On August 27, 2008, U.S. District Judge Howard Lloyd in the Federal Court sitting in San Francisco dismissed a copyright infringement claim against video-hosting service Veoh, saying that the company had done what was required under the Digital Millennium Copyright Act (DMCA) to respect copyrights. Namely, it adopted and implemented an appropriate policy for identifying infringing content, removing the content, and disabling the accounts of repeat infringers.
Adult entertainment company Io Group filed suit against Veoh when several video clips of its registered content appeared on Veoh. However, Io Group did not send Veoh a DMCA takedown notice. IO argued that Veoh should be responsible for reviewing every video uploaded to its site before they were made available for viewing by its users. Judge Lloyd disagreed, stating that Veoh did its duty under the DMCA when it removed the videos, holding that “the DMCA was intended to facilitate the growth of electronic commerce, not squelch it… The court finds no reasonable juror could conclude that a comprehensive review of every file would be feasible.”
In summing up his reasons for dismissing the copyright infringement suit against Veoh, Judge Lloyd went on to offer some guidance for falling under the safe harbor provision of the DMCA:
“the court does not find that the DMCA was intended to have Veoh shoulder the entire burden of policing third-party copyrights on its website (at the cost of losing its business if it cannot). Rather, the issue is whether Veoh takes appropriate steps to deal with copyright infringement that takes place. The record presented demonstrates that, far from encouraging copyright infringement, Veoh has a strong DMCA policy, takes active steps to limit incidents of infringement on its website and works diligently to keep unauthorized works off its website. In sum, Veoh has met its burden in establishing its entitlement to safe harbor for the alleged infringements here.”
Those of you hosting user-generated content may want to read the entire opinion for tips on playing nice with the DMCA (and avoiding liability).
The Copyright Office is conducting a Ruelmaking regarding Section 115 of the Copyright Act. Anyone interested in submitting comments to the Notice of Proposed Rulemaking (NPRM) MUST get them into the Copyright Office on or before the August 28, 2008, deadline.
A little background:
Section 115 provides that when musical works have been distributed to the public in the United States under the authority of the copyright owner, any other person may obtain a compulsory license to make and distribute the work (think cover songs). This ”compulsory license”–set forth in section 115–permits the use of musical works without the consent of the copyright owner if certain conditions are met and royalties are paid.
(Hear Russel Rains explain all about compulsory licensing.)
What does this have to do with Internet Radio?
Section 115 was amended on November 1, 1995, with the enactment of the Digital Performance Right in Sound Recordings Act of 1995 (”DPRA”). Among other things, this law expanded the section 115 compulsory license for making and distributing phonorecords to include distribution of a musical work by means of a digital phonorecord delivery. A digital phonorecord delivery (DPD) is
Each individual delivery of a phonorecord by digital transmission of a sound recording which results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording, regardless of whether the digital transmission is also a public performance of the sound recording or any nondramatic musical work embodied therein.
Here’s the rub:
The proposed regulations would permit the section 115 license to cover all musical works made and distributed to the public for private use, including those works made on the end‑users’ RAM or hard drive, on transmission services’ servers, and all intermediate reproductions on the networks through which transmission occurs. A statute that was written to cover the reproduction of physical media now applies to the songs stored in your computer’s RAM while you listen to Pandora. Very, very expensive. In fact, so expensive that it will kill Internet radio faster than Raid v. Cockroaches. Broadcast radio stations pay no royalties.
Were are we now?
Several digital media groups have asked the Copyright Office to extend the time for submitting comments on the new regulations to ensure that incidental server copies (those required to manufacture and deliver a consumer copy) and songs stored temporarily in RAM do not trigger royalties and that the 115 License covers only legitimate copies of songs, those that are burned to CD or copied to a portable device.
The Second Circuit Court of Appeals August 4, 2008, ruling in The Cartoon Network LP, LLLP v. CSC Holdings, Inc., (no copyright infringement for storing media in a remote server to watch later) gave the Copyright Office the political cover it needed to re-evaluate the regulation and to extend the rulemaking for additional comments.
“The Office agrees that the ruling in the Cartoon Networkcase may be pertinent to the issues raised in this rulemaking and that interested parties should be given sufficient time in which to consider and comment upon the implications of that ruling. Therefore, the Office has decided to extend the deadlines for submission of comments. Comments must be received in the Office of the General Counsel of the Copyright Office no later than Thursday, August 28, 2008 at 5:00 p.m. Reply Comments must be received no later than Monday, September 15, 2008 at 5:00 p.m. The purpose of reply comments is to respond to what is said in the initial round of comments. The Office will post the initial comments on its website, www.copyright.gov, shortly after the August 28 deadline.”
Hopefully, we’ll see a final rule that recognizes Internet broadcasting as a performance and not as a copy.
(For some insight into copyright reform in Canada, I’ve reposted–with permission of the author–a recent article by Canadian Attorney, Jeffrey F. Vicq.)
A fascinating though somewhat sleepy area of the law, copyright reform has garnered a great deal of attention in the last several years. In 2005, the governing Liberals introduced a copyright reform bill that died when a federal election was called. The Conservative party made copyright reform part of their 2006 election campaign platform; after taking office, their October 2007 Throne Speech promised that copyright reform would be part of the government’s agenda for that year. The government subsequently indicated a bill would be introduced in December.
However, copyright law advocates quickly mobilized a campaign against the planned legislation, suspicious that the bill would undermine the “fair use” rights of citizens. Seemingly fearful of public backlash, Industry Minister Jim Prentice decided not to introduce the bill until the legislation was in a form he “could take pride of,” striking a balance between “consumer interests, the interests of creators and users and all of that.”
William Patry has announced that he will be pulling the plug on The Patry Copyright Blog. Among his reasons were the constant tendency of readers to attribute his comments to his employer and his feeling that copyright law no longer serves the purposes for which it was created.
“Much like the U.S. economy, things are getting worse, not better. Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together again: multilateral and trade agreements have ensured that, and quite deliberately.”
I’m not sure that there will ever be another copyright blog as interesting, insightfull or written by someone with such keen understanding of the issues. We’ll miss you.
Designers and business owners often wonder about using clip art when designing logos for their or their clients’ business. Should I hire a designer or come up with something on my own? Should I use clip art?
Two things are going on when you create a logo for your business or product. One, you are creating work of authorship that is subject to copyright protection. Two, you are creating a brand(sizzle…mooo! I hope people don’t still brand cows) that designates the origin of the goods or services you are marketing and that distinguishes them from the goods or services of others, a trademark.
Copyrights are about original works of authorship. Trademarks are about marketing.
Copyright infringement (use without permission) is all about originality. If someone is using art that looks identical to yours, that would be ok if it was created independently. For example, two people painted independent images of a frog that just happen to look very similar. As long as its independently created, you are ok. However, if you copy the image, that would be copyright infringement.
Trademarks infringement is all about customer confusion–does a competitor’s use of the same or similar mark trick the public or trade on my goodwill and reputation? With trademarks, it doesn’t matter if its independently created if it causes confusion. All that matters is who used it first and whether it is distinctive. So a trademark protects use of the image in similar industries or for similar goods. A copyright protects the work no matter how it’s used. (This issue only comes up with logos, because they are both works of arts and may serve as a trademark. For “word marks” we’d likely only be dealing with trademark issues.”)
Now about clip art. Someone else owns the copyright to that. So, when you use it, you only have a license. The license is generally contained in the clip art library you buy (CD or download.) You should read that to see what your rights are. For example, you may have to right to use it on the web or on promotional material, but you will rarely, if ever, “own” it. This is fine if you are using it on your website or in a product piece, but it’s an awful idea to use clip art for a logo. You should always hire a designer or come up with your own logo. Here’s why.
From a copyright point of view, you can only register copyright to your original artwork, or artwork that you own (say, by purchasing the copyright from another party.) If you register it. You can sue people who rip you off, you can force people to take the image off of web sites, and you can possibly force them to pay you statutory damages and attorney’s fees. If you don’t own the copyright (and a registration for your logo’s copyright.) You don’t have any of those rights. Worse, the person may also have a license to use the clip art, in which case you can’t do anything at all. Imagine the impact of seeing “your” logo used in connection with something that offends you or competes with you, and not having the power to do anything about it. Not so great.
From a trademark point of view, the issues are different. Trademarks allow you to protect your “distinctive” mark from confusingly similar marks that might trick your customers into thinking certain goods or services come from the same place. For example, the Apple logo. If someone were to use that logo in connection with a computer product, the consuming public would automatically assume that the product comes from Apple. However, if you were to use a generic clip art image (say, a flying squirrel) in connection with your internet consulting company, and 15 other companies used the same clip art images (for say, internet consulting, women’s shoes, snowboards, etc.) you would have limited ability to prevent them, even if it was causing customer confusion (in the example of the internet consulting company.)
Why? In the case of the image used with other dissimilar companies, they have a legal right to use it too because they licensed the clip art. So there is no copyright infringement problem. In the case of the image used in connection with a confusingly similar company, because the image is widely used and is unoriginal, a court probably wouldn’t find that it was “distinctive.” If it’s not distinctive, it can’t function as a trademark and you can’t protect it.
Bottom line: use clip art for general things, but when coming up with a brand for your company. Original artwork is the way to go.
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