Infringement Nation
October 1, 2010
Fair Use and the Myth of Aesthetic Neutrality, Part II
In the first suit we examine, Suntrust Bank v. Houghton Mifflin Co., 136 F.Supp.2d 1357 (N.D. Ga. 2001), the estate of Margaret Mitchell sued to enjoin publication of Alice Randall’s The Wind Done Gone, on the grounds that it constituted an unauthorized derivative work based on Gone with the Wind. The main conceit of Randall’s novel was its recasting of the Gone with the Wind story and world from the point of view of the African-American slaves and mulattos rather than the white aristocrats. In Randall’s work, Ashley Wilkes is gay, interracial sexual relationships are discussed, and the travails of daily life for the victims of the South’s rigid and racist social hierarchy are vividly depicted.
September 30, 2010
International Trade Specialist Jimmie Reyna Nominated to Federal Circuit
Yesterday, President Obama nominated Jimmy V. Reyna to be a Circuit Judge on the United States Court of Appeals for the Federal Circuit.
September 29, 2010
Fair Use and the Myth of Aesthetic Neutrality, Part I
At a rhetorical level, courts have historically maintained a steadfast commitment to aesthetic neutrality in their copyright jurisprudence. Consider Justice Oliver Wendell Holmes’s enduring and foundational admonition enunciated in Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903). Cautioning judges to expurgate aesthetic judgments from the courtroom, Holmes, writing for the majority of a divided Supreme Court, found no reason to deny copyright protection to an advertisement featuring renderings of circus performers, despite its prosaic commerciality. Rejecting the view of the defendants and the lower courts, Holmes asserted that the perceived aesthetic value of a work could not and should not determine its copyrightability: “That these pictures had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the plaintiffs' rights.”
September 27, 2010
My State Bar Presentation on Patentable Subject Matter After Bilski v. Kappos
On Wednesday, I gave a presentation by conference call to the California State Bar’s Patent Standing Committee. I provided my analysis of the recent Supreme Court decision in Bilski v. Kappos and some predictions about the future consequences of that decision and about the issues left open by the Court. In Bilski, the Supreme Court held that the Federal Circuit’s “machine or transformation” test was not the only way to identify patentable subject matter – but the Court failed to provide a definitive test for patentability.
September 18, 2010
HP Sues Oracle Over Trade Secrets
Hewlett Packard has made headlines recently for filing a high profile piece of litigation against Oracle. The dispute arose after Oracle hired former HP Chief Executive Mark Hurd as the newest Oracle co-president and director, approximately one month after he resigned from HP. After Oracle hired him, HP retaliated with a piece of litigation over trade secrets claiming that there would be inevitable disclosure of HP's trade secrets in the capacity for which Oracle was retaining the former HP head.
September 17, 2010
Industrial Evolution vs. Revolution
In this rapidly changing market climate logic would lead one to assume the record industry would be adopting dramatic changes in its business model. However, the recording industry’s business model has remained largely the same since Emil Berliner developed the gramophone in 1887. Berliner’s improvements over Thomas Edison’s Etching Tin enabled the device to mechanically reproduce sound from a flat record rather than a tinfoil cylinder.[1] A flat record that was easy to mass-produce. Berliner’s innovation thereby created, quite literally, the record industry.
September 16, 2010
Current State of the Industry
Basic rules of economics dictate that once supply and demand for a good are at equilibrium, the price point and supply levels are at the most efficient levels to meet demand.[1] Where supply has grown into abundance and demand remained stagnant the value of goods must be decreased to correct the market back to equilibrium. The supply and demand for entertainment content behaves in precisely the same fashion. Today the supply of music is greater than ever before. Supply has been significantly increased by technological innovation drastically lowering production costs of content, which has caused both professional and amateur content to be in abundance. The modern consumer is inundated with content unlike any other time in history.
September 15, 2010
Content’s Attack
First, UMG Recordings, Inc., v MP3.com, Inc.[2] in 2000, was centered on a website, MP3.com, which permitted users to access a huge database of music over the Internet after demonstrating independent ownership of an original copy of that recording. The district court found MP3.com directly liable for copyright infringement because it failing to obtain authorization from plaintiffs to copy and distribute their copyrighted works, a violation of plaintiffs’ exclusive rights under §106 of the Copyright Act.[3] The court also rejected MP3.com’s Fair Use defense. The court found that the purpose and character of MP3.com’s use of the plaintiff’s work was commercial and non-transformative; the nature of the work used was core protected content; the work was copied and distributed in its entirety; and finally, MP3.com’s actions would have an adverse market affect on the plaintiff’s music.[4]
September 14, 2010
Labels Surrender
In an effort to combat piracy the music industry has experimented with alternatives in the physical medium on which music is sold as well as piracy thwarting technological blocks. First, the industry tried to upgrade from the standard CD format to more difficult to pirate high audio quality SACD or DVD-Audio albums. These were largely viewed as superfluous and costly because they often required the purchase of a new player to listen to them. Next, the industry adopted DRM, a technological system limiting the total number of devices a song would play on. This system failed because fans continued to illegally download millions of mp3s and quickly found ways to convert their DRM protected files to unlocked mp3s. Barney Wragg, head of digital music for EMI and former Senior Vice President for digital music at Universal Music, had an epiphany in summer of 2006, “I realized that as an industry we’d kind of been smoking crack.”
September 12, 2010
Market Noise
Futurists and industry analysis agree we are on the verge of a revolution in the music business. Gerd Leonhard posits in “the days of the lauded ‘Internet music revolution’ were just a mere testing ground, like the first kicks of a baby during pregnancy.”[1] Similarly, music business analyst Bob Lefsetz believes “[w]e could be on the verge of a renaissance…[t]he death of the traditional label model could eliminate looks-based music and formulaic radio…[e]verything you hated is essentially gone.” [2] This revolution in the music business has been predicted for well over a decade.
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