joegratz.net

Circuit City Loses Sense of Humor, Finds It

This post from Boy Genius Report describes a case of the adults intervening when someone in Legal loses their sense of humor over a parody. Good work, Circuit City PR.

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2d Cir.: Cablevision’s Remote DVR Does Not Infringe

Reversing the district court, the Second Circuit today held that Cablevision’s proposed “Remote Storage Digital Video Recorder” does not give rise to direct copyright infringement liability for Cablevision.

The opinion:

Construes MAI v. Peak to hold that RAM copies can be “fixed,” not that they are always fixed, and imposes a “duration requirement” on fixation, finding that while copies that lasted for “several minutes” could be fixed, copies lasting for only a few seconds were only “of transitory duration,” even though they lasted long enough to be copied.
Holds that the Netcom/CoStar “volitional conduct” analysis for separating direct from contributory infringement has general application, and is not limited to internet-related copyright issues.
Holds that transmission “to the public” requires that a particular transmission stream is capable of being received by the public (not just by a single subscriber). This means that the “public-ness” of a performance is measured with respect to one particular transmission, and not in the aggregate across a course of many transmissions. The court explicitly says that it looks only downstream to analyze whether a transmission is a public performance.

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N.D. Cal. Savages Savage

Judge Ilston of the Northern District of California held on Friday that the Council on American-Islamic Relations’ use of a four-minute clip of Michael Savage’s radio show in order to criticize the views espoused in that clip was fair use. This is an unremarkable result: CAIR used the material for purposes of criticism, a core fair use.

What is somewhat more remarkable is the procedural posture: Judge Ilston made the fair use determination on CAIR’s Rule 12(c) motion for judgment on the pleadings. Like Judge Pregerson’s opinion last year in Burnett v. Twentieth Century Fox, 2007 WL 1662343 (C.D. Cal. June 4, 2007), Judge Ilston found the fair use defense to be clear from the face of the pleadings, without any development of the factual record through discovery.

This latest example of a court finding fair use to be ’self-evident’ bodes well for the plaintiff in Lenz v. Universal, in which Ms. Lenz argues that her 29-second video of her baby dancing to a Prince song was self-evident fair use, rendering Universal’s takedown notice improper.

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10th Cir.: Slavish Digital Modeling Not Copyrightable

In probably the best-written copyright opinion so far this year, the Tenth Circuit Court of Appeals ruled Tuesday, in Meshwerks v. Toyota, that slavish digital modeling is not copyrightable. It’s a really smart opinion, drawing a parallel between the way courts in the 1800s dealt with the new technology of photography to the problem of how courts should deal with the new technology of 3D modeling. The court takes pains to note that some digital modeling would be copyrightable–but not exact copies of existing objects created by someone else, because “the unequivocal lesson from Feist is that works are not copyrightable to the extent they do not involve any expression apart from the raw facts in the world.” (Also, don’t miss the amusing Oscar Wilde anecdote in footnote 6.)

Bravo, Judge Gorusch.

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Recipe for Infringement?

Happily for Cindy McCain (for the second time), recipes qua recipes aren’t copyrightable.

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First Sale Prevails in UMG v. Augusto

Yesterday, Judge S. James Otero of the United States District Court for the Central District of California issued an opinion granting summary judgment for the defendant in UMG Recordings, Inc. v. Augusto. Judge Otero ruled that, because ownership of “promo CDs” given out by UMG had transferred to the recipients of those CDs, Augusto’s resale of those CDs on eBay did not infringe UMG’s copyrights. Here’s the EFF press release on the decision, and here’s Fred von Lohmann’s post on the decision from the EFF Deep Links blog.

The fight may not be over; UMG has 30 days to appeal to the United States Court of Appeals for the Ninth Circuit. But at least for now, the first sale doctrine means what it says: if a person owns a copy of a copyrighted work, it’s not copyright infringement to sell that copy, regardless of any scary language the copyright holder places on the label.

I’m proud to say that I was part of the team that achieved this victory for consumers’ first sale rights. Our success in this case was made possible by the resources committed to the case on a pro bono basis by the law firm I work for, Keker & Van Nest — most significantly, the commitment of my time, that of partner Mike Page, that of my fellow associate JuNelle Harris, and that of paralegal David Montano.

The work of Electronic Frontier Foundation attorneys Fred von Lohmann and Corynne McSherry was likewise indispensable. Fred was instrumental in the drafting and editing of our briefs, and accompanied me to each of the depositions in the case, providing indispensable advice. Corynne brought her deep knowledge of the DMCA’s anti-misrepresentation provisions and provided essential advice during our preparations for trial, which were running full-steam until yesterday’s ruling.

If you want to see more of these sort of victories for consumer rights online, consider making a donation to the EFF.

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D. Az.: “Making Available” Isn’t Infringement

Judge Neil V. Wake of the District of Arizona today issued this opinion in one of the RIAA file-sharing cases, Atlantic v. Howell. The RIAA had argued that even though there was no evidence that the defendant’s file sharing software had ever actually sent out any infringing files, the fact that the defendant made those files available for download was an independent infringement of the distribution right, 17 U.S.C. 106(3). Some courts have (erroneously) so held, but Judge Wake rebuffed the RIAA’s attempt to lower its burden of proof:

The court agrees with the great weight of authority that § 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public. The statute provides copyright holders with the exclusive right to distribute “copies” of their works to the public “by sale or other transfer of ownership, or by rental, lease, or lending.” 17 U.S.C. § 106(3). Unless a copy of the work changes hands in one of the designated ways, a “distribution” under § 106(3) has not taken place. Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder’s exclusive right of distribution.

Much of the credit goes to an outstanding amicus brief filed by Fred von Lohmann of the EFF.

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Summary Judgment Filed in UMG v. Augusto

As I mentioned once before, I’m a member of the team defending eBay seller Troy Augusto in a copyright infringement lawsuit brought by UMG Recordings, Inc. This is a rather unusual copyright infringement suit, in that even UMG agrees that there was no copying involved. They say that Troy’s resale on eBay of CDs marked “For Promotional Use Only — Not For Sale” was copyright infringement under 17 U.S.C. 106(3), since, they contend, Troy didn’t own the CDs when he sold them (even though he had purchased them).

On Monday, both sides filed for summary judgment. Augusto’s brief is here; UMG’s briefs are here and here. Oppositions are due to be filed April 21st, replies April 28th, and oral argument is scheduled for May 5th in Los Angeles.

Fred von Lohmann at the EFF, who is working with us on Troy’s case, has a recent post on the EFF Deep Links blog titled, “UMG Says Throwing Away Promo CDs is Illegal” (an accurate characterization, believe it or not, of one of the arguments in UMG’s briefs).

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Boomtown Java

The New York Times published an article yesterday marveling at the entrepreneurial fervor of patrons at Ritual Coffee Roasters in the Mission District here in San Francisco. It’s basically identical to this article published in Slate in 1999 about Circadia, a now-abandoned Starbucks black-ops “cafe of the future” project in the outer Mission. Both articles, for example, observe that the coffeeshop in question isn’t Buck’s of Woodside quite yet.

The boom times, they come and they go.

(This post dispatched from Coffee Bar, where the laptops currently outnumber the tables approximately 2-to-1.)

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The First Phonograph

Hackers have an extremely old joke about “write-only memory” — just like read-only memory, but the other way around.

It turns out that the first phonograph — a number of years before Edison’s well-known invention — was just such a system. It could record sounds onto a piece of paper, but they couldn’t be played back.

Right around 1.5 centuries later, Édouard-Léon Scott de Martinville’s April 9, 1860 autophonogram of a woman singing “Au Claire de Lune” has finally been rediscovered and played back with the help of some serious image-processing work by scientists at Lawrence Berkeley National Laboratory.

Note that this sound recording is, believe it or not, still subject to state-law copyright protection in the United States until February 15, 2067. 17 U.S.C. 301(c).

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Federal Court Doesn’t Quite Recognize Copyright in C&D Letter

Techdirt has a post on a rather triumphal press release put out by a law firm claiming that “[t]he US District Court for the District of Idaho has found that copyright law protects a lawyer demand letter posted online by the recipient.” That’s one way of interpreting the judge’s ruling, but I don’t think it’s the right way.

Here’s what happened. An anonymous poster (”Tom Paine”) said some things on a message board that a company called Melaleuca didn’t like. Melaleuca’s lawyers sent a letter to the message board’s administrators asking them to take down the posts to which they objected. Then, a second anonymous poster (”d2″) posted Melaleuca’s cease-and-desist letter to the message board.

Melaleuca wanted to know Tom Paine’s identity so that they could take some action against him. But bringing a John Doe lawsuit would be expensive and time-consuming. Then Melaleuca had a clever idea: because section 512 of the Copyright Act allows pre-litigation subpoenas to uncover the identities of anonymous online copyright infringers, they could get Tom Paine’s identity by (1) accusing d2 of infringing the copyright in their cease and desist letter, then (2) claiming that d2 and Tom Paine were the same person.

Well, it almost, sort of worked.

They were successful in getting d2’s identity, because the court found the test for issuance of a section 512 subpoena to be a lenient one: If the Copyright Office issues a registration, the court found, that’s all the copyrightability analysis a court must undertake in order to enforce a pre-litigation subpoena under section 512. The court did not say that the C&D letter was copyrightable, or that posting it was not fair use. Instead, the court merely said that Melaleuca had met the low bar of showing a prima facie case of infringement. As the court put it:

[T]he Court will not go into an in-depth analysis of the merits of a copyright infringement claim in determining whether to quash this subpoena. It is sufficient in this instance that Melaleuca has registered the Sheppard Letter with the Copyright Office.

Unlike the Patent and Trademark Office, the Copyright Office (for various very good reasons) does not perform an in-depth examination of each registration. As the lawyer who put out the press release notes, “a US copyright registration is usually ‘rubber stamped’ and obtained on an expedited basis in about five business days.” Close cases, such as an attempt to register a virtually purely functional work such as a legal demand letter, usually result in the issuance of a registration, the validity of which is later contested in court. The district court in this case decided that the validity of the copyright should be determined after the plaintiffs actually filed their lawsuit for copyright infringement. It did not, as the press release implies, make a conclusive determination of copyrightability.

Melaleuca was thwarted in its ultimate goal of unmasking “Tom Paine.” The court found that Melaleuca had presented insufficient evidence that “d2″ and “Tom Paine” were one and the same, and quashed that portion of the subpoena which sought Tom Paine’s identity. (The edited version of the decision on the web site of the lawyer who put out the press release conveniently leaves that part out, but it makes up a substantial part of the court’s decision, which is available here.)

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joegratz.net

5 August 2008

Circuit City Loses Sense of Humor, Finds It

4 August 2008

2d Cir.: Cablevision’s Remote DVR Does Not Infringe

27 July 2008

N.D. Cal. Savages Savage

19 June 2008

10th Cir.: Slavish Digital Modeling Not Copyrightable

16 June 2008

Recipe for Infringement?

11 June 2008

First Sale Prevails in UMG v. Augusto

29 April 2008

D. Az.: “Making Available” Isn’t Infringement

Summary Judgment Filed in UMG v. Augusto

5 April 2008

Boomtown Java

27 March 2008

The First Phonograph

26 January 2008

Federal Court Doesn’t Quite Recognize Copyright in C&D Letter