“It’s a natural impulse to want to support the little guy, the David who faces down a powerful Goliath. That’s why it’s easy to get behind this guy’s claims that a copycat business is suing him to force him to abandon his own copyrights. Wtf!, you might say when you read something like that. Is that even possible? It is, and the story is more nuanced when you look at both sides, which makes it a good example of why it’s sometimes hard to be a “good consumer” when deciding where to spend your money.” Read the full story at The Consumerist.
On Monday, Central District of California Federal Judge Gary Klausner gave Presidential candidate John McCain, the Republican National Committee, and The Ohio Republican Party an extension until November 17 to respond to the complaint for copyright infringment filed against them by musician Jackson Brown. Judge Klausner had previously ordered the defendants to answer the complaint by October 24.
At issue in the case is a commercial released by the Ohio Republican Party that mocks Barack Obama’s suggestion that the country’s motorists could conserve gasoline by keeping their tires properly inflated. During the commercial, a sound recording of Jackson Brown’s Running on Empty plays in the background. According to Mr. Brown’s complaint, this “falsely suggests that Brown sponsors, endorses and is associated with McCain and the Republican Part. when nothing could be further from the truth.” None of the defendants sought or obtained a license of permission to use Mr. Brown’s work.
McCain and the republican party have been on the wrong end of a number of cease and desist letters from artists whose songs were used without permission of compensation, including ABBA, Franki Valli, and John Mellencamp. To date, only Mr. Brown has brought suit, but any of the other artists likely would have standing to do the same. (If you change your mind ABBA, take a chance on me.)
Assuming for the moment that this is a clear cut example of copyright infringement, the interesting question becomes what potential exposure does McCain have for damages? We don’t know what his position is because the defendants have managed to avoid answering Mr. Brown’s complaint. However, I think its safe to assume that McCain will claim that he had no hand in the development of the commercial and that he never approved violating intellectual property or publicity laws.
That’s where the Bipartisan Campaign Reform Act (BCRA), enacted in 2002, comes into play. It requires “a statement by the candidate that identifies the candidate and states that the candidate has approved the communication”. The “Stand By Your Ad” provision was intended to force political candidates running any campaign for office in the United States to associate themselves to their television and radio advertising. One would think then, as a matter of law, Mr. McCain cannot claim to be an innocent infringer. It will be interesting to see whether BCRA is interpreted this way by the court.
Copyright is the set of exclusive rights granted to the creator of a particular work. These rights include the right to reproduce the work, distribute copies, and create new works based on the original work. Copyright protection lasts for the life of the author plus 70 years, and can protect such things as:
Literary works
Software code
Music compositions, sound recordings
Visual works
Films, television shows
Architectural works, and
any original work of authorship
While copyright registration is not necessary to own a copyright, it is required to enforce your rights and to control the use of your work.
What if you could organize your social network around your media consumption habits? How about using your network to filter video and music content? uPlayme thinks it may have found the content sweet spot with its new application that sits on your desktop, sees the content you play on applications like iTunes and websites like Pandora and YouTube, and creates a social network that lets you chat, connect and share with new friends online.
The catch is that uPlayMe will depend on you to find and share content from non-pirated sources (YouTube is a bit suspect) and from sources that have already paid the hefty licensing fees to broadcast music (Internet Radio is hanging by a thread). If it manages not to increase the flow of pirated content, uPlayMe should be able to legitimately make moneywithout paying licensing fees or getting permission from rights holders. It’s an interesting model that mixes clearly non-infringing content (iTunes) with content that almost certainly infringes (YouTube). We’ll have to see how this plays out.
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.
PK officially supports neither side in the dispute, but notes that–
“Blizzard’s argument would eviscerate the traditional relationship between copyright and contract and, in the process, upset the delicate equilibrium between the rights of copyright holders to manage their intellectual property (“IP”), and the rights of the public to use the products that embody that IP. Under Blizzard’s theory, a copyright owner could not only contractually impose the most onerous restrictions on its customers—restrictions that undermine rights guaranteed by copyright and First Amendment law—but could also enforce those conditions with the threat of copyright law’s high statutory damages.”
“Eviscerate” is a term generally reserved for Blizzard’s World of Warcraft in-game play, but it pretty neatly summarizes the problems with Blizzard’s legal theories. For example, if Blizzard were to prevail under its expansive theory, it would allow game creators (and virtually any copyright owner) to sue individuals for enormous copyright damages regardless of whether the individual violated the copyright act. That would be a neat trick.
Oral arguments on both motions for summary judgment are set for June 26th.
Copyright—a set of exclusive rights to use certain content and to prevent unauthorized use by others.
Derivative work—incorporating pre-existing copyrighted work into a new work that is itself copyrightable. Creating derivative works is one of the exclusive rights reserved to the copyright owner, unless it falls under the fair use exception.
Fair use—the exception to the exclusive right where the content is “transformed” and used in a new way. Fair use has been summed up as the right–in some circumstances–to use copyrighted material without asking permission or paying for it.
To evaluate fair use of copyrighted material, the courts consider four factors set out in 17 U.S.C. 107:
the purpose and character of the use
the nature of the copyrighted work
the amount and substantiality of copying, and
the market effect.
For most courts, the most significant factor in this analysis is the fourth factor–effect on the market. If the new work reduces demand for the original work, then it’s very difficult for the secondary author to claim fair use. On the other hand, if the use does not compete with the original (a parody, criticism, or news report) it is more likely to be fair use. Courts also have applied the doctrine of fair use to visual collages and musical works, such as 2 Live Crew’s “Oh Pretty Woman.”
So what about a mashup? Such as the wildly popular “The United State of Pop” by DJ Earworm or the hard-to-come-by “Smells Like Booty” (the amazing mashup of “Smells Like Teen Spirit” and “Bootylicious”). This art form has been growing in popularity since 2003 and is seen in everything from the works of DJs, to Academy Award® montages, to small theater and choral productions.
Are mashups derivative works? Absolutely. Is this fair use? Probably so. Its certainly transformative and unlikely to replace demand for the original. We won’t know for sure until Avril LaVigne sues DJ Earworm.
ChinaDaily.com reports that prosecution for online copyright infringement reached record levels in China last year. However, Yan Xiaohong, vice-minister of the National Copyright Administration (NCA), at a press conference held by the State Council Information Office stated that “Internet copyright infringement is still very prevalent in the country.” Yan called for tougher legislation. “Fines and sentences meted out have not been enough,” he said. “We must make offenders realize the costs of violation are too high for them to continue.”
Washington Post writer, Monica Hesse, notes that the incidence of large corporations infringing the copyrights of individuals is soaring. (Unlike Canada, in the U.S. one must register copyright in order to have any enforceable rights–seldom done by authors of user-generated content.) Ms. Hess goes on to comment that “in an increasingly user-generated world where the public is the artist, sometimes it’s the big boys who get grabby. And the questions that arise are about ownership, but they are also about fairness, and changing culture, and ultimately, the search for authenticity.”
As our norms are changing and user-generated content is rapidly overtaking studio content, does it still make sense that our governments are focusing on protecting large content owners? More importantly, is China, Canada, or the United States ready for a conversation about this.
There are a number of arguments to be made that copyright infringement penalties are too harsh. Some members of congress, however, feel they need to be stiffened up. The Prioritizing Resources and Organization for Intellectual Property (”PRO IP“) Act of 2007 (H.R. 4279) would significantly harshen penalties for would-be intellectual property infringers, create a new Intellectual Property Enforcement Division in the Department of Justice, and create the new ambassador level post of the White House Intellectual Property Enforcement Representative (”WHIPER“.)
The increased penalties will do little to nothing to reduce infringing activities. Despite the Recording Industry Association of America’s aggressive, high-profile approach to litigation and the huge awards extracted from people of little means, file sharing appears to be here to stay. (This week RIAAthreatened 22 Universities with legal action.) Ignoring for the moment whether we as a society should be encouraging for-profit industries to siphon money from educational institutions, unregistered copyrights (the vast majority) would not benefit from these increased penalties and will continue to be essentially unprotected by U.S. law. Unlike the vast majority of countries in the world, we’ll continue to have a two-tiered system favoring large content holders. Not so PRO-IP.
However, the bill is not uniformly bad. The WHIPER is a great idea that should yield real benefits to the U.S. economy. The IP Enforcement Representative would coordinate U.S. IP enforcement policy by chairing an interagency advisory committee composed of senior representatives from the Department of Justice, Patent and Trademark Office, Office of the United States Trade Representative, and the United States Copyright Office. The IP Representative also would create a joint strategic plan to eliminate counterfeit and pirated goods from the international supply chain and to establish international standards and policies for the effective protection and enforcement of intellectual property rights.
Perhaps the IP Representative will notice the U.S. is one of the few countries where copyright registration is required in order to enforce your rights. A requirement that few small authors understand or know about. Eliminating this requirement would be the biggest step that Congress could take to strengthen and inject uniform fairness into our copyright system.
“It’s a natural impulse to want to support the little guy, the David who faces down a powerful Goliath. That’s why it’s easy to get behind this guy’s claims that a copycat business is suing him to force him to abandon his own copyrights. Wtf!, you might say when you read something like that. Is that even possible? It is, and the story is more nuanced when you look at both sides, which makes it a good example of why it’s sometimes hard to be a “good consumer” when deciding where to spend your money.” Read the full story at The Consumerist.
RSS
