A problematic ruling on password sharing

9th sigThis guest post was contributed by a blog alumna, and a newly graduated Southwestern juris doctor, who notes that she would have weighed in on this topic sooner, except she was studying and sitting for the most recent California Bar exam.

The Internet went into a tizzy early last month when United States v. Nosal came down from the U.S. Ninth Circuit Court of Appeals. Blog after blog (after blog) proclaimed that this opinion made it illegal to use another person’s Netflix account. Earlier this year, this blog posted on this topic so how did the situation change?

Bottom line: the court found that defendant David Nosal violated the Computer Fraud and Abuse Act (CFAA) when he used a former co-worker’s password to access trade-secret information belonging to Korn Ferry, an executive recruiting and human relations company that also was his former employer. He then took this information and used it to set up his own firm in direct competition to Korn Ferry. This would lend credence to the idea that mere password-sharing is illegal.

But it is important to remember that the court made a distinction, differentiating according to the situation. “The circumstance here – former employees whose computer access was categorically revoked and who surreptitiously accessed data owned by their former employer – bears little resemblance to asking a spouse to log into an email account to print a boarding pass,” the appellate judges said. (more…)

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Legal phasers fired to protect Klingon language

vubpu’ jon nuchpu’. jonbe’ tlhInganpu. That translates to “Cowards take hostages. Klingons do not.” The Language Creation Society, based in Ridgecrest, Calif., has declared war. The group, as Randazza Legal Group PLLC, has filed an amicus brief to speak up on behalf of the Klingon language, which is under fire as part of the lawsuit Paramount Pictures Corp. v. Axanar Productions Inc.

The brief, liberally sprinkled with the language spoken by characters like Commander Worf (actor Michael Dorn) from the long-running hit TV and movie franchise, Star Trek, essentially argues that no one can copyright a language, even one that has been entirely artificially created.

In their continuing mission to explore strange new worlds and protect their copyrights, CBS and Paramount sued Alec Peters and his crowdfunded production Axanar late last year in a Los Angeles federal court. The studios seek damages for direct, contributory and vicarious infringement as well as an injunction to stop production.

Let’s translate what’s going on here–minus the requisite insults, (as described in the video above by a German lecturer on Klingon in a promotion for a video game): (more…)

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Will cable boxes go bye-bye, content increase?

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Is it time to say goodbye to cable companies’ set-top transmission boxes, the monthly charges that come with them, and a possible entertainment content choke point?

The FCC has approved a Notice of Proposed Rule Making to allow consumers to access cable and cable programming through other means, not just cable companies’s set-top boxes.

The FCC had released a fact sheet in January that detailed the reasoning behind this shift. The agency says that “99% of pay-TV subscribers are chained to their set-top boxes,” that they pay “on average $231 in rental fees annually” per household, and that these new rules will “tear down anti-competitive barriers and pave the way for software, devices and other innovative solutions.” Like what? (more…)

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Court orders rapper to stop rolling with luxe TM

 

rolls royceRobert D. Davis, a rapper who on stage partly went by the moniker Rizzy and more, won’t be rolling any longer with references to a luxe automobile brand.

That’s because a federal judge in New Jersey has ruled in favor of Rolls-Royce Motor Cars Ltd in a trademark infringement and dilution action against Davis, aka “Rolls Royce Rizzy.” The court barred Davis from using “Rolls Royce” as his stage monkier and from employing the company’s registered “RR” logo on his website and on t-shirts. How did the rapper get run over with this decision? (more…)

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Dancing baby spins again, now for more fair use

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Oh, that baby never seems to stop dancing, does he?

The U.S. Ninth Circuit Court of Appeals, en banc, has released an amended opinion and dissent in the “Dancing Baby” case aka Lenz v. Universal Music Corp, which this blog has posted plenty about previously.

For a quick recap, this case involves plaintiff Stephanie Lenz, who nine years ago posted a 29-second video on youtube.com of her then infant son dancing to Prince’s Let’s Go Crazy. Universal, which owns the song’s copyright, then used Digital Millennium Copyright Act’s take-down procedures to seek video’s removal.  The two parties have gone at in court ever since, resulting last year in the appellate opinion finding that a rights’ holder must make “a good faith inquiry” as to whether content would qualify under the Copyright Act’s fair use exception before requesting a take-down.

In its original opinion, the appellate judges included a limit that the “consideration of fair use need not be searching or intensive,” and that “implementation of computer algorithms appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA’s requirement’s to somehow consider fair use.” The judges sought to explain some of the process that rights holder must perform before seeking a take-own, as well as limiting the scope of their required inquiries.

But in amending their opinion, the appellate judges have removed both those limitations. Let’s dance a little more with the revised ruling: (more…)

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Justices decline Apple’s appeal on e-books

appleApple is on the hook now to the tune of $400 million to consumers after the U.S. Supreme Court declined to take up an appeal of an adverse decision against the tech company by the U.S. Court of Appeals for the Second Circuit. The appellate court upheld a lower court ruling that Apple conspired to fix the prices of some e-books in in violation of the Sherman Antitrust Act. The justices did not comment in rejecting Apple’s bid for certiorari. (more…)

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Barbs over ‘safe’ arrows raise legal quivers

The movie studios, television networks, video game makers, and big-time music businesses on both coasts may wish to take note of a curious case playing out in the nation’s heartland. It’s raising some novel issues about how small defendants soon may fund and sustain themselves in lawsuits with powerful plaintiffs over a range of IP disputes, including contested copyrights, trademarks, and patents.

The defendant in this peculiar matter has taken to gofundme.com, a popular online crowdfuding source, to raise money for his case. Is this a new way to level the playing field between corporate IP Goliaths and David defendants? Could this create a new way for IP suits to make it to trial rather than settling out? Or could crowdfunding become a way for attorney’s to take on challenging cases–while ensuring they’ll get paid? And what are the ethics of fund-raising for lawsuits?

The controversies have gotten sufficiently acute that the Electronic Frontier Foundation, which calls itself the “leading nonprofit organization defending civil liberties in the digital world,” has asked to enter the case, particularly over questions it may raise about litigants’ First Amendment rights. What case could parties to take arms in such noisy fashion? This one, no kidding, involves safe arrows and fans who like to play fantasy games with them. So come, shall we, upon a quest to discover this new source of magical power?

(more…)

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Pro librarian up for top job with copyright sway

25library-web-sub-superJumboThe Obama Administration has announced that Carla Hayden will be its nominee as the fourteenth U.S. Librarian of Congress. This is a position with great influence on copyright law, and, therefore of considerable interest to Entertainment Law practitioners.

She would replace James H. Billington, who was nominated by President Reagan and has come under fire for failing to keep up with technological advancements. Hayden must confirmed by the U.S. Senate, not an easy task these days. She would be the second professional librarian to hold the position, and her nomination has been applauded by both the American Library Association and the American Association of Law Libraries.

The U.S. Copyright Office, which administers and records copyrights and provides public services about these key elements of intellectual property law, is part of the Library of Congress. Hayden would be the first woman and the first African-American to be the congressional librarian. She also has deep experience updating library technology, sure to be a priority after the widespread criticism of her predecessor. (more…)

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Warner runs up white flag on ‘happy birthday’

It’s the end of an era, in case you missed it: Copyright professors have lost the best example of a right owner’s legal stranglehold, Happy Birthday. Now performers, movies, and television shows can freely use the tune that is sung, nearly universally, at birthdays across the country. There have been creative alternatives to this tune over the years, but none could hold a candle.

A federal court in Los Angeles ruled that the song was, and has been, in the public domain. That’s because the company that Warner bought the rights from, Summy Co., never actually acquired the lyrics from the original owners; Warner, thus, does not have a valid copyright in the lyrics.

This ruling compelled Warner to seek a settlement to avoid hefty damages claims. Just before the case was set to go to trial, last December, the two parties reached a settlement. The details of which have just been released.

In settlement papers filed on Feb. 8, which, interestingly enough, Warner still asserts that they have a valid copyright in the lyrics, the company has agreed to pay out claims for those who were charged for using Happy Birthday up to $14 million. Half of that money, $6.25 million, is dedicated for claimants who have paid to use the song since June 15, 2009 while the other half can be used for claims going all the way back to 1949.

The settlement is still pending approval, set for March 14, by a federal judge; lines should form shortly thereafter of those singing loudly for a refund.

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A textbook case on deciding attorney’s fees?

textbooks3To the justices of the U.S. Supreme Court, this case has offered a legal challenge, an opportunity to reconsider how copyright applies to works lawfully made abroad.

To the original defendant, this matter seemed like a smart business approach, a way to take stuff available cheaply in his native land and to resell it in another market with a premium markup.

To plaintiff John Wiley & Sons, this was a seemingly straight-forward infringement claim that has boomeranged in ways unimaginable not that long ago.

Someone now may be on the hook for more than $2 million in lawyer fees. To intellectual property practitioners, especially Entertainment Law specialists, Kirtsaeng v. John Wiley, which is potentially up for another round in the nation’s highest court, may be a pivotal case in figuring if and how they get paid.

It is still unclear what to expect from the high court, which has granted certiorari but has not assigned the case a hearing date. Because real money’s involved, let’s keep close book on this dispute: (more…)

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