December 2013

Viacom v. YouTube, Mother of All DMCA Copyright Cases (part 1 of 2-part post)

December 28, 2013

[This is the first of what will be a two-part post on Viacom v. YouTube] [Update: Viacom v. Youtube was settled before the Second Circuit rendered its decision on the appeal discussed in this post] It seems unlikely that the drafters of the DMCA — a law enacted in 1998, the same year Google was incorporated — anticipated how difficult the courts would find application of this complex, near-5,000-word statute. There may be no better case to illustrate this than Viacom’s long-running suit against YouTube (a company owned by Google). As of November 2013 briefs had been filed in the second appeal in Viacom v. YouTube, and the case is likely to be scheduled for oral argument before the Second Circuit sometime in the first few months of 2014.* *[Note]: I have written about Viacom v. YouTube several times during its long history (the case was filed in 2007). See, e.g., YouTube Scores Big Victory on Remand in Viacom DMCA Copyright Case; Second Circuit to YouTube (i.e., Google): Remanded for Trial; Decision in Viacom v. YouTube: Dog Bites Man (Mark Cuban was wrong). To say that the appeal briefs are a hard slog would be an understatement. The parties and the courts have immersed themselves in legal obscurities that will be of almost no interest to most non-lawyers, and which are likely to be incomprehensible to lawyers unwilling to bury themselves in the nuances of the…

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Guest Post: There Is No Substitute For Taking a Risk

December 26, 2013

“ In actual life, every great enterprise begins with and takes its first step forward in faith. ” — August Wilhelm von Schlegel ____________________ Now that Christmas is over its time to start thinking about 2014, and that means New Year’s resolutions.  The guest post below was written by my partner Jonathan Draluck and published last month on Gesmer Updegrove LLP’s BostInno channel. Jonathan didn’t write this with New Year’s resolutions in mind, but it struck me as inspirational as we approach 2014. Maybe your New Year’s resolution will be, as he writes below, to conquer your personal fears and —  “take the leap.”  *  *  *  * School is nice.  Sometimes necessary. But no education beats the school of hard knocks.  All the theory and fancy degrees in the world won’t get you anywhere unless you are willing to take what you have learned and add some elbow grease. You may not even know what melts your butter unless you’ve had a first-hand glimpse outside the frying pan.  Hot in the Boston venture capital scene two decades ago, my colleague Andy Updegrove worked on enough deals to pique his aptitude in technology.  He began taking an interest in the computer standards being adopted by the government.  He wrote about it and then rallied loyal readers who most assuredly had not given it much thought.  He is now an expert on setting standards and represents more consortia…

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Crouch Quoting Chisum on CLS Bank

December 11, 2013

I can’t resist quoting Dennis Crouch, quoting Don Chisum, on the the Supreme Court’s pending review of the CLS Bank case: The Supreme Court often intervenes to resolve splits among the various courts of appeal. Here a split exists within a circuit that the circuit itself is unable to resolve. The circuit judges’ varying interpretations of a body of recent and not-so-recent Supreme Court precedent riddled with fuzzy language and inconsistent results caused the split. Now, the Court has the opportunity (and the obligation) to clean up a mess that is, to a major extent, of its own making.

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Oral Argument in Oracle v. Google: A Setback for Google?

December 10, 2013

On November 26th I published a post titled “Oracle v. Google: How Google Could Lose on Appeal.” Oral argument before the Court of Appeals for the Federal Circuit was held on December 4, 2013, and a recording of the oral argument has been released. Based on comments and questions from the bench, the hearing went poorly for Google. The very  points I raised in my post were raised by the judges in questions to the attorneys for the parties. As I commented in my post, District Court Judge Alsup’s order ruling that the Java declaring code copied by Google was not copyrightable was vulnerable because Judge Alsup seemed to rely on factors and cases relevant to copyright fair use (specifically interoperability) to justify a finding that the Java declaring code was not protected by copyright. And never, the CAFC judges rightly observed, may the two mix. It is quite correct to say (as Oracle has argued) that a finding that a work is not protected by copyright must stand on grounds independent from a finding that copying was permitted by fair use. The Federal Circuit seemed eager to seize on this confusion in Judge Alsup’s decision. To wit (comments from the CAFC judges): “As I read the trial judge’s opinion I’m confused about how he viewed fair use because it seems to me he was merging it with the question of…

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The Authors Guild v. Google and Fair Use

December 4, 2013

 “[Google Books] could be the most important contribution to the spread of knowledge since Jefferson dreamed of national libraries. It is an astonishing opportunity to revive our cultural past, and make it accessible.” – Lawrence Lessig “The scale of Google’s plans boggles the mind.”  Prof. James Grimmelmann ” Letting Google organize all of the world’s information makes as much sense as letting Halliburton organize all of the world’s oil.” Evgeny Morozov Be admonished: of making many books there is no end; and much study is a weariness of the flesh – Ecclesiastes 12:12 ________________________ As most people with an interest in copyright law, book publishing or Google are aware, Google has undertaken a Herculean task. It’s goal is to digitize and index every word in the world’s books. All 130 million of them, from the Dead Sea Scrolls to the most recent Jack Reacher book by Lee Childs. As to the U.S. books it will provide electronic access differentially, depending on whether the book is in-copyright or in the public domain. This undertaking has caused consternation in some corners of the publishing industry, leading to copyright infringement lawsuits against Google. The most important of these cases  — The Authors Guild v. Google — has been pending in the Federal District Court for the Southern District of New York since 2005, a near-Dickensian eight years. (The EFF summarizes the procedural background of the…

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