Copyright

"Copyright in the Age of YouTube"

April 8, 2009

Great article by Steven Seidenberg in the February 2009 ABA Journal on the legal tensions between user-generated content sites (UGC, in the lingo) and the content owners under the “notice and take down” regime established by the DMCA. Interesting fact from the article: On YouTube alone ten hours of video content are put online every minute of every day, more than 250,000 clips per day. Link to article. Cases and sites mentioned in the article: Lenz v. Universal Music Corp Io Group, Inc. v. Veoh Networks, Inc. Viacom page on the YouTube case

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Podcast Interview of Professor Charles Nesson: Why Statutory Damages Under the Copyright Law are Unconstitutional in the Tenenbaum Case

April 7, 2009

As everyone in the copyright law community knows by now, Harvard Law School Professor Charles Nesson, and a team of HLS students, are defending Joel Tenenbaum in an RIAA action. Nesson’s primary argument is that the copyright statute’s statutory (aka punitive) damages of as much as $150,000 per infringement is unconstitutional, least as applied to Tenenbaum who downloaded seven songs for personal use, not profit. Over $1 million in damages ($150,000 x 7) seems a bit much for such a violation, and Nesson argues that punitive damages of this magnitiude are unconstitutional. Nesson is courteously interviewed by Professor Doug Lichtman on the Intellectual Property Colloquium podcast here. Apart from the legal issue raised by Professor Nesson, this case has a great deal of humor in it, not the least of which is that Nesson and company are defending Joel Tenenbaum.  This is kind of like picking on a little kid on the playground, who then shows up with The Hulk, who just happens to be his big brother and refuses to go away until he’s fought the bully to the death. Oh, and Nesson’s team is “immortal” for all practical purposes – I suspect there’s nothing that Nesson would like more than to take the constitutional challenge to the Court of Appeals and then the Supreme Court.  I doubt that the RIAA ever expected this, but they can’t exactly back…

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First Circuit Reverses Judge Young in Situation Management Case

March 23, 2009

Are business training materials sufficiently original to be protected by copyright law? The answer, of course, is “it depends.” First and foremost it depends on the materials themselves, but it also depends on the judge. In Situation Management v. ASP, Massachusetts U.S. District Court Judge William Young thought the training materials created by the plaintiff, Situation Management, were not entitled to copyright protection. (I posted on this case when Judge Young’s decisionwas issued – click here for earlier post). Judge Young was not complimentary toward Situation Management’s training materials. In the process of holding that the materials were not entitled to copyright protection he described them as nothing more than “a summary of common-sense communication skills . . . “fodder for sardonic workplace humor” and as “aggressively vapid”. He observed that “the works at issue are so dominated by nonprotectable material that it is impossible to reduce the work to a copyrightable essence or structure.” He found that the materials were filled with generalizations, platitudes, and observations of the obvious” . . . [contained] “not-so-stunning revelation[s],” and taught “[a]t their creative zenith, . . . common-sense communication skills.” Not finished, he observed that “these works exemplify the sorts of training programs that serve as fodder for sardonic workplace humor that has given rise to the popular television show The Office and the movie Office Space. They are aggressively vapid —…

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For the Want of a Nail the Kingdom was Lost – Failure to Get Clear Title to IP, Redux

February 11, 2009

In June 2007 I wrote a post discussing two cases in which clients of our firm had, before they became clients, failed to get written assignments of copyright ownership from independent contractors who wrote software for them. Without a written assignment the contractors were able to claim ownership of the works, and make life very unpleasant for their customers, who may have assumed that since they paid for this work the code belonged to them. A case decided last Fall shows what happens when this problem is taken to an extreme. In this case the programmer-contractor claimed ownership, and the value he assigned was in the millions of dollars. The customer was forced to go through a federal court lawsuit that involved discovery (expensive), summary judgment (quite expensive), and finally appeal to the Ninth Circuit Court of Appeals (very expensive), only to finally have a court declare that it owned an “unlimited, non-exclusive, implied license to use, modify and retain” the source code written by the contractor. While this case had a happy ending for the customer, the entire expense, as well as the risk of a loss, could have been avoided if the customer had a piece of paper with only one sentence, signed by the contractor: “I hereby assign to [customer] all right, title and interest to all intellectual property developed by [contractor] during the course of any…

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Rambus Files Its Opposition to Cert.; Gatehouse/New York Times Copyright Case Settles

January 28, 2009

[Update: the FTC did file a reply brief.  Link here] All the briefs are in on the FTC petition for cert in its antitrust case against Rambus, (unless the FTC decides to file a reply brief, which is unlikely to change things much). I’ve added the Rambus opposition to the Rambus Group page on scribd.com, here. Now its time for the antitrust community to hold its breath and see whether the Court takes the case. Some knowledgeable commentators have opined that FTC/Rambus case has the best chance of any antitrust case obtaining review this year, but that plus a dime will get you …. well, nothing I guess. If the petition is allowed, it will be very exciting times for antitrust and standards setting law and policy wonks. In federal court in Boston the Gatehouse Media v. New York Times case (described in these two (1, 2) earlier posts) has settled, as I suspected it would. The settlement agreement (or a preliminary agreement which is binding in the event a “definitive agreement” is not reached), is on scribd.com, here. It appears that this agreement was not intended to be made public (at least not yet), but apparently someone leaked it, so it’s public now. As I read this, Gatehouse prevailed, hands down over the NYT/Boston.com. Gatehouse will erect “technical solutions” to prevent Boston.com from copying the Gatehouse original content, and…

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"Talkin ‘Bout My [Internet] Generation" and Gatehouse Media says, "Give Us A Break Judge, the Registration is in the Mail"

January 16, 2009

Some interesting goings on on the copyright front in D. Mass. are worth a brief mention. First, U.S. District Court Judge Nancy Gertner has ruled that proceedings in the RIAA’s case against Joel Tenenbaum, alleging illegal downloading, may be “webcast” by the Berkman Center. Whether the actual trial will be webcast is undecided as yet, but upcoming in-court motions will be. The audio-visual will be streamed live by the Berkman Center at no charge to viewers. Tune in on January 22nd to see the circus.  [Update: the First Circuit held that the trial could not be webcast]. I find the following quote from the decision to be quite humorous: In many ways, this case is about the so-called Internet Generation — the generation that has grown up with computer technology in general, and the Internet in particular, as commonplace. It is reportedly a generation that does not read newspapers or watch the evening news, but gets its information largely, if not almost exclusively, over the Internet. . . Consistent with the nature of these file-sharing cases, and the identity of so many of the Defendants, this case is one that has already garnered substantial attention on the Internet. While the Plaintiffs object to the narrowcasting of this proceeding, . . . their objections are curious. At previous hearings and status conferences, the Plaintiffs have represented that they initiated these lawsuits…

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Gatehouse Media v. The New York Times: Ready for Trial, Counsel?

January 6, 2009

When I discussed the copyright case Gatehouse Media v. The New York Times over the weekend I hadn’t reviewed the court docket, and hadn’t been aware that Judge William Young had pulled the trick that he is famous for (at least locally): when a party requests a preliminary injunction, he responds by ordering an expedited trial. And I do mean expedited. The case was filed on December 22, 2008. Docket entry 13, issued the same day, states in relevant part (cleaned up a bit for readability): Electronic Clerk’s Notes for proceedings held before Judge William G. Young: Motion Hearing held on 12/22/2008 re MOTION for Preliminary Injunction and MOTION for Temporary Restraining Order filed by Gatehouse Media Massachusetts, Inc. The Court rules denying Motion for TRO; because the matter will be collapsed with a trial on the merits. The Court is reserving ruling on Motion for Preliminary Injunction; ( Jury Trial set for THE RUNNING TRIAL LIST AS OF 1/5/2009 09:00 AM before Judge William G. Young.); Counsel are to cooperate with one another re: discovery. Counsel are to contact the clerk as to the schedule. A 4 week jury trial is scheduled for Jan 5 at this time.  If counsel settle the case, a phone call is all that is necessary. Translation – be ready for trial at 9:00 a.m. Monday, January 5, 2009, nine business days after suit…

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Massachusetts Federal District Court Presented With Lawsuit Involving Copying of Online Newspaper Headlines – Gatehouse Media v. The New York Times

January 3, 2009

An interesting copyright case has been filed in Federal District Court in Massachusetts. In Gatehouse Media v. The New York Times, Gatehouse Media contends that the Times has infringed its copyrights by copying the headlines and first sentences from Gatehouses’ local online newspapers, and displaying them verbatim on a Boston.com website (the New York Times owns Boston.com). To see this in action click here and your browser should open a page on Boston.com labeled “Needham.” Scrolling down the center column of the page, you’ll see news “headlines”, followed by the first sentence of each story. If you click on one of the headlines you should be taken to the “WickedLocalNeedham” web page and presented with the full article. If you repeat this a few times with other headlines, you’ll see that the Boston.com site has copied the headlines, and the first sentences of the stories, from the WickedLocal site, which is owned by Gatehouse Media.  Most likely, this is accomplished “automatically” by the Boston.com computers, which “scrape” the headlines and “ledes” from the WickedLocal site and “aggregate” them on the Boston.com site. At present, the Boston.com “Your Town” site covers three towns in this way – Needham, Newton and Waltham. All three Boston.com web pages use the headlines and first sentences from articles owned by Gatehouse Media. Is this permissible, or is Boston.com infringing copyrights owned by Gatehouse?  The answer to…

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Creative Commons Celebrates Its Sixth Anniversary

December 20, 2008

My partners Andy Updegrove, Peter Moldave and I attended this celebration of the sixth anniversary of Creative Commons at Harvard the evening of Friday, December 13, 2008. We could have waited a few days and watched the event on YouTube, but then we would have missed the cold weather, the greatest ice storm in modern Massachusetts history, the difficult parking and, well …. It was actually a great deal of fun, and looking around the room at the 150 or so people that attended there appeared to be relatively few lawyers, a fact that made us feel superior, as if we were really part of the Harvard cognoscenti, which of course we aren’t. (How could we tell there weren’t many lawyers there? – the number of people who had that useless, predatory look common to lawyers was minimal.) Speakers were: Jonathan Zittrain, moderator, panelists James Boyle, Lawrence Lessig and Molly S. Van Houweling, and Special Guests Elena Kagan and Charles Nesson.

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"Excuse me, where is the Google Terminal?"

October 31, 2008

As expected, the proposed Google Book Search settlement has led to a lot of scrutiny, criticism and questions. Here is a link to the 125 page Settlement Agreement(without attachments; pdf). Here is a link to the page that holds the full agreement which, with attachments, is over 300 pages long). Both Larry Lessig (“IMHO, this is a good deal that could be the basis for something really fantastic”) and Wade Roush(“Book Search settlement contains some major disappointments”) have taken a first crack at trying to decipher this settlement (Roush – “exhaustive, labyrinthine”) and figure out who, amongst the many stakeholders, are the winners and losers. Here is a particularly interesting paragraph from Wade Roush’s article: . . . [T]he devil . . . is in the details. If you read the agreement, you’ll see that it restricts each public library to exactly one Google terminal. Tens of millions of books online—but at any given moment, no more than 16,543 people are allowed to read them without paying. (That’s how many public libraries and branches there are in the United States, according to the American Library Association—one for every 18,500 Americans.) So, America’s librarians will be hearing these words for generations to come: “Excuse me, where is the Google Terminal?”  Or perhaps the librarians will receive phone calls asking: “Hi, how long is the line for the Google Terminal?” Much more…

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Google Wins (I mean settles) Google Book Search Copyright Suits

October 29, 2008

Google said Tuesday that it has agreed to pay $125 million to settle the copyright litigation brought by book authors and publishers over Google’s project to digitize and show snippets of in-copyright books without the explicit permission of copyright owners. (See 1 2 3 for more on Google Book Search). $125 million? Peanuts to Google. Less than peanuts. We don’t know all the terms and possible restrictions yet, but it sounds like this is a huge win for Google, which is now free to continue its project of digitizing the world’s books (or at least those under the control of the settling parties) without the threat of injunction. Google press release here. ****************** [Update (10/29/08)]: Google explains here how it expects this settlement to affect Google Book Search. Some excerpts from that page are (emphasis added) : Once approved, this agreement will allow us and our publishing industry partners to greatly expand the number of books that you can find, preview and buy through Google. … Once this agreement has been approved, you’ll be able to purchase full online access to millions of books. This means you can read an entire book from any Internet-connected computer, simply by logging in to your Book Search account, and it will remain on your electronic bookshelf, so you can come back and access it whenever you want in the future. … Because this…

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11th Circuit: Courts Lack Jurisdiction Over Declaratory Judgment Action for Noninfringement of Copyright, Where Defendant's Work Not Registered

October 23, 2008

The 11th Circuit has ruled on a somewhat obscure but interesting issue of federal jurisdiction in copyright cases. The Declaratory Judgment Act allows one who has been threatened with a suit to file suit first, and ask for a “declaration” of non-liability. In other words, the declaratory judgment makes one who fears becoming a defendant the procedural plaintiff. The roles of “plaintiff” and “defendant” are reversed, but the underlying issue remains the same. Declaratory judgment is simply a way that a threatened party who is unwilling to live with the risk of a lawsuit at some uncertain point in the future can force the issue. However, the Declaratory Judgment Act is procedural; it does not give rise to federal court jurisdiction. This can create a problem for the declaratory judgment plaintiff, as demonstrated in the 11th Circuit case. Registration with the U.S. Copyright Office is a jurisdictional prerequisite to a copyright infringement suit – no registration, no jurisdiction. What if you are threatened with copyright infringement, but the owner of the work who has threatened you has not registered the work? According to the 11th Circuit, you’re out of luck – the federal courts lack jurisdiction, and you cannot seek declaratory judgment. And, since the federal courts have exclusive jurisdiction over copyright claims you can’t seek relief in state court either. You just have to wait until the party threatening…

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