Tag Archives: Copyright Law

DMCA days

Originally posted 2008-07-21 13:30:08. Republished by Blog Post Promoter

Mike Masnick on a key question:  Whether copyright fair use, no matter how obvious, may be ignored by a would-be copyright owner when sending a DMCA takedown notice that but for the fair use defense is “reasonable”:

The DMCA has provisions for a copyright holder to assert ownership, at which point the service provider needs to takedown the content. Whoever posted the content can protest that the content was legally posted — which is exactly what happened in this case. However, the DMCA also says that filing a false DMCA notice opens one up to damages from those whose content was taken down. This was in an effort to discourage false DMCA notices. This provision was used last year against Viacom for its false takedowns on satirical clips of the Colbert Report.

The question then, is whether or not filing a takedown notice on content that is used in a way consistent with “fair use” is a misuse or not. Universal Music’s claim is that it is not reasonable for the copyright holder to take fair use into consideration before sending a takedown notice. At a first pass, it sounds like the judge agrees.

As ridiculous as this whole situation is, the judge and Universal Music may be correct under the existing law.

A corrollary:  Is fair use grounds for a DMCA recipient to disregard a DMCA takedown notice?  Hat tip to aggregator Tech Verdict.

UPDATE from Carolyn Wright.

Where Were You When “Happy Birthday to You” Was Found to Be in the Public Domain?

You can wish MDB a HBD on 3/12. Every year.

FYI, You can wish MDB a HBD on 3/12. Every year.

Newly discovered evidence [according to a court filing] “proves conclusively that Happy Birthday has been in the public domain since no later than 1922.” At stake is the more than $5,000 per day—or $2 million per year—that singers, stage directors, filmmakers and advertisers currently shell out to use the [song]. – The Washington Post

My entire extended family and I—some six dozen of us, spanning four generations—were at a Joe’s Crab Shack celebrating Nana’s big 1-0-0. The wait staff was midway through a verse of the restaurant’s proprietary alternative ‘Joyful Anniversary of Your Being Born’ melody when one of the busboys—a second-year law student, I think I’d heard him mention—glanced at his phone. He must have gotten word of the court decision just then, because he signalled to the rest of the servers’ ensemble and as one they transitioned to the previously-verboten tune. It took a moment for the other relatives and me to catch on to what was happening, but when we did we joined in. More than one voice cracked—with emotion, for this was a truly momentous occasion. As it turned out, Nana herself entered the Great Public Domain in the Sky the following month—by which I mean she died—but she died with her faith in the American legal system restored, even if she never forgave Chester A. Arthur.”

– Randall W., Atlanta

“I was at home, swimming in an enormous pile of money—the royalties I’ve earned from selling eBooks of public domain works on Amazon.com. No wonder the Warner Music Group wanted to keep the most recognized song in the English language out of there. The public domain is a festering goldmine.”

– Molly M., Raleigh-Durham Read More…

No safe harbor for this shark.

Originally posted 2013-04-29 12:04:55. Republished by Blog Post Promoter

Matthew David Brozik

One groovy shark.

Generally, one doesn’t expect to find copyright decisions of note in state courts, but every so often one will crop up. One really doesn’t expect to find interesting decisions on state-court motions to dismiss a party’s fourteenth affirmative defense… and yet here we are, reading with great interest the April 23, 2013, decision of the New York State Supreme Court, Appellate Division, First Department in UMG Recordings, Inc. v. Escape Media Group, Inc.

Defendant Escape Media Group owns and runs an online music streaming service called Grooveshark, where users can upload audio files, usually songs, to an archive maintained on Escape’s servers; other users can search the servers and stream the files to computers and other devices. The setup is designed to be on the up-and-up, though; it isn’t 1999 Napster. Escape “has taken some measures to ensure that Grooveshark does not trample on the rights of those who own copyrights in the works stored on its servers,” reads the First Department decision. “For example, it is a party to license agreements with several large-scale owners and licensees of sound recordings. In addition, it requires each user, before he or she uploads a work to Grooveshark servers, to confirm ownership of the recording’s copyright or license, or some other authorization to share it.”

Alas! Read More…

Manchester Cathedral, you’re driving me crazy

Originally posted 2007-06-14 11:42:55. Republished by Blog Post Promoter

Manchester Cathedral, Winchester Cathedral — same thing. We’ve written in the past — well, not us, there is only just me here; sorry — about the dubious concept of trademark rights in building exteriors. Now Bill Patry writes about a proposed copyright lawsuit by the Church of England, which does not object to violence against Jews, who have it coming to them, but gets the vapors over virtual gunfights being depicted in its magnificent hallowed (and hollow) halls:

Manchester Cathedral

Various UK sources ran stories yesterday about the Church of England’s pique over Sony’s Playstation 3 alleged replication of the interior of the Manchester Cathedral as a dropback in a gunfight in the game “Resistance: The Fall of Man. (HT to Bruce C. in the frozen north). Andrew Mills has a fantastic, very detailed piece on the story, here, including a YouTube link to the sequence in question.

The Church of England has threatened to sue Sony after the Japanese company used Manchester Cathedral as the backdrop to the gunfight in the PlayStation 3 game Resistance: The Fall of Man.

It could have a case, lawyers say.

In general, [however], the outside of a well-known building is not considered to be protected under the law, Tom Frederikse, an intellectual property specialist with Clintons, the law firm, said.

Patry points out that under Section 120(a) of the Copyright Act, U.S. law, which does protect copyright in archtectural works, nonetheless explicitly permits “the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.” He notes that the question of whether the interior of a building could be “ordinary visible from a public space” is one he had not considered, and he’s considered a lot. Of course the building is publicly accessible, as he points out, but it seems a bit churlish to reward the building’s owner for making its space accessible by deeming that space itself “public” and thereby denuding him of rights he otherwise would have.

Well, that’s American law, anyway. Read More…

Goldman on Ticketmaster

Originally posted 2007-10-23 00:22:32. Republished by Blog Post Promoter

Eric’s Technology & Marketing Law Blog asks whether “the public interest got screwed” in the recent big win for Ticketmaster down in Alabama against RMS, a company whose software outsmarted Ticketmaster’s sales system. Copyright infringement was a lynchpin of the holding.

Ticketmaster-LogoI was once consulted on a similar case and I was hoping that it was that same former client that lost this one — because the son of a gun stiffed me on my fee! But because of that experience and the analytical framework I ended up working through while considering similar issues, I’m sympathetic to the defendant there, and to Eric’s take on it, too:

It’s easy to point at RMS and its customers as the bad guys. After all, they are trying to get an unfair advantage in the first-come, first-served allocation of scarce tickets for their economic benefit, with the result that later comers have to pay more to get the same tickets.

But what about Ticketmaster’s role in this situation? They haven’t designed a technologically gaming-resistant allocation of tickets, so they need legal help to solve that deficiency. I also remain suspicious about Ticketmaster’s incentives here, both in setting prices and in policing against ticket allocation gaming. Their motives may not be nearly so consumer-friendly as they try to portray.

Well, no company is as consumer-friendly as it likes to portray itself. But Ticketmaster? Go ahead and Google it. It’s not pretty. On the other hand, is a company really obligated to “design[] a technologically gaming-resistant” business model before it can have recourse to the law to enforce its rights? I don’t think Eric means that, either. Read, as they say, the whole thing, though.

Best of 2009: They always get their man

Posted November 24, 2009.

Dudley and SnidelyYes, people do have some funny ideas of what kinds of things to protect with copyright, don’t they?   A few years ago, criminal enterprise Milberg Weiss (in its pre-conviction days) tried to assert copyright in its own specie — the legal papers it filed to generate kazillions in crooked class-action fees — and not so unreasonably (hmm…).

Anyway, it seems that certain countries, though not as wealthy as Milberg Weiss, nor nearly as scurrilous (indeed, arguably cordial to a fault!), have figured, if an American law firm can try to claim copyright in its own money, why can’t we?   Why not indeed?

And so we read of a vacation. “To experience the full excitement of traveling abroad,” writes Eric E. Johnson,

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

you’ve got to have a pocket full of unfamiliar money. Never mind that their pennies, dimes, nickels, and quarters look almost identical to U.S. coins. And put aside the fact that the exchange rate right now between the U.S. and Canada is almost exactly one-to-one. I was still excited to use different cash.

Inspecting the colorful bills, I got a delightful surprise: a copyright notice!

Read More…

Best of 2009: The DMCA and the search engine

DMCA 1998Posted on August 6, 2009.

Traverse Legal:

Mary Roach has a great post at CircleID on an area that we have talked about extensively, namely, copyright takedowns under the Digital Millennium Copyright Act.  Mary’s post covers the more specific strategy of sending takedown notices to search engine providers, such as Google, Yahoo, and MSN, to effectively reduce access to stolen creative materials.

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

That’s worth checking out.  How does it work?  As Mary writes,

[R]ather than identifying the infringing copyrighted material itself, rights owners must instead identify the search result or directory page which links to a webpage containing the infringing material. For example, this would require providing the keyword or keyword phrase used in a search or directory query, plus the URL(s) which point to the infringing websites in the DMCA complaint.

You can just imagine the bells going off in my head when I read that formulation.

Read More…

Best of 2009: “Infinity Dollars” — IP damages and the jury, Part 1

Originally posted 2009-06-19 12:07:08. Republished by Blog Post Promoter

JuryA lot of people, including judges, lawyers and civilians, don’t seem to really understand what statutory damages are all about.  They are not supposed to be a windfall (discussed more here).  But just tell that to the jury that awarded “infinity dollars” — practically — to the Lords of Music for what was indeed knowing copyright infringement of two dozen songs, and to the person on whose head the jury just laid that award.

I’m not an “information wants to be free” nutter, and musical compositions aren’t “information” anyway except to the most heartless utilitarian, but Stan Schroeder (presumably no nutter either, but probably to my left on this issue) hits it right on the head:

Ten Years of LIKELIHOOD OF CONFUSION®

In one of the most ridiculous verdicts I’ve seen, the jury decided that Jammie Thomas-Rasset, the first woman who was charged with copyright infringement and offered to settle but decided to fight the RIAA, is guilty and owes the recording industry 1.92 million dollars, or $80,000 per song.

As we mentioned in our original article, Jammie’s case was full of holes, and she probably would have done better if she had just settled with the RIAA. But what’s striking here is the amount of money awarded to the recording industry for infringing the copyright for just one song.

Read More…

Best of 2009: Properly classified — there’s no “significant doubt”

Originally posted 2009-03-14 23:59:47. Republished by Blog Post Promoter

US President Barack Obama gestures for the crowd to keep quiet about his visit to the O&H Danish Bakery to buy kringle pastries so that First Lady Michelle Obama wouldn't find out about the visit, during a town hall event on the economy at Racine Memorial Hall in Racine, Wisconsin, June 30, 2010. AFP PHOTO / Saul LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)

Photo: SAUL LOEB/AFP/Getty Images

CORY DOCTOROW: Obama administration: releasing details of secret copyright treaty endangers”national security.” Er, what?

Good question, Instapundit.  Click through — the original story is here, at Wired.  The reference is to the so-called Anti-Counterfeiting Trade Agreement, or ACTA.

But you can really see all you need to see by reading the letter from the Administration responding to a Freedom of Information Act request for disclosure of this information about a copyright treaty by stating that the documents the documents you seek are being withheld in full pursuant to 5 U.S.C. sec. 552(b)(1), which pertains to information that is properly classified in the interest of national security pursuant to Executive Order 12958.

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

Well, good to know they’re being properly withheld!

But can this truly be the case?

Here’s what that Clinton-era Executive Order says (in part) about what shall and shall not be deemed classified (emphases added): Read More…

Best of 2008: Someone dropped in an extra zero, right? RIGHT?

Posted on October 16, 2008.

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.

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

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: Read More…

Best of 2006: Who owns the copyright in scans of public domain works?

Originally posted 2006-05-07 11:39:56. Republished by Blog Post Promoter

First posted on May 7, 2006.

I love Plan59.com. If you’re my age or a little older, almost any click on this smartly designed and comprehensive website can recreate a certain feeling that comes with recalling a much more secure, confident and simple America — kind of like the grown up version of Dick and Jane.

Rockwell copy copy copy

Great metaphor. Probably not great fair use.

I would use the graphics from Plan59.com every day if I could, but I don’t have their permission. On the other hand… whose graphics are they, really? They put it this way:

PLEASE NOTE: The images on this site are embedded with an invisible digital watermark and IPTC metadata. Are you free to scan and market images out of that nifty 1936 Hupmobile brochure you got at the flea market? Yes, if it was published without a copyright, or if the copyright has expired. Is it okay to use the images we’ve made from the same catalog? Ahem, cough. We own the scans we’ve made—they represent a considerable investment in equipment, source materials and labor over the past five years. Every jpeg and gif on this site is copyrighted and marked as belonging to us. Please, no borrowing without getting permission.

10 Years of Bloggy Ok-Ness

10 Years of Bloggy Ok-Ness

Hmm. What they’re saying is that the Hupmobile image is in the public domain, but that they have made a new, derivative work from it by virtue of their “considerable investment in equipment, source materials and labor.” Well, that sounds fair. If they thought they couldn’t protect their work, they probably wouldn’t have gone through the trouble. But does it comport with copyright law?

Read More…

Copyright belongs to the ages

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

US-CopyrightOffice-Seal.svgMedia 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.