January 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 The suit was withdrawn by the end of the week.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.  
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Viacom v. YouTube, Mother of All DMCA Copyright Cases (part 2 of 2-part post)

[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.… Read the full article

  • 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.
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  • 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.  
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