July 2006 Archives

Grosso v. Miramax applied

NY Times: Lawyer Is Upping the Ante in Claims of Idea Theft in Hollywood: "The latest in a long line of gadflies who contend that it’s their job to keep the studios honest, Mr. Marder has spent the last two years capitalizing on having won a federal appeals court decision that makes it easier for writers who pitch an idea or circulate a script to make a claim of theft stick."

This Times article discusses the effect of the 9th Circuit's ruling in Grosso v. Miramax (2004).

The Patry Copyright Blog: Grosso Mondo: Bad Ideas Never Die: "Bad Ideas never die; no I'm not talking about the proposal to extend protection to fashion designs, but to protecting ideas themselves."

Sports racers and copyright

In today's The Show, Ze Frank discusses consumer-created media and copyright: "When someone paints a smiley face on their nuts and takes footage of them bouncing around, they're usually not thinking about copyright. But in the last few months, consumer created video has become all the rage - and those dancing nuts might actually have value."

Reality TV and the Law

The only summer reality tv show to capture my interest has been Rock Star: Supernova, which could be considered Mark Burnett's take on American Idol. Fortunately, Burnett's version of the talent competition format is much better than Idol's. First, the judges (Tommy Lee, Jason Newsted and Gilby Clarke who are forming the band "Supernova") have a personal interest in seeing who wins the competition, because the winner will be fronting their band. Secondly, the contestants are encouraged to rearrange and reinterpret their songs with the aid of the House Band. Unfortunately, none of the members of Supernova nor associate judge Dave Navarro are able to criticize the contestants as well as Idol's Simon Cowell. But I digress.

Supernova is also the name of a California band that formed in 1989 and released its major label (Atlantic) debut album, Ages 3 and Up, in 1995. Among the uses made in commerce of the Supernova brand, the band's song Chewbacca was used by Kevin Smith on the Clerks soundtrack and by the 1997 MTV Movie Awards, where MTV and Carrie Fischer awarded Chewbacca (Peter Mayhew) the award our favorite Wookie never received at the end of Star Wars.

Supernova: Chewbacca (iTunes link).

Supernova (founded in 1989) filed a lawsuit in the federal district court for the Southern District of California against Mark Burnett Productions, CBS Broadcasting, Rockstar Entertainment Inc., JMPB Inc., as well as Tommy Lee, Jason Newsted and Gilby Clarke. Here's the complaint: Supernova From Cynot3, LLC v. Mark Burnett Productions, Inc.

The plaintiffs claim:
1. Willful Trademark Infringement
2. False Designation of Origin (§43(a) of the Lanham Act)
3. Intentional Interference with Prospective Economic Advantage

The plaintiffs seek:
1. Declaratory Judgment that Defendants are Not Entitled to Registration of the Marks SUPERNOVA and ROCK STAR: SUPERNOVA
2. Injunctive relief
3. Damages (including treble damages for willful infringement, punitive damages and attorney fees)

MTV reports: Supernova Sue 'Rock Star: Supernova' Producers, Bandmembers: "The lawsuit, filed in federal court in San Diego, names Mark Burnett Productions, Rockstar Entertainment Inc. and CBS Broadcasting as defendants, along with Tommy Lee, Jason Newsted and Gilby Clarke — the three future members of the group this season's 'Rock Star' is supposed to spawn and endow with a lead singer. After someone's chosen to front the band, the foursome will eventually record and release fresh material before touring the nation, all under the Supernova moniker."

In other reality TV legal news, 43(B)log reports on a California contract case of Reality TV jurisprudence: "The network and producers tried to compel arbitration pursuant to a release agreement executed by the siblings (some of whom were minors) prior to the broadcast. The court found the arbitration clause unconscionable and thus unenforceable."

Keywords in Commerce?

Eric Goldman, Technology & Law Marketing Blog: Search Engine Liability for Selling Keywords Redux--800-JR Cigar v. GoTo.com: "this case reinforces the completely unsettled nature of keyword purchases and trademark law. Combined with the other two search keyword cases this year that reached directly opposite results to each other (Edina Realty and Merck v. Mediplan), there really is no way of predicting how the next case is going to come out. In some ways, the law applicable to search engines selling keywords has not advanced in any meaningful way from 2000 when this case was first filed."

Neutral Policy

CDT: Focused Internet Neutrality Legislation Warranted To Protect Open Internet: "In the absence of legislated safeguards, there is a real risk that today's network operators could choose not to retain the core elements of Internet neutrality. This risk, and the potential consequences, are simply too great to take no action. Once new, non-neutral networks and business arrangements have been put in place, overturning them is likely to be extremely difficult. Legislation is warranted to ensure that neutrality will continue to be factored into network architecture and business plans from the start."

Full CDT report: Preserving the Essential Internet

Daniel Weitzner, MIT: The Neutral Internet: "The debate thus far, however, has proceeded on the mistaken assumption that this is an either/or choice; that we have to choose between a non-discriminatory, slow, insecure network or a potentially discriminatory, high-speed, cleaner Internet tied together with other broadband services. This paper argues that it is possible to preserve the neutral, non-discriminatory essence of the Internet, without sacrificing future growth of new Internet services and other broadband infrastructure."

NewsForge: Today's cell phone system argues for retaining network neutrality: "It turns out that we have a privately owned and controlled network all around us, one that closely mirrors the technical functionality of the Internet, but where there has never been a requirement for net neutrality: the US cellular phone network."

Sen. Ron Wyden (D-OR) pledges to hold any telecom bill that does not protect a neutral internet: Wyden Blocks Telecom Legislation Over Ineffective Net Neutrality Provision: "The bill makes a number of major changes in the country`s telecommunications law but there is one provision that is nothing more than a license to discriminate. Without a clear policy preserving the neutrality of the Internet and without tough sanctions against those who would discriminate, the Internet will be forever changed for the worse. This one provision threatens to divide the Internet into technology `haves" and `have nots." This one provision concentrates even more power in the hands of the special interests that own the pipelines to the Internet."

And finally, a modest proposal for broadband policy from Andy Kessler in The Weekly Standard: Give Me Bandwidth… No one to root for in the net neutrality debate: "Telcos and cable companies have no choice but to lobby for legislation that bars neutrality. Because without the ability to extract money from the webbies for the use of their not-so-fast Alexander Graham Bell-era wires (forget that you and I already overpay for this), AT&T or Verizon might not have any business model going forward. With no real competition, they'd rather keep U.S. telecommunications in the Flintstone era and overcharge for calls to Grandma than upgrade their networks. Since 1998, telecommunications companies have outspent computer and Internet firms on politicians $231 million to $71 million, just to keep the status quo."

TiVo Genericide?

Matt Haughey, PVRBlog: Quit saying "tivo" when it isn't a TiVo: "I know I'm being a bit of a stickler here, but last week on Pimp My Ride, they opened the show by saying they'd stick hi-def TiVo into a guy's van. I watched closely knowing that's no easy task and unsurprisingly, even though you hear the word 'TiVo' in the episode about half a dozen times, it most definitely wasn't TiVo."

Haughey concludes, "I know on the one hand it's a testament to how great a product/service is when people use it as a generic term but in the case of TiVo it seems to be leading to a lot of customer confusion."

Copyright Fraud and Misuse

Two law review articles of interest:

Jason Mazzone, Copyfraud: "Copyfraud is everywhere. False copyright notices appear on modern reprints of Shakespeare's plays, Beethoven's piano scores, greeting card versions of Monet's Water Lilies, and even the U.S. Constitution. Archives claim blanket copyright in everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the owner's permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use."

Brett Frischmann , Daniel Moylan, The Evolving Doctrine of Copyright Misuse: "Copyright misuse is a common law defense to copyright infringement. In contrast with defenses addressing the nature of copyrighted material or the defendant's conduct, copyright misuse focuses on the plaintiff's conduct and determines whether the plaintiff is entitled to enforce her rights. This alternative focus orients misuse differently. Copyright misuse regulates copyright owners' use of their rights, polices the boundaries set by Congress in the copyright statute, and protects important public interests. "

MySpace Follow-up

New York Times: Senatorís Slip of the Tongue Keeps on Truckiní Over the Web: "The senatorís powerful position also raised suspicions that one of the songs making fun of him had been censored. On www.iptablog.org, Andrew Raff described how his 'marginally funny' song was taken down from MySpace.com, where he had set up the Ted Stevens Internet Fan Club."

On Saturday, I read about Sen. Stevens "The internet is a series of tubes" statement, picked up my guitar and recorded a song based on the speech. I signed the "Ted Stevens Internet Fan Club" up on MySpace and posted the track there to stream and then sent an email to BoingBoing, where Cory posted a link. Over the next two days, more than 2,500 people followed that link. (I posted anonymously because, frankly, the track doesn't sound good. Marginally funny, but only marginally.)

Tuesday morning, I received an email telling me that MySpace cancelled the Ted Stevens Internet Fan Club, because it received a complaint:


MySpace has deleted your profile because we received a credible complaint of your violation of the MySpace Terms of Services.

Prohibited activity includes, but is not limited to:
-Any automated use of the system, such as using scripts and/or bots to add friends, send messages, etc.
-For band and filmmaker profiles, MySpace prohibits sexually suggestive imagery or any other unfair, misleading or deceptive content intended to draw traffic to the profile.
-MySpace also investigates credible complaints of copyright/trademark infringement and will delete any materials that infringe upon the intellectual property rights of third parties.

For a more thorough list of prohibited content/activity, please refer to the MySpace Terms of Service located at the bottom of MySpace.com.

If we delete your account, it cannot be reinstated.

Thank you,

Now, I'm not sure which of those activities the TSIFC page engaged in but the terms of use agreement allows MySpace to summarily delete an account without cause.

MySpace.com reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages) by you, or to restrict, suspend, or terminate your access to all or any part of the MySpace Services at any time, for any or no reason, with or without prior notice, and without liability.

Even though federal government works can not be protected by copyright (§105), another part of the Copyright Act-- the §512 safe harbor-- gives an internet host a compelling justification to take down any potentially infringing material.

Fortunately, there are plenty of other options to host and/or stream media. Today, MySpace is simply one of a plethora of free choices and we use it knowing its limitations and agreeing to its terms.

But in the brave new world of a discriminatory internet, it could be possible for internet providers to make it difficult or expensive for individuals to publish media. Allowing network owners to discriminate against certain speakers or distributors of speech could make it more difficult for individual creators to disseminate expressions of ideas. No, the internet is not a truck, but the goal of the anti-neutrality proponents is to turn the internet into something like the cable TV system.

Thanks to Boing Boing, David Isenberg, Public Knowledge, and 27B Stroke 6, among others for linking.

For the latest actually useful discussion of network neutrality and discrimination policy, here are two recent pieces. From Ed Felten, Nuts and Bolts of Network Neutrality: "The Internet consists of a set of end-user computers connected by infrastructure that carries data between those computers. This infrastructure is basically a set of routers (think: metal boxes with electronics inside) connected by links (think: long wires). Packets of data get passed from one router to another, via links. A packet is forwarded from router to router, until it arrives at its destination."

In the National Journal, Drew Clark writes: The Tangled Net Of 'Net Neutrality': "Net neutrality is about the rules of the road for the information superhighway -- and whether, some day, traveling in the fast lane will require paying a toll."

A little further down the slope, the question is whether the internet will continue to be a medium fostering speech and creativity by individuals or will Congress allow large corporations to turn it into a one-way distribution network for the benefit of those few companies.

Update (6:06 pm)
Of all the days to be offline more than usual…

Public Knowledge picked up this story: Ted Stevens Parody Song Pulled From Fox-Owned Web Site "The mystery of what happened to the 'Ted Stevens Internet Fan Club' song that had been posted to MySpace.com, but disappeared after three days, has been solved."

That led to Wired News coverage: MySpace Kills Internet Tube Song.

And finally, via Washington Post media reporter Frank Ahrens, MySpace spokesman Jeff Berman says that the song was "incorrectly deleted" and that the song is back up, which it, in fact, is. (Apologies to the English language for that last sentence.)

What's the lesson here? Well, if you want customer service, have a reporter from a major national media outlet contact the company. There may be some anecdotal lesson about copyright and contract law in here somewhere, too…


With the volume of infringing material posted to YouTube, why hasn't it attracted a lawsuit? At the Hollywood Reporter, Esq., Fred Von Lohmann discusses YouTube's potential liability under copyright law:

Fortunately, YouTube has an important legal shield that was not available to the old Napster: the so-called "online service provider safe harbors" created by Congress as part of the DMCA. One provision, Section 512(c), was designed to protect commercial Web-hosting services, which feared they might be held responsible for the posting habits of their customers.

YouTube reminds me a lot of the original Napster in its heyday. Not so much because of the massive copyright infringement, but how it has made it easy for collectors and archivists to share media that is not widely distributed. With Napster P2P, there existed what seemed to be a critical mass of copies of rare live recordings and out of print or otherwise unavailable recordings that were interesting cultural artifacts.

Although with Napster, the rare and out of print material was traded next to the day's Top 40 material. Von Lohmann thinks that YouTube's limitations act as a filter that keep it as part of "clip culture," rather than the home of rampant piracy.

If not for YouTube, would it be this easy to watch the evolution of Mahna Mahna from Sesame Street:

to The Muppet Show:

to The Office (UK):

Is there a business for media that exists on the fringes of copyright? Do copyright owners care as much about these clips as the amateur uploaders? Should the copyright owners care?

Clean Flicks

Creating and distributing edited versions of films to "sanitize" the films to make them more "family-friendly" constitutes copyright infringement as a matter of law under the §106(1) right of reproduction and 106(3) right of distribution. The court finds that these works are not transformative and thus can not be considered unauthorized derivative works, but are only mere reproductions. By casting these butchered copies as mere copies and not derivative works, the court never directly addresses the moral rights question.

Courtesy of Joe Gratz: Clean Flicks of Colorado v. Soderbergh (02-cv-01662-RPM, D. Colo. 7/6/06)

Compare Gilliam v. Am. Broadcasting Co., 538 F.2d 14 (2d Cir. 1975) (Where the Lanham Act protects moral rights of creators.)

William Patry: As Dirty as We Wanna Be

There really isn't a paradox, because altering something doesn't make it automatically transformative or fair use: if I crop off the edges of a fabric design to make it fit better for my textile machines, I have altered the original, but hardly "transformed it." The family friendly folks had a stronger case than that, but it can't be said that they provided any new insights or perspectives on the works and that is what Judge Leval meant by transformative. Still, the case highlights once again, the square peg in the round hole problem that is rapidly overtaking fair use analysis.

William McGeveran, Info/Law: Bowdlerization as Fair Use: "There is little doubt that the companies infringed on copyright – they copied the movies, distributed them, and at least arguably created derivative works from them. The real heart of the case (other than some side arguments that get dealt with quickly) is the fair use defense they raised. Unfortunately, the decision’s reasoning about the factors considered under the fair use doctrine is somewhat weak."

William McGeveran, Info/Law: Fair Use: Rickety?: "We may be heading for a crisis point where fair use cannot respond to all these different applications, from file-swapping to parody to reverse engineering and so forth. The problem is that I am not sure what the alternative could be. Congress is ill-suited to devise specific statutory exemptions for these sorts of unpredictable issues."

John Ottaviani, Technology & Marketing Law Blog: Court Nix Clean Flicks: "The entertainment world has given us yet another example as to why one should be very wary of creating or investing in a business model built on the foundation that its activities are legitimate under the 'fair use' exception to the U.S. copyright laws."

Randy Picker, The University of Chicago Law School Faculty Blog: CleanFlicks and Digital Rights Management: "Last Thursday, a federal district court judge ruled that CleanFlicks violated U.S. copyright law when it edited movies for sex, violence and language. CleanFlicks sought to claim protection under ‘fair use’ but the court rejected that claim. The case is interesting in the way that it ties into the issue of digital rights management (posts here and here) and the question of how we will allocate control between content creators and content users."

Marci Hamilton, Findlaw: A Court Rules That Privately Editing Films for Content Violates Studios' Copyright The Decision in Clean Flicks v. Steven Soderbergh and Its Cultural Context: "This case was about as straightforward a copyright case as there can be, and the court's determination is plainly correct - as I will explain. The case is far more interesting, actually, as a study in the interaction between religious (or moral) entities and the rule of law."

For the purposes of fair use, it should make sense to think of a transformative use as a non-substitutionary use. Where the use simply substitutes for the original work, there is no transformative use. If the edits were done as commentary on the amount f violence in movies-- and not to meet some demand for people who want to watch popular movies but without objectionable parts-- there is a stronger transformative use argument.

Copyright Act, in verse

Yehuda Berlinger: The U.S. Copyright code, in verse

Copyright is for writings,
Music, dance, drama,
Movies, buildings everywhere
Even Alabama

Not particularly precise, but especially clever.

One Year After Grokster

Last week marked the one year anniversary of the Supreme Court's ruling in MGM v. Grokster. Eric Goldman looks at the aftermath: Happy (?) Anniversary, Grokster v. MGM: "So, in the past year since Grokster, what has changed? Arguably, nothing. People still get digital content through a combination of paid offerings and free file sharing, which continues to be a major online activity. Content owners are still suing file sharers and demanding new laws from Congress. Entrepreneurs are still looking for ways to mediate relationships between content owners and consumers."

The Seattle Times looks back on the past year and reports Illegal file sharing showing no letup: "But the ruling hasn't stopped the lawsuits and acrimony between the two sides. The Recording Industry Association of America (RIAA) continues to sue tech companies. And in the past year, it filed some 6,000 suits against individuals it says are stealing material."