August 2013

Liberation Music Throws Lessig a Meatball Pitch in “Lisztomania” DMCA Takedown Suit

August 29, 2013

Harvard Law School professor Larry Lessig must have fallen off his chair in disbelief when he learned that Liberation Music, copyright owner of the song Lisztomania, recorded by Phoenix, had used the DMCA to force Youtube to remove the video of a lecture by Lessig that included video remix examples of this song.  He soon straightened up and filed what could become an interesting test case involving wrongful DMCA takedown notices and copyright fair use. However, in the process he suffered something of a legal stutter-step that may come back to haunt him in this case. Assuming, that is, that Liberation Music doesn’t come to its senses and settle this case faster than you can say “world-renown copyright lawyer with deep resources handed slam-dunk case by naive copyright holder.” The original “brooklyn brat pack mashup” video of Lisztomania, an amateur music video which remixes the song and scenes from the 1985 movie The Breakfast Club, has been the subject of countless amateur remixes (the “brat pack videos”) that are easily accessible on the Internet. Incredibly it is this very phenomenon — remixes of videos of this song — that Lessig has used in dozens of presentations* to illustrate the culture of creativity released by the Internet. And, implicit in his use of this example is that it is transformative, and therefore permissible under copyright fair use. *Here is another one on Youtube that has not been taken…

Read the full article →

Ninth Circuit Decision in Fox v. Dish is Another Blow to TV Networks

August 13, 2013

“The phone, the laptop and the tablet have advanced so dramatically. Television has been drastically left behind.” – Tom Rogers, CEO of TiVo, Inc., Wall Street Journal, July 30, 2013 _________________ First music, then books, now television. Music and book publishers have suffered well-publicized headwinds (some would say hurricane gales) at the hands of the Internet economy, and now 2013 is the year the TV and cable industries are beginning to face comparable technology-driven disruptive technologies. Technical advances now allow people who live in New York, Boston or Atlanta to use Aereo to watch inexpensive over-the-air television on Internet-enabled devices (potentially freeing them from more expensive cable fees), and subscribers to Dish satellite TV to watch primetime network TV ad free The broadcasters are fighting these developments in the marketplace and the courts, and the court actions have sent sparks flying in the world of copyright law. I’ve written about the broadcasters’ ongoing legal efforts to shut down Aereo, However, the Ninth Circuit’s July 24, 2013 decision in Fox v. Dish Network adds another dimension to the TV industry’s copyright battles.* *An important caveat in both cases is that the appellate courts were reviewing preliminary injunction decisions by district courts under a deferential standard of review. There is no certainty that the Second and Ninth Circuits will reach the same conclusion on an appeal of a final judgment in these…

Read the full article →

Viacom Has Chutzpah (or Perhaps Bad Judgment) to Suggest That Second Circuit Reassign Its Case Against Youtube In Event of a Remand

August 8, 2013

“The thing to fear is not the law, but the judge.” – Russian Proverb  _____________________________ Viacom has filed its opening brief in its second appeal in Viacom v. Youtube. This long-running copyright case is establishing important precedents in the interpretation of the  Digital Millennium Copyright Act (DMCA).*  *See this link for my most recent post on this long-runing case. In its current appeal Viacom argues that the trial court judge erred in granting Youtube summary judgment following remand from the Second Circuit’s 2012 decision in this case. The appeal raises many difficult and important issues in applying the DMCA, and it remains to be seen whether the Second Circuit will add clarity or confusion to this complex law. However, one element of Viacom’s argument jumps out instantly. Viacom’s brief includes a section titled “This Court Should Exercise Its Discretion To Remand The Case To A Different District Court Judge.” The text of the argument in support of this request, in its entirety,  is as follows: Given the protracted nature of this litigation (the case is now well into its seventh year) and the evident firmness of the district court’s erroneous views regarding the DMCA, this Court should exercise its discretion to remand the case to a different judge “to preserve the appearance of justice.” E.g., United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977). Reassignment would “not   imply any personal criticism of…

Read the full article →

Massachusetts Attorney’s Innovative Attempt to Use Copyright Law to Remove Defamatory Material From “Ripoff Report” Unlikely To Succeed

August 6, 2013

An unusual copyright suit recently filed in federal court in Boston is worth a brief comment. Here are the facts. In July 2012 someone wrote an offensive, defamatory “complaint” about a Boston attorney on the website Ripoff Report.  Because a federal statute (47 USC § 230) protects Ripoff Report from liability for defamatory user generated content (“UGC”), the lawyer could not force Ripoff Report to remove the defamation from the site.* However, he came up with a clever (but, as we shall see, probably ineffective) work-around.  *Ripoff Report does not voluntarily take down UGC. The lawyer sued the original poster for defamation in Massachusetts superior court, and obtained a default judgment.  As part of the relief he was assigned the copyright in the defamatory posting (or, power of attorney giving him the right to assign copyright ownership to himself). He then demanded that Ripoff Report take down the copyrighted material. Ripoff Report refused, and the lawyer has now sued Ripoff Report in federal court in Boston for copyright infringement. Setting aside the question of whether transferring copyright ownership of defamatory material is a proper remedy for defamation (this implicates First Amendment issues), and whether the defamation at issue is even entitled to copyright protection (it is very brief and non-creative), can the lawyer use this strategy to obtain removal of the defamation from Ripoff Report?*  *More precisely, can the threat of…

Read the full article →

Fourth Circuit Holds That Federal E-Sign Statute Covers Copyright Assignments

August 1, 2013

Copyright registration requirements can get quirky, and if they aren’t handled properly can result in dismissal of a copyright infringement case (valid registration being a requirement before an infringement case can be filed). An invalid or defective registration can deep-six a copyright plaintiff’s suit on a technicality. The Fourth Circuit addressed a number of issues associated with copyright registration in Metropolitan Regional Information Systems, Inc. v. American Home Realty Network, Inc. (July 17, 2013), one of which is whether the requirement that assignment of a copyright be in writing (17 U.S.C. § 204) may be satisfied by an electronic signature under E-Sign, 15 U.S.C. § 7001. In what appears to be the first appellate decision on the question of whether E-Sign applies to the copyright statute’s signed writing requirement, the Fourth Circuit held that it does, and that the e-signature at issue in this case (a click-wrap agreement), was a valid assignment: The issue we must yet resolve is whether a subscriber, who “clicks yes” in response to MRIS’s electronic TOU prior to uploading copyrighted photographs, has signed a written transfer of the exclusive rights of copyright ownership in those photographs consistent with Section 204(a) [of the Copyright Act]. Although the Copyright Act itself does not contain a definition of a writing or a signature, much less address our specific inquiry, Congress has provided clear guidance on this point elsewhere, in the E-Sign Act….

Read the full article →