Month: March 2013

European court says ‘hejda’ to ‘Pirate’ appeal

The Pirate Bay has been described as “one of the most notorious and unapologetic facilitators of infringement in recent memory.” Operators of the site were convicted of copyright infringement in a Swedish court and when the Swedish Supreme Court refused to hear their appeal, they took their battle to the European Court of Human Rights, arguing their free speech rights were abridged. Their conviction was upheld (online copy of ruling courtesy of CopyHype) as “necessary in a democratic society.” The Pirate Bay provides peer-to-peer file sharing and was founded in Sweden in 2003. In April, 2009, a District Court in Sweden found site administrators guilty of copyright infringement. TorrentFreak reports that: “The court said that the four defendants worked as a team, were aware that copyrighted material was being shared using The Pirate Bay and that they made it easy and assisted the infringements. It categorized the infringements as ‘severe’. The judge said that the users of The Pirate Bay committed the first offense by sharing files and the four assisted this.” The accused received sentences of up to one year in prison as well as fines totaling more than $3 million and allocated among the four defendants. Two defendants, Peter Sunde and Frederick Neij, took their case to a Swedish appellate court, which reduced one of the party’s jail sentence to  four- to ten-months but increased the fines to more than $6...

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‘Oh, Really?’ Let’s go ape over jests, contracts

In ‘Oh, Really?’ the Biederman Blog’s editors — voracious consumers of all matters pop culture — cast a curious, skeptical, fun and smart end-of-the-week eye on popular productions, sharing their keen observations about legal matters these raise. He’s a real estate investor who plasters his name on properties from Manhattan to the Vegas strip. He appears regularly in the New York tabloids and has a network television show. He opines freely on matters political and otherwise, made a run at the GOP presidential nomination and is quoted by fringe elements for his widely discredited theorizing about President Obama’s birthplace and academic record. Donald Trump, though, has shown no sense of humor and has turned tortious over comedian Bill Maher’s broadcast comments about his parentage. He’s now put this monkey business into the courts in a case ripe for consideration in Contracts 101: Trump’s lawyers filed a lawsuit (online documents courtesy of CNN) after Maher appeared on The Tonight Show with Jay Leno and said that, perhaps, “Donald Trump had been the spawn of his mother having sex with an orangutan.” The comedian offered to donate $5 million to the charity of Trump’s choice if he could provide proof to the contrary, a jesting reference to the real estate baron’s offer in the presidential season to donate $5 million to a charity of President Obama’s choice if the Illinois Democrat...

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Justices decline streaming, downloading cases

The U.S. Supreme Court has denied certiorari in two cases with entertainment law significance: the ivi streaming case from the U.S. Court of Appeals Second Circuit and the Thomas-Rasset illegal music downloading case out of the Eighth Circuit. The ivi case concerns Internet streaming of broadcast television (discussed here and here before), while Thomas-Rasset involves illegal music-download damages, similar to the now-infamous Joel Tannenbaum case (discussed here). The high court’s decision on Monday to decline the ivi case leaves in place the Second Circuit’s injunction against the firm’s service allowing subscribers to stream free, over-the-air broadcast television programming via the net. Although the justices’ refusal generally favors broadcasters in the net-streaming saga, it probably does little to impact appeals in Aereo (Second Circuit) and Aereokiller (Ninth Circuit). Those cases tackle whether such streaming services violate the broadcaster copyright owners’ Section 106 (by way of Section 101) public performance rights; ivi, on the other hand, focused on whether that firm qualified as a “cable system” to opt in to a compulsory license pursuant to Section 111 of the Copyright Act. Despite the differences, refusing to hear ivi‘s case could indicate a disinterest for now by the court to take on the streaming issue at all. Justices also declined an appeal by Jammie Thomas-Rasset, a Minnesotan hit with $220,000 in damages for music she illegally downloaded. She has claimed that she cannot afford to pay damages levied against her and affirmed by the Eighth Circuit. She, perhaps, might have taken the course...

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Another pyrrhic victory for video-sharing firm

The U.S. Court of Appeals for the Ninth Circuit has upheld Digital Millenium Copyright Act “safe harbor” protection for video-sharing service Veoh, revisiting a case initially decided in 2011 in light of the Second Circuit’s decision in Viacom v. YouTube. The statutory provision at issue is Section 512(c) of the DMCA. That section insulates service providers’ from liability for infringement resulting from the “storage at the direction of a user” of copyrighted content on their website. In the opinion, plaintiff Universal Music Group made two unsuccessful arguments. First, it asserted that the safe harbor provision only applies to “storage” sites, not including websites that allow other hosting activities. The court rejected this theory, pointing out that sites that allow users to store content, like Veoh, do so to allow others to access that content. In the words of a brief filed by the Electronic Frontier Foundation, Universal’s idea of a site that falls under Section 512(c) protection is nothing more than an “online back-up service.” If this were Congress’ intent, the provision would be useless for most service providers. Second, Universal argued that, regardless of take-down notices, Veoh should have seen “red flags” that copyright infringement was occurring on its site. Courts have been reluctant to buy the Section 512(c)(1)(A)(ii) “red flag” argument, particularly in lieu of actual take-down notices. Here, the court noted that copyright holders were better positioned to detect infringement and report it than Veoh, a start-up that...

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How ‘Jersey Boys’ won 2 times in copyright suit

The U.S. Ninth Circuit Court of Appeals has affirmed a grant of summary judgment for defendants in a copyright infringement case involving the Four Seasons-inspired musical, Jersey Boys. In defendant Dodger’s production, a seven-second clip from the Ed Sullivan Show, introducing the Four Seasons, is shown on a screen over the stage. Before the clip runs, a group members prefaces it, telling the audience the Boys were competing against the British Invasion with the “whole world” watching. As the screen goes dark, the group in the live musical begins to sing. The court determined this was a fair use because the clip was shown for “biographical significance,” to illuminate an important point in the group’s career. Thus, the use was transformative. The clip’s brevity also weighed in favor of fair use. In the opinion,  Stephen S. Trott, a senior U.S. circuit judge, rejected the claim that the clip could even be copyrighted because it was not a substantial part of the episode. Further, Sullivan’s “charismatic” style alone could not be copyrighted or trademarked because personality cannot be protected. The court sided with defendants on all the other fair-use markers. Atop the appellate loss, plaintiff’s attorneys were forced to pay the other side’s fees. Fees are awarded if doing so furthers the purposes of the Copyright Act, i.e., “to stimulate artistic creativity for the general public good.” Trott agreed with the district court, that slapping...

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