Viewing post categorized under: Copyright



February 7 / Blogs, Copyright

The Baby That Won’t Stop Dancing: The Effect of Lenz Case on DMCA

Abstract: In February 2007, Stephanie Lenz recorded a twenty-nine second video of her two young children dancing to the famous song “Let’s Go Crazy” by recording artist Prince. Lenz posted the video titled “Let’s Go Crazy #1” to YouTube.com (“YouTube”). At the time of the posting, Universal Music Group (“Universal”) was Prince’s publishing administrator and was responsible for his copyright enforcement. To enforce their copyrights on YouTube, Universal’s head of business affairs assigned the task of monitoring YouTube videos to a single employee. This employee would enter the titles of the most popular Prince songs into the YouTube search field and review the video to determine if it used one or more of Prince’s songs. Where a Prince song was used in the video, company policy required the employee to include the video on a removal list if the composition was the “focus of the video,” as it was in this case. This removal list was sent to another Universal employee, who emailed the removal list (“Takedown Notice”) to YouTube on June 4, 2007. The Takedown Notice was sent to copyright@youtube.com, the email address YouTube identified in its Terms of Service as intended solely for receiving notifications of alleged infringements under the Digital Millennium Copyright Act (“DMCA”).

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February 6 / Blogs, Copyright, Other Intellectual Property

The Long Arm of the National Football League: Is The NFL’s Copyright Policy Violating the Rights of Its Fans and Franchises?

Abstract: As the highest grossing sports league in the world, the National Football League (NFL) operates with expansive and unprecedented reach. Each Super Bowl broadcast from 2010 to 2016 ranks as one of the seven most viewed programs in American television history and Sunday Night Football was the most watched weekly program in four of the past five years. Unsurprisingly, the NFL is intent on protecting their immensely popular product through aggressive intellectual property protections, though few are as pervasive as the telecast warning that accompanies every NFL game: “This telecast is copyrighted by NFL Productions for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL’s consent is prohibited.” Does the NFL’s copyright warning truly preclude fans from talking about a game with coworkers or from posting about it on their social media pages? How far does it extend? Given recent coverage by outlets such as ESPN in October 2016, there are indications that the NFL’s aggressive copyright tactics extend to its franchise teams as well. According to sourced league memoranda, the NFL has prohibited its Member Clubs from shooting or streaming video inside the stadium during a game and posting it on any form of social media, punishable by an initial fine of $25,000 and up to $100,000 for additional offenses.6 Further, teams are prohibited from taking video from broadcasts and creating their own highlights or moving images, including Graphics Interchange Format images (popularly known as GIFs). Essentially, the NFL has severely limited a Member Club’s ability to use media content its organization had an essential role in creating and, debatably, authoring.

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February 6 / Blogs, Computing, Copyright

YouTube’s ContentID Copyright Infringement Flagging System

Abstract: The idiosyncrasy of the Internet often invites colorful analogies in its description: high seas and piracy, Wild West and lawless frontier. This is not undeserved; despite great strides over the course of its development, the Internet remains unexamined and unregulated in many ways, and the regulations that do exist are largely self-governed. Copyright law in particular has proven contentious for lawmakers who are forced to balance digital rights management on a massive scale with the rights of end users. Nowhere is this conflict more apparent than in the practices of the video-sharing juggernaut YouTube.

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March 31 / Blogs, Copyright

Infringe Now, Apologize Later: Class Action as a Viable Remedy for Copyright Infringement

Abstract: Spotify launched in 2008 into a new music streaming market that was revolutionizing the way that consumers listened to and purchased music. The primary attraction of streaming services is the access to a vast number of songs, often for a flat fee or even free. While these new streaming platforms have helped contribute to a decline in piracy and rising profits in the music industry , it also may be causing song writers to lose money.  Spotify’s compensation model pays out royalties to the record labels, which then compensate the artists and performers. However, Spotify cites the record labels as the reason that artists are not getting paid, but that explanation glosses over whether or not Spotify has infringed upon the copyrights by streaming songs that the company does not have the license to. The streaming service is currently facing the threat of two class action lawsuits that allege that their payment model infringes song writers’ copyrights. The two questions, here, are: Has Spotify infringed upon the copyrights of owners of works that the service streams? Will a class action suit be the remedy for infringement, if infringement can be shown?

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March 31 / Blogs, Copyright, Technology

Who’s Fault is it Anyway? The Modern State of 3D Printing Copyright Liability

Abstract: When new technology arises, lawmakers struggle to keep up: how do I perform the balancing act of managing risk through regulation without stymying innovation. An ongoing struggle is the 3D printer and its copyright liability. 3D printers take a complicated manufacturing process and puts in our homes instead of a factory. The ease in which a person can create an object at home is an incredible feat, but it comes with consequences. Specifically, owners of copyrighted images are weary of their products being reproduced at home and sold in a secondary market. This article briefly describes the source of their concerns and reviews the copyright issues that arise in the world of 3D printing.

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November 25 / Blogs, Copyright

‘HAPPY BIRTHDAY TO YOU’: The World’s Most Famous Celebratory Song’s Copyright Challenged

Abstract: It is a well-known adage that the best things in life are free, but how true could this be with a copyright looming over the “Happy Birthday to You” song’s head? On
September 22, 2015, a U.S. District Court in California freed “Happy Birthday to You” by ruling on the case Marya v. Warner/Chappell Music, Inc. and declaring Warner/Chappell’s copyright invalid. Although the song is widely known by all, many individuals do not know that “Happy Birthday to You” was copyrighted at all, let alone know that Warner/Chappell was making $2 million a year from ownership. The history of how the song came to be provides an insight into how Warner/Chappell obtained a copyright and how the existence of the copyright was impacting everyone from filmmakers to restaurant chains.

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November 25 / Blogs, Copyright, Other Intellectual Property, Patent, Trademark

Intersection of American Law and Technology: The Innovation Act’s Fight Against Patent Trolls

Abstract: Few issues have attracted more legal attention and spurred more public debate in recent years than the controversy over patent rights. The crossroads of American law
and innovation finds its origin in the U.S. Constitution. Article 1, section 8 states that “Congress shall have the power 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.” The founding fathers recognized the social value of innovation, and the critical role government will inevitably play in protecting and encouraging technological advances.

Out of the foundations of the Constitution grew an elaborate system of patent laws, evolving over time to meet the needs of modern society. Nevertheless, in recent years, the frequency of extraneous patent lawsuits has become increasingly concerning. The economic and social burdens of frivolous litigation have led “academics, policymakers, and even judges to suggest that patent law[s] may have overleaped its proper bounds, or at least become too likely to frustrate, rather than to fulfill, its constitutional purpose of ‘promot[ing] the progress of science and useful arts’. The primary causes of this problem are the overly litigious entities pejoratively known as patent trolls, who are collectively responsible for the majority of today’s patent infringement cases. Although solutions to this complex problem are evasive, the need for reform is readily apparent. One of the most important and highly debated pieces of legislature surrounding the issue of patent trolls is the Innovation Act. This article introduces the Innovation Act, discusses proposed arguments for and against it, and opine on its merit.

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October 19 / All Articles, Copyright

The Fair Play, Fair Pay Act of 2015: What’s At Stake and For Whom?

pdf version The United States Copyright Act is primed to take center stage during this current legislative session, as several members of Congress introduced comprehensive legislation earlier this year known as the Fair Play, Fair Pay Act of 2015 (FPFPA). This bill seeks to modify the Copyright Act in three key ways. First, it would create a terrestrial public performance right for recording artists and owners of master sound recordings. Second, it would eliminate the Copyright Act’s exemption against federal copyright protection for sound recordings fixed prior to February 15, 1972. Third, it would establish a process designed to allow for the setting of consistent fair market royalty rates paid in consideration of the public performance of all sound recordings.

By William W. Shields

July 16 / All Articles, Copyright

The Legal Lag Behind Emerging Technology: Aereo – Innovation or Exploit?

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The now defunct technology start-up Aereo was poised to revolutionize the live broadcast television model. However, after a three-year legal battle spanning several states that eventually led to the Supreme Court, Aereo was found in violation of the Copyright Act of 1976. Broadcasters applauded the decision, while technologists worried the Court had not only failed to understand the technology behind Aereo, but had also created a dangerous legal precedent for all future cloud computing technologies.

Aereo allowed users to stream and record broadcast television to any laptop or mobile device. Shortly after Aereo was announced, broadcasters filed for an injunction claiming Aereo was in fact a cable companSuy, and as such needed to pay retransmission fees.  The heart of broadcasters’ argument focused on the definition of “performance” and “to the public” under the Transmit Clause of the Copyright Act, 17 U.S. Code section 101.  Aereo contested, stating that its service was acceptable both legally and technically because it simply provided users an alternative means to access free, over-the-air broadcasts. Much of Aereo’s legal argument rested on Cartoon Network LP, LLLP v. CSC Holdings, Inc. (hereinafter “Cablevision”).

The Supreme Court ultimately held for broadcasters in a 6-3 decision favoring a legislative intent interpretation of the Copyright Act.  The Court agreed with the broadcasters’ argument that Aereo’s technology, though functionally legal, exploited a loophole created by the Cablevision decision. Therefore, Aereo was retransmitting to the public, and as such was in violation of the Copyright Act.

The decision has had a polarizing effect. Technologists fear that this decision may have unintended consequences in the ever-growing cloud computing space, whereas proponents argue that this decision is narrowly limited to cable companies. The decision has already played a role in challenging the launch of new services, most notably satellite television provider Dish’s release of Dish Anywhere – a service that allows users to stream cable television to any device. However, currently these ramifications are isolated to the broadcast industry and have yet to result in far reaching or significant consequences for the developing cloud computing technologies.

By Ruchir Patel

 

 

 

May 13 / Copyright

A Lesson from SpaceX: Dedicating Pictorial Works to the Public Domain

By: Elizabeth O’Brien

On March 21, 2015, Elon Musk, CEO of SpaceX, announced that photos showcasing the company’s recent rocket launch were available on Flickr.[1] Though this act showed a great deal of good will, Musk caused some copyright controversy in the process. It was unclear to Internet users whether or not these images were in the public domain.[2] At the time, Flickr had limited options to upload images and required a minimum level of copyright protection. However, after receiving pressure from the Internet community; Flickr created new options for its users to identify how much protection exists, if any.[3] Flikr has now made it easy for users to dedicate works to the public domain and build on each other’s pictorial creativity.

 

LEGISLATIVE HISTORY AND BACKGROUND

The Copyright Act of 1976 extended federal copyright protection to all “original works of authorship fixed in any tangible medium of expression,” including pictorial, graphic, and sculptural works.[4] Thus, the author is given exclusive rights to reproduce and distribute copies of the work; to create new, derivative works; and to perform and display the work, for a period of time.[5] Others cannot reuse the copyrighted work without authorization.[6]

When a work is not protected by copyright; for example, if the copyright term expires, then the information becomes available in the public domain.[7] Once in the public domain, there is no need for others to obtain authorization, to reuse the work.[8] The work effectively becomes “public property.”[9]

The public domain provides three major benefits. First, it lowers the cost of creating new works because the information in the public domain provides authors with lots of “raw materials.”[10] For example, the popular musical “West Side Story” was actually based on Shakespeare’s “Romeo and Juliet.”[11] Second, the public domain promotes artistic freedom because there are no restrictions on how others can use the original work.[12]

Lastly, the public domain increases market competition.[13] When a work is in the public domain, others do not need to obtain a license to copy or distribute the work.[14] This freedom lowers distribution costs for publishing companies. Moreover, different companies can set different prices, for the same copy. This variability generates market competition and ultimately, drives down prices for consumers.[15]

 

LICENSING SCHEMES

If the copyright term has not yet expired, it can be difficult for the owner to dedicate his/her work to the public domain. Dedication is a complex, legal process that varies among jurisdictions.[16]

A non-profit organization, Creative Commons, has created alternative licensing schemes to work alongside federal copyright law.[17] A Creative Commons License allows the owner to change the copyright restrictions from “all rights reserved” to “some rights reserved.”[18]  The owner can set a range of restrictions based on future editing, commercial use, and derivative works.[19]

The Creative Commons License allows other people to use the work, e.g., in non-commercial ways, without worrying about infringement.[20]  This alternative is extremely appealing to Internet users, sharing information in the digital age.[21]

 

SPACEX ON FLICKR

Flickr is an online, photo-sharing platform which allows its users to upload, share, and view images.[22] Until recently, Flikr only provided three copyright-indicator options for users uploading images: U.S. Government Works, The Commons, and Creative Commons License.[23]

Flickr reserves the “U.S. Government Works” indicator for the White House and other governmental agencies. By law, government works are ineligible for copyright protection.[24] Therefore, any images uploaded by the government agency, National Aeronautics and Space Administration (NASA,) are in the public domain. This indication means that anyone can use the NASA images, for any purpose.[25]

The indicator for “The Commons” is not related to the Creative Commons organization; instead, this indicator is used by cultural heritage organizations.[26]  Images uploaded by these registered, and approved, organizations have “no known copyright restrictions.”[27]

If the account is non-governmental, or non-cultural, Flickr will indicate if the author has a Creative Commons License with “some” restrictions.[28]  This default option establishes a minimum level of copyright protection on users’ images. Flickr has been hesitant to allow users to place images “in the public domain” because of the finality.[29]  Once a work is available in the public domain, it cannot be undone. There are also liability issues associated with proving the chain of title.[30]

In February 2015, SpaceX operated a mission for NASA; the company took pictures of its rocket launch and of the Earth, from space.[31]  Unlike NASA, SpaceX is a private company. Therefore, the SpaceX images were not in the public domain.[32]

On March 21, 2015, Musk decided to share the SpaceX images on Flickr, under a Creative Commons License.[33] There was no option available on Flickr to put the images in the public domain.[34]  With Musk’s Creative Commons License, there were restrictions for attribution and non-commercial use, meaning: “others [can] remix, tweak, and build upon [the] work non-commercially, and although their new works must also acknowledge [the author] and be non-commercial, they don’t have to license their derivative works on the same terms.”[35]

Many viewers complained about the restrictions and Flickr quickly responded. On March 30, 2015, Flickr announced two new copyright indicators: Public Domain and Creative Commons-Zero.[36]  The copyright indicators can be changed under account settings.[37]

The Public Domain mark can be used for images already available, worldwide, without restrictions.[38]  The Creative Commons-Zero (CC0) waiver will remove any restrictions, including attribution. For example, when there are different copyright or database rights in different jurisdictions. The CC0 waiver means “no rights reserved.”[39]

Since Flickr has added the new copyright-indicator options, SpaceX has chosen to dedicate all of its images to the public domain.[40] Now, anyone can use the SpaceX images, for any purpose.[41]

Flickr is the largest online, photo-sharing platform for licensed images.[42] Now, internet-users have more licensing choices, making it easier to share, reuse, and remix images. This enablement encourages the creation of new works and satisfies the underlying purpose of copyright law.[43]

 


 

[1] Elon Musk, TWITTER (Apr. 17, 2015), https://twitter.com/elonmusk/status/579197717970206720.

[2] See Jessamyn West, Elon Musk put SpaceX’s photos in the public domain: So why does Flickr say they’re licensed?, MEDIUM (Mar. 23, 2015), https://medium.com/message/why-spacex-s-photos-maybe-aren-t-public-domain-5c7f156572f5.

[3] See id.

[4] 17 U.S.C. §§ 101-102.

[5] 17 U.S.C. § 106.

[6] See 17 U.S.C. § 106.

[7] See, e.g., Niagra Mohawk Power Co. v. U.S. Department of Energy, 169 F.3d 16, 19 (D.C. Cir. 1999).

[8] Mayer v. Josiah Wedgwood & Sons, Ltd., 601 F. Supp. 1523, 1536 (S.D.N.Y. 1985).

[9] Id.

[10] “The Public Domain Manifesto,” available at http://publicdomainmanifesto.org/ (last visited Apr. 17, 2015).

[11] See Lethem, “The Ecstasy of Influence,” Harper’s Magazine, pp. 59-71 (Feb. 2007).

[12] Tufenkian Import/Export v. Einstein Moomjy, 338 F.3d 127, 132 (2d Cir. 2003).

[13] Heald, “Property Rights and the Efficient Exploitation of Copyrighted Works: An Empirical Analysis of Public Domain and Copyrighted Fiction Bestseller,” 92 Minn. L. Rev. 1031, 1052 (2008).

[14] See 17 U.S.C. § 106.

[15] Heald, supra at 1035.

[16] About, CREATIVE COMMONS (Apr. 17, 2015), http://creativecommons.org/about.

[17] About, CREATIVE COMMONS (Apr. 17, 2015), http://creativecommons.org/about.

[18] About, CREATIVE COMMONS (Apr. 17, 2015), http://creativecommons.org/about.

[19] See About the Licenses, CREATIVE COMMONS (Apr. 17, 2015), http://creativecommons.org/licenses/.

[20] About, CREATIVE COMMONS (Apr. 17, 2015), http://creativecommons.org/about.

[21] See About the Licenses, CREATIVE COMMONS (Apr. 17, 2015), http://creativecommons.org/licenses/.

[22] Rajiv Vaidyanathan, Flickr now offers Public Domain and CC0 designations, FLICKR BLOG (Mar. 30, 2015), http://blog.flickr.net/en/2015/03/30/flickr-now-offers-public-domain-and-cc0-designations/.

[23] See West, supra.

[24] See 17 U.S.C. § 102.

[25] See 17 U.S.C. § 106.

[26] See West, supra.

[27] See West, supra.

[28] See West, supra.

[29] Vaidyanathan, supra.

[30] Vaidyanathan, supra.

[31] See West, supra.

[32] See West, supra.

[33] Elon Musk, TWITTER (Apr. 17, 2015), https://twitter.com/elonmusk/status/579197717970206720.

[34] Vaidyanathan, supra.

[35] See About the Licenses, CREATIVE COMMONS (Apr. 17, 2015), http://creativecommons.org/licenses/.

[36] Vaidyanathan, supra.

[37] Vaidyanathan, supra.

[38] About CC0 – “No Rights Reserved”, CREATIVE COMMONS (Apr. 17, 2015), http://creativecommons.org/about/cc0.

[39] About CC0 – “No Rights Reserved”, CREATIVE COMMONS (Apr. 17, 2015), http://creativecommons.org/about/cc0.

[40] SpaceX Photos, FLICKR (Apr. 17, 2015), https://www.flickr.com/photos/spacexphotos.

[41] See 17 U.S.C. § 106.

[42] Vaidyanathan, supra.

[43] See 17 U.S.C. § 101.