Tag Archives: Copyright Law

Copyright belongs to the ages

Originally posted 2008-03-23 17:14:32. Republished by Blog Post Promoter

Media Wonk:

No wonder they call Economics the Dismal Science. At the Internet Video Policy Symposium in Washington yesterday (co-sponsored by Content Agenda), a chorus line of academic economists postulated that content owners face a far more difficult challenge than they know in monetizing their content on the Internet, and that the odds that we can build our way out of the current debate over how to manage scarce online capacity are virtually nil.The most enthusiastically glum was Gerry Faulhaber, a professor at the Wharton School of Business at the University of Pennsylvania and the former chief economist for the FCC. According to Faulhaber, copyright is a dead letter.

“Copyright is a very big issue in the legal world today, but in the business world, when you talk to consumers about protecting copyrights, it’s a dead issue,” he said. “It’s gone. If you have a business model based on copyright, forget it.”

Provocative, I suppose, though it sounds like an overstatement, and not necessarily all that logical. The copyright regime has never depended on the opinions of non-stakeholders, merely the ability to penalize them for infringement. The technological / legal dance is far from over. I would say that the Microsoft business model, to give one example of one that is “based on copyright” at least in part, is not exactly in “forget it” mode, and will not be all that fast.

But that’s not to say it looks good for copyright as a linchpin of monopoly-type business models in the future. No, no, no.

War Is Peace; Freedom is Slavery; Ignorance is Strength

Originally posted 2007-03-28 19:08:24. Republished by Blog Post Promoter

And free speech is a form of negotiable intellectual property, right?

Maybe I can give up the blog. There is no percentage in clever commentary when the claimants provide the self-parody.  Credit to Instapundit.

Madden ’nuff

Originally posted 2011-10-04 18:42:58. Republished by Blog Post Promoter

Here’s a guy who just may be in for some serious money!

So, what magic words can resurrect a potentially multi-million-dollar copyright lawsuit from a statute of limitations bar?  “They lied!”

Daniel Davidson explains regarding a suit against gaming giant Electronic Arts over the IP powering its famous Madden NFL franchise:

The iconic game that has caused millions of men to disregard the women in their life and convince them that they could replace the likes of Bill Belichick and Rex Ryan due to their skills, has been sued by the “original” designer.

Robin Antonick, the guy credited with creating the first version of the game has filed a lawsuit against Electronic Arts over their use of his intellectual property.  He alleges that his software, released in 1988, is still being used by the Madden NFL franchise and that he has not been compensated appropriately.

The story begins when EA split ties with Antonick and told him that they would not be using any of his intellectual property because the game was going to be transformed into more of an “arcade” game.  This was told to him in the early 90s.  Upon this representation by EA, Antonick went silent until recently when he heard the founder of EA make a reference to how they still utilize the original software.

It has probably come to your attention now that there must be some sort of statute of limitations against Antonick’s claim.  It has been almost twenty years.  This is a valid assumption.  The statute of limitations for copyright claims is three years and the clock starts when the infringement stops.  With almost two decades down, EA could have [defended on the ground] that their infringement stopped and that his time has come and gone, but then there is a little thing called “tolling.”  Tolling is a defense to statute of limitations in which the time does not start until the copyright owner has actual knowledge of the infringement.

In the present case, Antonick alleged just that.  That he was kept in the dark about any infringement.  The judge agreed and his first step toward millions of dollars in compensation has been made successful. Cheers.

That is one neat little blog post!  (“[A]nd then there is a little thing called ‘tolling.'”) And a neat little legal claim too.  What’s the line on an early settlement?

Smocking it out

Originally posted 2007-05-21 18:21:57. Republished by Blog Post Promoter

Ben Manevitz updates us on the Diane van Furstenburg “you stole my smock” litigation.

Ben’s take: “As a litigator, I’m going to give everyone involved in any litigation the secret! the best piece of advice ever! Ready? Here: Shut Up!”

Easy advice to give, but darn it, I like to say “smock”!  Smock, smock, smock, smock, smock, smock.

Mourning Sonny

Originally posted 2009-01-01 16:58:41. Republished by Blog Post Promoter

Posted on November 17th, 2008:

No, not that Sonny. No, rather this: If America’s most famous variety-show-star-turned-congressman hadn’t slammed into that tree on that fatal day of downhill skiing, we’d probably never have the Sonny Bono Copyright Term Extension Act of 1998. That’s reason to mourn him right there.

Fair enough — if he’d sat in the lodge and drank cocoa instead we would probably still have the law, but at least its embarrassing content would not be matched with a preposterous name. But given that it is what it is, ten years later, what is it? Gigi Sohn says well:

How can you measure the number of new works and new wealth that were not created because of the extended terms? Or the number of new orphan works created? But since it has been shown that about 98% of copyrighted works lose their value between year 55 and year 75 of protection, we know who has profited from the law – large, multinational media companies like Disney, Fox and NBC-Universal, who maintain a vise-like grip on works that should have belonged to the public years ago. Suffice it to say that the Sonny Bono Act was nothing more than corporate welfare for big copyright holders. . . .

Ok, I got that off my chest. Now let me say something positive about both the DMCA and the Sonny Bono Act. The simultaneous passage of these two copyright strengthening bills, despite the strenuous objections of libraries, arts and cultural organizations, consumer electronics companies, and cyberliberties groups clearly hit a nerve, and became the impetus behind the copyright reform movement. . .

[W]hile we’ve stopped many bad things from happening, we have not yet been able to get any law or policy adopted that would bring some balance (or sanity) back to copyright law.

Read it! Hat tip to Denise Howell, via Twitter.

Comment here.

Oy vey

Originally posted 2009-03-09 12:11:57. Republished by Blog Post Promoter

Consider the other side of the aggrieved vandalism promoter Shepard Fairey, of HOPE poster fame:

Obey the "Hypocrite"'s Lawyers!

Obey the "Hypocrite"'s Lawyers!

Gawker: “Obey” Trademark Law:

Some guy in Pittsburgh sells little baby Steeler mascots with the phrase “Obey Steeler Baby.” Shepard Fairey demands that he stop infringing on his trademark, which he originally made famous by ripping off the image of Andre the Giant!

Well, if that‘s who he ripped off, then he really does have guts, I guess!

UPDATE:  Fairey’s got even bigger trouble than that.

Getting the timing right on copyright registrations

Originally posted 2009-09-10 21:42:19. Republished by Blog Post Promoter

Marty Schwimmer:

IDEA v PETA (SDNY August 298 2009): Plaintiff, no doubt aware that statutory damages are only available for post-registration copyright infringements that are not part of a continuing, ongoing series of infringing acts of the same kind as those engaged by defendant prior to the effective date of registration, alleged in its amended complaint that “Upon information and belief, PETA has commenced new infringements, and prepared and exploited new and materially different Infringing Materials since the effective date of registration of copyright in the Work…”

There were no factual allegations to support this conclusory assertion, and thus dismissed plaintiff’s claim for statutory damages and fees. Note that had plaintiff come up with some factual allegations pre-motion, it may have been granted leave to amend, but didn’t, so wasn’t.

My comment:  I had this issue in a case in the SDNY where we did an expedited copyright registration prior to filing… and it was BOUNCED for lack of originality! That doesn’t happen every day. Other side moved to dismiss; we opposed, natch, as set forth here.  Judge Rakoff agreed with us and denied the motion to dismiss.

Originally posted as a comment
by Ron_Coleman
on The Trademark Blog using DISQUS.

Righthaven Agonistes

Originally posted 2011-06-21 14:25:26. Republished by Blog Post Promoter

Rainbow over Lake George

Is all this copyright jurisprudence lollipops and rainbows?

Let us reflect a little on what Righthaven has wrought, so far.  Wired weighs in on the latest Righthaven woes:

A federal judge ruled Monday that publishing an entire article without the rights holder’s authorization was a fair use of the work, in yet another blow to newspaper copyright troll Righthaven.

It’s not often that republishing an entire work without permission is deemed fair use. Fair use is an infringement defense when the defendant reproduced a copyrighted work for purposes such as criticism, commentary, teaching and research. The defense is analyzed on a case-by-case basis.

Monday’s ruling dismissed a lawsuit brought by Righthaven, a Las Vegas-based copyright litigation factory jointly owned with newspaper publisher Stephens Media. The venture’s litigation tactics and ethics are being questioned by several judges and attorneys, a factor that also weighed in on U.S. District Judge Philip Pro’s decision Monday.

Not really a big surprise.  One of the points I made at this month’s CSUSA panel on this topic was that when you push too hard on enforcement, someone who matters — either legislators, judges or rampaging mobs — will punish you and leave in a place that is outside what you thought defined the range of outcomes.  In a bad way.

Big IP never wants to hear this until it’s too late.  But there is a sort of rough justice in such an outcome, for it is the mirror-image, by alternative (i.e., judicial) means, of a legislative scheme that says, as the Copyright Act does, “Don’t think your damages are limited to what you would have had to pay if you had not infringed.  There is a big penalty, via attorneys’ fees and statutory damages, for doing it this way.  Cross at the green, not in-between.”  I have argued for some time that the one-sidedness of this equation, which does not account for the welfare detriment caused by abusive and overreaching litigation, is unsustainable.  I have expressed hope for a legislative improvement in copyright policy, though, not a judicial one.  That hope may be vain — and now it may be the exact opposite of what happens.

Was it a foreseeable risk that judges might blow past traditional bounds of fair use to make a point in a situation such as this?  There will be plenty of analysis on the question, as there ought to be, considering the following excerpts from the opinion (the link to which Randazza emailed me during the bleary-eyed hours last night).  Just working off the Wired article, here are some … interesting concepts.

One of them is that the court found a lack of standing, yet went ahead and ruled on the fair use issue anyway, writing, “Assuming Righthaven was found to have standing to bring this action, the Court nonetheless finds Hoehn is entitled to summary judgment on the ground of fair use of the Work.” That is rather unusual, and arguably resulted in a holding that is dictum.  It could also be described as an alternative ground for dismissing the complaint, of course, but, again, the court went the extra mile to make not only a point about fair use, but an arguably controversial one.

Moreover, the finding of fair use was based here on (a) a holding that the use was non-commercial, which (b) militated against applying the traditional rule that copying an entire work is prima facie infringement, or at least that the use of the work has a strong presumption against fair use in light of (c) the fact that there was no cognizable impairment of the economic value of the copyright.  The court makes this seem quite straightforward.  This factor certainly is, as the Media Bloggers Association brief filed in another Righthaven case in Nevada argues, certainly a significant one in the fair use analysis (which we could not urge in full, because the procedural posture was one of default judgment) and must be considered with respect to awarding damages, including statutory damages.  Fine, as far as it goes.

But every pendulum has its amplitude, and then it swings back. Read More…

No more free ride

Originally posted 2007-11-06 12:53:29. Republished by Blog Post Promoter

Attributor is a new program that online publishers can and do use to trace their verbal content across the Internet and see who is using how much of their stuff without paying or attributing.

Reading the articles (this one sent to me by my brother, software engineeer Glenn Coleman) it seems clear that most media outlets are interested in getting credit, and links back to their sites, for typical use of their materials, i.e., use that is defensible as “fair use” under the Copyright Act:

CEO Jim Brock gave me a demo of Attributor last week in the lobby of the Waldorf Astoria. Attributor is already indexing 100 million Web pages a day (15 billion total so far), but it is not a keyword index. It looks for bigger blocks of content. Right now, it can handle only text. Images are in beta. And video matching will go into beta early next year. If you are a publisher that is a customer of Attributor, it ingests all your content and comes up with matches. Attributor splits up the world between sites that exhibit extensive copying (more than half of an article, for instance) and just some copying. It shows which sites have linked back to the original source and which have not. “Often, that’s all they want—a link,” says Brock.

That last sentence is key, and tracks the advice I give inquirers in my professional role (including my job as general counsel of the Media Bloggers Association): If you help generate traffic to the media site that produced content that you’ve excerpted, you far more often than not have inoculated yourself against an infringement claim, if only from a business (as opposed to legal) point of view.

Now Attributor is here to enforce that eminently reasonable deal. It would be eminently reasonable, if you’re a blogger or other Internet publisher utilizing other people’s content, to be very aware of it.

Death By Lawyer

Originally posted 2007-06-13 20:42:40. Republished by Blog Post Promoter

They make that sound like a bad thing. Now, I wouldn’t agree with each and every little thing Stan Schroeder, the author of this article on Mashable, says — such as this about MP3.com of blessed memory:

In 2000, the owners started a new service – My.MP3.com – which enabled users to register CDs they legally own and make online copies on MP3.com’s servers. Although this about as legit as you can get, the record industry managed to sue them (!) and win (!?), and MP3.com had to settle the lawsuit, paying 200 million dollars in damages, which turned out to be a blow from which they would never recover.

“About as legit as you can get”? Yes, well, that’s what Cooley Godward thought, too. Judge Jed Rakoff didn’t see it that way, and — in his inimitable matter — he didn’t suggest there was a lot of doubt about the right answer, either. We never got a second opinion (i.e., one that mattered from an appellate court), so just don’t come away from this article with the wrong impression.

Still and all, a good piece, and food for thought. Hat tip to Overlawyered.

Online use of trademarks and copyrights by “unauthorized distributors”

Originally posted 2007-10-06 20:57:56. Republished by Blog Post Promoter

LIKELIHOOD OF CONFUSION does not generally comment about active cases in which we are directly involved. But a very important and detailed (61 pages!) summary judgment decision came down in the U.S. District Court for the Eastern District of New York last week, in the case of S & L Vitamins, Inc. v. Australian Gold, Inc., 2:05-cv-1217 in which I represent the plaintiff. And while we will not comment on the decision, for obvious reasons, any reader of this blog involved in trademarks and the Internet will want to read it. So here it is. Credit to David Nieporent, co-author on the plaintiff’s brief!

UPDATE: Cogent commentary from Eric Goldman and Matthew Sag; now comes Rebecca Tushnet.

Sewage Treatment

Originally posted 2005-05-25 08:17:00. Republished by Blog Post Promoter

The issue of companies that technologically filter the sludge that oozes out of Hollywood in order to preserve a semblance of entertainment or enlightenment in that product line, while perserving other sensibilities, is bubbling up. We addressed it earlier; naturally, it’s now being litigated. This is a fascinating topic and one that is addressed very thoroughly in an article in the New York Law Journal (registration required).

Here’s the heart of the matter:

Making copies of a movie and offering them for sale or rent, of course, is a plain violation of copyright law. To avoid this problem, editing companies buy multiple legal copies of each movie they offer so that they always retain a one-to-one ratio of ‘cleaned-up’ copies to originals. Some editing companies package the original DVD along with the edited copy — sometimes in disabled form –so it is clear that each sanitized copy is backed up by a legitimately purchased original. Under this scheme, the editing companies argue that they cannot be doing harm to content owners. In fact, they assert that, by establishing a new audience for these movies, they are actually increasing revenues to the content owners. This argument ignores the fact that a copyright owner has the exclusive right to create and sell derivative works from its content. If a market exists for cleaned-up movies sold at a premium, the studios argue that it belongs to them, not the editors.

The other solution is the use of a hardware filter. Here, again, is a powerful excerpt on what’s at stake: Read More…