Wednesday, November 30, 2011

Fair Use Defense to Copyright Infringement: What it is and what it isn't

As a copyright lawyer, I hear a lot of people say "as long as I don't copy more than 10% of something, it's fair use." Or sometimes you hear them say "as long as I change something, it's fair use." These people are destined for trouble.
The "fair use" defense to copyright infringement is actually pretty subjective and definitely not a bright-line test. What does it mean to be a fair use? No one can tell you exactly, at least not in the abstract. It all depends on the particular facts. What I can tell you, is there is no "10% rule."
The fair use defense is part of the copyright laws-Section 107 of the copyright laws to be exact. In short, whether a copy is a fair use basically turns on four things:
  1. Is the copy being sold?
  2. How "artistic" is the work?
  3. How much did you copy?
  4. Did you impact the original author's income?
This is a gross generalization of the four statutory factors that the Courts will always apply, but it's pretty close. So before you make a copy of someone else's work, ask yourself those four questions. I will tell you, the biggies are question 1 and question 4. Not surprisingly, the Court's get very testy when you mess with someone's money. If you are selling the copy to the same people who would be buying the author's work, forget about it. You're done. If you are giving away copies to people who would otherwise be buying the author's work, you're in trouble. If all you are doing is quoting a few passages in your blog of a news article you read, and you don't make any money off your blog, you're probably OK.
So really, fair use is very fact specific. But if you just think about it in terms of those 4 questions, you can probably figure it out for yourself.

Tuesday, November 29, 2011

Grooveshark v Universal: Can you believe some people?

Grooveshark is an online music community that lets users search for, stream, and upload music. I think it is essentially trying to be like Facebook for music. Since there is music involved, naturally UMG sued Grooveshark for copyright infringement. Of course they did.
Ordinarily, this would be just another "music industry sues website" case without much interest really. So ordinarily my sentiments would be with Grooveshark as I abhor the bullying tactics prevalent with the entertainment industry. But the thing that makes this case different is that apparently UMG got ahold of some really incriminating emails that purport to be authored by Sina Simantob, Chairman of Grooveshark. In some of those emails, Sina writes:
The only thing that I want to add is this: we are achieving all this growth without paying a dime to any of the labels
We bet the company on the fact that it is easier to ask for forgiveness than it is to ask for permission
WHAT?!?! Who puts that stuff in email? Are people crazy? It's not like these guys at Grooveshark don't have lawyers, they've been sued before. Didn't someone have the good sense to tell them that anything they put in an email will, undoubtedly, come back to bite them one day? It's one thing to violate the law, it's a completely different thing to brag about it online.
Two things smack me in the face about this:
  1. This guy Sina's confidence about that DMCA safe harbor provision is about to hit a brick wall called karma courtesy of the legal system. Mark my words, those emails alone will kill any defense Grooveshark ever had.
  2. The lawyers for Grooveshark should be fired, then drawn and quartered for allowing emails like this to have ever been created in the first place, and to linger more than 30 seconds in the second place.
Lesson for you people: Don't use email. Just don't do it. But if you must (which is most of us really) absolutely, under no circumstances, ever ever ever write an incriminating email. Ever! You don't think anyone will ever see it, but they will. They will.
Through litigation, I have personally gotten hold of private emails authored by Steve Jobs himself. I bet Steve Jobs never in a million years thought some lawyer in Seattle would one day be reading his email. But I did. And I might be reading yours one day too. So don't do it. Just don't do it.

Friday, November 18, 2011

BMI Copyright Lawyers Frequent Willie's Wet Spot

What those lawyers were doing at the "Wet Spot" is anyone's guess, but they did it frequently. BMI sued Wille's Wet Spot for copyright infringement. The allegation is that the club allowed unauthorized public performances of music that BMI licenses. If you are not familiar with BMI, that is what they do. BMI representatives go around to bars and listen for music that they own rights to, and then they sue the bars for copyright infringement. They've been doing this for a long time.
Nice gig, huh? BMI's agents just go to bars, sit and listen. When they hear a song that's on their list, they write it down. Wonder what kind of songs these BMI guys heard at Willie's Wet Spot. "Baby got back"? "Drop it low"? "Salt shaker"? Apparently, they were so vigilant that they had to return to Willie's four times. Must have seen something that required further investigation.
It's always funny, at least to me, when BMI sues a strip club because I just think how tough those guys have it--getting paid to go to strip clubs and listen to the music, maybe for hours. Being a copyright lawyer can be tough, sometimes.

Thursday, November 10, 2011

Copyright Infringement: Folks Are Going To Jail

Copyright infringement has been around for a long, long time. But it is really becoming a very dangerous idea. The traditional remedy for copyright infringement has always been money. If you copy my stuff, you have to pay me for it. The theory is that, unlike tangible property, you don't really deprive me of my intellectual property--only the value of it. By copying my stuff and selling the copies, you aren't depriving me of my stuff, only the value to me of selling my own stuff (or copies of my stuff). That just seems like a less offensive violation of my rights than, say, breaking in my house and stealing my stereo. It might be the same conceptually, but it just feels different.
But today, things are getting serious. Many, copyright owners are pressing the authorities to pursue criminal charges. For example, Hana Beshara, Matthew Smith, and Justin A. Dedemko of NinjaVideo have all pled guilty to criminal copyright infringement for making copies of movies freely available on the Internet.
Criminal charges are not limited to uploading movies either. Folks are being criminally charged for software copyright violations too, like Robert Cimino from New York and Manpreet Singh of Ohio. Criminal charges aren't even limited to people even. The company SAP has pled guilty to copyright infringement related to the Oracle copyright debacle. I thought crimes could only be committed by people, but I guess I was wrong.
In a recent case, Saidou Dia was sentenced to jail not only for copyright infringement but for failing to register as a sex offender. Now that is good company.
The point that I'm making is the one I have made before: Copyright protection is some of the strongest protection you can get for your intellectual property. Unlike patent law, which is being eroded to nothing by legislation and judicial activism, copyright law seems to be getting stronger and stronger.

Tuesday, November 8, 2011

Apple keeps getting sued for copyright infringement

Apple is in trouble again for copyright infringement. They were recently sued for copyright violations for selling an application through the iStore that extracts pictures from Flickr and then re-publishes them. The application doesn't seek permission in advance, and it even (allegedly) strips any embedded copyright management information.
This is a problem, in general, in several ways. First, re-publishing someone's photographs is absolutely precluded by copyright laws unless you have permission. I don't know what sort of implied or explicit permissions are granted by uploading photos to Flickr, but since suit was filed, I have to assume not many. Second, removing the copyright management information is a DMCA violation. We were (I believe) the first lawyers to succeed on the argument that stripping a photographer's copyright information from a digital picture is a DMCA violation in a case we had a few years back.
This is a problem, for Apple specifically, in a few other ways. First, Apple likely won't be able to hide behind the DMCA "safe-harbor" provision for service providers to escape liability. Apple takes an aggressive role in selecting what applications make their way into the iStore, so they are hardly the type of passive service provider envisioned by that safe-harbor provision. Copyright liability is pretty much strict liability, so if it happened, Apple is probably on the hook. Next, both the copyright act and the DMCA have separate provisions for awarding attorneys fees. Anyone who has litigated copyright cases knows that the difference between a small case and a big case is generally the availability of attorneys fees.
We've had a couple of other cases similar to this one in the past. Based on my experience, Apple should be looking for a reasonable way out of this case.