Copyright Law Blog: Exclusive Rights

Monthly Archives: February 2009

Performance rights act introduced

Shourin Sen - 4 February 2009 – 7:33 pm

Filed under Legislation, Performance Rights

(h/t Howard Knopf.) There is no text for the bill up on Thomas yet. Billboard reports:

As expected the Performance Right Act has been reintroduced jointly to Congress today with Senator Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, and Senators Orrin Hatch (R-UT), Dianne Feinstein (D-CA), Bob Corker (R-TN), and Barbara Boxer (D-CA) submitting it in the Senate, while in the House by Representatives, it was sponsored by Rep. John Conyers (D-MI), chairman of the House Judiciary Committee, and Representatives Howard Berman (D-CA), Darrell Issa (R-CA), Marsha Blackburn (R-TN), Jane Harman (D-CA), John Shadegg (R-AZ), and Paul Hodes (D-NH).

I’ve been dreading this day, to an extent. For whatever reason, the public debate on analog performance rights in sound recordings is replete with legal misconceptions and moral appeals that are, in truth, anything but honest. Over the next week or so, I’ll try to address the misconceptions surrounding the issue; to present what an analog public performance right would and would not accomplish.

This particular topic is one of the most complicated that there may be in copyright law. It has implications on international law, copyight term and the public domain, performance practices, and of course, the broadcasting industry. It is my humble hope that by the end of this series we will have examined many of the misconceptions that are so often raised on this issue.

Daily Copyright Roundup

Shourin Sen - 4 February 2009 – 1:58 am

Filed under Daily Copyright Roundup

The Center for Internet and Society at Stanford University is hiring a volunteer Summer Intern.
Howard Knopf at Excess Copyright speculates that the “Buy America” provisions of H.R. 1 could lead to a new trade agreement between the U.S. and Canada:

Would it include a promise not to curtail oil and gas supplies to the USA, or not to fight about water, to stay longer in Afghanistan, or – and this [is] where this gets quite relevant to this blog – to enact a DMCA North version of American copyright law satisfactory to the American entertainment industry?

Brian Higgins at Maryland IP Law Blog compiled a chart of the number of copyright lawsuit filings by state during the last year. No surprise up top, with CA at 669 and NY at 361. But TN coming eleventh with only 58 filings . . . my how things have changed over the past five or six years.
An artist alleged that Sean Combs’ “Unforgivable” perfume bottle (on right) infringes his sculpture (on left).

Two reasons I love the intertubes: Ben Sheffner levels sharp criticism of an article Mike Masnick on Techdirt about the appointment of Jennifer Pariser as the RIAA’s new top litigator. Mike Masnick levels sharp criticism of an article concerning songwriters that Ben Sheffner featured on his site.
Ross E. Davies, Professor of Law at George Mason and editor in chief of the Green Bag, posted an article on the precipitous drop in printed law review circulation. Harvard Law Review, as just one example, dropped from a print circulation of 8836 in ’80-’81 to 2610 in ’07-’08.
EFF is looking for people who had their YouTube videos, that may have merited a fair use defense, taken down when Warner Music Group broke ties.
David Oxenford at Broadcast Law Blog provides a political update on the DTV extension.
And finally, Amplify Your Voice was able to find another person who had the video of the allegedly federally funded Derek Dye the Abstinence Clown. (h/t Daily Kos.)

Are tax filings discoverable in an infringement action?

Shourin Sen - 4 February 2009 – 12:12 am

Filed under Daily Copyright Roundup

I thought I’d cover an order in Cullum v. Diamond A Hunting, Inc. since taxes are the topic du jour. On January 21, Magistrate Judge Nowak of the Western District of Texas addressed the issue of whether defendants in a copyright action must comply with a subpoena for federal income tax returns. The defendants had sought a protective order on the grounds of “annoyance, embarrassment, oppression or undue burden or expense” (F.R.C.P. 26(c)) and relevancy.

Stated the court:

The defendants argue that their gross revenues reflected on the tax documents are attributable to a number of activities which include but are not limited to hunting leases and seminars. They argue that the revenues from the various activities are commingled on the tax returns and include revenues unrelated to hunting and seminars, and therefore render the tax returns non-discoverable. While that may be true, plaintiff is entitled to information bearing on defendants’ revenue for these years and the tax statements may contain the level of detail necessary to determine the revenues from those specific activities. Additionally, those returns may contain information concerning deductible expenses.

However, the Court held that it would review the returns in camera to determine if the documents were relevant and discoverable, and that any discovery ordered would be subject to a confidentiality agreement.

Documents:

Cullum v. Diamond A. Hungting, Inc. , 07 cv 0056 WWJ, 2009 WL 159589 (W.D. Tex. Jan 21, 2009).

Counsel:

Cullum: Law Office of Delphine James, PLLC (Houston, TX).

Diamond A. Hunting, Inc.: Nunley, Jolley, Cluck, Aelvoet, LLP (Boerne, TX).

MDY and its president found liable for DMCA violations for Glider World of Warcraft application; permanent injunction granted but not entered

Shourin Sen - 3 February 2009 – 3:25 am

Filed under DMCA

MDY Industries, LLC v. Blizzard Entertainment, Inc. et al, CV-06-2555-PHX-DGC (D. A.Z. January 28, 2009) (order)

(h/t to Timothy B. Lee at Ars Technica for picking up this order before it was available through Westlaw.) Blizzard Entertainment, Inc. and Vivendi Games, Inc. owned and distributed World of Warcraft, a game where users controlled characters within a virtual universe, performed quests and interacted with other players. Glider was an application, produced by MDY Industries, LLC, that played World of Warcraft on behalf of gamers, allowing them to advance while they were away from their computers. According to the Court, “Glider upset[] th[e competitive] balance [of World of Warcraft] by enabling some payers to advance more quickly, diminishing the game experience for other players.”

The building blocks of World of Warcraft, such as monsters, trees and individual sounds, remained saved on a users hard drive and could be loaded into RAM without signing onto Blizzard’s servers. But to view the individual and collective elements in the choreographed context of the World of Warcraft, a user had to log onto a Blizzard server. Blizzard used an application, called Warden, to detect and lock down users who used applications, such as MDY’s, to play Warcraft.

Blizzard’s Section 1201(a)(2) Claim

Section 1201(a)(2) provides that no person shall “traffic in any technology” that “is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title[.]”

MDY apparently made two arguments: First, that the choreographed context, provided by Blizzard when gamers were logged in, wasn’t copyrightable because it wasn’t fixed in a tangible medium and, secondly, the choreographed context was controlled by users of the game, arguably creating a joint work. The court tersely rejected both of these arguments citing to, among other cases, Atari Games Corp. v. Oman, 888 F.2d 878, 884-85 (D.C. Cir. 1989).

Blizzard’s Section 17 U.S.C. 1201(b)(1) Claim

Section 1201(b)(1) is similar to section 1201(a)(2), except that, instead of applying to protective measures that control “access,” it applies to “a technological measure that effectively protects a right of a copyright owner.”

The Court concluded that MDY violated section 1201(b)(1): Warden constituted a “technological measure” to the extent it prevents a user from copying the dynamic elements Warcraft as it is being played; MDY’s Glider application circumvented Warden; and the Glider application was knowingly marketed by MDY for use in circumventing Warden.

Personal liability of corporate officers for copyright infringement

The Court found that the president of MDY was personally liable for the vicarious infringement, contributory infringement, and DMCA violations because he (1) profited directly from the infringement and (2) had a right and ability to supervise the direct infringer, even though he may have initially lacked knowledge of the infringement.

Presumption of harm and the granting of a permanent injunction

Blizzard argued that courts assume irreparable harm when evaluating whether to grant a permanent injunction under 17 U.S.C. 502(a). The Court rejected this argument and, citing to eBay, inc. v. MercExchange, L.L.C., found that Blizzard must satisfy the traditional four-part test to obtain a permanent injunction. The Court granted a permanent injunction finding that all four requirements were satisfied: [1] irreparable injury (Blizzard received 500,000 customer complaints regarding bots in World of Warcraft); [2] remedies at law (Blizzard’s damages to goodwill could not be calculated with certainty); [3] balance of hardships (loss of profits merits little equitable consideration); and [4] public interest (Congress has determined that the public interest is served by enforcing intellectual property rights.)

The Court, however, demurred from entering the permanent injunction until the parties had the opportunity to brief whether the injunction should be stayed pending appeal to the Ninth Circuit.

Documents:

MDY Industries, LLC v. Blizzard Entertainment, Inc. et al, CV-06-2555-PHX-DGC (D. A.Z. January 28, 2009) (order)

Counsel:

MDY Industries, LLC: Venable Campillo Logan & Meaney PC (Phoenix, AZ)
Blizzard Entertainment, Inc: Sonnenschein, Nath & Rosenthal LLP (Washington, D.C., Phoenix, AZ)

Daily Copyright Roundup

Shourin Sen - 2 February 2009 – 11:00 pm

Filed under Daily Copyright Roundup

Amplify Your Voice is reporting the receipt of a cease-and-desist for posting a video of Derek Dye the Abstinence Clown. Dye’s clown work is apparently underwritten by Elizabeth’s New Life Center, an abstinence-only organization that received an $800,000 federal grant in 2007.
The NYTimes is reporting on the continued “antagonistic” relationship between Apple and the major labels.
The Intellectual Property Law Section of the State Bar of California will present a CLE “The Copyright Office Comes to California” on February 18 and 20, in L.A. and San Francisco. Presenters include: Marybeth Peters (Register of Copyrights); David Carson (General Counsel, U.S. Copyright Office); Tanya Sandros (Deputy General Counsel, U.S. Copyright Office); Maria Pallante (Associate Register for Policy & International Affairs, U.S. Copyright Office); Linda Gill (Chief of the Performing Arts Division, U.S. Copyright Office); as well as a host of industry, academic and practitioner uber-lawyers.
The NYTimes is running an article on fears over monopoly abuse in regards to Google Book Search.
The EFF is reporting that it has reached a settlement for Savitri Durkee, an “activist concerned with preserving the character of Union Square and Union Square Park” who was running a parody website. The Union Square Partnership, a group “backing develpment in the area” had brought suit alleging, among other claims, copyright infringement.

MacWorld is reporting that Nintendo has demanded the pulling of Lawl Mart’s Duck Hunt iPhone application.

The Association of College and Research Libraries’ national conference will feature a panel titled “Thinking Critically About Copyright: Who Needs It (and Why?).” Presenters include Dwayne K. Buttler (University of Louisville), Donna L. Ferullo (Director, University Copyright Office, Purdue University), Kenneth D. Crews (Director, Copyright Advisory Office, Columbia University) and Janice T. Pilch (Associate Professor of Library Administration, University of Illinois at Urbana-Champaign). The conference will be held March 12-15 in Seattle, Washington.
San Francisco State University is requesting papers for a conference on “assertions of rights by insurgent groups, resistance to rights claims, and governmental efforts to suppress or promote rights.” (h/t Legal History Blog.)