Archive for: April, 2013

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WIPO World Intellectual Property Day is Today!

WIPO World Intellectual Property Day is Today!



Today is a good day to write a poem, post an article on a blog or take a photograph. These works are all protected by copyright law. And when you are reading a book today, listening to music or playing an app,

remember that someone created those copyright-protected works.

The World Intellectual Property Organization (WIPO) is the United Nations agency dedicated to the use of intellectual property (patents, copyright, trademarks, designs, etc.) as a means of stimulating innovation and creativity.

On April 26 every year, WIPO aka World Intellectual Property Day is celebrated in order to promote discussion of the role of intellectual property in encouraging innovation and creativity.

Wondering what you can do on WIPO, World IP Day? Through the links below you will find 20 innovative ideas!

  1. Seize the Teachable Copyright Moment
  2. Saying Yes to Copyright Permissions
  3. Copyright Education that Invites Participation and Cooperation
  4. 5 Copyright Ideas to Implement Today

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CopyRIGHT Pathfinder on Copyright Law for Librarians

The second CopyRIGHT Pathfinder, which is part of the 2013 Copyright Community, is now available. This Pathfinder is designed with brief descriptions and hyperlinks to guide you to primary and secondary sources on copyright  law and licensing for librarians. All sources are vetted. Use your time reading about copyright law; not locating reliable resources!

CopyRIGHT Pathfinders are new to the Copyright Community in 2013. Pathfinders are one way a yearly subscription provides you with knowledge you can immediately use to comply with, and manage, your complex copyright and licensing issues.

Electronic subscribers to The Copyright & New Media Law Newsletter are automatically members in the Copyright Community.

View Pathfinder.

Subscribe to The Copyright & New Media Law Newsletter and be part of the Copyright Community.

Take our poll on topics for future Pathfinders.

Contact us.

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Announcement of Comprehensive Review of U.S. Copyright Law

Copyright law review is a long time coming. Today, Bob Goodlatte announced that the Judiciary Committee will conduct a comprehensive review of the U.S. law over the upcoming months. Bob Goodlatte is Chairman of the Committee on the Judiciary in the U.S. House of Representatives. Goodlatte made this announcement as part of his opening remarks at WIPO World Intellectual Property Day celebrations held at the Library of Congress.

On 20 March 2013, U.S. Register of Copyrights Maria Pallante appeared before the Judiciary Committee sharing her message that the U.S. Copyright Act is showing its age and requires attention. She encouraged the Committee to think big and to start considering the next great copyright act. Details of issues to be considered in the next great act are set out in a paper which formed the basis of a lecture Ms. Pallante gave at Columbia University on 4 March 2013.

Bob Goodlatte announces copyright revision

Chairman Goodlatte stated: There is little doubt that our copyright system faces new challenges today. The Internet has enabled copyright owners to make available their works to consumers around the world, but has also enabled others to do so without any compensation for copyright owners.  Efforts to digitize our history so that all have access to it face questions about copyright ownership by those who are hard, if not impossible, to locate. There are concerns about statutory license and damage mechanisms. Federal judges are forced to make decisions using laws that are difficult to apply today. Even the Copyright Office itself faces challenges in meeting the growing needs of its customers – the American public.

So it is my belief that a wide review of our nation’s copyright laws and related enforcement mechanisms is timely. I am announcing today that the House Judiciary Committee will hold a comprehensive series of hearings on U.S. copyright law in the months ahead. The goal of these hearings will be to determine whether the laws are still working in the digital age. I welcome all interested parties to submit their views and concerns to the Committee.

I also look forward to working with the Register and the Copyright Office that has served Congress well since its creation over 110 years ago. There is much work to be done.

Press release

How the U.S. Legislative Process Works

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Copyright Principles for Authors and Publishers Online Course

SLA copyright principles

Copyright Principles Online Course for Authors + Publishers on Copyright


The Copyright Principles online course begins 2 May (ending 20 May), offered through Special Libraries Association’s Click University.     Register

There are 3 webinars on Copyright Principles which are recorded, a discussion list, and a 10-question multiple choice quiz at the end of the course. Participants receive a certificate of completion. Topics include:

  • the unique point of view of authors and publishers
  • criteria for copyright protection and what works are protected
  • registering copyright works
  • using the copyright symbol
  • ownership (author, employee, publisher)
  • duration of protection
  • rights granted to authors and publishers
  • moral rights versus economic rights
  • permissions for incorporating and adapting third-party works
  • fair use/dealing from the author/publisher perspective
  • licensing and assigning works to others
  • exploiting works
  • protecting works online
  • copyright infringement and remedies

What people are saying about the value of the copyright principles management courses:

“I feel so much more confident about copyright than I did prior to taking the courses.”

“I’ve really enjoyed this course. The emphasis on perspectives was enlightening.”

“We learned so very much and have built of great network of resources to assist us in our day-to-day work.”

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Apple faces $118000 fine in China for e-book copyright infringement

Apple was fined 730,000 yuan (about $118,000) in China for copyright infringement. News of the fine came from China Daily News (hat tip to ZDNet), which reported the No. 2 Intermediate People’s Court in Beijing ruled against Apple after it discovered the works of three writers were sold through the iBookstore without their permission.

This is the second set of cases brought by the Writers’ Rights Protection Union against Apple. According to Judge Feng Gang, Apple has a responsibility to check whether the novels by third parties have all the permissions that are required in order to be sold in accordance with local laws, on the iBookstore. It seems as though the novels were in fact uploaded by another person who did not have permission to print them, and Apple is the one.

“The writers called for this time contain Mai Jia, whose novels in many cases are on bestseller lists across the country,” the judge said, based on China Daily. “In this manner, Apple has the ability to understand the uploaded publications on its online store broken the writer’s copyright.”

But former president of Yahoo China, Xie Wen, was quoted as saying that companies like Apple are not likely to alter their uploading policies and he is suspicious of this kind of expectancy, so infringements like this will necessarily continue.

Wang Guohua, a lawyer for the three writers in question, said the fine was higher than normal, leaving him and his customers pleased with the results. Apple didn’t comment freely on the verdict.

Apple faces $118000 fine in China for e-book copyright infringement – Ars Technica… Read the rest

Desmond Howard Sued By Photographer For Infringement

This has the potential to be loooooong story but I’ll try to keep it short. It involves multiple counts of alleged [The phrase “origin of goods”] by some pretty big names in the business, but the real story is [The phrase “origin of goods”].
Brian Masck is a photographer whose claim to fame is the [The phrase “origin of goods”] of Desmond Howard striking the “Heisman pose” after scoring a touchdown for Michigan.

Twenty-two years later, Desmond Howard, along with Sports Illustrated, Getty Images, Fathead, Nissan and a host of others, are being sued for copyright infringement by Masck.

There’s a [The phrase “origin of goods”] included. If you’re tired of reading boring legal filings filled with boring legal language, you’ll find plenty to enjoy in Masck’s lawsuit, which spends more than 60 paragraphs recounting the story of this photo. Much of it reads like a painfully earnest biography and includes plenty of extraneous details rarely found in lawsuits, including the photographer’s years as a college student and relevant darkroom experience.

Masck, who had already learned to take his camera with him everywhere, was the only photographer on site when Kelly was arrested. And that is why he was able to sell his photograph to the national media…
When Brian refused to stop taking pictures of the incident, he was arrested, along with the Daily’s editor, who was protesting Brian’s arrest. All charges were eventually dropped, but you could say Brian, who had just turned 20 years old, was earning his photojournalism credentials…
Little did either of them anticipate before the game that the foresight, perceptive planning and skill of one of them would facilitate the creation of a college [The phrase “origin of goods”], let alone a broader cultural touchstone.

And so on.
That’s just a couple of the filing’s finer moments. There’s plenty more where that came from, as well as some color photos to break up the wall of biographic text.
Here’s a few of the details actually relevant to the case at hand.
– Masck didn’t actually register the copyright on the photo until 20 years after he took it. He blames this on some bad legal advice from “his counsel at the time,” who told him that SI’s publishing of the photo (along with crediting the source) was as good as registering the copyright. It obviously isn’t and this puts Masck in the position of proving actual damages and prevents him from collecting statutory damages.
– After registering the photo, Masck subtly altered his original in order to track its unauthorized use. (You can see a MS Painted version of the photo pointing out the changes on p. 32 of the filing.) He removed the logo from one glove and slightly extended the lettering on the football. He found this altered version posted at Desmond Howard’s website and among the products being sold by Fathead.
– [The phrase “origin of goods”]. If you’re looking for anything related to this specific “iconic shot,” Masck probably has it for sale. It’s a very singular website that [The phrase “origin of goods”] with various Desmond Howard “trophy pose” merchandise. Unfortunately, this probably limits his potential audience to Desmond Howard, [The phrase “origin of goods”] dedicated to all things Desmond Howard. (There’s more to this story as well, but we’re getting to that.)
– Masck also drags the Lanham Act (something usually associated with trademark violations) into the lawsuit, claiming “unfair competition.” [The phrase “origin of goods”].

Masck also brings unfair competition claims alleging that the defendants caused confusion as to the origin of the Heisman Pose photo. The problem with these claims is that they are effectively trying to emulate copyright protection by stretching the language of the Lanham Act.

In [The phrase “origin of goods”], the Supreme Court struck down such an attempt:
[The phrase “origin of goods”] refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods . . . To hold otherwise would be akin to finding that § 43(a) created a species of perpetual patent and copyright, which Congress may not do.


The Court stressed that the “creative talent” embodied in the work was not left without any protection–if it had qualified, it could still have been protected by copyright. This same reasoning should also apply to Masck’s work, because his claims are based on the defendants copying his photograph, not passing off his physical copies of the photograph as their own.

Masck filed his suit in January. McGowan’s coverage of the filing in February contains this prescient note:

See the photo in question, and the plaintiff’s attempts to merchandise it, at his “store.” (Check out the number of times the site stuffs the phrase “Desmond Howard”–I could see why this might raise some issues of its own).

That’s exactly what it’s done. The name “Desmond Howard” is used liberally throughout Masck’s site. Desmond Howard isn’t too happy with this, especially as he’s been named in a lawsuit concerning a photo of himself.

It turns out that Howard is a bit upset that he’s be sued over his own likeness — especially since he claims that he has never sold the photo or made any money off of it. So Howard and his lawyers have decided to file a massive countersuit against Masck, claiming that the photographer unlawfully used his image by selling merchandise featuring it online.

Howard is referring specifically to Masck’s website TheTrophyPose, which sells everything from life-sized cutouts to framed prints of the famed photograph. Howard also cites Masck’s facebook page “Desmond Howard’s ‘Trophy Pose’ 1991 Photo by Brian Masck,” which the lawsuit claims uses Howards name, likeness and photo, all without permission.

According to Masck’s lawsuit, he discussed a partnership with Desmond Howard on more than one occasion. Howard apparently decided to go his own way (his personal site has a shop advertised on the front page but there’s no live link yet), but he did post Masck’s photo (the one with the telltale alterations) on his site, hence the copyright infringement allegations.

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Congress Misaligned the DMCA Online Copyright Safe on Grooveshark

Grooveshark runs a user-generated content (UGC) website that allows users to upload and download sound recordings.  UMG Recordings (a subsidiary of Vivendi, VIV:FP) sued Grooveshark for copyright infringement based on its users’ activities.

This week, a New York state appellate court partially denied Grooveshark’s eligibility for the online safe harbors enacted by Congress in the 1998 Digital Millennium Copyright Act.

This ruling creates several problems for UGC websites that let users post sound recordings, and it demonstrates one way Congress mishandled drafting its online safe harbors.

The Ruling

In 1998, Congress provided UGC websites with a safe harbor for user-caused copyright infringement (17 U.S.C. 512(c)).  To be eligible for the safe harbor, UGC websites must satisfy some preconditions.  If they do, copyright owners unhappy about users committing copyright infringement can send takedown notices to the UGC website.  If the UGC website responds quickly to a takedown notice, the DMCA online safe harbor says that the website avoids further copyright liability for the items identified in the takedown notice.   In contrast, if the UGC website ignores/rejects the takedown notice, it potentially bears legal responsibility for its users’ actions.  Obviously, most UGC websites prefer to limit their risk, so they routinely take down items identified in the takedown notices.

I acknowledge that you probably think most court opinions address arcane legal issues, but even I think this ruling dealt with unusually arcane legal issues.  The DMCA online safe harbors apply to “copyright” claims, but it turns out the word “copyright” is ambiguous.  In the 1976 Copyright Act, Congress attempted to eliminate most state copyright laws.  As a result, today most potentially copyrightable works either are protected under federal law, or they are not protectable under federal or state copyright law at all.  However, Congress preserved a few categories of works that can be covered by state copyright law–the most commonly-encountered example is certain bootleg recordings of concerts.  Congress also said that sound recordings made before 1972 remain protected under state copyright laws.  Some of these pre-1972 sound recordings are hugely important and highly recognizable cultural assets; for example, the Grooveshark court cites the UMG-owned recordings of “Peggy Sue” by Buddy Holly, “Johnny B. Goode” by Chuck Berry, “My Girl” by the Temptations and “Baby Love” by the Supremes.

It’s this latter group of pre-1972 sound recordings at issue in the Grooveshark case.  Grooveshark argued that the DMCA safe harbors applied to both federal and state copyrighted works.  UMG argued that the safe harbors only apply to federal copyrighted works, not state copyrighted works.  In a short and relatively unenlightening opinion, the New York state appellate court sided with UMG and ruled that the DMCA  safe harbor’s “notice-and-takedown” scheme doesn’t apply to state copyrighted works.


I see at least three problems with the court’s ruling:

Problem #1: In 20111, a New York federal court (in Capitol v. MP3Tunes) reached the directly opposite conclusion and held that state copyrighted works are covered by the DMCA.  (The Grooveshark opinion acknowledged this precedent but made no effort to distinguish it).  In 2007, the federal Ninth Circuit Court of Appeals held in 2007 that all state IP claims against UGC websites (including, presumably, state copyright laws) categorically are preempted by a different federal website immunity, 47 U.S.C. 230 (see Perfect 10 v. ccBill).

Thus, we have three different and conflicting interpretations of the DMCA’s applicability to pre-1972 sound recordings.  What a mess!  It’s never good for anyone when courts have three different answers to the same legal question.  It also means litigants may engage in wasteful forum-shopping efforts to find the judicial venue where the rules are most favorable them.

Problem #2: The ruling doesn’t hold Grooveshark liable for users’ copyright infringement of pre-1972 sound recordings.  Instead, Grooveshark simply failed to qualify for the safe harbor for those works, so the judicial inquiry will now turn to the default laws applicable to “secondary” infringement of state copyrighted works.  Unfortunately, we have no idea what those rules are.  Because most UGC-related copyright infringement cases have been resolved by the DMCA safe harbor, we don’t have many rulings interpreting the secondary infringement rules in those rare situations when the safe harbor doesn’t apply (see this post for more about that).  Furthermore, we have even scarcer caselaw interpreting secondary liability for infringement of state copyrighted works.  (It’s probable the rules will track the federal copyright laws, but that’s not guaranteed).  Thus, this case now involves novel and unpredictable legal questions.

Problem #3: Grooveshark has no easy way to distinguish which user-submitted sound recordings are covered by federal copyright versus state copyright.  However, its legal liability depends this difference.  Operationally, how should Grooveshark proceed?  Without universal protection from the DMCA’s safe harbor “notice-and-takedown” scheme, Grooveshark may be required to pre-screen user uploads to assess whether the file is a pre-1972 sound recording or not, and then it may have to handle those files differently.

However, if that’s the result, Grooveshark probably doesn’t have a viable business.  The pre-screening costs would be exorbitant, Grooveshark would make many classification errors, and copyright owners would subsequently argue (probably unsuccessfully, though we are not sure) that Grooveshark should lose the DMCA safe harbor if it fails to catch infringing files during its pre-screen.  (See the latest Viacom v. YouTube ruling for examples of copyright owners’ arguments about website operator scienter).

More importantly, if Grooveshark must build a uniform site-wide operational process to deal with the small minority of user-uploaded recordings protected by state copyright law, then the DMCA online safe harbors failed at a fundamental level.  Even if the safe harbor applies to 99% of the works, the safe harbor doesn’t help UGC websites with their business planning because the UGC website must still anticipate and address the 1%–and this becomes impossible if, without further research, the 1% looks identical to the 99%.

In a recent post, I discussed some key design attributes of safe harbors and immunities.  One element I identified was “global preemption,” meaning that a successful safe harbor has to swipe out all overlapping claims covering the same activity.  

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Protect Rights of Artists in New Copyright Law

By Sandra, Aistars, executive director, Copyright Alliance

Protect Rights of Artists in New Copyright Law

The head of the United States Copyright Office has suggested that it may be time to start considering “the next great Copyright Act.” The last general revision to U.S. copyright law passed in 1976 at the end of a process that took over twenty years. Looking back, that time may seem like a completely different world. Since then, incredible technological advances and an ever-shrinking world have brought new opportunities and challenges. Copyright law has not been immune to these developments.

In fact, with the advent of digital technologies and the internet, the centuries-old legal doctrine of copyright has perhaps faced more challenges than any other area of the law. So it is not surprising that in recent years, we’ve heard calls for copyright revision from a wide range of sources. But when that call comes from the Register of Copyrights, it makes revision seem less a proposal and more a reality.

Should Congress take on the challenge of updating the Copyright Act, it must do so guided by sound principles, and its deliberations must be based in reality rather than rhetoric.

Chief among these principles is that protecting authors is in the public interest. Ensuring that all creators retain the freedom of choice in determining how their creative work is used, disseminated and monetized is vital to protecting freedom of expression. Consent is at the heart of freedom, thus we must judge any proposed update by whether it prioritizes artists’ rights to have meaningful control over their creative work and livelihood.

Copyright is vital to protecting individual creators’ choice in how they express themselves to the general public. Whether authors take a DIY route or partner with a company, whether they sell their works or give them away, their choices must be respected.

Choice, coupled with consent also drives the economy. The free market system is premised on the idea that the result of individuals making choices, and having stable property rights, will lead to greater economic growth and prosperity than any other system.

Copyright embodies these principles. By securing stable rights to expressive works and vesting the choice of what to do with those rights in creators, we all flourish. It is vital that if Congress accepts the challenge to revise the Copyright Act, it is guided by these principles.

It is just as vital that revision debates remain grounded in reality. It is far too easy to be diverted here.

Those skeptical of copyright protection have expended a lot of energy to redefine its language and revise its history. Calls for lessening copyright protections are far too often accompanied by heated rhetoric. Appealing to emotions may be a great way to drum up signatures for online petitions, but has no place in policy discussions. Finally, it is not hard to find examples of those who propose dramatic changes without understanding the business realities of how creative individuals and industries operate.

Fortunately, data that Congress can rely on is emerging. Recent academic studies, for example, have presented empirical evidence that shows that not only has widespread infringement harmed authors and copyright owners, but also effective and tailored enforcement efforts can guide consumers toward legal avenues.

At the same time, there is a limit to how much the goal of copyright law — the progress of the arts and sciences — can be reduced to numbers.

No one can doubt that creators in the U.S. have contributed a wealth of new ideas and expression — whether in the form of music, films, books, visual art or scholarly research — in the three decades since the last general revision of the Copyright Act. This is, in no small part, thanks to the fair and ethical treatment of authors and creators.
Aistars is executive director of the Copyright Alliance.

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Follow us: @thehill on Twitter | TheHill on Facebook… Read the rest

Focus on IP Law: A Conversation with Tal Dickstein

In 2011, the Copyright Alliance launched a new Legal Advisory Board made up of 15 firms on the East and West coasts. The Legal Advisory Board (LAB) works with the Alliance and its membership to advance copyright strategy, and develop a variety of projects and programs, including providing pro bono assistance to the Alliance in its advocacy on behalf of individual artists, creators and innovators; hosting educational events and webinars; expanding work with law schools and young lawyers, and contributing writing and research, including for Idea/Expression.  Over the course of the year, we will be introducing our readers to some of the partners involved in the LAB in a series of posts on Idea/Expression.  Recently, Marla Grossman sat down with Tal Dickstein, Loeb & Loeb, NYC.

Marla: How would you describe your legal practice?

Tal: My practice focuses on representing artists, musicians and content owners in copyright litigation.  I also handle trademark litigation, internet domain name disputes, and false advertising claims.  I have also represented clients in a variety of litigation matters outside the IP context, including corporate governance, real estate and securities litigation.

Marla: When did you know you wanted to focus on IP law?

Tal: I went to college when Napster was in full swing and entire music libraries could be downloaded for free in a matter of minutes.  I knew that something wasn’t quite right about this windfall, but the “music was meant to be free” crowd seemed to be drowning out the “but it’s stealing” minority.  I didn’t think much about intellectual property law again until I had the opportunity to clerk for a federal district court Judge in lower Manhattan.  I worked on a trademark infringement case involving a commonly used household product.  The complaint recited the extensive marketing efforts and millions of dollars that had been spent increasing public awareness of the brand and playing whack-a-mole with infringers.  This got me thinking back to Napster (which by then had been replaced by Bittorrent and the like) and about how the law should fairly compensate artists for their creative efforts.  After my clerkship, I decided to join a firm with a strong IP litigation practice where I could help represent content creators and owners. I was fortunate to find that at Loeb.

Marla: What was the most unusual case you ever worked on?

Tal: I worked on a copyright infringement case that was essentially a dispute between two songwriters over who had written a popular song.  During the deposition of one of the songwriters, the other barged into the deposition room and tried to have it out with the other songwriter, mano-a-mano.  That was the first and only time I’ve had to call the police during a deposition.

Marla: As an attorney that specializes in IP, what is the one thing you wish more people understood about copyright?

Tal: I wish more people understood that copyright law exists to promote the creation of artistic works, not to stifle the free flow of ideas as some have suggested.

Marla: Do you have a secret (or not-so-secret) creative talent?

Tal: During high-school and college, I would have said playing the guitar.  But now I would have to say drafting briefs, especially the preliminary statement.  That’s one place where you can find creative ways to get your point across.

Marla: If you could excel in one creative field, what would it be?

Tal: Playing live music.  I once had the chance to accompany a client on stage during one of his concerts.  There nothing quite like looking out at thousands of screaming fans.

Marla: What was the last book/movie/concert you really enjoyed?

Tal: Zero Dark Thirty.  With a toddler at home and the demands of law practice, I don’t get to the movies very often.  But this one was worth it.  At the end, I wasn’t sure if I should have felt proud or embarrassed to be an American.  I feel like I’ve gotten my money’s worth when I’m still thinking about a movie days later.

Marla: What was the first record you ever purchased?

Tal: I missed records by a few years, but the first CD I ever bought was Tom Petty’s Full Moon Fever.  My dad was and still is a huge Bob Dylan fan, so the twangy vocals were familiar to me.

Marla: What type of job did you have you have before practiced law?

Tal: I’d have to go back to the summer before law school, when I was a waiter at TGIFridays.  I worked there just long enough to confirm my decision to go to law school.

Marla: What do you like best about working in this field?

Tal: Seeing how century-old concepts of copyright law are being applied and adapted to the digital age where seeming endless amounts of information can be transmitted around the world in a blink of an eye.

Marla: Why are you involved with the Copyright Alliance Legal Advisory Board?

Tal: It enables me to support creators’ rights to control and profit from their own creations, and hopefully I meet some interesting people that I can learn from in the process.

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