Copyright

Kevin Kickstarter Visits His Attorney for an Update on the DMCA Following Capitol Records v. Vimeo

The fictional Kevin Kickstarter last met with his lawyer, Mr. Jaggers, in January 2014. Still pondering Mr. Jaggers advice (following the then-recent Second Circuit’s decision in Viacom v. Youtube), he recently heard of the Second Circuit’s new DMCA ruling in Capitol Records v. Vimeo, and he set up an appointment with Mr. Jaggers to get an update on the law.

Before listening in on this fictional conversation, a brief recap: YouPostVid is a small “you post, we host” music video website. Kevin Kickstarter is its sole owner. YouPostVid is struggling to meet the confusing  requirements necessary to receive safe harbor protection for copyright infringement under the Digital Millennium Copyright Act (the DMCA).  (See the earlier transcript to be updated on how the DMCA can protect web hosts, aka “service providers”, from copyright liability for works uploaded by users).

Two years ago Mr. Jaggers advised Kevin on how to stay on the safe side of the DMCA.… Read the full article

A quick update on Capitol Records v. Redigi.

The SDNY federal court entered summary judgment against Redigi on liability in March 2013.

The last two years have been spent preparing for trial on damages.

However, on Monday of this week, on the eve of trial, the parties reported the case settled.  Very likely, this settlement (which is confidential), was engineered to allow the decision on liability to be appealed to the Second Circuit. The way this works is that if the appeal is unsuccessful, the defendants will owe a certain amount of money (stipulated in the settlement agreement, which is confidential/non-public).  If Redigi wins on appeal, it will not owe that money (and, presumably, it will be able to resume offering its service, which appears to be inactive at present).  The settlement agreement likely provides for either outcome.

It has always been the expectation that Redigi wanted to get this case to the Second Circuit, so I believe this is likely to be the scenario that is in progress, particularly since there is no permanent injunction issued pursuant to the settlement.  … Read the full article

Several of the CopyrightX teaching fellows used the 1990s Lotus v. Borland copyright case in their classes last week. In an excellent Case Study, Professor Fisher and TF/Berkman Center intern Ben Sobel dissected the background and holdings in this complex case.

An interesting aspect of the case study was the use of documents that came to light during Elena Kagan’s Supreme Court nomination process. In 1995 now-Justice Kagan was Associate White House Counsel, and was involved in the administration’s debate of whether to support Lotus (which had prevailed before Massachusetts U.S. District Court Judge Robert Keeton), or Borland (which won before the First Circuit). Judge Keeton had held the Lotus 1-2-3 menu hierarchy copyrightable, and the First Circuit had reversed, holding it to be an uncopyrightable method of operation under 17 U.S.C. sec. 102(b).

Lotus appealed to the Supreme Court, which granted cert. The question the Solicitor General’s office faced in December 1995 was whether to support Borland or Lotus, and on what grounds.… Read the full article

CopyrightX Meets Sony, DMCA

by Lee Gesmer on February 16, 2016

CopyrightX Meets Sony, DMCA

I’m privileged to be a CopyrightX teaching fellow this year, and this week CopyrightX met the real world – in the form of an encounter with Sony Music and the DMCA. Professor William Fisher’s CopyrightX lecture 3.3, The Subject Matter of Copyright: Music, contains audio clips of Bob Dylan’s All Along the Watchtower played by Dylan, Hendrix and Stevie Ray Vaughn. The course is making the point, with musical illustrations, that U.S. copyright law allows cover versions, so long as the artist making the cover pays the required compulsory license, and, that the cover version can depart quite significantly from the fundamental character” of the original.

Unsurprisingly, Youtube’s automated ContentID system, cannot distinguish fair use from illegal use. Presumably, a “put back” notice will resolve this little contretemps.

Techdirt’s Mike Masnick discusses the whole episode in more detail, here.

This is not the first time a Harvard law professor has been the subject of a DMCA takedown of an educational fair use.  … Read the full article