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More People Recognizing Copyright’s ‘Free Speech Problem’

 

For many years now, we’ve written about the fact that copyright law and the First Amendment are actually in quite a lot of conflict. After all, copyright is regularly used to stifle speech, and the First Amendment isn’t supposed to allow for the barring of speech. Over the years, legal experts have been increasingly starting to realize this. A few years back, we wrote about a paper wondering why copyright law doesn’t require a showing of harm, as should be required under the First Amendment. We’ve also pointed out that the more that you explore the fact that copyright and the First Amendment seem to be in conflict, the more you recognize how screwed up copyright law has been. I’m even aware of two whole books that both focus on this problem: Neil Netanel’s Copyright’s Paradox and David Lange & H. Jefferson Powell’s No Law (as in “Congress shall make no law…”).

But, for whatever reason, copyright system supporters always seem to wave off this issue as if it’s some kook theory, unwilling to confront the stark reality that copyright law has a serious First Amendment problem. And, no, the argument that “well the two coexisted for over 200 years” doesn’t cut it, because copyright was very, very different for the first 200 years of its existence in the US. Nor does the claim that copyright law is some sort of magic exception to the First Amendment because the Copyright Clause in the Constitution “came first.” That sounds good… until you remember that the First Amendment is called that because it’s an amendment and you remember that it’s the later part that should take precedent.

Hopefully, though, more people are beginning to recognize this issue. Law Professor John Tehranian (who has written a wonderful book on copyright excesses himself, called Infringement Nation) has an excellent article at legal trade publication The Recorder detailing the simple fact that Copyright Law Has a Free Speech Problem. It starts with a perfectly clear example of this, where two celebrities sought to punish a news tabloid for publishing proof that they had married by buying up the copyright to the photographic evidence of their wedding, and then suing for copyright infringement:


First, Monge and Reynoso purchased the copyright to the photographs. Then, they sued Maya for copyright infringement for its unauthorized use of the photographs—not to vindicate any real value in the copyrighted work but as a means of suppressing and punishing truthful speech. The gambit worked. Although a district court originally found Maya’s activities protected under the fair-use doctrine, the U.S. Court of Appeals Ninth Circuit ultimately reversed and, in a 2012 published decision, deemed Maya liable for infringement.

We wrote about this case when it was ruled upon, noting the ridiculousness of the ruling at the time. As Tehranian notes, this is just one of many examples of copyright now being used to stifle First Amendment protected free expression:


By fetishizing property interests in copyright works at the expense of the public right of access to factual information, the decision effectively provided future plaintiffs with significant cover for disingenuous uses of copyright law to punish legitimate free speech on matters of public interest. And lest one think that the Maya decision only governs seemingly frivolous celebrity scandals, the precedent could just as easily be used to attach liability to the next publisher of the Pentagon Papers or other unpublished materials containing eminently newsworthy secrets.

And, no, he notes, this is not just one case. It’s happening all over.


In recent years, creationists have used the Digital Millennium Copyright Act to force the takedown of critical materials put online by evolutionists. Abortion-rights activists have brought infringement litigation to enjoin speech by pro-life forces (Northland Family Planning Clinic v. Center for Bio-Ethical Reform, 2012). Military personnel have ginned up copyright claims to suppress photographs documenting human-rights abuses (Four Navy SEALs v. Associated Press, 2005). And a prominent political talk show host has sued to prevent unauthorized reproductions of his broadcasts in order to suppress criticism of his hate-filled rants (Savage v. CAIR, 2009).

Tehranian — rightly — slams the federal judiciary for allowing this to happen, and basically ignoring the First Amendment issues, usually with the wave of a hand about how fair use solves all the problems. But, as he notes, that leaves many in the unfortunate (and nearly impossible) situation of not being able to rely on the First Amendment to protect free speech, but to try to force it directly into copyright law itself.

Because of this issue, he offers a potential solution, saying that we need a NY Times v. Sullivan for copyright. We have, of course, discussed that case many times in the past — most recently in the context of Donald Trump’s apparent ignorance of its existence or meaning. But it’s the seminal case that made defamation law “okay” under the First Amendment, by strongly favoring free expression (around public figures) by limiting defamation to cases of “actual malice.”


Courts have had no problem with imposing carefully circumscribed First Amendment limitations on tort liability in a variety of scenarios. In New York Times v. Sullivan (1964), the Supreme Court famously held that defamation claims brought by public officials should be subject to a critical First Amendment check: a showing that the defendant acted with actual malice by either intentionally disregarding the truth or acting with reckless indifference towards it. The Supreme Court has subsequently extended the holding of New York Times to all manner of defamation, false light (Time v. Hill, 1967), intentional infliction of emotional distress (Hustler v. Falwell, 1988) and invasion of privacy (Cox v. Cohn, 1975) cases involving public figures or matters of public concern.

These doctrinal innovations have a common goal: preventing the courts themselves from being used by private individuals to effectively suppress speech on matters of public concern. However, the courts have left a gaping exception: copyright law. The adoption of a New York Times v.

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Four broadcasters file lawsuit against Aereo over copyright infringement

LOS ANGELES, CA (Catholic Online) – Aereo, backed by Barry Diller’s IAC/InterActiveCorp charges users a low monthly fee to watch live or recorded broadcast TV channels on computers or mobile devices – and does not pay any of the broadcasters.Aereo has urged the high court to hear the case even though it won in the lower court, as it would like a definitive and final answer in regards to the issue.Help end world hunger by going here.

Justice Samuel Alito will not participate in it, according to The Supreme Court, which generally does not disclose why justices are excused. A ruling is expected by the end of this June.

Aereo subscribers can stream live broadcasts of TV channels on mobile devices using miniature antennas. Launched in March 2012 in the New York area, Aereo has since expanded to about 10 cities and plans to enter several more.

The four broadcasters claim that Aereo violates their copyrights on the television programs. The service, they say, represents a threat to their ability to control subscription fees and generate advertising.

The National Football League, Major League Baseball and various media companies, including Metro-Goldwyn-Mayer Studios Inc. have all filed court papers in support of the broadcasters.

Aereo’s business model is “built on stealing the creative content of others,” CBS said in a statement last week.

In its defense, Aereo counters that its service does nothing more than provide users what they could obtain with a personal television antenna. “We believe that consumers have a right to use an antenna to access over-the-air television and to make personal recordings of those broadcasts,” Aereo chief executive officer Chet Kanojia said in a statement.
Persuasive grounds

The lawsuit is being watched closely with the utmost seriousness. Cablevision Systems Corporation says that the legal theory advanced by broadcasters to the high court would spell trouble for cloud-based content services and threaten Cablevision’s ability to offer DVR recording to its customers.

“Cablevision remains confident that while the Aereo service violates copyright, the Supreme Court will find persuasive grounds for invalidating Aereo without relying on the broadcasters’ overreaching – and wrong – copyright arguments that challenge the legal underpinning of all cloud-based services,” the company said in a statement.
2014, Distributed by THE NEWS CONSORTIUM.

Four broadcasters file lawsuit against Aereo over copyright infringement – Catholic Online
copyright infringement news – Google News… Read the rest

Canada’s Supreme Court Finds Cinar Guilty of Copyright Infringement

Claude Robinson

A near-two decade legal fight by Montreal animator Claude Robinson against Cinar Corp., Canada’s high-riding animation producer that was felled during the late 1990s by a series of corporate scandals, has ended in the Supreme Court of Canada.The country’s highest court has ruled that Cinar infringed on the copyright of Robinson by ripping off a character he created based on the classic Robinson Crusoe tale.The high court concluded that Robinson is now due a share of profits and punitive damages from Cinar and a host of co-producers.

Robinson initially conceived an animated project, The Adventures of Robinson Curiosity, during the 1980s and approached Cinar co-founders Ronald Weinberg and Micheline Charest about becoming production partners.

But ultimately nothing came of Cinar’s attempts to finance the series in the U.S. market.

Robinson shelved the project, but in September 1995 watched the first episode of Robison Sucroe, a Cinar cartoon produced at the height of Weinberg and Charest’s reign as Canadian media darlings.

According to the Supreme Court’s 40-page, Robinson was “stunned to see that Sucroe, as he perceived it, was a blatant copy of Curiosity.”

Robinson subsequently discovered that Charest, Weinberg and Christophe Izard of France Animation had received access to the Curiosity project, and afterwards were involved as producers or distributors of Robinson Sucroe.

So the animator started a copyright infringement suit against Cinar Corp., Weinberg and the estate of Charest, who died in April 2004 due to complications from a plastic surgery procedure.

That death came four years after Charest and Weinberg were found to have put the names of Canadians on scripts written by Americans in order to extract tax credits and other lucrative government subsidies.

Ironically, it was an initial probe into Robinson’s lawsuit over Curiosity that led the Royal Canadian Mounted Police to open a wider investigation into financial misadventure at Cinar that went to the heart of how the government-backed Canadian TV industry is financed and run.

Also named in Robinson’s copyright infringement suit was France Animation SA, Izard, Ravensburger Film + TV Gmbh and RTV Family Entertainment AG.

The lower Quebec Superior Court in 2009 concluded that Cinar, Weinberg, Charest, Izard, France Animation, Ravensburger Film + TV GmbH and RTV Family Entertainment AG were liable for copyright infringement for copying major parts of Curiosity without Robinson’s authorization.

The Quebec court of appeal in 2011 upheld the lower court ruling, which Cinar contested on grounds of legal error.

Robinson also took issue with the court of appeal ruling because it reduced the punitive damages he could claim.

The Supreme Court of Canada has now upheld Robinson’s win in the lower courts.

“Robinson’s non-pecuniary damages are analogous to those claimed by a victim of defamation,” the high court ruled in its decision.

“The product of Robinson’s artistic exertions was taken from him and the integrity of his personal creative process was violated, causing deep psychological suffering,” the ruling added.

Montreal-based Cinar was purchased in 2004 by a consortium led by Nelvana co-founder Michael Hirsh, and was rebranded as Cookie Jar Entertainment.

Canada’s Supreme Court Finds Cinar Guilty of Copyright Infringement – Hollywood Reporter
http://www.hollywoodreporter.com/news/canadas-supreme-court-finds-cinar-667622
copyright infringement news – Google News… Read the rest

Fox News Sues TVEyes for Copyright Infringement

Fox News Channel sued TVEyes, a $500-per-month TV and radio broadcast search service, for copyright infringement on Tuesday. The suit, filed in U.S. District Court in New York, alleges that TV Eyes makes versions of the cable news network’s “award winning programming” available on its site for paid users without Fox News’ permission.

The lawsuit accuses TVEyes of misappropriating “the entirety of the works that Fox News has developed at great expense and to reproduce, to distribute, to publicly perform and/or to publicly display verbatim copies of the works” without authorization.

Also read: Fox News’ Shepard Smith Stumping For ‘True Blood’ Cameo

According to the suit, Robert Bruder, director of client relations for TVEyes, admitted that the site was already using Fox News’ content when he approached the channel seeking a license to use that work.

“Mr. Bruder notified Fox News that TVEyes had been using Fox News’s content without authorization and that TVEyes now sought a license from Fox News in exchange for which it would compensate Fox News,” the filing states. “In response, Fox News demanded that TVEyes cease its use of Fox News’s content. TVEyes, however, refused to take down the infringing content.”

Oh, and then TVEyes created a mobile application, promising subscribers they could “take the power of TVEyes with you everywhere you go.”

Also read: Fox May Appeal Aereo Case to Supreme Court

It states that, “in addition to high-quality news reporting, Fox News produces creative and expressive programming — including myriad videos, sounds and images — that is original to Fox News.”

Fox News is seeking an injunction preventing TVEyes from using its content and unspecified statutory and punitive damages. As the suit alleges that TVEyes’ annual revenue is in the “millions of dollars,” that’ll probably be a pretty penny.

Asked for comment, Fox News’ lead outside counsel Dale Cendali told TheWrap: “Fox News had no choice but to file the lawsuit after its many attempts to resolve this amicably failed. Fox News works hard to produce its programming and is committed to protecting it from free rider copiers”

TVEyes did not immediately respond to requests for comment.

Pamela Chelin contributed to this report

Fox News Sues TVEyes for Copyright Infringement – TheWrap
http://www.thewrap.com/media/column-post/fox-news-sues-tveyes-copyright-infringement-107486
copyright infringement news – Google News… Read the rest

Canadian Copyright Law Resources

Canadian Copyright Act

The current Canadian [2012]

[2004]

Canadian Government

Heritage Canada has information on the history of Canadian copyright, publications, a glossary and more, as well as a microsite on the Copyright Modernization Act (the most recent amendments to the Canadian Copyright Act.)

[2004] (where you can obtain a license to use works of unlocatable copyright owners, and a list of Canadian copyright collectives and more)

Government office responsible for copyright registrations: [2006] (CIPO). CIPO also provides general information on Canadian copyright law.

Supreme Court of Canada Copyright Cases

[2002] (SCC) cases: There are many other cases on this site that may be helpful. The list below is a sample of the cross-section of cases on copyright heard by the Supreme Court of Canada.

Creative Commons Canada

Creative Commons Canada

World Intellectual Property Organization

World Intellectual Property Organization

Canadian Copyright Law Questions

Copyright Qs & As on Canadian Copyright Law. This is a forum where you can review various questions and answers and also ask your own questions.

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