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JetLaw

Guest post by Mark Edward Blankenship Jr.

Sept. 19, 2018

In creating the album “Hip-Hop Is Dead”, Nasir Jones, better known by his stage name Nas, postulated that hip-hop artists can help rebuild America by having more control in their music in response to a dying culture and a decline in innovation and political outreach. Yet, in subsequent interviews leading up to the album’s release, the title’s meaning began to shift and change as he responded differently at various junctures, eventually concluding in 2016 that “hip-hop is in a “better” place than it was a decade prior. Yet during that same year, the United States would end up facing a circuit split regarding the legality of digital sampling, which is still currently up for debate.

Back in 2005, the Sixth Circuit in Bridgeport Music, Inc. v. Dimension Films applied a per se infringement standard for sound recordings and digital sampling which many scholars criticized as being the death of hip-hop.  . . .

The de minimis defense is neither a novel nor recondite concept of copyright law, especially outside of the United States. In Kraftwerk v. Pelham (also known as Metall auf Metall), Germany’s Federal Constitutional Court [hereinafter BverfG] applied a similar standard for sound recordings two days before VMG Salsoul. . . .

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The content in this post was found at http://www.jetlaw.org/2018/09/19/guest-post-hip-hop-is-dead-understanding-the-issues-regarding-digital-sampling-in-the-u-s-and-germany-and-the-potential-demise-of-an-“american”-genre/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Technology & Marketing Law Blog

Venkat Balasubramani

September 4, 2018

Plaintiff owns copyrights to “The Cobbler” movie and is trying to enforce its rights via litigation in courts around the country. Eric previously blogged about another The Cobbler enforcement suit that didn’t turn out well for the plaintiff. In this case, Cobbler identified an IP address in Oregon associated with several downloads. Cobbler then filed a Doe complaint against the IP address. In discovery, Cobbler learned the IP address was registered to the operator of an adult foster care home. After speaking with the operator (Gonzales), Cobbler concluded that Gonzales was neither the “regular occupant . . . or the likely infringer.” The plaintiff nevertheless filed an amended complaint naming Gonzales as the sole defendant.

The district court dismissed the direct infringement claim without prejudice and dismissed the contributory infringement claim with prejudice.  . . .

On appeal, the 9th circuit affirmed dismissal of the claims on the merits. Alleging only that the IP address was associated with the infringements does not satisfy the bare minimum required to plead infringement. Cobbler was aware that its evidentiary support felt short, as it admitted that it did not obtain information sufficient to identify a specific person as an infringer.

Case citation: Cobbler Nevada v. Gonzales, 2018 WL 4055766 (9th Cir. Aug. 27, 2018).

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The content in this post was found at https://blog.ericgoldman.org/archives/2018/09/ip-address-subscriber-isnt-liable-for-copyright-infringement-by-users-sharing-that-ip-address-cobbler-v-gonzales.htm Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Anyone with an internet connection can find copyrighted content to download—legally or illegally. But the Ninth Circuit has now held that the mere fact that a rightsholder can show an individual is connected to the IP address through which illegal downloading took place is not enough to make out a case for copyright infringement. In Cobbler Nevada v. Gonzales, plaintiff Cobbler owns the rights to a soon-to-be-released movie, copies of which started illegally becoming…

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The content in this post was found at https://www.lexblog.com/2018/08/30/ninth-circuit-says-having-an-ip-address-is-not-enough-for-infringement-cobbler-nevada-v-gonzales/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

COMLAWBLOG

KEVIN GOLDBERG

ON AUGUST 30, 2018

If you read the first part of this two-part post on some bizarre copyright decisions emanating from federal courts in 2018, you know I left you with a cliffhanger. Copyright law was seemingly turned on its head when a federal court judge in New York declared that embedding tweets with photos could be considered direct infringement of a copyright owner’s display right in those photos. Or did it?

Judge Katherine Forrest asserted that her decision would not prove as consequential in fact as many feared because defendants facing liability after embedding tweets in their websites might still have many defenses at their disposal.

I surprised myself by eventually agreeing with that position, based on two fair use cases that were also decided this year.

The first case is Philpot v. Media Research Center. Decided on Jan. 8 by Judge T.S. Ellis III, it involved photos taken by professional photographer Larry Philpot. . .  .

Judge Claude Hilton applied a similar analysis in his June 11 decision in Brammer v. Violent Hues Productions, LLC.

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The content in this post was found at https://www.commlawblog.com/2018/08/articles/intellectual-property/copyright-enters-the-twilight-zone-a-series-of-controversial-decisions-may-not-be-as-bad-as-they-seem-part-two/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Tech Dirt

Mike Masnick

Fri, Aug 31st 2018

[ed’s note: we need no more evidence than this case to substantiate our claim that judges in the US court system have lost their collective memories from the contracts classes they took in law school. Apparently, not a one of them is willing to use common sense and legal judgment to mark terms of service and other wrap contracts as the crap that they usually are. Here, we have yet another stunning example of a judge sticking with bad precedent rather than pointing out the obvious and thereby bringing some wisdom into the void].

Tech Dirt

Mike Masnick

Fri, Aug 31st 2018

Earlier this year we wrote about Disney’s silly lawsuit against Redbox. If you don’t recall, Redbox, whose main business was renting DVDs out of kiosks started also offering digital download codes that could be purchased at their kiosks. What Redbox did, was it would buy Disney “combo packs” (that came with both a DVD and a download code) and would offer up just the slip of paper with the code out of its kiosks. This seems like perfectly reasonable first sale rights. A legitimate code was purchased, and then resold.

When we wrote about the case back in February, it involved the court smacking down Disney, and even saying that the company was engaged in “copyright misuse” in overclaiming what copyright allowed the company to do. . . .

So my prediction following that was: “this almost certainly means that Disney is quickly reprinting the packaging on all its Combo Pack DVDs to make this language more legalistic to match the Lexmark standard.”

And… bingo. That’s exactly what happened. In a new ruling, the court has now granted a preliminary injunction against Redbox all because of the new “contract” language Disney has put on its DVDs (though amusingly, in a footnote, the court notes “Disney does not concede that the changes were necessary.”)

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Lex Blog

AUGUST 22, 2018

As we have noted previously, the California Court of Appeal’s Hassell v. Bird decision in 2016 upholding an injunction requiring Yelp to remove certain user reviews was discouraging to social media companies and other online intermediaries, as well as to fans of Section 230 of the Communications Decency Act and proponents of Internet free speech generally. The recent California Supreme Court decision reversing the Court of Appeal was, therefore, met with considerable relief…

[Editor’s Note:  This is the first of a two-part episode on three copyright decisions issued by federal courts in 2018 that relate to the use of photos in news reporting; the second part will be posted next week.]

Picture for a moment a man. Not an ordinary man by any stretch. This man is Tom Brady. . . . .

The world is filled with pictures of Tom Brady. And one of those pictures has now become extremely controversial in a legal sense.

Which brings us to the heart of the matter – a February 15 decision by Judge Katherine Forrest in Goldman v. Breitbart, News Network LLC. The scene is the Hamptons, July 2, 2016. Tom Brady is seen with Danny Ainge, the general manager and President of the Boston Celtics. They are assumed to be there as part of the Celtics’ pitch to Kevin Durant, the most sought after free agent in the NBA that summer. Another man – this one an ordinary man who goes by the name of Justin Goldman – takes a photo of Brady and uploads it to his Snapchat Story. In 24 hours, that would generally be the end of the story, as the photo would disappear from that platform. But, as a photo of Tom Brady in the Hamptons just as the Celtics are believed to be wooing Kevin Durant will do, this photo goes viral and eventually ends up being uploaded to Twitter by several different people.

Several prominent news outlets, including, among others, Time, Inc (owner of Sports Illustrated), Yahoo, Vox, Gannett, the Boston Globe, NESN, and Breitbart News “embed” the Tweets into their online stories about a possible Celtics-Durant connection.

In this case, none of the defendants – according to Judge Forrest – actually copied and pasted the photo onto their own servers for display on their websites; instead, they follow the now-common practice of embedding content under a process allowed by the platform on which that content is found. Embedding is prevalent today because it is so easy to do and, until now, widely believed to be legal. The user simply needs to add a specific “embed code” to the HTML instructions when seeking to include a certain piece of content in a story. The underlying content – in this case the Tweet containing a picture of Tom Brady and Danny Ainge – remains on the original server – in this case, Twitter – even as it appears on the user’s website.

It’s that last part that has made embedding seem relatively safe from a copyright infringement perspective.  Until now, some courts – with the Ninth Circuit taking the lead – have analyzed embedding under the so-called “Server Test,” . . .

The Server Test is believed to have carried the day since 2006. But Judge Forrester’s decision may be changing that, as she ruled in favor of Justin Goldman, the plaintiff.

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The content in this post was found at https://www.commlawblog.com/2018/08/articles/intellectual-property/copyright-enters-the-twilight-zone-a-series-of-controversial-decisions-may-not-be-all-that-they-seem-part-one/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com