Judge Provide Outlines of Possible Fair Use Defense for Peer-to-Peer File Sharing

The Digital Media Lawyer Blog:  “Participants in the P2P world have long hoped that courts would recognize that at least some forms of file sharing constitute fair use. In a recent opinion in the Tenenbaum file-sharing case, Judge Gernter of the District of Massachusetts enumerated several unauthorized uses of copyrighted music thinks might constitute a fair use — including file-sharing under certain limited circumstances. While Judge Gertner’s opinions have limited precedential value, they may point to some pathways to legitimacy for the oft-maligned P2P industry.”

The case is Sony BMG Music Entertainment v. Tenenbaum, D. Mass., Memorandum and Order (Dec. 7, 2009).

The YouTube Approach to Copyright Infringement

Digital Media Lawyer Blog:  “YouTube has been amassing an impressive list of music industry giants who have agreed to license their content for performance on its site. Recent additions to the fold include Warner Music and the UK Performing Rights Society.  These are simply two more examples of the recent warming trend in the music and video copyright holding community’s attitude toward YouTube.  I recently attended a meeting of the California Copyright Conference which featured a panel appearance by Zahava Levine, YouTube’s knowledgeable and enthusiastic Chief Counsel.”

Installation of Modified Apple Software on Cloned Computers Constituted Copyright Infringement

Digital Media Lawyer Blog:  “There has been a lot of recent press touting manufacturers of MAC clones. Clone manufacturers attempt to unlock the tie between Apple software and hardware by selling non-Apple hardware that include copies of Apple’s much-loved software.   However, because Apple does not sell copies of its software separately from MAC hardware, the only way for this business to work economically is for the cloner to copy the MAC software and then download the software onto the clone.  This is an action that necessarily would seem to violate Apple’s rights to control the copying of its software.  And so found a court in a recent decision in favor of Apple. See Apple, Inc. v. Psystar Corp.”

First Sale Doctrine Protects Reseller of Promo CDs

Digital Media Lawyer Blog:  “Living on the west side of Los Angeles puts me smack in the middle of the entertainment industry.  I have often seen promotional copies of DVDs of TV shows and feature films or music CDs being exchanged at parties, and even seen stacks of these being left out by the side of the street for trash pickup.  Studios and labels don’t want this content distributed to the public because early distribution can foul up marketing campaigns, and because promotional versions of content may be remixed or reedited.  But can the studios and labels prevent recipients from giving away or even reselling these lightly-controlled promotional discs?  A June 2008 case said ‘No.’   The case is UMG Records, Inc. v. Augusto.”

Will Secret Copyright Treaty Restrict Your Digital Rights?

MacUser:  “Most Americans expect that their laws are only passed after some period of public debate between Republicans and Democrats or their news-channel proxies. However, the Anti-Counterfeiting Trade Agreement (ACTA) may be an exception to this rule, and if it is signed, many United States laws concerning the Internet and ownership of data may become substantively different.  Various nations (including Australia, Canada, the European Union, Japan, the Republic of Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the U.S.) are said to be negotiating ACTA now, with the goal of passing a joint treaty to protect intellectual property sometime in 2010. I would like to tell you much more about what’s being written into the ACTA bill, but I can’t: the contents of the treaty are secret.”

See also “Stopping the ACTA Juggernaut.”

How can such a radical proposal legally be kept so secret from the millions of Net users and companies whose rights and freedoms stand to be affected? Who decides what becomes the law of the land and by what influence? Where is the public oversight for an agreement that would set the legal rules for the knowledge economy? And what can be done to fix this runaway process?

Brooklyn Artist Claims Bratz Dolls Infringe Copyrights

Law.com:  “Litigation over the Bratz doll ain’t over yet. The last time we checked in on the big-headed doll controversy, Mattel had won a sweeping injunction against MGA Entertainment in a copyright suit that effectively forced MGA to shut down its Bratz business. The injunction followed a jury’s award of $100 million to Mattel. You’ll recall in that case Mattel had alleged that the Bratz doll creator — Carter Bryant — had originally conceived of the idea when he was an employee of Mattel, before he went to work at MGA.  Now enters artist Bernard Belair, whose lawyers at Dickstein Shapiro have filed a copyright suit against both MGA and Mattel alleging that the Bratz dolls infringe Belair’s copyrights.”

Obama Hope Image Subject to Weird Copyright Lawsuit

Wall St. Journal:  “The legal saga over the red, white and blue ‘hope’ image of President Obama has taken an odd twist. Los Angeles street artist Shepard Fairey now is changing his story about which Associated Press photo he used to create his well-known image during the presidential race.”

For more background, see “Obama Poster Case Is Rematch for Ex-Bingham Partner Falzone and O’Melveny’s Cendali” and “Kirkland Lawyers Catch Fairey With Hand in Copyright Jar.”

Web Designer & Customer Liable for Copyright Infringement

Digital Media Law Blog:  “When a website designer and host and its customer work together to create a website which — oops! — contains unlicensed copyrighted images, who is liable for the infringement? A recent case found that the answer was ‘Both,’ holding the web designer liable for direct infringement and its customer liable for vicarious infringement.  See Corbis Corp. v. Nick Starr, d/b/a Master Maintenance, N.D. Ohio No. 3:07CV3741 (September 2, 2009)

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