Friday, June 13, 2014

2nd Circuit OK's scanning whole books for research as fair use in Authors Guild v HathiTrust


In Authors Guild v. HathiTrust, the US Court of Appeals has ruled that scanning whole books for research purposes is fair use.

In HathiTrust, a group of universities took digital scans prepared by Google and stored them in a "digital library".

The library permitted 3 uses of the material:
(1) The public was allowed to search by keyword. The search results showed only the page numbers for the search term and the number of times it appeared; none of the text was visible.
(2) People with disabilities which prevented them from holding books and/or turning pages could be provided access to the full texts.
(3) Members could create a replacement copy of a lost, stolen, or destroyed book if a replacement was not obtainable in the market at a "fair" price.

The Court held the search function to be a fair use, finding that
-the creation of a searchable, full text database is a "quintessentially transformative use";
-it was "reasonably necessary" to make use of the entire works, and to maintain 4 copies of the database;
-the library did not impair the market for the works.

The Court likewise found it to be a fair use to make copies available to the disabled who are unable to access print books.

The Court declined to rule on the replacement book issue, on the ground that the plaintiffs lacked standing to raise that question.

June 10, 2014, Decision, US Court of Appeals, 2nd Circuit

Wednesday, June 04, 2014

Viacom v Google settled out of court (old news)


I just found out about this today, thanks to an old tweet by Bill Rosenblatt H/T Bill.

Viacom v. YouTube has been settled out of court.



Wednesday, May 28, 2014

DC Circuit rules no multiple John Doe cases without basis for personal jurisdiction and joinder


In the first appellate decision of its kind, the D. C. Circuit Court of Appeals has dealt a death knell to the type of mass John Doe fishing expedition cases pioneered by the RIAA and carried on by pornographic filmmakers and other high volume plaintiffs seeking the identity of possible defendants.

In AF Holdings v. Does 1-1058, the appeals court overruled the district court's grant of ex parte discovery, ruling that mass John Doe cases could not be brought where there was no known basis for the assertion of personal jurisdiction over the unknown defendants, and on alternative grounds that there could be no joinder merely because defendants allegedly downloaded the same file through BitTorrent and therefore possibly in the same "swarm".

(Ed. note: A cynic might argue that the key difference in this case was that, for a change, the ISP's, and not merely defendants, were challenging the subpoenas; but of course we all know that justice is 'blind'. An ingrate might bemoan the Court's failure to address the key underlying fallacy in the "John Doe" cases, that because someone pays the bill for an internet account that automatically makes them a copyright infringer; but who's complaining over that slight omission? A malcontent like myself might be a little unhappy that it took the courts ten (10) years to finally come to grips with the personal jurisdiction issue, which would have been obvious to 9 out of 10 second year law students from the get go, and I personally have been pointing it out and writing about it since 2005; but at least they finally did get there. And a philosopher might wonder how much suffering might have been spared had the courts followed the law back in 2004 when the John Doe madness started; but of course I'm a lawyer, not a philosopher. :) Bottom line, though: this is a good thing, a very good thing. Ten (10) years late in coming, but good nonetheless. - R.B. )

May 27, 2014, Opinion, US Court of Appeals, DC Circuit

Friday, May 09, 2014

Class action claim against Harlequin Books for e-book royalties upheld by 2nd Circuit


In Keiler v. Harlequin Enterprises, a class action royalty claim on behalf of authors whose works were being distributed as e-books by Harlequin was sustained, and the lower court's dismissal of the complaint reversed.

The complaint alleged that Harlan, in a scheme to deprive the authors of their contractual royalties for e-books, had established a subsidiary, was paying royalties to the subsidiary at a below-market rate, and was paying the authors based on the low receipts of the subsidiary rather than on the actual receipts of Harlan itself.

May 1, 2014, US Court of Appeals for 2nd Circuit

Monday, April 07, 2014

Excellent comment by Andrew Bridges on proposed "making available" right


Andrew Bridges is the fine California attorney who wrote one of the great amicus curiae briefs in Elektra v. Barker, and also wrote an excellent request to file amicus curiae brief in Capitol Records v. ReDigi.

Recently, he submitted this outstanding comment to the Copyright Office on the subject of "making available".

Response of Andrew P. Bridges to the Request for Comments for the Study on the Right of “Making Available.”

Sunday, March 23, 2014

"Florida Judge dismisses a Malibu case because Lipscomb failed to establish a connection between an IP address and person" ~ @FightCopyTrolls


Good article on the Fight Copyright Trolls website:
Florida Judge dismisses a Malibu case because Lipscomb failed to establish a connection between an IP address and person
We saw it coming: in less than two months in the Southern District of Florida, a venue where copyright troll Keith Lipscomb’s command and control is located,

Judge Federico Moreno ruled that there is no “good cause” to deviate from Rule 26(d), thus denying early discovery in Malibu Media v. John Doe, 14-cv-20216;

Magistrate Frank Lynch also denied Lipscomb’s motion for ex-parte discovery citing untimely copyright registrations in Malibu Media v. John Doe, 13-cv-14458;

Magistrate Andrea Simonton recommended to sanction Lipscomb in Malibu Media v. Pelizzo, 12-cv-22768;

Judge Ursula Ungaro denied Lipscomb’s routine motion for extension of time to serve the defendant and closed Malibu Media v. John Doe, 13-cv-23714.

In the latter case, on 10/29/2013 the judge sua sponte ordered to show cause why the Court may reasonably rely upon the Malibu’s usage of geolocation to establish the identity of the defendant (and also establish that the defendant may be found within this district).

Lipscomb responded on 11/12/2013, and apparently satisfied Magistrate Torres, to whom Judge Ungaro referred the case. As already mentioned, the case was closed not because of the OSC outcome, but for failure to serve the defendant.

Fast forward to March 2014. On 3/5/2014 in Malibu Media v Doe (FLSD 14-cv-20213), an identical order to show cause was issued by Judge Ursula Ungaro. Lipscomb replied, but this time he was not so lucky: .....


Complete article

Thursday, March 20, 2014

Ex-MP3tunes chief held liable in music copyright case ~ Reuters

Reuters reports:

Ex-MP3tunes chief held liable in music copyright case
By Nate Raymond

(Reuters) - The former chief executive of bankrupt online music storage firm MP3tunes was found liable Wednesday for infringing copyrights for sound recordings, compositions and cover art owned by record companies and music publishers once part of EMI Group Ltd.

A federal jury in Manhattan found Michael Robertson, the former MP3tunes chief executive, and the defunct San Diego-based company liable on various claims that they infringed on copyrights associated with artists including The Beatles, Coldplay and David Bowie.

The jurors also found MP3tunes was willfully blind to copyright infringement on its website, in what a lawyer for the recording companies suggested before the verdict would be the first ruling by a jury of its kind.
Complete article

Tuesday, March 18, 2014