Article published in Lawyer’s Weekly: Applying Copyright Law to New Technologies Still Challenging

September 10, 2013

Embedded below is an article I wrote for Massachusetts Lawyer’s Weekly that was published in the paper’s September 9, 2013 issue.  A link to the article on MLW’s website is here (subscription required).  A link to the original article in an easier to read format is here.

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Aeroe Copyright Law Article in Cyberspace Lawyer

September 6, 2013

The Cyberspace Lawyer was nice enough to take the four-part article on the Aereo copyright case that I published earlier this summer (Part 1 here), combine it into a cohesive whole and publish it in their August issue.  The article is embedded below via scribd. A direct link to the article is here.

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Liberation Music Throws Lessig a Meatball Pitch in “Lisztomania” DMCA Takedown Suit

August 29, 2013

Harvard Law School professor Larry Lessig must have fallen off his chair in disbelief when he learned that Liberation Music, copyright owner of the song Lisztomania, recorded by Phoenix, had used the DMCA to force Youtube to remove the video of a lecture by Lessig that included video remix examples of this song.  He soon straightened up and filed what could become an interesting test case involving wrongful DMCA takedown notices and copyright fair use. However, in the process he suffered something of a legal stutter-step that may come back to haunt him in this case. Assuming, that is, that Liberation Music doesn’t come to its senses and settle this case faster than you can say “world-renown copyright lawyer with deep resources handed slam-dunk case by naive copyright holder.” The original “brooklyn brat pack mashup” video of Lisztomania, an amateur music video which remixes the song and scenes from the 1985 movie The Breakfast Club, has been the subject of countless amateur remixes (the “brat pack videos”) that are easily accessible on the Internet. Incredibly it is this very phenomenon — remixes of videos of this song — that Lessig has used in dozens of presentations* to illustrate the culture of creativity released by the Internet. And, implicit in his use of this example is that it is transformative, and therefore permissible under copyright fair use. *Here is another one on Youtube that has not been taken…

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Ninth Circuit Decision in Fox v. Dish is Another Blow to TV Networks

August 13, 2013

“The phone, the laptop and the tablet have advanced so dramatically. Television has been drastically left behind.” – Tom Rogers, CEO of TiVo, Inc., Wall Street Journal, July 30, 2013 _________________ First music, then books, now television. Music and book publishers have suffered well-publicized headwinds (some would say hurricane gales) at the hands of the Internet economy, and now 2013 is the year the TV and cable industries are beginning to face comparable technology-driven disruptive technologies. Technical advances now allow people who live in New York, Boston or Atlanta to use Aereo to watch inexpensive over-the-air television on Internet-enabled devices (potentially freeing them from more expensive cable fees), and subscribers to Dish satellite TV to watch primetime network TV ad free The broadcasters are fighting these developments in the marketplace and the courts, and the court actions have sent sparks flying in the world of copyright law. I’ve written about the broadcasters’ ongoing legal efforts to shut down Aereo, However, the Ninth Circuit’s July 24, 2013 decision in Fox v. Dish Network adds another dimension to the TV industry’s copyright battles.* *An important caveat in both cases is that the appellate courts were reviewing preliminary injunction decisions by district courts under a deferential standard of review. There is no certainty that the Second and Ninth Circuits will reach the same conclusion on an appeal of a final judgment in these…

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Massachusetts Attorney’s Innovative Attempt to Use Copyright Law to Remove Defamatory Material From “Ripoff Report” Unlikely To Succeed

August 6, 2013

An unusual copyright suit recently filed in federal court in Boston is worth a brief comment. Here are the facts. In July 2012 someone wrote an offensive, defamatory “complaint” about a Boston attorney on the website Ripoff Report.  Because a federal statute (47 USC § 230) protects Ripoff Report from liability for defamatory user generated content (“UGC”), the lawyer could not force Ripoff Report to remove the defamation from the site.* However, he came up with a clever (but, as we shall see, probably ineffective) work-around.  *Ripoff Report does not voluntarily take down UGC. The lawyer sued the original poster for defamation in Massachusetts superior court, and obtained a default judgment.  As part of the relief he was assigned the copyright in the defamatory posting (or, power of attorney giving him the right to assign copyright ownership to himself). He then demanded that Ripoff Report take down the copyrighted material. Ripoff Report refused, and the lawyer has now sued Ripoff Report in federal court in Boston for copyright infringement. Setting aside the question of whether transferring copyright ownership of defamatory material is a proper remedy for defamation (this implicates First Amendment issues), and whether the defamation at issue is even entitled to copyright protection (it is very brief and non-creative), can the lawyer use this strategy to obtain removal of the defamation from Ripoff Report?*  *More precisely, can the threat of…

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Fourth Circuit Holds That Federal E-Sign Statute Covers Copyright Assignments

August 1, 2013

Copyright registration requirements can get quirky, and if they aren’t handled properly can result in dismissal of a copyright infringement case (valid registration being a requirement before an infringement case can be filed). An invalid or defective registration can deep-six a copyright plaintiff’s suit on a technicality. The Fourth Circuit addressed a number of issues associated with copyright registration in Metropolitan Regional Information Systems, Inc. v. American Home Realty Network, Inc. (July 17, 2013), one of which is whether the requirement that assignment of a copyright be in writing (17 U.S.C. § 204) may be satisfied by an electronic signature under E-Sign, 15 U.S.C. § 7001. In what appears to be the first appellate decision on the question of whether E-Sign applies to the copyright statute’s signed writing requirement, the Fourth Circuit held that it does, and that the e-signature at issue in this case (a click-wrap agreement), was a valid assignment: The issue we must yet resolve is whether a subscriber, who “clicks yes” in response to MRIS’s electronic TOU prior to uploading copyrighted photographs, has signed a written transfer of the exclusive rights of copyright ownership in those photographs consistent with Section 204(a) [of the Copyright Act]. Although the Copyright Act itself does not contain a definition of a writing or a signature, much less address our specific inquiry, Congress has provided clear guidance on this point elsewhere, in the E-Sign Act….

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Things are Settling Back Down in Yoknapatawpha County

July 22, 2013

“It was as though she realised for the first time that you – everyone – must, or anyway may have to, pay for your past; the past is something like a promissory note with a trick clause in it which, as long as nothing goes wrong, can be manumitted in an orderly manner, but which fate or luck or chance, can foreclose on you without warning.” Requiem for a Nun, William Faulkner __________________ For many years the Estate of James Joyce was infamous for its use of copyright law to restrict what many people considered fair uses of  Joyce’s works. Now that most of Joyce’s works are in the public domain, it seems that the owner of William Faulkner’s copyrights, Faulkner Literary Rights LLC (“Faulkner”, is stepping up to take its place. But in the “Midnight in Paris” case you’ve gotta wonder: what the heck was Faulkner thinking? Even many people who have never read a word of William Faulkner will recognize these famous lines: “the past is never dead. It’s not even past.” These words are spoken by the fictional County attorney Gavin Stevens in Faulkner’s novel Requiem of a Nun. The production of a Hollywood movie oftenrequires the producer to obtain many copyright permissions. However, when Woody Alan’s Midnight in Paris was released in 2011, one of the characters paraphrased these lines from Faulkner. When the protagonist, Gil (played by Owen Wilson) accuses his wife, Inez (played by…

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Why Did Broadcasters Use a Local Affiliate to Challenge Aereo in Boston?

July 12, 2013

Why did a Boston affiliate of ABC file suit a major copyright infringement action against Aereo in Boston, rather than ABC itself? Or another major broadcaster, such as CBS, NBC or Fox? On May 15th, in a post titled “Does Second Circuit Decision Determine Copyright Legality of Aereo “Antenna-Farm” System Nationwide?”, I discussed the fact that Aereo had filed a preemptive suit in the Southern District of New York. The suit asked the federal district court to enjoin the major broadcasters (ABC, NBC, CBS, Fox) from filing what Aereo called “duplicative-follow-on suits” or “do-overs.” Aereo was attempting to prevent the broadcasters from following it around the country and filing a new copyright infringement lawsuit in each circuit in which Aereo launched its service. Aereo argued that the opinion of the Second Circuit Court of Appeals in WNET v. Aereo, holding that Aereo’s retransmission of over-the-air broadcasts do not violate broadcaster copyrights, was binding nationwide on the plaintiffs in that case. However, as I pointed out in May, even if that legal argument were to be successful, at best it would only be binding on the plaintiffs in that case. For example, while ABC was a plaintiff in New York and could, conceivably, be bound nationwide by the Second Circuit decision, Aereo could not stop a non–party, such as a local affiliate, from bringing suit in another district. In fact, that…

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Joel Tenenbaum Has Reached the End of the Line (Probably)

June 26, 2013

The recording industry’s case against Joel Tenenbaum for downloading 30 copyrighted songs has almost certainly come to an end with yesterday’s decision upholding the jury’s copyright infringement verdict of $675,000, or $22,500 per song. This case—one of only two out of tens of thousands filed against downloaders to actually go to trial (the others settled or were dismissed on various technicalities)—has been through a trial, two appeals to the First Circuit and one appeal to the Supreme Court. However, it seems almost certain that the case has reached the end of the line; all that’s left to Tenenbaum is an appeal to the Supreme Court, which has already declined an appeal from him once before. In retrospect, this case should never have taken this path. Tenenbaum could have settled for a few thousand dollars at the outset, but he chose (along with Harvard Law professor Charles Nesson, who reportedly represented him at no charge), to pursue the case on principle. The heart of his argument has been that statutory damages under the Copyright Act (which can be as great as $150,000 per infringement) violate due process because they are not tied to the actual injury caused by his downloads. The district court judge and the First Circuit didn’t buy it, in large part because (a) the copyright statute itself provides notice of the scope of the potential award, and (b)…

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Aereo, Antenna Farms and Copyright Law: Creative Destruction Comes to Broadcast TV (Part 4)

June 21, 2013

“Streaming copyrighted works without permission would drastically change the industry, to plaintiffs’ detriment. . . . The strength of [broadcasters’] negotiating platform and business model would decline. The quantity and quality of efforts put into creating television programming, retransmission and advertising revenues, distribution models and schedules — all would be adversely affected. These harms would extend to other copyright holders of television programming. Continued live retransmissions of copyrighted television programming over the Internet without consent would thus threaten to destabilize the entire industry.”  – Second Circuit in  WPIX, Inc. v. ivi, Inc. (2012) ___________________ This is the last in this four-part series of posts. Click here to access Part 3. Did the Second Circuit make a mistake in Cablevision and compound it by its decision in Aereo? What are the potential business, legal and legislative strategies available to the broadcast companies as Aereo continues its 22 city rollout? These are the questions I’ll discuss in this last of a four post series on the Aereo case. Did the Second Circuit Misapply the Copyright Statute in Cablevision and Aereo? The holdings in Cablevision and Aereo have been controversial in the copyright law community. Few observers doubt that there is a significant risk that courts outside the Second Circuit, including the Supreme Court, will knock out the key leg of Cablevision’s three-legged stool*: the holding that the retransmission of broadcast signals are not a public…

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Aereo, Antenna Farms and Copyright Law: Creative Destruction Comes to Broadcast TV (Part 3)

May 29, 2013

Click here for Part 1 in this series of posts, here for Part 2. In Parts 1 and 2 of this series of posts I discussed how Aereo designed its broadcast-TV-to-Internet system to fit within the ruling established by the Second Circuit in the Cablevision case anticipating that it would be sued for copyright infringement by a group of broadcasters. The broadcasters did file suit against Aereo, and in the Second Circuit, the very circuit in which Cablevision is controlling law and the circuit in which Aereo, not coincidentally, first offered its service. Home territory, in a manner of speaking. As expected, Aereo wrapped itself in Cablevision, and the district court ruled that Aereo’s “one antenna-one viewer” system did not violate the broadcasters’ public performance right under the Copyright Act. On this basis the district court denied the broadcasters’ request for a preliminary injunction that would have forced Aereo to stop operations in the Second Circuit, at the very least. The broadcasters appealed this ruling to the Second Circuit, which upheld the district court. The Second Circuit held that its holding in Cablevision controlled the outcome in Aereo, and set out four conditions that needed to be considered in evaluating a challenge to a rebroadcast system such as Aereo’s based on the copyright public performance right: First and most important, the Transmit Clause [of the statutory definition of public performance]…

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Aereo, Antenna Farms and Copyright Law: Creative Destruction Comes to Broadcast TV (Part 2)

May 21, 2013

Only one thing is impossible for God: to find any sense in any copyright law on the planet. – Mark Twain’s Notebook, 1902-1903 __________________ Click here to see Part 1 of this series of posts. In part 1 of this series I described how Aereo’s technology allows users to watch, record and access broadcast TV over the Internet. At the heart of this system is the use of a set of dime-sized antennas assigned to each subscriber, short buffering in RAM for retransmission and the creation of a unique per-subscriber copy of each broadcast the user wants to record for later viewing. Why did Aereo construct its system this way?  Why not one antenna and one copy of each broadcast? Aren’t the thousands of antennas and thousands of personal copies expensive and unnecessary? The answer is that they may be expensive and technically unnecessary, but they are essential to Aereo’s ability to avoid broadcaster claims of copyright infringement. In fact, this Rube Goldberg system was designed to fit the legal parameters of a case decided by the Second Circuit in 2008. And, it is no accident that Aereo first released its service in New York, which falls in the Second Circuit, drawing a lawsuit by the broadcasters in the same circuit that had decided the 2008 case. The case that Aereo based its design on is the Second Circuit’s famous (or,…

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