Copyright Law Turns 300 Years Old

Thursday, April 15th, 2010

Copyright turns 300 – Boing Boing.

The Statute of Anne, the first modern copyright law, is now 300 years old. The Statute of Anne is the precursor of the copyright law as it exists today in the US and in Great Britain today, although those two progeny sets of law differ in several of their details. I write from the point of view of a lawyer in the US.

I disagree with this author, who thinks copyright is in place to stifle the creative muse. Copyright is in place “…To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; …” United States Constitution, Article I, Section 8, Clause 8.

The author states: “Today, ‘copyright curriculum’ warns schoolchildren not to be ‘copycats’ – to come up with their own original notions.”

Copyright does not protect notions (ideas). Copyright protects the expression of ideas. I cannot read your mind to show that you, in your mind, copied someone else’s work; to show infringement, I must show that a “substantially similar” copy exists of a work that is protected by a valid copyright. We do have a problem with uncredited copying of others’ materials; that is both copyright infringement and plagiarism.

The author of this piece says he learned to write by picking Star Wars apart. As a copyright lawyer in the USA, I have no problem with that; it’s a fine way to learn to write. The author was engaging in making a fair-use derivative of Star Wars: he copied the story for educational purposes, and I doubt very much that he ever published his Star Wars derivative. Fair use is an absolute defense to the copyright of others.

However, there are those who would, if given the legal chance, be more than happy to copy Star Wars (or any other successful franchise). The intellectual property laws are in place to protect the originators and owners of the successful (and not so successful) products of human thought.

Tags: copyright law, Proof of copyright infringement, Statute of Anne
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Viacom v. YouTube

Monday, March 22nd, 2010

Analysis Of Google And Viacom’s Arguments Over YouTube: A Lot Of He Said/She Said | Techdirt is a nice analysis of the Viacom v. Google copyright infringement suit as it currently stands. The article leans heavily toward Google’s side of the argument.

Viacom vs. YouTube Unsealed! YouTube’s Steve Chen on Copyrighted Content: ‘Steal It!’ is a nice analysis of Viacom v. Google. The article leans heavily toward Viacom’s position.

This case tests the Title II of the Digital Millenium Copyright Act (DMCA), the Online Copyright Infringement Liability Limitation Act (OCILLA). OCILLA provides ISPs with a “safe harbor” from a copyright infringement suit provided the ISP follows the guidelines. In the current case, Viacom, a motion picture studio that has produced many popular films, has sued YouTube, an ISP that hosts user-posted video content, some of which is taken directly from Viacom’s movies. YouTube is using OCILLA to say it has no responsibility to Viacom after following the statutory guidelines.

The question is whether YouTube actually followed the safe harbor guidelines. To get to that answer, the case must determine just how much knowledge of infringement on the part of the ISP is too much knowledge. Should YouTube, sua sponte, have taken down the copyrighted materials even before Viacom complained to them about the infringement by YouTube users?

The two blog posts cited here give you the summary judgment motions of both parties

Me, I tend toward Viacom’s side in this one. The presence of what I know to be copyrighted materials on YouTube has always bugged me.

Tags: Copyright, DMCA, OCILLA, Viacom v. Google
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Disney to Buy Marvel for $4 Billion – ABC News

Monday, August 31st, 2009

Disney to Buy Marvel for $4 Billion – ABC News.

Wow. Just wow.

Disney is already among the biggest entertainment businesses in the world, what with the movies and the theme parks and the hotel properties and the Broadway shows and all the rest of it. I believe they even have an inroad in the comics market (if they don’t now, I’m sure they did when I was a kid; I remember Mickey Mouse comics). Marvel has a thoroughly different look from Disney, so this will be an interesting evolution. I wonder if Superman will develop the Disney eyes?

Tags: Disney, Marvel Comics
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Daisy Baker’s subject of copyright lawsuit: From Business Review Albany, NY

Wednesday, July 22nd, 2009

Daisy Baker’s subject of lawsuit – The Business Review Albany: .

I keep telling people that COPYRIGHT LAW HAS TEETH.

This is an example of those teeth. The plaintiff, copyright holder ASCAP, is going after Daisy Baker’s, which is a business local to me (well, sort of local…the next city over), for allowing performance of music on which copyright exists. The business is the venue in which the music was allegedly played without license. The article doesn’t say whether ASCAP is also going after the performers (they could).

It’s easy (very easy) to license music from ASCAP or BMI (the two big copyright holders in the music world). It’s cheap to license the music. It’s expensive to defend a copyright infringement suit (lawyers cost money…), and then to pay the statutory remedies that are available for a registered copyright, perhaps trebled, perhaps with plaintiff’s reasonable attorney fees added in…. Why go there when it’s so easy and cheap to license the music to begin with??

Tags: ASCAP, Copyright infringement, Daisy Baker's
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Canada's looking at new copyright laws

Saturday, July 18th, 2009

Canada set to try again on new copyright law – washingtonpost.com.

Now, isn’t this interesting. Canadian lawmakers realize that the current copyright laws are — um — outdated, pre-internet, pre-P2P, pre-very-easy-download, and they’re looking to do something about their own law.

The US regularly updates its copyright laws, but the US, so far, has laws that have little to do with reality. Peer-to-peer (“P2P”) sites abound with content that clearly violates copyright law, and that content is downloaded by tens of thousands of people worldwide. How will the US keep up with this deluge of potential copyright infringement cases (there aren’t enough federal courts to hear these cases) unless we pass legislation that automatically compensates the copyright holder whenever a download is made. One way that this can be accomplished: advertising revenue for the copyright holder paid by the P2P site which enables the download. Another, better, way is for every P2P or .torrent site to charge a fee (one-time or membership, that doesn’t matter) for the downloads.

How about it, Congress?

Tags: Canadian copyright law, Copyright infringement, P2P site, peer-to-peer site
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Scoff at copyright law at your peril…

Tuesday, July 14th, 2009

More trouble ahead for copyright scofflaws – Ask the Editors | Tri-City Herald : Mid-Columbia news .

The RIAA cases may have ground to a slow halt, but that does not mean that the copyright laws are to be ignored.

The Associated Press v. All Headline News case in New York settled with an undisclosed settlement payable to AP for the unauthorized use of AP stories and headlines by All Headline News. This case stresses the doctrine, first established by the US Supreme Court in 1918, that facts cannot be copyrighted but “hot news” gives a publisher the right to sue and collect damages even on facts.

In Europe, publishers have renewed their outcry for tough copyright laws protecting written materials as the publishers consider that the internet may provide them with additional streams of revenue.

Remember, in the US, the only two factors in a copyright infringement suit that plaintiff must prove are (1) a valid copyright exists and (2) a substantially similar copy exists. That’s it. No intent need be shown. No money need change hands. Copyright infringement is strict liability land. And damages are stiff.

Tags: AP settlement, Associated Press v. All Headline News, Copyright, Copyright infringement, European copyright
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Woman fined to tune of $1.9 million for illegal downloads – CNN.com

Monday, June 22nd, 2009

Woman fined to tune of $1.9 million for illegal downloads – CNN.com.

Hey, those RIAA copyright suits are still out there … and copyright still has TEETH.

$1.9 million for a few $0.99 songs.

And It Can Happen To You….

Tags: Add new tag, Copyright infringement, Remedies, RIAA
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Ain't No Plagiarism in Harry Potter Says Publisher – Yahoo News

Wednesday, June 17th, 2009

Ain’t No Plagiarism in Harry Potter Says Publisher – Yahoo News.

Hmm. Copyright infringement and plagiarism seems to be coming out of my ears these days. Here the plagiarism, if found, would be for the general plot line. Harry Potter fought in the Triwizard Tournament and rode the Hogwarts Express (a train); the claimant’s wizard was a hostage and rode a train. The claimant’s book is The Adventures of Willy the Wizard No. 1, Livid Land.

The grounds for copyright infringement in the US are: (1) a valid copyright, which the estate of Adrian Jacobs may indeed have; and (2) a SUBSTANTIALLY similar work, which is where I think the estate falls flat. Lots of characters are held hostage and ride on trains. Not so many characters are wizards, but surely a wizard riding on a train and getting into a hostage situation … plagiarism?? Harry does many, many things besides ride on the train and get into a hostage situation.

The Hogwarts Express entered the Harry Potter lexicon with the first book. So did Voldemort … and Voldemort took a hostage in the second book (a witch named Ginny Weasley). The fourth book,  which all the hoopla is about, was published in July, 2000. I will point out that it’s now 2009; the book has been around for awhile. Why the wait to sue, Plaintiff?

Seems to me that this is one of the more stupid lawsuits. Best wishes to Rowling defending this one; it shouldn’t be too tough to do.

Tags: Copyright, Copyright infringement, Harry Potter, Plagiarism
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Justice Dept. Seeks Details On Google Deal – washingtonpost.com

Thursday, June 11th, 2009

Justice Dept. Seeks Details On Google Deal – washingtonpost.com.

After several years of fighting a large copyright issue, the GOOGLE v. Publishers and Authors suit settled out for about $125 million. The deal they struck is that GOOGLE gets to continue putting together its online library and the publishers and authors go away compensated for their copyright interests.

It turns out that it’s not that easy. In comes the US Justice Department. The DOJ is investigating the GOOGLE/publishers-and-authors deal with an eye toward finding an antitrust violation hidden somewhere in that deal.

It is true that the deal would make GOOGLE the leading online source of books — after all, it ain’t Yahoo scanning in those millions of titles from the large repositories. However, there is nothing that I know of in the deal to prevent Yahoo, or anyone else, from also reaching a deal with the authors and publishers and scanning in the works to compete with GOOGLE; GOOGLE just happens to be the first kid on the block to come up with this notion. This is a deal that was reached between these particular litigants to allow a project that could be of significant benefit to the whole world to go forward.

Now, I’m sure there’s something here that I don’t know about, but antitrust? Where’s the restraint of trade?

Tags: Antitrust, Copyright
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Is online piracy a good thing? – CNN.com

Sunday, April 19th, 2009

Is online piracy a good thing? – CNN.com.

There has been raging a huge copyright case in Sweden. The trial phase of that case is now over, and four people are in jail for online piracy. 

Obviously, I, a copyright lawyer, think that piracy of copyrighted materials is a bad thing.

That does not say that I think that file sharing is a bad thing. I’m a huge fan of downloading music and video. The difference is that I pay the 99 cents to iTunes for my download.

File sharing is here to stay; it is true, and a point well taken, that the courts can do nothing about that. This means that the copyright law will have to catch up with technology more quickly that the law is wont to do. 

That also does not say that I think Sweden’s solution is a good one. Obviously, we cannot send everyone who illegally downloads a file to jail. That is an absurd outcome. Neither can we continue to send website owners whose sites allow for (or even encourage) peer-to-peer sharing or illegal downloads to jail. That, too, is absurd.

In the US, many, many cases have been filed and won by the Recording Industry Association of America (RIAA) against individuals who have illegally downloaded music. These lawsuits did nothing to curb the pace of illegal downloading; they just got the public angry with the RIAA. The massive flow of lawsuits has now slowed since the RIAA has struck up a deal with the ISPs to slow the connections of those who download copyrighted music illegally to the point where the connection speed eventually becomes zero. 

This is more reasonable than sending the whole world to jail, but it does not compensate the artists for the download. Not compensating an artist for his or her work is a bad thing.

One possible solution is to institute a blanket licensing fee for downloading copyrighted material that the user pays each month to their ISP. That way, the downloads are, by definition, legal; no one goes to jail or gets hit with a massive copyright infringement suit. The licensing fee does not have to be huge or even large; perhaps an extra $5 or $10 tacked onto the connection fee every month. The fee could be imposed by the ISP beginning in the month after a particular account downloads illegally. Thus, those who never engage in illicit downloads (and there are those of us out there) never get hit with the fee. However, once the illegal download occurs, the fee would be on that account for the rest of the time that the account is on that ISP’s service.

ISPs, by the way, are smart enough to tell when you stop and start your account; that strategy would not be effective in this instance unless you switch to a whole new ISP after each illegal download (which is way more costly than is the extra $5 or $10 you’re now paying in licensing fees, and there are only so many ISPs out there). 

What do you think?

Tags: Esq., File sharing, Magnus Eriksson, Monique Wadsted, MPAA, Piratbyran, The Pirate Bay
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