April 2013

The recording companies have consistently maintained that the Digital Millennium Copyright Act’s (DMCA) notice-and-takedown regime does not apply to pre-1972 works. However, the law on this arcane issue has been scarce. In Capital Records v. MP3tunes (SDNY 2011), the court ruled that pre-1972 works were covered by the DMCA. After this decision the recording companies decided to make their argument in state court. Their strategy paid off – the New York State intermediate appellate court (the New York Supreme Court, Appellate Division), has issued a decision contrary to MP3tunes. In UMG Recordings v. Escape Media (often referred to as the Grooveshark* case), the court held that “Congress intended for the DMCA only to apply to post-1972 works.”

*Grooveshark is a music streaming service that allows users to upload sound recordings.  According to Wikipedia, Grooveshark streams over one billion sound files a month.

The Grooveshark case arises out of two legal oddities: first, Congress did not extend copyright protection to “sound recording” until it passed the 1972 Copyright Act (the effective date of protection being February 15, 1972); and second, before 1972 copyright was subject to state law.… Read the full article

Second Circuit Copyright Decision Vindicates Richard Prince's "Appropriation Art"

Assume I were to take a well-known, in-copyright work of art, modify it in a variety of ways and publish the results as a coffee table book. To make this thought experiment easy, assume that the Statute of Liberty is covered by a U.S. copyright registration today—in fact, the Statue of Liberty was registered with the U.S. Copyright Office in 1876, but its registration has long-since expired. Assume I took 30 photographs of the Statue and published my book with the images modified in various ways. For example, I created collages, altered the face of the Statue and superimposed various objects on the Statue. Instead of holding a torch and a tablet, in one picture she is holding a photo of the head of Osama Bin Laden, and in anther she is holding a day-glo image of the World Trade Center buildings. In some cases I used only parts of the Statue, and in others I painted objects that obscured the face.… Read the full article

What Happens When You Get A Federal District Court Judge Really, Really Mad In a Civil Case

I haven’t written a post that falls in the “what were they thinking” category for quite a while, but you don’t see this very often.

In Angiodynamics v. Biolitec AG Massachusetts federal district court judge Michael Ponsor (pictured left) entered a preliminary injunction forbidding the defendant from entering into a merger with its German subsidiary corporation, so as not to put the company’s assets outside the reach of the plaintiff. In addition to corporate defendants, the corporate defendant’s CEO, Wolfgang Neuberger, was named as an individual defendant.

The injunction order was appealed, and the First Circuit upheld the injunction. The defendant then went forward with the merger in direct violation of the court’s order.

When Judge Ponsor received the plaintiff’s motion for contempt he ordered that Mr. Neuberger appear at the hearing on that motion. Neuberger declined to attend on the grounds that he was “afraid that the Court may .… Read the full article

YouTube Scores Big Victory on Remand in Viacom DMCA Copyright Case

The copyright content industry has launched two no-holds-barred legal challenges against non-piratical websites that host third-party videos. That is, service providers whose intent is not obviously to induce or encourage copyright infringement and that follow the “notice and take down” rules of the Digital Millennium Copyright Act (DMCA).  Until last Thursday the outcome had been a complete loss for the content industry in one case, UMG v. Veoh (9th Cir. 2013). In the second case, Viacom v. YouTube, the content owners were hanging on by their fingernails following an adverse summary judgment ruling by Southern District of  New York District Court Judge Louis Stanton in 2010, followed by a largely (but not entirely) affirming decision by the Second Circuit in 2012. However, following Judge Stanton’s post-remand decision, issued on April 18, 2013, the content owners are left with a complete loss in the second case as well. Absent another appeal to the Second Circuit, Viacom v.Read the full article