Tag Archives: Copyright

The PROTECT IP Act: We’re all infringers now

Originally posted 2011-07-07 20:39:24. Republished by Blog Post Promoter

Guns of Battleship New JerseyGlenn Reynolds links to this story:  Dozens of law professors: PROTECT IP Act is unconstitutional:

An ideologically diverse group of 90 law professors has signed a letter opposing the PROTECT IP Act, the Hollywood-backed copyright enforcement/Internet blacklist legislation now working its way through Congress. The letter argues that its domain-blocking provisions amount to Internet censorship that is barred by the First Amendment.

Jointly authored by Mark Lemley, David Levine, and David Post, the letter is signed not only by prominent liberals like Larry Lessig and Yochai Benkler, but also by libertarians like Post and Glenn “Instapundit”Reynolds.

“The Act would allow courts to order any Internet service to stop recognizing [a] site even on a temporary restraining order… issued the same day the complaint is filed,” they write. Such a restraining order, which they describe as “the equivalent of an Internet death penalty,” raises serious constitutional questions.

Yep.  I argued much the same thing here a while ago, and I’m only a former law professor. (Ahem… adjunct.)

Anyone who reads this blog regularly knows that the encroachment of Big IP on the right of free expression — commercial or otherwise — has been my central theme.  And within that theme, I have consistently pointed out that the existing legal rules, especially in copyright, are already hopelessly skewed wrong.

Online counterfeiting and copyright infringement are serious problems, but this new proposed law is a terrible way to try to solve them.  Its passage would only drive the culture further yet from any respect for the rule of law as it applies to intellectual property.  But if Big IP hasn’t figured out yet that it is cultural acceptance of legal norms, not fear of punishment, that makes a free society a law-abiding one — if Big IP doesn’t understand what the de facto attitude of consumers regarding copyright has already become, and where it is already going — then heck, maybe at this point the law professors and the rest of us should just let Congress already go ahead and give them enough rope.

Sun, Oracle, Microsoft, Google, trademark, patents, copyright and David Boies

Originally posted 2011-09-28 10:33:28. Republished by Blog Post Promoter

Eastern District of New York, BrooklynThere’s a lot going on, conceptually, in this article entitled “The $800M question: What’s the difference between trademark and copyright?” in VentureBeat:

Ten years ago, when Sun sued Microsoft over Java, Sun alleged trademark infringement because Microsoft was not implementing Java according to Sun’s specification. Microsoft had entered into a license agreement with Sun — promising to follow the specification. When Microsoft deviated from the specification, Sun rightly claimed breach of contract and trademark infringement. Sun sought an injunction against Microsoft to stop using the Java logo and to remove the incompatible Microsoft code from the market. Sun ultimately prevailed, and received a large settlement, in part due to Microsoft’s anticompetitive conduct over Java.

Check.  A fine point in trademark licensing:  If you manufacture a widget and use my trademark, under a license, to tell the world that you’ve got my widget-juice running it, your willful failure to follow the specs is both a contract breach and a trademark infringement. Next:

Attorney David Boies . . . served as Special Trial Counsel for the United States Department of Justice in its antitrust suit against Microsoft. At the conclusion of that antitrust suit, U.S. District Court Judge Jackson found that Microsoft took actions “with the sole purpose of making it difficult for developers to write Java applications … that would allow them to be ported.” . . .

Boies now represents Oracle (which has since acquired Sun, including its rights to Java) in its case against Google for patent and copyright infringement of Java. He surely knows the differences between the issues in the prior lawsuits. Unlike Microsoft, Google never licensed Java from Sun. It never agreed with Sun to implement the Java specification, and it doesn’t call its product Java. It calls it Android and Android is not a candidate for an antitrust case. In fact, the Microsoft .NET Framework and Java are the two dominant middleware platforms. Read More…

Authors Guild v. Google: Judge Chin’s decision in favor of Google Books

Originally posted 2014-12-31 08:20:33. Republished by Blog Post Promoter

Anyone looking for the Author’s Guild v. Google decision on the Southern District of New York website is going to have a hard time: It’s working like the Obamacare website right now, probably because everyone is hitting it looking for a copy of the opinion.

Well, here it is, courtesy of Gigaom:

Google Books ruling on fair use.pdf

Blog posts at LIKELIHOOD OF CONFUSION® about this case are collected at this fairly recent post.

Worth a thousand words

Originally posted 2012-10-23 19:15:22. Republished by Blog Post Promoter

Special Civil Part courtroom, Essex County Hall of Records, Newark NJ
How much use is fair use — i.e., permissible use — when it comes to graphics and photographs you “find” on the Internet?

Not too much.  As I said a while back in a chat with friend John Hawkins:

What’s the most common mistake you see bloggers making? What are you seeing people do that could get them sued?

Well, it’s fair to say that well over 90% of bloggers are not risking any legal trouble. Most people write their original thoughts, they make legitimate links, and even things like hotlinking graphics, even aside from the copyright issue, are probably not actionable. It’s interesting to think about whether if you knocked out someone’s website with a hotlink to a graphic, he could come after you on a trespassing theory…

But if there is any single problem that seems to consistently be out there, it’s copyright infringement regarding the use of photographs from news services.
Read More…

You are not the boss of me!

Originally posted 2014-02-07 13:20:00. Republished by Blog Post Promoter

Internet Cases logoEvan Brown reports, as he does so often, about an important ruling that deals another blow to attempts at using intellectual property, and particularly its growing penumbras in the secondary liability area, law as a magic legal elixir to fix ever perceived legal or commercial problem:

After defendant left plaintiff’s employment to co-found a competing company, plaintiff sued defendant personally for copyright infringement based on the new company’s website’s resemblance to plaintiff’s website. The infringement theory was interesting – plaintiff alleged that defendant did not commit the infringement himself, but that he was secondarily liable for playing a significant role in the direct infringement by the new company’s employees. . .

It didn’t fly in BioD, LLC v. Amnio Technology, LLC, 2014 WL 268644 (D.Ariz. January 24, 2014).  Evan explains:

In this case, the court held that plaintiff had not alleged enough detail to state a claim of secondary liability against defendant. Instead, the complaint simply recited the elements of contributory and vicarious liability. . . .

[Plaintiff failed to allege that d]efendant, as a non-employee (but founder) of the new company, was personally responsible for the content of the new company’s website. (Interestingly, the court held it was not sufficient to allege that defendant was a founder of the new company. Although plaintiffs alleged some factual details about what was actually copied from plaintiff’s website, they alleged no factual details as to defendant’s personal involvement in the infringement.) . . .

Plaintiff’s attempts to impose secondary liability were (if they had worked) a clever method for accomplishing the same objective as piercing the corporate veil. Granular control by the individual founder could be equated with the “alter ego” aspect of the veil-piercing analysis. The absence of such specific control by the individual defendant, however, left the possibility of liability only with the company.

This last paragraph does raise an important issue:  “Granular control by the individual founder could be equated with the ‘alter ego’ aspect of the veil-piercing analysis.”  Here the missing factual piece seems to have been the actual connection between the former employee, also the “founder” of the allegedly infringing website, and his actual control — necessary under vicarious liability doctrine (the secondary approach relevant here) — over the infringers.

It seems this was an attempt to use secondary liability “get at” the former employee, whose fingerprints were deftly, or perhaps entirely innocently, nowhere to be found on the allegedly infringing website, personally on the copyright claim.   Read More…

Indirect Liability and Grokster

Originally posted 2012-10-29 11:41:37. Republished by Blog Post Promoter

This post on the Marginal Revolution blog (where this blog once advertised) links to (or tries to link to) an amicus brief filed by… a bunch of guys — namely Kenneth J. Arrow, Ian Ayres, Gary Becker, William M. Landes, Steven Levitt, Douglas Lichtman, Kevin Murphy, Randal Picker, Andrew Rosenfield, and Steven Shavell. Their self-described interest as amici?

Amici are professors and scholars who teach and write on economic issues and, in particular, on the economics of innovation, the economics of intellectual property, and the economics of both deterrence and enforcement. . . . Amici file solely as individuals and not on behalf of the institutions with which they are affiliated. Amici represent neither party in this action, and write solely to offer an economic perspective on the important social issues at stake in this dispute.

Nice work if you can get it. All but two of them are University of Chicago (i.e., “law and economics”) professors; the other two are Ian Ayres of Yale (formerly a Northwestern prof, which is why his name jumped out at me) and the other is from Stanford Law.

So what do they say? Their focus in the brief is on the usefulness of the doctrine of indirect or secondary liability in intellectual property. That’s a topic of great interest to us around here, but we have always focused on trademark, where the issues can be quite different. But regarding copyright, here is the conception of the problem by these learned men (yes, all men), per their own brief:

In this dispute, the Court is being asked to clarify the conditions under which those conventional remedies should be supplemented by an additional cause of action: liability that would hold responsible a firm whose product or service facilitates copyright infringement. The argument in favor of this sort of “indirect” liability is that in certain circumstances it will be the only practical way to maintain the efficacy of copyright markets. That is, direct liability is so costly in certain situations that, without indirect liability, authors would in those settings no longer have a meaningful right to prevent unauthorized use of their work. The argument against indirect liability is that, because the products and services at issue here have both legal and illegal uses, any legal intervention must be cautious or else risk inadvertently interfering unreasonably with legitimate activity.

And here is their conclusion, based (Cliff’s Notes-like) on their legal argument headings and the summary at the end of the argument section: Read More…

“I don’t even own a TV”—Aereo (Part Two)

Originally posted 2014-10-26 19:37:31. Republished by Blog Post Promoter

aereo-logoFamiliarity of the reader with Part One is presumed.

As I read the Second Circuit decision, I was pleased—for reasons I can’t quite, and won’t bother trying to, articulate—that the appellate court was affirming the denial of a preliminary injunction in part, at least, because the granting of the injunction would probably have “severely harm[ed] Aereo, likely ending its business.”

Yet I was at the same time bothered by something I couldn’t quite put my finger on, until I did, and it was nothing other than the acknowledgment by the Second Circuit (immediately preceding the one just quoted) that “the [district] court concluded that the Plaintiffs had demonstrated a likelihood that they would suffer irreparable harm in the absence of a preliminary injunction.” Which means, of course, that right now—and since March 14, 2012, when Aereo began providing its service to subscribers… and through tomorrow, and the day after, and the day after that… until such time as the plaintiffs prevail in the two lawsuits pending in the Southern District of New York (and are awarded a permanent injunction), an eventuality Judge Nathan has deemed unlikely as a matter of law, which ruling the Second Circuit has affirmed… the plaintiffs, every broadcast network in New York City, are being irreparably harmed.

How, exactly? The appellate decision doesn’t discuss the harms to the plaintiffs, because it doesn’t need to. The Second Circuit agreed that the plaintiffs “are not likely to prevail on the merits,” so its discussion of the harms claimed by each side of the dispute are minimal. “Plaintiffs do argue that any harm suffered by Aereo should be disregarded in the balance of hardships analysis because Aereo’s business is illegal,” the Second Circuit decision reads, “…[b]ut this argument hinges on the conclusion that Aereo’s business infringes the Plaintiff’s copyrights,” which the court concluded it does not, at least “on the limited question before us… whether Aereo’s transmission of unique copies of recorded programs to the Aereo users who directed that they be created are public performances.” So we must seek our answer elsewhere. Perhaps in the district court opinion.

But before we look there, let’s think about this like regular folks. Regular folks don’t read court opinions. Regular folks ask whether something feels right or wrong. And this feels at once both right and wrong.

Imagine that you live in New York City. As a NYC resident, when you’re not at a Yankees game or ice skating at Rockefeller Center or having lunch with, say, Michael Bloomberg at Ray’s Famous Original Ray’s Pizza, you might watch some broadcast television, which you don’t pay for, since you have an antenna attached to your top-of-the-line widescreen HD set in your 350-square-foot studio apartment that you share with a roommate and a cat. But when you get home from your pizza date your roommate and his girlfriend and her friend are using the TV to play video games (only ironically, though)… but you’re not out of luck, since you’re an Aereo subscriber! So you take your iPad to your freecycled futon in your corner of the room and you log in and request that the new episode of whatever show everybody likes that’s playing right now be streamed to your Internet-capable device.

Where’s the harm in that? Read More…

Guest Post: Fair Use or Foul Ball?

Gregory Winsky

Gregory J. Winsky of Archer & Greiner, PC

See below for more information about my partner Greg Winsky, who is just snarky enough to merit a guest post on LIKELIHOOD OF CONCLUSION on a topic I’ve been covering — and inviting guests to cover — for years despite his being way overqualified as a real, live intellectual property lawyer.

When copying 20,000,000 books without permission is not copyright infringement

Jim Bouton’s last pitch to Google wasn’t Ball Four, at least according to the umps of the Second Circuit who decided — after replay — that the digital giant had smacked the pitcher-turned-author’s hanging slider more than 330′ directly  over the foul pole boundary of the short porch in right.

In The Author’s Guild v. Google Inc., a three judge panel of the Second Circuit Court of Appeals affirmed a grant of summary judgment in favor of Google by the District Court of the Southern District of New York against the former Yankee pitcher, one of the named plaintiffs, and The Author’s Guild, the nation’s professional organization for writers, once headed up by such luminaries as Pearl Buck and Erica Jong (which organization had been found to lack standing to bring claims of copyright infringement on behalf of its members).

The 2013 summary judgment decision held that Google, having made digital copies of the full text of tens of millions of books without the permission of the authors and having provided a publicly available search function with an electronic viewer that copies out “snippets” of works retrieved, had not infringed Bouton’s, nor anybody’s, copyright, because Google’s digitization was “transformative” and therefore constituted “fair use” under the Copyright Act.

BallFourStating off the bat that “[t]his copyright dispute tests the boundaries of fair use, “the Second Circuit expanded the strike zone of the Fair Use exception in Section 107 of the Copyright Act, even in the face of the assertion of the plaintiff/copyright holders that Google’s “ultimate profit motivation” in the creation of this new monolithic digital library1 should obviate a finding of fair use under first prong of the Section 107 analysis, that is, “whether such use is of a commercial nature.”

The appellate court disagreed, stating that “we see no reason in this case why Google’s overall profit motivation should prevail as a reason for denying fair use over its highly convincing transformative purpose.”

Read More…

About Face

tos-reversion

Originally posted 2009-02-18 10:41:19. Republished by Blog Post Promoter

The New York Times reports the latest on the Facebook “license” story:

After a wave of protests from its users, the Facebook social networking site said on Wednesday that it would withdraw changes to its so-called terms of service concerning the data supplied by the tens of millions of people who use it. . . .

Earlier this month, Facebook deleted a provision from its terms of service that said users could remove their content at any time, at which time the license would expire. It added new language that said Facebook would retain users’ content and licenses after an account was terminated. . . .

In a Facebook posting on Wednesday, Mr. Zuckerberg said: “A couple of weeks ago, we revised our terms of use hoping to clarify some parts for our users. Over the past couple of days, we received a lot of questions and comments about the changes and what they mean for people and their information. Based on this feedback, we have decided to return to our previous terms of use while we resolve the issues that people have raised.”

The posting said the decision to return to previous terms was “the right thing for now.”

That covers it, right?   I no longer have to worry that Facebook will leverage my worldwide fame for its nefarious purposes after I finally grow up and delete my account forever.

Okay, I wasn’t really worried about that.  Then again, being an adult I’m not someone who’s posted dozens of pictures of himself hoisting brewskies, tangled up in piles of flesh or whatever, and neither are my “friends.”

But this does seem to be a prevalent practice among people who may some day realize that they want to be adults, too (i.e., college students), or at least that they may want to get a job somewhere.  Is that what’s animating the outrage? Read More…

Google Books settlement takes it on the Chin

I raised questions about the Google Books settlement ages ago.

Now some of them have been answered, and Judge Denny Chin’s answer is “no”:

While the digitization of books and the creation of a universal digital library would benefit many, the [Amended Settlement Agreement] would simply go too far.  It would permit this class action – –  which was brought against defendant Google Inc. (“Google”) to challenge its scanning of books and display of  “snippets” for on-line searching – –   to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners.  Indeed, the ASA would give Google a significant advantage over competitors,rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyondthose presented in the case. . . .

Read More…