Monthly Archives: August 2009

Ned Snow: Fair Use, Summary Judgment, and the Constitution

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Shourin Sen - 28 August 2009 – 9:00 am
Filed under Academia, Fair Use

Ned Snow, Associate Professor of Law at the University of Arkansas, has posted a rather timely article on SSRN.  The article addresses  how courts have historically treated the issue of whether fair use is a question appropriate for a jury:

Summary judgment has become commonplace to decide issues of fair use in copyright cases. But it was not always so. For well over a century, juries routinely decided issues of fair use. Courts recognized that the subjective nature of inferences in the fair use analysis made those inferences factual, precluding a summary disposition. They understood that the Seventh Amendment right to a jury and the First Amendment right of free speech demanded juries in fair use cases. Today, however, all this has been forgotten. Courts of today characterize the inferences in the fair use analysis as entirely legal so that summary judgment is appropriate. This Article examines the question of whether these inferences constitute matters of fact or matters of law. It further examines the reasons for which courts changed their characterization of these inferences, along with the constitutional tensions that have arisen as a result of this changed characterization.

Ontario Federal Court rejects “automatic” presumption of irreperable harm in motion for preliminary injunction

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Shourin Sen - 27 August 2009 – 9:00 am
Filed under Canada, Preliminary Injunction

Western Steel and Tube Ltd. v. Erickson Manufacturing Ltd. 2009 FC 791 (July 31, 2009)

There were a slew of copyright cases uploaded to the Canadian Federal Courts website today. Of note, the Honourable Madam Justice Snider of the Federal Court in Ontario addressed the question of whether a court may presume irreperable harm in a motion for an interlocutory injunction. An interlocutory injunction is referred to as a preliminary injunction in the United States.

Western Steel and Tube brought suit against two rival manufacturing companies alleging that the companies were selling “knock offs” of its utility ramps. Western Steel claimed that the rivals, among other things, infringed its copyright in its packaging and instructions. The Court applied the three-pronged test used by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311:

1.     Is there a serious question to be tried?

2.     Will the Plaintiff suffer irreparable harm if the injunctive relief is not granted?

3.     Does the balance of convenience favour the Plaintiff?

On the question of (1) whether there is a serious question to be tried, the Court found that the plaintiff’s claim met the “very low threshold” of not being “vexatious” or “frivolous.”

Irreperable Harm

The plaintiff in the action cited to a line of cases that it contended stood for the proposition that a plaintiff need not show irreperable harm to obtain an interlocutory injunction. See, e.g., Diamant Toys v. Jouets Bo-Jeux Toys, 2002 FCT 384, 218 F.T.R. 245 (“I agree with the plaintiffs that they need not establish that they will suffer irreparable harm in order to obtain an injunction. . . [I]n copyright infringement cases it seems to me, when the copying is blatant, it is appropriate to consider a less stringent test of potential damage, than would otherwise be the case.”); and Gianni Versace SPA v. 1154970 Ontario Ltd. 2003 FC 1015 (August 29, 2003) (“Turning to the issue of irreparable harm, I agree, based on the reasoning of Nadon, J. in Diamant, that the Plaintiffs need not establish that they will suffer irreparable harm in order to obtain an injunction.”)

The Court distinguished the line of cases on the grounds that in each of these cases the arbiter “made a specific finding that there was an infringement.” The Court concluded that “there is no automatic conclusion that irreparable harm exists merely because the foundation of an action is an infringement of copyright or trademark or the alleged tort of passing off.”

Adoption of the standard sometimes applied in the S.D.N.Y.?

The Court delved into the merits of the claim and found that while there were “clear similarities” between the two products there were also “significant differences.” The Court completed this analysis ostensibly on the grounds that Canadian precedent could be read as creating two tests for a preliminary injunction in infringement cases: the first, as outlined above, where a plaintiff must bring a non-frivolous claim and show irreperable harm; and the second, similar to the standard sometimes associated with the Southern District of New York (but currently up for appeal in Salinger v. Colting), where a plaintiff must show a likelihood of success on the merits, but irreperable harm is presumed.

[E]ven if there is precedent to support the proposition that irreparable harm is satisfied by a demonstration that the defendant’s product is substantially the same as that of the plaintiff, the evidence before me is inadequate to make that determination.

The Court ultimately denied the motion for an interlocutory injunction finding that the plaintiff had not presented any evidence beyond assertions to show irreperable harm or that damages were not an acceptable remedy.

10th Cir.: Court reporters do not own a copyright in the transcripts that they prepare

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Shourin Sen - 26 August 2009 – 9:00 am
Filed under Noncopyrightable Material

United Transp. Union Local 1745 v. City Of Albuquerque, 2009 WL 2573815 (10th Cir. 2009)

There was an interesting little unpublished decision issued by the Tenth Circuit (McConnell, Tymkovich, O’Brien writing) this past Friday. An attorney represented a group of plaintiffs in a suit against the City of Albuquerque. The district court appointed a Special Master to conduct hearings, for which the City of Albuquerque ordered and paid for transcripts. The attorney for the plaintiff used the Inspection of Public Records Act, N.M. Stat. § 14-2-1 to 14-2-12, to obtain copies of the transcripts directly from the City, instead of paying the court reporter a higher fee.

The City and the court reporter complained to the district court and, after the case settled, the district court ordered the plaintiff’s counsel to pay the reporter a little over four thousand dollars. The attorney for the plaintiffs appealed in his individual capacity. The 10th Circuit overturned finding that to require the counsel to pay the fee would effectively give the court reporter a copyright in his transcripts:

We have found no authority to justify requiring plaintiffs, and derivatively their attorney . . . to pay a fee to a court reporter for a transcript copy the reporter did not make but, rather, that they legally obtained from another source by independent means. On the contrary, both broad principle and particular holdings undermine the notion that court reporters may demand a “missed fee” whenever someone obtains a copy of a transcript that can be traced back to an original transcript the reporter had made—and was paid for making—for someone else.

In broad terms, [the court reporter's] fee claim rests on the tacit premise that court reporters in some legal sense own the content of the transcripts they prepare, such that they are entitled to remuneration whenever a copy of a transcript is made (even if they played no role in making the copy). To accept this premise would effectively give court reporters a “copyright” in a mere transcription of others’ statements, contrary to black letter copyright law. See 2 William F. Patry, Patry on Copyright, Ch. 4 Noncopyrightable Material, § 4.88 (Updated Sept. 2008) (court reporters are not “authors of what they transcribe and therefore cannot be copyright owners of the transcript of court proceedings”).

And there is a line of cases holding that transcripts independently accessed (such as by simply requesting the case file from the court clerk) may be viewed and copied as an alternative to purchasing a copy from the court reporter. See Kinan v. City of Boston, 112 F.R.D. 206, 208 (D. Mass. 1986); Hawley v. Hall, 131 F.R.D. 578, 583 (D. Nev. 1990); C.P.C. P’ship Bardot Plastics, Inc. v. P.T.R., Inc., 96 F.R.D. 184, 185 (E.D. Pa. 1982); see also Stanley v. Henderson, 590 F.2d 752, 753 (8th Cir. 1979) (noting counsel may obtain copies of appeal transcript from clerk); Schroer v. United States, 250 F.R.D. 531, 535-37 (D. Colo. 2008) (rejecting, under post-2000 Rules (see supra note 1), party’s effort to require immediate filing of transcript with clerk to enable informal copying, not because copying is improper but because party failed to justify burdening the court with filing of as-yet-unused transcripts).

2d Cir. finds that Yahoo’s LAUNCHcast is not an interactive service; entitled to CRB compulsory licensing regime

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Shourin Sen - 25 August 2009 – 9:00 am
Filed under Compulsory License, Digital Audio Transmission

Arista Records, LLC v. Launch Media, Inc., 2009 WL 2568733 (2d. Cir. 2009)

The Second Circuit (Calabresi, Droney, Wesley writing) released a delightfully brief decision on Friday that addressed the definition of an “interactive service” for purposes of 17 U.S.C. 114(d)(3)(C).

Launch Media, Inc. provided an internet radio site that allowed users to create stations from their preferences, such as a genre, artist or song. BMG brought suit alleging that it was entitled to an individual licensing fee, and not just the compulsory license rate set by the Copyright Royalty Board, because the web service was an “interactive service.”

Section 114(j)(7) defines an “interactive service” as a service “that enables a member of the public to receive a transmission of a program specially created for the recipient, or on request, a transmission of a particular sound recording …, which is selected by or on behalf of the recipient.” BMG argued a bright line rule, that “under the DMCA there is no tipping point for the level of influence a user must assert before the program becomes an interactive service-all that matters is that the alleged copyright infringer is “transmi [tting] … a program specially created for” the user.” The Court disagreed:

Justice Oliver Wendell Holmes once wrote that “[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner, 245 U.S. 418, 425 (1918) (internal citation omitted). Holmes’s observation seems pertinent here. The meaning of the phrase in question must significantly depend on the context in which Congress chose to employ it.

The Second Circuit’s decision was ostensibly based on the theory underlying the structure of 114(j)(7). The Court found that the web service as designed would not provide a market substitute for the purchase of digital downloads.

Based on a review of how LAUNCHcast functions, it is clear that LAUNCHcast does not provide a specially created program within the meaning of § 114(j)(7) because the webcasting service does not provide sufficient control to users such that playlists are so predictable that users will choose to listen to the webcast in lieu of purchasing music, thereby-in the aggregate-diminishing record sales.

First, the rules governing what songs are pooled in the hashtable ensure that the user has almost no ability to choose, let alone predict, which specific songs will be pooled in anticipation for selection to the playlist. . . Second, the selection of songs from the hashtable to be included in the playlist is governed by rules preventing the user’s explicitly rated songs from being anywhere near a majority of the songs on the playlist. . .Finally, after navigating these criteria to pool a hashtable and generate a playlist, LAUNCHcast randomly orders the playlist. This randomization is limited by restrictions on the consecutive play of artists or albums, which further restricts the user’s ability to choose the artists or albums they wish to hear.

Kaleidescape and stipulations that a party is entitled upon breach to injunctive relief

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Shourin Sen - 20 August 2009 – 9:00 am
Filed under Licensing

DVD Copy Control Ass’n, Inc. v. Kaleidescape, Inc., 2009 WL 2450711 (Cal.App. 6 Dist. 2009)

I thought it would be worthwhile to mention the secondary licensing issue decided in Kaleidescape. DVD Copy Control Association’s licensing agreement contained one of those ubiquitous provisions that states that a party is entitled to an injunction upon breach:

[S]ection 9.2 of the License Agreement contained the recitation: “[D]ue to the unique nature of certain provisions hereof and the lasting effect of and harm from a breach of such provisions . . . in the event that Licensee breaches its obligations . . . , money damages alone will not adequately compensate an injured party . . . [and,] upon showing to the relevant court’s satisfaction that applicable factors other than the fact that harm will be irreparable and that monetary damages are not sufficient to remedy the injury have been fulfilled, will be entitled to specific performance or other temporary, preliminary, or permanent injunctive relief including corrective actions appropriate to the circumstances for the enforcement of any such obligations (whether or not there have been commercial sales of products subject to the requested relief).

The California state trial court appeared to reject the stipulation outright because “parties cannot control the sound exercise of jurisdiction by the trial court acting in equity.” The Court of Appeals clarified that the stipulation was binding to the extent that it would not be contrary to a rule of law or public policy.  The Court compared the injunction provision in this respect to a  liquidated damages stipulation and a consent decree:

It follows that, as a general matter, where the parties have stipulated to the nature or amount of a remedy, it is proper for the trial court to honor the parties’ agreement unless it finds that to do so would be contrary to a rule of law or public policy. The instant stipulation is no exception. In determining the lawfulness of a stipulation that contemplates an equitable remedy, the court should take into account the special nature of equitable remedies. (13 Witkin, Summary of Cal. Law, supra, Equity, § 2, p. 283.) Given their extraordinary nature, equitable remedies are usually unavailable where the remedy at law is adequate, as where damages are quantifiable. (Id. at § 3, pp. 284-285; Morrison v. Land (1915) 169 Cal. 580, 586.) That means that a court must reject a stipulation contemplating an equitable remedy that is contrary to law or public policy, such as where the evidence shows that an aggrieved party actually has an adequate remedy at law. Otherwise, the court should honor the parties’ agreement and enforce the stipulation. In the present case, the evidence was that the CSS license helped create the market for movies in the DVD format by reassuring the movie studios that movies released on DVDs could not be easily copied. Industry witnesses testified to their concern that an unaddressed breach of the license would undermine that reassurance and make the movie.

Fn 6. The majority of the appellate cases from other jurisdictions cited by the parties handle the issue in just this way. (See Dominion Video v. Echostar Satellite Corp. (10th Cir. 2004) 356 F.3d 1256, 1259, 1264 [rejecting preliminary injunction based upon contractual stipulation where district court had rejected all the plaintiff?s evidence of actual harm and found that damages could be quantified]; Smith, Bucklin & Associates, Inc. v. Sonntag (D.C. Cir. 1996) 83 F.3d 476, 478, 481 [contractual provision was “insufficient prop” to support irreparable harm finding where injury could be adequately compensated at law]; Ed Bertholet & Associates v. Stefanko (Ind.App. 1998) 690 N.E.2d 361, 363-364 [contractual provision not binding upon the court where there was no evidence of irreparable harm and affirmative evidence of adequate monetary remedy]; Ticor Title Ins. Co. v. Cohen (2nd Cir. 1999) 173 F.3d 63, 68-69 [permanent injunction upheld where irreparable harm shown by difficulty in calculating monetary damages and contractual provision stipulating that breach would cause irreparable injury].)

D.C. Court of Appeals adopts test from Cahill for enforcing a subpoena seeking identity of anonymous defendant

1
Shourin Sen - 17 August 2009 – 9:00 am
Filed under Discovery, First Amendment

Solers, Inc. v. Doe, 2009 WL 2460862 (D.C. 2009)

There was a fascinating decision out of the D.C. Court of Appeals this past week. The D.C. Court of Appeals is the equivalent of a state supreme court, not to be confused with the U.S. Court of Appeals for the D.C. Circuit.

The Software & Information Industry Association was a trade organization with an anti-piracy division. One of the enforcement programs offered a “piracy hotline” through which sources could anonymously report infringing activities via the internet or by a phone call. The SIAA received an anonymous internet tip that a software company was conducting infringing activities. The SIAA sent out a letter demanding that the software company, whose principal business was designing programs for the Department of Defense,  conduct an internal audit, deliver the results of the audit to the SIAA, or risk litigation for copyright infringement. The defense industry software company completed an audit, found no infringement, and reported the results to the SIAA, which closed its file.

The defense industry software company was angered by the allegation, and filed suit against John Doe (the SIAA was not a party in the proceedings) alleging defamation and tortious interference with prospective advantageous business opportunities. The defense industry company issued a subpoena to the SIAA seeking production of the documents relating to the tip, and the identity of Doe. The SIAA moved to quash, which was granted by the Superior Court.

The software company requested that the Superior Court dismiss its complaint with prejudice so that there would be a decision on the merits, allowing the company to appeal the order quashing the subpoena. The Superior Court obliged finding that the defense industry software company had failed to allege sufficient facts that it had suffered harm and had failed to exhaust alternative methods for obtaining Doe’s identity.

The standard for enforcing a subpoena which seeks to identify an anonymous defendant

This issue of when it’s consistent with the First Amendment to force a third party to reveal the identity of a defendant charged with defamation was an issue of first impression in the District of Columbia. The Court of Appeals looked to the standard articulated in Doe v. Cahill, 884 A.2d 451, 456 (Del.2005):

When presented with a motion to quash (or to enforce) a subpoena which seeks the identity of an anonymous defendant, the court should:

  • (1) ensure that  the plaintiff has adequately pleaded the elements of the defamation claim,
  • (2) require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served,
  • (3) delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash,
  • (4) require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control, and
  • (5) determine that the information sought is important to enable the plaintiff to proceed with his lawsuit.

We do not require a separate balancing test at the end of the analysis, nor do we require a showing that the plaintiff has exhausted alternative sources for learning the information.

There was a paragraph on the policy outlines of the case that was particularly interesting:

SIIA protests that enforcement of subpoenas like this one will have a chilling effect on reporting of software piracy: “Because few would-be Internet communicators seeking to report potential software piracy would risk the financial and other burdens of defending a lawsuit, that speech likely would disappear.” This forecast includes hyperbole, no doubt, but the test we have adopted takes this concern into account. As the previous discussion should make clear, we do not take lightly a person’s decision to speak anonymously. But that is not an absolute right, and SIIA’s website alerted John Doe that SIIA might be required to disclose his identity. We do not question the importance of combating software piracy, but that is only one of the interests we must balance.

The Court of Appeals vacated the judgment of the Superior Court so that the defense industry software company would have the opportunity to present evidence supporting its defamation claim under the revised standard.

RealNetworks preliminarily enjoined from distributing RealDVD software

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Shourin Sen - 13 August 2009 – 10:00 pm
Filed under DMCA, License v. Contract, Preliminary Injunction

RealNetworks, Inc. v. DVD Copy Control Association, Inc., 08-04548 MHP (N.D. Cal. 2009)

The story

RealNetworks distributed the software RealDVD which, among other things, would play a DVD and store a copy of it to a hard drive to be played at a later time. RealNetworks obtained a license to use CSS, the industry standard DRM encryption technology, at the not inconsequential price of $30k. When RealDVD saved a DVD to a users hard drive, it saved the content along with CSS and its own proprietary DRM. The protection measures were set to limit the playback of ripped DVDs to five hard drives. RealNetworks also required an end-user agreement that made users verify  that they would only rip copies of DVDs that they owned, not rented, and that they would limit their use of the saved copies to personal use.

Breach of the licensing agreement

The CSS licensing agreement required that “video content or keys initially encrypted using CSS not be carried on a user accessible bus.”  RealNetworks argued that it was not in breach of the provision because its own DRM limited access to CSS and content saved on a user hard drive. The Court disagreed, noting that Real’s own layer of protection was “inconsequential” for interpreting the licensing agreement. The Court also found that RealNetworks had breached its covenant of good faith and fair dealing.

DMCA Violation under 17 U.S.C. 1201(a)

Section 1201(a) provides that “[n]o person shall . . . offer to the public . . . any technology . . . that (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access” to a work protected under copyright. RealNetworks argued that since CSS has been cracked, it did not “effectively” control access for purposes of the Section. The Court rejected the argument, citing 321 Studios v. Metro Goldwyn Mayer Studios, Inc., 307 F. Supp.2d 1085, 1095 (N.D. Cal. 2004) (Illston, J.) for the proposition that that CSS technology still effectively controls access to DVD content for the “ordinary customer.”

Fair Use

RealNetworks argued that it could not be held liable for a DMCA violation because the user copying made possible by its technology was shielded from liability as a non-infringing fair use. In making this argument, RealNetworks relied on 17 U.S.C. 1201(c) which states, in part, that nothing in the DMCA should be read to “limit defenses to copyright infringement, including fair-use.” The Court rejected this argument finding that “[f]air use is not a defense to trafficking in products used to circumvent effective technological measures that prevent unauthorized access to, or unauthorized copying of, a copyrighted work under sections 1201(a) or (b).” The Court noted that fair use only “enters into the picture in the context of the act of circumvention itself.”

The standard for a preliminary injunction

The Court applied the Ninth Circuit’s pre-Ebay v. MercExchange, pre-Winter v. Nat’l Res. Def. Concil, pre-American Trucking Ass’ns Inc. v. City of Los. Angeles test for obtaining injunction relief, stating that a preliminary injunction is available to “a party who demonstrates either (1) a combination of probable success on the merits and the possibility of irreparable harm, or (2) that serious questions are raised and the balance of hardships tips in its favor.”  On page 40 of the 58 page decision, however, outside of the section in which the Court outlined the standard it applied for determining whether to grant a preliminary injunction, the Court stated the following:

The court is nonetheless mindful that it “must consider the public interest as a factor in balancing the hardships when the public interest may be affected.” Caribbean Marine Servs. Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988). Whether the public interest would best be served by continuing to enjoin Real from making its products available to consumers, and protect the Studios’ rights at the expense of the consumers’ rights, to engage in legal downstream use of the Studios’ copyrighted material is an excellent question. It is also one the court does not and will not reach, because the statutory structure of the DMCA leaves no room for ambiguity. By making it a DMCA violation to distribute products that enable consumers to override copyright owner preferences against unauthorized copying, Congress determined that the public interest is best served by outlawing such products. “Policy considerations cannot override our interpretation of the text and structure of [a statute], except to the extent that they may help to show that adherence to the text and structure would lead to a result so bizarre that Congress could not have intended it.” Central Bank, N.A. v. First Interstate Bank, N.A., 511 U.S. 164, 188 (1994).

This interesting passage would seem to place the Court’s decision almost directly in opposition with  eBay v. MercExchange and Winter v. Nat’l Res. Def. Council. The remedies provision of the DMCA, similarly to the remedies provision of the Patent Act and the Copyright Act’s infringement section, state that a court “may” grant temporary and permanent injunctions to prevent a transgression of the statute. See 17 U.S.C. 1203(b)(1); 17 U.S.C. 502(a); 35 U.S.C. 283. The Supreme Court in eBay v. MercExchange noted that courts can not automatically award injunctive relief under this operative language in the Copyright Act’s infringement section and the Patent Act.  (“Like the Patent Act, the Copyright Act provides that courts “may” grant injunctive relief “on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.” 17 U. S. C. §502(a). And as in our decision today, this Court has consistently rejected invitations to replace traditional equitable considerations with a rule that an injunction automatically follows a determination that a copyright has been infringed.”)

The Court in RealNetworks further presumed irreperable harm upon finding that DVD Copy Control was likely to succeed upon the merits of the case. This would seem to be at odds with the Supreme Court’s pronouncement in Winter v. Nat’l Res. Def. Council that a plaintiff is required to “demonstrate that irreparable injury is likely in the absence of an injunction.”

Moral Panics, Costco, Salinger v. Colting, and the elimination of the fee for expedited filing if litigation is pending

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Shourin Sen - 11 August 2009 – 9:00 am
Filed under Fair Use, First Sale, Importation, News, Registration

Moral Panics

As a number of other copyright blogs have noted, William Patry’s new book Moral Panics and the Copyright Wars has hit the shelves along with a new blog.  Mr. Patry’s role in shaping copyright is undeniable, from his work on the Visual Artists Rights Act and the Architectural Works Copyright Protection Act, to his treatise, Patry on Copyright, and his role as Chief Copyright Counsel at Google. My copy of Moral Panics shipped yesterday morning, and like many others, I am anxiously awaiting its arrival.

Costco v. Omega

A friend of the program was kind enough to pass along the most recent filings in Costco v. Omega, including Omega’s opposition brief and Costco’s reply. The cert petition was Distributed for the Conference on September 29, 2009, the Supreme Court’s long conference where it decides which cases to hear in the fall and early winter.

The full list of documents is here:

Salinger v. Colting

The New York Times Company, the Associated Press, the Gannett Company and the Tribune Company have filed an amicus brief arguing for reversal of the granting of a preliminary injunction in Salinger v. Colting.

Library of Congress

The Library of Congress has published a new rule, effective immediately through July 1, 2011, that eliminates the fee for an expedited filing when an applicant needs registration to file suit for copyright infringement. The previous fee was $760.   This appears to be one of a series of moves aimed at remedying or at least alleviating the problems caused by the backlog for obtaining copyright registration.  The most controversial of the measures may be the proposed amendment that would eliminate mandatory deposit for electronic works. (Are we allowed to call this the Facebook amendment?)

Recent copyright decisions research tool

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Shourin Sen - 10 August 2009 – 9:00 am
Filed under Meta

Hi Folks,

If you’ve visited Exclusive Rights recently outside of your feed reader, you may have noticed that the site has suffered a redesign by my not so able hands. One of the new features that may be of use is a widget on the right hand side of the site that allows you to search recent copyright decisions without having to run a search on the court dockets themselves.

If you’re like me, visiting the individual dockets and entering search limitations is a little bothersome.  The widget should — should being the operative word — automatically update the date field for the dockets that require you to limit searches, namely the UK/ECJ and Canada. I’ve included links to all of the major English language dockets except for India, which I’m still having trouble navigating, and the U.S., where you’re relegated to pay sites. I haven’t as of yet been able to get an automatic search to work with SSRN, so if any of you are able to code an end-around, please let me know.

If you have comments concerning errors, sources that should be added, or suggestions, don’t be a stranger. I’ve included the widget below so that you can take a test drive.

Yours in solidarity.

Africa

Australia

Canada

Hong Kong

Singapore

  • Singapore Law Watch [Recent decisions labeled by subject matter; you can use CRTL+F to skip to the copyright cases.]

UK

  • BAILII UK Database [Copyright decisions from the last month sorted by relevance; cases with over 7% relevance are usually copyright cases. Contains decisions from England and Whales, Ireland, Scotland, and the ECJ.]

News

Academia

U.S.S.C. docket

Josh Fruhlinger on prescription drug ads and sonnets

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Shourin Sen - 4 August 2009 – 9:00 am
Filed under News

Josh Fruhlinger runs the great blog Comics Curmugeon where he critiques the daily comics. Fruhlinger’s writing is insightful and funny and worthy of a place in everyone’s feed reader. Last Tuesday he wrote a column about how a change in FDA regulations launched a genre:

In 1997, when the FDA allowed prescription-drug manufacturers to actually tell people what their pills and potions did via television ads, did they foresee the consequences? Did they anticipate the flowering of an entirely new genre of short-form drama that would grace the airways every night throughout America, bringing tales of tragedy and heroism and wonderful pills into our living rooms?

Prescription-drug ads are like sonnets: the artistry is constrained by the rules of the form. In this case, the form demands that the stories play out quickly enough that viewers at home don’t change the channel, and that a bevy of terrifying side effects be explained in a manner both informative and reassuring. And, just as you may have found Cliff Notes helpful as you worked your way through Shakespeare’s poetry in high school, so too you might like to have the nuances of these drug ads explicated for you. On behalf of The Human Condition, Josh Fruhlinger is here to help. We begin with this ad for EpiDuo.

The entire story is worth a read. I like it because it provides a reminder that policy shapes art. The line between copyright’s incentives and our nation’s art may not be as overt as the connection between the FDA’s advertising regulations and a genre of commercials. But the Copyright Act provides incentives for certain creations while ignoring, or even discouraging, others. At the same time many advocate that law should better reflect art — that copyright should fairly compensate our artists for their creative practices — artists are manipulating their creative practices to reflect the law.