Free for a Fee

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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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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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[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

IP WatchDog

Steve Brachmann
August 17, 2018

Nintendo’s complaint targets the operator of LoveROMS.com and LoveRETRO.co who has made thousands of Nintendo titles available online for free from platforms including the Game Boy, the original Nintendo Entertainment System, Super NES, Nintendo 64 and Nintendo DS, among others. Nintendo alleges that just the top 10 games on the LoveROMs site in which Nintendo is a copyright claimant and trademark owner have been downloaded more than 60 million times. Further, the LoveROMs website allegedly receives more than 17 million visits each month.

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The content in this post was found at https://www.ipwatchdog.com/2018/08/17/nintendo-files-copyright-trademark-infringement-suit-against-operator-rom-websites/id=100283/ 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 Mike Masnick

Mon, Aug 13th 2018

Just recently, Tim Geigner wrote about how Nintendo’s success with the relaunched Nintendo NES Classic showed how the company successfully competed with free, because there are plenty of NES emulators that can play ROMs for free. And yet, the NES Classic comes in a neat, easy to use package. And it’s worth buying if only because it looks cool — just like the original, but… tiny. I should know: I have one and it’s great. And my wife can’t stop playing Mario Bros. on it, though she keeps complaining about other games from her youth that are missing.

But, of course, this is Nintendo we’re talking about, so it’s been busy, busy, busy suing a bunch of ROM sites and scaring others into shutting down. The site EmuParadise shut down recently with the following as part of its farewell message after 18 years in operation:

Tech Dirt

Mike Masnick

Tue, May 22nd 2018

Lawyer Stephen Doniger seems to be going out of his way to file lawsuits that involve creative interpretations of copyright (and by “creative” I mean “wrong.”) You may recall that Doniger was the lawyer behind Playboy suing Boing Boing for copyright infringement for linking to an Imgur collection of Playboy centerfolds. That case went so poorly that the judge tossed it out in just two months. Before that, Doniger made a name for himself (I kid you not) being a fabric copyright troll, filing loads of lawsuits against companies offering similar designs on fabric. He’s also jumped in on the whole situation created by the “Blurred Lines” mess by filing a bunch of “sounds alike” copyright cases.

It’s almost as if he’s filing all sorts of nutty copyright cases just to demonstrate for us just how ridiculous modern copyright law has become, and how far from its purpose it has strayed. Indeed, that’s about the only explanation I can find for a new filing by Doniger, as noted by the Hollywood Reporter, in which Doniger, representing director Robin Bain is suing actress Jessica Haid for using a clip of the film, Nowhereland in her own demo reel.

In short, Bain claims that Haid asked for permission to use clips in her demo reel and Bain refused (nice of him).

IP Watchdog

Katie Scholz
May 24, 2018

The opinion acknowledges, in a footnote on page 3, that videos of the type that the Klein’s created, is not unique. Instead, it is part of a growing genre of “reaction videos” in which portions of an original video are interspersed with commentary to create a new creative work… Luckily for the Kleins, their fans were ready and willing to create a legal fund for their use. YouTube has also taken action to protect some content creators subject to false DMCA notices. However, with over 800 unique users, and over 100 hours of new videos being uploaded every minute, clearly YouTube cannot be required to protect all of its content creators from false copyright infringement allegations. In light of this decision, perhaps we are approaching a time where reconsideration, and revision, of the DMCA, is warranted.

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Lex Blog

AUGUST 9, 2018
The Ninth Circuit recently issued its decision regarding the validity of the California Resale Royalty Act (“CRRA”) in three consolidated appeals: Close v. Sotheby’s, Inc., No. 16-56234, The Sam Francis Foundation v. Christie’s, Inc., No. 16-56235 and The Sam Francis Foundation v. eBay Inc., No. 16-56252. 2018 WL 3322222 (9th Cir. July 6, 2018).

The content in this post was found at https://www.lexblog.com/2018/08/09/update-ninth-circuit-holds-that-crra-is-preempted-by-first-sale-doctrine/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com