Archive | Copyright

Copyright Matters, Of Possible Interest:

For those of you interested in this sort of thing or this issue, I’ve written (along with Annemarie Bridy at U Idaho) a “Law Professors’ Amicus Brief” in the appeal (before the 2d Circuit in NYC) in the Viacom et al. v. Youtube case. You can download it here: http://tinyurl.com/Youtube-Amicus-Brief.

I’ve blogged about this case before. Depending on what the court does, it could well be the most important case concerning copyright on the Net that gets decided this year. The issue couldn’t be much more important. YouTube successfully defended itself against infringement claims brought by a host of content providers by asserting the “safe harbor” provisions of sec. 512(c) of the Copyright Act, and the case concerns the interpretation of that provision. The section 512 safe harbors have been of prodigious importance — by giving providers of online applications and services a defense to infringement claims arising out of their users’ activities (e.g., user postings of infringing files on YouTube), it has enabled the (astonishing) growth of “user-generated content” or “Web 2.0” sites over the past decade — YouTube, Facebook, Craigslist, Tumblr, Twitter, Myspace, Blogger, and on and on and on. At the absurdly high volume at which these sites operate — 250,000 words a minute posted on Blogger, 40 hours of video a minute on YouTube, etc. — the liability risk without a safe harbor of some kind is truly astronomical, running into the billions of dollars a day. So you don’t get a YouTube, or a Facebook, or a Blogger, etc. without something like sec. 512; it’s no accident, as I’ve pointed out before, that all of the largest Web 2.0 sites on the global net are based here in the US. And, among other things, if you don’t have a TouTube, or a Facebook, [...]

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Forwarding a Sentence-Long Message from a Listserv = Copyright Infringement?

So argued Kenneth M. Stern, a California lawyer; no dice, said the district court in Stern v. Does (C.D. Cal., decided Feb. 10, 2011 but just now made available on Westlaw). No dice, said the court, concluding that the message lacked the modicum of creativity required for copyright protection — because it was so short and dictated by functional considerations — and that the copying was a fair use. Both conclusions seem right to me, though the fair use conclusion is especially clear, given the utter lack of any likely effect on the value of plaintiff’s work.

In fact, the court said that the plaintiff’s claims were frivolous enough to warrant requiring plaintiff to pay attorneys’ fees — a remedy that the Copyright Act allows. (The court concluded that the defendants’ request for fees were insufficiently specific to support an immediate award, but allowed the defendants to refile their request.) The plaintiff is appealing.

Here’s an excerpt from the case, though if you’re interested in the court’s reasoning you should read the whole thing:

Plaintiff is an attorney. In September 2006, Plaintiff retained the forensic accounting firm White, Zuckerman, Warsavsky, Luna, Wolf & Hunt L.L.P. (“White Zuckerman”) to perform a mathematical calculation on behalf of one of his clients. In March 2007, after receiving a bill from White Zuckerman for this work, Plaintiff became concerned that the billed hours were excessive and that White Zuckerman had been churning his client’s file.

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Google Books, Dead for Now

As you probably all know already, on Tuesday Judge Chin (SDNY) rejected the Google Books settlement agreement. [The order and opinion are here] To be honest, I’m not sure I know how I feel about this development. I’ve followed the wrangling over the settlement during the past couple of years, though only out of the corner of my eye, as it were; and I haven’t yet had the chance to study Judge Chin’s order in detail — and, as with many issues of this kind, the devil often is in the details.

But here’s how I think about the Google Books question. I start from the proposition that successful completion of the project would be an incomprehensibly valuable boon to all of humankind. To have (virtually) all the world’s writings, instantaneously accessible from anywhere across the global network . . . what’s not to like about that? The benefits we would all gain from that are unimaginable and incalculable.

Now, there are a set of arguments here — let’s call them the “forward-looking arguments” — that say: Hold on, not so fast on that. There are reasons to think that the project wouldn’t be such an unmitigated good. What happens when Google knows pretty much what everyone is reading? What about Google’s competitors – are they put at an unfair disadvantage if Google is allowed to proceed here?

Those are serious objections, and they do give me pause. To the extent that Judge Chin found these to be problematic in light of the current agreement, I want to read his analysis carefully to see if he persuades me.

There’s another set of arguments against the project — we can call these the “backward-looking arguments.” These go something like this: The settlement is unfair to those authors whose copyright-protected [...]

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The Copyright Tail Wags the Internet Dog: Episode 39

I haven’t had time to examine this in detail, but the Administration’s just-released “White Paper on Intellectual Property Enforcement” looks like a real horror show of major proportions. It contains the Administration’s legislative recommendations regarding a series of Intellectual Property matters, including recommendations to:

“Increase the U.S. Sentencing Guideline range for repeat intellectual property offenders”
“Clarify that, in appropriate circumstances, infringement by streaming, or by means of other similar new technology, is a felony”
“Create a right of public performance for copyright owners for sound recordings transmitted by over-the-air broadcast stations which, in part, will allow copyright owners to obtain overseas royalties that are now denied to them” [Yes, just what we need — more copyright rights!!]
“Providing a two-level enhancement for defendants with a previous conviction for an intellec-tual property offense.” and, last but not least
“Give law enforcement authority to seek a wiretap for criminal copyright and trademark offenses”

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Copyright and Free Expression:

Last week brought the news that the Supreme Court has granted cert in a pretty interesting copyright case case from the 10th Circuit, Golan v. Holder, that promises to raise some important questions at the ever-elusive copyright/first amendment boundary. The background is this: the US signed on to the Berne Convention on Literary Property, the leading multilateral copyright treaty, in 1989. Berne requires signatories to amend their domestic copyright laws in a number of important ways. First, Berne prohibits all copyright “formalities” — things like the requirement that copyright owners register their copyrights in order to obtain protection, or the requirement that you have to put a copyright notice on all distributed copies of copyrighted works. These had long been part of US copyright law, and we (more or less) got rid of them in the 1989 amendments to the Copyright Act, enacted as part of our accession to Berne. Berne also requires, in Article 18, that a country joining the Berne Convention must provide copyright protection to foreign works for as long as protection for those works exists in their country of origin, even if those works had fallen into the public domain in the country joining the Convention.

Many foreign works had fallen out of US copyright before 1989 precisely because their authors had not complied with the formalities in US law — Prokofiev’s Classical Symphony and Peter and the Wolf, Shostakovich’s Symphony 14 and Piano Concerto, Stravinsky’s Petroushka, Hitchcock’s 1932 film “Number 17”, . . . In 1994, as part of the Uruguay round of the GATT (it’s complicated . . . ), the US implemented Article 18 of Berne in the “Copyright Restoration Act,” restoring copyrights in foreign works that had fallen into the public domain in the United States (at least, if they had fallen [...]

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There Should Be A Name for This One, Too:

Over at the New York Times, yesterday, Scott Turow and James Shapiro, both of the Authors’ Guild, penned a short piece in defense of stronger copyright law under the title “Would the Bard have Survived the Web?”

“Copyright, . . . linking authors, the printing press (and later technologies) and the market, would prove to be one of history’s great public policy successes. Books would attract investment of authors’ labor and publishers’ capital on a colossal scale, and our libraries and bookstores would fill with works that educated and entertained a thriving nation. Our poets, playwrights, novelists, historians, biographers and musicians were all underwritten by copyright’s markets.. . .

Yet today, these markets are unraveling. Piracy is a lucrative, innovative, global enterprise. . . . The rise of the Internet has led to a view among many users and Web companies that copyright is a relic, suited only to the needs of out-of-step corporate behemoths. Just consider the dedicated “file-sharers” — actually, traffickers in stolen music movies and, increasingly, books — who transmit and receive copyrighted material without the slightest guilt.

They are abetted by a handful of law professors and other experts who have made careers of fashioning counterintuitive arguments holding that copyright impedes creativity and progress. Their theory is that if we severely weaken copyright protections, innovation will truly flourish. It’s a seductive thought, but it ignores centuries of scientific and technological progress based on the principle that a creative person should have some assurance of being rewarded for his innovative work. . . .”

To begin with, how odd is it that they’d invoke Shakespeare in this context? “We need stronger copyright or else we won’t get the next Shakespeare” is like arguing “We need the designated hitter, or how will we ever get the next Babe [...]

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Copyright Law and Schindler’s List (the List, not the Movie or the Book)

From Rosenberg v. Zimet, 2010 N.Y. Slip Op. 20516 (Dec. 21):

This decision grapples with a struggle for the ownership and publication of the contents of “Schindler’s List.” As much of the public knows from the book and the movie, both titled “Schindler’s List’, by use of the List setting forth the names of his Jewish employees, Schindler was able to save hundreds of them from the death camps and ovens of the Holocaust.

Facts

The Court, having issued a temporary restraining order barring the sale and publication of the List’s contents, now addresses the instant motion for a preliminary injunction for the same relief. According to plaintiff’s affidavit, in the autumn of 1993, Schindler’s suitcase containing thousands of photos and documents, including the List of employees that Schindler presented to the S.S., stating that they were necessary to assist in his war effort of manufacturing ammunition for the German Army. The List is now at the Holocaust Museum Yad Vashem in Israel.

Another List was found in the boxes of materials collected by an author named Kennaly. This List was given to Kennaly by Leopold Pfefferberg, a worker in Schindler’s factory and depicted in the movie as the person who brought new recruits to Schindler for inclusion in the List. While differing slightly from the List at Yad Vashem, it is considered authentic, and is the object of this lawsuit.

When Schindler died, his wife, Emilie, was declared to be his sole heir. After Schindler died, Emilie met plaintiff Marta Erika Rosenberg, then an author of several books about Schindler. They became good friends, and during their relationship, Emilie assigned the contents of the suitcase, including the List, to Rosenberg. When she died, Emilie left a will nominating Rosenberg as her only heir.

The defendant is Gary

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For the ‘Too Good To Be True’ File

So let me get this straight: according to the Las Vegas Sun, the Fab Four, a Beatles ‘tribute band’ [a lousy generic descriptor for bands like this, imho – how about ‘murder band’ instead], is suing the Fab 4, a different Beatles ‘tribute band,’ alleging that The Fab 4 is “essentially identical in sound and appearance” to The Fab Four. Imagine that — why, they’re trying to cash in on the popularity of another band!

[Actually, all jokes aside, the Fab Four might have a credible cause of action here — but only for trademark infringement, I would guess. Insofar as the Fab Four sound just like the Beatles, they have no copyright claim against anyone copying their sound – both because they have no “original” work to protect via copyright, and also because copycats can plausibly argue that they’re copying the Beatles, not the Fab Four. But the name “The Fab Four” might well be a protectable trademark, infringed by “the Fab 4.”]

[Thanks to Mark McKenna for the pointer] [...]

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Viacom v Youtube, and Why it Matters:

A while back, I posted my early reaction to the SDNY’s decision in the long-running Viacom lawsuit asserting secondary copyright infringement on the part of Youtube. Here’s what I said then:

The case was/is enormously important — Youtube was asserting that it was immune under the Digital Millennium Copyright Act (specifically, Sec. 512(c)) from copyright infringement claims arising out of user postings. Sec 512(c) sets up a “notice-and-takedown” scheme under which website owners are immune from third-party infringements as long as they “respond expeditiously” when notified of specific infringements by copyright holders. Viacom was relying on a portion of the statute that denies the immunity if the website operator has “actual knowledge that the material . . . on the system or network is infringing” OR if “in the absence of such actual knowledge, [it is] aware of facts or circumstances from which infringing activity is apparent . . .”

The critical question in the case was: given that it is a matter of common knowledge that there’s lots and lots and lots of infringing activity on Youtube, does that make the infringing activity “apparent”? If so, the 512(c) immunity is unavailable for Youtube. The court — correctly, in my view — said no, it does not. The “facts and circumstances” to which the statute refers must be of “specific and identifiable infringements of particular items. Mere knowledge of prevalence of such activity in general is not enough.” Sec. 512, and the other immunities provided in the Act for online conduct, “place the burden of policing copyright infringement — identifying the potentially infringing material and adequately documenting infringement — squarely on the owners of copyright. We decline to shift a substantial burden from the copyright owner to the provider . . .”

One could easily argue that these copyright immunities

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Copyright (and, of course, soccer):

Looking for opportunities to segue from my recent obsession with all things soccer-related to the more mundane matters of copyright law that I usually focus on here on the VC, and lo and behold . . . . Two opportunities, actually:

1. For the “Content Owners, Knee Jerk Protection Responses Of” file: I found the link to the Youtube clip of the horrible foul by Nigel DeJong on Xabi Alonso in Sunday’s final game, which I wanted to embed in one of my postings, but by the time I got there FIFA’s copyright police had already gotten YouTube to take the clip down. They’re within their rights, I know — though query how much copyright “originality” adheres in the broadcast file of the game, and why we usually unthinkingly assume that the broadcast is a protected work — but more to the point, does FIFA really think that they’re harmed in some way by the availability of the clip?

2. In his nice summing up of the Cup final, Jeff Klein at the NY Times blog, writing to congratulate the South Africans for a job well done in hosting the games, writes about one of “the many wonderful things South Africa has given the world (not counting vuvuzelas),” the song “The Lion Sleeps Tonight.” Not only does he include a link to the Youtube (audio) clip of the original 1939 South African recording (by Solomon Linda and the Evening Birds), as well as a link to the extraordinary article by South African journalist Rian Malan (“In the Jungle: How American music legends made millions off the work of a Zulu tribesman who died a pauper” lovingly detailing the amazing history of the recording (and the many, many, many copyright squabbles that erupted as its popularity spread around the world). Great [...]

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Youtube wins Viacom Lawsuit:

Judge Stanton in the SDNY has granted Youtube’s motion for summary judgment in in the long-running copyright infringement lawsuit brought by Viacom (and, in a nice soccer-related twist, The English Football Association’s Premier League was another (losing) plaintiff). [The full text of the decision is here]

The case was/is enormously important — Youtube was asserting that it was immune under the Digital Millennium Copyright Act (specifically, Sec. 512(c)) from copyright infringement claims arising out of user postings. Sec 512(c) sets up a “notice-and-takedown” scheme under which website owners are immune from third-party infringements as long as they “respond expeditiously” when notified of specific infringements by copyright holders. Viacom was relying on a portion of the statutory immunity, which denies the immunity if the website operator has “actual knowledge that the material or an activity using the material on the system or network is infringing” OR if “in the absence of such actual knowledge, [it is] aware of facts or circumstances from which infringing activity is apparent . . .”

The critical question in the case was: given that it is a matter of common knowledge that there’s lots and lots and lots of infringing activity on Youtube, does that mean that “infringing activity is apparent” and that, accordingly, the 512(c) immunity is unavailable for Youtube? The court — correctly, in my view — said no, that’s not what it means. The “facts and circumstances” to which the statute refers must be of “specific and identifiable infringements of particular items. Mere knowledge of prevalence of such activity in general is not enough.” Sec. 512, and the other immunities provided in the Act for online conduct, “place the burden of policing copyright infringement — identifying the potentially infringing material and adequately documenting infringement — squarely on the owners of copyright. We [...]

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Outrageous Treaty Nonsense, or The Copyright Tail Wagging the Internet Dog

I’ve been remiss, as the VC’s (sort-of) copyright/Internet law guy, in not commenting previously about a truly outrageous bit of executive branch over-reaching on Hollywood’s behalf. I am referring to the ongoing negotiations about ACTA, the multilateral “Anti-Counterfeiting Trade Agreement.” [See Jonathan Adler’s posting earlier today about ACTA here] The US Trade Representative’s office has been conducting these negotiations entirely in secret (on some ridiculous trumped-up ‘national security’ rationale) for several years now on this Agreement; a current draft was recently leaked to the press, and it confirms many peoples’ worst fears. Here’s my attempt at a summary of what’s going on — if you’re interested in more details (and I hope you are), I’ve listed at the end of this posting some excellent sources of further information.

ACTA’s goal is to tighten up global intellectual property enforcement. Though it’s labeled an “anti-counterfeiting” agreement, which might make you think that it’s about international trade in counterfeit goods (fake Louis Vuitton handbags, unauthorized Viagra tablets, and the like), it covers much, much more than this; what it is really about is the tighter enforcement of copyright law on the Net. It is outrageous in substance, and in process.

Process first. There are many divergent views, of course, about what should be done about international copyright law and copyright enforcement in the Internet age. Some reasonable people believe that copyright needs strengthening; other reasonable people (like me) disagree. But that’s just the normal give-and-take of debate over a contentious issue, and it can only (and should only) be resolved the way such debates are always resolved in a democratic society — i.e., openly and with full public comment and discussion. It’s hard to know, then, which is more appalling: the fact that the Obama Administration has conducted the ACTA negotiations [...]

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Is the Anti-Counterfeiting Trade Agreement Unconstitutional?

Harvard’s Jack Goldsmith and Lawrence Lessig have an interesting op-ed in today’s Washington Post arguing that it woudl be constitutionally dubious for President Obama to adopt the Anti-Counterfeiting Trade Agreement (ACTA) as an executive agreement. Here’s a taste:

The president has no independent constitutional authority over intellectual property or communications policy, and there is no long historical practice of making sole executive agreements in this area. To the contrary, the Constitution gives primary authority over these matters to Congress, which is charged with making laws that regulate foreign commerce and intellectual property.The administration has suggested that a sole executive agreement in this instance would not trample Congress’s prerogatives because the pact would not affect U.S. domestic law. Binding the United States to international obligations of this sort without congressional approval would raise serious constitutional questions even if domestic law were not affected. In any event, an anti-counterfeiting agreement made on the president’s own authority could affect domestic law in at least three ways:

First, the noncriminal portions of this agreement that contemplate judicial enforcement can override inconsistent state law and possibly federal law. Second, the agreement could invalidate state law that conflicts with its general policies under a doctrine known as obstacle preemption, even if the terms are not otherwise judicially enforceable. Third, a judicial canon requires courts to interpret ambiguous federal laws to avoid violations of international obligations. This means courts will construe the many ambiguities in federal laws on intellectual property, telecom policy and related areas to conform to the agreement.

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The Death of Copyright, con’t

As part of my continuing efforts to explain — both to myself, and to others — why it is that copyright law as we know it is so grotesquely unsuited to the global network, I gave a talk recently at a joint meeting of the NYC chapters of the Copyright Society of the US and the Internet Society (and interesting combination for this purpose) on the subject, and the folks at ISOC have posted the video of the talk here. FYI, in case you’re interested (and with all the usual self-abnegating apologies for shameless self-promotion — hey, buy my book!)

[PS – if you want to see the Larry Lessig video that I displayed at the talk – the video within the video, as it were — it’s available here] [...]

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Yeah, That’s A Good One:

As most people are well aware, a variety of copyright and trademark disputes have prevented the online distribution of the most valuable catalogue of musical recordings known to humanity — viz., the songs of the Beatles, whose value in the online marketplace surely exceeds a billion dollars. So imagine everyone’s surprise when the online seller Bluebeat.com began selling remastered Beatles tracks for $0.25 each a couple of weeks ago. Four for a buck!! Christmas in July (er – October, anyway)!

Alas, it was not to be – or at least not to be for too long. Bluebeat.com had not, in fact, beaten the industry giants like iTunes and Amazon.com to the rights to the Beatles’ songs. Instead, it claimed the right to distribute the songs without any permission from the copyright holders because the songs had been re-recorded using the technique of “psycho-acoustic simulation,” described by Hank Risan, head of Media Research Technologies (owner of the Bluebeat site) as “”my synthetic creation of that series of sounds which best expresses the way I believe a particular melody should be heard as a live performance.” Risan described the technique to the LA Times this way:

“Make a single copy. Analyze it. Destroy it. Create a new simulation based on parametrics of sound. You’ll be shocked at how the brain, in terms of its perceptual coding in the central nervous system, turns these sounds into electrical impulses, which then affect your mood, your cognizance, etc. Pyschoacoustic simulation exploits aspects of perception that are not present in the original work. It’s an art. The first simulations we did were awful. It’s an art. It’s not a copying at all.”

Uh-uh. Nice try. The copyright holders were not amused — EMI and Capitol Records, among others, rushed into federal court and, on November [...]

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