Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991)

The Supreme Court case, Feist Publications, Inc, v. Rural Telephone Service shows two arguments on issues of copyrighting facts. The case emerged when Feist Publication included numbers from Rural Telephone Service to be included in their own telephone book when Rural refused to share the information, and Rural sued for copyright infringement. The two main arguments are presented: one states that fact alone cannot be copyrighted, but compilations of facts can be considered an artistic input; therefore, the expression of fact in a "collection of words" can be copyrighted. However, the compilation of facts require a minimum degree of originality, and since copyright law only applies to creative aspects of the two dimensional work, a list of A-Z phonebook does not satisfy enough creativity or artistic merit to be qualified for copyright protection.

The Court ruled that Rural's listings did not meet the standards for “minimum creativity” and that the use of the listings did not constitute infringement. This decision emphasizes that copyright only extends protection to originality, not the amount of effort put into the creation of an artwork.

This recent case showcases a judicial activism in which the court uses aesthetic qualities to judge whether this particular compilation of facts, via phonebook, is under copyright protection. However, this decision complicates my argument greatly. Under Bleistein v. Donaldson, any artwork of a value should be granted copyright. Looking at the monetary value that the phonebook contains, the copyright should be granted, however its evidently low artistic value disqualifies the work of any copyright infringement. What is the minimum balance of artistic/tangible value that would grant a two dimensional artwork a copyright protection? Also, the case brings up demonstration of minimal originality as part of the qualification. The court only so far answers the question by saying that listing of facts is not providing enough creativity. Where does the line lie for minimal creativity? Aesthetic determination of the work seemed crucial in this case, for if the copyright was granted, the value of art in current society will diminish because creation of artwork has become so effortless and widespread, but perhaps it was because no clear quantitative standard to judging “minimum originality” was set by the legislature or the judiciary. The case weighs in on the necessity of aesthetic decision to promote progress, but also demonstrates that while aesthetic decision is good for case-by-case studies, it shows that lack of quantitative standards created inconsistency in what society has perceived as norms and requirements for a copyright protection over time.

Burrow-Giles Lithographic Company v. Sarony. 111 U.S. 53; 4 S. Ct. 279; 28 L. Ed. 349; 1884 U.S. LEXIS 1757

This landmark Supreme Court case rose about when Burrow-Giles lithographic company when Napoleon Sarony, a photographer of “Oscar Wilde No. 18,” sued the company for copyright infringement when it distributed lithographs of the photography without author’s consent and permission. The Company’s main argument was that photographs are products of a mechanical process, and is therefore not an art, and are not protected under article I, section 8, clause 8 of the United States Constitution—photographs are not produced under authorship as other means of art, such as writing and painting, are. Supreme Court concludes that Congress has the constitutional power to extend copyright protection to new emerging medium of expression, such as photography that represent “original intellectual conceptions” and “ his own genius and intellect.” The Court first argued that since Sarony included “Copyright, 1882, by N. Sarony,” at the corner of his photograph, it gave sufficient notice to the public of his exclusive right to the work. Secondly, although the Constitution does not include photographs under works of authorship in which are protected under copyright, it is only because the technology, when the statute was written in 1790, was not in existence. Providing the evidence that charts and maps were included under protection in Copyright Act of 1790, the court concludes that since photographs are a medium in which “idea of mind given a visible expression,” they also qualify under copyright protection under the constitution. Court goes further on, stating no ordinary photography of which “transferring to the plate the visible representation of some existing object” will not be given a copyright. Only photographs that are “useful, new, harmonious, characteristic, and graceful…entirely from his own original mental conception” and in effectively doing so—showcasing enough expression and originality to be granted such a protection. With this case, Supreme Court demonstrated a great activism in promoting and introducing new medium of expression to the culture. However, the last clause to the court’s argument, that a photograph must express sufficient originality according to court’s standard to be considered an art, creates a very subjective and aesthetic basis to which future photographic art/and recreations of the medium are to be judged. Words that were used by Justice Miller to describe an original photography are words conceptualized with different meanings according to every person’s mind and artistic taste. Law should be a concrete rule which should be understood and interpreted, to an extent, on a same level, and the aesthetics required by the court’s decision set minimal base to which people can agree on. This was the first real case in which the court’s decision in granting the copyright based entirely upon a subjective and aesthetic decision. I will argue the loosely set standards in the decision created inconsistency and unpredictability in future cases and did little to mold society a clear conception of photography as art.

This is the only area where noticeable steps have been taken to stop the distribution of anime music videos. That is, stepping in on behalf of the interests of the musicians to control the distribution of their songs. Record companies are not beholden to the niche audience of anime fans, so are willing to act on the law when an infringement is brought to their attention. For the record company an entire creative work is being reproduced and transmitted in a music video; whereas for the copyright holders of a given anime, only relatively small portions of (if even the "heart" of) their works are reproduced. As they have done in various areas of internet music trafficking, music companies have the (moral or ethical) right perform the same way a domestic anime copyright holder would when faced with illegal distribution of an entire film or series. When a music video is downloaded, it is possible to detach the audio from the video and acquire the song on its own, or even just enjoy it in full as it plays over the video. Therefore using a song in a music video is closer to a clear-cut act of piracy than editing the video.

By Judge Alex Kozinski and Christopher Newman. Published in the Journal of the Copyright Society of the USA, Volume 46, No. 4, Summer 1999, pages 513-530

This article is a speech given by Judge Kozinski, a member of the Ninth Circuit Court of Appeals. While the speech is an overall discussion about the legitimacy of fair use, there is a significant portion devoted towards the idea of satire and parody and its place in fair use.

Kozinski disagrees with Seuss's thought that "The Cat NOT in the Hat!" is an attempt "to avoid the drudgery in working up something fresh." Instead, Kozinski feels that "It’s easy enough to spew a few lines of impromptu Seussian doggerel, but it takes some creativity and work to write a sustained satirical pastiche that people will enjoy enough to pay money for and recommend to their friends."

In general, Kozinski disagrees with the Bisceglia thought that a satirist can just pick a new work to focus on if he cannot acquire a license to the original work. He states:

"Even if the original work is used only as a vehicle, not just any vehicle will get you where you want to go. You can only get so many chuckles by mimicking something familiar. When this kind of satire really works well, it’s because there is something about the original that fits - or pointedly doesn’t fit - the subject"

Kozinski's stance demonstrates a willingness to grant more freedom to satirists. Similar to the Collado article, Kozinski is cognizant of the creative process and is aware that there are not always other options for satirists to choose from to make their point. In fact, Kozinski adds that "the fundamental premise of our copyright law is that the best way to encourage creation of valuable works is to let authors capture the market value of those works." It is the point of satire to create a different view on a well known material, and by restricting it too much, the spirit of copyright law will be broken.

Overall, Kozinski is a strong supporter of more fair use for satire and disagrees with his colleagues of the Ninth Circuit regarding the Seuss case.

By Adriana Collado. Published in Journal of Technology, Law, and Policy, Vol. 9, Issue 1, June 2004.

Collado's article goes through the differences between parody and satire as stated by various court cases. This analysis includes a look into the Campbell and Seuss cases. With regards to the Seuss case, Collado states that the Ninth Circuit "unnecessarily narrowed the Campbell holding and set a precedent inconsistent with the goals of copyright law and with the Campbell decision itself" reaching the same conclusion as the Tushnet article.

Collado then analyzes satire as a fair use and how Seuss was inconsistent with Campbell. Specifically, Collado takes issue with the conclusion that there would be significant market harm from "The Cat NOT in the Hat!" 

"[I]t seems unlikely readers would regard “The Cat NOT in the Hat!” as a substitute for the original, especially since the works target different audiences. While the original Dr. Seuss work is sold in the children’s section of the bookstore, “The Cat NOT in the Hat!” would likely be sold in the adult humor section. Furthermore, the fact “The Cat NOT in the Hat!” was labeled as a parody on its front cover and the author’s name was clearly depicted reduced the possibility readers would confuse or substitute the secondary work for the original."

By Footnote 14 of the Campbell decision (cited above), Collado concludes, there should have been fair use protection for this satire as the potential for market harm was slight.

Collado is a proponent of more freedom for satires. She disagrees with the Bisceglia opinion that satirists can "shop around" for other material if they cannot find a way to make a comment on the original work. Instead, Collado feels that a satirist's ideas are "often intertwined with their underlying source material" and if a satirist must look elsewhere for material, "the idea might not be created at all, thus generating a result...contrary to the goals of copyright law." Finally, Collado argues that satires not only do not displace the market, but could even "increase demand for the copyrighted work" by increasing interest in the original .  

Overall, Collado's article provides a well-reasoned insight into the reasons why satire should be given fuller fair use protection as opposed to the Seuss case.

By Jason M. Vogel, 20 Cardozo Law Review, pages 287-319

Vogel's article analyzes the Seuss case and how it matches up with the Campbell reasoning.

By Rebecca Tushnet and Bruce Keller

Tushnet and Keller's article discusses the nature of parody and satire and the issues that can arise with making a clear distinction between the two. While the article involves copyright, trademark, and right of publicity cases, it is copyright that applies specifically to this discussion.

 In their analysis, Tushnet and Keller applaud the "nuanced" reasoning employed by Justice Souter regarding the approach to satire. Specifically, they cite footnote 14 from the Campbell case (cited above) as a correct approach towards satire and parody.

The article then looks at the case of Seuss v. Penguin and proceeds to explain where the court made a mistake. In their opinion, the court was making a decision on "aesthetics" which the court should not be allowed to do. To determine that a work makes no comment on the original work involves passing "literary judgement" which goes beyond the scope of the courts. Also, if the case comes down to a distinction between parody and satire, anyone will be able to make legal arguments for both possibilities. Tushnet and Keller caution that with such a clear line between parody and satire, there is a large potential for the court to inadvertently suppress speech by making the "wrong" characterization of the work.

The article's conclusion is that the concept of a line between parody and satire should be "abandoned in favor of a fair use analysis that finds addition of critical insights...to be favored uses without judging the merits of those insights." The article is incredibly favorable to satire's ability to claim fair use from both a legal perspective and the general cultural perspective of protected speech.

Raustiala, Kal and Christopher Sprigman. The Piracy Paradox: Innovation and Intellectual Property in Fashion Design. Research Paper No. 06-04.     UCLA School of Law. January 2006. http://ssrn.com/abstract=878401.

The piracy paradox includes discussion on the “innovation and intellectual property in fashion design.” The piracy paradox essay is the most recent document expanding on the issue of fashion protection. While other articles in the past have brought up one side of the debate, mainly the importance of changing existing laws to protect fashion designs, this article goes into great depth about both sides of the argument.  The fashion industry’s principle creative element is outside the domain of IP law. This article asks a very important question, “Why is copying in the fashion industry treated so differently from copying in other creative industries?” The author goes on to argue that copyright fails to deter innovation in the fashion industry because copying is not harmful to originators. Also, it explains how copyright functions as an important element of the apparel industry’s “swift cycle of innovation.” Another question answered is to what degree are IP rights necessary in particular industries to induce investment in innovation?  The article is divided into three parts which include: a brief overview of the apparel industry, induced obsolescence and anchoring, and lastly, the broader implications of the fashion case.

Designs are frequently copied by retailers, such as H&M, which offers cheap copies of expensive fashion. Copying isn’t limited to retailers; magazines continually show examples of “splurge vs. steal” outfits. Also, copying is not limited to fashion as well, art, music, dance, and film are copied all the time but there are protections in place to protect an author’s work. The article talks about the new technologies which allow for the faster replication of fashion designs which leads to the swift cycle of innovation. Designers have to create new works at an even quicker pace nowadays to keep up with the current trends and create new trends in which people will want to buy. Even though the fashion industry has remained unaffected by the lack of protection, there is a standard IP theory which predicts that extensive copying will eventually destroy the incentive for innovation. This is one of the reasons lawmakers have been pushing to create some form of fashion design protection recently. This article is a great source for current, up-to-date information about the fashion piracy debate. Many important issues are brought up including, moving forward with fashion, the positive and negative impacts of fashion piracy protection, all of which are useful for my final paper in discussing what is the best method of protection and is it a viable solution. The explanation of the place of IP protection in fashion design and instances where copyright protection will beneficial is relevant to my final paper. This paper is defines the different processes in the fashion world and helps to clarify the important roles played in the one-day inclusion of fashion design into copyright legislature.

Richard A. Posner, The Journal of Legal Studies, Vol. 21, No. 1. (Jan., 1992), pp. 67-78.

In this article, which was published shortly before the Supreme Court heard the case of Campbell v. Acuff-Rose, Posner lays out an argument for how parody can be considered fair use. While Posner focuses heavily on the market and economic impacts of a parodic work (which is relevant to the fourth factor of 17 USC 107) he also considers the definition of parody. Posner states that for a parody to be considered fair use, there must be three qualifications:

1) That the parody uses the parodied work only as a target not weapon. It is from here that Posner divides parody into two categories: "weapon" parodies, where the target isn't the original work but rather uses the copyrighted work to comment on something else; and "target" parodies, which comment on the original work itself. The latter should be allowed to claim fair use (assuming it meets the other two qualifications) but the former should not.

2) The parodist should not be allowed to take a portion of the copyrighted work such that the parody becomes "a substitute for that work". Posner admits that this is a "vague criterion."

3) The fact that a parodist only takes a small amount of copyrighted material should not be relevant to fair use.

It is the first factor that is the most relevant to this argument. Posner's definition of a "weapon" parody is very similar to the definition of satire. This means that Posner is opposed to satire's ability to claim a fair-use defense as it should immediately be considered infringement.

As Alfred Yen, professor of law at the Boston College Law School, states in his introduction, this article "studies the construction of third party copyright liability in light of the recent Supreme Court case Metro-Goldwyn-Mayer Inc. v Grokster, Ltd.” The article is broken up into five sections: the first describes the doctrines that governed third party liability before Grokster, the second uses “fault and strict liability to expose the theoretical and practical tradeoffs implicit I these differing constructions, the third analyzes the case itself, the fourth describes the implications of the decision and “sets forth the general contours of an improved, post-Grokster­ construction of third party copyright liability, and the fifth gives some thought to the future of this subject matter.

The Grokster case is the latest in a series of cases where an internet service provider has been prosecuted for the actions of its users. Yet, even with this new decision in the books, little progress has been made to determine who is really the most responsible for infringement or how to hold them adequately responsible. Yen writes that “third part copyright liability benefits society by encouraging individuals to stop others from infringing, but those benefits come at a price… third party copyright liability suppresses non-infringing as well as infringing behavior.” Overall, this paradox illustrates the biggest deficit of internet copyright law: the inability to find the balance between, in Yen’s words, “desirable and undesirable consequences” of new technology. At this point in time, there seems to be no obvious strategy for regulating the internet without stifling future innovation and creation.

This article points out that although Grokster “gave the Supreme Court the opportunity to straighten out the law of third party copyright liability” little to no progress was actually made in interpreting pre-Grokster doctrines of third party copyright liability. Instead of “choosing between” existing “differing interpretations” of the law, Yen writes that the court “adopted a dormant theory of third party copyright liability, inducement.” Overall, Yen’s article shows that “inducement give courts a new tool for holding culpable defendants liable which reducing the risk of undesirable side effects.” Yen describes the Grokster decision as being “not a landmark, so much as a milestone, ratifying a continuing détente between those who build on the Internet and those in a position to regulate the builders.” This decision has also turned the focus of internet gate keeping to controlling software and PC uses ability to run that software rather than the ability to control the entire network.

Whether or not one agrees with the merit of the new inducement doctrine, this article is a comprehensive look at an area of copyright law that is important and continuing to quickly evolve. The story of these laws will continue to change drastically in the years to come, but this is a useful, informative and through-provoking look at the situation thus far.

In this article, Andrew Beckerman-Rodau asks whether the Grokster ruling was really a good decision or simply judicial activism. Judicial activism refers to the practice of a court not interpreting the law as it already exists but rather legislating from the bench and creating new legal interpretations. Beckerman-Rodau writes that the Grokster decision rightly recognizes “the conflicting goals which had to be balanced: protecting intellectual property to promote creative activities; and, the importance of not impeding creative and innovative conduct.”

Overall, Beckerman-Rodau also writes that the Grokster decision “does not represent a novel interpretation of the law. Rather, it is consistent with the underlying principles of intellectual property law and it is based on established unfair competition theory which is supported by existing precedent.”

The article begins with “an overview of the decision,” first looking at the facts of the case. Then it discusses what the court did decide – the application of the inducement theory – and what it did not decide – the ramifications of the Sony decision in this context. Then it goes on to deal with the underlying policy considerations of the case. In both Sony and Grokster the same conflicting policy concerns are raised, which deal with “the underlying policy of promoting creativity and innovation by granting property protection for the results of such activity versus withholding such property protection to avoid impeding technological developments.” Beckerman-Rodau states that “copyright law exists to provide benefits to the public, not to maximize economic benefit flowing to a creator.” The Grokster decision went in favor of the content holders, those looking to reap the maximum economic benefit.

The article continues by looking at the application of the new inducement theory. First, it looks at the iPod, stating that although the device has illegal uses and Apple is aware of the potential for infringement the knowledge alone is not enough to hold them liable. The fact that Apple has provided iPod owners with a legal model for acquiring music, iTunes, only further helps Apple avoid liability. Secondly, the article looks at the legality of DVRS – meaning digital video recorders such as Tivo. Again, this service does not encourage users to engage in illegal activity and does not intend for infringing activities to be its primary usage.

Finally Beckerman-Rodau concludes with a recommendation for the lower courts’ application of the Grokster decision. He writes that a good way to balance the concerns of chilling innovation with the concerns of allowing infringement to occur “would be to require sufficient proof of intent to meet the clear and convincing evidence standard for inducement liability. This would avoid chilling innovation because inducement liability would only apply in situations where it is obvious that a product is being distributed with the clear intent that it be used for infringing activity. Additionally, this heightened standard would not affect the ability of a copyright owner to sue direct infringers.”

Whether courts will take this sort of advice is yet to be determined, but Beckerman-Rodau clearly states that the court, in this instance, was not legislating from the bench and instead codifying “preexisting judicially recognized doctrines” in order to make a ruling in contentious legal territory. As Beckerman-Rodau suggests, online copyright liability is an area of law that is only beginning to come into the forefront of legal decision making and liability discussions and will be debated long into the future.

This Article points out the critical short-coming of the Grokster case: the inability to answer the question of what a technology vendor can be held liable for. Instead, the court announced a new doctrine for copyright – inducement – which is certainly a viable way of dealing with the situation, but fails to contend with information that was already on the table. Instead of somehow using the copyright legislature already in circulation to deal with the Grokster case, the court decided to shift focus and contend with a new doctrine.

Author Fred von Lohmann writes that this new decision leaves technology companies and their attorneys to “pick their way through a dangerous minefield of legal uncertainties.” Really, the problem is not the new doctrine of inducement itself, but the “continued uncertainty surrounding the traditional doctrines of contributory infringement and vicarious liability.”

Overall, this article states that legal uncertainty is particularly chilling to innovators because of the problem of statutory damages. Sometimes the penalties for technology end up being put on such a large scale that they can be looked at as a “corporate death penalty” because insurance is unavailable for such large claims. Sometimes, even just one of these sorts of claims can bankrupt a company. But, in contrast, patent law has no similar provision and additionally, patent claims are made primarily against copporations while in copyright, claims can be made not just against the company as a whole, but against the individual officers, directors and corporate investors. Therefore, the uncertainly left as a result of refusing to deal with contributory or vicarious infringement claims is thoroughly problematic and will only cause future courts and cases to continue to contend with the same problems, which could’ve been put to rest if the courts had chosen to deal with them.

The uncertainty surrounding contributory and vicarious infringement is not only troubling for future legal proceedings but also “chilling” for current and future innovators. The risks and uncertainties involved with these undecided doctrines propose trouble for innovators and investors of new multipurpose technologies because having substantial non-infringing uses may no longer be enough of a guarantee that a product will be allowed to be distributed.

Lohmann proposes that “if the Supreme Court is unwilling to address the scope of secondary liability, perhaps it is time for Congress to address copyright remedies.” He also feels that Congress should “abolish statutory damages for secondary copyright claims” because this would “leave copyright owners injunctive remedies and actual damages, putting them in no worse a position than litigants in most other areas of civil law.” This change would allow companies and investors to be able to make “reasonable business decisions about manageable levels of legal risk” without fear of unpredictable or unprecedented legal standards that could completely bankrupt their company or hinder their production beyond repair.

FISHER V. DEES (794 F.2d 432, 9th Circuit, 1986)

The case of Fisher v. Dees provides an example of the duality of satire and parody. The case was brought by Marvin Fisher and Jack Segal, who created and composed a song called "When Sunny Gets Blue", described by the court as "a romantic and nostalgic ballad". In 1984, Rick Dees, a comedian, contacted Fisher for permission to make a parody of the song for a comedy album. When Fisher declined, Dees went ahead and recorded the song anyway. Fisher sued, and the District Court ruled in favor of Dees. On appeal, the 9th circuit upheld the district court's ruling.

In the ruling, the Court reaffirms the statement made in Elsmere v. National Broadcasting Company with regards to the "conjure up" test. As with Elsmere, the court decided that a parody is entitled to use at least enough material to "conjure up" the original. This concept is quoted again in the

Raustiala, Kal and Christopher Sprigman. The Piracy Paradox: Innovation and Intellectual Property in Fashion Design. Research Paper No. 06-04.     UCLA School of Law. January 2006. http://ssrn.com/abstract=878401.

This long paper was written by Karl Raustiala and Christopher Sprigman. Ninety pages in its entirety, it is a thesis on IP law and Fashion Design. This paper is perhaps the most important piece on IP and Fashion Design to come out recently. The essay opens with a strong paragraph, the authors write the following.

"Advocates
for strong intellectual property (IP) protections note that scientific and technological
innovations, as well as music, books, and other literary and artistic works, are often
difficult to create but easy to copy. Absent IP rights, they argue, copyists will free-ride
on the efforts of creators, discouraging future investments in new inventions and
creations. In short, copying stifles innovation."

This idea that "copying stifles innovation," is not new and not only limited to Fashion Design. The same proverb applies neatly to writing, music, art, dance, film, anything that stirs the creative. The authors continue and say though trademarks are well protected, copying of designs are everywhere. The fact that the fashion design industry continues to put out new designs and accessories at an incredibly fast pace and seem unaffected by the copying defies what the authors call "standard IP theory." " The standard theory of IP rights predicts that extensive copying will destroy the incentive for new innovation. Yet, fashion firms continue to innovate at a rapid clip, precisely the opposite behavior of that predicted by the standard theory."

The sources cited in the paper are both common and uncommon, clearly related to fashion design and copyright while others take a more general role in explaining the place of public domain and free thoughts. The paper also shoes some pictures of examples of what would be copyright infringement and how it differs from trademarks. The authors continue to explain thoroughly the place of IP in fashion design and instances where copyright protection would have been beneficial. The paper also plays its own devil's advocate, denyin it of copyright protection, claiming, if the fashion design industry is so profitable now, why protect it? The continue and talk about the fashion cycle, the thought process to the pen, the pen to the paper, the paper to the catwalk, and then to closets around the world.

They come to a close, discussing how can fashion not be ubiquitious when all magazines do is analyze what is the hottest boot this season or the way to wear layers without looking like you are in hiding. "Indeed, IP law fails to protect the
core of fashion, the design. Despite this lack of protection, the fashion industry continues
to create new designs on a regular basis. The lack of copyright protection for fashion
designs has not deterred investment in the industry. Nor has it reduced innovation in
designs, which are plentiful each season. Fashion plainly provides an interesting and
important challenge to IP orthodoxy."

This paper is incredibly important to anyone researching copryight in any medium. Incredibly well written and supported clearly with pertinent sources, the paper helps to explain why the lack of IP protection in certain areas exists and how, if ever, fashion could be protected by IP law. The paper is very important as support for my thesis. It talks about the fashion-knockoff cycle and the inability to draw the line between piracy and authenticity. This paper is heavy on defining different processes in the fashion world and helps to clarify the important role processes play in the one-day inclusion of fashion design into copyright legislature.

This is a copy of the lawsuit Universal filed against MySpace on November 17, 2006, in the United States District Court of Central California.  In the suit, Universal claims that MySpace is guilty of copyright infringement.  Universal claims that the songs and music videos shown on MySpace are done so illegally and without permission from copyright holders.  Universal uses Jay-Z as an example in their case against MySpace, saying that songs from his new CD, "Kingdom Come", are available on MySpace even though, at the time the suit was filed, the record had not been released.  Universal says that MySpace is well aware of the copyright laws that it is breaking and continues to support the "user-stolen"content distributed on the site.  They also say that MySpace knows that they don't have a liscense from the copyright holders of the songs and videos it distributes.  The proof, says Universal, lies in the agreement each MySpace user makes with the site that gives MySpace control over what can be done with the content.   Universal says that MySpace knows that these are not the real copyright holders, and yet continues to show infringing content without permission.

This case is extremely relevant to the YouTube copyright discussion.  First off, it could convince MySpace and other similar sites to follow YouTube's lead and strike revenue sharing deals with major studios.  The YouTube business model would then be seen as a blue print for similar companies, and this in turn would help shield YouTube and other sites from future lawsuits.  However, this case could end up hurting YouTube.  Universal claims that since MySpace edits and posts much of the content on the site, they are knowingly infringing upon the copyrights of the videos and songs available on their site.  Although YouTube's users do much of the posting and editing, YouTube itself still edits user content.  If the courts buy Universal's arguments, YouTube could be in grave danger of future lawsuits.

This article from the New York Times describes in detail the legal issues that Google deals with on a regular basis. Katie Hafner, who wrote the article, notes that any company that is large, successful, and has deep pockets, all qualities of the search engine giant, will attract lawsuits. Yet she says that Google "invites" lawsuits because of the company's "rush to create innovative new services. Professor Jonathan Zittrain of Oxford University is quoted in this article as saying that Google's strategy seems to be "just do it, and consult the lawyers as you go". He sees this as an offshoot of the late 90's internet boom culture which promoted new ideas and technology at the expense of possible legal trouble.

With Google's recent purchase of YouTube, many believe that the company is "exposing itself to a new spate of lawsuits". Hafner points out the fact that much of the content on YouTube is copyrighted material just copied and illegally posted, as well as the lawsuit filed against YouTube by Robert Tur, which Google will now have to deal with. However, Google has plenty of experience in copyright fights, and seems ready for the challenge.

Hafner spends the rest of the article detailing the reason's behind Google's aggressive policies toward fighting litigation and some of the most well known copyright and trademark cases involving YouTube. She first notes that Google now has a team of over 100 lawyers, stationed both overseas and in the United States, many of which are experts on intellectual property law. This team works tirelessly to fight nearly every single lawsuit filed against Google. They do this because, one, Google wants to set a good legal foundation for itself, and winning cases certainly does this. Also, any lawsuit that gets to the pre-trial fact finding phase, writes Hafner, would "pose the danger of revealing too much about Google's propriety technology"

The rest of the article deals with Hafner describing the Geico case against Google, in which the courts ruled in Google's favor, and the lawsuits brought up by the French and Belgian press. The Belgian case is extremely relevant to copyright law, with Google claiming that headlines are not copyrightable, while the Belgian media thinks otherwise. A Belgian court ruled in favor of the media outlet in September, yet it remains to be seen whether or not this ruling will have an effect on Google in the United States.

This article is important in the YouTube discussion because it points out one of Google's great advantages when dealing with copyright issues- Google has tons of experience in this area.  Google's executives and lawyers both know what to expect in the upcoming lawsuits, and they firmly believe that they have a solid defense.  Google would not have purchased YouTube if they had not been confident in the company's legality. 

Stephen Speicher discusses YouTube's place in the fair use discussion, and how the debate over YouTube could help and answer the "age-old question: What is fair use?".  He first comments on YouTube's amazing rise to stardom, becoming the number one internet video service just a year after its conception.  Speicher explains that YouTube's success stems mostly from its ability to allow users to post videos and view them.  He also points out that while much of YouTube's traffic comes from views of homemade, legal, amateur content, a large bulk of the videos posted on the site are copyright infringers and, therefore, illegal. 

While many of these videos containing copyrighted content are direct copies and obviously illegal,  many of the videos show short news clips from cable television, sitcom or clips of sporting events and other public gatherings.  These "tightly-edited clips", argues Speicher, can be seen as reporting or educational, and therefore within the limits of fair use.  He uses the example of someone blogging about the officiating in the NBA playoffs, saying that while it would be possible to describe each play in detail and then give the thumbs up or down on the refs call, it would be much more practical just to show the clip of the play itself to illustrate your point.  He also mentions the fact that YouTube is positioning itself to be at the heart of this debate by "distancing themselves" from complete works (The ten minute limit on clips is a good example of this).

This fair use argument, while it isn't YouTube's major defense mechanism (that would be the Safe Harbor provision in the DMCA), can help bolster the case for YouTube as a legitimate company.  If YouTube can convince the courts that these clips are fair use, it would eliminate a significant portion of the clips now considered illegal on the site.  With more legal videos, YouTube can make the Sony argument, saying that their company has substantial non-infringing uses.  This precedent has been in place for twenty years and would put YouTube on very solid legal ground.

This document was posted on Mark Cuban's website blogmaverick.com.  Cuban claims that this is the actual filing of the case Tur v. YouTube, and judging from the legal jargon and very deliberate format, there seems to be little reason to deny that this is the actual filing.

The document states that on December 4, 2006, the case Robert Tur v. YouTube will be heard in United States District Court of Central California.  The introduction states that "there can be no doubt that serious and repetitive infringements of Tur's copyrighted works are displayed...on YouTube on a daily basis."  It also states that YouTube's main defense is the Safe Harbor Act in the DMCA, which they say protects them because they immediately remove copyrighted content at the owner's request.  The summary of Tur's claim states that YouTube does not qualify for the Safe Harbor provision because they make money "in the form of banner advertising directly attributable to the infringing video clips."  The article then goes on to list the details of the case, which basically state that five clips copyrighted by Tur are being shown on YouTube illegally. It also states that Tur is seeking roughly $150 million in damages, or $150,000 for each illegal viewing of his clips.

The decision in this case will be absolutely essential to the future of YouTube as a legitimate business.  While YouTube has helped solve many of their copyright issues with big name studios through recent revenue sharing agreements, a decision favoring Tur in this case would open the door to more lawsuits from small copyright owners.  This case will also test the legitimacy of YouTube's safe harbor defense.  Without the safe harbor provision, YouTube is an illegal company.  If this court's decision and later decisions eventually change the validity of that provision, or convinve Congress to do so, YouTube may be completely out of luck.  However, a win in this case would put YouTube on solid legal footing behind this Safe Harbor Defense.

Michael Liedtke writes in this article about the recent lawsuit brought against Google involving Google's online video service and whether or not the lawsuit is a sign of more copyright issues to come for Google's newest addition, YouTube.  He writes that content owners may only be biding their time until the Google acquisition of YouTube is finalized.  At that point, a number of lawsuits may be filed against YouTube by copyright holders. 

Google launched its online video service this January.  Since then, Liedtke writes, they have been desperately trying to catch up to YouTube, created a year earlier by two Pay Pal employees in California.  However, Google has "abandoned its attempts to catch YouTube", and instead just purchased the company for a cool $1.65 billion.  The issue with the acquisition, Liedtke explains, is that copyright holders can now sue YouTube with expectations of a large payout, now that they are backed by the immense capital possessed by Google. Liedtke notes that before the deal with Google, YouTube "had been subsisting on $11.5 million in venture capital".  Google itself has $10.4 billion- in cash.  Google itself has acknowledged the fact that it could face more copyright lawsuits because of YouTube.

Liedtke also talks about the widely circulated internet rumor which said that Google had set aside $500 million in case copyright issues came up after the purchase of YouTube.  The number was later confirmed to be $200 million by Google representatives.  Eric Schmidt, Google's CEO, continues to remain confident amidst the fears of lawsuits.  He said that YouTube has "been on this path" referring to copyright issues, and that together they could solve these issues "more quickly". 

Investors also seem to be unfazed by copyright concerns over YouTube.  Liedtke points to the fact that Google has a lot of experience in copyright cases and has yet to been dealt a serious blow.  Google's stock has risen nearly 15% since the purchase of YouTube. 

Tim Wu in this Slate article describes in detail the differences between YouTube and Napster and why he believes that YouTube has very solid legal footing. Wu simply says the YouTube has a safe harbor provision in the DMCA protecting them, while  He also describes the "Bell lobbyists" and how their efforts set the foundation for YouTube's seemingly successful business model. 

The Bell lobbyists, Wu writes, fought one of the greatest copyright struggles in history when it took on Hollywood over the liability of internet companies for copyright infringement.  Wu describes the clash of these two entities as "Frazier meeting Foreman", saying that the unstoppable force that was the Hollywood lobbying team finally met an immovable object in the Bell lobbyists.  Hollywood, on one side, wanted internet sites to be responsible for all content on their site, even if they were unaware of the infringing content.  The Bell lobbyists insisted that this was ludacris and fought against Hollywood's lobbyists with all their political might.  A stalemate insued, so a compromise was reached.  Wu writes that this compromise would later become Title II of the DMCA, which states that companies are protected by a "notice and takedown" system.  This means that all a site has to do to comply with copyright laws is take down infringing material at the request of the copyright holders.  Therefore, YouTube only needs to quickly takedown any material after notified to avoid legal issues. 

Wu does mention that this provision is not 100% "air-tight" noting that if YouTube knows there is infringing material on its site and fails to act, it may be liable in court for the infringement.  Wu then describes the difference between Napster and YouTube, saying that if the Internet were a red-light district, Napster would be the "pimp" and YouTube the "hotel".  He says that while Napster, like a pimp, is a means of getting illegal things and nothing else, YouTube is like the hotel in that they only "provides the space for people to do things, legal or not".

Brian P. Wilkner discusses in this article the effects of the Sony v. Universal and MGM v. Grokster on the newest batch of cases that will "pit mainstream, consumer-participation-oriented companies against copyright owners".  The article gives background information on both the Sony and Grokster cases and talks about the contributory liability doctrine, and how the Sony decision limited the power of this doctrine by stating that Sony's VCR had significant non-infringing uses.  On the other hand, it noted the Napster and Grokster cases which found each music file sharing company guilty of copyright infringement, and therefore were illegal.  Napster's fatal flaw, writes Wilkner, was the fact that they had a centralized indexing system that gave the creators of Napster too much knowledge of what was actually being shared on their website.  Grokster attempted to circumvent this problem by creating a decentralized index which "deprived their creators of any knowledge of infringing activity".  The Supreme Court ultimately ruled against them, saying that companies that distribute a device with clear intentions of promoting copyright infringement were illegal, and that Grokster's claim that they were unable to stop copyright infringement from taking place demonstrated an "unlawful objective".  One of the interesting tidbits about the Grokster case was that the court did not rule on the limits of the Sony decision, as many court observers thought they would.

Wilkner then goes on to talk about "inverse Grokster scenarios",  which he says will "pit content owners against legitimate organizations seeking to capitalize on the demand for interactivity".  Companies like Google, MySpace, and YouTube, he states, will not make statements or take actions to promote copyright infringement, but will maintain day-to-day operations with the knowledge that some copyright infringing content is being viewed or placed on their sites.  This is in direct contrast with Grokster, which claimed ignorance by stating it was unaware of any infringement taking place on its site.  The article ends with Wilkner proposing a "test" of the inverse Grokster dilemma in which the courts will have to decide whether the public benefit from these sites outweighs the property rights of copyright holders. 

Amanda Bronstad in this article writes about the differences between the copyright infringement cases that ultimately doomed music file sharing sites like Napster and Grokster and the current batch of cases involving video sharing sites like YouTube.  On one side of the argument, video sharing sites say that a major percentage of their content is perfectly legitimate and legal.  Also, these sites, especially YouTube, point out that they remove content considered to be copyright infringing immediately after they are notified by the copyright holder.  This did not happen with music file sharing sites. However, lawyers for Hollywood's major studios say that their case is bolstered by the fact that they now have a precedent in MGM v. Grokster.  They argue that web sites know they make money off of this infringing material, and therefore are liable for induced infringement.  They also say that video sharing sites may be considered direct infringers because of the role these sites take in editing user content.

Bronstad also notes that while the recent agreements between YouTube and major studios such as Universal, Warner, and CBS does help legitimize the site, the agreements aren't necessarily "suit proof".  She says that many experts in the field see a major gray area that could be exploited by an ambitious company or law firm.  She says that the debate will ultimately come down to the DMCA's "safe harbor provision", and whether or not these video sites have put in place and enforced rules to protect themselves from future legal issues.  She says that the strongest safe harbor these companies have is the ability to remove copyright infringing material from their sites.  If sites continue to consistently remove copyright infringing content, as YouTube has done over the last few months, then these companies will have a strong legal foundation for their business models.  

"So it should be no surprise that the video game industry is plagued by legal battles -- many of which have shaped companies and games as we know them. And it's hardly a new trend; the justice system has a long relationship with videogames, stretching back to the medium's infancy."

 need to read this one...

John Arnone gives a legal analysis of Rooster's popular machinima Red vs. Blue, a series of films using Microsofts Halo, and Halo 2 for source material. Suprisingly Bungie (Microsoft's Game Development Company) gave Rooster full permision to use the game for the machinima series. A risky move considering the "low humor" of the machinima show, but in the end a wise decision. RvB has helped make Halo, and the XBOX as popular as it is today.

            In his discourse on Thomas More’s continued significance in modern law, Blake T. Morant examines the impact of the personal beliefs of lawyers and their cognitive influence on decision making.

            Morant reveals the difficulty for professional attorneys in resolving professional expectations and personal beliefs (968). To resolve this dilemma, Morant offers two alternatives: one can, like More, suffer the consequences of refusing to accommodate or can be more “pragmatic,” using cognitive dissonance to appear to acquiesce, but privately disagreeing, an alternative that More could not tolerate. In the end, attorneys strive to diminish dissonance through contextual solutions. Ultimately, in today’s more morally vapid world that seeks instant gratification, the attempt at reconciliation of these conflicted beliefs is more likely because of the fundamental dearth of moral clarity and resolve.

            In short, contemporary lawyers struggle with many ethical questions that lack universal clarity. Because of this, it has become increasingly important to appreciate the impact of these decisions and the necessity of solution (994). The author notes a parallel between the ethical issue surrounding More’s refusal to obey Henry and his own experience attempting to compromise with his superior officers while serving in the military, with the important exception that More’s dilemma resulted in his death as the consequence (996). In the end, it is most important for lawyers to understand the “basis for conflicting beliefs and the subsequent duty to incorporate that understanding into a search for solution” (1009). Through increased awareness, Morant hopes, lawyers can discover more effective solutions to their moral conflicts.