Failure to Obtain or Properly File for Copyright Registration Dooms Plaintiffs in Alicea v. Machete Music

July 11, 2014

[catch-up post] The First Circuit issued an copyright law opinion in March addressing a number of issues related to copyright law. However, the unwritten lesson of this case is that artists need to obtain ownership rights in writing. Failure to do so led to the unfavorable outcome the plaintiffs experienced in this case. Before attempting to describe this decision (or the most interesting aspects of it), it’s worth pointing out that the First Circuit judge who wrote the opinion not only began his opinion with the famous Mark Twain quote (“only only one thing is impossible for God: to find any sense in any copyright law on the planet”), but added the comment that “Twain’s deity would fare little better with the tangled skein of copyright and contractual claims presented by the plaintiffs in this case.” The First Circuit judge’s comment may be an understatement. The confusing facts make the decision difficult to follow. However, in essence the plaintiffs (Massachusetts musicians and producers of “Reggaeton” music) alleged that seven songs which they jointly composed and performed were modified and distributed by the defendants on the “Erre XI” album (image above), infringing the plaintiffs’ copyrights in the compositions in the songs. The plaintiffs’ problems with this claim appear to stem from the fact that there were multiple contributors to the musical works at issue, but the artists and producers didn’t bother to enter into…

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Supreme Court Ends Aereo’s Technology-Driven Attempt to Disrupt the Traditional Network TV Model

June 27, 2014

[Cross-post from BostInno] In the end Aereo’s dime-sized antennas and subscriber-specific copies of television broadcasts – its “Rube Goldberg” attempt to find a loophole that would allow it to stream TV over the Internet – were not enough to win over a majority of the Supreme Court. On June 25, 2014, the Supreme Court held that Aereo’s streaming service violated the exclusive right of copyright owners to “publicly perform” their works. Aereo had used diabolically clever technology (or so the broadcasters claimed) in its attempt to avoid this outcome, which seems very likely to force Aereo out of business. As I have described in detail elsewhere, Aereo’s system – which would have been unimaginable and cost-prohibitive only a few years ago – relied on thousands of antennas and massive, low-cost hard disk storage. Advances in antenna technology allowed Aereo to assign a separate micro-antenna to each paid subscriber. The plummeting cost of digital storage allowed Aereo to save a separate copy of each broadcast transmission for each subscriber that wanted to save a copy. Aereo’s argument was that for any singe subscriber this was no different (legally speaking) than accessing a broadcast using a rooftop TV antenna connected to a DVR in the living room. In effect, Aereo claimed, each subscriber had outsourced the antenna and the remote DVR to Aereo’s central facility, and Aereo was no more than an…

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Aereo and the Cloud Before the Supreme Court

June 21, 2014

This is a catch-up post on oral argument in ABC v.  Aereo, which was held on April 22, 2014. The Supreme Court’s 2013-2014 term is almost over, and we can expect to receive the Court’s decision in Aereo on June 23rd or 30th. A great deal has been written about whether Aereo’s TV -to-Internet service violates the TV networks’ public performance right under the transmit clause of the Copyright Act. By comparison, less has been written about the implications of the case for “cloud computing” and “cloud lockers.”* *note: the “cloud” is simply a metaphor for data and computing power accessed via the Internet. When the Aereo case was argued before the Second Circuit Court of Appeals in November 2012 the “cloud” was not mentioned once. (transcript) However, by the time the case reached oral argument before the Supreme Court in April 2014 cloud computing — or the implications of a Supreme Court decision in Aereo on cloud computing — seemed to have become the focus of the case. Amicus briefs supporting Aereo predicted dire consequence for cloud computing if the Court ruled in favor of the networks,* and the “cloud” is mentioned more than 30 times in the argument transcript, *note: For example, one amicus brief supporting Aereo warned of “unintended consequences” and argued that the tests proposed by the networks, their amici and the United States “are unworkable and…

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CopyrightX Certificate

June 16, 2014

I am proud to have been a member of the CopyrightX class of 2014. If you have any doubts about the merits of online education, apply to take this course in 2015. You will be pleasantly surprised at how effective this form of education can be.

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Google Book’s Little Sibling (HathiTrust) OK’d by Second Circuit Under Fair Use

June 13, 2014

While The Author’s Guild copyright suit against Google Books has received most of the attention on the copyright law front, its smaller sibling – the Author’s copyright suit against HathiTrust – has been proceeding on a parallel track. HathiTrust is a consortium of more than 70 institutions working with Google to digitize the books in their libraries, but a smaller number of books than Google Books (only ten million), and for academic use (including an accommodation for disabled viewers), compared with Google Books’s commercial use. On June 10, 2014, the Second Circuit upheld the federal district court, holding that HathiTrust is protected from copyright infringement under the fair use doctrine. With respect to full-text search (the most legally problematic aspect of HathiTrust), the Second Circuit held: “[T]he creation of a full‐text searchable database is a quintessentially transformative use” because it serves a “new and different function.” The nature of the copyrighted work (the second factor under fair use analysis) is “of limited usefulness where as here, ‘ the creative work … is being used for a transformative  purpose.’” The copying was not excessive since “it  was reasonably necessary for [HathiTrust] to make use of the entirety of the works  in order to enable the full‐text search function.” And lastly, “full‐text‐search use poses no harm to any existing or potential traditional market” since full-text search “does not serve as a substitute for the books that are being searched.” Citing HathiTrust’s…

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Supreme Court Reverses 9th Circuit in Raging Bull Copyright Case

June 11, 2014

The idea behind statutes of limitations is usually straightforward. If someone commits an illegal act, after a certain period of time they can no longer be liable (or prosecuted) for that act. In civil cases the statute of limitations usually begins to run when the injured party knew or should have known of the illegal act. Once that period has passed, the injured party is barred from filing a lawsuit. For example, in Massachusetts the statute of limitations for most tort actions is three years. If you are the victim of a tort (for example, medical malpractice), you must file suit within three years of the act that caused you harm, or you likely are barred by the statute of limitations.* *note: Like almost everything in the law, there are exceptions and nuances to this. The U.S. Copyright Act contains a three year statute of limitations (17 U.S.C. Section 507),* but the way in which the statute is applied is different. A copyright holder may know that a defendant has been selling an infringing product for more than three years, but that doesn’t bar an action for copyright infringement – the defendant may still be liable for any infringing conduct taken during the three year period before the suit was filed. This is described as a “three-year look back,” a “rolling limitations period” or the “separate-accrual rule.”** *note: The statute…

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CAFC Reverses Judge Alsup – Java API Declaring Code Held Copyrightable

May 10, 2014

On November 26, 2013 I wrote a post titled “Oracle v. Google: How Google Could Lose on Appeal” (link). After oral argument before the CAFC a couple of weeks later I wrote a follow-up post, “Oral Argument in Oracle v. Google: A Setback for Google?” (link). I thought I was being a bit paranoid on Google’s behalf, but I was wrong – if anything, I was being too optimistic. The CAFC reversed California federal district court judge William Alsup, upholding almost every argument made by Oracle. Interoperatibility Goes To Fair Use, Not Copyrightability In the “How Google Could Lose” post I noted that Oracle had a good argument that interoperability is properly raised in connection with a copyright fair use defense, not to determine whether the plaintiff’s work is copyright-protected in the first instance.  The CAFC agreed, stating Whether Google’s software is “interoperable” in some sense with any aspect of the Java platform  … has no bearing on the threshold question of whether Oracle’s software is copyrightable. It is the interoperability and other needs of Oracle—not those of Google—that apply in the copyrightability context, and there is no evidence that when Oracle created the Java API packages at issue it did so to meet compatibility requirements of other pre-existing programs. Filtration for Interoperatility Should be Performed Ex Ante, Not Ex Post In “How Google Could Lose” I noted that: under Altai it is the first programmer’s work (in this case Oracle)…

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Ripoff Report Has a Fight on Its Hands In Massachusetts

April 7, 2014

Can a state court order assignment of a defamatory posting on Ripoff Report to a prevailing plaintiff? That may be the central question in Small Justice LLC, et al. v. Xcentric Ventures LLC, pending the U.S. District Court for the District of Massachusetts. Here are the basic facts. A Boston attorney* was defamed by a litigation adversary on the Ripoff Report (a website owned by Xcentric Ventures). The former adversary party, Richard Dupont, claimed that the lawyer was a perjurer with “a history of persecuting the elderly, especially, wealthy elderly women.” The lawyer was accused of filing “baseless lawsuits in order to seize assets from clients, from adversaries and even from his own family.” The posting urged readers to contact the FBI and the Securities and Exchange Commission with similar complaints, and claimed that the attorney had “a history of child abuse, domestic violence and bi-sexuality,” as well as an “addiction to illicit substances.” None of this is true. *[note] The lawyer is not named in this post, to minimize further negative publicity. The lawyer brought suit against Dupont in Massachusetts state court, where he obtained a default judgment. However, this did him no good as far as the defamatory post was concerned. Ripoff Report is infamous for refusing to remove third-party postings, and the Communications Decency Act  (“CDA”) (47 USC § 230) renders it almost impervious to suit by victims of third-party defamation,…

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Viacom v. Youtube: Mother of All DMCA Copyright Cases Settles

March 20, 2014

According to my count, I’ve written seven posts on the Viacom v. Youtube DMCA copyright case. The first time I mentioned Youtube and the DMCA was in October 2006, over 7 years ago. Referencing Mark Cuban’s comment that Youtube would be “sued into oblivion” I stated: 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 . . ..? In fact, Youtube was acquired by Google for $1.65 billion. It was then sued by a group of media companies, resulting in a marathon lawsuit that never went to trial, but yielded two district court decisions and one Second Circuit decision on the issues I identifed in 2006. As I described in a two-part post in December 2013/January 2014, the second appeal to the Second Circuit had been fully briefed and was awaiting oral argument. Now the case has settled, on confidential terms of course. However, demonstrating the extent to which the interests of the media companies and Youtube have converged, the joint press release contained the unusual statement that the “settlement reflects the growing collaborative dialogue between our two companies on important opportunities, and we look forward to working more closely together.” We may never know the terms of the settlement, but rumor has it that the plaintiffs received…

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Copyright Duration and Termination Powerpoint, From CopyrightX Week 6

March 9, 2014

Prepared by Kim Meyer, my CopyrightX Teaching Fellow for class #6 in this 12 week MOOC.  @Kmeyer2015 Link to slides …..

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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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