Copyright

After a year of negotiations with fashion industry members, Senator Chuck Schumer (D-NY) has introduced the Innovative Design Protection and Piracy Prevention Act which would extend copyright protection to design of apparel, footwear, and accessories and protect such works from being copied and reproduced.  To qualify for protection under the proposed Act, the design must be "a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs" and the copy must be "substantially identical" to the original so as to be mistaken for it. The design need not be registered with the U.S. Copyright Office.  The proposed Act provides an exception for home sewers who will be permitted to copy a protected design for personal use or the use of a family member.  If passed, the Bill would provide protection to new and original designs for three years after they were first introduced to the market.

To view the proposed Bill, click here.

A local author named Cynthia J. Clay recently filed a copyright infringement lawsuit alleging that the motion picture Avatar infringes her novel, entitled Zollocco: A Novel of Another Universe.  The complaint, which was filed in the Southern District of Florida federal court, alleges instances of "strikingly similar" copying of portions of the novel, and claims that the name of the novel, Zollocco, was used as a war chant by principal characters in a critical scene in the movie (allegedly "Zha-lah-coooh"). 

The Defendants in the lawsuit include James Cameron and Twentieth Century Fox.  As with any lawsuit alleging copyright infringement, the issues to be determined will include: (1) the Defendants' access to the novel; and (2) the degree of similarity between the accused work and the copyrighted work ("substantial similarity" if access can be proven, otherwise the alleged infringing work must be "strikingly similar").  

The Recording Industry Association of America (RIAA) has prevailed in its copyright infringement lawsuit against LimeWire, one of the largest remaining commercial peer-to-peer services. The Court ruled that LimeWire was liable for copyright infringement because its users commit a "substantial amount of copyright infringement" and the company behind the software "has not taken meaningful steps to mitigate infringement."

RIAA has alleged that at least 93 percent of LimeWire’s file sharing traffic was unauthorized copyrighted material. The RIAA is seeking up to $150,000 per violation, although the final damages have not yet been determined.

Earlier today, the United States Supreme Court granted a request by Costco, the wholesale retailer, to review a federal appellate decision involving the first-sale doctrine under copyright law, in connection with the purchase and resale by Costco of Omega brand watches that were purchased on the gray-market (also known as parallel imports).  In general, the first-sale doctrine allows the owner of a particular copy of a copyrighted work which was "lawfully made" to resell that copy without permission from the copyright holder. 

The Statute of Anne, widely considered the world’s first copyright statute and the precursor to modern copyright law, went into effect on April 10, 1710, thus making this year (2010) the "tricentennial of copyright law."

The Statute of Anne was formally entitled "An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of Such Copies, During the Times therein Mentioned" and was enacted in the United Kingdom during the reign of its namesake, Queen Anne.

Florida-based independent blues label Blues Destiny Records, LLC has filed a lawsuit for copyright infringement  in the U.S. District Court for the Northern District of Florida against Microsoft and Google, and the German file sharing service Rapidshare.  Blues Destiny alleges that Microsoft and Google are liable for contributory and vicarious copyright infringement due to the search functions of Google and Microsoft's Bing, which allow users to search for artist names and album titles and locate websites featuring illegal downloads of Blues Destiny's copyrighted works that are hosted by Rapidshare.

To view the Amended Complaint, click here.

Tuesday, 05 January 2010 18:59

HEAD OVER HEELS

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The French fashion house, Balenciaga Corp. has sued New York shoe company, Steve Madden Ltd. in the U.S. District Court for the Eastern District of New York claiming infringment of its trade dress and copyrights for manufacturing and selling knockoffs of its "Lego" shoe. Interestingly, "LEGO" is a registered trademark of Lego Juris A/S/ Corp.

In testimony before the House Judiciary subcommittee, U.S. Register of Copyrights, Marybeth Peters criticized the proposed agreement between Google and the Author's Guild, which would allow Google to create and maintain a vast digital library of scanned books. Specifically, this settlement would give Google the right to digitize millions of books, including "orphan books" (books for which there is no clear copyright owner), without permission from copyright holders. Consequently, Google would be shielded from liability and would establish a registry that would sell access to books to libraries and individuals. Revenue would be split among Google, authors, and publishers.

Ms. Peter's testimony, which could prove to be a crucial factor in the settlement agreement's fairness hearing on October 7th, argued that this registry created a back-door for Google to get around copyright restrictions by allowing them to sell books without prior author consent. She equated this situation to that of a compulsory license, in which the rights holder is forced to license his/her work to others, as Google would now have the right to display book text and control the sale of downloads. Most importantly however, Ms. Peters claimed that this settlement agreement usurped Congressional authority because only Congress, not the courts, can enact such licenses.

Thursday, 25 June 2009 18:28

CAN DOWNLOADING MUSIC COST $9000 PER SONG

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An order to grant a new trial in Capitol Records, Inc. v. Thomas should pique the interest of both music downloaders and music industry executives alike. A jury found the defendant liable for copyright infringement and awarded $220,000 in statutory damages in connection with the copying of 24 songs. The judge, however, ordered a new trial based on an error in the jury instructions, where the instructions were contrary to the precedent set by the Eight Circuit in National Car Rental System, Inc.  v. Computer Associates International, Inc., 991 F.2d 426, 430-31 (8th Cir. 1993)(requiring an actual dissemination of [sic] copies). In the jury instructions, Chief Judge Davis did not require a finding that the defendant actually distributed the works in question but required only a finding that the defendant made the works available to others to download.

The excessively large statutory award of $220,000, based on the only 24 songs, further compelled the judge to vacate the jury verdict. The judge opined that Congress intended that these large statutory awards deter those engaged in piracy for profit and that “it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit….”   In his order, the judge suggested that Congress should address and amend the Copyright Act for liability and damages in these types of consumer cases. As the internet and advancements in technology increasingly permeate the lives of private individuals, copyright holders may face the unfeasible task of enforcing their rights against all infringing individuals. The courts and Congress must, however, protect the interests of intellectual property holders yet not allow large entities to financially ruin an individual for a seemingly minor offense.

Sebastian Ohanian Contributed to this Entry.

    In 2005, a class action lawsuit was filed by the Author’s Guild against Google Book Service which alleged that Google had violated copyright law by digitizing millions of works without the consent of the authors. In late 2008, Google turned the class action lawsuit on its head by announcing that it reached a settlement with several major publishers which would end the copyright lawsuit. The settlement agreement takes the class action paradigm to the next level by potentially creating a licensing agreement between Google and individual copyright holders of all works published before January 5, 2009. The settlement, in so doing, also gives Google exclusive rights to orphaned works, which are out of print works whose authors cannot be found. The settlement of this case has far reaching consequences because pursuant to the settlement agreement, copyright owners, irrespective of whether their works were digitized, can opt-in to the settlement agreement.  Nevertheless, the settlement agreement was fast tracked with an initial deadline for opting-in of May 5, 2008. However, given the potential breath of the settlement agreement a group of authors requested an extension. The Court granted a four month extension so the new deadline to opt in is nowSeptember 4, 2009. 
        The agreement, available at  http://books.google.com/booksrightsholders/agreement-contents.html, is well crafted to entice the individual copyright owner with the promise of exposure and royalties, and suggests that the original authors will retain their rights to sell the print versions of their works. While it may be a good idea for certain individual copyright owners longing for greater exposure or for authors of out of print materials who are currently not receiving any royalties for their works, the long term effects of the agreement strike at the core of author’s rights. This is because the monopoly over works created by copyright protection was intended to safeguard authors, and thereby, foster future works. This proposed settlement, however, could take this individual monopoly to a new level and in so doing create a licensing monopoly on copyrighted works. Its supporters maintain that the settlement will provide centralized digitized access to copyrighted works which will not compete with modern publishing. Nevertheless, Reuters, the Wall Street Journal and the New York Times recently reported that the Justice Department has begun an antitrust inquiry into the long term implications of the settlement agreement.  The Justice Department has not confirmed the same. 
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