The Las Vegas copyright fair use loss for Righthaven last week was probably less meaningful – and less amusing – than the “money quote” (as Wall Street Journal blogger Ashby Jones put it) from the federal Judge James Mahan, who reportedly mused, “I realize this is going to be appealed.  I tell litigators ‘that’s why God created San Francisco’” – site of the 9th Circuit federal appeals court.

At first glance, the case is a breathtaking blow for newspapers and media organizations (including, presumably, bloggers), because it upheld a fair use defense against copyright infringement where the newspaper story was copied in its entirety.

This case would seem to run afoul of every fair use guideline ever published, including the fair use law itself, and particularly the frequent characterization of a “fair” use as a “transformative” use:

… whether the new work “merely supersede[s] the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994).

But that’s first glance.  Judge Mahan hasn’t yet issued his Order, so we know only wha the Las Vegas Sun reported from the hearing.   Continue reading

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Today we’ll be looking at some of the prominent music streaming sites, including Grooveshark, Pandora, Spotify and others, looking at legal and business issues in a quickly shifting landscape. The New York Times recently reported on the very recent revival of venture capital and public market interest in the music industry after a bit of a funk period. The money seems to be flowing again, and where it’s flowing tells as much about the technology and business as it does about legal issues involved.

To talk about these issues, my guest today is Jake Kring, Co-Founder of GetSpontaneous.com. Jake, along with his other co-founder Mack Kolarich, founded GetSpontaneous, a social event discovery platform optimized for a fundamentally mobile world.

Please click the link below for the podcast.

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In today’s podcast, we discuss copyright issues, specifically the distinctions – practical and legal – between “inline” or “hot” or “embedded” links and downloaded images.  This comes up usually in the context of using video, but the principles should apply to any uses of images on websites, blogs, twitter, Facebook and other social media.

I am joined today by my colleague Thomas Yarnell.

In a series of cases starting around 2002 (a case called Kelly v. ArribaSoft) and accelerating in 2007 (a series of cases involving Google and Amazon and a photography database called “Perfect 10”), web hosting companies, search engines and sites like Amazon were accused of copyright infringement when they used thumbnail images of copyrighted works for their search or catalog results.  So for example, Google Images routinely shows images from copyrighted works in search results.  Google (based on the Kelly case and subsequent caselaw) argued that the use of the images was a “fair use”, in that the search engine’s cataloguing of images was a “transformative” type of use that should be protected under copyright’s fair use doctrine.

In the more recent cases involving Perfect 10, Google (and Amazon) were initially successful in arguing that their use of copyrighted images wasn’t copyright infringement at all – making a fair use defense unnecessary.  Those cases were appealed and reversed, but only partially.  The big point that was upheld was that a search web user’s (Google, Amazon, or anybody else for that matter) embedding of inline links would not constitute direct copyright infringement.

Please click the audio player below for the podcast.

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Thanks to Andrew Mirsky for contributing research and feedback to this post.

Let’s say, like most of us, you run a Justin Bieber fan blog. You try to keep it up to date, especially with his latest songs and footage from recent concerts. This involves going on YouTube, finding the new single, and grabbing the embed code, to throw the video up on your site.

The question is… does embedding video (or photos, etc.) make you liable for copyright infringement?

In a word, the answer is yes, although recent major cases on the subject indicate that convincing a court of such infringement is an entirely different story. Continue reading

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In today’s podcast, we discuss intellectual property issues, specifically the question of how to protect ideas.  My guest is Neal Seth, a partner in Baker Hostetler’s Washington, DC office. Neal’s practice focuses on patent litigation and appeals.  Neal has handled numerous litigation and appellate matters in a variety of technologies, including the pharmaceutical, chemical, electrical, and mechanical fields in district courts, the ITC, and the Federal Circuit.

This is not meant to be a true “primer” on intellectual property protection.  Instead, we’re going to look at the very practical threshold problems entrepreneurs and small businesses face when developing and pursuing new ideas for businesses.

Our questions: What is the major practical problem with patents from the perspective of someone with an idea?  What can copyrights really do for someone?  For example the software developer: What does it mean to copyright software and what kind of protection does it get you (and not get you)?  We discuss major limitations against “descriptive” trademarks.  We discuss trade secrets and how trade secrets are distinct from patent or copyright.  What about Non-disclosure Agreements (NDAs) or Confidentiality Agreements?  Is it necessary to have all interested parties sign an NDA before reviewing a business plan or even taking a meeting?  What benefits?

Please click play below to hear the podcast.

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The Associated Press reported yesterday about a University of Missouri student who invented an iPhone app in a class, then was successful in generating more than 250,000 downloads of the app, and finally was contacted by lawyers for the University demanding a 25% royalty on all earnings from the app.

According to the AP, the student, Tony Brown, was also given the celebrity treatment by Apple and wooed for technology jobs by Google and other companies.

Ultimately, Missouri backed down, but not before overhauling the University’s technology transfer policies, at least as they relate to student development and ownership of intellectual property.  In this case, “Inventions” and copyrights that might be considered “work-for-hire”. Continue reading

(Thomas Yarnell contributed research and writing to this post.)

In a past post, we wrote about copyright as it relates to how preemption of state law civil causes of action in the same or related cases.  In writing about the Perez Hilton and NFL Films cases, we noted that federal copyright law did not preempt applicable state laws (specifically, “hot news” and right of publicity claims) because the rights claimed under the state laws were not equivalent to the rights protected by the Copyright Act.

Put another way, federal copyright preempts state law claims where the rights sought to be enforced under the state claims do not necessarily match those protected by the Copyright Act.  In those cases, the rights protected by copyright – reproduction, performance, distribution or display of the work – were distinguishable from the rights protected by the state law claims.

A 2008 North Carolina case offers a counter example, involving failure to show that a state law added some unique element outside of the rights protected by copyright. The case, Rutledge v. High Point Regional Health System, F.Supp.2d –, 2008 WL 2264239 (M.D.N.C.) shows how claims under state law can only avoid copyright preemption if they are “qualitatively different” from copyright law. Continue reading

I was recently asked about “fair use” standards for use of copyrighted video or audio in mashups.

What’s a Mashup?

First: What are mashups?  From WiseGeek:

A mash-up is a combination of tools or data from multiple sources. Mash-ups typically collect data from multiple web pages and bring their information into one simplified web application.

Mashups are common in the application development world, but also common in music and videos, and examples are legion (and some notorious).  In particular, a music mashup is (according to Squidoo) …

when the vocals from one song are laid over the music of a second song to create a mashed up version that’s both but neither.  If a good job is done, it enhances the original music.

Actually, the last part of that definition is most critical to a fair use analysis.  I recently wrote about fair use in the context of the republishing of copyrighted photographs or artworks in a magazine, book or electronic publications.   Continue reading

Question: Under what circumstances can “fair use” support the editorial republishing of copyrighted photographs or other artworks in a magazine, book or electronic publication?

Short answer: When the previously copyrighted works are the subject of the republishing.

Fuller answer: An “editorial” republishing, almost by definition but with important caveats, satisfies the “fair use” test under the Copyright Act in 17 U.S.C. § 107, in particular by meeting the Act’s four-factor (nonexclusive) criteria: Continue reading

An interesting case comes out of the West earlier this month under Copyright law’s “first sale” doctrine, involving computer software under a license agreement.

Copyright’s “first sale” doctrine

The “first sale” doctrine involves this concept: If you buy a copyrighted work (say, a painting, or a book, or – as in this case – software – you have an unqualified right to transfer your copy of that work to anybody as you please.  That doesn’t mean you can make additional copies and sell those too, but generally it does mean that you are free to resell something that you purchase.  (As will be discussed below, the operative term is “purchased”.)

The doctrine was first recognized by the Supreme Court in a 1908 case, and later codified by Congress into the Copyright Act in the 1976 amendments to the Act. Continue reading