January 2014

Mass Law Blog Update, Week Ending January 31, 2014

January 31, 2014

House hearings on copyright reform continue. January 28, 2014 focused on the scope of fair use. Paper submissions from the five panel members are collected here. Harvard Law School professor William Fisher’s 2014 CopyrightX online course has begun. If you are not one of the 500 students selected to participated in the course, you can still audit the course. First week lecture is  on “The Foundations of Copyright Law.” CopyrightX Prince’s N. D. Cal. lawsuit against “Doe” defendants who have created links to infringing material. The suit was withdrawn by the end of the week. Court sets aside jury verdict finding copyright infringement of source code under “virtually identical” standard of comparison. Antonik v. Electronic Arts, N. D. Cal. Audio recording of Swatch earnings classified as fair use, and therefore not copyright infringement. Swatch Group v. Bloomberg Copyright owner sues YouTube following user-requested “put back” request. Would seem to be a meritless claim, since YouTube is following DMCA, and only proper defendant is the user.  Sicre v. YouTube Evan Brown discusses a new CFAA case out of the the Norther District of Cal., here. Enki Corporation v. Freedman. The 1%ers weren’t just shmoozing at Davos. They also generated a 26 page report titled “Norms and Values in Digital Media: Rethinking Intellectual Property in the Digital Age” (link) (OK, I know, their staffers back home wrote this)

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

January 26, 2014

[This is part 2 of a 2-part post. To read part 1, click here] [Update: Viacom v. Youtube was settled before the Second Circuit rendered its decision on the appeal discussed in this post] After the events described in part 1, Kevin Kickstarter, founder of YouPostVid, meets with his lawyer, Mr. Jagger, to discuss whether YouPostVid needs to change its approach to managing copyrighted videos posted by users of the site. In preparation for this meeting Kevin has read the decisions in Viacom v. YouTube, and Mr. Jagger* has familiarized himself with YouPostVid’s compliance practices under the DMCA. *[Note] Mr. Jagger’s name is a  play on the infamous  lawyer in Great Expectations, by Charles Dickens. Kevin Kickstarter: Mr. Jagger, what I don’t understand is this – we comply with valid DMCA takedown notices. We take down thousands of video clips a month in response to takedown notices. However, the DMCA also says that we can lose our  immunity if we have “actual knowledge” of infringement, or if we are “aware of facts or circumstances from which infringing activity is apparent” — what you call “red flag” knowledge — or if we engage in “willful blindness,” a concept I don’t understand at all. At the same time the DMCA says that we have no obligation to monitor for infringement. How can I run a business based on this confusing set of rules?…

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Mass Law Blog Updates, Week Ending January 24, 2014

January 24, 2014

Ninth Circuit holds that the First Amendment provides same legal protection to blogger as it does to journalist.  “The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities  …” Obsidian Finance v. Cox EUs highest court holds that DRM circumvention is subject to a  “principal of proportionality” analysis. Techdirt summary here Devlin Hartline explains Aereo in a Nutshell The Copyright Alliance makes it very easy to send an email to your representatives in Congress — on the subject of Congress’s review of copyright law, or anything else. You Create It, You Own It SDNY declines to dismiss Costco counterclaim asserting that “Tiffany” trademark has become generic.   Tiffany v. Costco SDNY Judge Cote’s 64 page decision denying Apple’s motion to stay the work of an external monitor in the e-book antitrust case, pending appeal.  Perhaps the funniest aspect of this decision is the judge’s discussion of Apple’s argument that the monitor (whose hourly rate is $1100/hr)  should be required to comply with Apple’s “Outside Service Provider Policy” and standard expense policy. The judge rejected that argument.  U.S. v. Apple Ownership of IP address alone not enough to properly plead copyright infringement against account owner based on illegal downloads using that address. Elf-Man LLC v. Cariveau (W.D. Wash.) SCOTUSblog recap of oral argument in Petrella v. Metro-Goldwyn-Mayer, Inc. (take-away: Justices dubious of untimely copyright suits)….

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Mass Law Blog Updates, Week Ending January 17, 2014

January 17, 2014

Massachusetts district court judge O’Toole denied a motion to dismiss copyright claims based in part on foreign publication, where plaintiff asserts that the foreign conduct stems from a domestic infringement (the “predicate act doctrine“). Palmer/Kane LLC v. Houghton Mifflin Harcourt Publishing LLC D.C. Circuit opinion in Verizon v. Federal Communications Commission, holding that the FCC doesn’t have the authority to impose net neutrality laws on companies An interesting article in PetaPixel, discussing Getty Images and Agence France Presse’s motion to set aside a $1.2 million verdict obtained by Haitian photographer Daniel Morel for copyright infringement of Morel’s images of the aftermath of Haiti’s 2010 earthquake Dow Jones has filed a “hot news” lawsuit against Ransquawk. Techdirt has the cease and desist letter and complaint here The House Committee on the Judiciary continues its hearings on possible  copyright reform, based on technological developments. The focus this week was on the “making available” right.  Video available here. David Nimmer written statement here. A full witness list (and access to all written statements), here.  For an overview on these hearings see this Techdirt article, written last May. The Future of Music Coalition has created a timeline of the House Committee copyright reform  process through January 14, 2014. Coming up: fair use and DMCA notice and takedown On January 17th the American Enterprise Institute Center for Internet Communications and Technology  Policy held a program titled “Tech Policy 2014: The…

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Supreme Court Grants Cert in Aereo Case – See My 4-Part Blog Post on the Case

January 13, 2014

On Friday the U.S. Supreme Court granted review in American Broadcasting Companies, Inc. v. Aereo, Inc. I wrote a 4-part post on this case in the Spring of 2013. Part I of the series begins here. The series begins as follows: Aereo is a company that has developed a system that captures over-the-air television (broadcast TV) and retransmits it to subscribers over the Internet. Subscribers are able to watch broadcast TV on their computers, tablets and smart phones. Even better, Aereo acts as a remote digital video recorder (a remote DVR) so subscribers can record programs and stream them at another time. Aereo launched in New York City in early 2012, but it has announced that it is expanding to 21 other cities in 2013. Is this a problem for broadcasters? You bet it is. . . . . continue reading

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MassLawBlog Update, Week Ending January 10, 2014

January 10, 2014

As the week was ending the Supreme Court announced that it would hear the broadcasters’ appeal in the Aereo copyright case . . . . . . as well as Limelight Networks v. Akamai Technologies, which originated in federal court in Boston. The issue in Akamai is whether a company be found to have induced someone else to infringe on a patent, when neither one has directly infringed on patent rights. See my blog post on the CAFC’s fractured en banc decision in this case. Aereo receives $34 million in new funding. This would seem to represent a failure of legal due diligence by the investors (IMHO), as well as extremely bad timing. Infographic claims that MegaUpload had 1 billion users, 50M daily visitors and represented 4% of global Internet traffic Studios Win again in Fight Over User Content: “Safe Harbors” Not so Safe, Websites Find,  in GigaOm, by John Jeff Roberts (in other words, when it comes to the DMCA the worm appears to be turning). The European Commission has posted a lengthy questionnaire soliciting views on EU copyright policy from the public (including those outside the EU) Trademark law: Fourth Circuit upholds district court finding that there is no likelihood of confusion between SWATCH (watches) and SWAP (interchangeable watch faces and bands). Swatch AG v. Beehive Study finds that the rise of file sharing and the parallel decline in revenue has…

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MassLawBlog Updates, Week Ending January 3, 2014

January 3, 2014

As expected, The Authors Guild has filed a Notice of Appeal in the Google Books fair use copyright case Southern District of New York Judge Abrams has certified an interlocutory appeal to the Second Circuit to determine whether the DMCA safe-harbor provisions apply to pre-1972 sound recordings, and in addition “whether, under Viacom v. YouTube, a service provider’s viewing of a user-generated video containing all or virtually all of a recognizable, copyrighted song may establish ‘facts or circumstances’ giving rise to ‘red flag’ knowledge of infringement.” The Tenth Circuit holds that a claim for violation of copyright right of distribution against library accrues (for purposes of three year statute of limitations) when the library lists dissertation in catalogue information system. Diversey v. Schmidley N. D. Ill. judge holds that pre-1923 characters, character traits and other story elements from Sherlock Holmes stories are in public domain – Klinger v. Conan Doyle A Look Back at Copyright Review in 2013, by Terry Hart at Copyright Alliance . . . …. and another look back at 2013 on The 1709 Blog – 2013 – The Copyright Year A map showing when books enter public domain around the world . . . . . . . . and how this results in Sylvia Plath’s work entering the public domain in Canada, many countries in Africa, the Caribbean and Asia, but not in the U.S….

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