joegratz.net

Last week, the Ninth Circuit Court of Appeals announced its en banc decision in Silvers v. Sony Pictures Entertainment. They held that only copyright holders may sue for infringement, and that infringement claims cannot be assigned to others.

In this case, Silvers wrote The Other Woman, a TV movie screenplay, as a work-for-hire while employed by Frank & Bob Films. As with all works-for-hire, copyright vested in the employer, not the employee; Silvers never owned the copyright or any of the bundle of exclusive rights that comprise it. About three years after the TV movie aired, Sony released Stepmom, which Silvers claims infringes the copyright in her screenplay. (You can compare a plot summary of The Other Woman with a plot summary of Stepmom for a sense of the merits of the infringement claim, which, though interesting, are irrelevant here.)

Frank & Bob Films assigned its infringement claim against Sony to Silvers. Put plainly, this means that Frank & Bob had a right to sue Sony (known as “standing”) and tried to transfer that standing to Silvers. The question was whether copyright holders can assign their claims without assigning any part of the copyright itself.

The court held that copyright holders may not assign their claims to third parties. Judge Graber, writing for the majority, held that section 501(b) of the Copyright Act barred Silvers’ claim. It reads, in pertinent part:

The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it.

The court held that only the rights enumerated in section 106 (the exclusive rights to copy the work, perform the work publicly, and so on) can be “an exclusive right under a copyright” under section 501(b). Because Silvers owned none of these exclusive rights and no other part of the Copyright Act granted her standing to sue, the court said, Silvers’ claim was rightly dismissed by the district court for lack of standing.

I think section 501(b) is pretty clear. Only those who own the copyright at the time the infringement takes place should be able to sue; Silvers did not own the copyright at the time the infringement took place; therefore, Silvers may not sue. Congress could have included language permitting the assignment of claims and chose not to do so. (Expressio unius est exclusio alterius — a canon referenced recently on this blog.)

There’s a good reason for this, too. Intellectual property, unlike other kinds of property, is merely a right to exclude — a right to sue for infringement. It includes no positive right to do anything. Look, for example, at blocking patents or at derivative copyrighted works; in both cases, the right to practice the patent or publish the work is not necessarily secured by the patent or copyright itself. All that is granted is the right to sue for infringement. Because the right to sue is the essence of the property, the right to sue cannot be separated from the property. It’s analogous to the reason we don’t allow transfers of trademark rights without transferring the accompanying goodwill — one just doesn’t exist without the other, so they shouldn’t be able to be owned separately.

I reported here that ASCAP’s website purported to offer podcasting licenses when the licenses offered didn’t actually cover podcasting, likely due to a misunderstanding of the technology. I looked again today, and ASCAP has removed all references to “pod-casting” from its web licensing page.

Way to go, ASCAP.

The Copyright Office page linking to the comments in its Orphan Works NOI proceeding is pretty poorly formatted; the column containing the names of commenters and the column containing the links to comments don’t line up, so it’s hard to find the comment you’re looking for.

So, I fixed the list. Here are links to all of the comments posted on the Copyright Office site.

(more…)

The Copyright Office has posted the comments it received in its Orphan Works NOI proceeding here. The page lists 716 unique comments submitted.

This blog’s coverage of the Grokster oral argument was featured briefly on CNN’s Inside Politics today. Jackson’s Junction has a video clip of the segment.

This seems like a funny, if perhaps unnecessarily mean, way to trap a plagiarist. Then again, perhaps it’s not too mean; academic plagiarists, like those who deface library materials, have their own deep, deep section of hell.

Reports are beginning to roll in from attendees at this morning’s Supreme Court oral argument in Grokster:

• Ted Bridis of the AP
• Machination.org
• Wendy Seltzer of the EFF
• Jason Schultz of the EFF
• SCOTUSblog
• John Borland of CNET News.com.com.com
• James deLong of the PFF
• Timothy K. Armstrong
• Linda Greenhouse in the New York Times
• National Journal Technology Daily (I assume written by Drew Clark, though there’s no byline)
• BoingBoing points to this C-SPAN discussion of Grokster between EFF’s Fred von Lohmann and former Solicitor General Ted Olson.

More to come. I’m optimistic. It sounds like even if they end up taking out the defendants, they won’t decimate technological innovation at the same time.

The deadline for submitting comments to the Copyright Office regarding orphan works passed last Friday. The comments aren’t yet posted on the Copyright Office website on the proceeding, but rumor has it there were well over 400 comments submitted. I’ve seen a few of the comments that were submitted by public interest groups, and there should be plenty of material to fill reply comments (which are due May 9th).

I’ve never before posted a quiz on this blog, but this one seemed germane:

You are “Inclusio unius est exclusio alterius”! You presume that the legislature chooses words very carefully when it drafts statutes. Because they could have used a different word, but didn’t, the word not chosen was deliberately excluded. You assume a lot based, not just on what’s in front of you, but on what isn’t. You have great faith in others’ ability to know exactly what they want. Probably too much.

Which Canon of Statutory Construction are You?
brought to you by Quizilla

SCO has posted scanned legal documents on its website that it took from GrokLaw, a website antagonistic to SCO’s legal claims. Posts on Groklaw and Slashdot accuse SCO of hypocrisy in light of its copyright maximalist stance.

But not even SCO claims that scanning a document gives the scanner any rights in the scanned file. “Sweat of the brow” has been rejected as a justification for copyrightability for years — there’s simply no modicum of originality. This limitation is a Good Thing, since, among other things, it enables access to freely-reproducible copies of public domain content.

Emily Somma, author of After The Rain, and the Great Ormond Street Hospital, owner of the remaining rights in J.M. Barrie’s works (including Peter Pan) have settled their lawsuit. While all of the terms of the settlement have not been made public, this press release indicates that GOSH has agreed that After the Rain makes fair use of Barrie’s Peter Pan stories and plays.

According to the press release, both parties have abandoned some claims made in their pleadings and other public statements. Two compromises stand out. GOSH has abandoned its claim that After the Rain infringes its U.S. copyrights in the Barrie works. Somma seems to have abandoned her claims that the Peter Pan characters are in the public domain (use is “fair use” only when there’s a valid underlying copyright) and that GOSH is misusing its copyrights.

The press release is also notable for its use of conciliatory language — for example:

The Hospital also wishes to express its regret that, over the past few years, Ms Somma’s motives were impugned and her commitment to children’s wellbeing called into question by others. The Hospital hereby disavows any such statements.

It goes to show that even in cases that turn on hundred-year-old historical details and complex copyright defenses, the feelings of the parties are frequently important in reaching a settlement. Congratulations to Colette Vogele and Elizabeth Rader for litigating the case to a conclusion satisfactory to both parties.

The EFF has posted this generally well-chosen parade of horribles showing the devices that could be outlawed if the Supreme Court reverses the Grokster decision.

Today, they chose Silly Putty, which, of course, is capable of and advertised for the purpose of making impressions of copyrighted newspaper content.

I have a quibble, but it’s one only a lawyer completely unconcerned with practicality (and, presently, bored in a hotel room) could love. Silly Putty can’t be affected by the outcome of Grokster because making impressions of newspaper content is protected by the First Sale Doctrine. When you press Silly Putty on the newsprint, some of the actual ink from the paper is soaked up into the putty. The representation of, for example, the comic strip that appears on the Silly Putty isn’t a copy, but just a part of the original, authorized copy. Sure, it’s a bit strange to say that you can legally fillet an authorized copy into multiple representations of the same content, but I think in the extremely unlikely event that the issue came before a court, Silly Putty impressions would be found to be noninfringing.

James Grimmelmann and Steven Wu wrote this very smart analysis of the federal district court’s decision in the Schiavo case and the poor Congressional drafting that forced the result. That decision was upheld on appeal.

The L.A. Times today published this very good article on Open Source Yoga Unity v. Choudhury. A group of yoga studios is suing for a delcaratory judgment that Choudhury (who popularized “Bikram Yoga”) cannot use copyright to control who can do a specific yoga routine. Choudhury claims he owns valid copyrights covering the routine; OSYU claims that the routine is not copyrightable and, if parts are copyrightable, that OSYU’s members aren’t infringing the copyrightable portions.

The case raises interesting, unresolved questions about the copyrightability of movement — for example, yoga routines are both beautiful and healthy. Doctrinally, the portions that are functional are not copyrightable, and the portions that are expressive are copyrightable. Can we separate the expressive from the functional elements of Bikram’s routine? If so, the question is whether the copyrightable portions were infringed. If we can’t separate the two parts, the work as a whole isn’t copyrightable.

OSYU’s lead lawyer is my friend Elizabeth Rader, currently of Shaw Pittman and recently of the Stanford Center for Internet and Society, who’s doing a great job pro bono.

According to this Reuters story, wire service Agence France Presse has sued Google for copyright infringement. Google’s Google News service aggregates news headlines and thumbnails of news photos, linking them to the original stories.

Curiously, though the Reuters story indicates that the suit was filed in D.C. federal district court, I can’t find any record of the case in that court’s docket. Perhaps I’m not searching for the right thing. (Does anybody have a case number or a copy of the complaint?) [UPDATE: Eric Goldman of Marquette Law School has posted the complaint here.]

While courts have held that search engine use of thumbnail images is fair use, that case is potentially distinguishable because using a thumbnail to illustrate a news headline is arguably a less transformative use than using a thumbnail to help a user find a website or an image on the web. Of course, Arriba Soft is only binding precedent if Google can change the venue to someplace in the Ninth Circuit’s jurisdiction; I’d guess one of Google’s first motions will be to move the case to the Northern District of California.

Expect Google to be defending a lot of copyright litigation in the coming years. As I’ve mentioned before, Google’s services are consistently just slightly on the prudent side of the line. If Google is lucky (and having extremely able counsel like Google’s always makes you luckier), a lot of good law could be made as Google defends its fair use rights.

I’ve just run across this fantastic lecture by Jeffrey Cunard, a partner at Debevoise & Plimpton and currently co-director of the cyberlaw clinic at Harvard Law School. It’s an excellent introduction to the application of copyright law to artistic endeavors, focusing on the palimpsest of influences out of which artists create.

Other talks in the series, presented last semester at Columbia and offered here as streaming Quicktime videos with synchronized Powerpoint slides, include Siva Vaidhyanathan speaking on hip-hop, Paul D. Miller (a/k/a DJ Spooky), artist Cory Arcangel, photographer Joy Garnett, and artist and Guggenheim curator Jon Ippolito.

Adam Thierer of the Technology Liberation Front blog has moved from the Cato Institute to the Progress and Freedom Foundation. Both are Washington, D.C.-based libertarian think tanks. Thierer will head the newly-formed Center for Digital Media Freedom at the PFF, which will oppose all forms of media regulation, from web censorship to broadcast indecency regulations to media ownership rules. Thierer notes that the new Center is designed to bring together arguments about free markets and arguments about free speech.

Thierer is a smart and level-headed guy; I had the pleasure of talking with him at the Future of Music Coalition’s last Policy Summit. Here’s hoping his work at PFF will enrich the debate. (Perhaps he can steer Patrick Ross toward using more reasoned argument and less vitriol.)

A side note: the PFF press release about his new position refers to him as an “alumna” of Cato. Yet, by all appearances, Thierer seems to be male. Curious.