Men and Cats.

A side-by-side comparison of men and cats.  Scroll down at least until you get to Joseph Gordon-Levitt and Guitar Cat.

I Sure Wish I Could Speak Spanish Like This

Some 12-year old was asked to do a family tree in Spanish.  He got an A+.

Columbia Pictures v. Fung Opinion is Released

Today the Ninth Circuit released its opinion in Columbia Pictures Industries v. Fung.  The case involves liability for maintaining a torrent site used to promote downloads of copyrighted content.  I discussed the oral argument in the case here.

Roundup of Commentary on Kirtsaeng v. John Wiley

Yesterday the Supreme Court released its opinion in Kirtsaeng v. John Wiley & Sons, Inc.  In this important decision, the Court held that the "first sale" doctrine applies to the importation of goods manufactured and sold abroad under authorization by the copyright owner.  It's a helpful addition to the principle that if you buy something, you own it.

Since there already has been so much analysis of the opinion, rather than adding my own here are links to what other people have said:  EFF, SCOTUSblog, Patently-O, Techdirt, Eric Goldman, Joe Mullin, and the Volokh Conspiracy.

My Latest EFF Project: Comments to the Patent Office on Patent Clarity

On March 15, 2013, EFF filed comments with the U.S. Patent and Trademark Office (PTO) on patent clarity, a project on which I had worked.  EFF's blog post explaining the comments is here.  Briefly, the PTO had asked for comments on ways to improve the preparation of patent applications.  EFF responded to the PTO's welcome request for input with suggestions on how the patent application process can be improved.

UMG v. Veoh Affirmed Again

On Thursday, the Ninth Circuit Court of Appeals issued a superseding opinion in UMG v. Veoh (Shelter Capital Partners).  The Court filed its original opinion in the case on December 20, 2011, which I wrote about here.  Both the original and new opinions held that Veoh's user-generated content website is entitled to the "safe harbor" protection of 17 U.S.C. § 512. Briefly, UMG v. Veoh is about UMG's claim that Veoh's user-generated content (UGC) web site contains copies of UMG's copyrighted music, and that Veoh should be secondarily liable when its users post allegedly infringing music on the Veoh site. The trial court had granted summary judgment to Veoh on the grounds that it was immune from suit since it complied with the “safe harbor” notice-and-takedown procedures of the Digital Millennium Copyright Act, 17 U.S.C. § 512(c) ("DMCA").

UMG v. Veoh raised many of the same issues as the Viacom v. YouTube case in New York, where the district court had granted summary judgment to YouTube, also on the safe harbor defense.  Viacom's appeal to the Second Circuit Court of Appeals was a little later in time than the original UMG v. Veoh appeal.  As a result, when the Second Circuit issued its opinion -- on April 6, 2012 -- it had the benefit of the earlier Ninth Circuit opinion in UMG v. Veoh.

While the Second Circuit largely agreed with the Ninth Circuit, it didn't agree 100%, as my post on the opinion explains.  This led to an interesting procedural development.  After the December 2011 opinion in UMG v. Veoh, UMG had petitioned the Ninth Circuit for rehearing, and that petition was still pending when the Viacom v. YouTube opinion was released in April 2012.  As a result, in an Order dated June 7, 2012, the Ninth Circuit requested that the parties submit supplemental briefs to address two issues about the interpretation of the DMCA in light of the Second Circuit’s intervening decision in Viacom v. YouTube. The first issue on which the Ninth Circuit asked for supplemental briefing concerned the distinction between actual and red flag knowledge under the DMCA; the second issue concerned the meaning of “right and ability to control” under the DMCA.  The parties filed supplemental briefs a few weeks later.

The Ninth Circuit has now re-affirmed Veoh's victory in its latest, superseding opinion.  In doing so, it largely eliminated any conflict with the Second Circuit's reasoning.  First, the Ninth Circuit agreed with the Second Circuit’s interpretation in Viacom v. YouTube of the meaning of both “knowledge” and “red flag knowledge” under the DMCA as applying only to specific instances of infringement, rejecting UMG's argument that “red flag knowledge” can be shown by generalized knowledge that a service can be used to infringe. Second, the Ninth Circuit agreed with the Second Circuit’s interpretation in Viacom v. YouTube of the meaning of “right and ability to control” under the DMCA as requiring a showing that a service provider exerts “substantial influence on the activities of users,” rejecting UMG's argument that it can be shown by a service provider’s general ability to locate infringing material and terminate users’ access.

Thus, the Ninth Circuit concluded that Viacom v. YouTube supports its earlier conclusion that Veoh was properly granted summary judgment based on the safe harbor under Section 512(c) of the DMCA.  By largely agreeing with the Second Circuit, the Ninth Circuit has now greatly lessened any need for the Supreme Court to review either case.

EFF's discussion of the opinion is here, and TechDirt's is here.  (EFF's amicus brief in the case, on which I worked, is approvingly cited at page 24 of the opinion.)

Ninth Circuit affirms Summary Judgment of Fair Use, Attorneys' Fees for Using a Seven Second "Ed Sullivan" Clip in "Jersey Boys"

Today the U.S. Court of Appeals for the Ninth Circuit issued a good fair use opinion in SOFA Entertainment, Inc. v. Dodger Productions, Inc.  The defendants used a seven second "Ed Sullivan" clip in the musical "Jersey Boys" as a point of historical reference.  The clip was just of Ed Sullivan introducing the Four Seasons band, at a time when the "British Invasion" was threatening to swamp American bands.  The musical used the clip as an historical reference to note the band's success despite the changing social times of the mid-1960's.

The Ninth Circuit affirmed a summary judgment for the defendants on the fair use defense, and also affirmed an award of attorneys' fees for the defendants. 

The Court began by noting the purposes of Copyright:

The Copyright Act exists “‘to stimulate artistic creativity for the general public good.’” Mattel, Inc. v. MGA Entm’t, Inc., –F.3d–, 2013 WL 264645, at *2 (9th Cir. Jan. 24, 2013) (quoting Twentieth Century Music Corp v. Aiken, 422 U.S. 151, 156 (1975)). It does so by granting authors a “special reward” in the form of a limited monopoly over their works. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 546 (1985). However, an overzealous monopolist can use his copyright to stamp out the very creativity that the Act seeks to ignite. Stewart v. Abend, 495 U.S. 207, 236 (1990). To avoid that perverse result, Congress codified the doctrine of fair use. Id.

Applying the four fair use factors, the court found that the first factor was present because the musical used the short clip as a biographical anchor.  The second factor was present since the clip was mainly factual, who was about to perform.  The fourth factor was present since "Jersey Boys" is hardly an economic substitute for "The Ed Sullivan Show."  As to the third factor, the court stated:

. . . the seven-second introduction is hardly qualitatively significant. Sullivan simply identifies the group that is about to perform and the section of his audience to whom the Four Seasons would appeal. It is doubtful that the clip on its own qualifies for copyright protection, much less as a qualitatively significant segment of the overall episode.

In affirming the attorneys' fee award, the Court had this to say:

In light of the education SOFA received as the plaintiff in Elvis Presley Enterprises, SOFA should have known from the outset that its chances of success in this case were slim to none. Moreover, we agree with the district court that “lawsuits of this nature . . . have a chilling effect on creativity insofar as they discourage the fair use of existing works in the creation of new ones.” The fair use doctrine is an integral part of copyright law precisely because it gives authors “breathing space within the confines of copyright” to build upon their predecessors’ works. Campbell, 510 U.S. at 579. When a fee award encourages a defendant to litigate a meritorious fair use claim against an unreasonable claim of infringement, the policies of the Copyright Act are served. Fogerty, 510 U.S. at 527. Therefore, we conclude that the district court’s award of attorney fees to Dodger was justified.

Cute Example of Why DRM is a Problem

Digital Rights Management (DRM) is a way providers of digital content have attempted to "lock up" their content so only authorized users/purchasers can access it.  It sounds like a good idea in principle, but there are tons of problems with DRM, as EFF has repeatedly explained, and as Techdirt has also explained.

Perhaps an easy way to understand why DRM is a problem is this cute example: the DRM chair!  The "chair that self-destructs after 8 uses."