Copyright Law on Embedded Images Gets Blurrier – Goldman v. Breitbart

9 08 2018

Duets Blog

A few months ago, a federal district court in New York held that several publishers violated a photographer’s copyright when they embedded a photograph from one of the photographer’s Twitter posts. Goldman v. Breitbart News Network, No. 17-CV-3144 (KBF) (S.D.N.Y. Feb. 15, 2018). The photographer, Justin Goldman, had sued Breitbart News Network, TIME Inc., The Boston Globe and other online publishers last year for copyright infringement, alleging they displayed in various online news stories, without permission, a photograph he took of New England Patriots quarterback Tom Brady, which he had posted on Twitter.

In their defense, the publishers invoked the “Server Test,” based on the prominent Ninth Circuit decision, Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007), which held that the unauthorized display of Google Image search engine results, of photographs stored on third-party servers, did not constitute copyright infringement, provided that such images were not hosted on Google’s servers. Essentially, the Server Test provides that website publishers are not liable for copyright infringement if they embed content hosted on third-party servers, but not their own servers.

But in the Goldman case, the New York court (under the jurisdiction of the Second Circuit), questioned the validity of the Ninth Circuit rule, because the court concluded that the Copyright Act does not require physical possession of the copyrighted material. The court relied on Supreme Court precedent supporting that merely transmitting copyrighted material can constitute infringement, regardless of “invisible” technical distinctions regarding the means of the infringing display or distribution, see American Broadcasting Co.s, Inc. v. Aereo, Inc., 134 S. Ct. 2498 (2014). . . .

Furthermore, the court emphasized a “critical” distinction with Perfect 10 regarding the “paramount” role of the user.

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The content in this post was found at https://www.duetsblog.com/2018/06/articles/copyrights/copyright-law-on-embedded-images-gets-blurrier-goldman-v-breitbart/ 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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Copyright lawsuit to test transformative use defense for digitally manipulated images

7 08 2018

Indiana Intellectual Property Blog

June 5, 2018

The Plaintiff is a prominent visual artist primarily known for her original abstract art and mixed media paintings. She has sold over 1,500 original paintings worldwide.

The Defendant is an artist who creates his works by digitally manipulating existing images through computer programs such as Photoshop. Defendant sells his digitally manipulated artwork via the same online retailers as Plaintiff. 

Keck v. Lawrence et al.

Court Case Number: 2:18-cv-00250-RLM-DLP
File Date: Friday, June 1, 2018
Plaintiff: Michel Keck
Plaintiff Counsel: Matthew K. Higbee, Ryan E. Carreon of Higbee & Associates
Defendant: John Mark Lawrence dba Mark Lawrence Art Gallery; Does 1-25
Cause: Copyright Infringement
Court: Southern District of Indiana
Judge: Robert L. Miller
Referred To: Doris L. Pryor

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The content in this post was found at https://indianaintellectualproperty.com/2018/06/05/copyright-lawsuit-to-test-transformative-use-defense-for-digitally-manipulated-images/ 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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Court Awards $12,500 For ‘Emotional Harm’ From Bogus Copyright Lawsuit

6 08 2018

Tech Dirt

Mike Masnick

Almost a year ago, we wrote about a somewhat complex set of cases involving a woman named Shirley Johnson, who posted videos to YouTube that were critical of the New Destiny Christian Centers and Paula White Ministries. Paula White did not take kindly to this criticism and sued Johnson… for copyright infringement (though, the details suggest that the decision to sue actually came from White’s son, Brad Knight, and White agreed to it at Knight’s suggestion). This was because Johnson used video clips and images in her own videos. This seemed like a pretty clear copyright abuse case as it was obviously filed to stop criticism that involved fair use, and not for any legitimate purpose. The case was dismissed, but Johnson countersued for “malicious prosecution.” As we noted in our article from last September, Johnson then also filed a separate lawsuit for a DMCA 512(f) abuse claim. If you don’t recall, 512(f) is the (mostly toothless) part of the DMCA that bars “misrepresentations” in DMCA claims. So, there are two parallel cases going on, brought by Johnson (representing herself, without a lawyer), against Paula White and her various entities, for filing a bogus copyright claim against Johnson.

That case around 512(f) is still going as far as I can see. However, the malicious prosecution case has now concluded with the court awarding Johnson $12,500 for the “emotional harm” from the bogus copyright claim. Of course, before this happened, as the court itself says (and I’m not joking): “all hell broke loose.” That is directly from the court’s ruling back in January, which details a convoluted mess of discovery fights and bad behavior.

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A Presentation on Legal Issues for Podcasters – Who Owns What?

6 08 2018

David Oxenford
August 3, 2018
Broadcast Law Blog

Last week, I spoke at Podcast Movement 2018 – a large conference of podcasters held in Philadelphia. My presentation, Legal Issues In Podcasting – What Broadcasters Need to Know, was part of the Broadcasters Meet Podcasters Track. The slides from my presentation are available here. In the presentation, I discussed copyright issues, including some of the music rights issues discussed in my articles here and here, making clear that broadcaster’s current music licenses from ASCAP, BMI, SESAC and even SoundExchange don’t provide them the rights to use music in podcasts. Instead, those rights need to be cleared directly with the holders of the copyrights in both the underlying musical compositions as well as in any sound recording of the song used in the podcast.

 

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The content in this post was found at https://www.broadcastlawblog.com/2018/08/articles/a-presentation-on-legal-issues-for-podcasters-who-owns-what/ 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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Appeals Court Says You Can Copyright A Collection Of Facts… If You Leave Out A Few

26 07 2018

Tech Dirt
Mike Masnick
Thu, Jun 28th 2018

One of the most famous, and most important, copyright cases to hit the Supreme Court was the Feist case. We’ve mentioned it many times before. The short summary is that a phone book publisher had inserted a few “fake” names and numbers into its book to try to catch copycats. It found one, and sued for copyright infringement. The Supreme Court rejected it, noting that copyright does not apply to facts, and clearly rejecting any notion that mere “sweat of the brow” in collecting facts gives you a copyright.

This was good. But… there was one part of the ruling that still left open the potential for mischief, and appeals courts have been making mischief in that loophole ever since. Here’s the issue: 17 USC 103 allows for copyright in “compilations,” though it notes this copyright “only extends to” the creative input in making the compilation, and not the underlying works (whether they are covered by copyright or not). The common sense explanation of this is that if, say, you’re putting together (with the proper licenses) a “best of…” CD (let’s say “Best of the 70’s”), then you can have a copyright on that compilation. Not in the underlying songs, which you’ve licensed properly, but in the creativity in choosing the 7, 12, 15 or whatever number of songs, and the order you’ve placed them in. That requires some creativity, and it may be enough to get a fairly narrow copyright.

In Feist, the question was whether or not putting together all the phone numbers and names was covered by that compilation setup, and the Supreme Court said no. A mere collection of facts has no creative element and thus can’t be considered a compilation for the purpose of establishing a new copyright. That’s good. But the opinion bent over backwards to suggest that lots of other compilations of data might have the requisite creativity. And… far too many courts have taken the Supreme Court up on that proposition, potentially eviscerating the valuable promises of Feist.

That takes us to this case. Here, Experian, as you’re probably aware, is one of the massive consumer data services, and one of its databases, the ConsumerView Database, contains around 250 million records about individual consumers, pairing together their names and addresses. Names and addresses. This seems pretty damn similar to Feist’s names and phone numbers, right? Well, an upstart data collection company, Nationwide Marketing Services (or Natimark) somehow got its hands on a database called the National Consumer List, with about 200 million records. At some point, it tried to sell that database to Experian (apparently, the whole market is somewhat incestuous in passing around and selling data back and forth between each other, using different databases to mix and match and keep things up to date).

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The content in this post was found at https://www.techdirt.com/articles/20180628/00421740125/appeals-court-says-you-can-copyright-collection-facts-if-you-leave-out-few.shtml 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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Oracle America v. Google, Free Java: Fair or Unfair?

25 07 2018

IP Watchdog
Jie Lian
July 9, 2018

[ed notes: This ruling/case could be ENORMOUSLY important in the open source v proprietary software space]

The Federal Circuit recently decided the case of Oracle America v. Google Inc. To “attract Java developers to build apps for Android,” Google copied the declaring code, but wrote its own implementing code for the 37 Java API packages. Id at 1187.  Previously, the Federal Circuit held that “[the] declaring code and the structure, sequence, and organization (‘SSO’) of the Java API packages are entitled to copyright protection.” .  On the other hand, the Federal Circuit also recognized that a reasonable jury could find that “the functional aspects of the packages” are “relevant to Google’s fair use defense.” In this key decision that has the potential to rock the software industry, the Court of Appeals for the Federal Circuit rejected the jury verdict and found that “Google’s use of the 37 Java API packages was not fair as a matter of law.

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The content in this post was found at https://www.ipwatchdog.com/2018/07/09/oracle-america-v-google-free-java-fair-or-unfair/id=98763/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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Shifting Law on Embedded Content

25 07 2018

Above the Fold
on June 30, 2018

Embedding content from one source, e.g., a website, into another source, e.g., another website, is not uncommon. News sites embed photographs from Instagram, twitter messages, and videos into their content. Businesses embed videos and photographs of their products into their websites. Embedding also occurs when we post a link from a website into our social media accounts. For instance, after copying and pasting a website link into a social media post, an embedded version of the website automatically generates. This auto embedding typically consists of the formation of a small box or window which may include a reference to the website, an article name or title, and/or an image or video from the website. But is such use of embedded content copyright infringement?

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The content in this post was found at https://advertisinglaw.foxrothschild.com/2018/06/shifting-law-embedded-content/ 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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Court Won’t Rehear Blurred Lines Case, Bad News For Music Creativity

25 07 2018

Tech Dirt
Mike Masnick
Thu, Jul 12th 2018

Back in March we wrote about the terrible decision by the 9th Circuit to uphold the also awful lower court ruling that the Pharrell/Robin Thicke song “Blurred Lines” infringed on Marvin Gaye’s song “Got To Give It Up.” If they had actually copied any of the copyright-protected elements of the original, this case wouldn’t be a big deal. But what was astounding about this ruling is that nowhere is any copyright-protected expression of Gaye’s shown to have been copied in Blurred Lines. Instead, they are accused of making the song have a similar “feel.” That’s… bizarre. Because “feel” or “groove” is not protectable subject matter under copyright law. And yet both the lower court and the appeals court has upheld it. And now, the 9th Circuit has refused to rehear the case en banc, though it has issued a slightly amended opinion, removing a single paragraph concerning the “inverse ratio rule” of whether or not greater access to a song means you don’t have to show as much “substantial similarity.”

Again, this is a ruling that should greatly concern all musicians (even those who normally disagree with us on copyright issues).

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Appeals Court Won’t Yet Review Awful District Court Decision That Says Embedding Could Be Infringement

24 07 2018

Tech Dirtby Mike Masnick
Mon, Jul 23rd 2018

Back in February we wrote about an absolutely horrible ruling out of a New York court by Judge Katherine Forrest that argued embedding an infringing tweet could be an act of infringement on its own. As we pointed out, if this ruling holds, it would undermine some of the basis of how the internet itself works. The issue here gets a bit into the weeds of both how the internet and how copyright law works. Embedding something on the internet, at a technical level, is really no different than how linking on the internet works. And it’s long been established that if you link to infringing content, that alone should not be considered a separate act of infringement. But is embedding? At a very basic level, this is the difference between the two:

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The content in this post was found at https://www.techdirt.com/articles/20180718/16541140265/appeals-court-wont-yet-review-awful-district-court-decision-that-says-embedding-could-be-infringement.shtml
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“Dancing Baby” lawsuit finally settles, baby is now a middle-school student

17 07 2018

Ars Technica
– 6/28/2018

Universal Music Publishing Group has finally settled its copyright lawsuit involving Stephanie Lenz, the woman who posted a short video of her son dancing to a Prince song in 2007.

The two sides came to a formal agreement on Tuesday, agreeing that as a result of the litigation that lasted for over a decade, Universal Music (UMPG), which owns the copyright to Prince’s recordings, now has a more “fair” process for takedown orders.

Lenz and her attorneys from the Electronic Frontier Foundation had argued that when her 29-second video was initially taken down under a Digital Millennium Copyright Act order, Universal Music had ignored the fair-use exception to copyright law.

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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.

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