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IP law (Cole Scholtz)
David M. Kohane & David S. Gold on July 2, 2018

The U.S. Copyright Act permits, but does not require, registration of copyright-protected works with the U.S. Copyright Office.  Registration is not required for a work to enjoy copyright protection.  Copyright protection arises immediately on the creation of a copyright-protectable work.

Nevertheless, under the U.S. Copyright Act, registration by the Copyright Office (or ruling by the Copyright Office refusing to register) is, among other things, a prerequisite to bringing a copyright infringement action.  The federal courts have long disagreed about whether an application for registration satisfies the rule.  In other words, does the copyright owner have to wait for the Copyright Office to rule on the registration application before suing?

The United States Supreme Court has now agreed to hear a case that could resolve this long-disputed issue.  Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC., Case No. 17-571.  The appeal is from the Eleventh Circuit Court of Appeals, which held – recognizing the disagreement among the courts – that a registration application is insufficient to sue.

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The content in this post was found at https://arstechnica.com/tech-policy/2018/06/dancing-baby-lawsuit-finally-settles-baby-is-now-a-middle-school-student/ 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

by Tim Cushing
Fri, Jul 13th 2018

There are bogus DMCA takedown requests — something we’ve covered frequently here — that try to use a copyright tool to make unflattering content disappear. Then there’s this form of bogus, the kind being engaged in by Digimarc. It appears to be the result of inadequate automation handling everything terribly.

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The content in this post was found at https://www.techdirt.com/articles/20180711/06075840213/digimarc-fighting-piracy-submitting-incomplete-dmca-notices-targeting-tons-non-infringing-urls-including-techdirts.shtml  Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

Drye Whit
By Lee Brenner and Sarah Cronin on July 13, 2018

This week, on July 11, 2018, the Ninth Circuit issued an order which both denied a petition to rehear its “Blurred Lines” decision en banc, which upheld the 2015 jury verdict that the hit song “Blurred Lines” by Pharrell Williams, Clifford Harris, Jr. (aka “T.I.”), and Robin Thicke infringed the copyright to Marvin Gaye’s “Got to Give it Up,” and amended its original opinion.  Opinion.  While the denial of the petition to rehear the case en banc is grabbing all the headlines, it is the amended opinion that stands to make the biggest impact on copyright law.  The amended opinion quietly deletes all references to the oft-criticized inverse ratio rule.  By taking out all references to the so-called inverse ratio rule in its amended opinion (and in the dissent), the Ninth Circuit may be signaling that the inverse ratio rule (considered and rejected by the Second Circuit more than 50 years ago) has finally danced its last dance in the Ninth Circuit.

As we pointed out in our 2011 article, as a practical matter, the so-called inverse ratio rule makes precisely no sense.  As stated from time to time, under the inverse ratio “rule,” if the plaintiff establishes a high degree of access to its work by the defendants, a finding of copyright infringement may supposedly be based upon a lesser degree of similarity.  Nonsense.  As a matter of basic copyright law, no degree of access can substitute for a finding that the works are in fact substantially similar within the meaning of the Copyright Act.

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The content in this post was found at https://www.dryewit.com/2018/07/did-the-ninth-circuits-blurred-lines-ruling-just-quietly-move-to-kill-off-the-so-called-inverse-ratio-rule 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
July 15, 2018 · by Eric Goldman

[ed note: Eric does a great job of illustrating the fine points of image comparison in this complex copyright case]

Laspata is “a boutique creative marketing agency” that charges a lot of money. For its client, Laspata created a 1920s-themed “lookbook” called “Speechless” that riffed on the Academy Award-winning movie The Artist.

Rimowa makes luggage priced above my budget. Meire is a German ad agency retained by Rimowa. Rimowa asked Meire to create a lookbook called “The Journey,” themed on 1920s air travel. Meire did what any good ad agency does and trolled the Internet looking for photos. This process captured several of Laspata’s photos. Meire then created collages using these found photos and photos of Rimowa’s luggage, including 4 collages that included photos from Laspata. Rimowa also did a “behind-the-scenes” video of the lookbook photoshoot (because watching ad agencies cut-and-paste photos from the Internet is pretty fascinating viewing?). Laspata’s photos also showed up in the video.

Laspata sued Meire and Rimowa for copyright infringement. The court holds that the substantial similarity test doesn’t support either side as a matter of law:

as to the photographs at issue, certain aspects of the Laspata photographs are unprotectable scenes-à-faire that constitute stock elements of the 1920s, classic Hollywood aesthetic. However, many similarities between the Laspata and Meiré photographs do not involve such unprotectable elements, such that a reasonable jury could find that the alleged copies are substantially similar to the Laspata originals. At the same time, these similarities are not so encompassing as to persuade the Court to rule that the works are substantially similar as a matter of law.

This tees up the case for trial.

Case citation: Laspata DeCaro Studio Corporation v. Rimowa GmbH, 2018 WL 3059650 (SDNY June 20, 2018)

Tech Dirt

Cathy Gellis

Wed, Apr 4th 2018

Once again, the Constitutional exceptionalism of the DMCA has reared its ugly head. Thanks to the way it has been interpreted we have already enabled it to become an unchecked system of prior restraint, which is anathema to the First Amendment. And now yet another court has allowed this federal law to supersede states’ ability to right the wrongs that misuse of the DMCA’s censorship tools inevitably causes, even though doing so arguably gives this federal law more power than the Constitution allows.

The two problems are of course related. Prior restraint is what happens when speech is censored without ever having being adjudicated to be wrongful. That’s what a takedown demand system does: force the removal of speech first, and sort out whether that was the right result later. But because the Ninth Circuit has taken the teeth out of the part of the DMCA that is supposed to punish bogus takedowns, that second part very rarely happens. Section 512(f) was supposed to provide a remedy for those who have been harmed by their content being removed. But in the wake of key rulings, most recently Lenz v. Universal, that remedy is rarely available, leaving online speakers everywhere vulnerable to the censoring whims of anyone inclined to send a takedown demand targeting their speech, no matter how unjustifiably, since there is little ability to ever hold this wrongdoer liable for the harm their censorship causes.

And censorship does cause harm. Sometimes the harm that it causes can even be to one’s business or livelihood, which can suffer from the interruption of the removed content’s availability. Of course, normally when people have had their business or livelihoods messed with, they can sue whomever messed with them. We have lots of laws that address wrongful meddling, including torts like intentional interference with contract or prospective economic advantage, because normally we don’t like people having free reign to mess with other people’s business.

But most of those tort claims are creatures of state law, and the DMCA is federal law. And the question that was raised by a recent case, Stevens v. Vodka & Milk, LLC, is how state law and federal law interrelate. Per the court: they don’t. According to the Southern District of New York court, federal law completely pre-empts state law, leaving the only recourse available for someone who has been hurt by wrongful DMCA takedown notices Section 512(f), the remedy that the DMCA ostensibly enables. Even though that remedy is utterly useless.

Sadly, this court was not the first to reach this conclusion. But that fact does not make the conclusion any less terrible, or any less questionable. It’s predicated on the notion of “field pre-emption,” “where Congress occupies an entire field.” In this case, Congress is the exclusive authority establishing copyright, and so federal law pre-empts state laws on copyright. This pre-emption makes sense, because state law addressing copyright would likely interfere with the federal policy. Yet that’s not what these state laws are doing. They aren’t trying to establish copyrights or address their scope; they are attempting to speak to what happens in situations where a harm has resulted and no copyright was involved at all.

The court essentially ignores this distinction, asserting that because the DMCA addresses what happens when takedown notices are sent without there being a valid copyright claim, it is the final word on remediating the harm the wrongful takedown notices caused. But this reasoning doesn’t make sense.

First, the Constitution narrowly prescribes what federal law can do. It can, for instance, create copyrights (pursuant to the Progress Clause), but it doesn’t follow that federal law can necessarily operate, much less exclusively operate, where there is no copyright present. Without that copyright there may be no constitutional basis for that federal law to operate at all. But if the court were right, that once the DMCA is merely cited as a basis for a censorship demand, even if invalidly, it is the only law that can address the resulting harm, then that’s what the federal law would be doing: operating in a domain where it may no longer have any constitutional entitlement to act. Particularly given that people aren’t even supposed to be able to engage the DMCA without that federally-created copyright in the first place, it really doesn’t make sense that the DMCA can remain engaged, trumping state law, when it wasn’t supposed to be engaged in the first place.

Granted, it might make sense for the DMCA to pre-empt state law when the takedown notice sender has a valid copyright but nonetheless has sent wrongful takedown notices where the targeted use was fair. If state law could punish those takedown notices, it might interfere with the parameters of that federally-created copyright and encroach the “field” of copyright law left exclusively to federal law. But in the absence of a valid copyright, federal law should not be able to extinguish a state-based claim that has nothing to do with the contours of a right that isn’t even present.

And the reason federal law should be so limited is because of the abuse we see, where anyone can get away with tortious behavior simply by fraudulently claiming a fictional federal right. A takedown notice sent by someone without a valid copyright is not any more about the “field” of copyright than it is about Santa Claus. Rather, it’s about tortiously wrongful behavior. And vindicating injuries caused by such behavior is not something that federal law generally gets to do. That is a power generally left to the states, and the Constitution should not permit a bad actor to escape state law designed to punish this sort of behavior simply because he’s fraudulently packaged up his bad acts with a meaningless copyright label federal law does not allow him to use.

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https://www.techdirt.com/articles/20180401/21565139540/yet-another-case-highlights-yet-another-constitutional-infirmity-with-dmca.shtml

 Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

Global IP and Technology Law Blog

Allyson Madrid and Audrey Nicolson on March 27, 2018

Last month, in a February 8, 2018 Order, the Central District of California vacated its injunction in Greg Young Publishing, Inc. v. Zazzle, Inc., 2:16-cv-04587-SVW-KS, in which Zazzle was “permanently enjoined from infringing any of the exclusive rights in 17 U.S.C. § 106 with respect to Plaintiff’s copyrighted works…”  See Permanent Injunction and Order, October 27, 2017.  The court’s February 8th decision acknowledged the practical challenges a platform such as Zazzle would face in complying with the injunction and found that damages were an adequate remedy in the circumstances.

Zazzle is a website that allows users to upload and print images on a wide variety of household items.  In 2016, Zazzle was sued for copyright infringement by a licensing company alleging that Zazzle allowed users to upload the licensing company’s copyrighted artwork.  Following a trial last fall, the judge ordered Zazzle to cease infringing the copyright in artists’ works owned by the plaintiff.

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The content in this post was found at https://www.iptechblog.com/2018/03/zazzle-and-other-print-on-demand-websites-can-breathe-a-sigh-of-relief-for-now

 Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

IP Watchdog

Gene Quinn
March 27, 2018The Federal Circuit found Google’s use of Java API packages in it’s Android operating system was not a fair use as a matter of law, resurrecting a multi-billion dollar copyright case brought by Oracle Corp against Google. With copyrightability and fair use now decided, unless the Supreme Court intervenes (which seems unlikely) this case will head back to the district court for a damages trial with the sole question being how much money Google owes Oracle America. “This is a hugely important development in the law of copyright and fair use. If it stands, there are numerous implications,” said J. Michael Keyes is a partner at the international law firm Dorsey & Whitney.

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The content in this post was found at https://www.ipwatchdog.com/2018/03/27/google-copying-java-api-packages-not-fair-use/id=95319/

 Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

IP Litigation Current

KIMBERLY DODD AND JOEL DIAMOND ON 27 MARCH 2018

The Southern District of New York has teed up an important copyright issue for interlocutory appeal, which could create a circuit split with the Ninth Circuit’s 2006 decision Perfect 10, Inc. v. Amazon.com, Inc.  On March 19, Judge Katherine Forrest certified for interlocutory appeal her February 15 summary judgment decision favoring the copyright owner, Justin Goldman.  In her summary judgment decision, she rejected the publishers’ argument that “embedding” Tweets with the allegedly infringing photo was not copyright infringement, expressing skepticism with the Ninth Circuit’s “Server Test” set forth in Perfect 10 v. Amazon.

This copyright action stems from a photo that Goldman took of Tom Brady with Danny Ainge (the GM of the Boston Celtics) and others in the Hamptons in 2016 when the Celtics were attempting (unsuccessfully) to recruit Kevin Durant. Three days later, Durant announced he would sign with the Golden State Warriors.

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The content in this post was found at https://www.iplitigationcurrent.com/2018/03/27/case-to-watch-goldman-v-breitbart-news-network-llc-involving-the-embedded-tweets-of-tom-brady-recruiting-kevin-durant-in-the-hamptons/

 Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

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