Copyright

The Modern Trend Towards Digitization: The Ambitious Plan to Create a United States National Digital Library

By Vlad Vidaeff *

As technology continues to impact our lives, the book industry has seen a modern movement towards digitization.  A decade ago, the norm was to read books in paper form from your local library or bookstore.  Today, the popularity of e-readers such as Kindle, NOOK, iBooks, and Google Books has soared rapidly.  In fact, Kindle is Amazon’s number one selling product for two consecutive years and has received the most 5-star reviews of any product on Amazon’s website.  In terms of availability, Kindle boasts a selection of 670,000 copyrighted books and 1.8 million books that are in the public domain while NOOK offers 1 million copyrighted books and half a million books in the public domain.  The trend towards digitization has also given rise to a monumental and ambitious new project: a U.S. national digital library. Continue reading »

President Obama nominates the “Grokster killer” as U.S. Solicitor General

By Rob Abb *

In a move that is sure to disappoint the many advocates for copyright reform, President Obama nominated deputy White House counsel Don Verrilli as U.S. Solicitor General.  The position had been held by Neal Kaytal, who was named the acting Solicitor General after Mr. Obama nominated Elena Kagan to the Supreme Court.

Mr. Verrilli’s role as Solicitor General is important for a number of reasons.  First, he will now be the government’s lawyer.  That means, for the foreseeable future, whenever the “US” is a party before the Supreme Court, he will be representing it.  One need only look back a few years to see how often these cases, in which the US is a party, have a profound impact on the legal world.  Continue reading »

Which One is More Dangerous: Knock-Off Handbags or Suppression of Free Speech?

By Lauren M. Tozzi *

At the end of November, after 90 days of investigation, the Department of Homeland Security (“DHS”) shut down 82 websites for allegedly violating intellectual property rights.  DHS selected the sites, at least in part, based on rights holders’ complaints that the sites were stealing their intellectual property.  (CNN)  Despite the investigation and tips, the website owners did not receive any notice that their sites would become inoperable.  (To try to visit one of these sites now, click here.)  Democrat Senator Patrick Leahy from Vermont called the seizure of these websites an “innovative use of the tools currently available to law enforcement,” and likened it to the tactics that could become law under the Combating Online Infringement and Counterfeits Act (“COICA” or “the Act”). Continue reading »

The U.S. and Japan Differ in Court Analyses of Gray Market Goods, But Yield Same Results

By Lauren M. Tozzi *

“Gray market goods” or “parallel market goods” carry valid U.S. trademarks, but are imported without the U.S. trademark holder’s consent.  There are several ways this may occur, but here are three common examples: (1) A fictional company, American Goods, registers a U.S. trademark for widgets made abroad, but a third party resells them in the U.S.  (2) American Goods purchases the rights to a foreign company’s trademark, but a third party imports the trademarked goods into the U.S.  (3) American Goods licenses a foreign company to sell its widgets abroad, but a third party purchases them and resells them into the U.S.  Generally speaking, gray market goods increase competition and lead to lower prices for consumers, but companies are displeased when increased competition cuts into their profit margins.  Furthermore, these scenarios threaten intellectual property rights; so many countries have devised means of regulating gray market transactions.  One way of controlling gray market trading is to legislate against particular types of relationships, while another is to litigate particular relationships based on their potential for harmfulness.  A quick comparison of a landmark decision on gray markets in Japan with three critical cases on the same topic in the U.S. suggests that the two legal systems take strikingly different approaches to these issues, but reach the same end results. Continue reading »

Microsoft Allows Unilateral Software Licenses to Russian NGOs and Media Organizations

By Alayna R. Ness *

Microsoft announced a new policy for licensing copies of its software to NGOs following a September 2010 article by the New York Times.  The article reported several instances of Russian authorities harassing advocacy groups and journalists, by claiming these groups were using unlicensed copies of Microsoft software.  The article painted a very unflattering picture of the involvement of Microsoft lawyers in Russia helping the authorities suppress opposition voices under the guise of enforcing anti-piracy laws. Continue reading »

Fine Art and Fine Food: Two Peas in Different Pods?

By Rob Zawrotny *

Some people eat to live.  Other people live to eat.  As I have gotten older, I have realized the error of my ways and moved from the former to the latter category.  Most of my vacations with my wife revolve around, “Where are we going to eat?”In between culinary ventures to, among other stops, extravagant gelaterias in Rome, divine pâtisseries and boulangeries in Paris, and some of New York’s finest steak houses, we have managed to “squeeze in” the Eiffel Tower, the Coliseum, and various MOMAs along the way. A walk across the Brooklyn Bridge is nice and all, but it’s really just the most direct path to Grimaldi’s Pizzeria in DUMBO (and if you’re ever in the neighborhood, one of NYC’s best pastry shops, Almondine, is just up the street).

I have often wondered about what type of legal protection creative cooking receives. The law protects the look of a restaurant as trade dress, novel equipment as a patent, or formulas carrying a competitive advantage as a trade secret (see Coke and KFC), but what about the food? Continue reading »

It’s All in the Expression: Judge says, “Disturbia” Not Substantially Similar to “Rear Window”

By Tierryicah Mitchell *

On Tuesday, September 21, 2010, New York District Court Judge Laura T. Swain ruled that Steven Spielberg’s “Disturbia” did not infringe Sheldon Abend Revocable  Trust’s (“the Trust”) copyright in the short story “Rear Window.”   On May 28, 2009, pursuant to a joint stipulation, the Trust’s claims concerning the substantial similarity between “Disturbia” and the film version of “Rear Window” were dismissed.

Continue reading »

Eliminating the First Sale Doctrine for Software Resellers in the Ninth Circuit

By Joseph W. Norman *

In September, the Ninth Circuit strengthened the protection of software vendors in Vernor v. Autodesk Inc., holding software customers are licensees of their copy rather than owners, so long as the software vendor reserves title to sold copies in sales agreements.

The shifting tide in favor of software vendors is based on the Ninth Circuit’s development of a new test regarding the first sale doctrine.  Under this doctrine, once a vendor or manufacturer of a copyrighted work has sold a copy of that work, the first purchaser may sell that copy without the permission or authority of the copyright holder.  Some limits apply to the doctrine, though, such as the first sale must be made in the United States and the right of first sale does not apply to anybody holding a copy by lease, loan, license, or any other non-ownership position. Continue reading »

When Negotiations Go Sour: The Conflict between Fox and Cablevision and its Impact on the Consumer and Online Piracy

By Vlad Vidaeff *

A wise man once said, “with great power comes great responsibility.”  The impact that the internet has had on our society is undoubtedly powerful.  However, with all of the incredible benefits that the internet has provided, it has also created a convenient and efficient forum for piracy in a variety of areas.  One of those areas is the showing of sporting events such as the World Cup, the World Series, and NFL football on unauthorized websites.  The proliferation of pirated video feeds in the past couple years has led to a whirlwind of efforts on the part of sports leagues to eliminate this trend.  For example, Dan Masonson, a spokesman for the NFL, stated that the league removed more than 2,800 unauthorized streams last year.  The unauthorized streaming of sporting events was a significant issue in the recent dispute between Fox and Cablevision regarding broadcast fees. Continue reading »

To avoid “substantial damages,” Fox News sues to make one thing clear: It did NOT endorse a Democrat.

By Rob Abb *

The election is over. The results are in. The winners are headed to D.C. and the losers are looking for jobs.  However, there is still some unfinished business between a certain cable news network and the Secretary of State in Missouri.

Back on September 15, 2010, Fox News Network, LLC (FNC) and Christopher Wallace filed a complaint against Robin Carnahan for Senate, Inc., in the Western District of Missouri.  FNC alleged, among other things, copyright infringement.  What could the Carnahan for Senate campaign have done to upset the “fair and balanced” executives over at FNC?

Apparently Carnahan’s Senate campaign started running this ad on television (the ad is still online as of now).  The complaint alleges that this 30-second attack ad uses footage from a 2006 interview between FNC journalist Chris Wallace and Carnahan’s opponent, Roy Blunt (R-MO). The Carnahan campaign selected only questions and comments from Wallace without showing any of Blunt’s responses.  For example, Wallace says at one point “you have to show you’re the party of reform” and then the clip shows highlights (or perhaps lowlights) of Blunts political career and describes his financial connection to disgraced lobbyist Jack Abramoff.

According to TPM, this may be the first time a media company has actually taken a political campaign to court on a fair use copyright claim.  According to FNC, they filed the lawsuit because they “cannot allow it to appear as though Chris Wallace is endorsing any candidate.”  For example, the ad finishes with Wallace saying “But some question whether you are the man to do that,” which could be used to infer that Wallace and FNC question whether he is the man to clean up and reform Washington.  Though it is certainly possible that viewers could interpret the ad in such a manner, according to Ben Sheffner, an attorney who specializes in copyright issues, “reputational damage is just not a cognizable copyright interest.” Continue reading »