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 Canadian lawmakers realize that the current copyright laws are — um — outdated, pre-internet, pre-P2P, pre-very-easy-download, and they’re looking to do something about their own law.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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Marilyn Monroe photos can be freely licensed by the copyright holder — until the appeal

Tuesday, March 31st, 2009

The Judicial View has noted the trial-level results of the fight that has been going on over the rights to Marilyn Monroe photographs. The copyright holder was photographer Sam Shaw, deceased; Mr. Shaw’s family formed a business entity for the purpose of holding the copyrights to his works.

Marilyn also has a successor organization, called Marilyn Monroe, LLC, that holds her intellectual property assets under the terms of her will.

The Shaw Family Archives licensed a t-shirt company to make and sell t-shirts bearing Marilyn’s likeness. They were sold at a Target in Indiana, which gives a famous personality a freely descendable right of publicity for 100 years after the personality’s death, regardless of that personality’s domicile or residence. Marilyn Monroe, LLC sued the Archives under this Indiana law, claiming that the right of publicity was infringed. The Archives, which holds the copyright in the images, responded that they hold the copyright and under federal copyright law they have the right to license the images to whomever they see fit. New York does not have a statutes similar to Indiana’s so Monroe sued in the US District Court for the Southern District of New York (SDNY), where the court must apply New York state law if state law must be applied, under the Copyright Act (17 USC) for an injunction against the Indiana action and for associated attorneys’ fees. Marilyn Monroe, at the time of her death, was domiciled in New York and her will was probated in New York, which gave New York courts the jurisdictional toehold (which is all they need) to hear the case.

Because Marilyn Monroe was domiciled in New York at the time of her death, and because New York has no right of publicity law (let alone a post-mortem right of publicity), the right of publicity was deemed in this matter to have died with Marilyn in 1962.

After a good bit of procedural juggling, the Indiana case, along with a sister case in California, ended up in the SDNY, which proceeded to enter summary judgment dismissing the Monroe, LLC right of publicity claims under Indiana law and noting that the Indiana Act was enacted over three decades after Monroe’s death and that Monroe never had any contact with Indiana during her lifetime. California, meanwhile, decided that Monroe, LLC were estopped from contesting that New York was Monroe’s state of domicile at the time of her death.

The SDNY then entered summary judgment in favor of the Archives, and granted attorneys’ fees under the Indiana law to the Archives.

The case presents an interesting view of the conflict between a state’s right-of-publicity laws and the federal copyright laws. In this particular matter, the right-of-publicity laws were held not to have survived Marilyn Monroe’s death, thus preventing the court from having to decide which law prevails in a head-on collision, but what will happen in a case where the laws do come into direct conflict?

The appeal is now pending before the US Court of Appeals for the Second Circuit.

I served as local counsel in the SDNY to the Archives’ attorneys in this matter.

Tags: Marilyn Monroe, Rights of publicity, Shaw Family Archives, State law vs. Federal law
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United States Supreme Court Grants Cert to Decide Significance Of Copyright Registrations

Wednesday, March 18th, 2009

United States Supreme Court Grants Certiorari To Decide Significance Of Copyright Registrations

Wow…

Of course, if you apply to the Copyright Office for special handling and use the words “ongoing infringement,” they will bring your application to the top of the pile and get the registration, if granted, to you in a few days or weeks rather than a few months.

However, it would be delightful if the Nine Wise Ones decide that filing for copyright registration is sufficient to proceed to litigation under 17 USC 411(a); that would ease the burden on the litigants to either wait for the Copyright Office to operate in due course or pay the extra fees to get them to operate more quickly than due course. It would ease the burden on the Copyright Office to handle “rush” jobs that are waiting at the courthouse door. Of course, the defense bar would disagree with me….

I’ve been known to take my own sweet time with the pre-filing settlement negotiations while I await the Copyright Office’s action in registering a client’s infringed work. That sometimes works better than litigation for all parties, so I’ve never actually found that the Copyright Office has held up anything I desperately wanted to do, especially since the fact of removing the infringing item does not negate the fact of the infringement for which my plaintiff is entitled to remedy.

Tags: Copyright registration, US Supreme Court
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Copyright Office will change its fees in July

Wednesday, March 18th, 2009

Don’t file a copyright registration application on paper after they do, either. It will be pricey as all get out.

Their online registration fee remains $35.00.

Tags: Copyright registration
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Facebook Repeals Copyright Plan – I4U News UK

Wednesday, February 18th, 2009

Facebook Repeals Copyright Plan – I4U News UK.

The Public Has Spoken.

Facebook put new Terms of Service into effect on its website a couple of weeks ago. Those terms basically said that Facebook has a royalty-free license forevermore to use for any purpose anything that any user posts on the site.

The users roared loudly enough to get the Facebook IP lawyers to listen. They’ve backed down on that one now.

Way to go, Facebook Users!

Tags: Copyright, Facebook, Social media
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