Ex©lusive Rights

The Department of Justice has filed a motion for interevention in SONY BMG Music Entertainment v. Tenenbaum, arguing that the Copyright Act’s statutory damages provisions are constitutional.  Here’s commentary from Ben Sheffner and Ray Beckerman.

Jane C. Ginsburg has posted a new paper on SSRN titled “Contracts, Orphan Works, and Copyright Norms: What Role for Berne and TRIPs?”

The abstract:

This Chapter addresses the extremes of private ordering, and the extent to which the principal multilateral copyright instruments, the Berne Convention and the TRIPs Accord, limit the range of State responses to the problems encountered at the far ends of the copyright-contract spectrum. At one end, we encounter private ordering at its most aggressive, in which private parties enter into agreements (or, more likely, the stronger party coerces the weaker parties, who may be mass market consumers) to protect subject matter or rights excluded from the ambit of copyright’s exclusivity. At the other end, the difficulties arise not from overweening sellers forcing their way with timid buyers, but from failure to find the seller at all. The buyers, would-be copyright exploiters, are unable to locate the right holders from whom to negotiate a license to use their works. In this case, no contract can be concluded, unless the State steps in for the absent right holder. In the first case, a contract has been concluded, but at a cost that the State could not exact were it to seek the same result through public ordering.

The analysis of Part I proceeds in three steps. First, a review of the relevant Berne-TRIPs provisions will identify and assess the “maxima.” Second, consideration will be given to whether the prescriptive force of the maxima extends to extra-copyright means of achieving copyright-prohibited objectives. Finally, an inquiry will be made into whether the mandatory exclusions and restrictions apply only to foreign Berne Union works or whether the treaties can also be read to compel their domestic application. Part II shifts from private ordering to State-imposed licenses and other interventions that limit the exercise of exclusive rights. Where Part I inquires whether current multilateral instruments limit private parties’ freedom effectively to expand the scope of copyright subject matter or rights, Part II examines whether those same instruments constrain State responses to systemic failures of private ordering by limiting the remedies available against the unauthorized exercise of otherwise exclusive rights. The example of failed private ordering that will be considered concerns the problem of “orphan works,” where the inability to find right holders means that would-be exploiters cannot enter into private agreements with them.

This exploration of the extremes of the copyright-contract spectrum finds little prescriptive force in the Berne-TRIPs “maxima” with respect to private agreements to protect subject matter the treaties exclude from copyright’s ambit. By contrast, Berne-TRIPs “minima” can meaningfully constrain a State’s prerogative to impose compulsory licenses or limit remedies when private agreements cannot be concluded, for example because a willing buyer cannot find the seller (willing or otherwise). The minima should not, however, be regarded as an impediment to resolving the “orphan works” problem. Rather, attention to the minima should enable States to shape an orphan works regime which both permits the exploitation of unlocatable right holders’ works, and fairly compensates those right holders who, notwithstanding a rigorously diligent but unsuccessful search, subsequently turn up and object to the uses made of their works.

Robert Brauneis has a new legal history/copyright paper up on SSRN, “The Transformation of Originality in the Progressive-Era Debate Over Copyright in News”:

Snipits form the abstract:

In the 1991 case of Feist Publications, Inc. v. Rural Telephone Service Co., Inc., the Supreme Court held unanimously that only those aspects of works which exhibited a “modicum of creativity” could be protected by copyright, and hence that factual matter was not copyrightable. Feist confirmed and expanded on the Court’s statements in the 1918 case of International News Service v. Associated Press that news was not copyrightable apart from its literary form. Yet for the first three-quarters of the nineteenth century, the notion that copyright incorporated an originality requirement which excluded factual matter from protection was unknown to Anglo-American law. Courts routinely found infringement of fact-based works, such as maps, charts, road-books, directories, and calendars, on the basis of the copying of their factual content, and concluded that the industry of plaintiffs in gathering and presenting facts should be protected under copyright law. What caused the transformation in the doctrine of originality between the Civil War and World War I?

This article argues that the rise of creativity-based originality in copyright law has strong ties to a previously little-examined episode in copyright history: the debate over legal protection for news in the last decades of the nineteenth century.

The directors of the law libraries at ten U.S. law schools have released an open letter titled the “Durham Statement on Open Access to Legal Scholarship.”  The letter calls for all law schools to make the “legal scholarship they publish available in stable, open, digital formats in place of print.”  (H/t John Palfrey.)

Tech Daily Dose has a great run down on upcoming policy events for this week.  Two particular events of note:

Senate Judiciary Chairman Patrick Leahy and House Judiciary Chairman John Conyers will join House Foreign Affairs Chairman Howard Berman, House Oversight and Government Reform ranking member Darrell Issa and Rep. Marsha Blackburn, R-Tenn., for a Tuesday briefing on legislation they introduced to end a longstanding copyright royalty exemption granted to AM and FM radio stations. The rally organized by the MusicFirst Coalition will feature appearances by artists and musicians from across genres and decades.

* * * *

The Property Rights Alliance will unveil its 2009 International Property Rights Index at the National Press Club on Tuesday. The event will be followed with a discussion by a panel of experts on what the rankings means for property rights in the 111th Congress and around the globe. The alliance’s annual study measures the significance of physical and intellectual property rights and their protection for economic well-being. The index includes data for 115 countries, representing 96 percent of world GDP.

David Hoffman comments on the New York Times article about making PACER free:

In my view, the real effect of costly public dockets is that sophisticated & wealthy parties are given a huge advantage in litigation: they can afford to purchase information about judges’ actual practices in resolving cases. Such trends are not readily discernible in unrepresentative opinions. By contrast, if PACER were free and easily searchable, everyone could see how cases are actually resolved, instead of the privileged few. The result: PACER permits lawyers to extract more rents.

Carolyn E. Wright discusses why Facebook’s old (now readopted) Terms of Use may be potentially worrisome for photographers.

Afro-IP discusses the IIPA’s inclusion of Egypt and Nigeria on their list of countries that they suggest the United States Trade Representative should place on their Special 301 Report.

Ray Beckerman issues a “call to action” for people to urge President Obama not to intervene on behalf of the RIAA in Sony BMG Music Entertainment v. Cloud.

Ben Sheffner reports that the C.D. Cal. has declined to dismiss a suit filed by Jackson Browne over the Ohio Republican Party’s use of the song “Running on Empty” in a web video.

And finally, Kotaku reports on Pecover vs. Electronic Arts, a case alleging that Electronic Arts has engaged in anti-competitive behavior in violation of the Sherman Act,  in conjunction with securing an exclusive deal with the NFL-NFLPA.   Says Kotaku, the “deal []basically makes it impossible for 2KGames to keep making games like NFL2K.”  Court transcripts feature Judge Vaughn Walker of the Northern District of California discussing the possibility of playing the games at trial:

THE COURT: I know absolutely nothing about video games, but how in the world would the quality of a video game be affected in this fashion?

MR. PAYNTER: Well, in the same way that, any time, Your Honor, a market becomes uncompetitive, there’s not the same incentive by the entity that’s monopolized the market to continue to invest in that product. And you know, I’m not a video game player, either, Your Honor… But my understanding is, you know, there are websites out there that review these games. And you know, we have alleged that, at the time, that the Take-Two game was widely viewed as a higher-quality game, presumably, Your Honor, in terms of the graphics.

THE COURT: Maybe that would be fun, a fun issue for us to decide or allow a jury to decide that. We could have a lot of fun in this case….

* * * * *

THE COURT: So that means we wouldn’t have a jury trial. We would have a bench trial. It would be a lot easier to play the games.

MR. WALL: It would be, yeah. We would only need one machine. It would be much better. But we would have a bench trial where what? Your Honor is going to assess the relative quality of games before and after exclusivity contracts? That should be interesting.

THE COURT: I’m up for any challenge.

Today’s roundup has an international bend.

The Financial Times reports that the legal affairs committee in the European parliament voted in favour (yeah, British English) of lengthening the copyright term for music recordings from 50 years to 95 years.  The extension still must be approved by member states and the full parliament.

CNET Reports Google Australia came to the aide of Australia’s Commonwealth Fire Authority this past week.  The CFA’s website was struggling to meet demand for its list of bushfire updates, so Google overlaid their data onto Google Maps.  Google was able to put up a system that produced real-time maps of the fire locations and intensities in the span of four hours.  However, the Victorian Department of Sustainability and Environment, which manages public lands, denied Google access to their data.  Executives at Google Australia blamed Crown copyright:  In Australia, as opposed to the U.S., the federal government isn’t denied exclusive rights in governmental works.

Said Alan Noble of Google Australia:

It’s ironic that I can download detailed NASA satellite imagery (of Australia) more readily than I can get satellite imagery from the Australian government.

I don’t understand enough about Australian law to know if copyright is actually at play here.  I’d love it if a foreign correspondent would be kind enough to post their take in the comments.  In the U.S., under Feist, raw data isn’t granted exclusive rights because it lacks sufficient originality.  Regardless, it appears to be a questionable administrative choice — fire is bad.

Tech Daily Dose details that Rep. Gene Greene (D-TX) has a resolution, with 110 cosponsers,  in opposition to granting a performance right in sound recordings for terrestrial radio .

CNET reports interesting dais comments at the Future of Music Coalition’s Policy Day in Washington, D.C.:

“This may be the very best opportunity this country will have for decades to do something about the issues you really care about,” Michael Copps, acting chairman of the Federal Communications Commission, said in his keynote address at Wednesday’s event. “We can have a media of which we can all be proud.”

Still, David Carson, general counsel for the U.S. Copyright Office, said he didn’t expect Congress to get past performance rights issues and perhaps orphan rights.

“Congress rarely steps in and fixes anything” related to intellectual property, Carson said. “The Pro-IP Act was tinkering around the edges–there was nothing really in there. Legislation just doesn’t seem to be the way to make progress, no matter what your definition of progress is.”

Ben Sheffner points to a recent 9th Circuit decision that held that a defendant in a copyright action, which had been voluntarily dismissed without prejudice by the plaintiffs,  was not a “prevailing party” for purposes of statutory damages and attorneys’ fees.

EFF relaunches their Legal Guide for Bloggers.

Tamera H. Bennett details that the estate of Bob Marley has entered into a merchandising agreement with Hilco Consumer Capital, a private equity group, for the rights to license Marley’s name & likeness, and a series of branded products.

The National Federation of the Blind responded to the Authors Guild’s advisement to its members to consider negotiating contracts prohibiting ebooks to be read aloud by the Amazon Kindle 2.  At this point, I think the Authors Guild are either publicity geniuses, publicity idiots, or both at the same time.

New Zealand has agreed to negotiate with Ngati Toa iwi in the latest Waitangi deed of settlement for a protection measure for the haka Ka Mate.

This might be my favorite haka clip:

Steve Dickinson at the China Law Blog has a fascinating take on the recent China-U.S. WTO decision, and why there is a divergence in China between the enforcement of copyright and other IPRs:

In my view, th[e] attempt [by American content companies] to open the market for media products will fail. The Chinese government does not see media and ideas and the rest as a “market”. They see it differently. They see it as an impediment to government control.

* * * * *

The fact that [piracy of media] is not a pure intellectual property issue can be seen by the alternative fate of patents, trademarks and trade secrets. Of course, piracy in these areas is rampant in China. However, both administrative and court based protections are also very effective in China. As I often say, the courts are good at these cases because they have so much practice. Protection of IP in this area is successful because the Chinese government views it as entirely a commercial matter. The attitude is not the same for media, with predictable results.

One area where there is real tension is copyright protection of software. Even where software is purely commercial (i.e. outside of the video game world), its protection falls entirely within the realm of copyright. It is in this area where the Chinese refusal to protect copyright is actually commercially quite damaging. China is responding not by increasing enforcement of copyright, but rather by attempting to create a special regime just for software protection.

Ars Technica details the end of the Ruckus music service.

The ALI-ABA will be offering a telephone and webcasted seminar on ADR in IP litigation tomorrow at 1:00 pm EST.
(h/t IP ADR IP Blog.)

Ray Dowd raises a potential defenses available to Fairey in his suit with the AP:

[T]he poster is core political speech made during the course of a political campaign protected by the First Amendment. There is a lot of good case law about political speech, and the fact that the image was used and sold to promote a political viewpoint during a political campaign gives it a great level of deference.

Amlaw Daily notes that Fairey v. AP will be a rematch between former  Bingham McCutchen partner Anthony Falzone, who’s now executive director of Stanford Law School’s Fair Use Project, and AP lawyer Dale Cendali of O’Melveny & Myers.  The two squared off in last spring’s Harry Potter Lexicon controversy.  (h/t Ben Sheffner).

Berkman’s Citizen Media Law Project is searching for a new Staff Attorney/Fellow.

Tech Daily Dose reports that Tom Perrelli was grilled on IP issues and porn.

Entertainment industry attorney Tom Perrelli, who is President Barack Obama’s pick for associate attorney general, told the Senate Judiciary Committee during his confirmation hearing Tuesday that existing U.S. intellectual property laws “don’t seem to be addressing the problem” of global counterfeiting and piracy and said he hopes the department will bring a renewed focus to the issue. Perrelli was most recently managing partner of Jenner & Block’s Washington, D.C., office and co-chaired the firm’s entertainment and new media practice. In that capacity, he represented record labels and movie studios in a variety of copyright court battles.

David Oxenford reports on the legal land mines associated with multicasting.

Alex Curtis at Public Knowledge releases an “action alert” on a copyright filtering amendment, put forth by Sen. Feinstein, that would allow ISPs to “deter” child pornography and copyright infringement through network management techniques.  According to Mr. Curtis, the amendment failed but there are still “concern[s]” that it will be incorporated into the bill during conference.