October 2014

Eleventh Circuit’s Fair Use Decision In Georgia State Leaves Uncertainty Over Use of Excerpts in University Course Packs

October 28, 2014

Academia is abuzz with reactions to the Eleventh Circuit’s copyright fair use decision in  Cambridge University Press v. Patton. This is, as one blogger described it, “the most important copyright and educational fair use case in recent memory.” The decision highlights, yet again, the truth behind Professor Nimmer’s observations that fair use is said to be “the most troublesome [area] in the whole of copyright law” and has been called “so flexible as virtually to defy definition.” At issue is Georgia State University’s right to scan and distribute to students, without payment, digital course packs comprised of excerpts from scholarly books and journals. The plaintiffs — several publishing houses — alleged 74 specific instances of infringement. In a 350 page ruling issued in May 2012 the district court court found infringement in only 5 of these cases, handing the university a significant victory and awarding it several million dollars in attorney’s fees. The U.S. Court of Appeals for the Eleventh Circuit (which covers federal appeals in Alabama, Florida and Georgia) reversed the district court, issuing its own mammoth opinion on October 17, 2014, (129 pages including the 16 pages of concurring opinion by one of the three judges on the panel). Needless to say, this case is of great importance to colleges and universities that want to provide their students with course packs without having to purchase “permissions” from publishers. It is, in effect, a test…

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The Kerfuffle Over Copyrights in Pre-1972 Sound Recordings

October 22, 2014

If you are confused by the news that a California federal court has ruled that satellite broadcaster Sirius XM is liable under California state law for streaming pre-1972 sound recordings by The Turtles,* you are not alone. The issues in this case prove, once again, Mark Twain’s complaint that “only one thing is impossible for God: To find any sense in any copyright law on the planet.” To appreciate this bizarre situation you may need to be reminded of a few basic principles of our arcane copyright laws: The copyright in a musical work (aka a musical composition) and a “sound recording” of that work may be separately owned. John Lennon’s estate may own the copyright to the musical work Imagine, but Ray Charles, Elton John and Queen (or their record labels) own the copyrights in their sound recordings of the song. Thus, a sound recording may give rise to legal rights under two separate copyrights with two different owners. When Congress passed the 1976 Copyright Act, the new federal law preempted most, but not all, state copyright laws. One area Congress expressly left untouched was copyright rights in the public performance of  sound recordings made before February 15, 1972. The public performance right for sound recordings will not become subject to federal law until February 15, 2067 (go figure). The federal vacuum for pre-1972 sound recordings left by the 1976 Act gives rise to an argument that…

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A Contractual Acceptance Period is a Vendor’s Best Friend

October 15, 2014

I’ve often advised vendor-clients that one of the best ways to protect themselves is to include an acceptance clause in their agreements. This can be accomplished either through an explicit acceptance clause or a short warranty period, which can function as a de facto acceptance clause. For some reason, many customers seem to forget about the acceptance clause, giving the vendor a strong defense to a claim of breach. This is what happened in Samia v. MRI Software, decided by Massachusetts federal district court judge Nathaniel Gorton on October 9, 2014. Samia purchased computer software, consulting and technical support from MRI. The License and Services Agreement provided for a 30 day warranty period, during which Samia could notify MRI of any non-conformities and trigger a “repair-and-replacement” clause. This was, in effect, a 30 day acceptance period – Samia had 30 days to vet the software and notify MRI of any defects. This was the sole and exclusive remedy, and all other remedies were disclaimed. The contract contained a separate provision addressing defects related to custom work authorizations. Here, Samia had a 30 day acceptance period during which it could “test any project elements … and notify [MRI] of all potential deficiencies relative to the applicable specification for such work.” To make a long story short, Samia claimed to have found non-conformities and deficiencies, but it failed to given written notice to…

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Two Recent Decisions Show the Strengths and Limitations of the CDA

October 10, 2014

Many observers have commented that if they had to identify one law that has had the greatest impact in encouraging the growth of the Internet, they would chose the Communications Decency Act  (“CDA”) (47 USC § 230).  Under the CDA (also often referred to as “Section 230”) web sites are not liable for user submitted content. As a practical matter, in most cases this means Internet providers are not liable for defamation posted by users (many of whom are anonymous or judgment-proof).*  *[note] The DMCA, not the CDA, provides Internet providers with safe harbors for claims of copyright infringement based on user submitted content. Two recent cases illustrate the reach and limitations of this law. In one case the CDA was held to protect the website owner from liability for defamation. In the other, the law did not protect the website from potential liability based on negligence. Jones v. Dirty World The CDA provides immunity from information provided by users. However, if a site itself is the “content provider” — for example, the author of defamation —  it is legally responsible for the publication. In other words, the CDA does not give Internet providers or web site owners license to engage in defamation, only immunity when their users do so. Under the CDA the term “content provider” is defined as a person “that is responsible, in whole or in part, for the creation or…

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Google Rolls the Dice, Files Cert Petition in Oracle Copyright Case

October 9, 2014

Google has filed a certiorari petition with the Supreme Court, asking it to review and reverse the Federal Circuit’s May 9, 2014 decision holding that the declaring code of Oracle’s Java API software is not copyrightable. I have written about this case on several occasions, most recently on May 10, 2014 (CAFC Reverses Judge Alsup – Java API Declaring Code Held Copyrightable). Google framed the “question presented” (framing the question in such a way as to catch the interest of the court is an art form in itself) as follows: Whether copyright protection extends to all elements of an original work of computer software, including a system or method of operation, that an author could have written in more than one way. The Supreme Court accepts review of approximately 1% of of cases appealed to it, and therefore lawyers spend a great deal of time and effort to make their cases as significant and interesting as possible. Here, Google asks the Court to take the case in order to decide an issue the Court deadlocked on in 1996 in Lotus v. Borland. Google’s brief states: In 1995, this Court granted certiorari in Lotus Development Corp. v. Borland International, Inc., 516 U.S. 233 (1996), to resolve the question presented here. The First Circuit had held―consistent with the plain language of 17 U.S.C. § 102(b) but in conflict with other courts of appeals―that methods of operation…

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Grooveshark’s Lesson: Better to Ask Permission Than Forgiveness

October 1, 2014

One thing that any online “music locker” company that relies on third-party content and hopes to benefit from the DMCA safe harbor should know is that employees should not upload copyrighted content to the service. Nothing will blow up a DMCA defense faster. It seems that Grooveshark (legally “Escape Media”), didn’t get this message. As Joshua Greenberg, one of Grooveshark’s co-founders wrote to employees in 2007: Download as many MP3′s as possible, and add them to the folders you’re sharing on Grooveshark. Some of us are setting up special ‘seed points’ to house tens or even hundreds of thousands of files, but we can’t do this alone… There is no reason why ANYONE in the company should not be able to do this, and I expect everyone to have this done by Monday… IF I DON’T HAVE AN EMAIL FROM YOU IN MY INBOX BY MONDAY, YOU’RE ON MY OFFICIAL SHIT LIST. Strong stuff, and not the kind of thing you want to have pop up in discovery. Grooveshark has been the target of multiple industry lawsuits. Two, in particular, are an action in SDNY in which the court, on September 29, 2014, entered summary judgment against Grooveshark, and a New York state action alleging infringement of pre-1972 sounds recordings, which at present are not covered by federal copyright law. However, it is difficult to see how the September 29th decision…

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