Archive for the ‘Uncategorized’ Category

YouTube News: Content Providers Trade Takedowns for a Piece of the Action

Posted on September 7th, 2010 • Filed under Uncategorized • No Comments

The New York Times reports that Hollywood studios and other big content providers are no longer leaping to send DMCA takedown notices when John Q. Infringer posts a hilarious clip from Good Luck Chuck. Sensibly, they’re letting YouTube keep the clips up in exchange for a chunk of ad revenue. YouTube benefits too — the Google subsidiary’s revenues are way up and the site is nearing profitability for the first time.

Google’s CEO Eric Schmidt on YouTube’s strategy:

The strategy had been to amass “an audience first, then figure out the tools that will create the revenue, then you go to the content partners and say, ‘Hey, look guys,’ ” Mr. Schmidt said. “And I think we’re at that point now.”

Hey, wasn’t that pretty much what Viacom alleged YouTube’s strategy to be in its failed billion-dollar lawsuit against YouTube? Also, doesn’t Google’s evident ability to find copyrighted user-posted content on YouTube, slap ads on it, then find the copyright owner in order give it a share of the ad revenue undermine Google’s argument in that same lawsuit that it couldn’t be expected to monitor user-posted content to that degree? I suppose it’s a moot point, since the U.S. District Court for the Southern District of New York, ruling in favor of YouTube/Google, said that the DMCA didn’t impose that level of responsibility on YouTube and that YouTube’s demonstrated ability to comply with massive takedown notices from Viacom proved the DMCA’s notice-and-takedown scheme works just fine to control infringement.

In terms slightly less polite than Schmidt’s, Google’s copyright strategy has often involved taking hold of other people’s content, finding an audience for it, and then saying to the copyright owner, “Hey, we’ve just found an audience for your content, do you want to file suit against the eight-hundred-pound gorilla of the Internet, or do you want to work with us to monetize this opportunity?” It’s a risky strategy but it makes practical sense, and, as seen here, it can produce wins for everyone involved.

Another Google product/division which I expect to eventually take this road is Google Books. I’ll be very surprised if, after digitizing all those millions of books, they don’t create an  opt-in e-book program or cut deals with copyright holders to insert ads into the samples already available online.

Thanks to @THEMIGHTYTRINI for the tip.

 

Las Vegas Newspaper Continues to Sue Bloggers Into Submission

Posted on August 2nd, 2010 • Filed under Uncategorized • 1 Comment

As we’ve reported before, the Las Vegas Review-Journal has become quite aggressive in its approach to copyright enforcement. It assigns rights to a firm called Righthaven, which then sues the alleged infringers. An article in Vegas Seven explores the controversy in greater depth. A communications professor calls Righthaven’s pattern of suing without issuing cease-and-desist letters or takedown notices “legal but sleazy.” Righthaven’s CEO responds that his company could not “get compensated in an appropriate way… if all we did was send out takedown letters like a charitable organization.”

Wired is covering the Righthaven story as well, reporting that, as many suspected, the Review-Journal and Righthaven are pursuing these suits not as a means of protecting the value of the Review-Journal’s work but in order to create a separate revenue stream from settlements. One Righthaven defendant states in the article that the allegedly infringing material on his site was posted by a user, entitling him to a takedown notice prior to suit under the DMCA, but that no such notice was issued.

Meanwhile, the Blog Law Blog (great blog name and subject matter!) reports that Righthaven sued Anthony Curtis, editor of the Las Vegas Advisor, for reposting a Las Vegas Review-Journal article that was written about Curtis and a survey he conducted of Las Vegas entertainment ticket prices. Back in the pre-Internet era, this was known as saving your press clippings. Today, it’s potential lawsuit fodder, it seems. Read more at the Daily Online Examiner.

Techdirt offers more coverage under the blunt headline “Righthaven Ramping Up its Copyright Trolling Business.”

 

Blawg Review #273

Posted on July 19th, 2010 • Filed under Uncategorized • 11 Comments

We’ve had the honor of being selected to host this week’s Blawg Review. Blawg Review is a long-running carnival of legal blog posts with a rotating cast of hosts, each offering their own spin on what’s bubbling up in their practice areas. So, without further ado, the following hot news on three important topics we discuss frequently on 95years – the music industry, journalism, and the legal industry.

The Future of the Music Industry

We would be remiss not to lead with this post from Ray Beckerman’s Recording Industry vs. the People blog, which chronicles the RIAA’s oft-questionable fight against piracy. Ray’s post set the Internet ablaze by revealing that after throwing close to $64 million at Biglaw firms over the past 3 years, the industry group has only managed to recover $1.3 million from lawsuits and settlements.

Clearly, lawsuits and settlements are failing to make up the digital divide. But record sales were not traditionally where musicians made their money–the big bucks have traditionally come from touring. The success of festivals like Coachella and tours like Lady Gaga’s wildly popular Monster Ball had convinced many in the music industry that live events would remain a welcoming port in the storm for artists.

This week, however, megapromoter Live Nation watched its stock slip a whopping 21% after announcing a major decline in ticket sales.  This included a 15% drop in sales for the company’s top 100 tours. Music industry blog Digital Music News sifted through the company’s presentation and breaks down the anatomy of a concert ticket. Worth noting is that roughly 25% of a ticket price comes from every concertgoer’s favorite – the “service fee.”

The Future of the Journalism Industry

The journalism industry is struggling as well, as daily print newspaper readership continues to decline along with advertising revenues. Patrick at Popehat reports on a recent Wall Street Journal op-ed in which Columbia University president Lee Bollinger advances one potential solution: increased public funding for journalism.

Patrick is, shall we say, a little skeptical that the news media would be able to remain objective in its reporting about the government after an influx of public funds. Noting that CNN “has been nearly alone among big media types in seriously complaining about government restrictions in reporting on the [Gulf oil] disaster,” he asks, “would CNN have the guts to do so if it was expecting a big check from a very political administration at the end of the quarter?”

The Future of the Legal Industry

Further belaboring the “in this economy” theme, let’s turn to law practice. Summer associate season is in full swing, and as both writers of this blog are hardworking ‘08 grads, we’re slowly getting used to getting unfairly painted with the “slackoisie” brush.  Summers at Paul Hastings aren’t exactly helping the cause, as this interview with hiring partner Leigh Ryan, entitled “Lose the Arrogance and the Chewing Gum,” points out.

If you’re not sure what we mean by “slackoisie,” visit What About Clients? or Simple Justice, where blawgers Dan Hull (WAC?) and Scott Greenfield (SJ) are apt to be discussing the deficiencies of the younger generation of attorneys, characterizing us as “Teletubbies” (Hull) or a “generation of entitled narcissists” (Greenfield). Just this past week, Hull’s alter ego, Holden Oliver, went to town on Law People’s post “Will Law Schools Help Build a Healthier Profession?”, which argues that law schools have an obligation to concern themselves with students’ psychological health and help those students “understand [their] strengths and values and how well they match with those of the profession and individual firm [they hope] to join.” (Note: I originally mentioned Eric Turkewitz as a frequent critic of young attorneys; although he’s blogged on the “slackoisie,” I really meant Scott Greenfield, who coined the phrase “generation of entitled narcissists,” per Mr. Turkewitz.)

Hull/Oliver’s response was that law is a tough business and that it would be better to sift out our generation’s psychologically fragile “lames” and “weenies” before they graduate law school and weaken the ranks of the profession any further. This argument, based on the unstated presumption that lawyers should aspire to and prepare for practice in a private firm with corporate clients, ignores the fact that Type-A obsessiveness is not necessarily an asset in every area of the law. For instance, I’m not sure you’d want your collaborate divorce attorney to be a wallpaper-chewing workaholic.

What’s more, LP’s post correctly presumes that there are people in law school, or already finished with law school, who aren’t going to do well in certain work environments common in law practice, and from that premise simply concludes that law schools should work to give those people, already on their way to becoming lawyers, the self-knowledge to help them find appropriate niches.

That said, WAC? isn’t wrong when it states that lawyering is in most instances a tough, stressful and competitive profession, and it is becoming even moreso as the legal industry struggles with the recession. Given that, why even go to law school in 2010?  At Above the Law, editor David Lat offers “In Defense of Going to Law School.” It’s a valiant effort, but by his third bullet point–”What else are you going to do with yourself?”–it’s clear that the pro-law-school argument is a hard one to make at present.

(Oh and if you’re wondering why we young lawyers are such entitled weenies: like everything else, it’s probably the legal system’s fault in the first place. See Walter Olson’s post on Overlawyered entitled “Courts Reward Helicopter Parents.”)

Back to those of us already through the law-school wringer: if Biglaw increasingly disdains newly minted JDs, where should we bother to look for jobs? Document review is always an option. The pay is decent, and the low level of accountability and countless hours spent in front of a computer works well for this apparently lazy, tech-obsessed generation. There’s even a slim chance that the pay rate is about to go up. A New York contract attorney is suing Labaton Sucharow, claiming that the firm was required to pay him overtime for any hours worked over 40 per week.

There are two ways this case can go. Either it gets thrown out because New York state recognizes the Fair Labor Standards Act’s professional exemption for lawyers, or the court holds that document review is not actually considered the practice of law. Don’t count on the latter, though–especially not in the Southern District of New York.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

–Joe and Richard

 

Hot Topics in IP: Copyright Termination

Posted on July 2nd, 2010 • Filed under Uncategorized • 1 Comment

Copyright termination disputes are popping up everywhere these days. What is “copyright termination,” anyway? It’s actually shorthand for the termination of the assignment of a copyright. As Eric Osterberg of Fox Rothschild explains:

In extremely bold strokes, [the termination provisions of the Copyright Act permit] authors of works, or their heirs, to terminate any transfer or exclusive license within certain time periods after the date of the grant. To terminate, an author or his heirs needs to give a prescribed form of written notice to the grantee within a certain window of time. Affected parties may dispute the timing and sufficiency of the termination notice, as well as whether the work at issue is eligible for termination.

Several recent high-profile copyright termination suits have involved attempts by heirs of the creators of comic book characters to terminate the assignments of those rights to entertainment industry behemoths like Warner Brothers.

In fact, after losing a termination lawsuit to the heirs of Superman co-creators Jerome Siegel and Joseph Shuster, who in the fall of 2009 won back certain extremely valuable rights related to the Man of Steel, Warners filed a new lawsuit alleging in part that the Siegel/Shuster parties’ attorney and business partner, Marc Toberoff, unlawfully induced the Siegel/Shuster parties to repudiate their existing deals with Warners subsidiary DC Comics in order to set the stage for the suit against Warners.

Losing litigants don’t often sue the winners’ attorneys; it’s safe to say that Warners is taking the loss a bit personally. As THR, Esq., puts it, the suit is “clearly designed to discredit as much as disarm a lawyer who often seems to stand in [Warners's] way,” since Toberoff has a history of tangling with Warners on copyright issues and has beaten them soundly in the past. The complaint is available here.

If you’d like to know more, UCLA and some partners in private enterprise have launched a great new site called IP Colloquium which presents webcasts of discussions about IP law, and its June 2010 program, featuring copyright expert David Nimmer, is entitled “Copyright Termination.” Lawyers in California and several other states can even get CLE credit for listening to IP Colloquium lectures.

Some bonus links:

Musicians Starting to Assert Copyright Termination Rights Against Record Labels.

A Copyright Grant Termination Calculator.

 

Former RIAA chief Rosen in at BP

Posted on June 7th, 2010 • Filed under Uncategorized • No Comments

I’ve been looking for an angle to somehow tie the oil spill in the gulf to media and tech law and aside from a fair use discussion related to people parodying the BP logo, it’s been sparse.   Today, however, Digital Music News reported that ex-RIAA chief Hilary Rosen has been hired by BP to help handle damage control for the embattled oil company in DC.  Rosen, aside from being the head of the RIAA during the fight against Napster, also helped with the passage of the Digital Millennium Copyright Act.   Rosen is a super-powerful asset for BP in this fight.  Hiring Rosen and other beltway insiders like Alex Castellanos, former aide to George W. Bush is just a small part of BP’s multi-million dollar PR campaign to try and take some of the heat off of the company.  We’ll see how that works out for them.

 

Sunday Video Clip: What is Law School Like?

Posted on June 6th, 2010 • Filed under Uncategorized • 2 Comments

For all the newly accepted 0Ls about to become the Class of 2013: It is like this? Yes, it is. Pretty much. At least it will be for you.

 

ACTA: The Little International “Anti-Counterfeiting” Treaty That is Scaring the Pants Off People Everywhere

Posted on June 3rd, 2010 • Filed under Uncategorized • 1 Comment

The Anti-Counterfeiting Trade Agreement (ACTA) is a new international treaty supposedly targeted at counterfeiters. However, supporters of liberalization of copyright law have been expressing serious concern that ACTA has become another vehicle for BigCopyright (Disney and its ilk) to impose more stringent copyright restrictions on the United States, among other countries. It doesn’t help that the ACTA drafting process has been secret, and a draft was just released to the public in April, after a significant period of negotiation.

The Electronic Frontier Foundation has been expressing alarm about ACTA for years. Meanwhile, President Obama has repeatedly stated his support for ACTA.

This past week, Ray Dowd at the Copyright Litigation Blog read the text of ACTA and had this to say: “I thought that I would find the concerns I’d seen floating around the internet to be a little overblown. In fact, I think that the concerns of the EFF are understated. . . . [T]he text appears to be so one-sided as to appear to have been spoonfed by certain aggressive Hollywood rights-holders who don’t think anyone can make fun of Mickey Mouse and that anyone crossing a border should be frisked for a fake Louis Vuitton handbag.”

Similarly, Techdirt says that while the ACTA draft does not codify the “three strikes” approach (read: banning repeat infringers from the Internet entirely) being bandied about in European countries, including the UK, the draft apparently states that Internet service providers must have policies to deal with infringing works in order to have access to “safe harbor” protection under ACTA, and the given example of such a policy is termination of repeat infringers – the foundation of the “three strikes” approach.

Additionally, Techdirt reports that the ACTA draft would export the sort of notice-and-takedown regime, part of the safe harbor provisions already codified in US copyright law in the Digital Millennium Copyright Act, to the rest of the world, despite the fact that these provisions allow action against alleged infringers without proof of actual infringement, and are widely abused in practice.

One more reason to worry about ACTA: Andrew Moshirnia of the Citizen Media Law Project reports that the EU has proposed adding third-party criminal liability to ACTA. In other words, parties who aren’t themselves infringers but who engage in acts of “inciting, abetting and aiding” infringement might be subject to criminal penalties. Moshirnia says:

First off, this seems to criminalize most Internet . . . everything. . . . Second, this would clearly change United States law, something that the supporters of ACTA have claimed that the agreement would not do. . . . Third, introducing criminal penalties to a volatile field like intellectual property is a recipe for disaster.

Are you nervous yet?

Image: The above photo is a 2005 shot from Flickr user bsdfm, who writes: “The label reads: =if(Label=”",”RMA”,”?”) This is an Excel function. It also would work in Microsoft Access. The factory is using Excel or Access to store all the logos for the different jeans they make and then print them onto leather. This is what happens when there is a bug in their software. Chatuchak market, Krung Thep, Bangkok, Thailand.”

 

SLAPP Suits Continue to Attract Media Attention

Posted on June 2nd, 2010 • Filed under Uncategorized • 1 Comment

What did the five fingers say to the disgruntled online commentator?

The New York Times reported Tuesday on the rise in strategic lawsuits against public participation, better known as “SLAPPs.” We first reported on SLAPPs back in March, noting that “SLAPPs can cause significant expense and anxiety.”

As the Times explains, SLAPPs are “meritless defamation suits filed by business or government officials against citizens who speak out against them,” which are not intended to succeed on the merits, “but rather to intimidate critics.” Small businesses in particular seem to be filing SLAPPs with greater frequency as disgruntled customers find new opportunities to voice complaints online on review sites such as Yelp, which the Times reports has spawned several SLAPPs.

The article notes that SLAPPs pose a unique threat to free speech because defendants often fold in the face of even bogus claims after concluding that it will be easier and cheaper to remove controversial comments than to fight for the right to keep them online. Even fire-breathing First Amendment attorney Marc Randazza of the Legal Satyricon concedes as much, saying that a defendant-friendly outcome he recently obtained in Florida, in which a car dealership backed away from suing an angry customer, was unusual.

(Of course, if you were counsel for the car dealership in question and you received the letter Randazza sent on behalf of his client, which is already infamous online, you might have encouraged the dealership to back down too.)

The article notes, as we did, that Congress is considering passing a federal anti-SLAPP law that would require plaintiffs whose suits are determined to be SLAPPs to pay defendants’ legal fees.

SLAPP shot by Flickr user skippyjon.

 

“Life is Rad” Legal Strategy All Wet

Posted on June 1st, 2010 • Filed under Uncategorized • 1 Comment

An entity selling radiology-themed apparel using the mark “Life is Rad” (groan) attempted some radical moves in a suit against a surfing-themed competitor using the mark “Life’s Rad” and the Internet t-shirt behemoth CafePress recently, only to emerge from the waters of the Northern District of California with an ice-cream headache.

“Life’s Rad” (surfing) and “Life is Rad” (radiology) both sold merchandise on CafePress. Life’s Rad filed a takedown notice with CafePress, asserting a violation of Life’s Rad’s federal trademark, which CafePress honored. Life is Rad then filed a lawsuit against both Life’s Rad and CafePress.

Unfortuntely, Life is Rad’s owner, apparently representing himself pro se, asserted a number of sunstroke-induced legal arguments against CafePress, including interference with prospective economic advantage (sorry, dude, CafePress is just one place to sell shirts on the ‘Net, and they had a legit reason to deep-six the Life is Rad goods) and violation of the Digital Millennium Copyright Act’s takedown provisions (bro, the DMCA only applies to copyright, not trademark, bro!)

Life is Rad’s suit against Life’s Rad proceeds, but all the claims against CafePress were dismissed without leave to amend.

As Eric Goldman writes on his Technology and Marketing Law Blog, “This is a great win for CafePress, especially because the court implicitly upholds CafePress’ user agreement. Further, this ruling is yet another data point showing that vendors have a lot of discretion to take down their users’ offerings without fear of liability to the user.”

 

Timbaland Shells Out for “Spazz” Sample; More Copyright News

Posted on May 28th, 2010 • Filed under Uncategorized • 1 Comment

Timbaland just settled a copyright infringement lawsuit alleging unauthorized use of a sample of 1960s garage band the Elastik Band (pictured)’s “Spazz.” Did you know the 2007 controversy over Timbaland’s alleged misappropriation of a Scandinavian chiptune artist’s work has its own Wikipedia page?

In 2013, copyright holders will begin to be able to exercise their rights to cancel assignments of rights under the 1976 Copyright Act. Music labels have been quietly gritting their teeth about this for years now, and the industry’s anxiety level is only going to increase.

Yahoo, Facebook and eBay are all on Youtube’s side in its court battle with Viacom. In related news, court documents reveal that the two nearly settled all infringement claims through a licensing deal which would have netted Viacom close to $600 million; Viacom pushed for $700 million and the deal fell apart.

Why do politicians keep using unlicensed music in their commercials? Arguably, because such uses amount to fair use, given that they’re supposedly non-commercial. Of course, it could also be because political commercials don’t run for very long and they think they won’t be caught. What do you think?