1. Aereo to the Sun: Making Sense of the Supreme Court’s Decision

    Aereo to the Sun: Making Sense of the Supreme Court’s Decision

    So the Supreme Court handed down its decision in American Broadcasting Cos. v. Aereo, Inc. on the first day of my vacation because, of course it did. It was building up to be perhaps the most significant Supreme Court decision on copyright law in several years. Sure, last year’s Kirtsaeng case could have had far-reaching effects—the “parade of horribles”—but, in the end, all the Court was doing was unknotting a small, terribly-drafted part of the Copyright Act that related to imports. Boring! By contrast, Aereo forced the Court to examine some fundamental concepts of copyright law, could have had far-reaching effects (especially on “cloud computing”), and involved something everybody gets: watching television!

    Oh, and once again, a decision I blogged about—and described as “so wrong (yet so right)”— has been reversed. But unlike last time, I feel no need to eat humble pie.

    But I’ve been back from vacation for a while, and still I’m only just now writing about Aereo? Honestly, it’s taken me a while to digest it. It’s easy enough to understand on its face: Congress deliberately wrote the current Copyright Act of 1976 … Read More»

  2. My Response to Prof. Menell Part 3-Supreme Court Disrepsects Legislative History in Kirtsaeng

    Kirtsaeng’s Near-Contempt for 1960’s-Era Legislative Materials

    This post continues my response to Prof. Menell’s contention that, based on the Supreme Court’s use of 1960’s-era legislative materials to construe the Copyright Act of 1976 (the “1976 Act”), it is appropriate to use such materials to help resolve the knotty question of whether merely making a copyrighted work available (for download or whatever) violates the distribution right. I had previously criticized Prof. Menell for relying on such materials when courts have generally limited the use of legislative materials to those generated by the Congress that enacted the legislation in question. For more background, see my first post in this series.

    After reading the Supreme Court decisions cited by Prof. Menell, I came to the conclusion that most of them are irrelevant, referencing the 1960’s-era materials in passing or for context, but three of them—CCNV, Kirtsaeng and Stewart v. Abend—had something of relevance to say on the subject. Last time, I discussed the decision that most supports Prof. Menell’s, view, CCNV. This time, I’ll discuss the decision that most supports my view, Kirtsaeng.

    At a minimum, CCNV seems to accept the possibility 1960’s era legislative materials … Read More»

  3. Federal Circuit Feeds Us Some Humble Pie: Oracle v Google Reversed

    Humble Pie Taste Like Sawdust but at Least it’s High in Roughage

    It’s fair to say that I was a little bit invested in the district court opinion in Oracle v. Google. I really thought it was a great opinion, thought it really helped clear the air about the vexed issue of copyright protection for computer programs—and I said so, both in a published article, and in a multi-part blog post (starting here).


    Humble pie looks a lot like chess pie. Doesn’t taste as good, though. Photograph by Ralph Daily. Creative Commons attribution license.

    So when it became clear that the Federal Circuit Court of Appeals was set to reverse the decision, I had to resist getting defensive. While my Twitter feed exploded, mostly in outrage, at the actual reversal, I put off reading the decision until I could read it fairly. The Federal Circuit might have been reversed by the Supreme Court five times out of five this year, on the very subject (patents) it is supposed to be an expert on, but that doesn’t make it wrong. And just because I had publicly supported the now-reversed trial court opinion*, doesn’t mean … Read More»

  4. My Response to Prof. Menell, Part 2: Community for Creative Non-Violence

    (Part 2 of 5) The Fine Line Between an Alternative Basis and Simple Dicta

    The question we’re asking is whether it’s appropriate to rely on legislative materials generated by Congresses who did not enact but did oversee the drafting of the legislation in question. Prof. Peter Menell thinks it is, at least where the Copyright Act of 1976 (“1976 Act”) is concerned. I’m pretty sure it’s not. The question matters because Prof. Menell’s re-write of a crucial passage of Nimmer on Copyright relies on such materials. I have criticized this re-write on several grounds, including this unexamined reliance on pre-enactment legislative materials. See the last post for further details.

    Ordinarily, you can’t rely on pre-enactment legislative materials. Ordinarily, when this issue arises, Congress has drafted but failed to pass a bill, but the next Congress manages to pass substantially the same bill. This is not unusual. In these situations, the courts have been clear that it is inappropriate to rely on the previous Congress’ legislative materials when construing the statute. Normally, this doesn’t pose a problem because the later (enacting) Congress will simply adopt the previous Congress’ work—why reinvent the wheel?

    But the 1976 Act was not typical. … Read More»

  5. My Response to Prof. Menell Regarding the Propriety of Relying on Pre-Enactment Legislative History of the Copyright Act of 1976

    Prof. Menell Comments on 15% of My Article; I Respond.

    This is the first of a series of blog posts in which I respond, in detail, to the following assertion by Prof. Peter Menell in a recent blog post post made on the Media Institute’s website:

    Mr. Rick Sanders also questioned my exploration of legislative history, suggesting that it is improper to consult legislative history predating the enacting Congress. His assertion overlooks Supreme Court opinions in Kirtsaeng, Tasini, CCNV, Abend, Dowling, and Sony [a/k/a “Betamax”] adverting to 1976 Copyright Act legislative history predating the enacting Congress.

    Prof. Menell was, indirectly, responding to one (of several) arguments I made in an article I wrote on whether the distribution right includes a “making available” right, i.e., whether just making something (a book or digital song file) available (for sale or download) violates the distribution right. I was, in turn, responding to Prof. Menell’s re-writing of the section of the authoritative treaties on copyright law, Nimmer on Copyright. Prof. David Nimmer, who maintains (and mostly writes) Nimmer on Copyright had previously either (depending on whose recollection you’re using) taken no position on the issue or was leaning … Read More»

  6. The Color Run v Photographer Part 3—Failing at Risk-Reward Analysis

    Part 3 of 3: When Doing Nothing Is the Best Choice

    This is the last in a series of posts about how the popular quasi-charitable event organizer, The Color Run, got into such a serious scrape with a freelance photographer because of a too-casual copyright license. As I showed last time, The Color Run was lucky that the photographer hadn’t timely registered the copyrights in the photographs, or else his absurd $100,000 demand wouldn’t have been so absurd.

    This post is about The Color Run’s reaction to the said absurd demand. Recall that The Color Run reacted by suing the photographer, Maxwell Jackson, for (1) a declaration that it had a license to use the photographs, and (2) trademark infringement. In my introductory post, I suggested that the claim for declaratory judgment was defensible but the trademark claim was a “dick move.”

    In 1928, the Color Run was a lot less colorful.

    In 1928, the Color Run was a lot less colorful.

    I Do Declare!

    While seeking a declaration of non-infringement was defensible in the face of a $100,000 demand, it wasn’t necessarily the correct or wisest course of action. The other course of action was to do nothing and see if Jackson really would sue. Sometimes, in … Read More»

  7. The Color Run v Photographer Part 2: The Joys of Copyright Registration and the Perils of Being a Licensee

    Part 2 of 3: The Photographer’s Case

    Last time, I discussed how The Color Run, a party with (as we’ll see) fairly sophisticated IP counsel, got into such a pretty bad, but avoidable, public-relations scrape with a freelance photographer, Maxwell Jackson, who is (as we’ll also see) very unsophisticated about IP. The main problem was that the parties were way too casual in licensing the photographer’s works for The Color Run’s use, and the parties ended up with two very different understandings of what The Color Run could do with the photographs.

    Either they didn’t actually reach an agreement (a “meeting of the minds” as lawyers like to say), or they quickly forgot what they had agreed on. Whichever, they didn’t think to resort to the sensible but surprisingly rare expedient of putting in writing what they want. The Color Run just assumed it could use the photographs however it wanted*, and Jackson just assumed that The Color Run would help promote his business by attributing the photographs to him.**

    * One can speculate how The Color Run came to this misunderstanding. Perhaps it thought it could ride roughshod over an individual photographer? More likely, in my Read More»

  8. The Color Run and a Photographer Engage in a Reverse Mexican Copyright-Trademark Standoff

    Part 1 of 3: These Colors Run (Maybe Too Fast) to the Courthouse

    You may have heard the one about the quasi-charitable fun run and how it stole photographs from a freelance photograph and then sued him.

    Or maybe you’ve heard the one about the photographer who let a quasi-charitable fun run use his photographs to help promote his business but got unreasonably aggressive when things didn’t work out as planned.

    What we have here is a kind of reverse Mexican standoff. You know, where two guys are pointing their guns at each other, neither daring to lower their aim but afraid to squeeze the trigger? Except, in this case, the guns are really old and are more likely to explode or backfire as to shoot straight. In this case, the only rational thing to do is lower your aim—which, interestingly, is what recently happened in the dispute between The Color Run and freelance photographer Maxwell Jackson.*

    * According to Jackson’s Facebook page.

    Everybody Loves a Good Photograph

    The Color Run is kind of cross between a long-distance run, the Hindu festival of Holi, and a rock concert. It’s a 5K run during which the runners … Read More»

  9. Is it Fair Use? Information Wants to Be Free, but Copyright Is at the Turnpike

    We Took the Whole Thing, But it Was for Journalism!

    I blogged about Swatch’s dispute with Bloomberg a couple of years ago. At the time, Bloomberg’s motion to dismiss had just been denied, but the trial court explicitly did not address fair use, mostly because it couldn’t at that early stage.


    One of the lucky 333 analysts invited to the Swatch earnings call. Photo taken by Eric Danley under this Creative Commons license.

    The Secret Pleasures of Earnings Calls

    Swatch is a Swiss watch-maker. You may have heard of its products. More important (for our purposes), it’s a major, publicly-traded international corporation. And like most such companies, it routinely holds an “earnings call” (or “analyst call”) right after it files (with the SEC) and release (to the public) its earnings report. The earnings report is required of public companies so investors know certain basic information about the company. The earnings call is optional, but it gives the company a chance to explain the earnings report, while potentially opening itself up to awkward questions from some pretty sharp and skeptical folks.

    As you might expect, Swatch doesn’t like the awkward questions, so it tries to limit the audience of … Read More»

  10. Funny Just Isn’t Enough – What’s “Parody” in Copyright

    People can be terribly clever sometimes.  Take the Holderness Family, for example.  Apparently, mom was too busy running triathlons to sit down and write out a family newsletter, so the family made up a rap to the music of “Miami,” by Will Smith, and made the cutest video, which has now, of course gone viral (Dad’s a news anchor, which gives him a little bit of an unfair advantage, in case you were feeling suddenly inadequate about your holiday preparation skills…):

    Super cute. But not a parody.

    If you’re an ancient Greek and your understanding of the word parodeia is “song sung alongside another,” then these new lyrics to Will Smith’s composition would probably qualify.  But the definition has changed over time and through the formation of the English language, which is the one we care about for purposes of American copyright law.

    I am jumping to the issue of whether the Christmas Jammies song is a parody because if it isn’t, then what the Holdernesses did with Will Smith’s song isn’t fair use. (There’s no category of fair use for writing new lyrics to pre-existing music unless it’s a parody).  And if it isn’t fair use, then it’s copyright … Read More»

Rick and Tara are experienced lawyers who have set out to serve clients in a new way. Rick's roots reach back to his Silicon Valley home, where he first developed his litigation-oriented practice before moving to Nashville in 2004. Tara got her start in the music publishing business in Nashville in 1998 and has used that experience to form the basis of her transactional law practice since graduating from law school in 2004.
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