Archive | Copyright

Viacom v Youtube Decision – Not as Bad as All That

The Second Circuit has finally released its long-awaited decision in the appeal of the Viacom v. Youtube lawsuit, about which I’ve blogged a great deal [starting here, here, here, and here]  over the past couple of years.  Viacom “won” — in that they got the reversal of the district court’s comprehensive judgment in YouTube’s favor — but notwithstanding the considerable hand-wringing already underway about how terrible a result this is, I’m here to tell you:  It ain’t so bad.  In fact, I think it’s a pretty sensible opinion that clarifies the law surrounding service provider immunity in some very helpful ways and, most importantly, does no significant damage at all to the underlying immunity principles that have been so profoundly important for the development of the Net over the past decade.

Here are some of the key points.   [my emphasis throughout] [My apologies if you’re unfamiliar with the basic layout of the case — see the above links for the basic background]

1. “[A] finding of safe harbor application necessarily protects a defendant from all affirmative claims for monetary relief.”

That’s good — Viacom and allies had argued that the 512 immunities don’t cover any claims for contributory infringement, vicarious infringement, or inducement of infringement.  It was an odd theory, and the court shoots it down, correctly, in no uncertain terms.
2.  “[T]he ‘right and ability to control’ infringing activity under § 512(c)(1)(B) requires something more than the ability to remove or block access to materials posted on a service provider’s website.”

That’s good, too.  The statute says a service provider is not immune from claims if it has the “right and ability to control” the infringing conduct (and derives a “financial benefit” from the infringements).  Viacom advanced a plausible argument that, because YouTube (and [...]

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Do Lexis and Westlaw Infringe Copyright When They Post Briefs Filed in Court?

I briefly blogged about this question in 2009; now there’s a lawsuit, White v. West Publishing Corp. & Reed Elsevier Inc. (S.D.N.Y. filed Feb. 22, 2012) that argues that such posting does indeed infringe copyright. Here’s my summary from 2009, very slightly edited:

The argument for infringement is actually moderately strong. Like most other documents, briefs are protected by copyright the moment they are written. The fact that they’re filed in court doesn’t waive any copyright. That something becomes publicly available doesn’t strip it of copyright protection — the point of copyright protection is largely to prevent copying even of material that is publicly available. Lexis and Westlaw’s distribution of the briefs is thus presumptively copyright infrigngement.

The question is whether the commercial posting of the briefs is fair use; and fair use law is, as usual, vague enough that there’s no clear answer. I do think that the posting is quite valuable to researchers and to others who are trying to figure out what actually happened in a case, and why courts reached the results they did, and I think courts can consider this social value in the fair use analysis. It’s also quite unlikely that allowing such posting would materially diminish the incentive to write good briefs, or the market value of a good brief; that too is potentially relevant to the fair use inquiry. But the case isn’t open and shut, because there are no precedents (at least that I know of) that are clearly on point, because the various fair use factors seem to cut in both directions, and because fair use analysis is so vague in such situations.

Note that there is a statutory provision that says works of the federal government are free of copyright, which includes federal court opinions; and there is longstanding [...]

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Bill Patry Guest-Blogging

I’m delighted to say that Bill Patry will be guest-blogging this week about his new book, How to Fix Copyright. I’ve known Bill for 18 years, from the time that he was copyright counsel to the U.S. House of Representatives Committee on the Judiciary. He has also been a Policy Planning Advisor to the Register of Copyrights, a full-time professor at the Cardozo School of Law, and a practicing copyright lawyer; and now he is Senior Copyright counsel at Google Inc. (though the book represents his personal views, and not those of his employer). He is also the author of an 8-volume, 6500-page treatise, Patry on Copyright (Thomson/West), a separate treatise on fair use (also West), a prior one-volume treatise on copyright that went through two editions (BNA Books), and many law review articles. Here’s an excerpt of the How to Fix Copyright summary:

The arrival of the Internet was revolutionary, and one of the most tumultuous developments that flowed from it — the upending of the relatively settled world of copyright law — has forced us to completely rethink how rights to a work are allocated and how delivery formats affect an originator’s claims to the work. Most of the disputes swirling around novel Internet media delivery systems, from Napster to Youtube to the Google Book Project, derive from our views on what constitutes a proper understanding of copyright. Who has the right to a work, and to what extent should we protect a rights holder’s ability to derive income from it? Is it right to make copyrighted works free of charge?

How to Fix Copyright offers a concise and pithy set of solutions for improving our increasingly outmoded copyright system. After outlining how we arrived at our current state of dysfunction, the book offers a series of

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Copyright Law and European Compilations of U.S. Jazz Recordings

I recently noticed that some U.S.-based merchants, such as Amazon, are selling imported collections of U.S. jazz recordings from the 1950s and early 1960s at extremely cheap prices: Typically, sets of 8 different albums put on 4 CDs are being offered at $15 for the entire set. For example, there’s “Hank Mobley: Eight Classic Albums,” featuring 8 of Mobley’s Blue Note albums, on sale for $15.72; or, if you prefer, “Cannonball Adderly: Eight Classic Albums,” featuring 8 of Adderley’s albums, for $14.14. This seems to be a new development. The compilations mostly were released in the last few months, from labels with names like “Real Gone Jazz” and “101 Distribution.”

My question is, are these recordings lawful to purchase in the United States? I realize I’m old-fashioned in caring about complying with copyright law. To the hipsters, it seems, “buying music lawfully” is like wearing pleated pants. But my sense is that these recordings are not licensed by the copyright owners in the United States, where the works are still under copyright. Rather, my guess is that they are taking advantage of the fact that copyright in the EU has used a 50 year term, which is about to increase to 70 years. So recordings from the 1950s through 1961 are now in the public domain in Europe, as I understand it, and Europeans can therefore copy CDs, package lots of public-domain recordings together, and then sell them at very low cost to those in the U.S. through sites like Amazon.

So my first question is, am I right that this is what is happening? And second, if I’m right, does U.S. law prohibit purchasing recordings made where the items are in the public domain, albeit purchased from where they are still copyrighted, and [...]

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Stopping the Stop Online Piracy Act

In several recent postings (here and here, for example) I called on all interested persons to come to the Internet’s defense against a spate of truly dreadful bills now making their way through Congress (the “Protect IP Act” and SOPA, the “Stop Online Piracy Act”). Larry Downes, always a thoughtful voice on tech matters, has an interesting piece in Forbes about the rather astonishing outcry that the bills have engendered. As someone who’s been doing Internet law for almost 20 years, I can’t remember any issue galvanizing public opinion in quite this way since the 1996 “Communications Decency Act” [outlawing “indecency” on the Net — good luck with that!]. It’s quite gratifying, and something of a turning point, I think, in terms of the politics of the Net, and it’s gratifying to have played a small part to help generate the current outcry about these truly egregious bills (Mark Lemley, Dave Levine, and I having written a Law Professors’ Letter in opposition that generated over 100 signatures — and, according to the counter at, has been downloaded over 50,000 times already . . . ) I’m pretty gratified; once I saw the full-page ad in the Times a few weeks ago, signed by Google, eBay, Yahoo, Facebook, AOL, Twitter, Zynga, and several other tech giants, stating their opposition to these bills, I began think we might actually have a good chance of winning this one and saving — seriously — the Internet. I think the copyright interests may look back at this battle and realize that they overstepped; galvanizing Google, Facebook, Twitter, eBay, . . . into action is not going to help their cause much, I don’t think.

[And if you’re not aware of how serious a threat these bills are to the Internet’s technical, [...]

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Second-Hand Music?

Here’s an interesting development: the ReDigi Used Digital Music Store. Application of copyright law’s “first sale doctrine” — which allows you to re-sell or give away copies that you have purchased of books, records, or other copyrighted works without the copyright holder’s permission (the doctrine that allows, for instance, used book stores or video rental stores to operate without payment of any additional royalties to the copyright holders) — to digital works has always been something of a puzzle. On the one hand, there’s a strong argument that the Copyright Act treats copies of works embodied in digital files the same way it treats copies of works embodied in print or on canvas; on the other hand, the fact that digital files are so preposterously easy to copy means that it’s awfully easy to circumvent the law by “re-selling” a digital file you’ve purchased while still retaining a copy for yourself – which is not within the protection of the first sale doctrine.

So along comes ReDigi. Their claim is that they’ll let you re-sell all that crappy music you downloaded during a drunken spree the other night — if you install their application on your computer, which will do a scan and certify that you haven’t kept any copies of the file around. [See the story in the NY Times here] Clever!! If you really have disposed of your copy of the file in question, it’s hard to see how the copyright holders can complain (though complain they will — book publishers still hate the 2d-hand bookstores . . .).

But there’s one thing I’m not clear about. Suppose I purchase a song at iTunes, stick a copy on my hard drive and a duplicate in my “locker” on the Apple iCloud server. Then, I resell the [...]

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How About Occupy Hollywood?

One of the obvious dangers of the Internet Age is that we’ll be so distracted by everything going on around us – lots of it interesting, complicated, and even important (not to mention all the stuff that’s idiotic and unimportant and fundamentally uninteresting) — that we will fail to recognize the truly important stuff when it comes along.

The IP bills that Congress now has before it — the Senate version of which is known as PROTECT-IP, the House version as SOPA (Stop Online Piracy Act), sometimes known as the “E-Parasite” bill — are deep and profound threats to the Net and to our freedom on the Net. If anyone has good ideas about how to fight back other than to stand on the street-corner, as I am doing now, and shouting to the rooftops, I’d be interested to hear them.

I helped draft a Law Profs Letter in Opposition, and I’ve blogged about it a number of times before, as have others — good places to start if you are unfamiliar with the issue are the EFF site, the CDT site, and Techdirt. But I’m going to keep at it because this is an issue that really needs more public traction than it is getting. I’m not going to stand here and say that this law will destroy the Internet as we know it, though I actually believe that to be true. I’m not going to say it, because predicting the future is impossible and I like to avoid doing it in public — though, like all of us, I have my own beliefs about what the future will bring. So I’ll put that aside and focus on the principles at stake; even if the damned thing weren’t going to destroy the Net as we know it, [...]

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Elf on the Shelf v. Elf off the Shelf

A new copyright and trademark parody case, CCA and B, LLC v. F + W Media, Inc. (N.D. Ga. Sept. 22, 2011), which finds that defendants’ Elf off the Shelf parody is likely not an infringement of the copyright or trademark in plaintiffs’ Elf on the Shelf. The judge, by the way — Amy Totenberg — is the sister of NPR legal affairs correspondent Nina Totenberg. [...]

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Losing Copyright Plaintiff (Mattel, in the “Bratz” Litigation) Must Pay Defendant $137 Million Dollars in Attorneys’ Fees and Costs

So District Judge David O. Carter held Thursday in Mattel v. MGA (though I assume that the case will either be appealed, or will settle for something less than the total amount in lieu of an appeal). The Copyright Act specifically provides that the loser — whether plaintiff or defendant — may be ordered to pay the winner’s attorney fees and costs. Whether to award the fees and costs is in the court’s discretion, based on whether the award would sufficiently further the Copyright Act’s purposes (a mushy standard, to be sure). Here’s Judge Carter’s conclusion:

In this case, Mattel claimed that it owned valid copyrights in the concept sketches and sculpts for the “Bratz” line of dolls and that every generation of “Bratz” dolls released by MGA infringed those copyrights. The breadth of Mattel’s infringement claim corresponded with its request for “more than $1 billion dollars in copyright damages” and an “injunction prohibiting MGA from producing or marketing virtually every Bratz female fashion doll, as well as any future dolls substantially similar to Mattel’s copyrighted Bratz works.” This request for relief was predicated on Mattel’s mistaken expectation that it owned the “ideas” in the copyrighted works; and the mere specter of that relief may have clouded MGA’s business prospects, bolstered Mattel’s status, and changed the landscape of the fashion doll industry….

Mattel asserted a copyright claim that was stunning in scope and unreasonable in the relief it requested. The claim imperiled free expression, competition, and the only serious competitor Mattel had faced in the fashion doll market in nearly 50 years. MGA’s successful defense ensured that well-resourced plaintiffs cannot bend the law to suit their pecuniary interests. For these reasons, and pursuant to 17 U.S.C. § 505, the Court awards MGA $105,688,073.00 in attorneys’ fees and $31,677,104.00 in costs.

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My career comes full circle:

Techdirt asks: Can A Monkey License Its Copyrights To A News Agency? Apparently, David Slater, a well-known nature photographer, left his camera on the ground in an Indonesian national park, and a macaque monkey walked over and snapped a bunch of photos, including this (remarkable!) self-portrait:


Two of the photos in the set of monkey self-portraits bear a copyright notice: “Copyright Caters News Service. Raising the odd but interesting question: who assigned the copyright to the News Service? Slater? Perhaps, but that can’t be a valid assignment, for the simple reason that he doesn’t own the copyright just because his camera was used to snap the photo.

That leaves the monkey.

The question is not an entirely ridiculous one — well, OK, it is a ridiculous one, but it is at least closely related to some very difficult and interesting copyright questions concerning the requirement (if there is one) that human creativity is a requirement for copyright to exist in a work of authorship — questions that come up in contexts ranging from the ridiculous (creations by psychics ostensibly “channeling” voices from beyond the grave, animal creations — monkey photos, elephant drawings, chimpanzee-created music) to the sublime (the copyright status of works “authored” by computer programs or Artifical Intelligence engines). (My friend and colleague Annemarie Bridy recently sent me a very interesting draft of an article exploring these issues, soon to be published, entitled “Coding Creativity: Copyright and the Artificially Intelligent Author”).

But what I love about this little story is that it plumbing its metaphysical depths clearly calls for analysis by someone with deep expertise in (a) primate behavior and (b) copyright law — and guess who that might be?! Yes, it’s true – having spent two years in the Kenyan bush back in the 1970s studying the [...]

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History Program’s Use of Another’s Video Footage of Real Events = Fair Use

So holds Fuentes v. Mega Media Holdings, Inc. (S.D. Fla. Jun. 29, 2011), adopting a Magistrate Judge’s Report and Recommendations, though of course in such fair use cases the decision is closely focused on the facts of the case, and offers only a limited precedent for future cases.

Note that there’s apparently some controversy about whether the plaintiff timely filed an objection to the magistrate’s report; the judge accepted the magistrate’s report thinking that the plaintiff wasn’t filing an objection, and plaintiff was surprised by this, since his lawyers apparently thought that the magistrate had given them more time to object. Plaintiff has therefore filed a motion for reconsideration, and objections to the report. It’s possible that the judge will therefore consider the matter again. [...]

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For the “Life Imitates Law School Exam” File: Tattoo Copyright

Precisely mirroring a hypothetical I have often used in my Intro to IP class, along comes the “Mike Tyson tattoo” case. Tattoo artist Victor Whitmill apparently designed a distinctive tattoo for Mike Tyson’s face (see photo here), and the tattoo adorning actor Ed Helms’ face in the upcoming Warner Brothers’ film “Hangover 2” looks an awful lot like the Tyson tattoo. Whitmill sues for copyright infringement. What result?

To answer that, we need to figure out if tattoos can be protected by copyright at all — a question no court (until now), to my knowledge, has ever confronted. The Copyright Act sets out the requirements for copyright protection: you have to have an “original work of authorship,” and it must be “fixed in a tangible medium of expression.” There’s not much question that Whitmill’s design is an “original work of authorship” — if it were painted on canvas, for instance, there’s no doubt that it would receive copyright protection. The harder question is whether Mike Tyson’s face is a “tangible medium of expression.”

The statute says that a work is “fixed in a tangible medium of expression” when its embodiment in a material object is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” By my reckoning, the tattoo here clearly fits the bill: once it’s on Tyson’s face, it can be perceived by others for more than a “transitory duration”; though the latter phrase could, I suppose, be so narrowed as to not include the “transitory duration” of, say, Mike Tyson’s life, that would be at odds with about a million copyright precedents. [The “transitory duration” language has been construed to eliminate things like a “buffer copy” of a file inside a computer, [...]

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More on DHS and Copyright Enforcement:

Fellow Blogger Orin Kerr, in several comments on my posting yesterday, has asked some questions deserving a response:


If DHS is just making a request and has no legal authority to enforce its request, then of course Mozilla is free to ignore the request. At the same time, I wonder: If you were in charge of enforcing the criminal copyright laws, what would you do about the many sites that exist to facilitate copyright infringement? What steps do you think are fair and appropriate ones — if any?

A couple of thoughts about this. First, about being “free to ignore the request.” If, say, a representative of the Department of Health and Human Services wrote to the Dean of a Law School and said: “We hereby request that you not hire any African-Americans or Jews for your faculty — oh, and not to worry, you’re free to ignore our request,” we’d all be (appropriately) outraged. Heads would surely roll. A request from the government is not like a request from your neighbor or colleague; it carries additional weight. Especially, I think, when it comes from the Dep’t of Homeland Security. It should carry additional weight; as a citizen, I care a great deal about the security of my homeland, and if the government asks for my help in that task, I’m inclined to give it, or at least to consider it. I happen to regard that as a simple consequence of citizenship – not that I’ll do whatever the government asks me to do, but that I will consider it. The more frequently they ask for things they have no right to ask for, the less inclined I am to take their requests seriously.

The DHS has no more legal authority to request that Mozilla disable MafiaaFire than [...]

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Homeland Insecurity, At It Again:

The Dep’t of Homeland Security is indeed at it again. I’ve blogged about their campaign on behalf of US copyright holders to “seize” the domain names of websites (irrespective of the actual location of the site, provided that it is registered in one of the databases of a US domain name registrar or registry). It’s a really troubling new phenomenon — even putting aside how downright stupid, and outrageous, it is that DHS, which even in light of last week’s developments obviously has other important work that it should be attending to, is getting into the copyright-enforcement game.

But it appears to be getting worse. Now, they’re going after software providers. As reported by Nate Anderson at arstechnica, DHS recently approached the folks at Mozilla and “requested” that they remove/disable a popular Mozilla add-on, “MafiaaFire.” MafiaaFire is a (pretty simple) domain name redirector; if the website operating at wereallydon’ moves to, a user with the MafiaaFire add-on who types “” into his/her browser window is automatically redirected to

You can see what they’re unhappy about, I suppose; sites that have had their domain names “seized” have managed to get up and running in a matter of hours after the “seizure” by switching over to new domain names, and things like MafiaaFire make it easier for users to find the new site.

But screwdrivers, pencils, automobiles, bunsen burners, Frisbees, and many, many things are used by Bad Guys to do their Evil Deeds; that does not give the government the right to restrict the availability of those items (absent some specific statutory basis for doing so). It’s conventionally referred to as “the Rule of Law.” DHS has absolutely no legal authority (of which I aware, at any rate) to order Mozilla to take this action with [...]

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Copyright Tail Trying to Wag Internet Dog, Take 153:

As I’ve noted before on a number of occasions, a possible landmark copyright case is now before the 2d Circuit, Viacom et al. v. YouTube. On behalf of 44 co-signatory law professors, Annemarie Bridy and I wrote an amicus brief urging the court to affirm the lower court’s decision that YouTube is immune from copyright claims unless it has item-specific and location-specific information about infringing postings. The brief – which I think turned out quite well, and is, at the very least, a good example of decent legal prose — is available here. Briefs submitted by other amici (and there are lots of them) are available here.

I’ve reprinted below some of my comments from earlier postings about the case. I could be falling prey to a common syndrome: when you work as an advocate for one side in a case for a while, you begin to believe that you have truth and justice firmly on your side, that the opposing position is outrageous and contrary to all common sense and moral principle . . . . But I really do think this one matters, for the future of the Net.

It was a bit more of an adventure submitting this brief than it should have been — the 2d Circuit does not treat its “amici” in a very friendly fashion. Not only must you be admitted to the 2d Circuit bar to submit an amicus brief — no temporary admissions pro haec vice are permitted — but you also have to be sure to be hooked up to the latest version of the court’s electronic filing system; not huge problem, i suppose if you’re a lawyer or law firm practicing frequently in front of the 2d Circuit, but not something that a law professor, even if [...]

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