Tag Archives: Copyright Law

Copywrong

Originally posted 2013-12-03 10:39:49. Republished by Blog Post Promoter

David Post discusses Judge Richard Posner’s musings on the pretty hopeless prospects of the newspaper biz:

[I]f “the newspaper” as a business model fails (because of competition from the free content available on the Net), who will invest the resources required for adequate news-gathering services in the first place? . . .

[Posner’s] proposal for reform, however, goes into the “Cure Worse Than Disease” file:

Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.

It’s hard for me to summarize why this is so terrible an idea.

But — like online copyright infringement — impossible to resist the temptation to try!

Zediva: The world’s longest extension cord

Originally posted 2012-04-09 16:28:21. Republished by Blog Post Promoter

Matthew David Brozik

Guest blogger Matthew David Brozik

The AP reports that a small California (of course) company thinks it has a brilliant idea, a way to out-Netflix Netflix: Zediva Inc. is going to make available for viewing on subscribers’ Internet devices new movies as soon as they are available on DVD. This is a big deal, because Netflix, for instance, does not do this. Netflix will begin sending physical DVDs of a new movie as soon as the movie comes out on DVD… but the instant viewing option comes later, largely because movie studios want it that way, believing that the ability of consumers to view films instantly at home cuts into DVD sales.

Zediva’s doing something right. But is it wrong?

So just how will Zediva be able to transmit, say, “Yogi Bear” on its March 22, 2012, DVD release date?  Here’s how: Zediva will buy a copy of Yogi Bear on DVD, then play it on a DVD player at its Silicon Valley (of course) headquarters, and send the feed to your home. It’s the equivalent of running a very long cable from Zediva’s DVD player to your television set. Right? Movie studios and lawyers who care about these things say no, it is not. While Zediva asserts that what it is doing (or planning to do imminently) is the equivalent of what Netflix does when it mails out DVDs to subscribers (a scheme permitted by the so-called “first-sale doctrine,” which has allowed libraries to lend books to patrons for hundreds of years), several commentators have already countered that it is more akin to Netflix’s other service, that of streaming.  And a streaming arrangement requires licensing, because streaming isn’t lending a physical copy.  (Some commentators are arguing that streaming somehow inherently infringes on a copyright holder’s exclusive public performance right; I don’t agree.)

I’m going to take a potentially unpopular position here (even though I am by no means required to): I think Zediva’s idea is legal, if not particularly smart. The potential for a system that might well be legitimate to devolve into something entirely outside the law, however, is just too great.  That is, for Zediva to do what it says it will, it must own a separate physical copy of a DVD of a given movie for each subscriber who wants to watch it (at the same time). That means if 100 different subscribers want to watch “Yogi Bear” at the same time, in different locations, then Zediva needs to put 100 different DVDs into 100 different DVD players.  Zediva simply may not cut corners and, for instance, rip the content of a DVD and then send a subscriber or two or a hundred the digital information… just until it can run out and pick up some extra copies of Yogi Bear.  And, of course, Zediva may not rip the content of one DVD and then burn the content onto another hundred DVDs to be in compliance with its own (arguably legal) model. Is Zediva smarter than the average start-up? Maybe. If Zediva keeps its nose clean, it just might have something here. Eh, Boo Boo?

UPDATE:  Zediva:  The lawsuit.

UPDATE II:  Zediva loses; is lost.  But you know this ain’t over!

Suing bloggers for dollars

Originally posted 2011-12-05 10:40:50. Republished by Blog Post Promoter

Interior of rotunda, New York Supreme Court, New York CountyGlenn Reynolds links to a an article in Wired about a newspaper “chain”‘s — actually, lawyer Steve Gibson’s — “new business model”:  Suing bloggers who post newspaper articles, evidently more or less intact ones, on their sites.  Glenn says suing bloggers “seems like a poor business plan” — mainly, of course, because most bloggers are broke, or pretty close to it.

The article also explains why these one-off claims by outfits such as the Las Vegas Review-Journal are unlikely, in the long run, to pay off.  One reason is that at least the music industry, through the Recording Industry Association of America, is theoretically going for some degree of bulk in its litigation trawling against unlawful file sharing.  And we did say “theoretically”:  Remember, in 2008 the RIAA managed to spend about $16 million on legal fees to reel in a whopping $391,000.  As the article says, “You’d have to go after a lot of people for a relatively small amount of money,” says Jonathan Band, a Washington, D.C. copyright lawyer. “That is a riskier proposition.”

So, yes, it is hard to comprehend the return on investment here.

There are other reasons this doesn’t seem to make sense.  “Defendants might be less willing to settle a lawsuit stemming from their posting of a single news article, despite the Copyright Act’s whopping damages,” says the article.  But no, not quite on the “whopping damages” stuff.  Contrary to myth — and to the threats routinely uttered by copyright plaintiff attorneys — statutory damages are not meant to be a windfall, as I explain at some length here.  Now it is true that some juries think intellectual property infringement damages are a jackpot unrelated to actual harm — usually because judges don’t instruct them properly.  But other judges in high profile cases are refusing to be part of the copyright shakedown.  Thus in the recent Tannenbaum copyright case, the District Judge reduced the jury’s damages award of $675,000 for infringement of 30 songs to $67,500, ruling that the amount awarded was unconstitutional under the Due Process clause.

Still, $67,500 is a lot of money, a lot, and still pretty darned distant from any plausible quantum of loss to the copyright owner.   Read More…

King Kong meets Godzilla

Originally posted 2014-04-22 21:57:10. Republished by Blog Post Promoter

Via Drudge — FT.com unleases a whopper:

Microsoft on Tuesday launches a fierce attack on Google over its “cavalier” approach to copyright, accusing the internet company of exploiting books, music, films and television programmes without permission.Tom Rubin, associate general counsel for Microsoft, will say in a speech in New York that while authors and publishers find it hard to cover costs, “companies that create no content of their own, and make money solely on the back of other people’s content, are raking in billions through advertising and initial public offerings”.

Mr Rubin’s remarks, presaged in an article in Tuesday’s Financial Times, come as Google faces criticism and legal pressure from media companies over services allowing users to search online for books, films, television programmes and news. Viacom, the US media group, instructed YouTube, which Google owns, to remove 100,000 clips of copyright material.

Okay, so there’s a touch of irony here:

You see, Microsoft excels at marketing. They don’t excel at innovation. In fact, very little of what Microsoft has to offer is truly innovative. There is a tendency to come late to the game and snatch up an idea and build on it, perhaps years after the concept has hit the market, and call it their own. They market themselves as innovators and do a degree they are. Their innovation comes in the spit and polish and not in the technological breakthrough itself.

Examples of this go way back …

Arguably, Google has innovated more — with its search engine technology and the applications it has spun off them, and in the way it has changed the face of how people use their (and others’) computers — than Microsoft ever will. What commercial reality is motivating this attack, then? Read More…

Revoke this, I implied. Or something.

Originally posted 2011-03-24 17:58:18. Republished by Blog Post Promoter

Only a real IP lawyer like Pamela Chestek can write about revoking an implied nonexclusive copyright license.

And mean it.

This Isn’t One, Either. Heavens, No.

Originally posted 2009-09-30 23:33:12. Republished by Blog Post Promoter

Bill Heinze’s I/P Updates blog reports about a trademark registration you can see at the erstwhile movie pirating website LokiTorrent.com. You get a message that says “There are websites that provide legal downloads. This is not one of them.” The site is the property of the good people at the MPAA. And it ought to: Downloading someone else’ movie is just plain stealing. Even if the MPAA is against it. Clients sometimes ask whether the infringing website they’re steaming about can ever fall like an overripe fruit into their hot little hands. Yep. It can.

Someone dropped in an extra zero, right? RIGHT?

Originally posted 2008-10-16 00:01:17. Republished by Blog Post Promoter

It’s a month-old story, and how it got past us here notwithstanding, it’s not getting past us now.  Per the ABA Journal, remember the Bratz litigation?  Well, you haven’t read half of it yet:

Two toy companies battling for rights to the Bratz dolls-with-attitude have racked up legal fees of at least $93 million in the case.

MGA Entertainment has spent $63 million in fees since 2004 defending a lawsuit by Mattel Inc. that contended the doll’s designer conceived of the idea before leaping from Mattel to MGA, the Daily Journal reports (sub. req.). Plaintiff Mattel has spent $30 million in just the first half of the year, the story says.

Mattel was awarded $100 million in the case, far short of the more than $2 billion in damages it had sought.

The Daily Journal got MGA’s figures in a lawsuit it filed against its insurers seeking full payment of the Bratz fees, while the publication got the Mattel figure from a stock analyst.

The ABA item quotes a Jones Day litigation partner who is flummoxed at the idea that there is any conceivable way to get to $93 million for a trademark case, even over the course of four years.  We sure are, too.  And re-read this ‘graph:

MGA Entertainment has spent $63 million in fees since 2004 defending a lawsuit by Mattel Inc.  . . . Plaintiff Mattel has spent $30 million in just the first half of the year, the story says.

That $30 million was just the first half of ’08!  That means Mattel spent WAY more than $30 million since the suit began in ’04, and that the total legal fees must have blasted way, way past $100 million since the case began.

Is there anyone out there who can even remotely do this math and explain how you can get to numbers like this — not how they can be justified, for, given the business interests involved, they are not irrational.  But how many widgets, and of what kind, does a law firm have to spit out to get to these kinds of numbers?

War Is Peace; Freedom is Slavery; Ignorance is Strength

Originally posted 2014-11-26 12:58:03. 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.

Let the games begin

Originally posted 2009-09-29 23:36:13. Republished by Blog Post Promoter

Yahoo! News reports:

Media conglomerate Viacom Inc. sued Google Inc. and its Internet video-sharing site YouTube for more than $1 billion on Tuesday in the biggest challenge yet to the Web search leader’s strategy to dominate the online video market.

The lawsuit accuses Google and its popular online video unit of “massive intentional copyright infringement,” threatening its ambitions to turn YouTube into a major distributor of entertainment and outlet for advertising.

This is going to come down to the old question that we wrestled with — without resolution — in the online auction context: Whether or not “trying really hard” to avoid copyright (or in the case of auctions, typically trademark) infringement is enough to get website such as YouTube (or eBay) off the hook.

Ironclads battle

In the case of eBay, where the issue is trademark, they have replicated the notice-and-takedown provisions of the copyright law and were tested on whether this helps — there is no safe harbor provision for trademark infringement — only by Tiffany, in a case that evidently never went anywhere.

Here there really is a legislative safe harbor under the Copyright Act. But why should an entire business model premised, at least in part, on profiting from copyright infringement get the benefit of a safe harbor? Viacom will argue that it shouldn’t.

UPDATE: Good analysis by Allahpundit and Google Watch. Meanwhile, when you’re a carpenter, every damned thing looks like a nail, doesn’t it!  Also, Evan has the complaint and a sharp rundown on it.

UPDATE BUT GOOD:  Settled in March 2014:

The settlement ends seven years of litigation that drew wide attention from Hollywood, the music industry and Internet companies, and which tested the reach of a federal law designed to thwart piracy while letting people find entertainment online.

“This settlement reflects the growing collaborative dialogue between our two companies on important opportunities, and we look forward to working more closely together,” Google and Viacom said in a joint statement.

Terms were not disclosed. No money changed hands, a person close to the matter said. The person was not authorized to discuss the settlement’s terms.

Old media vs. new in LA federal court

Originally posted 2012-01-01 00:01:47. Republished by Blog Post Promoter

CNET News.com reports:

NBC Universal and Viacom have come out against YouTube in a legal case that could help to determine whether the video-sharing site is culpable for copyright violations committed by users.

On Friday, NBC Universal and Viacom filed a request with the U.S. District Court in Los Angeles asking that they be allowed to file a friends-of-the court brief in support of journalist Robert Tur, according to a copy of the request obtained by CNET News.com.

Tur, a Los Angeles-area news reporter, accused YouTube of copyright infringement in a lawsuit last summer. Tur said in his suit that footage he shot of the 1992 Los Angeles riots appeared repeatedly on the video-sharing site.

Google, which acquired YouTube last October for $1.65 billion, has filed a summary judgment asking that Tur’s suit be dismissed, according to court documents. NBC and Viacom want the opportunity to argue against dismissing the case.

“Any ruling on YouTube’s motion will have far-reaching ramifications for the owners of video content,” NBC and Viacom said in their filing. “And especially for content owners such as Viacom and NBCU, whose works have been copied, displayed, and performed and disseminated by YouTube and others without their authorization.”

YouTube is taking the position, in effect, that it’s just an Internet service provider, a common carrier, a pipe, and that it can profit (well, has it ever profited?  Its founders did when they sold out to Google) from content placed on its website but cannot be held liable for it.  It think that’s preposterous, and that this position is not what Congress had in mind when it passed the amendments to the Copyright Act on which Google is relying (NB:  I have not seen the actual Google filings — if someone can correct my characterization of them, I welcome that).

UPDATE:  Read this.