You Own Devices Act proposed

You Own Devices Act Congressman Blake Farenthold (R-TX) recently reintroduced to committee H.R.862, You Own Devices Act (YODA), to amend title 17, United States Code.  If enacted, the bill will provide that the first sale doctrine applies to any computer program that enables a machine or other product to operate.  https://www.govtrack.us/congress/bills/113/hr5586/text  Expect opposition to come from...
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The Vivian Maier Dilemma

Vivian Maier (February 1, 1926 – April 21, 2009) was a nanny living in Chicago and New York during the 50's and 60's.  She was also a photographer whose work involved sizable numbers of photos taken of street scenes.  She was not publicly recognized as an artist until after her death and upon the discovery/purchase of her storage locker which contained over 150,000 unprinted negative, hundreds of rolls of un-developed rolls, along with a few thousand that had  been printed (leaving open the question of what she wanted produced).  Subsequently, the negatives were acquired by a handful of entrepreneurs, and select works are now being exhibited and sold as prints.  What is left out of this story is that she died largely without funds of her own, and that she died without any heirs.   The storage locker was sold because no one paid the storage fees.  So who owns the copyright in these photos? Vivian died in Illinois a couple...
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Authors Guild v. Google

After eight years of a trail and the appeals process, on Nov. 14, 2013, U.S. Court of Appeals Judge, Denny Chin, dismissed a suit by the Author's Guild against Google for its’ digital scanning project where they began scanning millions of books and making snippets (not full books) available in its search results. His full opinion can be read here. The Author’s Guild has filed an appeal. The Author's Guild claim is that this scanning alone violates those authors’ copyright. Google's defense -- the one that Judge Chin agreed with -- was that it fell within the scope of Fair Use. Chin says in his opinion that, "...Google Books provide significant public benefits." Section 107 of Title 17 of the U.S. Code determines the nature of Fair Use. Fair Use allows for the use of copyrighted material for a variety of purposes -- education, criticism, research, etc. The most relevant portion of the criterion to be met in this case was...
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Garcia v. Google, Inc.

Garcia v. Google, Inc. “While answering a casting call for a low-budget amateur film doesn’t often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa.” is the mild understatement of the Appeals court decision in Garcia v. Google, a case rooted in the anti-Islamic “film” that sparked riots in the middle east a few years back. Ms. Garcia was one of the unfortunate soles who was originally hired to act in what seemed like a vanity project of Mark Basseley Youssef. The film project was originally entitled “Desert Warrior” and while it is not clear what it was originally about, what is known is that the footage was reedited and dubbed over with new dialogue. The resulting project was entitled “Innocence of Muslims,” and the reaction to it is thought to have resulted in over 50 deaths. Following the riots and subsequent calls for her death, Ms. Garcia filed eight DMCA...
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Sometimes They Don’t Quite Get It.

Courts sometime get the right answer for the wrong reason. In a recent case in the US Tenth Circuit (Enterprise Management Limited, Inc. v. Warrick); the court discussed a diagram of a basic idea which was the basis of the defendant copying a similar diagram to explain the same concepts.    While the end result was correct in this circumstance, the reasoning used falls short. Where concepts or ideas are being presented there is a general rule that expression and ideas are sometimes merged and therefore the copying is allowed to not allow the copyright owner to weld exclusive rights to the idea.   The Enterprise Management court articulated this by noting: “In short, the copyright law is not a patent law: it protects the expression of ideas rather than the underlying ideas themselves. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344-45 (1991) (“The most fundamental axiom of copyright law is that no author may copyright his ideas or the...
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Of Flesh Eaters and Copyright

Of Flesh Eaters and Copyright

How Copyright Law Influenced Halloween Have you ever seen Night of the Flesh Eaters?   Probably, though you probably know it as the 1968 George Romero classic Night of the Living Dead.  Now ask yourself why have you seen it (besides it being a fun little romp about zombies) – because it has been pervasively shown on broadcast television and other media for decades.   While we now view this film as a classic, when it came out it was simply a B movie.  The reason it received so much initial air time, however, probably had more to do with the formalities of copyright law than the artistic vision of George A. Romero and John Russo. Up until March 1, 1989, in order to maintain a copyright in a film, a copyright notice was required somewhere on the work – in films this usually consisted of a listing on the title card showing the copyright symbol, the year, and the owner’s name.  When the...
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The Copyright Dilimma for Pinterest

The Copyright Dilimma for Pinterest

In case you’ve been living under a digital rock, one of the currently hot internet properties is pinterest.com. Pinterest is a social media platform that allows users to skim pictures from third-party websites and to post them along with a link back to the original website that the image originally appeared on – sort of like a much more streamlined & robust method of saving bookmarks/favorites.   Unlike Facebook or some of the other social media sites which encourage users to come-up with their own content, Pinterest is largely based on a model of users creating collections of photos from third-parties. This model creates a bit of a dilemma for the copyright holder because it is in essence a model based on using their photos to create traffic to someone else’s website.  Proponents of Pinterest argue that it isn’t really diverting traffic, but rather increasing traffic to business who may have images represented on user’s “boards.”   This is similar to the...
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The Three Second Rule of Copyright

At dinner the other night, a friend mentioned she had recently seen a performance of Broadway songs at a fairly well known theater here in Minneapolis/ St Paul.  She mentioned that during the performance the host for the night compared the first seven notes of  the iconic Somewhere over the Rainbow to notes played during Wicked's Unlimited.  The host explained that only seven notes where used because "if you use eight notes the copyright owner can come after you."  I was curious about this statement and looked a little closer and found out that in fact that is the story that has been told by the composer Stephen Schwartz.  While making a nice antidote and joke, unfortunately the story is simply not true. Much like the Three Second dropped food rule (if its on the ground less than 3 seconds its safe to eat), the eight note rule is similarly not true, and (hopefully) said  just in jest.  While copyright Fair...
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Copyright Office Requests Comments on Eliminating Compulsary License for Cable Providers

In April the Copyright Office published a notice in the Federal Register seeking comments related to a proposed change to the current method that cable and satellite providers license broadcast television from stations (e.g., local network affiliates).  Currently, three sections of the Copyright Act provide a compulsory (statutory) license for these broadcasts, meaning that negotiations are not required, the content is simply licensed automatically and  the cable or satellite provider simply pays a predetermined fee.  These sections are contained in  Section 111, 119 and 122 of the Copyright Act and must be periodically renewed by Congress. The Copyright Office is requesting comments on eliminating these licenses, making them permanent, and alternative licensing arrangements.   Three specific proposals have been put forward as alternatives:  1) Sublicensing the transmissions - shifting responsibility for payment of copyright holders to the original broadcast providers as a part of their original broadcast license; 2) Private licensing - requiring the satellite and cable providers to seek individual licenses...
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Copyright Office Calendar

April 29, 2011 April 29, 2011: Copyright Office website and online registration unavailable from 5:00 p.m. through May 2, 2011, at 6:00 a.m. Eastern Time. May 1, 2011 Effective date of final rule on deposit accounts May 11, 2011 Due date for notices of participation in public meeting on technical aspects of mandatory deposit of published electronic works available only online May 23, 2011 Due date for affidavits stating that a television station qualifies as a specialty station May 24, 2011 Public meeting on technical aspects of mandatory deposit of published electronic works available only online May 25, 2011 Due date for reply comments on marketplace solutions to statutory licensing June 2, 2011 Roundtable on copyright protection for pre-1972 sound recordings June 10, 2011 Hearing on marketplace solutions to statutory licensing ...
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