Archive for the 'Copyright' Category

New Ruling in Georgia State University E-Reserves Copyright Case

Posted in Copyright, Digital Copyright Wars, E-Reserves on October 3rd, 2010

U.S. District Judge Orinda Evans has issued a ruling about the defendants' and plaintiffs' motions for summary judgment in the Cambridge University Press et al. v. Patton et al. case.

Here's an excerpt:

Overall, the evidence presented does not indicate that Defendants "profited directly from" or "had a direct financial interest in" the infringement alleged by Plaintiffs. There is absolutely no evidence in the record showing that Georgia State benefitted financially from the alleged infringements. At most, if the Court takes the inferential steps suggested by Plaintiffs, any benefit the infringement provides to students constitutes "just an added benefit" rather than a clear "draw" to Georgia State. Therefore, the Court GRANTS Defendants' Motion for Summary Judgment as to the third claim, vicarious copyright infringement and DENIES Plaintiffs' Motion for Summary Judgment as to the third claim. . . .

The record before the Court on the motions for summary judgment does not speak to the question of whether in practice the Current Policy is encouraging improper application of the fair use defense. The Court therefore DENIES both Defendants' and Plaintiffs' motions for summary judgment as to the contributory infringement claim. . . .

Going forward, in order to show that Defendants are responsible for the copyright infringements alleged in this case, Plaintiffs must show that the 2009 Copyright Policy resulted in ongoing and continuous misuse of the fair use defense. To do so, Plaintiffs must put forth evidence of a sufficient number of instances of infringement of Plaintiffs' copyrights to show such ongoing and continuous misuse. Defendants will have the burden of showing that each specified instance of 2009 Copyright Policy infringement was a fair use. Both sides will be limited to the list of claimed infringements produced in response to the Court's August 11, 2010 and August 12, 2010 orders. The parties are DIRECTED to confer and determine whether further discovery is needed before resolving the remaining contributory infringement claim. Within twenty (20) days, the parties shall present a proposed scheduling order.

Read more about it at "Going Forward with Georgia State Lawsuit."

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    "The Google Book Settlement as Copyright Reform"

    Posted in Copyright, Digital Copyright Wars, E-Books, Mass Digitizaton, Publishing on September 29th, 2010

    Pamela Samuelson has self-archived "The Google Book Settlement as Copyright Reform" in SSRN.

    Here's an excerpt:

    This Article explains why certain features of U.S. law, particularly copyright law, may have contributed to Google’s willingness to undertake the GBS project in the first place and later to its motivation to settle the Authors Guild lawsuit. It then demonstrates that the proposed settlement would indeed achieve a measure of copyright reform that Congress would find difficult to accomplish. Some of this reform may be in the public interest. It also considers whether the quasi-legislative nature of the GBS settlement is merely an interesting side effect of the agreement or an additional reason in favor or against approval of this settlement.

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      First Sale Doctrine: "Digital Exhaustion"

      Posted in Copyright on September 23rd, 2010

      Aaron Perzanowski and Jason Schultz have self-archived "Digital Exhaustion" in SSRN.

      Here's an excerpt:

      As digital networks emerge as the dominant means of distributing copyrighted works, the first sale doctrine is increasingly marginalized. The limitations first sale places on the exclusive right of distribution are of little importance when the alienation and use of copies entails their reproduction. This fact of the modern copyright marketplace has led to calls for statutory clarification of digital first sale rights.

      Acknowledging the obstacles to legislative intervention, this Article argues that courts are equipped today to limit copyright exclusivity in order to enable copy owners to make traditionally lawful uses of their copies, including resale through secondary markets. We argue that first sale is not simply an isolated limitation on the distribution right. Instead, it is a component of a broader principle of copyright exhaustion that emerges from early case law preceding the Supreme Court’s foundational decision in Bobbs-Merrill v. Strauss. This context reveals a common law of copyright exhaustion that embraces a set of user privileges that includes not only alienation, but renewal, repair, adaptation, and preservation. Despite congressional recognition of exhaustion in sections 109 and 117 of the Copyright Act, this Article concludes that courts have ample room to apply and continue to develop common law rules that preserve the many benefits of the first sale doctrine in the digital marketplace.

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        "In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age"

        Posted in Copyright, Digital Copyright Wars on September 21st, 2010

        Peter S. Menell has self-archived "In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age" in SSRN.

        Here's an excerpt:

        Drawing upon the historical development of copyright law and the legislative history of the Copyright Act of 1976, this article explains why Congress selected the term "distribute" in its last omnibus revision of copyright law, shows unequivocally that Congress intended to encompass broadly the 1909 Act rights to "publish" and "vend" within the right to distribute, and rejects the position that Congress required proof of "actual distribution" to prove violation of the distribution right. This critical legislative history has been notably absent from treatise accounts and briefing on the liability standard in the file sharing cases, leaving courts without a compass to navigate this statutory terrain. This article traces the origins of the key legislative terms to elucidate the scope of the distribution right in the Internet age.

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          First-Sale Doctrine and Resale of Software: Vernor v. Autodesk Ruling

          Posted in Copyright, Licenses on September 13th, 2010

          A ruling from the United States Court of Appeals for the Ninth Circuit in the Vernor v. Autodesk case has put into question the right to resell software.

          Here's an excerpt from Sherwin Siy's "Software Companies Own Your Hard Drive: Ninth Circuit Rules for Formality Over Function":

          In Vernor v. Autodesk, the appeals court held that Autodesk could stop Vernor from selling copies of their software on eBay by claiming that those resales were an infringement of its copyrights. Ordinarily, a copyright holder can't prevent someone from selling or otherwise distributing a lawfully made copy of the work, so long as that person owns the copy. Here, Autodesk argued that Vernor never owned the copies (which he bought used from a design firm) because Autodesk included in its sale to that firm a standardized agreement that said that the firm was only "licensing" the disks. . . .

          So what does this decision mean? Unchecked, it won't soon lead to a world where I can't donate my old T-shirts to Goodwill, or where PK can start raking in that sweet, sweet statutory damages cash. Those might be theoretical possibilities, but the first effects will likely be something we've already been seeing creeping at the margins. Say goodbye to used software and used games, for instance. That PC version of Bioshock 4 you might buy a few years from now? Don't expect to be able to sell it once you're done with it. Don't even expect to be able to give it away. Game rental services could get litigated out of existence. And while licensing clothing might be beyond the pale, it's not too hard to see the software model being applied to increasingly sold-by-the-bit media like movies and music. All because of fine print, which might be clear and convenient for a court, even if it's exactly the opposite for a consumer.

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            Access to Knowledge: A Guide for Everyone

            Posted in Copyright, Creative Commons/Open Licenses, Open Access, Reports and White Papers on August 31st, 2010

            Consumers International has released Access to Knowledge: A Guide for Everyone.

            Here's an excerpt:

            Access to knowledge (A2K) is the umbrella term for a movement that aims to create more equitable public access to the products of human culture and learning.

            Fields of advocacy that it subsumes include most centrally copyright and patent law reform, open access, open data and open standards, but also access to public information, broader communications rights such as freedom of expression, and issues around ownership of and participation in public media.

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              "The Pre-History of Fair Use"

              Posted in Copyright on August 26th, 2010

              Matthew Sag has self-archived "The Pre-History of Fair Use" in SSRN.

              Here's an excerpt:

              This article reconsiders the history of copyright’s pivotal fair use doctrine. The history of fair use does not in fact begin with early American cases such as Folsom v. Marsh in 1841, as most accounts assume—the complete history of the fair use doctrine begins with over a century of copyright litigation in the English courts. Reviewing this "pre-history" of the American fair use doctrine leads to three significant conclusions. The first is that copyright and fair use evolved together. Virtually from its inception, statutory copyright went well beyond merely mechanical acts of reproduction and was defined by the concept of fair abridgment. The second insight gained by extending our historical view is that there is in fact substantial continuity between fair abridgment in the pre-modern era and fair use in the United States today. These findings have substantial implications for copyright law today, the principal one being that fair use is central to the formulation of copyright, and not a mere exception.

              The third conclusion relates to the contribution of Folsom v. Marsh itself. The pre-modern cases illustrate a half-formed notion of the derivative right: unauthorized derivatives could be enjoined to defend the market of the original work, but they did not constitute a separate market unto themselves. Folsom departs from the earlier English cases in that it recognizes derivatives as inherently valuable, not just a thing to be enjoined to defend the original work against substitution. . . . It seems likely that as more and more derivatives were enjoined defensively, courts and copyright owners began to see these derivatives as part of the author’s inherent rights in relation to his creation. In other words, once copyright owners were allowed to preclude derivatives to prevent competition with their original works, they quickly grew bold enough to assert an exclusive right in derivative works for their own sake.

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                H.R. 5704 Would Extend Copyright Protection to Works of Faculty at Department of Defense Service Academies and Schools of Professional Military Education

                Posted in Copyright, Legislation and Government Regulation, Public Domain on July 13th, 2010

                Rep. Todd Platts has introduced H.R. 5704 in the House, which would "allow faculty members at Department of Defense service academies and schools of professional military education to secure copyrights for certain scholarly works that they produce as part of their official duties in order to submit such works for publication, and for other purposes." Such works are currently in the public domain.

                Read more about it at "Bill Would Curb Access to Government Works."

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