Fair Use Fridays: DJ Earworm State of 2011 Mashup - Fair Use Doctrine

'nuff said. Wishing everyone a happy new year.


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Copyright is Not in the Machine: Book Review - William Patry’s How To Fix Copyright

How to Fix Copyright by William Patry
Oxford University Press 2011
262 pp.  $21.95 

Is copyright too long?  Too thick?  Too wide?  Bill Patry thinks so, and that should matter to you if you care about our economy, our democracy, and our future.  He also thinks that digital locks are not the answer to promoting creativity or to making copyright profitable to authors.   For those concerned with anticompetitive governmental regulation, this book is an eye-opener.  Patry argues that the author who supports strong copyright in the hopes of getting paid is shooting herself in the foot.  According to Patry, current copyright laws are not getting artists and authors paid and indeed, because they are too strong, are having a harmful effect on authors, artists and creativity itself, shifting monopolistic power to a few strong corporations.

                Like Columbia law professor-turned regulator Tim Wu, Patry fears what Wu calls (in his book of the same name reviewed here) the Master Switch, that is, a lockdown of cultural exchange on the internet that will transform  consumers into passive purchasers of pre-made culture funneling massive profits to a few media monoliths at society’s expense.   Like Prof. Lawrence Lessig (Copyright Law Does Not Make Sense here),  Patry is concerned and makes a case that copyright terms that are too strong and that interpretations of fair use that are too restrictive have had a chilling effect on the very creativity and innovations that have created practically the only new jobs in the 21^st Century economy.   And like his last book, Moral Panics and the Copyright Wars reviewed here, How to Fix Copyright spends a good deal of time criticizing those who resist technological change and disruptive technologies.

                But How To Fix Copyright distinguishes itself from its predecessors by offering a blueprint for change.   Patry falls short of offering an actual legislative proposal (perhaps his proposal will be his next book), which is probably a wise thing.  He’s smart enough politically to know that if he spells out certain details, his proposals would be taken out of context by his ideological enemies.  So HowTo Fix Copyright focuses first on making the case that copyright is broken and that not only society at large is bearing the cost, but that the creative community, copyright’s intended beneficiaries, are suffering the most.  Patry’s focus on the economics makes a powerful case that should catch the ear of big business, since the cost of using copyrights is a tax-like burden on large and small businesses alike.  Patry makes a compelling case that where too much monopoly power is granted, the rest of the economy and society suffers.    Patry’s argument should appeal to the Occupy Wall Street movement (Wall Street is not far from Midtown) as much as it should to the tax-averse members of the U.S. Chamber of Commerce.

Patry calls for an open legislative process in which the economics of copyright can be studied.  Artists and authors are not making a living, and Patry’s view is that giving more legislative gifts to middlemen who have refused to compete and adapt to the reality of business competition will have a toxic and destructive effect on the economy and our culture.   Patry wants Congress to open hearings at and dig out the truth in a serious overhaul of copyright law.   The last real overhaul of the U.S. copyright law was in 1976 and that was based on proposals from the 1950’s.   Patry makes the argument that not only are our laws based on nineteenth century industries, but that we’ve lost a lot of the legislative and economic wisdom built into earlier laws.   Rather than dictating quick fixes, How to Fix Copyright emphasizes the importance of transparent legislative  process in getting “buy-in” to the process of repairing copyright.  During that process, Patry suggests that a “one size fits all” approach to such questions as copyright terms cannot be sustained and that Congress engage in a consultative legislative process to determine what length of copyright works best, and for which works.

HowTo Fix Copyright doesn’t duck tough questions.   Patry recommends that authors of copyrights are going to have to trade the concept of “control” for the concept of “getting paid”.   Patry takes collecting societies to task on this issue, particularly in Europe.  Throughout the book, Patry moves effortlessly from U.S. to European examples giving the book a valuable depth and understanding of the international copyright marketplace.   One of Patry’s conclusions is that the Berne Convention must be reworked to permit formalities, that is the requirement of registration for copyrighted works as a condition of protection.  With U.S. adoption of Berne in 1989, a lot of materials that no one intended to be covered by copyright have fallen under the copyright laws.

Copyright law is no longer an arcane field affecting few of us, in the last decade it has become more deeply embedded in our lives than many other areas of law.  Given the centrality of copyright law to our future, if you are going to read one business book this year, this should be it.  It is published by Oxford University Press right as Congress is trying to railroad through the Protect-IP Act and the Stop Online Piracy Act, both of which are frightening attempts to lock down American culture and to convert the internet to a Chinese-style authoritarian system where DNS masking will be used to censor websites and ISPs will be transformed into spying operations designed to extract more money from consumers at the behest of a few conglomerates.  How to Fix Copyright does not address these specific legislative proposals, but it will help you understand what the debate is and why it is so important.  Unfortunately, Silicon Valley does not know how to make its case in Congress.  Instead of sensible reforms that will protect copyright owners while ensuring enough breathing space for technological innovation, Congress keeps backing legislation destructive to most of the economy that will benefit only a few monopolists.

There will probably be something in How To Fix Copyright that offends just about everyone (Patry’s take on newspapers, for example, is pretty brutal and a little unfair).  But Patry’s pedigree warrants a hearing.  He’s worked in the Copyright Office and been on the front lines of copyright legislation.  More on Patry at Wikipedia here.  He’s argued copyright cases in federal court.  He’s taught copyright law and written treatises on copyright law.  His Patry Copyright Blog was an erudite, combative, passionate joy to read.  And although How To Fix Copyright takes great care to distance itself from Google, Patry is Senior Counsel to Google, an entity with a large stake in perhaps the most disruptive technology ever to confront copyright.  If Google is listening to this guy, you should at least know what he is telling them.

Free excerpts of How to Fix Copyright courtesy Bloomberg here.

Boing Boing's Cory Doctorow calls How to Fix Copyright "incandescent" here.


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Fair Use Fridays: Hitler Reacts to Stop Online Piracy Act #sopa

Genius take on the dangerous and radical Stop Online Piracy Act that is now being rammed through Congress by conglomerates using fabricated numbers to grab control over the internet.

The mashup you see above is an example of "fair use" defined in 17 U.S.C. 107 - it is an exception to copyright infringement under the Copyright Act.

More on the fair use doctrine here.
For more on the history of Hitler/Downfall videos, check out Know Your Meme here.


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Video Attacks Pending Copyright Legislation - Stop Online Piracy Act #SOPA

Great video from Mike Masnick at Techdirt going after the U.S. Chamber of Commerce's spokesman's support for the Stop Online Piracy Act (SOPA).

SOPA seeks to give the type of control over the internet that exists in China to private copyright owners in the U.S.   This is a tremendous power grab that would change the nature of the internet.  Since it uses DNS masking, it would make the internet less secure and less efficient.

Invented statistics on copyright infringement are nothing new.  But this radical and flawed legislation is seriously problematic and is being rushed through Congress at a time when little else is getting done.

Lots more on SOPA at Techdirt here.
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Boston Globe: Museum Fine Arts Boston Refuses To Release Research on Kokoschka Stolen From Oskar Reichel

Stolen Kokoschka at MFA Boston: Court Rules Claimants Too Late for Justice

The Boston Globe, in a piece here by veteran reporter Geoff Edgers who has reported on many Nazi art looting scandals involving the Museum of Fine Arts Boston, reports in a rather soft and indirect way that the museum is continuing to conceal its research on how a work by Oskar Kokoschka got from the Jewish Viennese dentist Oskar Reichel in February 1939 to the art dealer Otto Kallir.   Earlier coverage of the case here.

Otto Kallir was profiled in an article Dealer with the Devil by the New York Observer here.

In February 1939, Jews had declared their property to the Nazi Reich.  Vienna was in the grips of Adolph Eichmann, who was systematically despoiling them of all property.

The Boston Globe article states as follows:
She [Reed] does defend the MFA, which she says shares the results of all its Nazi-era provenance research on its website, on gallery labels, and in gallery talks. The only exception is when there is a legal matter that includes correspondence that is privileged.

Her understated approach is typical of Reed. She wants the evidence from her research to speak for itself without telling her boss, MFA deputy director Katherine Getchell, how to respond.
That makes perfect sense to Getchell.

“Her job is not to be a policymaker or decision maker,’’ said Getchell. “We want her focused on research and analysis and looking at the different options.’’

But the Boston Globe has glossed the point.  Victoria Reed has presented no evidence, only the most conclusory "results" of her alleged research.  The Museum of Fine Arts website states as follows here:

Provenance Research
Following this March 2007 claim [to the Kokoschka], the MFA thoroughly reviewed the claim to Two Nudes (Lovers) in accordance with its own Acquisitions Policy as well as the guidelines set forth by the American Association of Museums (AAM), the Association of Art Museum Directors (AAMD), and the Washington Principles of 1998 on Nazi-Confiscated Art. The Museum is committed to determining, on an ongoing basis, whether any work of art in its collection has ever been stolen, confiscated, looted, or otherwise unlawfully appropriated as a result of Nazi persecution without subsequent restitution. A leader in provenance research, the MFA makes ownership information available to the public through its website, mfa.org. During the past decade, the Museum has restituted a number of works of art to their rightful owners based on provenance research.

None of this research has been made public.  Instead, the Museum has published a five paragraph summary of the 'results' of its alleged research.  A sample of this conclusory "research" follows below:

By 1924, Reichel had developed a business relationship with Otto Kallir (b. 1894 - d. 1978), a Jewish art dealer who opened the Neue Galerie in Vienna in 1923. Reichel consigned Two Nudes (Lovers), along with other paintings by Kokoschka, for sale through Kallir in the 1920s and 1930s. In 1938, Kallir fled Vienna and turned the Neue Galerie over to his non-Jewish secretary. He opened a new gallery, the Galerie St. Etienne, in Paris. In February 1939, Reichel transferred ownership of five Kokoschka paintings—including Two Nudes (Lovers) —to Kallir, who exhibited them in his Paris gallery that spring. Later that year, Kallir emigrated to New York and opened a branch of the Galerie St. Etienne there. He exhibited Two Nudes (Lovers) frequently between 1940 and 1945, both in his New York gallery and in traveling exhibitions throughout the United States. From New York, Kallir sent money for the five Kokoschka paintings to Oskar Reichel’s two sons, Raimund and Hans, with whom he was in communication; they were living in South America and the United States, respectively.

Oskar Reichel was a Jew in Adolph Eichmann's Vienna.  His assets were logged and registered with the Nazis.  Nazi law prohibited Jews from making any transfers, and if any transfers were authorized, all of the proceeds went to the Reich.  How on earth could Reichel have tranferred ownership these assets to Kallir?    And even if he did, the 1946 Nullification Act, which voided transactions in property of Nazi persecutees, should have applied.  

Why has the MFA's researcher Victoria Reed failed to present her scholarship for peer review?  Historians are ethically mandated to do so.   Here is an excerpt from the American Historical Association's Statement on Professional Conduct

Professional integrity in the practice of history requires awareness of one's own biases and a readiness to follow sound method and analysis wherever they may lead.Historians should document their findings and be prepared to make available their sources, evidence, and data, including any documentation they develop through interviews. Historians should not misrepresent their sources. They should report their findings as accurately as possible and not omit evidence that runs counter to their own interpretation. They should not commit plagiarism. They should oppose false or erroneous use of evidence, along with any efforts to ignore or conceal such false or erroneous use.
Historians should acknowledge the receipt of any financial support, sponsorship, or unique privileges (including special access to research material) related to their research, especially when such privileges could bias their research findings. They should always acknowledge assistance received from colleagues, students, research assistants, and others, and give due credit to collaborators.

Historians should work to preserve the historical record, and support institutions that perform this crucial service. Historians favor free, open, equal, and nondiscriminatory access to archival, library, and museum collections wherever possible. They should be careful to avoid any actions that might prejudice access for future historians. Although they recognize the legitimacy of restricting access to some sources for national security, proprietary, and privacy reasons, they have a professional interest in opposing unnecessary restrictions whenever appropriate.

For another great example of museums professing to publish research, but in reality concealing it, please check out William D. Cohan's MoMA's Problematic Provenances in this month's ArtNews here

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Fair Use Fridays: Is Copyright Troll Righthaven Dead?

Righthaven LLC has garnered headlines for suing companies and individuals that use copyrighted content online.   Known as a "copyright troll"  Righthaven pursued many instances of quoting or using copyrighted materials that many considered to be considered "fair use" under copyright's fair use doctrine.

"Fair use" is codified at 17 U.S.C. Section 107 as an exception to copyright infringement, but it is famously ill-defined.

Here is an article from the Las Vegas Sun on a judge ordering Righthaven's copyright assets to be auctioned by a receiver.

Today Vegas Inc reported here that Righthaven will ask the Ninth Circuit Court of Appeals to block the auction.

Here from ALM Corporate Counsel is some detail on one of the over 200 cases filed by Righthaven.  In Righthaven LLC v. Democratic Underground (motion here) Righthaven sued over a five-sentence excerpt of a news article that was posted by a political discussion group.

Here from Techdirt we have coverage of Righthaven appealing to the Ninth Circuit from a ruling that copying of an entire work can be fair use, together with a link here to the brief.

Check out www.righthavenlawsuits.com for more.   Righthaven Victims blog here reports that Righthaven has been required to pay $225,172.15 so far in sanctions.


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Copyright Infringement: Publisher John Wiley Pursues Bittorrent Dummies

John Wiley's For Dummies TM

In John Wiley v. John Does 1-36 (S.D.N.Y. December 7, 2011 11 Civ 8943), we see an example of a book publisher, here John Wiley, publisher of the "For Dummies"TM series of books suing individuals who have used Bittorrent to download a single book.

The complaint accuses each downloader of copyright and trademark infringement and seeks treble damages on trademark counterfeiting claims, plus punitive damages.

John Wiley Pursues Bit Torrent Dummies

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Operation In Our Sites Nabs 150 Websites on Cyber Monday

Forbes.com reports on the U.S. government's seizures of domain names for alleged copyright and trademark infringement here.   Ars Technica gives the history of Operation In Our Sites here and here and here.

U.S. Immigrations and Customs Enforcement's description of Operation In Our Sites here.

National Intellectual Property Rights (IPR) Coordination Center here.

Wired's take here.

Attorney General Eric Holder's Nov 29, 2010 Cyber Monday raid announcement here.

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Top Copyright Blogs: Copyhype, Supporter of Stop Online Privacy Act Makes AmLaw 100

 Congratulations to Terry Hart for making the 2011 AmLaw Annual Blawg 100 for Copyhype.   Copyhype follows a line of thinking promoted by Ben Sheffner's excellent Copyrights & Campaigns.

That means a point of view in the Copyright Wars that espouses the view that copyright owners need more enforcement tools, that copyright law should be strengthened, and that is highly skeptical of the fair use doctrine.   For example, Copyhype supports the Stop Online Piracy Act, my personal views on the legislation here.

Steve Colbert on SOPA below (thanks Brandgeek)

The Colbert Report
Get More: Colbert Report Full Episodes,Political Humor & Satire Blog,Video Archive

CNET reports here that Yahoo has quit the U.S. Chamber of Commerce because of its support for SOPA and that Google and others are considering suit.  Essentially SOPA would hand over tremendous power to a few media oligopolies that could shut down many promising Silicon Valley companies on a whim and discourage innnovation. Techdirt's view here and here.

For more Colbert, Danny Goldberg and Jonathan Zittrain on SOPA, visit Brandgeek here.

Petition to kill the E-Parasites Act received 48,151 signatures, exceeding the 25,000 goal.


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Fair Use Fridays: Screening a Film for Free on Campus

A good video on application of Copyright's fair use doctrine in the context of screening a film for free on campus. 

Read the law, 17 U.S.C. Section 107 here.

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#art MoMA's Problematic Provenances - George Grosz

Willi Baumeister no title 1928 (collage for Alfred Flechtheim)  image Artvalue here.

Excellent article by William Cohan on MoMA's concealment of the provenances of artworks in Alfred Flechtheim's 1933 inventory in December 2011 Art News here.  Alfred Flechtheim, depicted above by Willi Baumeister, was the most prominent contemporary art dealer of the Weimar Republic.  Scandal erupted over claims by the heirs of George Grosz that Grosz had left artworks now at MoMA in the hands of Flechtheim, who in turn was "Aryanized" by a Nazi from Dusseldorf named Alexander Voemel in 1933.

Cohan's article points out how MoMA has tried to erase Flechtheim from art history.

The MoMA, like a number of other U.S. museums, has used statutes of limitations to hold onto stolen art, even though museum administrators and trustees had concealed information that would permit heirs to make claims for decades.

MoMA Executive Glenn Lowry misled the Grosz heirs by claiming that he had no authority to refuse their claims to the three artworks in question and had not refused their claims to the artworks.    MoMA, represented by the Proskauer law firm, then changed its position, claiming that Lowry actually did have the authority to refuse the claims and that he'd actually refused the claims much earlier than he had by simply not returning the artworks.   

MoMA was successful in convincing federal judges that the "refusal" had triggered New York's three year statute of limitations.

You can read the cert petition in Grosz v MoMA here.   You can read the Second Circuit's opinion here.

It should shock the conscience of Americans that museums can use statutes of limitations to hold onto stolen art, the acquisition of which has been subsidized by U.S. taxpayers.    Rich people should not be able to avoid paying taxes by taken art stolen from Jews in the Holocaust and putting it into U.S. museums where it is hidden from scrutiny - often for decades.

Cohan does an excellent job of outing Nazi agent Curt Valentin.   More on Valentin here and here.

More on Alfred Flechtheim here and here and here.

The first part of Laurie Stein's declassified Swiss report (reference by Cohan) here.

(disclosure - the author represented the Grosz heirs in Grosz v. MoMA).

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Fair Use Fridays: Fair Use and Cultural Development

A beautiful video argument about Copyright's fair use doctrine using works of fine art... and Manet's use of the Bass Ale logo in Olympia

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Fair Use Comix

Techdirt: How 'Playing It Safe' Cripples Fair Use

Hitler's Take on #OWS Occupy Wall Street

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Fair Use Fridays: How Not To Get Caught for Copyright Infringement

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Twitter Lists Following Copyright Litigation Blog @raydowd

There are currently 63 lists following Copyright Litigation Blog @raydowd, thanks to all who list, you can find the list of lists here:


@EricSlepak/law @_sirayuki/ip-related @AngelaHart81071/law-9 @AmLawDaily/lawyers

Lawyers we follow...
@judsontwit/law @TimothyPONeill/tofollow

People on twitter to follow @TimothyPONeill/legal @ethang/intellectual-property @ethang/cyber-law @TNIPLawyer/ip-related @MarieAndreeW/new-york-attorneys @MarieAndreeW/attorneys @MarieAndreeW/intellectual-property @unyil_13/photography @TriangleTM_Esq/admktinglaw

Advertising, marketing, trademark, copyright law @TriangleTM_Esq/ip-lawyers @cyberpunknews/enemies-of-a-happy-net @CPA_Fans_Page/dailycheckacctgusa

Related mostly with financial/accounting/tax in USA, and have to check on a daily basis.
@revjaydub/copyright-law @GryphonLtd/international-law @GryphonLtd/litigation @GryphonLtd/fraud-lawyers @AdrianLurssen/jdsupra-lawyers-firms

Lawyers, law firms, and legal professionals distributing content on the @JDSupra network.
@rachaelvaughn/soft-ip

copyright and trademark tweeting
@rachaelvaughn/attorneys

tweeting lawyers
@joygarnett/arty-world-2 @CPA_Fans_Page/accountingnews

Accounting Related News
@CPA_Fans_Page/accountants-taxes

Certified Public Accountants (CPA) and other accounting designations @joygarnett/copyfog @theglipper/first-amendment-media

Folks that tweet about journalism, media, and Amendment 1.
@Diggingpitt/art-bloggers-writers

This is a random list of critics, bloggers, artists and media that tweet about art.
@sawagner30/business-media @CPA_Fans_Page/businessinfo1-21

Tweeps/followers who are into business and other professions
@IPblawger/i-p-lawyers

Intellectual Property Lawyers on Twitter
@aaron_ef/ip-attorneys @rgauss/rgauss-copyright @neild1/copyright @njAtty/attorneys @IP360Asia/us-canada2 @mjmartell/esq

legal
@RickJLaRue/head-of-christ-by-richard

I drew a depiction of Christ in 1979. It was stolen from me and is currently being sold by cph.org @Maurism1/derecho @lods1211/ip-it-law

Copyright, Internet/Cyber Law, Media & Entertainment Law, Defamation
@Borty/lawyers @LegalEyeGirl/lawyers-legalbiz-network

Loving the Law and LegalNews-Fighting for Justice-Staying Informed
@HarvardLaw74/ip-attorneys @IPLawToday/hollywood-law

Legal Developments in Hollywood
@mmasnick/news @ballard_ip/intellectual-property

US intellectual property law practitioners who limit their personal tweets
@ksuzan/attorneys @mridgwayjones/ip

Intellectual Property
@JohnPruitt/justiceleague

Attorneys and others who are doing their part to share information to the legal industry
@steve_jacobs/ip-law @Lumpy/podcasters-broadcasters

Anyone who produces Audio and/or Video content.
@davidsanger/photography-law @GlennEsq/law-blogs

a List of Law-related blogs I recommend
@GoetzFitz/interesting-lawyers @RobertAPaul/law @RobertAPaul/intellectual-property @sulilaw/legal @ernieattorney/lawdawgs @ARTnewsmag/artsorgs @asilverstein/ip

Intellectual Property


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Copyright Society of the USA's Brace Lecture Honors Judge Denny Chin

Judge Denny Chin - Photo Sue Kim Courtesy Wikimedia Commons

Local hero Second Circuit Judge Denny Chin was honored last night by the Copyright Society of the USA at their annual Brace Lecture at Fordham Law School.   Judge Chin's presentation was enjoyable and laden with visuals.   He emphasized the message that most federal judges are generalists and do not hold policy prejudices about copyright, which makes the primary role of the advocates before the court as educators.

Judge Chin made limited comments about the Google Books case, and took the audience on a fascinating tour of his copyright cases, with a few detours into patent and trademark.

It was a great opportunity to meet and talk with Judge Chin and to see many friends who came in from around the world for this terrific annual lecture.

The Copyright Society has a new Twitter handle @thecsusa

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Occupy Wall Street Takes On Copyright's Fair Use Doctrine

Documentary filmmaker Peter Brauer calls on people to #Occupy the News in this Youtube video explaining copyright's fair use doctrine to Fox News.  #ows

Brauer refers those seeking to use film clips to Stanford's Fair Use Project.

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Andy Warhol Foundation Backs Richard Prince on Fair Use in Cariou Case

The Andy Warhol Foundation has filed an amicus brief to the Second Circuit Court of Appeals in support of Richard Prince in Cariou v. Prince.

The brief, below, discusses a number of important artists and has color images of the artworks discussed.

Worth reading.  Worth viewing.

Cariou v Prince Warhol Foundation Amicus Brief

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Ninth Circuit Tribute to Chief District Judge John M. Roll


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Librarian Launches #Occupycopyright Movement

A librarian has launched an Occupy Copyright movement.  The Jersey Exile's manifesto here.

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10th Circuit Finds "Let's Go Thunder" To Be Uncopyrightable

Official Oklahoma Thunder site

In Syrus v. Bennett, the court of appeals for the 10th Circuit considered the issue of whether a man who claimed copyright in the short phrases "Go Thunder" and "Let's Go Thunder" had stated a claim. Referring to the Feist requirement of originality and copyright's requirement that copyright protection extends only to works that "are the fruits of intellectual labor" the court found that the phrases plaintiff claimed were infringed were not copyrightable. Adding "Let's Go" or "Go" which are common cheers to the team name required no "intellectual labor".

The plaintiff claimed that he'd written a song with these phrases and distributed the song to the team in response to a team request for song submissions.  The plaintiff pro se did not allege any copying.  Plaintiff's suit was dismissed on a motion to dismiss pursuant to Rule 12(b)(6) of the federal rules of civil procedure. The decision is unpublished, embedded below.



Syrus v. Bennett - Copyright Infringement
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Top 20 Copyright Blogs of All Time - Source - Justia

From Justia.com, as of today:

1. IPKat

2. Recording Industry vs The People
3. Chicago IP Litigation Blog
4. Chilling Effects Clearinghouse
5. Plagiarism Today
6. Likelihood of Confusion
7. Internet Cases
8. Ruling Imagination: Law and Creativity
9. Nolo Presents the Law in Plain English
10. Copyright Litigation Blog
11. TechnoLlama
12. Hearsay Culture
13. Copyfight
14. Excess Copyright
15. Video Game Law Blog
16. Ex(c)lusive Rights
17. Guiding Rights Blog
18. Blawg IT
19. eLegal Canton
20. TradeMark Express: A Daily Blog




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SDNY Federal Bar Association - Nov 17 Chief Judge Preska To Swear In New Officers

Federal Bar Association
The Southern District of New York Chapter
Invites You to a Swearing-In of New Officers by the

The Honorable Loretta A. Preska

Chief Judge of the Southern District of New York

Date: November 17, 2011

Time: 5:00 p.m.
Place: 500 Pearl Street, Courtroom 12A

President: Simeon H. Baum, Esq.
President-Elect: Philip R. Schatz, Esq.
Vice President: William F. Dahill, Esq.
Secretary: Felicia S. Gordon, Esq.
Treasurer: Jason Nardiello, Esq.
National Delegate: Olivera Medenica, Esq.
Delegate to the Network of Bar Leaders: Amy Nussbaum Gell

Outgoing President: John G. McCarthy

RECEPTION TO FOLLOW IN ROOM 850

Respectfully submitted,

Raymond J. Dowd
John G. McCarthy
Vice Presidents for the Second Circuit

R.S.V.P.: simeonHB@disputeResolve.com

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Copyright Legislation: Petition to Stop E-Parasite Act Tops 8k In Signatures

Mike Masnick of Techdirt points out an excellent C-Net article criticizing the House version of the Protect-IP Act (the E-Parasite Act).

It is astonishing that both houses of Congress appear to be highly motivated to pass this radical and sweeping legislation that appears to be designed to shut down the one bright spot in the American economy: the internet.   Hollywood is seeking powers that would render the U.S. version of the internet much like the Chinese censorship-driven model.

This is important legislation.  It ought to be watched carefully and opposed by anyone sensible.

To sign on to a petition to stop this legislation, go here, more information at Mashable.

The language of the petition below:

we petition the obama administration to:



Stop the E-PARASITE Act.


This Bill would allow essentially allow A Great Firewall of America and would be a shameful desecration of free speech and any sort of reasonable copyright law. The new Law would allow copyright holders to force websites which have any copyrighted material to be blocked by ISP companies around the country, without requiring that the websites be given time to take the offending material down. It would also put pressure on ISP companies to monitor their users like never before, a gross invasion of privacy. This bill is a direct assault on a free internet and a shameful attempt by copyright lobbyists to destroy net neutrality. Essentially it's a censorship law that would end the internet as we know it in America.

Created: Oct 31, 2011


Issues: Civil Rights and Liberties, Government Reform, Regulatory Reform

Learn about Petition Thresholds

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Signatures needed by November 30, 2011 to reach goal of 25,000  16,747 

Total signatures on this petition8,253.You've signed this petition


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 Purchase Copyright Litigation Handbook 2011 by Raymond J. Dowd from West here  

Tiffany Files 2d Cir Brief on Behalf of Louboutin in Fashion Color TM Case

Ruling against French Shoemaker Gives Tiffany the Blues - Law Blog - WSJ

#ip #law #trademarks

House Copyright Bill Called Dangerous #sopa #ip #law

House Copyright Bill Casts Dangerously Broad Net | Center for Democracy & Technology

Alfred Flechtheim's Collection Featured in Art Forgery Scam

Time runs out for Germany's master forgers - News, Art - The Independent

Copyright Litigation Handbook 2011 Is Out!

Copyright Litigation Handbook 2011 is out!   The original version had 440 pages of text, this year it has expanded to 742 pages - almost doubling in size over the last six years.

For more information about the contents and reviews, check out the slideshare here.

Some reviews from Amazon:

5.0 out of 5 stars A great resource, October 8, 2009

By Joseph Petersen - See all my reviews

This review is from: Copyright Litigation Handbook, 2010 ed. (Paperback)

Raymond J. Dowd, an experienced trial lawyer and partner with Dunnington, Bartholow & Miller LLP, has written a long-overdue work. His Copyright Litigation Handbook provides a straightforward overview and is chockablock with insightful and practical information. Mr. Dowd is liberal in his inclusion of excerpts from relevant statutes, including not only the Copyright Act, but also the Federal Rules of Civil Procedure and the Federal Rules of Evidence, and his book provides numerous sample forms. Mr. Dowd's Copyright Litigation Handbook will long be a valuable resource for copyright litigators; I am confident that it will be squeezed into trial bags for years to come. Joseph Petersen, Kilpatrick Stockton LLP

5.0 out of 5 stars Copyright Litigation Handbook, August 26, 2009

By Corey Field (Los Angeles, CA) - See all my reviews

This review is from: Copyright Litigation Handbook, 2010 ed. (Paperback)

I have read this entire book. It is extraordinary for more reasons than I have space here to enumerate. It is a book about copyright law for litigators, and it is at the same time a book about litigation for copyright lawyers. It is written for a broad audience of attorneys whose practice may touch upon copyright law, but it is also a great practice overview for an experienced copyright lawyer. It is organized in a logical way proceeding from case evaluation through trial. Throughout, it offers nuggets of advice that are extremely valuable - the sort of experienced advice that makes a huge difference in the development of one's legal abilities.
Corey Field

Ballard Spahr Andrews & Ingersoll, LLP

Los Angeles, CA
5.0 out of 5 stars An indispensable and unique copyright guide for the litigator, August 26, 2009

By David J. Wolfsohn (Philadelphia, PA) - See all my reviews

This review is from: Copyright Litigation Handbook, 2010 ed. (Paperback)

Until Raymond Dowd wrote this book, there simply was no litigation-friendly guide to copyright litigation. Thank goodness Mr. Dowd chose to devote the equivalent of several years of time and effort to write this book, and to update it with this 2009 edition. This is the book that both occasional dabblers in copyright should go to first (which I wish I had when I started out), as well as now-experienced copyright litigators like me. It is the book I go to first when drafting a complaint (or even when deciding whether to sue), and consult when beginning to prepare for trial. Everything is litigation oriented, so one doesn't need to wade through abstract theorizing to get a sense for how you can use the current state of the case law to your client's advantage. The forms for a complaint and other litigation papers are particularly useful. And the ideas for motions in limine are priceless, and as far as I know, a unique feature of this book. --David Wolfsohn, Woodcock Washburn LLP.  
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Copyright Litigation Blog Turns Five

Today the Copyright Litigation Blog has been in existence for five years.  It was launched as an adjunct to my book Copyright Litigation Handbook (West 2010).  Over the years my posts have changed in character and style and I have tackled a few subects outside the purview of copyright litigation.   In 2005 I took on Bakalar v Vavra which became the first Holocaust-era art trial in a US federal court.  Accordingly my practice and blogging took on the topic of art theft.   I am now on my second trip to the Second Circuit on Bakalar v Vavra.

The Copyright Litigation Handbook has grown in depth and subect matter over time as well.  It garnered top reviews in the New York Law Journal, on Amazon and many practioners from around the country have expressed their appreciation for a book that they find practical.  I use it almost daily in my practice and update it annually.

The Copyright Litigation Blog has also broken many stories both in the blogsphere and in the mainstream press.  I am thankful to those who have quoted me and have appreciated those journalists who have consulted me.  Being bombarded with tough questions is helpful to me in keeping up with what is going on.

I have also received speaking invitations as a result of blogging as well as invitations to write articles.  I have made numerous blogging friendships and good acquaintances.  A few scuffles over time, but heck life would be boring if we all agreed all the time.  I hope no one holds a grudge.

People always ask whether I have gotten clients through blogging.  The answer is yes.  It is a powerful medium for the new generation and it has added significantly to my firm's bottom line.  I have gotten referrals from both local and foreign attorneys, been hired as local counsel, been hired to consult or litigate in faraway jurisdictions, and been approached directly by good clients needing quality service.  

When I started blogging I knew that this would be a powerful medium.  I am persuaded that it is growing in power in a way that can be felt almost on a monthly basis.  It has been a great experience to be involved and as each post goes out, I can only imagine who it will touch and who will be affected by it.  They say that only a tiny percentage of those who read give feedback, I suppose that this is a good thing since the feedback has been overwhelming and overwhelmingly positive.

I have posted rankings showing the Copyright Litigation Blog to be in the top ranked IP blogs by traffic and relevance.  I don't try to keep up with breaking news all of the time and my blogging tends to be seasonal.  When I am updating my book, I blog a lot. When I am really busy with work or just plain lazy, I don't.  The guilt-free and subjective formula seems to have worked out just fine.

If you Google or Bing "copyright litigation" the Copyright Litigation Blog is the number one result.   I hope that is in part a reflection of quality and relevance but I know that it also is a reflection of quantity and perseverance, which are not necessarily the best characteristics to showcase on the internet.  Still I am thankful for the standing.  In a competitive profession, it is nice to be number one, however fleetingly and whether or not it is deserved.   A change in the Google algorithm and it could all be dust!

I am looking forward to the next year and excited about this year's update of Copyright Litigation Handbook.   I visited the Copyright Office in Washington DC and am looking closely at the new world of copyright registration online.    I hope that you will continue to Like, Retweet and otherwise refer my posts to those who may be interested.   Feel free to follow me on Twitter @raydowd.  I hope to keep you informed, entertained and occasionally outraged in the years to come.

October 27 U.S. Supreme Court Swearing-In Federal Bar Association Hartford Connecticut

Sign up now to have General William K. Suter swear you in to the U.S. Supreme Court in Hartford CT on October 27 at an event sponsored by the Federal Bar Association. Application deadline is October 6. Supreme Court of the United States Swearing In Ceremony in Hartford Connecticut

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Nazi Looted Art - Positive Ruling for Heirs Against Hungary

Judge: Herzog heirs can sue Hungary to recover Nazi-looted art

Fair Use Fridays: ALA - Fair Use Guidelines "Of Little Practical Help"

From Daniel Lee, Undergraduate Services Librarian at the University of Arizona (full text on American Library Association website here)

Section 107 of the Copyright Act of 1976 defines fair use. It is a vague definition, intentionally so, presenting broad principles with no reference to numerical limits on the portion of a work used, or the length of time a work can be used. This vagueness provides tremendous flexibility, but also leads to much uncertainty. Applying the statute to a particular proposed project can result in multiple, quite reasonable interpretations. In an effort to combat this uncertainty and make fair use more predictable, representatives of both copyright holders and consumers have often met to develop guidelines that provide the sort of specificity that many find desirable.



The most well known of these guidelines are the CONTU Guidelines on Photocopying Under Interlibrary Loan Arrangements, adopted in 1978, and the Agreement on Guidelines for Classroom Copying in Not-for-profit Educational Institutions with Respect to Books and Periodicals (often referred to as the "Classroom Guidelines"), adopted in 1976. More recently, attempts were made to reach similar agreements for educational multimedia, electronic reserve, and distance learning. For the most part, agreement could not be reached as copyright owners believed the proposed guidelines to be overly permissive, and library and educational representatives found the proposals to be too restrictive.


The failure of the recent negotiations and almost 25 years of experience with the earlier guidelines have led many to conclude that fair use guidelines, by their very nature, fail to capture the principles embodied in fair use and are of little practical help.

A Powerpoint on fair use for librarians here. 

CONTU Guidelines here.

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Second Circuit: Copyright Class Action Settlement Fails - Unregistered Copyrights Not Adequately Represented

The Tasini v. New York Times drama has been going on for many, many years. The issue: freelancers wrote articles for the New York Times and other publications. When technology permitted the articles to be put into searchable electronic databases, could the publishers do this without seeking permission from the copyright holder? The U.S. Supreme Court's 2001 decision in Tasini taught us that doing so without getting the copyright owner's permission was copyright infringement. So in the decade that followed, we had Reed Elsevier v Muchnick in which the US Supreme Court decided that 17 USC 411 (the requirement that a copyright be registered before a federal claim for copyright infringement may be filed) was not jurisdictional.

Now following remand from the Supreme Court's decision in Muchnick, we have In re Literary Works in Electronic Databases Copyright Litigation (2d Cir. August 17, 2011) - a decision deciding a matter that was originally argued on March 7, 2007.

The decision is embedded below.   In it the Second Circuit rejects the district court's certification of a class action for settlement purposes because the holders of unregistered copyrights were not adequately represented.  Holders of unregistered copyrights were classed as "Category C".

Category A -  Holders of copyrights registered in time to qualify for statutory damages.  To be paid $1,500 for first 15 works written for any one publisher, $1,200 for the second fifteen works for that publisher, and $875 for all works written for that publisher after the first 30.

Category B - The greater of $150 or 12.5% of the original price of the work.

Category C,  The greater of $5 or 10% of the original price of the work with sliding scale for works over $249  ($25- $60).

The settlement capped the publishers' total exposure at $18 million.  Key to the Second Circuit's reasoning was that only Category C would be reduced if the global settlement exceeded $18 million.

This decision is an important one in interpreting Rule 23 of the Federal Rules of Civil Procedure, which governs certification of class actions and requires that each class or subclass be adequately represented.

Judge Straub wrote a 16 page dissent in favor of class certification.


In Re Literary Database Litigation

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