Mass Law Blog Update – Week Ending March 14, 2014

by Lee Gesmer | Mar 14, 2014 | Weekly Updates

• First Circuit holds that failure to register copyrights in underlying musical compositions dooms copyright infringement claims. Alecia v. Machete Music (link)
• N. Dist. Cal. court holds that websites copy of photo of politician is protected by copyright fair use doctrine. Dhillon v. Does 1-10 (link)
• The 9th Circuit has declared open season on the petition for rehearing or hear en banc in its decision in Garcia v. Google – anyone can file an amicus brief (link). This case has been the subject of massive criticism by the copyright community, and it seems likely that it is headed for en banc review.
• Techdirt: Google Points Out That Even the Copyright Office Thinks Judge Kozinski’s ‘Innocence of Muslims’ Rule is Wrong. Techdirt sums up recent developments in Garcia v. Google, including the fact that the plaintiff has been unable to obtain a copyright registration (see first bullet above). (link)
• Hearings of House Subcommittee on Courts, Intellectual Property and the Internet on March 13, 2014.  Topic this week was the DMCA (link)
• Atlantic article, Our Best Weapon Against Revenge Porn: Copyright Law? (link)

• Columbia Law Professor Jane Ginsburg (daughter of Supreme Court Justice Ginsburg), Aereo in International Perspective: Individualized Access and U.S. Treaty Obligations (link)

• David Nimmer (Nimmer on Copyright) says Second Circuit got it wrong in Aereo case. Responds Aereo: “ouch” (link)
• The courts are unable to agree on when an idea is “abstract,” and therefore ineligible for patent protection under the non-statutory “abstract idea” test. The Supreme Court will take up this issue again in Alice Corporation Pty. Ltd. v. CLS Bank International, which is scheduled for oral argument on March 31st.  But, briefing is complete and Dennis Crouch summarizes the arguments on Patently-O. (link)
• D. Mass. judge denied motion to dismiss claim against company hosting third-party web site reviews (mymovingreviews.com) under Communications Decency Act (CDA), on grounds that there is substantial basis to conclude that the defendants (not third parties) were the developers of the information at issue.  Moving and Storage, Inc. v. Panayotov (link)
• E.D. Mich. judge struggles with copyright and trademark claims against a variety of high profile defendants (Sports Illustrated, Walmart, Getty Images) arising out of 1991 still photo of a moment in a football game between the U. of Michigan Wolverines and the Ohio State Buckeyes.  (link)
• Week 7 CopyrightX – The Rights to Reproduce and Modify (link to Lecture 7.1)

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

by Lee Gesmer | Feb 28, 2014 | Weekly Updates

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 filed their initial Supreme Court brief in American Broadcasting v. Aereo (link)
• Motion to dismiss action based on a DMCA takedown notice targeting a trademark (as opposed to a copyright, which is the only appropriate subject of a DMCA takedown notice), denied by N.D. Cal. court.  Crossfit v. Alvies (link)
• Ninth Circuit finds no trademark infringement based on “trademark fair use.” Webceleb v. Proctor & Gamble (link).
• Billboard reports on “Songwriter Equity Act,” which would update the factors considered by the Copyright Royalty Board when determining compulsory licenses for songwriters, composers and publishers (link)

Mass Law Blog Update, Week Ending February 14, 2014

by Lee Gesmer | Feb 14, 2014 | Weekly Updates

• “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 Copyright Society of the U.S.A., New York Chapter (YouTube Video)
• Copyright Industries in the U.S. Economy, The 2013 Report. Take-away stat: copyright industries are growing are more than 2x the U.S. economy. (Do economists and copyright mix?)(link)
• The Copyright Office is seeking additional comments on the subject of “Orphan Works and Mass Digitization.” Public roundtable discussions will be held on March 10 and 11, 2014. Details on the Federal Register 
• Week three of CopyrightX, “The Subject Matter of Copyright” (link)
• “Performing for profit: 100 years of music performance rights” The history of ASCAP and BMI, on the Oxford University Press blog (link)

Mass Law Blog Update, Week Ending January 31, 2014

by Lee Gesmer | Jan 31, 2014 | Weekly Updates

• 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)

Mass Law Blog Updates, Week Ending January 24, 2014

by Lee Gesmer | Jan 24, 2014 | Weekly Updates

• 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). Oral argument transcript here
• Eleventh Circuit holds that the author of a musical composition who assigned his rights in exchange for royalties may rely — for purposes of standing to sue for infringement under the Copyright Act — on a registration his publisher filed. Smith v. Casey, K.C. & The Sunshine Band

• For copyright nerds: “The Role of Volition in Evaluating Direct Copyright Infringement Claims Against Technology Providers ,” by Eleanor M. Lackman and Scott J. Sholder (link)

• Trade Secrets and Noncompetes, the Year in Review, by Russell Beck (Fair Competition Law)

MassLawBlog Update, Week Ending January 10, 2014

by Lee Gesmer | Jan 10, 2014 | Weekly Updates

• 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 meant the creation of more new music, not less. Empirical Copyright: A Case Study of File Sharing and Music Output, Glynn S. Lunney, Jr. Techdirt summarizes the study.
• Linkedin complaint vs. Does for scraping and otherwise illegally obtaining user profiles in order to create competing recruiting websites.
• Ninth Circuit holds that shape of a hookah water container is not protected by copyright under “useful article” doctrine, affirms award of attorney’s fees to defendant by trial court and awards attorney’s fees on appeal. Inhale v. Starbuzz.
• Top Ten Internet Law Developments of 2013, by Eric Goldman in Forbes. (Yes, Aereo is in there).
• Defendant allegedly, unauthorizedly, provided Oracle customers with updates to Oracle software. N. Dist. Cal. denies motion to dismiss claims under CFAA, breach of contract, copyright infringement and Lanham Act. Oracle America v. TERiX Computer Company.

MassLawBlog Updates, Week Ending January 3, 2014

by Lee Gesmer | Jan 3, 2014 | Weekly Updates

• 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. or EU member states.
• The top four tech legal cases to watch in 2014 (ArsTechnica)
• Massachusetts federal district court judge upholds verdict for violation of Stored Communications Act based on unauthorized access of email account
• An Ambiguous Battle: The Promise (and Pathos) of Public Domain Day, 2014, by Jennifer Jenkins