June 8, 2012
The Car Talk Guys are hanging up and parking it after twenty five years. Tom and Ray Magliozzi have announced that beginning in October, NPR will be broadcasting the best of their old programs. No new Car Talk, though. Rats!
Rethinking the MVPD (Multichannel Video Programming Distributor)
The FCC is considering an Internet provider's request to be treated like a cable company. Sky Angel, an online video distributor, and Discovery Communications had an agreement to distribute Discovery's content. But Discovery had a change of heart and cancelled the agreement. Now Sky Angel is asking the FCC to rule that Sky Angel falls under the definition of "multichannel video programming distributor," just like a cable company. If the FCC makes that change, more online companies, such as Hulu, could offers content that could end up on Smartphones and other devices. More here from Law.com, here from the New York Times.
June 7, 2012
Seventh Circuit: South Park's Use of Brownmark Video Is Permissible Under First Amendment
The Seventh Circuit has upheld a lower court's dismissal of Brownmark Films v. Comedy Partners at a very early stage in the litigation. Said the court,
This is a case about how a court may dispose of a copyright infringement action based on the fair use affirmative defense while avoiding the burdens of discovery and trial. This case also poses the interesting question of whether the incorporation-by-reference doctrine applies to audio-visual works.
Having confirmed that the district court could properly dismiss the suit on the basis of an affirmative defense at this early stage of the proceedings, all that remains is
to determine if the district court erred in its fair use determination. This matter is simple because Brownmark, in response to SPDS's motion, did not address fair use as applied to the WWITB videos, and instead insisted that the court could not consider the
matter at a 12(b)(6) stage. Since Brownmark never opposed SPDS's fair use argument in the district court, we consider the argument waived. However, even if Brownmark were not barred from offering argument that SPDS did not engage in fair use, we agree with the district court that this is an obvious case of fair use. When a defendant raises a fair use defense claiming his or her work is a parody, a court can often decide the merits of the claim without discovery or a 10 No. 11-2620 trial. When the two works in
this case are viewed side-by- side, the South Park episode is clearly a parody of the original WWITB video, providing commentary on the ridiculousness
of the original video and the viral nature of certain YouTube videos.
The Copyright Act of 1976 sets forth four, non-exclusive factors that a court must consider
in determining whether a particular use of a copyrighted work is a fair use: "(1) the purpose and character of the use . . . ; (2) the nature of the
copyrighted work; (3) the amount and substantiality of
the portion used in relation to the copyrighted work as
a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work." 17 U.S.C. § 107 (2006). We consider each factor in turn, ultimately
agreeing with the district court's analysis and findings. Central to determining the purpose and character of a work is whether the new work merely
supersedes the original work, or instead adds something new with a further purpose or of a different character.
The underlying purpose and character SPDS's work was to comment on and critique the social phenomenon that is the "viral video." Brownmark's video exemplifies the
"viral video." Through one of the South Park characters-the innocent and naïve Butters-SPDS imitates viral video creation while lampooning one particularly well - known example of such a video. Moreover, the episode places Butters' WWITB video alongside other YouTube hits including, among others,
the Numa Numa Guy, the Sneezing Panda and the Afro Ninja.
This kind of parodic use has obvious transformative value, which under § 107 is fair use. ...
The creative and expressive nature of the original WWITB places the work within the core of copyright protection. But this factor only establishes that the original elements of WWITB are protected to the outer bounds of copyright protection, which is defined by fair use. In the case of parody, this factor offers little help to Brownmark because "parodies almost invariably copy publicly known, expressive works."
Regarding the third factor, SPDS's use of
the original WWITB was not insubstantial. Certainly, SPDS used the "heart" of the work; the work's overall design and distinctive visual elements. ... But in the context of parody,
"[c]opying does not become excessive in relation to parodic purpose merely because the portion taken was the original's heart."
... Parody therefore "presents a difficult case." Id. Indeed, it may even seem as
an anomaly under fair use that parody, a favored use, must use a substantial amount of qualitative and quantitative elements to create the intended allusion; there are few alternatives. But when parody achieves its intended aim, the amount taken becomes reasonable when the parody does not serve as a market substitute for the work. See id. ("[H]ow much more is reasonable will depend . . . on the extent to which the [work's]
over- riding purpose and character is to parody the original or, in contrast, the likelihood that the parody may serve as a market substitute for the original."). The South Park WWITB is clearly a parody and has not supplanted the original WWITB.
It follows from the third factor that SPDS's parody cannot have an actionable effect on the potential market for or value of the original WWITB video under the fourth factor. As the South Park episode aptly points out, there is no "Internet money" for the video itself on YouTube, only advertising dollars that correlate with the number of views the video has had. It seems to this court that SPDS's likely effect, ironically, would only increase ad revenue. Any effect on the derivative market for criticism is not protectable. ...And the plaintiff has failed to give the district court or this court any concrete suggestion about potential evidence indicating that the South Park parody has cut into any real market
(with real, non-Internet dollars) for derivative uses of the original WWITB video. We agree with the district court's well-reasoned and delightful opinion. For these reasons, the judgment of the district court is AFFIRMED.
FCC Open Commission Meeting Slated For June 13, 2012
Remarks of FCC Commissioner Robert M. McDowell Before TIA 2012
June 6, 2012
MLA Changes Copyright Policy
The Modern Language Association has changed its policy with regard to copyright. From its website:
The journals of the Modern Language Association, including PMLA, Profession, and the ADE and ADFL bulletins, have adopted new open-access-friendly author agreements, which will go into use with their next full issues. The revised agreements leave copyright with the authors and explicitly permit authors to deposit in open-access repositories and post on personal or departmental Web sites the versions of their manuscripts accepted for publication. For more information on the new agreements, please contact the office of scholarly communication.
More here from the Chronicle of Higher Education.
Cyberspace Resources and International Law
Duncan B. Hollis, Temple University School of Law, has published Stewardship versus Sovereignty? International Law and the Apportionment of Cyberspace in Canada Centre for Global Security Studies, Cyberdialogue 2012: What is Stewardship in Cyberspace? Here is the abstract.
The 2012 Cyberdialogue Conference, hosted by the University of Toronto, asked the question 'What is Stewardship in Cyberspace'? This essay pursues that stewardship inquiry through the lens of international law. Existing debates on the nature of cyberspace have emphasized its suitability for governance by social norms, domestic law, or some combination of the two. Questions of international law — to the extent they are raised at all — have been limited to asking how (and how well) existing rules analogize to cyberspace. But international law also clearly has something to say about defining what kind of resource cyberspace is (or might become).
International law has long divvied up the world’s resources into categories, with different forms of governance for different types of resources. These categories suggest that a stewardship approach to regulating cyberspace could work. But doing so requires a critical assumption: that cyberspace is a shared resource (or one where individual interests are so comingled as to defy separation). That vision of cyberspace is not, however, universally held. Some deny that cyberspace is “space” at all, or insist that its resources can be (and are better off) apportioned to individual States. In particular, any use of the “stewardship” label for cyberspace governance will generate opposition from those who prefer to label cyberspace as subject to governance based on sovereignty. A contest pitting stewardship against sovereignty is likely to forestall, if not derail, agreement on any particular governance structure for cyberspace. Such a fight is not, however, inevitable. International law does not limit governing frameworks to those accompanying stewardship or sovereignty, but offers a spectrum of ways to regulate resources. This paper undertakes a brief survey of these hybrid approaches and suggests that — instead of fighting over what we should call cyberspace — a discussion of what behaviour we want to encourage (or prohibit) is a more appropriate starting point for future conversations about cyberspace governance.
Download the essay from SSRN at the link.
TRIPS and Intellectual IP Law
Alison Slade, St. Catherine's College, University of Oxford, has published Articles 7 and 8 of the TRIPS Agreement: A Force for Convergence within the International IP System as 14 Journal of World Intellectual Property 413 (2011). Here is the abstract.
Articles 7 and 8 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) provide express recognition for policy objectives that are fundamental to international intellectual property (IP) protection. Not only do they identify the goals of technological innovation and dissemination, but they also acknowledge the wider public interest agenda behind the TRIPS Agreement. While Articles 7 and 8 have acquired influence at a policy level through the Doha Ministerial Declaration and the Declaration on TRIPS and Public Health, their use within the World Intellectual Property Organisation (WIPO) Development Agenda and the Anti-Counterfeiting Trade Agreement (ACTA) has resulted in both an enhanced status within the wider policy arena and an enhanced legal significance, most notably in discussions on enforcement. By transcending treaty and forum boundaries, these provisions not only influence interpretative practice, they also encourage a convergence of policy objectives that facilitates greater coherency within the international system, and links IP with other areas of socio-economic importance. In other words, Articles 7 and 8 are poised to provide the foundation for a new legal and policy perspective on international IP regulation that is fully supportive of social as well as economic development in all participating nations.
The full text is not available from SSRN.
New Zealand Copyright Law and Cultural Institutions
Susan Corbett, Victoria University of Wellington, has published Archiving Our Culture in a Digital Environment: Copyright Law and Digitisation Practices in Cultural Heritage Institutions as New Zealand Law Foundation Report, 2011. Here is the abstract.
This report presents the findings from interviews conducted with 26 employees involved in different aspects of the digitisation projects at seven New Zealand cultural heritage institutions (CHIs). The research project focused on copyright law and the digitisation of CHIs’ collections. The digitisation of Māori cultural heritage adds another dimension to the activities of New Zealand CHIs, and this area was also explored in the interviews.
The objectives of CHIs are to protect, preserve, and facilitate accessibility to cultural entities in the interests of research and education, and the general public interest in cultural matters. In line with overseas practice, New Zealand’s CHIs make use of digital technologies to achieve their objectives. However, many items in CHIs’ collections are protected by copyright. To make a copy of such items without the consent of the copyright owner is an infringement of copyright. Nevertheless, for various reasons including those that are linked to copyright law itself, as well as practical matters such as inadequate resourcing for CHIs to trace absent copyright owners, and a lack of metadata relating to some items in CHIs’ collections, most digitisation projects in CHIs proceed without the consent of copyright owners. Indeed, there is very little understanding within CHIs of the complexities of copyright law and how it relates to the practices of digitisation of their collections.
In essence, the permitted exceptions in the Copyright Act 1994 (“the Copyright Act”) which are intended to support the preservation and archiving of cultural heritage (“the archiving exceptions”) are, similarly to equivalent provisions in overseas copyright legislation, unsuitable in a digital environment. For example, the archiving exceptions permit a single digital copy of an item to be made, whereas digitisation inevitably results in multiple copies. In addition, it is unclear whether the archiving exceptions apply to CHIs that are museums.
In part, this gap between practice and law appears to exist because the broader purposes of digitisation of CHI collections were misconceived by the legislators. This research found that CHIs digitise their collections because they wish to provide accessibility to a more widespread audience. Conversely, the archiving exceptions have been drafted with a view that the main purpose of digitisation is similar to that of analogue reproduction; that is, to preserve a copy of an item in a collection that is in danger of deterioration.
Another reason for the inadequacy of the archiving exceptions is that, as for all permitted exceptions in national copyright laws, these provisions are required to comply with each of the “three step test” provisions in Article 13 of the Agreement of Trade-Related Aspects of Intellectual Property Rights (“the TRIPS Agreement”). Part 8 of this report suggests that the three step test requirement can be satisfied while nevertheless providing more appropriate exceptions for CHIs.
While CHIs’ practices in the area of digitisation of Māori cultural heritage appear, on the whole, to be robust this report proposes that to provide certainty a new provision to regulate this activity should be inserted into the Copyright Act. The report concludes by recommending further amendments to the Copyright Act to address the current gap between practice and the law that has been revealed by the research.
Download the report from SSRN at the link.
June 5, 2012
Depositions Begin In "Big Brother" Infringement Lawsuit
From the Hollywood Reporter: an update on the progress of CBS's "Big Brother/Glass House" lawsuit against ABC. First up: The Deposition Battle.
Disney Moves To Eliminate Junk Food Advertising From Children's Programming
From the New York Times: The Walt Disney Company is committing to eliminating junk food ads from its children's programming (that is, programmng aimed at viewers under the age of 12). The company is working in conjunction with First Lady Michelle Obama's fitness and eating initiatives. Disney is announcing its plans today at a news conference. More here from a news release, excerpted below, on the company's website.
Building on its landmark nutrition guidelines established in 2006, The Walt Disney Company (NYSE: DIS) today became the first major media company to introduce new standards for food advertising on programming targeting kids and families. This significant undertaking marks the latest step in Disney’s partnership with parents to inspire kids to lead healthier lifestyles. Under Disney’s new standards, all food and beverage products advertised, sponsored, or promoted on Disney Channel, Disney XD, Disney Junior, Radio Disney, and Disney-owned online destinations oriented to families with younger children will be required by 2015 to meet Disney’s nutrition guidelines. The nutrition guidelines are aligned to federal standards, promote fruit and vegetable consumption and call for limiting calories and reducing saturated fat, sodium, and sugar.
More coverage here from CBS News.
June 4, 2012
Copyright, Technology, and Parody
Aaron Schwabach, Thomas Jefferson School of Law, is publishing Reclaiming Copyright From the Outside In: What the Downfall Hitler Meme Means for Transformative Works, Fair Use, and Parody in the Buffalo Intellectual Property Journal (2012). Here is the abstract.
Continuing advances in consumer information technology have made video editing, once difficult, into a relatively simple matter. The average consumer can easily create and edit videos, and post them online. Inevitably many of these posted videos incorporate existing copyrighted content, raising questions of infringement, derivative versus transformative use, fair use, and parody.
This article looks at several such works, with its main focus on one category of examples: the Downfall Hitler meme. Downfall Hitler videos take as their starting point a particular sequence – Hitler’s breakdown rant – from the 2004 German film Der Untergang [Downfall in the US]. The user then adds English subtitles, creating a video that is, or is intended to be, humorous, with the humor largely derived from the incongruous and anachronistic content of the subtitles as well as from the inherently transgressive use of the original content for comic purposes.
This article examines whether the Downfall videos, and other similar works, are more transformative than derivative under 17 U.S.C. section 107, as well as whether the use of the copyrighted material, even if otherwise derivative, is fair use under 17 U.S.C. section 107. The article also considers whether the videos are parody within the meaning of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
Download the article from SSRN at the link.
"Bachelor" Lawsuit Heads To Court
"The Bachelor" producers are likely to argue that the First Amendment protects casting decisions in attempting to forestall claims by plaintiffs from Tennessee who allege that the show discriminates against non-whites. Plaintiffs, two African-Americans, say that the popular reality show has never cast persons of color because its producers refuse to contract with non-whites in violation of civil rights laws. (Coverage from Hollywood Reporter).