1. The Vimeo Case and the DMCA: What Your Employees Know Can Hurt You

    Oh, Those Pesky, Pesky Employees!

    From a legal* point of view, hardly anything good ever comes out of the employer-employee relationship**, when you think about it. Wrongful termination suits, reams of paperwork to create a “paper trail” to counter wrongful termination suits, making oral promises the company can’t keep, entering into contracts the company isn’t aware of, getting into accidents in the course of their employment (and making the company liable), and so on and on.

    * Of course, hiring is based on need. Nobody ever said, “Oh, I’m really desperate for some help, and there’s lots of it, but I’m afraid of the legal ramifications!” Which isn’t to say there aren’t transaction costs to hiring employees.

    ** The one exception I could think of: works created by employees in their course of their employment are considered to have been created by the employer. Not that this “work made for hire” doctrine isn’t without controversy.

    We can add one more thing to the list: when your employees are using a service that your company provides. Let’s say your company is in the business of hosting and publicly performing uploaded content, which might or might not infringe copyright. And let’s say … Read More»

  2. Whoops Did You Just Give Away Your Copyright?

    Common-Sense Decision Is a Trap for the Unwary (and Everyone Else)

    A surprisingly fertile field for litigation are “multiple listing services” (MLS) and related real-estate websites. Here’s an MLS for Nashville. The Internet completely inverted the information-relationship between real estate agents and prospective buyers. It used to be that the agents’ main advantage was knowledge of what was for sale, but thanks to MLSs, this information is easily accessible. The very powerful National Association of Realtors jealously guards the trademark rights to MLS (to the extent they even exist)*.

    * I know this from personal experience, as I have represented two real estate agents who had the temerity to use MLS in one of their domain names. Did you know that Realtor associations have their own highly complex dispute-resolution and enforcement procedures, completely with their own rules of procedure? I was honestly impressed.

    This information is obviously of tremendous value, but protecting it is tricky. Data can’t be protected by copyright. Even if “hot news” is a thing, this data isn’t “hot news.” You can place the data behind a wall, but how is the public supposed to access it? You can place anti-scraping language into your terms of … Read More»

  3. Is Nimmer & Menell’s “Lost Ark” of Copyright Just a Prop?

    Spoiler: Yes.

    So, I’m talking about this article of mine that was kindly published by the Vanderbilt Journal of Entertainment and Technology Law (“JETLaw”). See part I here. The issue has to do with one of copyright law’s “exclusive rights”—i.e., things only the copyright owner and his or her authorized licensees may do with a copyrighted work—the right to distribute copies of the work to the public, which we’ll just call the “distribution right.” The question is whether the distribution right includes only consummated acts of distribution, or can also include attempts and offers to distribute.* Most (but not all) courts have held that the right is limited to consummated distributions, but rights holders would very much prefer the broader interpretation. The issue used to be academic, but with file-sharing, it matters now because it’s very difficult to detect consummated downloads**, but it’s easy to prove that the unlicensed works were “made available” for download on the file-sharer’s computer.

    * Remember that the distribution right has an important exception: the first sale doctrine. Once you legally obtain a physical embodiment of the work, you may dispose of it as you see fit.

    ** Putting aside what I Read More»

  4. Checking the Sources: Why I Questioned Nimmer on Copyright

    Practitioner’s POV: Treatises Must Be Reliable

    So, I’m very grateful to the Vanderbilt Journal of Entertainment and Technology Law (“JETLaw”)* for publishing my article on Nimmer on Copyright‘s about-face on the “making available” theory of the distribution right**. You can read the whole thing here.

    * Better known in my day as “JELP”: Journal of Entertainment Law & Practice.

    ** I explain what this is about near the end of this post.

    Oh, are you back so soon? Well, yeah, I guess I failed to mention that it’s about 20 pages of formal prose (but the margins are so big!), there really are 169 footnotes,* and there are zero snarky asides. But you’re still interested, perhaps because you’ve heard this issue directly affects internet-based commerce**. Since you’re not a legal scholar*** and you don’t have tons of time, would I mind summarizing?

    * Did I mention that I was grateful to JETLaw? I threw those footnotes together, but do you see how neat and perfect they are, and that they probably actually support the proposition they’re footnoting? You need to thank the JETLaw student editors for that. Since I was once a professional authorities editor, I know what Read More»

  5. You’re No Fung Anymore: There Really Is Such Thing as Red Flag Knowledge in Copyright Law

    Also, There Really Is Such Thing as Copyright Inducement

    Hot on the heels of the new and improved opinion in the Veoh case (discussed last time), we also have Columbia Pictures Industries, Inc., et al. v. Gary Fung & IsoHunt Web Technologies, Inc., another important 9th Circuit decision construing the major DMCA safe harbors. We’ve actually discussed the case before because it was—and as far as I am aware—the only case in which a service provider was found to have had enough “red flag” knowledge to be deprived of the DMCA safe harbor.

    3845352265_d722f4e38eThe rare yellow-bellied sapsucker is a close relative of the even rarer red-flagged sapsucker. Photo by Phillippe Boissel, under Creative Commons license.

    The Red-Flagged Sapsucker

    I’ve said previously that “red flag” knowledge will be found only in extraordinary situations, and nothing since then has changed my mind. The problem is that “red flag” knowledge is clearly objective knowledge (in contrast to the subjective nature of actual knowledge). Lawyers are actually used to these standards, more classically stated as “knew or should have known.” In many cases, knowledge requirements are important, but even so, we don’t like to limit them to purely subjective … Read More»

  6. Barbecued Copyright Part 1 of 2 – International Flavors



    One of my favorite conferences of the year is the Copyright Society of the USA’s Mid-Winter meeting.  CSUSA is an excellent organization all around, but the Mid-Winter meeting is always a treat because it’s a smaller crowd, and we’re always in great places.  This year it was Austin, Texas.  So while I’ll admit that barbecue, tex-mex and live music largely dominated the conversations, we did occasionally talk about some copyright issues worth sharing.  And some of the law getting made outside the United States are definitely worth taking a look at.

    The recurrent copyright theme of the two-day event was pretty much, “What the f#*! is happening in Canada??” (And a special thanks to the brilliant Casey Chisick at Cassels Brock for summarizing all of this so well). Canada’s highest court issued 5 copyright opinions in two days last year.  The Canadian Parliament amended and modernized their Copyright Act just a few weeks before.  Here are a couple of things you really really need to know if you or your clients do business in Canada at all:

    1. Courts in the U.S. have been struggling with whether merely making copyrighted works available through a file-sharing site
    2. Read More»

  7. Merry Christmas (and Happy Hogswatch)! Further Thoughts on Zappos’ Terms of Service

    Wherein I Explain My Behavior

    I’ve been MIA from the Blog with No Name for a while. Sorry about that. I’ve been struggling with a guest blog, which might turn into a full-blown article, about why it was wrong, wrong, wrong for Nimmer on Copyright to so definitively change its position on the “making available theory of distribution” (a/k/a the question of whether just keeping copyrighted files in a file-sharing folder infringes the distribution right).*

    * Spoiler/rant: It’s not because I support file sharing of copyrighted works. I don’t. And it’s not because Prof. Nimmer (being impersonated by Prof. Menell) is necessarily wrong. They make a fairly strong case (though with substantial holes). It’s that they aren’t necessarily right, either. The problem is that they aren’t necessarily right, either. Nimmer on Copyright is a treatise, probably the most authoritative treatise on copyright law, and practitioners pay a tidy sum for the privilege of accessing it. What we pay for is reliability and authority (with the latter flowing from the former). But only a crazy person would say, as Nimmer/Menell now do, that this question has been definitively answered, and a practitioner reading the revised section uncritically—and, again, we pay money Read More»

  8. I Has Moar Flava: Nine Copyright Observations About the myVidster Case

    Heh, He Said “Dicta”

    Last time, I tried to explain the main holdings from the important but maddening Flava Works v. Gunther (a/k/a myVidster) opinion by Judge Posner. Because so much of the decision is dicta (material that is unnecessary to the holding), and fascinating and bizarre dicta at that—basically, it’s Judge Posner arguing with himself—there’s a lot to react to.

    So here they are: nine observations about the dicta in Judge Posner’s Opinion, in no particular order:

    Are Wieners Copyrightable?

    1. Judge Posner can’t help but spend an unnecessary but interesting paragraph (again, complete dicta) on whether pornography is copyrightable.* He seems to think it is, and the current legal authority (somewhat old and creaky) backs him up. Under First-Amendment principles, what constitutes pornography (“obscenity,” really) is a combination of national principles (whether it lacks some sort of artistic merit) and local values (the jury going, “Ewwwww!”). Copyright is a national system, so it shouldn’t change from locale to locale. If the local populace is truly disgusted by it, it can use other laws to discourage it, just leave copyright out of it.

    * Judges who are stuck adjudicating mass-defendant BitTorrent cases involving pornography (as most of them Read More»

  9. I Has a Flava: Does Framing Video Infringe Copyright? Hard to Say

    Richard Posner LOLs a Bad Preliminary Injunction. But Does Anyone Get the Joke?

    Is Richard Posner’s opinion in Flava Works v. Gunter (better known as the “myVidster” case) already a month old? For such an anticipated decision, it sure flew under the radar after a little bit of buzz. It’s already been pronounced something of a dud*, which is perceptive, if not entirely fair.

    * See also TechDirt and Prof. Goldman.

    The decision was so anticipated because it was appealed from a lower-court opinion that, according to popular (but slightly erroneous) report, implied that merely linking to unauthorized material was an act of infringement (though there might be a DMCA safe harbor for that). The truth was only slightly less alarming: the lower-court decision held that merely framing content that is hosted elsewhere is an act of infringement.

    To add to the drama, the appeal was heard by a panel that included one of America’s best known and highly regarded jurists, Richard Posner, whose copyright opinions were known to be somewhat erratic. Oh, and the copyrighted material in question? Hardcore porn*. That gets everyone’s attention.

    * If it weren’t for porn, how much less would copyright and internet Read More»

  10. Swarming the Defense: BitTorrent, Copyright and an Obscure Procedural Doctrine

    Unappreciated Joinder Is Playing a Decisive Role in BitTorrent Cases

    Last time, I said that the real action in these BitTorrent cases (including the one we’re discussing, In Re BitTorrent Adult Film) is “joinder,” where multiple parties are placed on the same side of the “V” in a court case—in the BitTorrent cases, sometimes hundreds, thousands or even tens of thousands of parties are placed on the defendants’ side of the “V.” A plaintiff can try to “join” as many defendants as it wants, but courts have the power to split the defendants off into their own cases, a process known as “severance.”

    It’s a relatively dull topic*, but it’s proving pivotal in the BitTorrent cases. Cases in which the defendants are severed are almost never re-filed.** At first, this might seem strange. The cases are not dismissed permanently. The plaintiffs just need to re-file against the defendants as separate, individual cases. And pay the $350 filing fee for each case.

    * Which is fine with me because I’m a HUGE civil procedure nerd.

    ** Based on my own observations and anecdotal evidence. I’m not sure if anyone has been tracking all of these cases.

    All for … 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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