1) a mistakenly filed complaint; (2) a false complaint; or (3) a legitimate copyright infringement claim.
If a complaint is filed against a seller by mistake, he or she can provide the complaining party with invoices from his or her supplier showing the complaining party that the products are authentic and that the complainant’s monitoring system accidentally caught the product in its net.  If a legitimate infringement claim is brought against a seller, he or she should seek out the help of an experienced intellectual property law attorney as this will allow him or her to potentially avoid having to go to court or arbitration, and potentially lead to a settlement between him or her and the complainant.
Additionally, hiring an intellectual property attorney shows to the complaining party that the Seller is taking their complaint seriously and taking the necessary steps to resolve the dispute. Second, the POA should include a detailed explanation of the steps taken to resolve the infringement allegations. This explanation should include all correspondence between the Seller and the complaining party acknowledging the complaint that has been filed, resolution of this complaint, and proof that the complaint has been removed.
In addition to this correspondence the Seller should also include proof that the products are being manufactured and sold legally, which can be proven by showing invoices which support the supply chain of products. The final section of the POA should explain what has been done to correct the issue so that this will not be an issue that arises again. This final part should explain any modifications that have been made to the Seller’s business practices to permanently solve the problem and show that someone reviewing his or her inventory to prove that the products are legitimate.
If the complainant refuses to remove the complaint, the seller should seek the help of an experienced intellectual property attorney who can take a variety of actions to get their account reinstated. Sellers should note that the costs associated with hiring an intellectual property attorney are certainly worth it. Amazon respects sellers who hire attorneys as this shows that they take initiative to protect their account and business while still being respectful of the Amazon marketplace.
Table of Authorities
· 17 U.S.C. § 1.
· 17 U.S.C. § 101.
· 17 U.S.C. § 102.
· 17 U.S.C. § 106.
· 17 U.S.C. § 106A.
· 17 U.S.C. § 107.
· 17 U.S.C. § 109.
· 17 U.S.C. § 113.
· 17 U.S.C. § 114.
· 17 U.S.C. § 115.
· 17 U.S.C. § 117.
· 17 U.S.C. § 118.
· 17 U.S.C. § 119.
· 17 U.S.C. § 1201.
· 17 U.S.C. § 201.
· 17 U.S.C. § 302.
· 17 U.S.C. § 304.
· 17 U.S.C. § 401.
· 17 U.S.C. § 402.
· 17 U.S.C. § 405.
· 17 U.S.C. § 407.
· 17 U.S.C. § 408.
· 17 U.S.C. § 410.
· 17 U.S.C. § 411.
· 17 U.S.C. § 412.
· 17 U.S.C. § 504.
· 17 U.S.C. § 512.
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· Apple, Inc. v. Psystar Corp., 658 F.3d 1150 (9th Cir. 2011).
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· Compendium of U.S. Copyright Office Practices 20 (3rd. Ed.2014).
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· Copyright Registration, Copyright.gov (last visited July 27, 2018) https://www.copyright.gov/comp3/chap1500/ch1500-deposits.pdf.
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· Craig Mason, What does Public Domain Mean? A Guide for Drama Teachers, Theatre folk (Sept. 22, 2014), https://www.theatrefolk.com/blog/public-domain-mean-guide-drama-teachers/.
· Digital Millennium Copyright Act, Harvard University (Last visited July 26, 2018), https://dmca.harvard.edu/pages/overview.
· Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848 (9th Cir. 2017).
· Executive Summary Digital Millennium Copyright Act Section 104 Report, Copyright.gov (last visited July 26, 2018), https://www.copyright.gov/reports/studies/dmca/dmca_executive.html.
· Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991).
· Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985).
· History of the DMCA, Digital Millennium Copyright Act (last visited July 27, 2018), https://bcgrouptwo.wordpress.com/about/.
· How to Open and Maintain a Copyright Office Deposit Account, Copyright.gov (last visited July 27, 2018) https://www.copyright.gov/circs/circ05.pdf.
· IPPI Board of Directors, International Intellectual Property Institute (May 2010), https://iipi.org/2010/05/iipi-board-of-directors/.
· Jason E. Sloan, An Overview of the Elements of a Copyright Infringement Cause of Action-Part I: Introduction and Copying, American Bar Association (last visited July 27, 2018), https://www.americanbar.org/groups/young_lawyers/publications/the_101_201_practice_series/elements_of_a_copyright.html.
· Jeremy Byellin, Today In 1995: The Digital Performance Right in Sound Recordings Act Is Enacted, Thomson Reuters (Nov. 1, 2013), http://blog.legalsolutions.thomsonreuters.com/legal-research/today-1995-digital-performance-right-sound-recordings-act-enacted/.
· Krause v. Titleserv, Inc., 402 F.3d 119 (2nd Cir. 2005).
· Lee S. Brenner & Allison S. Rohrer, The De Minimis Doctrine: How Much Copying Is Too Much?, Spring 2006 Kelley Drye 9 (2006), https://www.kelleydrye.com/News-Events/Publications/Articles/The-De-Minimis-Doctrine-How-Much-Copying-Is-Too-M.
· Louis Kroeck, How to Prove Copyright Infringement, Chron (last visited July 27, 2018), http://smallbusiness.chron.com/prove-copyright-infringement-60828.html.
· MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993).
· Mandatory Deposit of Copies or Phonorecords for the Library of Congress, Copyright.gov (last visited July 27, 2018), https://www.copyright.gov/circs/circ07d.pdf.
· Mark Heaphy, The Impact Of The Digital Millennium Copyright Act, Wiggin & Dana, LLP, http://www.wiggin.com/files/m%20heaphy%20impact%205-5-2003.pdf.
· Mary Juetten, How to Avoid Copyright Infringement, Legalzoom (last visited July 27, 2018), https://www.legalzoom.com/articles/how-to-avoid-copyright-infringement.
· MDY Indus., LLC v. Blizzard Ent., Inc., 629 F.3d 928 (9th Cir. 2011).
· New York Times Co. v. Tasini, 533 U.S. 482 (2001).
· Newton v. Diamond, 388 F.3d 1189 (9th Cir. 2004).
· Offices of the United States Attorneys, 1854. Copyright Infringement, United States Department of Justice (last visited July 27, 2018), https://www.justice.gov/usam/criminal-resource-manual-1854-copyright-infringement-first-sale-doctrine.
· Orrin G. Hatch, Better Late Than Never: Implementation of the 1886 Berne Convention, 22 Cornell Int’l L.J. 171 (1989).
· Overview of the legal provisions, PBWorks (last updated 2007), http://dmca.pbworks.com/w/page/17963778/Overview%20of%20the%20legal%20provisions.
· Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007).
· Pub. L. No. 105-298, 112 Stat. 2827 (1998).
· R. Elizabeth & C. Kitchen, Understanding the Digital Millennium Copyright Act, Bright Hub (last updated Jan. 29, 2010), https://www.brighthub.com/office/entrepreneurs/articles/62799.aspx.
· Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010).
· Report of Infringement, Amazon.com (last visited July 27, 2018), www.amazon.com/reportofinfringement.
· Richard R. Hammar, The “Copyright Renewal Act of 1992,” Church Law&Tax (Nov. 2, 1992), https://www.churchlawandtax.com/cltr/1992/november-december/copyright-renewal-act-of-1992.html.
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· Stoel Rives LLP, The Anti-Circumvention Rules of the Digital Millennium Copyright Act, Stoel Rives LLP (Mar. 1, 2002), https://www.stoel.com/the-anti-circumvention-rules-of-the-digital-millennium.
· The Avalon Project, The Statute of Anne; April 10, 1710, Yale Law School (last visited July 26, 2018), http://avalon.law.yale.edu/18th_century/anne_1710.asp.
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· Thomas F. Cotter, Gutenberg’s Legacy: Copyright, Censorship, and Religious Pluralism, 91 Cal. L. Rev. 323, 325-26 (2003).
· U.S. Const. art. I § 8, cl. 8.
· U.S. Copyright Office, The Digital Millennium Copyright Act Of 1998 U.S. Copyright Office Summary, Copyright.gov (Dec. 1998), https://www.copyright.gov/legislation/dmca.pdf.
· U.S. Copyright Office, Visual Art Works 2 (2017), https://www.copyright.gov/comp3/chap900/ch900-visual-art.pdf.
· United States Copyright Office, Copyright Basics, Copyright.gov (last visited July 26, 2018), https://www.copyright.gov/circs/circ01.pdf.
· Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001).
· University Copyright Office, Copyright Infringement Penalties, Purdue University (last visited July 27, 2018), https://www.lib.purdue.edu/uco/CopyrightBasics/penalties.html
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· William C. Holmes, 1 Intellectual Property & Antitrust Law § 4:7 (2018).
· William F. Patry, 4 Patry on Copyright § 13:15 (2018).
· William F. Patry, Copyright law and Practice 61 (1994).
Copyright Law: Chapter 8
 Prepressure, supra note 1.
 PsPrint, supra note 2.
 Copyright Act of 1909, supra note 10.
 United States Copyright Law, supra note 12.
 Patry, supra note 14, at 73.
 17 U.S.C. § 101.
 Hatch, supra note 19, at 171 (quoting Remarks on Signing the Berne Convention Implementation Act of 1988, 24 Weekly Comp. Pres. Doc. 1405 (Oct. 31, 1988)).
 United States Copyright Law, supra note 12.
 Executive Summary Digital Millennium Copyright Act Section 104 Report, supra note 32.
 U.S. Copyright Office, supra note 31.
 U.S. Const. art. I § 8, cl. 8.
 17 U.S.C. § 115.
 17 U.S.C. § 114(d)(2).
 17 U.S.C. § 201(a).
 Practical Law Intellectual Property & Technology, supra note 41.
 17 U.S.C. § 201(b).
 Practical Law Intellectual Property & Technology, supra note 41.
 17 U.S.C. §§ 401(b), 402(b).
 17 U.S.C. § 410(c).
 17 U.S.C. § 407.
 Elizabeth, supra note 72.
 PBWorks, supra note 101.
 Stoel Rives LLP, supra note Error! Bookmark not defined..
 U.S. Copyright Office, supra note 31.
 17 U.S.C. § 512 (i)(2).
 U.S. Copyright Office, supra note 31, at 13-14.
 Amazon Seller Central, supra note 163.
 Compendium of U.S. Copyright Office Practices 20 (3rd. Ed.2014).
 Holmes, supra note 165.
 Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).
 17 U.S.C. § 107.
 University Marketing and Communications, supra note 209.
 UNT, supra note 116.
 17 U.S.C. § 109(d).
 Id. at 55.