My partner Andy Updegrove has written a post discussing Jacobsen v. Katzer. In a nutshell, theCAFC upheld an open source copyright license, pointing to the work of Creative Commons and others. As Andy discusses, this is an important decision for the open source movement.
Bill Patry, Senior Copyright Counsel at Google (how’s that for a great job), emailed me and asked me to mention the publication of his new copyright treatise, Patry on Copyright.
I like the fact that Mr. Patry said this about his 5,800-plus page, $1500 treatise: “ The book is also chock full of wikipedia references, anecdotes, riffs on logic, congitive linguistics, etc. It is many books in one.”
Although I haven’t seen this treatise yet, I hope that it is a change fromNimmer on Copyright, which is so densely academic as to often be unusable by practitioners. Somehow, I doubt that we’ll ever see Nimmer referencing Wikipedia.
I have decided to end the blog, and I owe readers an explanation. There are two reasons.
1. The Inability or Refusal to Accept the Blog for What it is: A Personal Blog
. . . While in private practice I never had the experience of people attributing my views to my firm or to my clients. I moved from private practice to Google I put a disclaimer to the effect that the views in the blog (as in the past) were strictly mine. . . .
For the first year after joining Google, . . . people honored the personal nature of the blog, but no longer. . . . The inevitable opening sentence now is: “William Patry, Google’s Senior Copyright Counsel said,” . . . There is nothing I can do to stop this false implication that I am speaking on Google’s behalf. . .
In the end, I concluded that it is no longer possible for me to have a blog that will be respected for what it is, a personal blog. . . .
2. The Current State of Copyright Law is too depressing
This leads me tomy final reason for closing the blog which is independent of the first reason: my fear that the blog was becoming too negative in tone. I regard myself as a centrist. I believe very much that in proper doses copyright is essential for certain classes of works, especially commercial movies, commercial sound recordings, and commercial books, the core copyright industries. I accept that the level of proper doses will vary from person to person and that my recommended dose may be lower (or higher) than others. But in my view, . . . we are well past the healthy dose stage and into the serious illness stage. . . . Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits . . .
So between the inability or refusal of some people to accept the blog for what it is — a personal blog — and my inability to continue to be Cassandra, I decided it was time to pull the plug. . . . I intend to spend my free time figuring out a constructive way to talk about the difficult issues we face and how to advance toward their solution.
I have read and enjoyed this blog religiously for the last 18 months, and I am saddened. Oh, and p.s.: our firm does subscribe to Patry’s treatise now, and although Nimmer is still on the shelves, we are no longer purchasing updates.
Whether a U.S. work is protected by U.S. copyright is often a difficult question to answer. It can depend on factors such date of first publication, whether the work was published with a copyright notice, whether the copyright was renewed, whether the author is living or dead and, if dead, when the author died. Technology to the rescue!, sort of ….
Click on the graphic below to go to the American Library Association “Copyright Advisory Network” website where you can use the “digital slide rule” created by Michael Brewer (ALA member from the University of Arizona Library) to find the answer. Drag the red arrow up and down beside the various data points and see what the boxes to the left say (yes, no, maybe). Of course, “maybe” is the answer far too often, requiring the user to click the asterisk, read the explanation, do more research and …. oh well.
When I started a music blog a couple of years ago (sadly ignored of late), I started getting promotional CDs from some small publishers. I’m not sure how they got my home address, and for the most part the music wasn’t very good. However, I did notice that in a few instances the CD cases were stamped “promotional, not for resale,” or words to that effect.
Had I sold these CDs on eBay or at a garage sale, I might have ended up in the shoes of Troy Augustino, who (like every good eBay entrepreneur) purchased some promotional CDs from music shops and online auctions, and resold them for a higher price on eBay.
Stop! Universal Music said. You have no right to resell the CDs, since we only “licensed” them, and the license prohibits resale. By reselling you’re violating our copyright rights!
No dice, ruled a California federal district court judge. Universal did not “license” the CDs, it gave them away as a gift. And, under the copyright “first sale” doctrine, a purchaser or gift recipient is free to resell (or regift) the promo CDs.
The “first sale” doctrine is easy to understand, since most of us take it for granted: if you buy a CD, DVD or book, you are free to resell it. The copyright owner has the right to prevent you from reproducing the work, distributing copies, publicly performing or creating derivative works. But, you are free under the “first sale” doctrine to resell the physical disk or book which holds the copyrighted work. And that’s what Mr. Augustino did here. The outcome of this case was predictable, and why Universal Music, the largest music company in the world, chose to file this lawsuit will likely forever remain a mystery.
Here is a copy (below) of the June 2, 2008 decision of Judge Sidley Stein in the Southern District of New York, holding that a 15 second snippet of the Lennon song “Imagine,” within the feature length movie “Expelled“, is “fair use” under U.S. copyright law. In other words, the film makers did not infringe Yoko Ono’s copyright rights. “Expelled” is a documentary that deals with “intelligent design” (vs. Darwinism, Creationism, ect.), and is narrated by Ben Stein of Ferris Buehler fame (presumably no relation to Judge Stein, but bad luck of the draw for Yoko Ono nevertheless).
The “fair use” doctrine is an exception to the legal rights of U.S.copyright owners. It permits the use and publication, without permission, of parts of the work for purposes of “criticism, comment, news reporting, teaching … scholarship, or research.” A large body of judge-made law has built up interpreting and applying this doctrine.
The court’s ruling on fair use is no surprise, and applies “black-letter” fair use law to undisputed facts. Any outcome other than a ruling in favor of fair use would have been a surprise. For more on fair use click here.
Nancy Gertner is no shrinking violet. Her reputation as a lawyer and then as a judge who is willing to make hard decisions and challenge the status quo is well known.
Last week she did just this when she quashed the RIAA‘s subpoena against Boston University, which was targeted at learning the identities of some Boston University students who had posted copyrighted songs. Her rationale was that there was no clear evidence the students had violated the Copyright Act, and therefore their identies should be protected. Specifically, she found that “publication” (that is, posting the tunes online) was not the same as “distribution” (that is, the tune was downloaded). No evidence of download, no violation. However, whether this ruling will become the prevalent rule under copyright law remains to be seen.
The 52 page decision in Sire Records, Inv. v. Does 1-21 is available here.
The estimable and erudite copyright scholar William Paltry discusses this case, and two others that raise similar issues, in more detail on his blog here.
Many lawyers in Massachusetts would agree that Massachusetts Federal District Court Judge William Young is one of the most erudite judges in the district. Yet, he has written relatively few copyright law decisions in his 23 years on the federal bench. A Westlaw search shows that he has authored fewer than ten substantive copyright decisions.
In a decision issued on February 28th in the case Situation Management Systems v. ASP Consulting Group, Judge Young undertook the question that has caused many lawyers to call copyright law one of the most metaphysical of practice areas: how to draw the line between expression that is protected by the law, and that which is not. In this decision, Judge Young concluded that Situation Management System’s (“SMS”) workshop training materials, aimed at improving business and personal productivity, did not make the grade.
Judge Young found that the challenged texts, created by two former employees of SMS who had formed a competing business, had been created very quickly, indicating that the former employees had not started from scratch, but had likely used the SMS materials as a starting point. After explaining the famiar (to copyright afficionados) concepts of “idea v. express,”, scenes a faire and the fact that copyright law does not protect a “process,” Judge Young applied these docrines to the case at hand. He found that SMS’s materials were “aggresively vapid . . . hundreds of pages filled with generalizations, platitudes and observations of the obvious.” Comparing this work with some examples of great literature (The Odyssey by Homer, Cold Mountain by Charles Frazier and, of course, a sonnet by The Bard) he found that the SMS material was largely uncopyrightable. While the structure of the SMS texts were entitled to some limited protection, that protection inhered near the literal text level, which the defendant ASP did not copy.
Most importantly, in my view, Judge Young emphasized two points: first, the motivation of the copier is irrlevant. Here, the allegation that the former employees (now with the defendant) started their business to steal SMS’s materials and ruin their business, was irrelevant under copyright law if, as Judge Young concluded, they did not copy protected expression. This conclusion is not a surprise, but it’s nice to have it reinforced every once in a while by a respected federal judge.
Second, the fact that the defendants may have used SMS’s materials as their starting point was irrelevant, so long as the work the defendants created was not “substantially similar” under copyright law, which it was not. Again, not “new law,” but the first time it has been expressed by a court in the First Circuit.
One of the many oddities of the legal profession is that judges have to take truly bizarre allegations seriously, and use detailed legal logic to dismiss them. This is like watching Aristotle being forced to debate John Cleese during a Monty Python revival festival. You see this most often in pro se lawsuits brought by prison inmates who are challenging their convictions or treatment during incarceration. You see it a lot less often in the rarified world of intellectual property litigation. However, a case decided earlier this year is a good example of this in just that context.
Harding Earley (the Harding firm) is a law firm ouside Philadelphia. It defended a client in a case alleging trade secret misapropriation and trademark infringment, brought by Healthcare Advocates, Inc. However, by doing so the Harding firm itself attracted the wrath of Healthcare Advocates, and was sued by Healthcare for copyright infringment and various related claims. This suit garnered some attention at the time it was filed, and I wrote about it here, in a blog entry titled The Wayback Machine and the DMCA. Rather than repeat the basic facts here, I refer you to the original article.
First, did the Harding firm infringe the copyrights of Healthcare, by printing screen shots of Healthcare’s website during its investigation of the case? Not surprisingly, the Court held that the law firm fell within the copyright “fair use” exception by printing these documents and using them to defend its client. the Court: “It would be an absurd result if an attorney defending a client against charges of trademark and copyright infringment was not allowed to view and copy publicly available material, especially material that was alleged to have infringed.”
Second, did the Harding firm destroy relevant evidence by not preserving the temporary cache files that presumably were created on its computers when it viewed the web pages? Noting that the temporary files were probably deleted within days of the viewing, and that the Harding firm was not put on notice of a claim until months after the viewing, the Court held that the Harding firm could not be guilty of destroying relevant evidence. To put this in perspective, Healthcare’s argument was that as soon as the law firm viewed these files it should have anticipated legal claims against it, and shut down the computers used to preserve the temporary files. Judge for yourself the merits of this argument.
Third, did the Harding firm violate the Digital Millenium Copyright Act by reviewing old versions of Healthcare’s website on the Wayback Machine? As I explained in the original article, the Wayback Machine (described in detail by Wikipedia here) began archiving web pages in 1996. Since web sites frequently change, the Wayback Machine takes billions of “snapshots” of website pages and preserves them. Needless to say, this is a great resources for lawyers.
However, if you own a web site and you don’t want to be archived by the Wayback Machine, you can opt out. The Wayback Machine permits website administrators to use the voluntary SRE (Standard for Robot Exclusion) to identify files or directories that cannot be “crawled” and indexed. Exclusion is accomplished by inserting a file called robots.txt on a web server. According to Internet.org this not only prospectively excludes a site from being crawled, but will “exclude any historical pages from the Wayback Machine.”
It turns out that this method is not foolproof. On the fateful day that the Harding firm accessed Healthcare’s old web pages on the Wayback Machine, the Wayback servers malfunctioned, and certain pages that carried the robots.txt file were not blocked from access. This, however, was invisible to the Harding firm – they had no hint that they were accessing the pages against the wishes of Healthcare, and due only to a technical malfunction.
These facts didn’t deter Healthcare, however, which accused the lawfirm of violating the Digital Millenium Copyright Act (DMCA). Section 1201(a) of the DMCA states: “No person shall circumvent a technological measure that effectively controls access to a [copyright] work protected under this title.” Healthcare claimed that robots.txt is a technological measure that controls access to the archived copies of its web site, and that the Harding Earley law firm circumvented that measure.
If this argument doesn’t make much sense to you (how could Harding have circumvented a technological measure if it simply accessed the Wayback Machine site, and had no idea that the Wayback Machine site was malfunctioning?), it also didn’t make much sense to the judge, who dismissed this claim.
Fourth, and lastly, did the Harding firm violate the Computer Fraud and Abuse Act (CFAA), a federal law that makes it illegal to access a computer without authorization, or in excess of authorization? Healthcare’s position was that the Harding’s firm exceeded authorized access, despite the fact that it was the Wayback Machine’s servers that malfunctioned and permitted that access. The Court dismissed this claim, noting that the Harding firm did nothing more than view web pages delivered from a public website in the manner the website was designed to deliver the pages.
The extraordinary thing about this decision, to my mind, is the time, effort and expense (the Harding firm spent over $170,000 in fees and expenses) that went into defending against allegations that should (in this writer’s opinion) never have been brought in the first place, or at least dismissed once the facts were clarified for Healthcare. Instead, the case dragged on for two years; the docket sheet has around 80 entries; both sides hired computer experts, and in the end the case was dismissed on summary judgment, in a decision where the judge spent almost 40 pages analyzing each claim made by Healthcare and dismissing it only after rigorous and in-depth analysis which went, in my opinion, far beyond the call of duty.
Oh, I almost forgot to mention – Healthcare has filed an appeal.
Bill Patry, Senior Copyright Counsel at Google (how’s that for a great job), emailed me and asked me to mention the publication of his new copyright treatise, Patry on Copyright.
I like the fact that Mr. Patry said this about his 5,800-plus page, $1500 treatise: “ The book is also chock full of wikipedia references, anecdotes, riffs on logic, congitive linguistics, etc. It is many books in one.”
Although I haven’t seen this treatise yet, I hope that it is a change fromNimmer on Copyright, which is so densely academic as to often be unusable by practitioners. Somehow, I doubt that we’ll ever see Nimmer referencing Wikipedia.
I would also add that it may be time for the intellectual property fathers of the 20th century, whose treatises have become so calcifiedand entrenched with the courts that it’s hard for anyone to compete with them, to make some room for the next generation.After all, Melville Nimmer died in 1985, and his treatise is now edited by his son, David Nimmer.Roger Milgrim (Milgrim on Trade Secrets) , Donald Chisum (Chisum on Patents) and Thomas McCarthy (McCarthy on Trademarks) are in their 60s.Bill Patry, by comparison, is only in his mid-50s. And, he has a blog.And, a sense of humor.
Cuban, co-founder of HDNet and owner of the NBA’s Dallas Mavericks, also said YouTube would eventually be “sued into oblivion” because of copyright violations.
“They are just breaking the law,” Cuban told a group of advertisers in New York. “The only reason it hasn’t been sued yet is because there is nobody with big money to sue.”
* * *
Cuban said “anyone who buys that (YouTube) is a moron” because of potential lawsuits from copyright violations.
“There is a reason they haven’t yet gone public, they haven’t sold. It’s because they are going to be toasted,” said Cuban, who has sold start-ups to Yahoo and CompuServe.
The outspoken (to put it mildly) Cuban, billionaire owner of the Dallas Mavericks and Chairman of HDTVcable network has repeated this message loudly and often, both before and after Google’s $1.6 billion purchase offer to YouTube. Many other media sources appear to have picked up the tune, and the media-giant mouthpieces have added to the volume by rattling their sabers, implying that its only a matter of time before this “mother of all lawsuits” is forthcoming.
Don’t believe a word of it. Surprisingly few observers have asked the pertinent question here: do the Supreme Court’s 1995 Grokster decision and the DMCA (the Digital Millennium Copyright Act) protect YouTube from liability for copyright-protected works posted by third parties (third parties being the law’s awkward way of saying someone other than YouTube itself)?
Grokster sets the legal standard for contributory copyright infringement, in this context a product or service (YouTube) that encourages or assists third parties to post infringing works. Based on what I’ve observed, it seems that YouTube has been well advised by some pretty savvy lawyers, and that as a result it has stayed on the safe side of the line defined by Grokster. I’ve read of no evidence suggesting that YouTube has intended its service to be used for infringing works, or that it has done anything to foster infringement. If such evidence existed, you can be sure the media companies would let us know, and they haven’t. We also can be pretty sure that Google carefully vetted YouTube for this issue, and that if it had found adverse evidence, YouTube would still be flying solo.
As to the second issue, the DMCA, this federal law provides a strict “notice and take down” procedure that requires copyright owners to give written notice of an infringing work posted by a third party to the web host, including its precise location (its URL), as part of a demand that the work be “taken down.” There is no suggestion that YouTube has not responded in a timely way to legitimate take-down requests, and in fact the press has reported that YouTube has attempted to develop technologies that can help identify copyrighted works. (If this is true it would weigh even more heavily in YouTube’s favor in evaluating YouTube’s intent for purposes of applying Grokser).
All YouTube needs to do is hire a staff capable of looking at a take-down notice and removing the work at the identified URL. Ten, fifty, maybe a hundred FTEs, perhaps working in India or another low-wage country, should be sufficient, and hence the “whack a mole” metaphor – I can for-see copyright owners being forced to constantly scan YouTube to catch their copyrighted works when they pop up over and over again (posted by different users), and repeatedly provide infringement notices to YouTube. To put it differently, and a bit crudely, every time a copyrighted work pops up the copyright owner would “whack the mole” by sending a take-down notice. Of course, the media companies could themselves hire low-wage foreign workers to scan YouTube, and issue the take-down notices, creating more third-world employment on both sides of the equation. Strange but true …
In Cambridge Literary Properties, Inc. v. W. Goebel Porzellanfabrik Magistrate Judith Dein issued an extensive Report and Recommendation (adopted by Judge Nancy Gertner) on issues relating to the statute of limitations as a bar to a claim of copyright infringement. The case involves facts going back as far as 1931 which involved the drawings of Berta Hummel, and is a valuable primer on the defense of statute of limitations in copyright actions.
District court Judge Gorton has issued a decision in Echomail, Inc. v. American Express denying IBM’s (a co-defendant) motion to dismiss claims of trade secret misappropriation, unfair competition and violation of M.G.L. c. 93A.
In T-Peg, Inc. v. Vermont Timber Works, Inc. the First Circuit applied the Architectural Works Copyright Protection Act for the first time in this circuit. Reversing summary judgment for the defendant and remanding for trial, the court not only recapped the legal standard for substantial similarity (the test by which infringement is judged under copyright law), but clarified its position on expert testimony in copyright cases, making clear that there is no per se rule against expert testimony, and that whether or not it is appropriate depends on the complexity of the subject matter at issue.
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Here is a copy (below) of the June 2, 2008 decision of Judge Sidley Stein in the Southern District of New York, holding that a 15 second snippet of the Lennon song “Imagine,” within the feature length movie “
