Archive | Copyright

Google Books’ Scanning and Snippet Display of Books Is Fair Use, and Thus Not Copyright Infringement

So holds Authors Guild, Inc. v. Google Inc. (S.D.N.Y. Nov. 14, 2013). I’m still on the road, and thus can’t blog about the opinion in detail, but I’ve read it and I think its fair use finding is quite right.

Thanks to How Appealing for the pointer.

UPDATE: Matthew Sag has a summary of the reasoning. [...]

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“Plaintiffs … Reluctantly File This Action”

From Williams v. Bridgeport Music, Inc. (C.D. Cal. filed Aug. 15, 2013), aka Got to Give It Up (Marvin Gaye) & Sexy Ways (Funkadelic) v. Blurred Lines (Robin Thicke):

Plaintiffs, who have the utmost respect for and admiration of Marvin Gaye, Funkadelic and their musical legacies, reluctantly file this action in the face of multiple adverse claims from alleged successors in interest to those artists.

The Hollywood Reporter has the story, including playable versions of Got to Give It Up and Blurred Lines. [...]

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Copyright Extension Prediction?

Prof. Glynn Lunney asked the following question on an academic discussion list I’m on; with his permission, I’m reposting it here:

Anyone interested in starting a pool on whether Congress extends copyright for another 20 years by 2018? Or will the Mickey Mouse of Steamboat Willie actually fall out of copyright, though not necessarily into the public domain?

My friends on the Hill and in the Copyright Office say no way. Eldred may have lost, but he focused too much attention on the issue for Congress to think it can sneak through another extension without paying a political price. I’m not so sure.

The speculation that the Eldred plaintiffs (and Larry Lessig, their lawyer) may have partly won politically even though they lost legally struck me as interesting, though I have no independent basis for judging it. In any event, I thought it was worth passing along. (Note that Prof. Lunney chose 2018 for being 20 years after 1998, the date of the last copyright extension. Steamboat Willie won’t go out of copyright until a few years after 2018.) [...]

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Nice New Fair Use Decision

From Kiennitz v. Sconnie Nation LLC (W.D. Wis. Aug. 15, 2013):

The Mifflin Street Block Party is an annual event that began in May 1969 as part of the student protest movement on the UW–Madison campus. At that time, Paul Soglin was a student protest leader at UW–Madison and a Madison alder. Soglin attended the first Mifflin Street Block Party and was arrested at the event. In 1972, Soglin was elected mayor of Madison and over the course of the next 40 years, he has served as mayor for more than 15 years during three separate periods.

In a September 10, 2011 interview with The New York Times, Soglin said of his participation in and arrest at that first Block Party: “There was an underlying theme of taking a sharp stick … and poking it in the eye of authority.” The article stated: “Mr. Soglin acknowledges that he has grown to favor ‘a sense of order.’ That was not exactly a central theme during his protest days, and it causes some amusement among plenty of free-spirited young people.” The New York Times article quoted Madison Common Council member Mike Verveer as saying, “It’s a little ironic, since it was the student vote that originally got Paul elected.”

Soglin was Madison’s mayor at the time of the 2012 Mifflin Street Block Party, which had become a controversial event subject to significant political debate in Madison. Following the block party in 2011, the Wisconsin State Journal quoted Mayor Soglin when asked about the future of the event, as declaring, “All I’m interested in is ending this thing.” Shortly after the 2011 party, an Underground employee suggested that Sconnie and Underground should sell a shirt in 2012, criticizing in a humorous manner Mayor Soglin’s opposition to the block party….

In March 2012,

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Is the Library of Congress a Legislative Department or an Executive Department?

A very interesting question, raised in Intercollegiate Broadcasting System, Inc. v. Copyright Royalty Board, a certiorari petition now pending before the Court. Profs. John Duffy (Virginia), Peter Strauss (Columbia), and Michael Herz (Cardozo) — an illustrious trio who often take quite different views about other subjects — have an item about this at Concurring Opinions; here’s an excerpt (click on the Concurring Opinions post for links):

Earlier this year, more than 100,000 citizens petitioned the White House to overturn a copyright rule issued by the Librarian of Congress that made unlocking a cell phone a crime. The White House responded by promising to seek legislation to overturn the Librarian’s rule. That was the most the President would or could do because “[t]he law gives the Librarian the authority,” and the Administration would “respect that process,” even though the Librarian acted contrary to the Administration’s views. See here. As the New York Times reported, “because the Library of Congress, and therefore the copyright office, are part of the legislative branch, the White House cannot simply overturn the current ruling.” See here.

There’s only one problem with all of this: The Department of Justice has been vigorously arguing precisely the contrary constitutional position in the federal courts.

According to the Administration’s filings in litigation that has now reached the Supreme Court, the Library of Congress is “an executive Department,” and the Librarian himself is “subject to plenary oversight by the President.” Justice Department lawyers have explained that Congress made a “purposeful decision to place the Library under the President’s direct control and supervision”; that the Librarian of Congress is the “Head” of this “executive Department”; that the President may remove the Librarian “at will” just as he may remove other heads of executive departments; and that this removal power creates

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Righthaven’s Collective Copyright Enforcement Project Loses in the Ninth Circuit

The decision is Righthaven, LLC v. Hoehn (9th Cir. May 9, 2013), and it holds that Righthaven didn’t properly secure the exclusive rights needed to sue various alleged copyright infringers. (In this particular case, Righthaven had sued two people who posted newspaper articles onto Web sites, though it had also sued others in the past.) Congratulations to Kurt Opsahl and Corynne McSherry of EFF, as well as Marc Randazza and J. Malcolm DeVoy, on their victory.

Note that the Ninth Circuit vacated the pro-defendant fair use ruling in Righthaven LLC v. Hoehn (D. Nev. 2011), reasoning that Righthaven’s lack of the exclusive rights needed to sue stripped the district court of jurisdiction to even decide the fair use question. [...]

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The Knockoff Economy: Thanks! And Some Responses to Reader Comments . . .

This is our last post guest-blogging at the VC and we again want to thank our hosts. A lot of interesting comments came in, and we’ll use this final post to address some of the issues and questions raised by readers. In no particular order:

Innovation vs. Variation. A few comments argued that a lot of what we discuss in The Knockoff Economy—such as innovation in font design, fashion, or food—is not really innovation but rather than variation, and as such these cases shouldn’t be used to draw any larger conclusions about IP policy or the nature of creative incentives. So, for example, one commentator claimed that “true innovation is game-changing.”

Our own view is that this misconceives what actually happens in the world, and also is inconsistent with the way our legal system treats innovation and creativity.  In The Knockoff Economy we stress the importance of “tweaking” over “pioneering,” because we believe that in fact a lot of great innovations, even those thought to be pioneering, are really built on existing advances. A great example is one Mark Lemley has written about: Thomas Edison and the lightbulb. Edison is popularly valorized as a great pioneer, but Mark notes that there were no fewer than a dozen lightbulbs already. Edison’s great contribution was to “f[ind] a bamboo fiber that worked as a filament in the lightbulb developed by Sawyer and Mann, who in turn built on lighting work done by others.” One could say the same about Steve Jobs, whom Malcolm Gladwell recently called “the greatest tweaker of his generation.”

Of course, innovation can be game-changing, but most of the time it’s really just improving the same game, not replacing it. And our IP system, both patent and copyright, apply to both sorts of innovation. In fact, [...]

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The Knockoff Economy and the Power of Performance and Brands

In our last post, we discussed a variety of industries in which we see creativity without much resort to patent or copyright law. And we offered some explanations for how low-IP creativity works, such as informal social norms and first mover advantage. In today’s post, we look at a couple of additional ways in which low-IP industries sustain creativity without heavy reliance on IP.  One has to do with the difference between product and performance.  The other relates to the surprising power of brands.

To see our first point, think about innovation in the world of cuisine. Recipes are widely copied – a fact you can confirm by looking at websites like RecipeSource and, which contain thousands of recipes that people have posted, many taken from cookbooks and cooking magazines. And recipes, for reasons we explained earlier, are not covered by copyright. And yet there are a lot of new recipes – cooks continue to innovate in this area despite others’ freedom to copy. Why? Well, on important reason is that the culinary industry doesn’t really rely very much on the recipe as a product. It relies, rather, on revenues from things that are harder to copy. Like restaurants. The quality of a recipe’s preparation in a great restaurant, the wonderful ambiance, the service, the entire experience of fine dining – these are all very difficult and expensive to copy. Any local sushi place can offer a miso-glazed black cod. But have you had the original at Nobu Matsuhisa’s signature “Matsuhisa” restaurant? Oh boy.

The strategy of sustaining innovation by shifting emphasis from product to performance is not confined to cuisine. The music industry – which has traditionally relied heavily on copyright law but is having an increasingly difficult time sustaining a copyright-centered business model – is [...]

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The Knockoff Economy in Finance, Football, and More

In our first two posts, we wrote a bit about how two important creative industries, fashion and cuisine, do very well without much intellectual property.  Notice that we wrote “without much” IP, and not “without any”.  That’s because there is some IP that’s relevant to both. The fashion industry makes heavy use of trademark law to protect brands.  But the actual appearance of clothes – the fashion design – is almost entirely unprotected. In cuisine IP plays a similarly peripheral role. A recipe cannot be protected. The narrative that goes along with it may be, but the recipe can certainly be copied without the narrative.

So both fashion and cuisine are low-IP industries, and both are intensely creative even though others are free to copy and often do.  And as we describe in The Knockoff Economy, there are a lot of other industries that don’t rely much on IP law to motivate creativity.  We spend the first four chapters of the book taking a close look at these industries, and noting the many different ways in which they work to allow creativity to co-exist with copying — or, in some cases, even use copying as fuel for creativity.  The stories in these industries are all different, but they do fall into a few broad categories.

First, there are some that rely on informal rules against copying – “IP norms” instead of IP law.  Stand-up comedy is one of these.  In our chapter on comedy, we draw on earlier work that one of us (Sprigman) did with his University of Virginia colleague Dotan Oliar that documented stand-up comedians’ anti-copying norms and described how the stand-up community runs an informal but pretty effective community policing system to restrain copying.  Chefs, we show, have some similar copying norms, though these norms [...]

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The Knockoff Economy: Copying and Creativity in Cuisine

Yesterday we introduced some of the big themes of The Knockoff Economy, and briefly explained why the fashion industry remains so creative despite having its central product—clothing designs—freely copied by any firm that thinks it can turn it a profit by aping an original design.  In the book we look at several other examples of creative fields in which copying is common. One of the most interesting and fun is the culinary world.

In this post, we thought we’d present a brief excerpt from the chapter on food to give a flavor (so to speak) of the book.  In this excerpt, we discuss the incredibly creative culinary scene that now exists, and how copyright applies (or doesn’t) to cuisine:

“The apotheosis of this trend toward extreme culinary innovation is what is often termed the “modernist cuisine” movement. Practitioners, such as Ferran Adria of the recently closed El Bulli restaurant in Spain and Homaro Cantu of Moto in Chicago, use complex and highly inventive processes to create flavored foams, liquid “olives,” edible inks, and various other savory special effects. Many of these dishes push the envelope of good taste; a few are bizarre and arguably inedible. But they are unequivocally novel, and people pay dearly to experience them.

Even outside this rarified world, however, creativity in cuisine is prized in a way that contrasts sharply with the past. Chefs frequently seek to charge jaded palates through novel combinations of flavors, produce, and technique. The Wall Street Journal, for example, noted in 2006 “a big shift in high-end restaurant culture. . . . The past decade has seen the focus shift to innovation” and away from the apprentice-driven reproduction of classic dishes that anchored cuisine (especially French cuisine) for many decades…

This tremendous output of creativity in contemporary kitchens has

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The Knockoff Economy: How Imitation Sparks Innovation

First, many thanks to Eugene and the rest of the VC team for inviting us to guest-blog this week.

The Knockoff Economy is about copying, and specifically about how copying, copyright, and creativity mix in a set of somewhat unusual industries—from fashion to food to football. Though our main focus is copyright, we also talk a bit about patent and other forms of intellectual property (IP).

As most VC readers know well, the American system of IP is not aimed at fairness or generally grounded in moral rights. It is a government intervention into the market aimed at precluding some forms of competition—those based on copying other innovations. Competition via copying is barred (or severely limited) as a way of ensuring that originators have a strong incentive to innovate in the first place.

We should say up front that we generally agree with this approach. We think that IP laws are necessary. The interesting and important question is how much IP protection is necessary to spur creativity and innovation.

In some cases, we argue, the answer is very little. And that has big implications for our IP policy, which has tended, over the last 200 years, to get ever-stricter and broader.

Now, savvy readers will recognize that law professors (especially liberals like us) criticizing IP law is right up there with dog-bites-man as a news story. What we do in the Knockoff Economy that is different is that we approach this issue in, what we believe, is a novel way.

Rather than look at how, say, copyright works (or doesn’t) in the publishing or film industries, we look at creative industries where there is no copyright protection, or where that protection is, for practical reasons, not used. And what we find is that in many of these industries, creativity [...]

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Profs. Kal Raustiala (UCLA) and Christopher Sprigman (Virginia) Guest-Blogging

I’m delighted to report that Profs. Kal Raustiala (UCLA School of Law) and Christopher Sprigman (University of Virginia School of Law) will be blogging this coming week about their new book, The Knockoff Economy: How Imitation Sparks Innovation:

From the shopping mall to the corner bistro, knockoffs are everywhere in today’s marketplace. Conventional wisdom holds that copying kills creativity, and that laws that protect against copies are essential to innovation–and economic success. But are copyrights and patents always necessary? In The Knockoff Economy, Kal Raustiala and Christopher Sprigman provocatively argue that creativity can not only survive in the face of copying, but can thrive.

The Knockoff Economy approaches the question of incentives and innovation in a wholly new way — by exploring creative fields where copying is generally legal, such as fashion, food, and even professional football. By uncovering these important but rarely studied industries, Raustiala and Sprigman reveal a nuanced and fascinating relationship between imitation and innovation. In some creative fields, copying is kept in check through informal industry norms enforced by private sanctions. In others, the freedom to copy actually promotes creativity. High fashion gave rise to the very term “knockoff,” yet the freedom to imitate great designs only makes the fashion cycle run faster–and forces the fashion industry to be even more creative.

Raustiala and Sprigman carry their analysis from food to font design to football plays to finance, examining how and why each of these vibrant industries remains innovative even when imitation is common. There is an important thread that ties all these instances together — successful creative industries can evolve to the point where they become inoculated against — and even profit from — a world of free and easy copying. And there are important lessons here for copyright-focused industries, like music and

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D.C. Circuit Holds Copyright Royalty Board Unconstitutional

This morning, in Intercollegiate Broadcast System v. Copyright Royalty Board, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit consisting of Judges Garland, Griffith, and Senior Judge Williams declared the Copyright Royalty Board to be unconstitutional under the Appointments Clause, and adopts a narrow fix. This was not a surprising development, as this issue has been brewing for some time (as I noted in these posts). Senior Judge Williams’ opinion for the court in begins:

Intercollegiate Broadcasting, Inc. appeals a final determination of the Copyright Royalty Judges (“CRJs” or “Judges”) setting the default royalty rates and terms applicable to internet-based “webcasting” of digitally recorded music. We find we need not address Intercollegiate’s argument that Congress’s grant of power to the CRJs is void because the provision for judicial review gives us legislative or administrative powers that may not be vested in an Article III court. But we agree with Intercollegiate that the position of the CRJs, as currently constituted, violates the Appointments Clause, U.S. Const., art. II, § 2, cl. 2. To remedy the violation, we follow the Supreme Court’s approach in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 130 S. Ct. 3138 (2010), by invalidating and severing the restrictions on the Librarian of Congress’s ability to remove the CRJs. With such removal power in the Librarian’s hands, we are confident that the Judges are “inferior” rather than “principal” officers, and that no constitutional problem remains. Because of the Appointments Clause violation at the time of decision, we vacate and remand the determination challenged here; accordingly we need not reach Intercollegiate’s arguments regarding the merits of the rates and terms set in that determination.

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Interesting Fair Use Case

Northland Family Planning Clinic v. Center for Bio-Ethical Reform (C.D. Cal. June 15, 2012) rejected a copyright claim, finding (I think correctly) that defendant’s use was a fair use as a matter of law.

Northland Family Planning Clinic created a video (apparently this one) titled “Every Day, Good Women Choose Abortion,” which, true to its title, aimed to tell women that getting an abortion is a decision that good women can and do make. Defendants created several videos that included several verbatim segments of the Good Women Choose Abortion video, interspersed with graphic imagery of abortions and, in some versions, some commentary, e.g., a quote from George Orwell. (The latest version, called the CBR II video by the opinion, is apparently here.) Plaintiffs sued, claiming copyright infringement. Defendants argued the use was a fair use, and the court agreed. An excerpt, though please read the whole opinion (which is pretty readable) for the details:

In this case, the balance of the [17 U.S.C. § 107] factors weighs in favor of finding fair use. While the accused works have some commercial use, their transformative character [as criticism of the original] substantially eclipses that consideration. Thus, the first factor tips in favor of Defendants. Because the Northland Video is, at least in part, a creative work, the second factor militates in favor of Northland. The third factor weighs in favor of Defendants because they did not use an excessive amount of the Northland Video to create their parody, in light of the Fisher factors [which state that parodies and similar critical works are generally entitled to use substantial portion of the original in order to comment on it -EV].

Finally, the fourth factor also weighs in favor of Defendants because the accused Videos did not create a cognizable market injury

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