Photobucket Not Required To Actively Police Site For Infringements

Photobucket - 8 billion photos online

In Wolk v. Kodak Imaging Network Inc., 10 Civ. 4135 (RWS) (SDNY March 17, 2011), Judge Robert Sweet found that Photobucket, an internet service provider, was protected by the "safe harbor" provisions of the Digital Millenium Copyright Act ("DMCA"). 17 USC 512(c).

Essentially, the DMCA requires an internet service provider ("ISP") to set up policies to respond to complaints from copyright owners when a third party stores infringing materials on their site.   The complaints, or takedown notices, must specifically inform the ISP where the infringing material is.

Photographer Sheila Wolk sent numerous takedown notices to Photobucket.  Her images, excerpted above from her website, are unusual and distinctive.  All infringing materials that she specifically identified were removed.   But the infringements kept popping up and Wolk got fed up and sought an injunction.

Judge Sweet's decision denied Wolk's application and her attempt to force Photobucket to install an electronic fingerprinting system to catch infringers.

Professor Eric Goldman warns copyright owners against being lazy in sending out takedown notices here, Marty Schwimmer's Trademark Blog is skeptical about Photobucket's alleged inability to screen its content here.

Wolk v Photobucket

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Is Using A Wireless Router Copyright Infringement? Or a Defense? (UPDATED)

From Boston College's website here

Common Examples of Copyright Infringement


•Joining a file-sharing network and downloading unauthorized copies of copyrighted music for free.

•Sharing unauthorized MP3 copies of a song on the Internet or through a file-sharing network.

•Using a wireless router in your room; others may share illegal material through your router, giving the appearance that you are the guilty party.

•Emailing copies of a copyrighted song to all of your friends.

•Transferring copyrighted music using AIM or other instant messaging services.

•Burning CD copies of music you have downloaded and then giving them to all your friends.


This is the first time I have heard that colleges and universities are teaching America's youth that using a wireless router constituted copyright infringement, can anyone educate me as to where this came from?

I have excerpted below the three federal opinions mentioning wireless routers, in each, having a wireless router was a potential defense to copyright infringement.

From Capitol Records Inc. v. Thomas-Rasset 2009 WL 1664468, 7 (D.Minn. 2009)



Therefore, given the evidence that there is no wireless router involved in this case, the Court excludes Kim's opinion that it is possible that someone could have spoofed or hijacked Defendant's Internet account through an unprotected wireless access point. Similarly, because Kim explicitly testified that this case does not involve any “black IP space,” or any “temporarily unused” IP space (Kim Dep. 110-11), he is not permitted to opine at trial that hijacking of black IP space or temporary unused IP is a possible explanation in this case.

From Arista Records, Inc. v. Musemeci 2007 WL 3124545, 5 (E.D.N.Y. 2007)


In connection with a motion to vacate a default judgment, a defendant must present more than conclusory denials when attempting to show the existence of a meritorious defense. See Enron Oil Corp., 10 F.3d at 98. “The test of such a defense is measured not by whether there is a likelihood that it will carry the day, but whether the evidence submitted, if proven at trial, would constitute a complete defense.” Id (citations omitted) (emphasis added). To set aside a default, the movant must “support its general denials with some underlying facts.” Sony Corp., 800 F.2d at 320-21.



Here, defendant has failed to make an adequate showing of a meritorious defense. Despite this circuit's strong preference for resolving cases on the merits, see Traguth v. Zuck, 710 F.2d 90, 94 (2d Cir.1983), I find that defendant has made no statement of facts which, if proven at trial, would constitute a complete defense to plaintiffs' claims. Defendant has offered little more than conclusory denials of the alleged infringement. While defendant claims that he uses an unsecured wireless router at his residence, which could have been used by an outside party to commit the alleged infringing activity,FN7 this does not constitute a complete defense. Furthermore, plaintiffs have identified the screen name that was used to commit the alleged infringing activity as “jAcKiEecUddlEsSs@KaZaA.” ( See Gutierrez Decl. ¶ 18.) Defendant admits that he has a daughter named Jacqueline. ( See Tr. at 16.) This is unlikely to be a coincidence. I therefore find that defendant has not established a complete defense to plaintiffs' allegations.

 From  Motown Record Co., LP v. DePietro 2007 WL 576284, 2 (E.D.Pa.,2007)
Defendant's refusal to cooperate with Plaintiffs has persisted throughout the discovery process. Defendant initially refused to provide any written discovery to Plaintiffs.FN14 On at least two different occasions, Defendant refused to answer questions related to the case by asserting her Fifth Amendment privilege against self-incrimination, even though no criminal investigation or charges were pending against her.FN15 These refusals to cooperate forced Plaintiffs to seek Orders from this Court compelling Plaintiff to provide written discovery and to be deposed.FN16 Thereafter, Plaintiff was deposed a second time and submitted responses to previously issued interrogatories. During discovery, Defendant acknowledged that she was the only person who had access to her computer,FN17 that her live-in boyfriend was the only other person in her apartment for any extended period of time, FN18 and that she never used a wireless router or wireless service to connect to the Internet.FN19More on fair use guidelines here.

UPDATE
Techdirt attracts over 170 comments on the story here.   Many commenters say that the BC policy is a poorly-worded security warning and that people should secure their routers to avoid unauthorized use.

Zeropaid comments here.

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SDNY - Copyright Licensee Bears Burden of Proving Authorized Use of Copyrighted Works

In Elsevier N.V. v. United HealthGroup, Inc, 2011 WL 1002659 (SDNY March 7, 2011), Judge William Pauley denied Elsevier's motion for summary judgment. Elsevier licensed its database to defendant for the use of 50 employees. Elsevier's spreadsheets indicated that many unauthorized employees potentially accessed the articles. But who has the burden of proof? Here is the court's answer:

The central question in this litigation is whether the persons within the UHG organization who accessed ScienceDirect were Authorized Users. Elsevier contends those individuals were not authorized because all domestic employees of UHG were actually employed by UHCS, an entity not licensed to access ScienceDirect. (Pl.'s 56.1 Stmt. ¶¶ 7, 9; Dunnegan Decl. Ex. J: Klein Decl. ¶ 11.) From that contention, Elsevier asserts that since UHG's domestic employees outnumber its foreign employees, it is more likely than not that any access of ScienceDirect through the Ingenix IP Address, including the Articles at issue here, occurred as a result of activities by unauthorized, domestic UHCS employees. But that is not sufficient for summary judgment.

Elsevier has not met its burden of proving the specific acts of copyright infringement. Jorgensen, 351 F.3d at 51; see also Kelly v. L.L. Cool J., 145 F.R.D. 32, 36, n. 3 (S.D.N.Y.1992) (citing cases dismissing “[b]road, sweeping allegations of infringement” with no specific allegations). Elsevier asks the Court to look at the distribution of domestic and foreign subsidiaries in Defendants' entire enterprise and make a judgment about the probability that two individual acts of computer access took place in the United States. Even if true, as Elsevier asserts, that only 26 of UHG's 225 subsidiaries are based outside the United States, (Transcript of Oral Argument dated Oct. 8, 2010 at 11-12), Elsevier offers no evidence or reason to suggest that the blunt ratio of domestic to foreign subsidiaries in Defendants' enterprise should be applied to the specific downloads at issue on this motion. At best, the Master Spreadsheet entries show that each download was made from a different computer with a different “cookie.” (Lendi Reply Decl. ¶ 6.) But at this point in the case, Elsevier is unable to offer evidence of the identities or locations of the individuals who downloaded the Articles.

Further, Elsevier's theory on this motion is at odds with the terms of the Agreement, which specifically authorized Ingenix employees or independent contractors located in Basking Ridge, NJ to access the ScienceDirect database. (Agreement § 1.2, Schedule 2.) While domestic UHG “employees” may contract with UHCS, that does not foreclose the possibility they also work for Ingenix. This is buttressed by Klein's sworn statement that “employees in the enterprise are employed by [UHCS], and assigned to work for various companies in the enterprise.” (Dunnegan Decl. Ex. J: Klein Decl. ¶ 11.) Thus, a material issue of fact exists whether the individuals who downloaded the Articles were working for Ingenix and were one of the 50 Authorized Users at the time they accessed the Science Direct database.
On the other hand, Defendants contend they were authorized to access the ScienceDirect database under the Agreement and that Elsevier has the burden to prove that the individuals who downloaded the Articles were not authorized. While the copyright owner bears the burden of proving that a defendant's license does not apply in cases where “only the scope of the license is at issue,” Bourne v. Walt Disney Co., 68 F.3d 621, 631 (2d Cir.1995), the question here is whether the infringer had any license at all. Thus, the general rule-that defendant bears the burden of proving possession of a license-applies. See Bourne, 68 F.3d at 631 (citing Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.01.) A defendant may not “merely assert the existence of a license without evidence supporting defendant's position that the license covers the use in question; without such evidence, defendant cannot be said to have met its burden ...”. William F. Patry, Patry on Copyright ( “Patry” ) § 5:133. It is undisputed that the Agreement was in effect at the time the Articles were downloaded. But Defendants have not offered any evidence that the individuals who downloaded the Articles worked for Ingenix and were covered by its license or that the Articles were downloaded through any other authorized means.

Nor is it unfair in these circumstances to place the burden of discovering the identities of the individuals who downloaded the Articles on Defendants. Not only are Defendants in the best position to know such information, Ingenix was obligated to use “reasonable efforts” to prevent unauthorized use (Agreement § 3.2), which should include keeping track of the identities of those individuals who access ScienceDirect from the Ingenix IP Address.

Full decision below:

Elsevier v United Health Group SDNY

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100 Most Influential Copyright Law Twitterers - Source Twitalyzer

What do Kevin Spacey @kevinspacey, "Thought Leader" Chelsea Handler @ChelseaHandler, Shaq @the_real_shaq, a copyright librarian from Minnesota @CopyrightLibn and I have in common? We are all on Twitalyzer's top influencer list. @raydowd shows up at number 64, you can see the lists by viewing the image files below.

Note @mgeist at number 20 -very influential Canadian copyright law professor Michael Geist who is opposed to ACTA.   Almost 13K followers on Twitter!   According to Twitalyzer, he has zero engagement and is on over 1,200 lists.

I am heartened to see that @lupefuentesxxx has more influence, impact, velocity and clout in copyright law than I do, but that Twitalyzer ranks me as being more generous.

0.3% Influence
0.6% Impact
50.0% Engagement
4.5% Velocity
23.5% Generosity
100.0% Signal
1.2% Clout
327 Followers
99 Following
36 Lists

Check out top copyright law blogs here.

Top intellectual property law blogs here.


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Oprah Winfrey Wins Copyright Battle Over Chubbiest US President

In Harris v. Winfrey, 2011 WL 1003807 (E.D.P.A. March 18, 2011), a federal district judge dismissed a claim against Oprah Winfrey but denied sanctions under Rule 11 of the Federal Rules of Civil Procedure.   Copy of motion for sanctions here.  The allegation was that Oprah took materials from a book "How America Elects Her Presidents" (I could not find this book on Amazon).   Plaintiff mailed copies of his book to Oprah, trying to get on her show.   A review of the transcript showed that the only question on Oprah's show that had any similarity to the book was a question of who was the heaviest president.  Answer:  William Howard Taft.   From the decision:

Copyright law protects only an author's original expression; historical facts and information in the public domain are not copyrightable. Id. at 547-48 (“[N]o author may copyright facts or ideas.”); see also Video Pipeline, Inc. v. Buena Vista Home Entm't, Inc., 342 F.3d 191, 199 n. 5 (3d Cir.2003) ( “[C]opyright protection does not include facts and ideas, but only their expression.”). There is “thin” copyright protection for an author's choices as to the presentation of factual matter. Feist, 499 U.S. at 348. This protection, however, is limited to the author's original, creative contributions, since copyright “protects only the elements that owe their origin to the compiler-the selection, coordination, and arrangement of facts.” Id. at 359. In Feist, for example, the Supreme Court refused to extend copyright protection to a utility company's aggregation of telephone directory information, holding that neither the “raw data” nor the manner in which it was presented qualified as original. Id. at 361.



The material plaintiffs seek to protect here is not original. Plaintiffs argue that Winfrey infringed Harris's copyright in his booklet by referring to an historical fact, President Taft's weight. (Compl.¶ 21.) Winfrey's use of this fact, even if she learned it from Harris's booklet, does not infringe any copyright Harris may have held. This information is not original to Harris, but rather is a piece of “raw data” that preexisted Harris's booklet and is available from numerous external sources.


Plaintiffs also argue that Oprah infringed the manner in which the facts were presented by copying verbatim the way in which Harris “framed the questions.” (Pls.' Resp. to Defs.' to Mot. Dismiss 5.) While the two versions of Harris's booklet presented to the Court do have some hallmarks of originality, neither contains any material in question format. Thus, the framing to which plaintiffs refer, even if copyrightable, is not implicated in this case.


State law claims of unjust enrichment, conversion and tortious interference were dismissed as preempted.    More on Rule 11 sanctions here.  More on preemption here.

Chubbiest US President - William Howard Taft - Public domain image courtesy Wikimedia Commons

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Declassified Swiss Government Report Shows Traffic of Nazi Looted Art To Museum of Modern Art (Updated)

Link to image in St. Louis Commerce, full article here

A declassified Swiss government report written by former Pulitzer Foundation director Laurie Stein shows that Nazi looted art passed through Switzerland to arrive at the Museum of Modern Art in New York.

As set forth in Laurie Stein's report, Curt Valentin, August Klipstein, and Karl Buchholz were key players in this traffic with Alfred Barr.   MoMA has "the highest concentration of degenerate art from Germany"..... Alfred Barr "did not shy away from buying confiscated art through American-based commercial dealers such as [Curt] Valentin."  (pp 11-12).

Hitler's Swiss Dealer - August Klipstein of Gutekunst & Klipstein, now Galerie Kornfeld

Laurie Stein just chaired a panel in Vienna on Alfred Flechtheim, one of the Weimar Republic's leading art dealers whose gallery was Aryanized by SA officer Alexander Voemel shortly after Hitler took power in 1933.   More on Alfred Flechtheim here, Picasso's Jewish Dealer here, Flechtheim's Nose here, Amicus brief in Grosz v MoMA here, Flechtheim's Portrait By Belling here, Museum directors should be prosecuted for concealing stolen art here .

American museums continue to resist inquiries into the stolen works in their collections.

For more, read below.
Stein Pyritz - Swiss Government Report



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Fair Use Doctrine Dead? A Fair Use Fridays Moment of Silence for Richard Prince

We gaze in awe at the work of Richard Prince.  This photograph of a Marlboro Man advertisement taken by another photographer broke world auction records for a photograph.  Story here.   You can see that Richard Prince claims a copyright in the photograph that he "appropriated" from Jim Krantz.

My post earlier this week here on Patrick Cariou winning his lawsuit against Richard Prince got the most hits of any post I have ever made on this blog, and in a very short period of time.

The entire contemporary art community will be BLOWN AWAY by Judge Batts' decision denying Prince's use the protection of the fair use doctrine.   This challenges an entire category of art known as appropriation art.

L.H.O.O.Q. by Marcel Duchamp

Others are delighted at Prince's discomfiture.   I am troubled.   Fine art, truly fine art in an art gallery, is a place where a copyrighted work becomes a fetish object, a tribute, a decontextualized thing revealing a new meaning.   The urinal of Marcel Duchamp.   The Brillo Box of Andy Warhol.   Both utilitarian objects made by others and fetishized by the artists.

And look at L.H.O.O.Q. - nothing original in the execution, but the Mona Lisa was in the public domain at the time.   Prince is blatantly stealing.   Plagiarists take the words of others and try to make you believe that they have crafted them.   But Prince's cutouts from advertising, porn and outlaw biker magazines never misled the consumer.  

But somewhere, something bothers me about shutting a highly respected fine artist down completely and burning his works when the first sale doctrine would permit him to buy a copy, modify it and resell it.   When the First Amendment lets even repulsive speech be heard and the contemporary art world says it is art, I have a problem with the government burning it.

To me, an original work of fine art properly labeled as such by a new artist is almost pure speech - or in some way pure idea - even if it includes major appropriations.  Things change when the artwork is widely reproduced.  When the consumers are paying tens of thousands for Prince to take something no one is interested in, put his spin on it, and add value.   Prince's "appropriation" added ten million dollars worth of value to a pile of books.   Everyone knew he didn't create the original.

This is not a question of consumers being defrauded, these are wealthy ultrasophisticates on the cutting edge who are the purchasers - surrounded by the top art advisers and critics -if these people feel that Prince's value added is that great, what is the harm in letting them indulge, as long as Prince legally purchased the original books?   In fact, Prince's prices will probably soar - scarcity and scandal drive art prices up.

From a semiotic perspective, isn't Prince simply holding up a mirror to people who may not want to look at themselves or their art as art in the hands of another?   And if your message is mirror-like, is it less valid?   And if you don't have the verbal skills to articulate what you are doing, is that any less a mirror?

Richard Pettibone's Andy Warhol's Black Bean Soup (1968) (1987)

Damien Hirst Hymn

Vik Muniz, Double Mona Lisa, After Warhol (Peanut Butter & Jelly)

Papeschi's NaziSexyMouse

Or if Prince adds a subtle layer of meaning by decontextualizing the original, so what?  Who is hurt?  When Jacob the Jeweler wants to put extra diamonds on your Rolex, is society really hurt by this?

Brillo shouldn't take the boxes back from Warhol, the Keith Haring subway sketches that were illegal now rightly sell in the galleries, Duchamp probably stole the urinal.    Prince's "thefts" are not so far off those marks.

Here are some of the originals compared with infringements:

Patrick Cariou's reaction?   "Destroying art if you don't like it, that's something you have to think extremely deeply about."  Patrick Cariou to ArtInfo/HuffPost, full interview here.


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NY CT of Appeals To Second Circuit: Copyright Owners Suffered Injury in New York For Long Arm Jurisdiction

Penguin Group (USA) Inc. v. American Buddha (N.Y. Ct. Appeals March 24, 2010), the New York State Court of Appeals decided an issue of extraordinary importance:  whether someone offering copyrighted works in another state could be sued in New York if the copyright owner is located in New York, even if no sale took place in New York?

You can read my earlier post Copyright and the Story of the Long-Armed Buddhist Penguin here.

My post on the question being certified to the New York Court of Appeals: The Long Arm of New York Copyright Holders: Can New York Copyright Lawyers Sue America Without Leaving Manhattan? is here.

As readers of the Copyright Litigation Blog know, copyright cases overwhelmingly take place in federal court.  That is because copyright law presents "federal questions" and the doctrine of complete preemption applies in copyright law.  "Preemption" means that states cannot make laws inconsistent with copyright laws or that govern rights that are equivalent to copyright. It's not an easy test.  More on preemption here.

So how did a copyright case get to the New York State Court of Appeals?   Well, when legal questions at the appellate level arise that require a federal circuit court of appeals to determine an unsettled area of state law, the circuit court might "certify" or ask the state's highest appeals court to answer the question.

So the Second Circuit Court of Appeals heard an appeal from a district court ruling that denied "long arm jurisdiction" over American Buddha, a Washington State based online service that uploads Penguin books and claims that it is permitted by the fair use doctrine to give away free copies online to its members.

Instead of determining the question of whether New York's long-arm statute applied to American Buddha, the Second Circuit "certified" the question to the New York Court of Appeals.   The question certified was:

In copyright infringement cases involving the uploading of a copyrighted printed literary work onto the Internet, is the situs of injury for purposes of determining long-arm jurisdiction under N.Y. C.P.L.R. § 302 (a) (3) (ii) the location of the infringing action or the residence or location of the principal place of the copyright holder?
To understand why this matters, we need to understand that federal courts are courts of limited jurisdiction.  They can only exercise jurisdiction over matters when a statute says so.  Usually over matters in their judicial district.   For a court to answer a legal question, it must have 1. subject matter jurisdiction and 2. personal jurisdiction over the person whose rights are being decided.

In American Buddha, the "subject matter" is copyright, which is governed by the Copyright Act thus satisfying the test for subject matter jurisdiction (more on subject matter jurisdiction here).

But how can a federal court decide a matter outside the confines of its judicial district?  When does a non-resident of New York acting outside New York state subject herself to jurisdiction in New York?  The answer is that the federal court may exercise "long arm" jurisdiction to the extent that the state in which it sits permits.

CPLR 302 provides in part:

§ 302. Personal jurisdiction by acts of non-domiciliaries. (a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:

1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or

2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or

3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he

(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or


(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or

So the question answered by the New York Court of Appeals was whether copyright infringement by using the internet is an "act without the state causing injury to person or property within the state."

They said "yes".   This case is of extraordinary importance to the New York copyright bar specifically and to intellectual property practitioners in general.   But both the Second Circuit and the New York Court of Appeals specifically punted in a tantalizing footnote as follows:

The Second Circuit also stated that "[t]here is a possible question at the threshold that neither the district court nor the parties have addressed and which we do not here decide: whether a copyright -- in and of itself an intangible thing -- has a physical location for jurisdictional purposes and, if so, what that location is" (609 F3d at 36 n 4). The Second Circuit resolved to "accept for the purposes of this appeal the district court's implicit conclusion that copyrights have a location and that their location in this case is in New York State" (id.). We, too, accept this characterization in answering the certified question.

Now a New York lawyer can sue anyone in the world who infringes on the web by buying a subway token?  Not so fast, says the NYS Court of Appeals:

Finally, contrary to American Buddha's assertion, our decision today does not open a Pandora's box allowing any nondomiciliary accused of digital copyright infringement to be haled into a New York court when the plaintiff is a New York copyright owner of a printed literary work. Rather, CPLR 302 (a)(3) (ii) incorporates built-in safeguards against such exposure by requiring a plaintiff to show that the nondomiciliary both "expects or should reasonably expect the act to have consequences in the state" and, importantly, "derives substantial revenue from interstate or international commerce." There must also be proof that the out-of-state defendant has the requisite "minimum contacts" with the forum state and that the prospect of defending a suit here comports with "traditional notions of fair play and substantial justice," as required by the Federal Due Process Clause (International Shoe Co. v Washington, 326 US 310, 316 [1945] [internal quotation marks and citation omitted]; see also World-Wide Volkswagen Corp. v Woodson, 444 US 286, 291-292 [1980]). These issues are beyond the scope of this certified question and their resolution awaits further briefing before the federal courts.
This case is an extraordinary victory for Penguin and Richard Dannay, who has a string of extraordinary victories behind him.

Full decision below:
 Penguin Group v American Buddha  http://www.dunnington.com/rdowd_bio.html
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Fair Use Fridays: You Are Listening To New York - Ambient Music and Live Police Radio Feed

Mixture of police radio and ambient music here, beautiful .... thanks to BoingBoing's post here.

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Top Copyright Lawyers - Join Copyright Twibes

Top copyright lawyers should join Copyright Twibes - another way to be social and see who is out there and active.

For the moment, Copyright Litigation Blog is at the top, but it won't be long until serious copyright tweeters join!

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SDNY Federal Bar Association CLE Program March 24: Due Process Limits to the Exercise of Personal Jurisdiction

The Federal Bar Association is sponsoring a CLE program on March 24 at the U.S. District Court - Southern District of New York - The Due Process Limits to the Exercise of Personal Jurisdiction.  Click on flyer below.

My partner Luke McGrath and Professor Robert Pfeffer will present.
Supreme Court Round-Up_FLYER

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SDNY - Google Books Settlement Rejected, A Waste for the Blind

Hon. Denny Chin - Photo Sue Kim Wikimedia Commons

Below is the lengthy decision by Circuit Judge Denny Chin rejecting the Google Books class action settlement.  Class actions are governed under Rule 23 of the Federal Rules of Civil Procedure.  Rule 23 derives from the common law writ of a "bill of peace" -  that is - to settle a person's rights as against the world and to quiet title.   But Google didn't get any peace and quiet, even though Judge Chin acknowledged that under the applicable legal analysis, many aspects of the settlement were fair and acceptable.

But as a legal matter, Judge Chin had the most trouble with two aspects:  1. settling future claims and 2. the high number of opt outs.   On the first point, Judge Chin simply concluded that any settlement that purported to transfer or limit the rights of copyright holders such as owners of orphan works would be better handled by Congress.   This is the aspect of the case that will be the most troublesome to Google - if the court is powerless to award relief prospectively, they can't go back to the drawing board and just settle.  Judge Chin's language regarding Google's copying of the books is hostile and he appears to accept the sanctity of an author's right to leave a book unread.

Since there are rights to make fun of, to criticize, to comment upon copyrighted works once an author puts a book out into commerce, I wonder that Google has not developed some stronger arguments than what I have seen.   Under the common law, if you let the land lie fallow and someone else plowed it, you got it under the doctrine of adverse possession.    See also the doctrine of waste.  Query whether the public - the ultimate beneficiaries of the copyright reversionary interests (into the public domain) is damaged by a failure to exploit literary works, particularly scholarly non-fiction that have already been published.

The decision also concedes that the blind, who have no other access to out of print or print-only books, are hurt the most by the rejection of the Google settlement, and the conflict between academics, who want their works accessed, and their publishers, who want to be paid.

Soon we will see the Google lobbyists flock to Washington, DC.   The blind should be leading. 

Chapter 11 of my Copyright Litigation Handbook (West 2010) covers class actions.  Decision link below:

Authors Guild v Google 03 22 2011


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Federal Bar Association Tackles Issue of Judicial Vacancies

The Federal Bar Association tackled the issue of judicial vacancies in a February 28 program at the Brookings Institute.   Video, audio and transcribed materials covering the proceedings here and here.   When there are not enough judges, cases take longer and become more expensive.

Join the Federal Bar Association if you are an attorney who works in the federal government or practices before the federal courts.

 Sample video from the FBA/Brookings program:

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Art Litigation: Artist Richard Prince and Gagosian Gallery Lose Copyright Infringement Case

Work from Prince's infringing series incorporating Cariou's photographs



In Cariou v. Richard Prince, Gagosian Gallery, et al 08 CV 11327 (S.D.N.Y. March 18, 2011)(Batts, J.), the court issued a decision finding Richard Prince's artworks to be copyright infringements.   Prince, known as an "appropriation artist" took Cariou's photographs from a book called Yes, Rasta.

The opinion is noteworthy and will basically EXPLODE the contemporary art world, which has invested heavily in Richard Prince and his appropriations. The opinion notes that Prince thinks his artworks are pretty meaningless, but the owners of his artworks will probably mobilize art and cultural critics to supply a deeper meaning pronto.    Perhaps in future litigation Prince will become more articulate about the nature of his artistic vision, as did artist Jeff Koons whose early losses have now been turned into wins based in part by affidavits certifying that his art does indeed have a message more pleasing to judicial ears.

More on this case, including images here.   More on appropriation art here.  A Photo Editor opines here. 

Clancco is outraged  delighted that the decision includes an order to impound and destroy Richard Prince's artworks, which Larry Gagosian made over $10 million dollars in selling, read Clancco here.

Does the price of a Prince work go up after this decision?

Here is the decision:

Cariou v Richard Prince

March 22, 2011 update:

More commentary from Ruling Imagination here.

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Fair Use Fridays: Twitter Parody, Mayor Emanuel and the Fair Use Doctrine

Parody and satire are types of free speech that the First Amendment should protect.   For each type of speech, enough has to be borrowed from the original to make the joke or criticism funny or biting.

Above, an example of a parody of Twitter, full example Twitter as It Really is here.   The real name, logo and layout of Twitter is used, but the tweets and entries are faked.

The First Amendment protects free speech.  The fair use provision of the Copyright Act 17 USC 107 is designed to resolve the tension between the First Amendment, which protects free speech, and the Copyright Act, which is designed to abridge certain forms of speech (i.e., there is no right to make the speeches of others).  

One of the more interesting used of Twitter was the infamous Mayor Emanuel Twitter account:

As you can see, the parodist stole a political candidate's identity, adopted his trademark use of a certain four letter word, and achieved over 47,000 followers.   Check out Mayor Emanuel here.   The punk rock journalist who was the impersonator revealed here.    Great analysis of the numbers relating the Mayor Emanuel here.

Good-natured winner Mayor Rahm Emanuel pledged $5,000 to his impersonator's charity of choice here.

Here is the text of 17 USC 107 in italics:

§ 107. Limitations on exclusive rights: Fair use40



Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Courts analyze the four factors bolded above to test whether a use of someone else's copyrighted work is "fair use".

A definition of "parody" from Wikipedia:

A parody (pronounced /ˈpærədi/; also called send-up, spoof or lampoon), in contemporary usage, is a work created to mock, comment on, or make fun at an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation. As the literary theorist Linda Hutcheon (2000: 7) puts it, "parody … is imitation, not always at the expense of the parodied text." Another critic, Simon Dentith (2000: 9), defines parody as "any cultural practice which provides a relatively polemical allusive imitation of another cultural production or practice." Often, the most satisfying element of a good parody is seeing others mistake it for the genuine article.

Parody may be found in music, art or culture, including literature, music (although "parody" in music has an earlier, somewhat different meaning than for other art forms), animation, gaming and cinema.
The writer and critic John Gross observes in his Oxford Book of Parodies, that parody seems to flourish on territory somewhere between pastiche ("a composition in another artist's manner, without satirical intent") and burlesque (which "fools around with the material of high literature and adapts it to low ends"). [1]

Wikipedia's definition of satire:

Satire is primarily a literary genre or form, although in practice it can also be found in the graphic and performing arts. In satire, vices, follies, abuses, and shortcomings are held up to ridicule, ideally with the intent of shaming individuals, and society itself, into improvement.[1] Although satire is usually meant to be funny, its greater purpose is often constructive social criticism, using wit as a weapon.

A common feature of satire is strong irony or sarcasm—"in satire, irony is militant"[2]—but parody, burlesque, exaggeration, juxtaposition, comparison, analogy, and double entendre are all frequently used in satirical speech and writing. This "militant" irony or sarcasm often professes to approve (or at least accept as natural) the very things the satirist wishes to attack.
Satire is nowadays found in many artistic forms of expression, including literature, plays, commentary, and media such as lyrics.

Courts, content owners and lawyers sending out cease and desist letters often do not appreciate the humor displayed by the would-be parodist or satirist.

The Chilling Effects website was created to catalog cease and desist letters sent to people by lawyers demanding that they cease infringing activity.

"Chilling effect" is a term of art from First Amendment case law referring to activities that "chill" free speech.

More on the fair use doctrine in copyright law here.   Posts labeled "Fair Use Fridays" deal with problems and examples of conduct which may fall on either side of the fair use doctrine.

Virtually all commentators find case law interpreting the fair use doctrine to be subjective and problematic, some find it too restrictive, others find it too liberal, others find it arbitrary and incomprehensible.


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Fair Use Fridays: Stealing Ideas - Inception Video

Inception in a 60-second video above, courtesy BoingBoing. Inception, a film about stealing and planting ideas, having its title and "idea" stolen by a video. Video by Austrian Wolfgang Matzl.

More on copyright law's fair use doctrine here.


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Preliminary Injunction Granted in SDNY - Internet Retransmissions of Television Broadcasts Infringing

Image from http://www.ivi.tv/ viewed 3/13/2010

In WPIX, Inc. v. ivi, Inc. 10 Civ. 715(SDNY Feb 22, 2010), Judge Naomi Reice Buchwald granted a preliminary injunction under the Second Circuit's standard set forth in Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010). I analyzed the Salinger case here.   It's always fun to see whether a preliminary injunction has affected a litigant's operations, but as you can see from the image from http://www.ivi.tv/ above, ivi.tv is still going great guns.

ivi TV is a web-based service that took television broadcasts from around the country and let you watch them on your computer.   Sounds great, but ivi claimed that it was entitled to do so under 17 USC 111 which is a provision giving "cable systems" the right to retransmit broadcasts under compulsory licenses.  Judge Buchwald noted that such a license would cost about $100 per year.

The opinion is long and sets out the history of compulsory licensing of cable retransmissions, if you care for that type of thing.   Noteworthy for plaintiffs is that Judge Buchwald notes at one point that a plaintiff's inability to show irreparable harm is indeed proof of irreparable harm.


It appears obvious to us that defendants have unwittingly demonstrated why the harm they present to plaintiffs is irreparable. There can be no dispute that by taking away viewers from sanctioned entities which compensate or otherwise obtain permission from plaintiffs for the use of their works, defendants are intruding on plaintiffs’ copyrights and taking away business opportunities. This being the case, one might wonder why it is that plaintiffs have not “submitted” specifically identifiable, enumerated, and quantified harms, as defendants seem to believe is necessary. The logical conclusion is that plaintiffs have not made such “submissions” because they cannot specifically demonstrate or quantify the harm that ivi has caused. There is no way to know how many people have used ivi rather than sanctioned methods to watch plaintiffs’ programming, or how many people have used ivi to watch programming that should not have been available in their geographic area. Furthermore, even if we could determine these numbers, we would still not be able to ascertain the precise financial impact on the plaintiffs.


Defendants contend that because plaintiffs cannot specify the harm, it must be speculative. In contrast, we find that it is because the harms are unquantifiable, and [sic] thus irreparable.

For procedure wonks, you will note that the decision involves a first-filed action in Washington State.   The action before Judge Buchwald was a second-filed action in New York.    Judge Buchwald correctly deferred to the first-filed judge to determine whether or not the case was an "improper anticipatory filing" which is not entitled to the traditional first-to-file rule.

I cover the first-filed suit rule (which is not so simple), otherwise known as the prior action pending doctrine in the Copyright Litigation Handbook, Chapter 6:  Cease and Desist Letters and Declaratory Judgment Actions.

Link to Judge Buchwald's decision below.

Wpix v Ivi Tv Inc. Sdny Feb 22 2011


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