A Copyfighter’s Musings

TechLawAdvisor points to an appeals decision regarding Video Pipeline; however, it’s an appeals decision regarding the preliminary injunction by the District Court, not the summary judgment. In the third footnote, the court chides both sides for pursuing this action without alerting the District Court. See my other post for more.

Couple things of interest:

The first factor is treated a bit better with more details. It makes a decent distinction comparing the clips to a movie review, which has more transformative informational content. Given this analogy, I understand  why it’s not a greatly transformative work in the court’s opinion.

The court distinguishes Kelly because the previews are unauthorized copies whereas the thumbnails link to the Kelly’s displayed images. I’m not quite sure that the distinction is as stark as the court tries to make it. In the end, the function in both cases is similar. If you’re searching for a movie/image and you want to see if it’s one you potentially want to see more of, you look at the abridged version first. Had Kelly created his own thumbnail images, I don’t think the case would have come out differently – Arriba’s purpose in putting the thumbnails in the search engine would still have been a different sort of information acquisition than Kelly’s use. In any case, this court’s explanation here is superior to Simandle’s.

Still, this court also compares the clip previews to Disney’s own trailers, not just the original movie. Again, I believe that this is a poor basis for comparison and should have been left for the fourth factor. The first factor does not require determining if the fair use will supercede all current and possible derivative uses. Why should this case come out differently if Disney had not made the trailers first?

To put it another way: Let’s say that Disney had created clips of nearly infinite permutations, covering all the scenes in the films in separate chunks.  Should the basis for deciding whether re-use of a particular scene will supercede or complement the copyrighted work be whether that scene has already been put in its own separate clip?

Or another way: let’s say you use a sample from a song for a dance remix of a rock song. Now, under the fourth factor, you’re probably going to lose. But under the first factor, it would be odd for the court to say your remix shares a similar purpose as the copyright holder’s because copyright holders typically make their own licensed dance remixes. That shouldn’t end the analysis.

How about a little broader and scarier: Amazon provides short, downgraded previews of songs  and movies to help sell them. Should Amazon have to pay a copyright holder everytime it makes and distributes one of these previews? Maybe, maybe not. As the prelim injunction ruling notes, Quality King Distribs. v. L’anza Research Int’l  and 17 USC 109 might allow people to advertise works they resell under the first sale doctrine. I wonder how far Amazon would be protected under 109(c), particularly since it only deals with display. [added:] Judge Simandle states that transmission online would probably not qualify for this exemption, so they’d have to argue it under fair use. Given Video Pipeline, I’m not sure how clear cut that sort of case would be. [added:] For music, 17 USC 110 (7) should also help, though it depends on how it’s mapped to the Internet and whether a court says it covers derivatives (the sound snippet).

Regardless, the court said that first sale doesn’t apply here because Video Pipeline is not the retailer. No matter if it’s first sale or fair use or any other exemption, how important is this distinction between Video Pipeline and retailers in practice? Like in many other cases, including MP3.com and Kinkos (and, most likely, the DVD redistributors in the Clearplay cases), making a fair use on behalf of someone for a profit is not ok.  Is this a reasonable distinction?  It seems odd that Amazon’s previews could be ok but Video Pipeline’s aren’t. It all depends on how you conceptualize fair use.

(See my post below for more explanation about the first factor.)

Interestingly, this court says that Video Pipeline wins on the third factor because the clips use small portions of the film and “do not go to the ‘heart’ of the movies.” This is why fair use is like flipping a coin.

Filed by Derek Slater at 7:35 pm under General news
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At a used-book store, I picked up a copy of What’s Yours is Mine: Open Access and the Rise of Infrastructure Socialism, from the Cato Institute and its friend, the Regulatory Blob Monster.

This book presents the overall anti-regulation argument for so-called “natural monopolies” and “essential facilities”, including case studies of the electricity grid, phone network, broadband, must-carry mandates, and software applications. As far as broadband goes, they favor letting cable and DSL do whatever they want with their lines and, naturally, point to the potential competition from wireless, satellite and other forms of broadband. They believe that broadband providers need control over their wires to recoup their investments and that providers will voluntarily allow others access.

Though I always feel like there is a degree of exaggeration in these libertarian rants, many of the economic arguments seem rather sound. If you want this side of the argument, the book’s definitely worth checking out – it’s a succinct, well-written read. For the other side, see Lessig and Lemley’s The End of E2E. To them, there is plenty of reason to believe that broadband providers will regulate the content Internet users can access. Even though cable providers might not discriminate, the possibility will discourage innovation.  Because providers have shown little willingness to voluntarily provide access to other ISPs, Lessig and Lemley argue that it’s worth regulating now to avoid future harms.

I was disappointed that the Cato book didn’t address an alternative to open access mandates that could be a decent compromise – a rule mandating the preservation of e2e. As Lessig and Lemley point out, there is a lot to be gained from competition between ISPs through an open access requirement; but, if the principle we’re trying to protect is e2e, why not target it directly? Broadband providers could recoup their investment through monopoly prices and bundled ISP access so long as they preserve the Internet’s architecture.  Lessig proposes this towards the end of The Future of Ideas. This plan would constrain business models to an extent, but it seems far more mild than open access.

This seems to be the direction of the new coalition seeking further cable regulation.  Lessig links to an interesting example of how such a neutrality principle could work.

Filed by Derek Slater at 4:13 pm under General news
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UPDATE: See above for more.

I will get to Bunner soon – I have to get through a couple of trade secret docs first. See Matt’s list of links for the scoop and have fun parsing the victory spins from each side.

For now, I want to get in the wayback machine and talk about the Video Pipeline case.  Matt and Frank were both a little up in arms about this case with good reason. Not that it came out wrong – given caselaw, it’s not necessarily wrong. But it is a bit troubling for several reasons.

I agree with Matt that, at least for the sake of clarity, the judge should have dealt with the clip previews (Video Pipeline’s own trailers) and the copied trailers separately.  I also found it hard to discern to which copyrighted work he’s comparing Video Pipeline’s materials.  The original film or Disney’s trailers?

This is especially disconcerting because of the weird reasoning regarding Disney’s entering the trailers market. In both the first and fourth factors of the fair use test, Judge Simandle focuses on how Disney has already created trailers that serve the same purpose as Video Pipeline’s. Ruling against fair use in regards to Video Pipeline’s copied trailers makes sense for this reason because they do not complement Disney’s trailers. (Yes, there is the registration issue here, but I don’t think that’s a huge deal. Since they do already own the underlying elements, it makes some sense that they also own the trailer they actually created.)

But if we apply that to the clip previews the reasoning starts to fail. Though they supplement Disney’s trailers, they complement the original work. I don’t get how, just because the clip previews do not explicitly “add additional or critical evaluative information,” they aren’t complementary to the movie. I don’t understand why Disney’s entering the market first makes the use non-transformative and without a separate purpose.

Part of this confusion stems from the conflating of the first and fourth factor. The ruling makes sense to me as far as the fourth factor goes given current caselaw. As we saw in MP3.com, entering any derivative market that a copyright holder normally occupies will go against a fair use claim. But this shouldn’t factor into the first factor, the purpose and character test. That test has to do with what type of use, not what the market impact will be. [added:] Indeed, commerciality does impact the burden for the fourth factor (even though commerciality should not imply actual damage to the copyright owner), but that’s ultimately beside the point when analyzing the purpose of the fair use in relation to the original work. Since the potentially fair use is of the original movie, the proper comparison is to the original movie, not the trailers. So when you put conflation of the factors together with the conflation of the original movie and the trailer as well as the trailers with the clip previews, you end up with a total mess.

Look at it this way: let’s say Disney hadn’t entered the market yet and that Video Pipeline won the case. So Video Pipeline is now distributing original trailers, and Preview Maker comes along and starts distributing original trailers which are substantially unlike Video Pipeline’s. Now, as we know Disney would lose to Preview Maker just as it lost to Video Pipeline. But, Video Pipeline now brings suit against Preview Maker. Video Pipeline would most certainly win given Judge Simandle’s reasoning.

Does that make any sense? We want to determine who makes trailers based solely on who moves into the market first? Is the proper comparison for Preview Maker to Video Pipeline, not Disney? (Matt says that he has since decided that this wasn’t the basis for the court’s ruling: “I have to acknowledge that that reasoning makes more sense than what I was originally thinking, which was that the mere fact of making trailers precludes anyone else from also making trailers.” Given the judge’s reasoning in the first factor section, I actually think Matt’s original sentiment is somewhat correct. I think the judge might have been saying both.)

Again, this doesn’t mean the ruling was totally wrong as a matter of caselaw. Hardly anyone survives the fourth factor when the copyright holder has already entered the market. And since it was  a commercial use using key scenes, I can see why the judge would rule against. He just didn’t make his reasoning as strong as it could be.

As Matt suggests, he would have been better off ignoring Kelly v. Arriba Soft. In many ways, Kelly is an outlier in today’s fair use doctrine. It looks at how the copyright holder would be actually damaged and carefully weighs the interests involved.  The court clearly recognized how Arriba’s images have a dissimilar purpose (first factor) and a complementary relationship (fourth factor) with Kelly’s. The court found little reason to believe Kelly would be harmed and much reason to believe that Arriba’s use would promote creativity:

“The Copyright Act was intended to promote creativity, thereby benefitting the artist and the public alike. To preserve the potential future use of artistic works for purposes of teaching, research, criticism, and news reporting, Congress created the fair use exception. Arriba’s use of Kelly’s images promotes the goals of the Copyright Act and the fair use exception….[T]his first factor weighs in favor of Arriba due to the public benefit of the search engine and the minimal loss of integrity to Kelly’s images.“

Had Judge Simandle actually read this case and used its logic, his approach to Video Pipeline would have been far different.  Fair use cases like Video Pipeline simply treat fair use as a solution to market failure. If you’re making money that could be made by the copyright holder, it’s not a fair use. I hope, if this case is appealed, the judges actually read Kelly.

Filed by Derek Slater at 7:57 pm under General news
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For those of you who followed this, you’ll know why I can’t resist reposting this brief discussion from pho.  Really interesting technical debate.

Update: Just want to point to this article again, which cites the relevant caselaw that has sometimes said that it is distribution. See this article that counters those cases.

Filed by Derek Slater at 5:45 pm under Big Ideas
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Back for now. I hope to catch up over the next week, but things are going to be a bit busy over the next 3 weeks or so as I see family and return to school.

Speaking of which, Brown has updated its computer use policies. As you might remember, Brown received many DMCA notices last year and warned its students about its copyright infringement policy.  The new policy is superior to Harvard’s, though it seems a bit harsh. I am still troubled by the requirement of removing files from student’s computers. That might make sense if a file were downloaded, but uploaded files might have been acquired legally.

I hope other schools mimic Brown’s fair use faq (more succinct than Stanford’s) and its explanation of copyright infringement.

Filed by Derek Slater at 5:16 pm under General news
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GartnerG2, a business strategy firm, and the Berkman Center have published the first paper in the Digital Media Project entitled: “Copyright and Digital Media in a Post-Napster World“. It chronicles the major legal and business developments in the copyfight and is a lead up to a discussion of possible future scenarios. I had a hand in writing the legal sections and am quite looking forward to the next stages of the project. For those of you who have devotedly followed the development of digital media, the law section might be a bit of old news, but the business section will definitely satisfy you.

Filed by Derek Slater at 11:54 am under General news
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…not gettin’ hitched, but my brother is. Until then I’ll be a bit busy finishing up work stuff, saying goodbye to friends, and winding up this wonderful summer in SF. I should be back in about two weeks.

Filed by Derek Slater at 3:54 am under General news
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Matt links to Cringely’s update to Snapster. He takes into consideration the basic fair use considerations and thinks he’s in the clear.

Cringely asserts that Snapster 2.0 is legal because it’s based on lending. But he’s actually talking about a pseudo-rental scheme, which isn’t legal because of the Record Rental Amendment of 1984. It tacked the following onto Section 109 of the copyright code (the part dealing with the “first sale doctrine”):

“Unless authorized by the owners of copyright in the sound recording… and in the case of a sound recording in the musical works embodied therein, neither the owner of a particular phonorecord … may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord … by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending.”

You ever wonder why we don’t have a music version of Blockbuster? This is it.  I think the words “indirect commercial advantage” pretty much kill Snapster 2.0.

(Note: post updated to correct name of 1984 act – had it as Sound Recording Amendments Act)

Filed by Derek Slater at 3:45 am under Big Ideas
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Ernest Miller (of Lawmeme) and Fred von Lohmann (of EFF) have joined the fun on pho. I’m reposting their messages here – they’re really insightful.

In discussions like these, I quickly realize my limits. I can’t immediately and conclusively say anything on the technicalities they bring up – I’m not a statistics whiz, so I can’t say for sure that sampling or censuses or audits will fix everything. For instance, I don’t know if Aaron Swartz’s recent point about power laws is right or wrong or can be compensated for in some way. Hopefully, I’ll be able to do some research on it later. Perhaps Professor Fisher will incorporate some commentary on these issues into his next draft.

For now, I can just enjoy their insights and try to think them out, slowly. I’m most interested in getting the proposal on the table, so that we can start trying to figure these problems out. There is no Answer, but I think we can get a lot closer. This open dialogue is, I hope, part of that process.

I will try to continually update this. If someone would like their comments taken down, I will do so – I’ve posted everyone’s comments so far.

Update: Plenty to digest here. I have updated the post to include more of the messages. I included most every email, although I did leave out some that reiterated points already made by others, or strayed from the basic topics. If you are reading or writing on pho and think I missed something, please write to me.

Filed by Derek Slater at 6:31 pm under Big Ideas
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Professor Lessig has a great post about a C+D MP3.com recently sent to Creative Commons.  Michael Robertson is still innovating, we can still fondly remember the old MP3.com – too bad it’s all gone.

Filed by Derek Slater at 3:22 pm under General news
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As noted before, there’s been a bit more discussion about Professor Fisher’s plan. Mikael asked this question, off the privacy topic:

“If I take a copyrighted work, remove the watermark and then redistribute it (i e as unmarked data) – what happens according to Professor Fisher?”

I responded:

“Just like ballot-stuffing, I’d assume there would be penalties. The key is
that, unlike with watermarks like SDMI’s, there’s no strong motivation to
strip them out. (Note: Fisher’s proposal now uses a simple registration code, rather than a true watermark, but the practical difference is irrelevant.)”

Mary Hodder from bIPlog then wrote to pho:

“Actually, as far as motivation for stripping out watermarks or flags from
content, I would think that many different people would have incentives to strip and leave blank, or strip and replace watermarks, because they would want to help or hurt particular musicians or creators, companies, or maybe all those who are represented by the RIAA or MPAA verses those who are not.  I’m sure there are many lesser motivations that we could go on and on about.  The point is, there will be people who try and so any system will have to try to minimize this.

“The other problem with watermarks is, as far as I know, there are none
that can’t be gamed right now, and so while there are people working on
this, a system that relies on watermarks or some other way of making
a count of content flowing through routers isn’t yet feasible. And
the motivation to game the system is a primary concern, at least with the
researchers I’ve talked with about making some kind of reliable, secure watermark system for counting content.”

I then responded:

Mary,

That’s a fine criticism, so let me explain what I mean a bit more.

The reason why I say there’s no strong motivation is that this sort of watermarking does not restrict use in anyway. It is most certainly a watermark in the DRM sense. So, the typical assumption that all watermarks are bad falls away.

I think the urge to game the system as you suggest is a bit weaker. It’s not that people aren’t motivated in those ways – it’s just that there’s probably less motivation to actually do something about it. DeCSS at least had some practical, tangible value to creators and users. People screwing over the RIAA/MPAA by altering the marks would just get a laugh.

At the same time, I concede that replacing the watermarks for personal financial gain is a bit more likely.  But I wonder how much one could gain financially by changing the watermarks. If one changes too few, then it is unlikely a substantial amount of people will download the song. If one changes too many, it is far more likely that s/he will be caught.

In any case, there are various ways to make it less likely, bringing it to tolerable levels.  I’m not quite sure why Professor Fisher has switched to only requiring a reg number in the actual filename. To make the system a little harder to game, a watermarking system would be superior. Yes, people could crack it – but the key is to make it hard for the average user to do so.  Even using ID3 tags or some form of metadata would be superior (and far less inexpensive than watermarks).

In addition, I wonder if a certain degree of cross-checking could be done. If the tag does not match the file, song, or artist names repeatedly, then those downloads would not be counted.

Such cross-checking would be particularly useful if the registration index were made available to digital media services.  Say someone searches for song X or clicks to download song X after searching for artist Y. The system could alert the user if the watermark does not match the song or if the search found similar songs with multiple registration codes, and then ask how s/he wishes to proceed anyway.

Of course, there are often multiple song titles and this would not work for all systems. But, perhaps it could keep misuse down to reasonable levels.

Filed by Derek Slater at 1:31 am under General news
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1.  First, check this out.  Great copyright resource.

2.  Once again, I am attempting to separate the myths and facts about Professor Fisher’s innovative proposal.  This time, it’s with Mikael Pawlo over at Greplaw and on pho.  To find my comments, scroll to the bottom here.

I’d like to spend a bit more time getting past establishing what Fisher’s plan is so I can actually discuss why I like the system so much. But that will have to wait for a different day (in fact, it might have to wait for awhile, because these next three weeks are going to be busy).  For now, here’s the latest draft of his proposal (updated in May).  And, as for my basic feelings about Fisher’s plan, start with this draft rambling, and then realize that I would like to see more people take another little piece of art and do something with it.  I see incredible benefits from preserving P2P and the rip, mix, and burn culture that new technology is ushering in.  The wealth of information, the “semiotic democracy” as Fisher calls it – all experienced at a marginal cost of zero.  Again, more on this later.

3. A fun story on my.mp3.com (via pho).

4.  This interesting press release came through pho today.  I can’t really navigate their site on my dial-up access, but it sounds interesting.

Filed by Derek Slater at 3:40 pm under General news
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1.  Lawrence Solum has a nice post on copynorms, summing up what might come of the RIAA’s recent tactics.

2. Apparently, MPEG-21 DRM stuff is moving along. Chuck Hamaker passed along the media release to the digital copyright list: “The vision of a multimedia framework took another giant leap forward with completion of Parts 5 and 6 of MPEG-21, the Rights Expression Language (REL) and its associated Rights Data Dictionary (RDD). The REL and the RDD, together form a powerful tool for managing the consumption rights of all forms of content.”

I can’t seem to find the actual media release. Here’s the page it should be, and here’s a white paper I dug up.

Filed by Derek Slater at 2:23 pm under Big Ideas
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1.  Mary Hodder’s back with a bunch of good links.  Definitely check out the Pew Internet report.  They say 37 million people in the US have downloaded.  Where does the EFF’s 60 million figure come from?  Is that worldwide or is it US but from a different study?

2.  Lawmeme has the scoop on the Australian Sony mod-chipping reversal.  Awhile ago, an Australian court said that Sony’s Playstation regional coding is not a technological protection measure under Australian law and thus does not violate their version of the DMCA.  US courts have found otherwise.  Today, the Australian ruling was reversed. The full opinion is not online yet.

Australia’s consumer commission has been investigating the use of region coding in DVDs as an antitrust issue.  Unlike in Nintendo’s case, I don’t think any action was taken directly against copyright holders. However, Australia did relax restrictions on “parallel imports” (links to FAQ about similarly relevant New Zealand law).  That means people could commercially import from other regions without going directly through the copyright holders.

So, a couple of lazyweb questions:
     1.  Has any further action been taken against Nintendo?
     2.  Has any further action been taken by the ACCC?
     3.  Has any country gone past allowing parallel imports and actually a) outright banned regional coding of DVDs or b) fined the MPAA for anti-competitive practices?

3.  I hope you didn’t miss this post by Kevin Heller the other day.  Do check out this similar post, and this paper by Kevin about the DMCA (and the whole “right of access” issue.  It’s a very tough argument, which I’ll try to get back to some other time).

His general point relates to some of what, for me, came out of reading the Glynn Lunney fair use article.  There are many different conceptions of fair use in the caselaw.  Sometimes fair use is merely a means to fill in for where the market fails (eg, because of transaction costs). From this sort of idea come the line of cases that prohibit people from commercially making fair uses on behalf of others. Think of MP3.com. If you think about that as far as consumer fair use, it’s legal. But, if you look at it as MP3.com as the copier, it’s a different picture.  In the Berkeley Clearplay debate, the laywer defending the DVD player companies noted that this is one way that what seem like contributory infringement cases have become direct infringement ones.  (And this is why, for the companies that actually edit the DVDs, the case is a real uphill battle.)

In other cases, fair use means transformative or “productive” use.  This principle comes out in cases like Acuff-Rose.

In Sony, the principle was public interest balancing as Lunney calls it.  This is where the historical background Kevin and Lunney discuss is key.  If copyright infringement and fair use analysis has typically focused on competitors, not consumers, file sharing looks a lot different.  The whole market effects prong of fair use looks a lot different.  Moreover, if copyright is supposed to be cost-based (as Lunney calls it) rather than value-based, making sure copyright holders can capture value from every possible derivative market is preposterous.

I wonder how consciously these deviations and potential conflicts were constructed.  The mess of fair use is not just statutory – the mess comes from judging, from the caselaw.  Fair use as a test might mean one thing, but as a principle it means many. Certainly, fair use was more about fair competitive use and had far less to do with consumers.  But even the principles of fair competitive use aren’t necessarily applied in their intended ways. Maybe the tests have been kept the same, but the principles have varied – or maybe they just appear in conflict. I wonder when the next time will be that we see the SC weigh in on fair use. 

I am not quite ready to say Lunney’s approach specifically should be employed by courts. I know it is a lot closer to copyright’s roots.  But I’m not sure how practical it is for courts to employ his analysis, unless he means it be deference to Congress by default.  Maybe that’s not such a bad thing, particularly if Congress actually went back to copyright’s roots (hah). But I’m not sure if Lunney’s direction is proper. 

Something for me to think over a bit more.

4.  Today’s fun read for the night is the brief for Bertelsmann in the suit against them for funding Napster.  Courts don’t tend to like arguments with no definable limits – a good example of this in the IP context is the recent Dastar decision, in which Justice Scalia asked if the movie distributor would have to give attribution to absolutely everyone who made any contribution to Fox’s films (“We do not think the Lanham Act requires this search for the source of the Nile and all its tributaries”).  The court should respond to the record labels’ claims against Bertelsmann in a similar fashion. (BTW, an interesting note that comes up in the brief is that the suit against Hummer Winblad is the record labels’ second attempt. The first failed in Katz v. Napster.)

If you thought this suit sounded completely silly, then you’ll enjoy reading the brief. It makes a total mockery of the record labels’ claims about Bertelsmann’s involvement.

The brief also makes a couple important points about secondary liability.  First, if you take it out of the copyright context and just think about it in terms of corporate law, it’s a terrible idea to hold every investor liable for the actions of whatever corporation ends up with that money.  Relatedly, there has to be some clear connection (or, as in the brief, a “nexus”) between the illegal actor and the company.

Second, Bertellsman spells out the capacity to act requirement that is part of the knowledge prong (even though it probably fits better with contribution). In addition, there’re some nice bits about what the contribution prong in contributory infringement means.  It’s got to involve some sort of direct relationship and thus  more than a “but for” causal relationship. Hopefully, the court will spell this out a little to build on Grokster. Grokster, I think, leaves the door open for contribution had Streamcast and Grokster done more to help people infringe, even without controlling the system’s. If that’s the case, the contribution requirement must be set sufficiently high to not cast too wide a net.

“Should any venture capital firm that provides start-up, or life-saving, capital to a new technology company be placed at risk of joint and several liability for any conduct by the new technology company subsequently held to be infringing?  What about firms that contribute know-how or equipment essential to the functioning of accused technology?  Or investors in or lenders to such contributing firms?  As these hypotheticals suggest, the functioning of the capital markets could be significantly hindered if, pursuant to a “but for” theory such as that advanced by the plaintiffs, the provision of any significant assistance, whether direct or indirect, to an accused infringer were actionable.  Such an undesirable result militates strongly against approval of a dramatic departure from existing copyright law.”

Filed by Derek Slater at 2:00 am under General news
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I have started to learn about international copyright law and thus issues of jurisdiction and choice of law in general. To be perfectly honest, they make very little sense to me.  I need to get a hold of Paul Goldstein’s copyright book, I think, just so that I have something on hand with brief overviews of copyright subjects. I don’t have anything comprehensive to say, but here are some interesting bits I’ve found along the way:

1.  As mentioned awhile ago, read Jonathan Zittrain’s “Be Careful What You Ask For: Reconciling a Global Internet with Local Law.”

2.  The main issues I run into are:
a) Jurisdiction
b) National treatment – each Berne Convention member must be foreigners as if they were nationals (see Article 5.1).  (The Berne Convention creates “substantive minima” that all member countries must meet.) There are varying interpretations of this, see this article.
c) Choice of law – which law do you apply to a foreign national. The above article goes into this issue.  So does this article about a Russian copyright case in the US.

Both articles separate out two issues: infringement and ownership.  Infringement is dealt with by national treatment under the Berne Convention. For instance, if you sue for infringement in the US, the applicable law for infringement is US law regardless of where the copyright holder is from. But for ownership of the work, it’s necessary to determine which country has the closest connection to the copyrighted work.  I’m not really sure why national treatment doesn’t apply here.  The Gigalaw article explains it, but I don’t see how US’s adoption of the Berne Convention supports it.

Two other articles I was reading, “The Architecture of the International Intellectual Property System” by Graeme B. Dinwoodie and “Valuing ‘Domestic Self-determination’ in International Intellectual Property Jurisprudence” by Graeme W. Austin, noted some cases that complicate the issues further. (Check out the whole law review edition, too). In many cases, the US has declined to deal with infringement that occurs in a foreign country. In others, it has not. In certain cases, it has even applied foreign copyright law in domestic cases.  Here are some cases I need to look at, the first of which deals with applying foreign law to domestic infringement.  (Note: I haven’t read these yet)

Boosey & Hawkes Music Publishers, Ltd. v. Walt Disney Co., 145 F.3d 481, 484 (2d Cir. 1998)
Carell v. Shubert Org., Inc., 104 F. Supp. 2d 236
Frink Am., Inc. v. Champion Road Mach., Ltd., 961 F. Supp. 398
Armstrong v. Virgin Records 91 F. Supp. 2d 628

3.  If you don’t know about it already, you should check out the Emily Somma case.

Filed by Derek Slater at 5:15 pm under General news
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