For fifteen seconds of the song Imagine, Yoko and Julian and Sean sued the producers of Expelled: No Intelligence Allowed. Infringement or fair use is the issue.
Fair use factors? The purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used; and the effect on the potential market. Not a hard case: although the purpose was commercial, and the song is a core copyright work, not much was used and it did not effect the potential market.
The court agreed with the defendants that it was highly transformative. Rejecting the plaintiffs’ argument that the use was not transformative because the excerpt was played in the film without any alteration, the court held that the selection of the particular portion of the song was made for purposes of social commentary, namely, to criticize the song’s diminution of religion. This selection, and the juxtaposition with video also supporting this criticism, rendered the use transformative.
Transformative? Judge Pierre Leval developed the term in his article "Toward a Fair Use Standard," 103 Harv. L. Rev. 1111 (1990):
"The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story's words, it would merely "supersede the objects" of the original. If, on the other hand, the secondary use adds value to the original -- if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings -- this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society. Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses."
Judge Richard Posner, in the beany baby case, points out that "The defense of fair use, originally judge-made, now codified, plays an essential role in copyright law. Without it, any copying of copyrighted material would be a copyright infringement." Note that how good was Ben Stein in the movie matters not at all. As Judge Posner explains, "But the fair-use doctrine is not intended to set up the courts as judges of the quality of expressive works. See Campbell v. Acuff-Rose Music, Inc., supra, 510 U.S. at 582-83, 114 S.Ct. 1164. That would be an unreasonable burden to place on judges, as well as raising a First Amendment question."
What matters is that the first part of the four factors is not just about being commercial or non-commercial, but about the use. In the big case, the Supreme Court said that if the work "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message," then it can be protected as fair use. "The goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579, 114 S.Ct. 1164, 1171 (U.S.,1994)
Saturday, June 28, 2008
Statutory Damages . . . . Register!!!!!
The Ninth Circuit, in Derek Andrew, Inc. v. Poof Apparel Corporation , falls in step with the rule that for any statutory damages, copyright registration must precede infringement.
In a clothing case, the alleged infringement began prior to the copyright registration date of plaintiff's "hang-tag", but continued after the copyright registration date. Section 412 of the Act mandates that in order to recover statutory damages, the copyrighted work must have been registered prior to commencement of the infringement, unless the registration is made within three months after first publication of the work.
The plaintiff did not register until two years after the first publication of its work, and the initial infringement occurred prior to the registration of the infringed work. But,individual acts of infringement occurred after the copyright registration date.
The Ninth Circuit explained that it would be peculiar to use the word "commenced" to describe a single act of infringement, rather than an activity beginning at one time and continuing or reoccurring thereafter. The Ninth Circuit held that the first act of infringement in a series of ongoing infringements of the same kind marks the "commencement" of one continuing infringement under Section 412. This decision is consistent with other circuits (2nd Circuit, 4th Circuit, and 5th Circuit) that have previously addressed this issue.
In a clothing case, the alleged infringement began prior to the copyright registration date of plaintiff's "hang-tag", but continued after the copyright registration date. Section 412 of the Act mandates that in order to recover statutory damages, the copyrighted work must have been registered prior to commencement of the infringement, unless the registration is made within three months after first publication of the work.
The plaintiff did not register until two years after the first publication of its work, and the initial infringement occurred prior to the registration of the infringed work. But,individual acts of infringement occurred after the copyright registration date.
The Ninth Circuit explained that it would be peculiar to use the word "commenced" to describe a single act of infringement, rather than an activity beginning at one time and continuing or reoccurring thereafter. The Ninth Circuit held that the first act of infringement in a series of ongoing infringements of the same kind marks the "commencement" of one continuing infringement under Section 412. This decision is consistent with other circuits (2nd Circuit, 4th Circuit, and 5th Circuit) that have previously addressed this issue.
Friday, May 16, 2008
Judge Wake Surprises -- Holds Back RIAA for the Moment
Judge Wake surprises. That is, he suprises me, at least. This is not surprising in the sense that Federal Court judges face imposing very terrible fines on individuals for copyright infringement in file sharing, and he statute provides little room for them to show any mercy.
How did he surprise? By taking on the difficult issue of proving infringement through deemed distribution. Some background first.
Copyright infringement requires actual distribution of the copryighted work. As Judge Wake notes, "[t]he general rule, supported by the great weight of authority, is that 'infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.' Nat’l Car Rental Sys. v. Computer Assocs. Int’l, Inc., 991 F.2d 426, 434 (8th Cir. 1993). See also Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 718 (9th Cir. 2007)" The buzz has been around the Fourth Circuit's library case, Hotaling, where, by placing the copyright works for use by the public was enough to prove distribution because they failed to keep records. The record companies wanted to analogize the library to a shared file on one's computer.
The crafty Judge Wake said no, though. Judge Wake noted that the Ninth Circuit, in Perfect10, agreed with the district court’s conclusion that distribution requires an "actual dissemination," consistent with the language of the Copyright Act. Judge Wake says the Ninth Circuit rejects Hotaling. Judge Wake emphasizes that Hotaling is inconsistent with the Copyright Act.
Further, Judge Wake discards the argument that an offer to distribute are not sufficient to meet the distribution requirement. Judge Wake says that "[t]he scope of the term distribution is only defined within § 106(3) itself, as a “sale or other transfer of ownership” or a “rental, lease, or lending” of a copy of the work. The plain meaning of that section requires an identifiable copy of the work to change hands in one of the prescribed ways for there to be a distribution." The record companies argued that the word "distribution" would be equated with "publication."
So? There were 54 copyrighted tunes in the Defendant's shared folder. The Plaintiffs downloaded only 12. The Court allowed these 12 as an investigative scheme. The Defendant has other defenses, but damages have been reduced from 54 times the minimum amount ($750) to 12 times that amount.
How did he surprise? By taking on the difficult issue of proving infringement through deemed distribution. Some background first.
Copyright infringement requires actual distribution of the copryighted work. As Judge Wake notes, "[t]he general rule, supported by the great weight of authority, is that 'infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.' Nat’l Car Rental Sys. v. Computer Assocs. Int’l, Inc., 991 F.2d 426, 434 (8th Cir. 1993). See also Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 718 (9th Cir. 2007)" The buzz has been around the Fourth Circuit's library case, Hotaling, where, by placing the copyright works for use by the public was enough to prove distribution because they failed to keep records. The record companies wanted to analogize the library to a shared file on one's computer.
The crafty Judge Wake said no, though. Judge Wake noted that the Ninth Circuit, in Perfect10, agreed with the district court’s conclusion that distribution requires an "actual dissemination," consistent with the language of the Copyright Act. Judge Wake says the Ninth Circuit rejects Hotaling. Judge Wake emphasizes that Hotaling is inconsistent with the Copyright Act.
Further, Judge Wake discards the argument that an offer to distribute are not sufficient to meet the distribution requirement. Judge Wake says that "[t]he scope of the term distribution is only defined within § 106(3) itself, as a “sale or other transfer of ownership” or a “rental, lease, or lending” of a copy of the work. The plain meaning of that section requires an identifiable copy of the work to change hands in one of the prescribed ways for there to be a distribution." The record companies argued that the word "distribution" would be equated with "publication."
So? There were 54 copyrighted tunes in the Defendant's shared folder. The Plaintiffs downloaded only 12. The Court allowed these 12 as an investigative scheme. The Defendant has other defenses, but damages have been reduced from 54 times the minimum amount ($750) to 12 times that amount.
Thursday, May 15, 2008
Good (or lucky) Drafting Wins: “Now or Hereafter Known”
Joey Ramone sued Walmart and Real Network over downloading songs he wrote. The problem? Mr Ramone had a recording agreement with Ramones Productions who licensed the works. Mr Ramone had authorized Ramones productions to use the works and exploit them in “forms of reproduction” which were “now or hereafter known.” The Court said that covered digital forms and was the most reasonable reading of the agreement. Sorry Joey. Punked. I should say Joey's estate: Joey died in 2001.
RIAA Sues Project Playlist
As one attorney said, "another day, another RIAA lawsuit." What is different about this one?
Project Playlist gives users the opportunity to find, play and share music with others for free, as well as allowing them to embed personalised playlists on their social networking homepages on sites such as MySpace and Facebook, according to the lawsuit. It's "Terms of Service" states:
The record companies claim that: "In short [Project Playlist's] entire business amounts to nothing more than a massive infringement."
What does Project Playlist say about copyright?
Project Playlist gives users the opportunity to find, play and share music with others for free, as well as allowing them to embed personalised playlists on their social networking homepages on sites such as MySpace and Facebook, according to the lawsuit. It's "Terms of Service" states:
Project Playlist is an information location tool and social networking website that provides users with an integrated set of services to (i) enable users to locate music files hosted on websites controlled by third parties for promotional or other legal purposes, (ii) stream those legally posted music files using the Project Playlist music player (the “Player”) so the music can be heard, (iii) create hyperlinks to legally posted music files discovered by the user and add those hyperlinks to the Project Playlist search index, (iv) create and publish a series of such hyperlinks to form playlists on a member’s webpage, (v) share those playlists with friends and browse other members playlists on other members’ web pages by embedding the Player in other webpages, where permitted, (vi) purchase music found using the Project Playlist search engine or browsing other members playlists, (vii) obtain current information about new song releases from music blogs, (viii) obtain current information on the popularity of songs as measured by frequency of appearance on other members’ playlists, and (ix) network with other members through a variety of social networking and communications tools.
The record companies claim that: "In short [Project Playlist's] entire business amounts to nothing more than a massive infringement."
What does Project Playlist say about copyright?
Project Playlist is an information location tool intended to help you find and enjoy music legally posted by others on the Internet. Project Playlist intends to organize in its search index location information about music posted on the Internet for promotional and other legal purposes to serve artists and their fans. Project Playlist is also committed to respecting the legitimate interests of copyright owners. Therefore, where possible, Project Playlist negotiates reasonable copyright licenses that also respect the public’s legitimate interest in gaining access to public information and preserving the freedom and functionality of the Internet. Project Playlist pays performance royalties to ASCAP, BMI and SESAC, the three performance rights organizations (“PSOs”) based in the Untied States.It appears that Project Playlist is used, like a VCR, for legitimate non-infringment purposes and purports to pay royalties. Stay tuned.
Saturday, April 19, 2008
Fairly Harry Potter
A lexicon presents the language of a field or area. The "HP Lexicon" began as a website where contributors collected information about people, places, and things that inhabit the Harry Potter universe. Those who care about these things Harry Potter regard it as the most complete and authoritative guide to the world of Harry Potter, and it attracts upwards of 25 million visitors per year. The HP Lexicon’s editor decided to publish the HP Lexicon in book form, and RDR Books agreed to do so. Ms J.K. Rowling and Warner Brothers filed suit against RDR, alleging claims for copyright and trademark infringement, and seeking to stop publication of the book.
The issue is fair use, the most misunderstood area of copyright law. Judge Posner has noted that "copying that is complementary to the copyrighted work (in the sense that nails are complements of hammers) is fair use, but copying that is a substitute for the copyrighted work (in the sense that nails are substitutes for pegs or screws), or for derivative works from the copyrighted work . . . is not fair use." Ty Inc. v. Publications International, 292 F.3d 512 (7th Cir. 2002). His economic approach is not really codified in the law, but it does focus on the core concept: is the new work a substitute for the copied work. Following Judge Posner's logic, the Lexicon seems to complement rather than replace Ms Rowling's works, and to do her no harm.
But first, fair use. Judge Posner aptly points out that the statute confuses rather than helps. It says that "the fair use of a copyrighted work... for purposes such as criticism, comment, news reporting, teaching ... scholarship or research, is not an infringement of copyright." 17 U.S.C. § 107. In deciding whether a particular use is fair, the "factors to be considered shall include(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work." This is a list, not a test. So, what is the judge in the Harry Potter case to do?
That is easy enough -- right. Often courts confuse the "sweat of the brow" as the source of copryightable material. It is not. It is just the originality and expression, no matter how difficult or easy the effort, that is protected. The real issue for Ms Rowling is whether the Lexicon infringes her rights to develop derivative works. The Copyright code defines a derivative work as "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted." 17 U.S.C. § 101. Does producing a Lexicon in book form compete with the rights of Ms Rowling and her empire to produce her own Lexicon as a derivative work? Yes; but is a Lexicon a derivative work? That is, does it recast, transform, or adapt the work?
The issue is fair use, the most misunderstood area of copyright law. Judge Posner has noted that "copying that is complementary to the copyrighted work (in the sense that nails are complements of hammers) is fair use, but copying that is a substitute for the copyrighted work (in the sense that nails are substitutes for pegs or screws), or for derivative works from the copyrighted work . . . is not fair use." Ty Inc. v. Publications International, 292 F.3d 512 (7th Cir. 2002). His economic approach is not really codified in the law, but it does focus on the core concept: is the new work a substitute for the copied work. Following Judge Posner's logic, the Lexicon seems to complement rather than replace Ms Rowling's works, and to do her no harm.
But first, fair use. Judge Posner aptly points out that the statute confuses rather than helps. It says that "the fair use of a copyrighted work... for purposes such as criticism, comment, news reporting, teaching ... scholarship or research, is not an infringement of copyright." 17 U.S.C. § 107. In deciding whether a particular use is fair, the "factors to be considered shall include(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work." This is a list, not a test. So, what is the judge in the Harry Potter case to do?
That is easy enough -- right. Often courts confuse the "sweat of the brow" as the source of copryightable material. It is not. It is just the originality and expression, no matter how difficult or easy the effort, that is protected. The real issue for Ms Rowling is whether the Lexicon infringes her rights to develop derivative works. The Copyright code defines a derivative work as "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted." 17 U.S.C. § 101. Does producing a Lexicon in book form compete with the rights of Ms Rowling and her empire to produce her own Lexicon as a derivative work? Yes; but is a Lexicon a derivative work? That is, does it recast, transform, or adapt the work?
Tuesday, April 8, 2008
Deemed Distribution of Nude Women . . . I Mean Pictures . . .
The internet, occasionally, has been used to disseminate pictures of nudity. Whether art or free expression, it is distribution, and if the material is copyrightable, then the owner has the right to their distribution. So, does the Ninth Circuit's analysis of pictures of nude women help us understand the copyright issues relating to file sharing?
Perfect10 sues Google, objecting to their use of the Perfect10 pictures in the Gooogle system. Actually, Perfect10 asserts infringement of its display rights, which really does not help us understand file-sharing issues if the files are not pictures, but music. And the Ninth Circuit discusses the genealogy case, Hotaling, and Napster for its analysis.
The Ninth Circuit panel states that "Perfect 10 incorrectly relies on Hotaling v. Church of Jesus Christ of Latter-Day Saints and Napster for the proposition that merely making images 'available' violates the copyright owner’s distribution right. Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199 (4th Cir. 1997); Napster, 239 F.3d 1004. Hotaling held that the owner of a collection of works who makes them available to the public may be deemed to have distributed copies of the works. Hotaling, 118 F.3d at 203. Similarly, the distribution rights of the plaintiff copyright owners were infringed by Napster users (private individuals with collections of music files stored on their home computers) when they used the Napster software to make their collections available to all other Napster users. Napster, 239 F.3d at 1011-14." The Ninth Circuit panel calls this "deemed distribution."
Since Google did not have a copy of Perfect10's nude women, but linked to them, the Ninth Circuit reasoned that Google could not distribute copies. File sharers do own a copy of the work. They are a big step down the road to deemed distribution.
Next,the even bigger hurdle, contributory infringement. “One infringes contributorily by intentionally inducing or encouraging direct infringement, and infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it.” Grokster, 545 U.S. at 930.
Perfect10 sues Google, objecting to their use of the Perfect10 pictures in the Gooogle system. Actually, Perfect10 asserts infringement of its display rights, which really does not help us understand file-sharing issues if the files are not pictures, but music. And the Ninth Circuit discusses the genealogy case, Hotaling, and Napster for its analysis.
The Ninth Circuit panel states that "Perfect 10 incorrectly relies on Hotaling v. Church of Jesus Christ of Latter-Day Saints and Napster for the proposition that merely making images 'available' violates the copyright owner’s distribution right. Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199 (4th Cir. 1997); Napster, 239 F.3d 1004. Hotaling held that the owner of a collection of works who makes them available to the public may be deemed to have distributed copies of the works. Hotaling, 118 F.3d at 203. Similarly, the distribution rights of the plaintiff copyright owners were infringed by Napster users (private individuals with collections of music files stored on their home computers) when they used the Napster software to make their collections available to all other Napster users. Napster, 239 F.3d at 1011-14." The Ninth Circuit panel calls this "deemed distribution."
Since Google did not have a copy of Perfect10's nude women, but linked to them, the Ninth Circuit reasoned that Google could not distribute copies. File sharers do own a copy of the work. They are a big step down the road to deemed distribution.
Next,the even bigger hurdle, contributory infringement. “One infringes contributorily by intentionally inducing or encouraging direct infringement, and infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it.” Grokster, 545 U.S. at 930.
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