Earlier today the United States Supreme Court issued its decision in American Broadcasting Companies, Inc. v. Aereo, Inc., a case that required the Court to determine whether Aereo infringed copyrights of the plaintiffs by selling its subscribers a service that allowed them to watch television programs over the Internet at about the same time as the programs broadcasted the programs over the air. In a 6 to 3 decision authored by Justice Stephen Breyer the Court found that Aereo’s actions did constitute copyright infringement. A dissent was written by Justice Scalia and joined by Justices Thomas and Alito.
Using an all too familiar “logical” construct, the Supreme Court determined that what Aereo did was not a public performance within the meaning of the Copyright Act, but was still infringement because it was a public performance. This construct, which often appears in patent cases, is logically absurd, but without anyone to review the Court’s decisions they seem completely comfortable rendering internally inconsistent and logically flawed decisions, particularly when dealing with intellectual property.
The Supreme Court likely struggles with intellectual property because the Court is simply not comfortable with technology. In the past I have made much of the fact that the Supreme Court does not use e-mail, I’ve also pointed to the fact that during the KSR oral arguments Justice Scalia called the entire area of patent law “gobbledegook.” But we don’t even need to go beyond the text of the written decision to understand the Court’s true naiveté. Indeed, at one point in his opinion Justice Breyer asked why the facts actually matter.
Breyer asked: “why should any of these technological differences matter?” Aside from the fact that intellectual property issues are by their very nature extraordinarily dependent upon technology, technological reality matters because under our system of law cases are supposed to be decided based on fact, not myth or superstition.
Recently I was driving around between appointments and flipping through radio stations on Sirius XM. I came across a song that at first I thought was the summer hit by Robin Thicke and Pharrell Williams – Blurred Lines. But that wasn’t the song at all, rather is was Marvin Gaye’s Got to Give it Up. I knew it would only be time before reading about some kind of settlement between Marvin Gaye’s family and Thicke/Williams, but Robin Thicke and Pharrell Williams suing the family of Marvin Gaye, asserting that they are not infringing the copyright in Got to Give it Up would be hilarious if it weren’t so utterly ridiculous. See Federal Complaint filed in Williams v. Bridgeport Music Inc.
First, there is absolutely no doubt from a legal perspective that Thicke and Williams are infringing the work of Marvin Gaye. You can verify this for yourself by listening to the two songs. The similarity is overwhelming.
Under the DMCA or Digital Millennium Copyright Act, all content published online is protected under copyright law, regardless of it having the copyright symbol on the page. Any content, no matter the form it takes (whether digital, print, or media) is protected under copyright law. The prevention of copyright infringement requires constant vigilance; even using your own material in two different places and plagiarising unintentionally can land you in trouble.
Why It Is Important to Protect Your Online Content from Being Copied:
Copyright is important in all forms of media because it provides legal ownership over the work someone produces. This allows the author, artist, etc. control over how their work is used. Without copyright laws, content could be stolen from one creator and used by someone else; thus, a profit could be made by someone other than the creator from content that they put no effort into. Since it is the copyright holder’s responsibility to ensure that a copyright has not been infringed upon, it is vital to keep a close eye on your content and how it is used by others on the internet.
Phil McGraw photographed for the cover of Newsweek magazine by Jerry Avenaim.
Dr. Phil McGraw’s company, Peteski Productions (Peteski), recently filed a lawsuit against Gawker Media (Gawker) for copyright infringement. It appears that Deadspin.com (Deadspin), which is owned by Gawker Media, posted portions of the doctor’s exclusive interview with the man behind the Manti Te’o girlfriend hoax online before the show actually aired in various parts of the country.
Deadspin originally broke the story, including the hoaxster’s catfishing scheme; however Dr. Phil was given an exclusive interview with hoaxster, Ronaiah Tuiasosopo. Dr. Phil’s interview with Tuiasosopo was a two-part episode, with a cliff-hanging first episode. But Deadspin took away Dr. Phil’s thunder (and seemingly lowered his ratings) by showing the “answer” to the cliffhanger online prior to Dr. Phil airing in most markets.
The National Press Photographers Association (NPPA) recently announced that it is joining the other cast of characters who have filed a class action complaint against Google, claiming (as the other plaintiffs have) that Google’s “Google Book Search” program violates the copyrights of several photographers and visual artists. The other plaintiffs include individuals Leif Skoogfors, Al Satterwhite, Morton Beebe, Ed Kashi, John Schmelzer, Simms Taback and Gail Kuenstler Living Trust, Leland Bobbe, John Francis Ficara and David Moser, and associations The American Society of Media Photographers, the Graphic Artists Guild, the Picture Archive Council of America, the North American Nature Photography Association, the Professional Photographers of America, and American Photographic Artists.
So what brought on this class action suit in the first place? Well, it would seem that whenever someone conducts a search using the Google Books program, that search brings up images that are contained in both books and periodicals–images that are copyright protected. And apparently, this isn’t the first time Google Books has been under fire in litigation–even the writers of some of the books and periodicals that come up when using the search have also claimed copyright infringement.
In a recent brief ruling, Manhattan Federal District Court Judge Jed Rakoff dismissed Edward White’s lawsuit against legal research companies LexisNexis and Westlaw. An opinion had not been issued at the time of the ruling; however, the judge noted that the reasons for his dismissal would be set forth at a later date.
In February of 2012, Edward White and Kenneth Elan (both of whom are attorneys) filed a class action complaintagainst Westlaw, which is owned by Thomson Reuters Corp., and LexisNexis, which is owned by Reed Elsevier, PLC, claiming that the companies actively participated in “wholesale unlawful copying of attorneys’ copyrighted work, bundled those works into searchable databases, and sold access to those works in the form of digitized text and images for huge profits.” White’s and Elan’s plan was to represent two specific classes of attorneys–those who had registered their works with the U.S. Copyright Office (as White had) and those who had not (as in the case of Elan). A few months later, though, Judge Rakoff threw out Elan’s claim, stating that “completing registration or pre-registration is a prerequisite to filing a claim.”
Charles Caleb Colton once said, “Imitation is the sincerest form of flattery.” But when the fruit of one’s labors are copied without regard, while flattering recognition that what has been created is worth taking, the taking causes real damage and calls into question whether further creation is economically viable.
Indeed, imitation can be quite annoying, particularly when that imitation masquerades as infringement of intellectual property rights. Such a taking was something that couldn’t be tolerated in the case of Tetris Holding, LLC and the Tetris Company, LLC vs. Xio Interactive, Inc.
As it turns out, Tetris Holding was not flattered at all about the infringement, took the fight to the infringer and ultimately prevailed. Tetris certainly was not the first video game to be imitated, and unfortunately it won’t be the last, but the outcome of this copyright and trade dress infringement lawsuit screams — Copycats Beware!
I am pleased to announce that in January 2013 we had our biggest month ever in terms of traffic to IPWatchdog.com. During the last Quarter of 2012 we averaged 89,260 unique visitors per month. In January 2013 we had 101,922 unique visitors, which represents growth of 14.2%.
Readers have probably noticed that we are publishing more articles, and we are lucky to continue to have a growing number of periodic guest contributors and regular featured columnists as well, which likely accounts for some of this increased traffic. However, another thing that almost certainly accounts for this substantial jump in visitors is the fact that in early January 2013 we made the decision to disable copying and pasting from IPWatchdog.com. This has caused some to become quite agitated with us, with more people than you might expect writing to tell us that if they are no longer able to copy and paste our articles then they will no longer read IPWatchdog.com.
The White House website explains that it is the right of the people to petition the government, a right that is guaranteed by the First Amendment of the United States Constitution. Of course, the idea of petitioning the President is not something that is new, but the ability to use the Internet to create an online petition that may be considered and responded to by the Federal Government is indeed quite new. Not surprisingly, the Obama Administration, known for savvy use of the Internet both in governance and campaigning, pioneered this unique approach to making government reachable by the masses.
With this in mind, last week, a petition was created to petition the White House to take down the website Jerk.com. To date the petition has unfortunately not received many votes. Earlier today I was the 28th e-signer of the petition. My guess is that this is due to lack of publicity more so than anything else. Once people learn of the petition my guess is that the signatures will accumulate quickly, but will there be enough time to reach the 100,000 signature threshold by February 22, 2013?
The first order of business, however, is to get the required 150 signatures so that the petition will be searchable on WhiteHouse.gov. To view and/or sign the petition visit We the People.
Love her or hate her, Lady Gaga certainly provides good fodder for news stories and blog topics. For some reason, an infringement suit against her that started back in 2011 is now the copyright topic du jour. A Chicago musician called Rebecca Francescatti says that Mother Monster stole part of her song “Juda” for the hit song “Judas”. More specifically, the complaint alleges that a particular portion of “Judas” violates Francescatti’s exclusive rights of reproduction, distribution, performance, and preparation of a derivative work. But before we get to that, we’ll need to wade through a bit of a semantics morass.
This suit is being couched in terms of plagiarism. This is incorrect. Plagiarism is taking someone else’s work or ideas and passing them off as your own. While the term may be linguistically correct, it is not the appropriate way to frame the issues here. The actual basis for the suit is copyright infringement so let’s be sure to call it what it is. While each allegation merits its own separate analysis, the biggie here is whether the accused portion of Gaga’s song is substantially similar to the relevant portion of Francescatti’s song. Sweet! Today we get to talk about sampling- my musician friends are going to be all over this one.