Copyright

Failure to Put Infringing and Infringed Work in Evidence Dooms Copyright Case

November 28, 2016

I was surprised when I read the Ninth Circuit’s recent decision in Antonick v. Electronic Arts, Inc. (9th Cir. Nov. 22, 2016). In that case the plaintiff alleged copyright infringement against EA* based on copying of computer source code for the John Madden Football game, but failed to introduce the source code into evidence, choosing instead to rely solely on expert testimony to prove copying. *[footnote] Technically speaking, this was a breach of contract case. However, the contract between Antonick and EA stated that Antonick would receive royalties on the sale of any “derivative work”, as that term is defined under U.S. copyright law. As a result, the parties and the courts applied copyright law to determine whether EA had breached its royalty agreement with Antonick. This was an enormous risk, and it doomed Mr. Antonick’s case. The Ninth Circuit panel held: Antonick’s claims rest on the contention that the source code of the Sega Madden games infringed on the source code for Apple II Madden. But, none of the source code was in evidence. The jury therefore could not compare the works to determine substantial similarity. Expert testimony alone was not sufficient, the court ruled. However, even if expert testimony had been sufficient, Antonick’s case failed: the expert testimony presented by Antonick related to how the games appeared to users (the user interface), not the source code. Antonick’s case was based on…

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Gesmer Updegrove Client Advisory re New DMCA Agent Registration Requirement

November 17, 2016

The U.S. Copyright Office has issued a new rule that has important implications for any website that allows “user generated content” (UGC).  This includes (for example), videos (think Youtube), user reviews (think Amazon or Tripadvisor), and any site that allows user comments. In order to avoid possible claims of copyright infringement based on UGC, website owners rely on the Digital Millennium Copyright Act (the “DMCA”). However, the DMCA imposes strict requirements on website owners, and failure to comply with even one of these requirements will result in the loss of protection. One requirement is that the website register an agent with the Copyright Office. The contact information contained in the registration allows copyright owners to request a “take down” of the copyright owner’s content. The Copyright Office is revamping its agent registration system, and as part of this process it is requiring website owners to re-register their DMCA agents by the end of 2017, and re-register every three years thereafter. Gesmer Updegrove LLP’s Client Advisory on this new rule is embedded in this post, below.  You can also click here to go directly to the pdf file on the firm’s website.

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Redigi – Did Ossenmacher Know He Was Risking Personal Liability?

September 1, 2016

In August, MediaPost reported that Redigi and one of its founders, John Ossenmacher, had filed bankruptcy: “ReDigi recently stipulated to pay Capitol $3.5 million in damages, but also appealed the underlying copyright infringement finding to the 2nd Circuit Court of Appeals. This week, the company said in an appellate filing that it had declared bankruptcy in U.S. District Court for the Southern District of Florida. ReDigi co-founder John Ossenmacher also declared bankruptcy in the same court.” (link) Very likely, this ends the appeal to the Second Circuit. I’ve written about this case several times, and in April 2013 I observed: In addition, Capitol may seek leave of court to add as defendants the individual owners and employees of Redigi that exercised control over or benefited from the infringement.  While Redigi could oppose such as motion as coming too late in the case, a decision would be at the discretion of the judge. As Capitol Records showed in its copyright suit against MP3tunes and Michael Robertson, Capitol is not above suing not only corporate infringers but their founders and owners. (See: The Record Labels Want My Minivan).* The philosophy of the record companies in many copyright cases may best be described as, “never kick a man when he’s down, unless that’s the only way to keep him there.” Capitol may be preparing to put on its steel toe boots in this…

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Melania Trump’s Speech – Plagiarism or Copyright Infringement?

July 25, 2016

The press calls Melania Trump’s use of Michelle Obama’s 2008 nomination speech “plagiarism,” but is it also copyright infringement?  Could the authors or assignees of Michelle’s speech sue Melania and others for copyright infringement? It’s hard to imagine this would ever happen for political and practical reasons (one of which I discuss below). But it’s interesting (fun?) to think about whether a copyright infringement suit against Melania would have legs. In that spirit, consider the following. Ownership. It’s likely that Michelle’s 2008 speech was written by several people, each of whom could be considered a co-author. The Forward reports that the speech was first written by Sarah Hurwitz, but it’s not clear if she was an independent contractor, an employee of the Obama campaign or working for someone else. This could raise ownership issues under the work-for-hire provision of the copyright statute. Setting aside work-for-hire, if several people participated in writing the speech (Hurwitz, Michelle, Barack?), assuming that each of these people meets the stringent requirements for co-authorship under U.S copyright law (independently copyrightable contribution and intent) and hasn’t assigned ownership to someone else, each co-author has independent standing to sue Melania for copyright infringement. It’s not inconceivable that Sarah Hurwitz (or her then-employer) is the sole owner of the copyright in Michelle’s 2008 speech, and Michelle, Barack and the Obama campaign would have no control over a copyright infringement suit. The bottom line is that…

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Kevin Kickstarter Visits His Attorney for an Update on the DMCA Following Capitol Records v. Vimeo

July 15, 2016

The fictional Kevin Kickstarter last met with his lawyer, Mr. Jaggers, in January 2014. Still pondering Mr. Jaggers advice (following the then-recent Second Circuit’s decision in Viacom v. Youtube), he recently heard of the Second Circuit’s new DMCA ruling in Capitol Records v. Vimeo, and he set up an appointment with Mr. Jaggers to get an update on the law. Before listening in on this fictional conversation, a brief recap: YouPostVid is a small “you post, we host” music video website. Kevin Kickstarter is its sole owner. YouPostVid is struggling to meet the confusing  requirements necessary to receive safe harbor protection for copyright infringement under the Digital Millennium Copyright Act (the DMCA).  (See the earlier transcript to be updated on how the DMCA can protect web hosts, aka “service providers”, from copyright liability for works uploaded by users). Two years ago Mr. Jaggers advised Kevin on how to stay on the safe side of the DMCA. But Kevin was frustrated by the confusing law, to the point where he even considered selling his business.  However, demonstrating true grit he has soldiered on and now, more than two years later, he’s back, ready to discuss the latest developments with his lawyer. We are privileged to listen in …. *      *      * Kevin Kickstarter: Wassup Mr. Jaggers? I almost didn’t want to see you today for fear of the latest. It has sure been…

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Redigi Settles on Damages, Likely Heads to Second Circuit

April 7, 2016

A quick update on Capitol Records v. Redigi. The SDNY federal court entered summary judgment against Redigi on liability in March 2013. The last two years have been spent preparing for trial on damages. However, on Monday of this week, on the eve of trial, the parties reported the case settled.  Very likely, this settlement (which is confidential), was engineered to allow the decision on liability to be appealed to the Second Circuit. The way this works is that if the appeal is unsuccessful, the defendants will owe a certain amount of money (stipulated in the settlement agreement, which is confidential/non-public).  If Redigi wins on appeal, it will not owe that money (and, presumably, it will be able to resume offering its service, which appears to be inactive at present).  The settlement agreement likely provides for either outcome. It has always been the expectation that Redigi wanted to get this case to the Second Circuit, so I believe this is likely to be the scenario that is in progress, particularly since there is no permanent injunction issued pursuant to the settlement.  However, without seeing the settlement agreement (or seeing a Notice of Appeal filed by Redigi), we can’t be 100% certain that the case will go to the Second Circuit. Stay tuned ….

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CopyrightX: Kagan White House File Shows Administration Split in Lotus v. Borland

February 25, 2016

Several of the CopyrightX teaching fellows used the 1990s Lotus v. Borland copyright case in their classes last week. In an excellent Case Study, Professor Fisher and TF/Berkman Center intern Ben Sobel dissected the background and holdings in this complex case. An interesting aspect of the case study was the use of documents that came to light during Elena Kagan’s Supreme Court nomination process. In 1995 now-Justice Kagan was Associate White House Counsel, and was involved in the administration’s debate of whether to support Lotus (which had prevailed before Massachusetts U.S. District Court Judge Robert Keeton), or Borland (which won before the First Circuit). Judge Keeton had held the Lotus 1-2-3 menu hierarchy copyrightable, and the First Circuit had reversed, holding it to be an uncopyrightable method of operation under 17 U.S.C. sec. 102(b). Lotus appealed to the Supreme Court, which granted cert. The question the Solicitor General’s office faced in December 1995 was whether to support Borland or Lotus, and on what grounds. The policy issues were impacted by the fact that by 1995 Microsoft’s Excel spreadsheet program had an 80% market share, leaving Borland’s Quattro Pro and Lotus 1-2-3 in the dust. Kagan’s files show the extent to which the administration was internally divided over this issue. The DOJ Antitrust Division (headed by Joel Klein, who led the DOJ’s antitrust suit against Microsoft a few years later), supported Borland, and wanted to argue…

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CopyrightX Meets Sony, DMCA

February 16, 2016

I’m privileged to be a CopyrightX teaching fellow this year, and this week CopyrightX met the real world – in the form of an encounter with Sony Music and the DMCA. Professor William Fisher’s CopyrightX lecture 3.3, The Subject Matter of Copyright: Music, contains audio clips of Bob Dylan’s All Along the Watchtower played by Dylan, Hendrix and Stevie Ray Vaughn. The course is making the point, with musical illustrations, that U.S. copyright law allows cover versions, so long as the artist making the cover pays the required compulsory license, and, that the cover version can depart quite significantly from the “fundamental character” of the original. Unsurprisingly, Youtube’s automated ContentID system, cannot distinguish fair use from illegal use. Presumably, a “put back” notice will resolve this little contretemps. Techdirt’s Mike Masnick discusses the whole episode in more detail, here. This is not the first time a Harvard law professor has been the subject of a DMCA takedown of an educational fair use.  See my August 2013 post, Liberation Music Throws Lessig a Meatball Pitch in “Lisztomania” DMCA Takedown Suit. Update: On February 17, 2016 Youtube restored the video.

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Lets Go Crazy! The Dancing Baby, the DMCA and Copyright Fair Use

September 16, 2015

It’s not often that a case involving a 29 second video of toddlers cycling around on a kitchen floor goes to a federal court of appeals, much less results in an important,  precedent-setting copyright decision. But that is exactly what happened in Lenz v. Universal Music Corp. The cases arises from an issue inherent in the Digital Millennium Copyright Act. The DMCA allows copyright owners to request the “takedown” of a post that uses infringing content. But, what does the copyright owner have to do to determine, first, whether fair use applies? Does it need to do anything at all? This question has finally been decided by the Ninth Circuit in a much-anticipated decision issued on September 14, 2015. The case had inauspicious beginnings. In 2007 Stephanie Lenz posted to YouTube a 29 second video of her toddler son cycling around the kitchen, with Prince’s song “Let’s Go Crazy” playing in the background. Universal sent a DMCA takedown notice to YouTube, but Ms. Lenz contended her use of the song was fair use, and therefore was non-infringing. Eventually the dispute made its way to federal court in California, with Ms. Lenz asserting that her use of the song was protected by fair use, and that Universal had failed to take fair use into consideration before requesting takedown of her video. The issue before the court was whether, before sending a DMCA takedown…

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No, You May Not Copyright a Chicken Sandwich

September 1, 2015

One of the hoariest chestnuts of copyright law is that a recipe is not copyrightable. Seemingly unaware of this – or in outright defiance of the law – the plaintiffs in Lorenza v. South American Restaurants Corp. argued to the contrary.  Specifically, the plaintiffs claimed copyright in a “Pechu Sandwich” recipe consisting of”fried chicken breast patty, lettuce, tomato, American cheese, and garlic mayonnaise on a bun.” The complaint contained no allegation that the “recipe” for the sandwich was in a form of expression beyond that of a list of ingredients. The district court dismissed the copyright claim, and the First Circuit made short work of affirming: Contrary to [plaintiff’s] protests on appeal, the district court properly determined that a chicken sandwich is not eligible for copyright protection. This makes good sense; . . .. A recipe — or any instructions — listing the combination of chicken, lettuce, tomato, cheese, and mayonnaise on a bun to create a sandwich is quite plainly not a copyrightable work. The only surprise in this decision is that the First Circuit did not award the defendants costs or attorney’s fees incurred in defending this appeal.

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Will the Supreme Court Take Google’s Appeal in the Android-Java Copyright Case?

January 14, 2015

The fact that the Supreme Court has asked the Obama Administration (via the Office of the Solicitor General) to comment on Google’s application for certiorari in Oracle v. Google* has focused renewed interest on this case – not that it needs it. The case, if the Supreme Court accepts it, could be a replay of Lotus v. Borland, an important software copyright case the Supreme Court tried but failed to decide in 1996, when the Court deadlocked 4-4 (one justice abstaining). For detailed procedural and substantive back ground on this case see these earlier posts: How Google Could Lose on Appeal; Oral Argument in Oracle v. Google: A Setback for Google?; CAFC Reverses Judge Alsup – Java API Declaring Code Held Copyrightable; Google Rolls the Dice, Files Cert Petition in Oracle Copyright Case. I also made a presentation to the Boston Bar Association on this case before the CAFC decision, slides here. The issue is this: computer software — both source code and object code — is protected by copyright law so long as it meets copyright’s statutory requirements, the most important of which, for purposes of the case discussed in this post, is originality. At issue are the 7,000 lines of “declaring code” of Oracle’s Java API software. This software was copied by Google when it implemented the Android smartphone operating system. The Java API declaring code clearly satisfies copyright law’s requirement of “originality.” The issue,…

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Flo & Eddie v. Sirius XM – The Other Shoe Drops on the East Coast

November 19, 2014

On October 22nd I wrote a detailed post discussing Flo & Eddie’s (owner of the Turtles’ pre-1972 sound recordings) suit against Sirius XM, and specifically the holding of a California federal district court that Sirius’s satellite radio broadcast and webcasting of these recordings was subject to a claim under California state law. (See The Kerfuffle Over Copyrights in Pre-1972 Sound Recordings). As I noted in that post, when sound recordings were added to the federal Copyright Act in 1972 pre-1972 sound recordings were not included – these works were not preempted by the federal copyright statute, and were left to be regulated under state law until (drum roll ….) 2067. I also mentioned that Flo & Eddie had a separate case pending in federal court in New York, claiming copyright infringement of their pre-1972 recordings under New York common law. On November 14, 2014, the federal judge handling the New York case issued a decision similar to that reached by the court in California. Although, unlike California, New York does not have a specific statute that protects the public performance right in pre-1972 sound recordings, the court upheld Flo & Eddie’s suit under pre-1972 New York state copyright common law, which protects “any original material product of intellectual labor” in which the artist invests “time, effort, money, and great skill.” Clearly, a great deal of pre-1972 music satisfies that test. The court rejected…

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