February 2014

Mass Law Blog Update, Two Weeks Ending February 28, 2014

February 28, 2014

The week ending February 21, 2014 was a light week, so this week’s Update covers the two weeks ending February 28, 2014 9th Circuit holds actress owns copyright in her individual performance, reverses lower court’s denial of preliminary injunction. Garcia v. Google (link). See blog post on this case here. Utah federal district court issues preliminary injunction order against Aereo, limited to Tenth Circuit. Aereo’s first loss in court, although courts in California and the District of Columbia had enjoined FilmOn X, which provides retransmission of over-the-air broadcasting using the same technology. Communityy Television of Utah v. Aereo. Southern District of Florida grants motion to dismiss in case alleging copyright infringement of architectural works. Sieger Suarez v Arquitectonica The USPTO has published more material relating to the Green Paper on Copyright Policy, Creativity and Innovation in the Digital Economy (link). A transcript of the December 12, 2013 public hearing is available here.  Post-hearing public comments are available here. The Copyright Office’s announcement requesting comments and announcing a roundtable on the “making available” right for copyright holders has been published in Federal Register (link) The U.S. District Court for the District of Minnesota has issued an injunction, under the authority of the Computer Fraud and Abuse Act (CFAA), against a defendant that allegedly broke into a company’s computer system and took confidential information. Reliable Property Services v. Capital Growth Partners. The broadcasters have…

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Film Actress Uses Copyright in Her Performance to Force Youtube to Take Down a Movie

February 26, 2014

An old legal saw warns that “hard cases make bad law.” The Ninth Circuit Court of Appeals decision in Garcia v. Google may be a good example of this maxim. The issue facing the Ninth Circuit was whether an actress can claim a copyright interest in her performance in a film and, if so, under the unusual circumstances in this case, whether the actress could use that copyright to compel Google to remove the film from Youtube. The facts in this case were very hard. The plaintiff, Cindy Garcia (pictured on left) was paid $500 to act in an independent film for a few days. She was told she was acting in an adventure film set in ancient Arabia. However, the film turned out to be an anti-Islamic movie, and her voice was overdubbed so that she appeared to be asking, “is your Mohammed a child molester?” The movie, titled “Innocence of Muslims,” let to a fatwa, and Garcia received death threats. After Youtube (owned by Google) refused Garcia’s request to takedown the film (rejecting multiple DMCA notices from Ms. Garia), she brought suit for copyright infringement, make a novel legal argument. Rather than arguing that the film was a joint work under copyright law (which might have entitled her to a share of profits, but wouldn’t have achieved her goal of forcing Youtube to remove the film), she  argued that…

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Second Circuit Holds Copy of Swatch Earnings Call Protected by Fair Use, Dodges “Simultaneous Transmission” Issue

February 25, 2014

[Catch-up Post] In an unusual application of the copyright fair use doctrine, on January 27, 2014, the Second Circuit held that Bloomberg’s copy of an investor conference call by Swatch was protected from copyright infringement under the fair use doctrine. The facts are unusual. Swatch transmittd, recorded and promptly registered the copyright for a 2011 earnings call. Bloomberg recorded the call separately. Swatch claimed that Bloomberg’s recording infringed Swatch’s recording. Although, technically speaking, Bloomberg did not copy Swatch’s copy of the call (it recorded it simultaneously, an issue I’ll return to below), the district court judge based his decision of non-infringement on fair use and the Second Circuit affirmed. Analyzing fair use utilizing the four statutory fair use factors,* the Second Circuit held that Bloomberg’s purpose was to deliver important financial information to investors, and that this was analogous to news reporting, an activity often favored under the fair use doctrine. The fact that Bloomberg’s reproduction was not transformative was not an obstacle to a finding of fair use since, as the Second Circuit said, cases of news reporting favor “faithfully reproduc[ing] an original work rather than transform[ing] it.” *[note] Abbreviated, the factors are (1) the purpose and character of the use;(2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use upon the potential market fo the copyrighted…

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Utah Court’s Aereo Decision: A Preview of Supreme Court Outcome?

February 21, 2014

It’s difficult to believe that so many judges and lawyers could disagree over what would appear, at first blush, to be a straightforward issue of copyright law. Can a company legally copy over-the-air TV broadcasts and transmit them to subscribers over the Internet, as long as it stores and transmits a separate copy for each customer? Two companies have adopted this technology,, Aereo and FilmOn X (fka “BarryDriller.com”). Two federal courts have held that this does not violate the copyright rights of broadcasters (New York’s Second Circuit and a Massachusetts district court), and three courts have held it does (the California, D.C. and Utah district courts). Thus far, all of the rulings have arisen in the context of preliminary injunction motions, and until the Utah court’s ruling on February 19, 2014, Aereo had survived two challenges (New York and Massachusetts).  FilmOn X had suffered the two losses (California and D.C.). Before the Utah decision, the Supreme Court had accepted review of the New York case, an unusual development given the fact that none of these cases involved a final judgment on the merits. The Utah decision may prove to have tipped the balance, in more ways than one. Not only is the count now 3-2 in favor of the broadcasters in judging the legality of the “individual copies” technology, but Utah Federal District Court Judge Dale Kimball — a 17…

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Mass Law Blog Update, Week Ending February 14, 2014

February 14, 2014

“The Future of Fair Use After Google Books.” Jonathan Band summarizes his debate with John Baumgarten over whether the district court’s decision in Google Books was rightly decided.  (link) Terry Hart on Copyhype –  “Volitional Conduct: Primetime Anytime and TV Now” Future of Music Coalition’s Casey Rae’s post, “What’s the Deal with ‘Pre-’72’ Copyrights?” (link) Massive, 478 page report concludes that yes, Australian copyright law should include fair use exceptions. However, it is only a recommendation, not the law (link to 478 page pdf) The Max Planck Institute for Intellectual Property and Competition Law has issued a 284 page report titled, “Copyright, Competition and Development.” The Report “analyzes the  practice  of  competition  law jurisdictions on copyright-related markets around the world.” (link to 284 page pdf) “Russian-SOPA” used to shut down music site domain name (Torrent Freak post) EU court holds that clickable link does not infringe copyright in the site to which users are redirected. Or, in translated EU-speak, “the provision on a website of clickable links to works freely available on another website does not constitute an ‘act of communication to the public’, as referred to in that provision.” (link) Commentary from The 1709 Blog Michael Carrier’s article, Only ‘Scraping’ the Surface: The Copyright Hole in the FTC’s Google Settlement, is now available on SSRN Secondary liability copyright claim against individual employee fails. BioD, LLC v. Amnio Technology, D. Ariz. Copyright and the Changing Political Environment in Washington: A View From the Inside, The…

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Massachusetts Court Finds There Was No Trade Secret. Should Defendants be Awarded Attorney’s Fees?

February 12, 2014

We’ve been telling clients for decades that if you think you have trade secrets or confidential information, you need to protect them. Far and away the best way to ensure you’ve done that is to require anyone who receives access to the information to sign a non-disclosure agreement, an “NDA.” In a Massachusetts state case reported on the front page of this week’s Massachusetts Lawyer Weekly, the plaintiff didn’t do that. In fact, it appears that the plaintiff, CRTR, Inc., did next to nothing to protect its allegedly confidential information from an independent contractor to whom it provided access, and then later sued for trade secret misappropriation. To quote from the court decision: [The first CRTR employee] states that she knew the customer lists were confidential, though no one had ever told her so, and [a second CRTR employee] states that on one occasion, she was told not to bring work out of the office. This is not adequate evidence that CRTR took any meansures to protect its purported trade secrets. There is no evidence of a policy regarding confidential information. …  It is undisputed that CRTR never required any of the defendants to sign a confidentiality agreement. … On this basis, the court granted the defendants summary judgment. It is often said that in America, you can sue anyone for anything. This is true, as far as it goes,…

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My Interview on the DMCA on URBusiness Network

February 11, 2014

A couple of weeks ago I returned to the offices of the URBusiness Network to discuss the Digital Millennium Copyright Act (DMCA). This was my second trip to the URBusiness Network, an online radio network with a wide range of business shows. The subject of the first show, recorded last October, was web site liability for third party postings under the Communications Decency Act (CDA). However, the CDA does not protect web sites for user postings that violate copyright law, so copyright liability and the DMCA were the topics of the current show. Once again it was a pleasure to be interviewed by Ruck Brutti, who was joined on this occasion by co-host Nathan Roman. You can listen to the new show here.

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