Category: Copyright

Beatles Collection DOES Have Protection Under Copyright

Posted on by Delain Law Office

BlueBeat.com tried. They sold digital copies of Beatles music without proper licensing. They can’t do that.

U.S. District Judge Josephine Staton Tucker, who ruled that BlueBeat.com violated the copyrights and presented unfair competition to music company EMI Group and others, is quite correct. Although the judgment she issued does not specify damages for infringement and for unfair competition, the fact that BlueBeat.com created and distributed digital files of Beatles music, evidently based on the complete CD collection of their music makes them liable for what would seem, from an outside viewpoint, to be enhanced damages. This site sold some 67,000 copies for 25¢ per track. iTunes, which has properly licensed the Beatles’ music, sells each track for $1.29.

BlueBeat.com’s owner, Hank Risan, evidently tried to bamboozle the judge by calling his activities “psycho-acoustic simulation”; he claims that this activity results in unique copies of copyrighted music. However, the key word in that sentence is “copies”; Mr. Risan’s “psycho-acoustic simulation” is nothing more than a derivative work; the right to produce derivative works belongs exclusively to the copyright holder.

I don’t know whether BlueBeat might have fared better with a fair use defense. My guess is probably not. However, there are some uses of Beatles’ music that are educational, and the attorney might have stood a better chance of convincing the skeptical District Judge with the “fair use” defense. I dunno; maybe he did pull that rabbit out of the hat. I haven’t read the pleadings.

Anyway, it’s an interesting case, and the judgment gives the remaining live Beatles and the estates of the Beatles who have passed on some good news for the holidays. The judgment also reasserts my faith in the system, which has gotten somewhat battered of late.

Copyright a Chilean Note

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The author who said, “estamos bien en el refugio los 33” has registered a copyright on the phrase.

So what, you ask?

That phrase, written in red ink, announced to the world that the trapped Chilean miners were alive and well down there in the broken mine.

That copyright registration has some pretty interesting ramifications.

First, it’s a very (very) short work of authorship; in the USA, one sentence very, very rarely, if ever, qualifies for copyright registration. Senor Ojeda registering his sentence, it seems to me, is something like Capt. James Lovell registering “Houston, we have a problem.” Are we seeing a muddling building between copyright and trademark?

Second, you know there will be movies made about this incident. If the copyright on the note is registered, the moviemakers will have to pay a chunk of money to license the use of the text for their movies, at least for those movies distributed in Chile. If an “author” can register copyright on essentially a tagline, it looks like Chile might be redefining the concept of “authorship.” After all, how much creative thought goes into the statement of the fact that all 33 miners are safe in the mine?

What does the registration of what is essentially a tagline under copyright bode for the future of copyright?

Salinger v. Colting Is Making Its Impact

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This case is about copyright and the burden of proof to obtain an injunction in the Second Circuit.

Up until this case came down in April 2010, the courts in the Second Circuit held just about automatically that a preliminary injunction should be granted when a copyright holder claimed irreparable damage. This is one of the features of second-circuit case law that made it so very popular with plaintiffs; most circuits hold that the test for a preliminary injunction is that “[a] plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. eBay, Inc. v. MercExchange, LLC, 547 US 388, 391 (2006).

In Salinger, the Second Circuit holds that the law of eBay, a patent infringement case, specifically applies to copyright cases.

So what does this mean for the average copyright holder? It means that, to obtain a preliminary injunction in the Second Circuit, a plaintiff must show that:

(1) it has suffered an irreparable injury; accomplish this by showing that defendant has infringed copyright, thereby depriving plaintiff of benefits other than money that are available to it under the copyright law.

(2) remedies available at law, such as monetary damages, are inadequate to compensate for that injury; accomplish this by showing that the damage done cannot be fixed by throwing money at the problem.

(3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; show this by showing that plaintiff suffers more harm through the lack of a preliminary injunction than defendant suffers under a preliminary injunction.

(4) that the public interest would not be disserved by a permanent injunction; show this by showing how the plaintiff’s case advances the public interest in maintaining a bundle of rights exclusive to copyright owners.

This is a much higher standard of proof than previously existed in the Second Circuit for preliminary injunctions in copyright matters. It remains to be seen whether the additional burdens of proof will impact the number and quality of preliminary injunctions issued in the Second Circuit.

Stay tuned….

Copyright Law Turns 300 Years Old

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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.

Viacom v. YouTube

Posted on by Delain Law Office

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.

Disney to Buy Marvel for $4 Billion – ABC News

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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?

Daisy Baker’s subject of copyright lawsuit: From Business Review Albany, NY

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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??

Canada's looking at new copyright laws

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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?

Scoff at copyright law at your peril…

Posted on by Delain Law Office

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.