Copyright

Thursday, 25 June 2009 18:28

CAN DOWNLOADING MUSIC COST $9000 PER SONG

Written by

An order to grant a new trial in Capitol Records, Inc. v. Thomas should pique the interest of both music downloaders and music industry executives alike. A jury found the defendant liable for copyright infringement and awarded $220,000 in statutory damages in connection with the copying of 24 songs. The judge, however, ordered a new trial based on an error in the jury instructions, where the instructions were contrary to the precedent set by the Eight Circuit in National Car Rental System, Inc.  v. Computer Associates International, Inc., 991 F.2d 426, 430-31 (8th Cir. 1993)(requiring an actual dissemination of [sic] copies). In the jury instructions, Chief Judge Davis did not require a finding that the defendant actually distributed the works in question but required only a finding that the defendant made the works available to others to download.

The excessively large statutory award of $220,000, based on the only 24 songs, further compelled the judge to vacate the jury verdict. The judge opined that Congress intended that these large statutory awards deter those engaged in piracy for profit and that “it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit….”   In his order, the judge suggested that Congress should address and amend the Copyright Act for liability and damages in these types of consumer cases. As the internet and advancements in technology increasingly permeate the lives of private individuals, copyright holders may face the unfeasible task of enforcing their rights against all infringing individuals. The courts and Congress must, however, protect the interests of intellectual property holders yet not allow large entities to financially ruin an individual for a seemingly minor offense.

Sebastian Ohanian Contributed to this Entry.

    In 2005, a class action lawsuit was filed by the Author’s Guild against Google Book Service which alleged that Google had violated copyright law by digitizing millions of works without the consent of the authors. In late 2008, Google turned the class action lawsuit on its head by announcing that it reached a settlement with several major publishers which would end the copyright lawsuit. The settlement agreement takes the class action paradigm to the next level by potentially creating a licensing agreement between Google and individual copyright holders of all works published before January 5, 2009. The settlement, in so doing, also gives Google exclusive rights to orphaned works, which are out of print works whose authors cannot be found. The settlement of this case has far reaching consequences because pursuant to the settlement agreement, copyright owners, irrespective of whether their works were digitized, can opt-in to the settlement agreement.  Nevertheless, the settlement agreement was fast tracked with an initial deadline for opting-in of May 5, 2008. However, given the potential breath of the settlement agreement a group of authors requested an extension. The Court granted a four month extension so the new deadline to opt in is nowSeptember 4, 2009. 
        The agreement, available at  http://books.google.com/booksrightsholders/agreement-contents.html, is well crafted to entice the individual copyright owner with the promise of exposure and royalties, and suggests that the original authors will retain their rights to sell the print versions of their works. While it may be a good idea for certain individual copyright owners longing for greater exposure or for authors of out of print materials who are currently not receiving any royalties for their works, the long term effects of the agreement strike at the core of author’s rights. This is because the monopoly over works created by copyright protection was intended to safeguard authors, and thereby, foster future works. This proposed settlement, however, could take this individual monopoly to a new level and in so doing create a licensing monopoly on copyrighted works. Its supporters maintain that the settlement will provide centralized digitized access to copyrighted works which will not compete with modern publishing. Nevertheless, Reuters, the Wall Street Journal and the New York Times recently reported that the Justice Department has begun an antitrust inquiry into the long term implications of the settlement agreement.  The Justice Department has not confirmed the same. 
Wednesday, 25 March 2009 18:03

REMOVING KINDLE FROM THE FIRE

Written by

Anyone who has happened upon Amazon.com over the past several months has undoubtedly noticed Amazon’s painstaking efforts to market its new Kindle 2 device to readers-at-large.  The Kindle – a hardware device about the size and weight of an average book – allows users to directly download e-books (up to 1500 at a time) and read the titles on its “electronic paper” display.    Of all of the Kindle 2's new features, the most heavily promoted is its ability to “read” books aloud to the user by relying on text-to-speech software.

However, this new feature has come under attack by the Author’s Guild which contends that a purchaser of an "e-book" buys only the right to read the book -- not the right to have the book read out loud.  In fact, the concern that this feature will cannibalize the market for audio-books was apparently big enough to incite the President of the Author's Guild to author a New York Times opinion column on the issue.  As noted in his article, technology has advanced to a point where the “computerized voices” on text-to-speech software are “almost indistinguishable from human ones”; with some of these programs going so far as to include an occasional ‘um,’ ‘er’, sigh and -- even -- coughs, in order to accurately simulate a human reader.  Thus, the threat posed to audiobooks by text-to-speech software is greater than would have been possible in the past.

Rap artists Lil Jon, Lil Bo, and Big Sam, who together comprise the hip hop group Lil Jon and the East Side Boyz, prevailed in a copyright infringement case regarding the song "The Weedman", from their platinum album, "Kings of Crunk".  The case was brought by a freelance musician and producer who claimed copyright ownership of the work, and the artists prevailed after successfully asserting a defense which was primarily based on the existence of an implied license for the use of the work.  

The decision rendered by the United States Court of Appeals for the Eleventh Circuit can be found here.

Monday, 08 September 2008 17:51

HARRY POTTER AND THE IRREPARABLE HARM

Written by

J.K Rowling emerged victorious in a copyright decision that was announced earlier today by the Southern District of New York.  The work at issue?  A Harry Potter encyclopedia written by a librarian and rabid Harry Potter fan.  In permanently blocking publication of the work, the court rejected the defendant's "fair use" defense, finding that the encyclopedia incorporated "too much of Rowling's creative work" and would cause J.K Rowling "irreparable harm" as a writer.  

Obviously, a guide to a "fictional universe" must necessarily incorporate lengthy references and passages of the underlying fictional work.   However, today's decision highlights the limited applicability of the "fair use" defense to such works (which are not, in a strict sense, academic.)   Accordingly, future authors of such literary guides may want to consider seeking a copyright holder's consent prior to beginning any such endeavor.  Otherwise, they too will risk having their book tossed into a 'goblet of fire' (or 'chamber of secrets') by an adverse copyright ruling.

Find the story here.

Find an explanation of the "fair use" defense here.

This is a highly publicized copyright case that touches on numerous issues, many of which have yet to be decided.

NEWS ARTICLE:  HERE

Sunday, 27 July 2008 17:20

COPYRIGHTING MOTHER NATURE'S IMAGES

Written by

 "One of California's most popular specialty license plates — depicting the tail of a Pacific humpback whale rising out of misty waters — could soon become endangered itself.  Robert Wyland, the artist who created the pale blue image and gave it to the state more than a decade ago to help it raise money for marine programs, is now demanding 20 percent of any future revenue for his art foundation." 

STORY LINK:  HERE 

THE LICENSE PLATE IN QUESTION:  HERE

Considering the number of works of art that incorporate images found in nature, it's worth taking a moment to consider the extent to which such works should be protected.   While works of art that depict animals or plants in their natural state likely fall within the public domain; works taking more artistic liberties will likely be accorded more protection.   An interesting article discussing the issue in more detail is available HERE.  

In an en banc decision, the Eleventh Circuit issued a ruling in the case of Greenberg v. National Geographic Society, holding that National Geographic was privileged, under the Copyright Act, to reproduce its print magazine issues on a digital CD-ROM format, without compensating a freelance photographer who had contributed items to the print magazine issues.  The Court, relying heavily on a United States Supreme Court named New York Times v. Tasini, 533 U.S. 483 (2001), reasoned that the addition of a montage to the CD-ROM did not make it "new" under copyright law, sufficient to require National Geographic to compensate the freelance photographer for publication of the photographs in the CD-ROM format.  Instead, the Court held that the changes contained in the CD-ROM constituted a revision to a collective work, which fell squarely within a privilege contained in the Copyright Act.  The complete decision is available HERE.

Page 7 of 7