Building a Slippery Slope to Code

April 21, 2017

by Jay Marshall Wolman

I’ve been following the efforts of Carl Malamud and Public.Resource.Org to free the law.  In short, and inadequately summarized, sometimes lawmakers incorporate by reference or otherwise make part of the law works that are subject to copyright.  Thus, for example, a state may require electricians to comply with the NFPA National Electrical Code.  And, for the low low price of $98, the NFPA will sell it to you.

“But, wait!” you may say, “why should I have to pay for a copy of the code when the code is the law?”  And that’s the kind of thing Public.Resource.Org has been questioning.  It originally bought copies of these codes and published them.  And, earlier this year, they lost a law suit brought by the publishers of these codes, and they have been enjoined from publishing them.  They also suffered a second defeat, in another case, last month, involving the State of George’s official, but privately published, annotated code (the code is in the public domain, but the annotations are not, despite legal reliance on the annotations).

From a due process standpoint, it is unreasonable to be held accountable for a violation of a law or code, locked up behind a copyright, especially where there is no defense for ignorance.  On the flip side, the fact that code authors should have to give their works away for free just because (even though at their encouragement) some government entity adopts it as law, gives me pause.

Codes sound very law-ish by their nature that it’s easy to mentally treat them as something that shouldn’t even be copyrightable, like a phone book.  But, since there is some creativity involved, with choices made as to what is safe and what is not, it probably is copyrightable.  Thus, there’s no legal reason why one class of copyrightable works should be treated differently than any other.  And republication would, generally speaking, be infringement.

Let’s use a different type of copyrightable work to illustrate.  Assume the State of New Columbia requires all teenagers to graduate from high school.  And let’s say the curriculum, as implemented by the schools and teachers, required every student to read and do a book report.  One teacher chooses “Twilight” for some horrible reason, presumably related to the sorry state of our educational system.  Thus, essentially by law, every student in that teacher’s class must obtain a full copy of Stoker’s ugly stepchild.  Should I, then, be allowed to post a PDF of that book for any of the students to download for free, without permission of the author?  Of course not.  Even if she lobbied the schools.  So long as the schools fairly make the book available to borrow, so students can actually do their assignment, due process should be satisfied.  So, too, with the codes.  So long as an electrician can fairly access and learn what he/she needs to do, that should be sufficient.

The Google Books saga is informative, and there was a fascinating article in The Atlantic yesterday that got me thinking about this again.  About two and a half years ago, Google prevailed in an appeal before the Second Circuit in its case against the Author’s Guild.  Google had embarked on an ambitious project to scan millions of books in order to make snippets of text available in search results.  The Second Circuit found that Google’s reproduction of the works, but limited to the snippets, was fair use.  This is where Google’s outcome differs from the losses of Public.Resource.Org.  The latter published and made available the full texts of the codes online, unlike Google, which restricted the amount of the works displayed.  This was a key distinction made by the courts.

Of course, sometimes you can republish a work wholesale for comment as fair use.  And Public.Resource.Org could well prevail in these arguments on appeal.  It will be interesting to watch, both for freeing the law and, if successful, for whatever else might be freed just because the government made it required reading.


Hungry Like the Wolf

April 19, 2017

by Jay Marshall Wolman

In the wake of Super Bowl XLIV, Katy Pery’s backup dancer “Left Shark”, disputes among intellectual property lawyers arose as to what kind, if any, protection was available to the owners/designers of the costume.  Recently, our friend, the Boozy Barrister, over at Lawyers and Liquor, became embroiled with the world of furries, which got me thinking again about the copyrightability of costumes or fursuits, as the case may be.

Much of the precedent involving the copyrightability of fursuits came out of the Second Circuit.  See Chosun Int’l v. Chrisha Creations, Ltd., 413 F.3d 324 (2d Cir. 2005).  In Chosun, competing animal-themed Halloween costume makers fought over whether Chosun Int’l had a valid copyright to enforce.  The district court dismissed, finding the costumes to be non-copyrightable useful articles.  The Second Circuit reversed, remanding for a determination of whether there were elements that could be physically or conceptually separated from the costume itself.  By way of example, the Second Circuit suggested the head or hands could be removed physically or conceptually from the useful, clothing aspect of the costume.

Last month, the Supreme Court in Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017) rejected the physical-conceptual distinction utilized in Chosun.  In Star Athletica, a copyright dispute arose regarding cheerleading uniforms.  Varsity Brands claimed its costumes were infringed upon and Star Athletica argued that the costumes were useful articles and could not be copyrightable.  Star Athletica won at the District Court, but suffered a reversal in the Sixth Circuit.  The Supreme Court affirmed the Sixth Circuit decision–the graphic designs were separately identifiable and could be protected.  It found that the designs could, essentially, be drawn as art and, therefore, were protected (the shape, cut, and dimensions of the uniform were not protectable).  The specific test announced was:

We hold that an artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article.

So, turning back to Left Shark and furries, either could be perceived as a separate work of art that is protectable.  Separability might be harder to determine, as the dimensions of the shark shape or a Boozy Barrister Badger fursuit are integral to the costume itself, but this is probably not fatal.  This is especially where fursonas (an actual term, though I prefer “fursonae”) may include the avatar, which can be a depiction of the fursuit in two dimensional form–a separate work of art.

Thus, a fursuit is likely eligible for copyright protection.  (The Left Shark trademark dispute is really not about the costume and the trademark is really unnecessary if it is copyrightable anyhow.)


A Federal Pure Bill of Discovery

July 21, 2015

by Jay Marshall Wolman

I read an interesting case over the weekend.  You may recall the case of Heleen Mees allegedly stalking Citigroup chief economist Willem Buiter.  She was charged with five misdemeanor counts after, it seems, an affair with the married Buiter didn’t pan out.  The charges were dropped as part of a deal.  However, the story doesn’t end there.

It seems that, following the criminal process, Ms. Mees intended to sue Mr. Buiter in the Netherlands for defamation.  She filed an application in Federal court in New York, pursuant to 28 U.S.C. § 1782, which allows a district court, “upon the application of any interested person,” to require a person (assuming personal jurisdiction) to “give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal.” The application was denied, so she appealed to the Second Circuit.

Last week, the Second Circuit issued its decision.  There are two key parts to its holding:

First, an applicant may satisfy the statute’s “for use” requirement even if the discovery she seeks is not necessary for her to succeed in the foreign proceeding. Second, the discovery need not be sought for the purpose of commencing a foreign proceeding in order to be “for use” in that proceeding.

Ms. Mees had not even begun litigation in the Netherlands and it was unclear whether she even needed what she sought to either plead her case or prove it.  Yet, the 2nd Circuit ruled that her application could proceed.  It was remanded to determine whether the discretionary factors under Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 259, 124 S.Ct. 2466, 159 L.Ed.2d 355 (2004) were met.  As set forth in that case, the factors are:

   First, when the person from whom discovery is sought is a participant in the foreign proceeding (as Intel is here), the need for §1782(a) aid generally is not as apparent as it ordinarily is when evidence is sought from a nonparticipant in the matter arising abroad. A foreign tribunal has jurisdiction over those appearing before it, and can itself order them to produce evidence….In contrast, nonparticipants in the foreign proceeding may be outside the foreign tribunal’s jurisdictional reach; hence, their evidence, available in the United States, may be unobtainable absent §1782(a) aid. …

   Second, …a court presented with a §1782(a) request may take into account the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U. S. federal-court judicial assistance. …Further, the grounds Intel urged for categorical limitations on §1782(a)’s scope may be relevant in determining whether a discovery order should be granted in a particular case. …Specifically, a district court could consider whether the §1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States…. Also, unduly intrusive or burdensome requests may be rejected or trimmed. …[Internal citations omitted]

This case got me thinking.  Normally, to obtain discovery in a case, one must file a lawsuit against a defendant over whom the court has jurisdiction, engage in a Rule 26(F) conference with them, and then propound discovery.  One of the biggest obstacles is when you don’t know who the defendant is.  Take, for example, your standard bittorrent movie download, violating the studio’s copyright.  Let’s assume that actual infringement has occurred and that the studio has the right to pursue the claim.  All the investigation may turn up is the IP address used to download the movie.

One of the problems raised by the defendants is that an IP address, like a telephone number, only tells you the subscriber, not the infringer.  It is as if you only got the license plate number of the car that hit you, not the driver.  In the MVA context, you can frequently sue the driver under a theory of negligent entrustment or vicarious liability and ultimately learn the identity of the motorist.  Unfortunately, those theories might not be available in the copyright context, notwithstanding arguments to the contrary.  So, what is a content creator to do?  Suing the John Doe account holder might get the case thrown out when trying to obtain early discovery if the complaint does not allege facts to suggest John Doe is the infringer, rather than his roommate.

What is needed, then, is a pure bill of discovery.  Some states, such as Connecticut, permit the taking of discovery before commencing an action in its own state courts.  C.G.S. 52-156a.  Florida, though, appears to permit it more broadly.  However, both of those have limitations where the person with the information is either in a different state or if (in Connecticut’s case) the use is for an action in another court.

The Second Circuit effectively determined that a section 1782(a) application can work as a pure bill of discovery.  The caveat, of course, is that the rights holder must be able to contemplate an action against the infringer outside the United States.  Under the Berne Convention, it would seem generally cognizable, assuming a foreign infringer in a signatory country.  Bittorrent swarms not infrequently include actual foreign infringers and domestic infringers using foreign proxies.  Thus, a cognizable claim to pursue these infringers in a foreign court can be alleged; the scope of the discovery, however, need not be limited to them.  Under the Second Circuit’s ruling, the rights holder could pursue discovery from a domestic ISP to identify the account holder and then directly from the account holder to identify the swarm participant, so as to potentially call the participant as a witness in the foreign proceeding that the rights holder never actually has to file. [Of course, it is a good idea to actually file abroad, especially if there is a concern that the 1782(a) application was not filed in good faith.] And, once an actual domestic infringer is identified, there is nothing to preclude bringing a domestic copyright infringement action against that person.

Now to see if anyone thinks this could work.


The Raunchy Version of Louie Louie — Lyrics Are Public Domain?

May 3, 2015

I recently wrote about the two year FBI investigation into the song Louie Louie. Read it here. The short version, some blueballed fuckhead agents and uptight feminists lost their shit at the thought that Louie Louie might be corrupting our youth.

The FBI had its theories as to what the “dirty words” were. But, they were totally wrong. Here is what the cops and the feminists thought the lyrics were:

After a two year investigation, the FBI concluded that these were not the words to Louie Louie.

After a two year investigation, the FBI concluded that these were not the words to Louie Louie.

The UK-based “virtual band” Flirt With Danger decided to release its own version of Louie Louie, not using the original lyrics, but using the lyrics that the FBI and the Junior Anti-Sex League thought the lyrics were. (source)

Gotta love that.

So who owns the copyright to those lyrics?

Inside the United States, they would be public domain. 17 U.S.C. § 105 states:

Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

17 U.S.C. § 101 defines a government work as follows:

A “work of the United States Government” is a work prepared by an officer or employee of the United States Government as part of that person’s official duties. (source)

I would say that the faux lyrics to Louie Louie were prepared by an FBI agent as part of his official duties. That would mean that Flirt With Danger might be flirting with some kind of danger, but not the danger of a copyright infringement suit.

Well, wait a sec though…

What if the U.S. Government wants to enforce the copyright to its “work” outside the United States? It could do that. The U.S. Government work exception only applies in the United States. See S. REP. NO. 473, 94th Cong., 2d Sess. 56 (1976)). House Report No. 94-1476, p.59 (“The prohibition on copyright protection for United States Government works is not intended to have any effect on protection of these works abroad. Works of the governments of most other countries are copyrighted. There are no valid policy reasons for denying such protection to United States Government works in foreign countries, or for precluding the Government from making licenses for the use of its works abroad.”).

Therefore, the Government could assert its right to the incorrect lyrics to Louie Louie outside the USA. Flirt With Danger is a UK-based band. Do they have a problem?

Well, for starters, the FBI would have to seek to enforce its copyright against Flirt With Danger, which would be a pretty stupid public relations move. But, lets say they tried. The “US Government Works” prohibition would not be a an impediment to their infringement claims in the UK.

So now what? Lets say the FBI was that stupid.

Aha! What about authorship? Is the FBI really the “author?” Wouldn’t the “author” be the person who called the FBI and reported those to be the actual lyrics? Wouldn’t the lyrics have sprung from the dirty-mind of Mrs. Complainy-Pants?

Perhaps. But then, Mrs. Complainy-Pants would need to try and enforce her copyright in the lyrics. But, then again, you don’t have copyright until your work is in a “fixed tangible medium.”

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

So, Mrs. Complainy-Pants only had the lyrics in her mind. The FBI agent “fixed them.” But, did he really? Did he write exactly what she said? What if the wrong lyrics didn’t come from Mrs. Complainy-Pants, but rather from some kid at her daughter’s school? Wouldn’t he be the author?

The real story is likely lost to history – as is any claim of authorship. To the extent that any claim of authorship could ever be extracted from the jumbled mess of history, I think that our friends at Flirt With Danger are in little to no danger of a copyright infringement claim.

Me gotta go….


Copyright Runs Amok in Comic Case

April 27, 2015

Horizon v. Marvel: Copyright in the Three-Point Landing?

I love copyright law, usually. Why is it there? It is there to ensure that authors and artists can profit from their work. Great idea.

Unfortunately, somewhere along the line, the concept got polluted. Originally, copyright protected works for 14 years, with a renewal period of 14 years. After a number of changes, we’re now up to a term that is the entire lifetime of the artist plus another 70 years. Nuts. This has created all kinds of problems with “orphaned works” — works that nobody publishes, people want to read, but they can’t — because copyright.

Come at us bro!

Come at us bro!

Another issue arises when we have copyright privateers – when plaintiffs clearly don’t have any claim that has anything to do with incentivizing new works, but they sue anyway.

Don’t get me wrong, these are not what you would call “frivolous” claims. Why not? Because they work. Federal courts have increasingly provided such expansive interpretations of copyright protection, that it is a big welcome mat to anyone with one of these expression-stifling claims. For example, the law surrounding sampling has really grown out of proportion. And, the recent “Blurred Lines” case shows where copyright has run amok. (For more, read The Asshat in the Rye)

Well, here we go again. In this circumstance, we have an infringement case involving Marvel Comics — and comic books, almost by design, use common ideas and themes all the time. In a recent complaint, we have essentially a claim based on the “three point landing”. See Horizon Comics Prod. v. Marvel Ent., LLC, No. 15-11684 (Mass. Apr. 23, 2015).

Horizon Comics, owned by the Lai brothers who also happen to be employees of Marvel, asserts that Marvel’s reinvention of the Iron Man character in its 2013-2015 theatrical releases infringes upon and undermines their copyright in characters from the Horizon comic Radix, originally released in 2001. Horizon claims that Marvel, without permission, took its (grey, mind you) fully armored suits and fitted them for the new Iron Man (red and gold) look, as “ the comic typically depicted Iron Man wearing simple spandex-like attire and minimal armor.” Id. at 11. Horizon further contends that it claims copyright on the three point landing. Perhaps in the future they would narrow this to the three-point landing specifically while wearing armor and leaning on their left hand , though that certainly wouldn’t be original enough either. In any case Horizon seeks redress against Marvel’s theft of the “fully mechanized suit of body armor” and the three-point landing depicted in the Iron Man Movie Poster.

Neither mechanized body armor nor the three-point landing are new to the comic world. For armor, characters of note may include Master Chief from Halo, Batman, Transformers, and perhaps the Pacific Rim comic release that coincided with the movie in 2013. Horizon seeking to profiteer here would mean that they could, I suppose, seek redress against DC for Superman’s occasional adaptation of the pose, or other places in the Anime realm including characters from Kuogane Pukapuka Tai and Naruto (which has been around since 1997). Although one may think to consider that three-point landings of note include Black Widow and Spiderman, both Marvel characters begs the question does Marvel favor the three-point stance, and did this fancy come about after Lais’ involvement?

Either way, the three-point stance and the armored wardrobe cannot so simply be claimed by the Lai brothers. We should reflect on this as an example of how not to use our lawyering super powers to crush the comic realm into copyright compliance. Copyright indeed should, though it doesn’t always, cover creative and novel characters in comics, books, and movies, though we must draw the line at common tropes used to further artistic invention.

The Three Point Landing is such a cliché at this point that I hardly think it could be deemed copyrightable. See, e.g., Herzog v. Castle Rock Entertainment, 193 F.3d 1241 (11th Cir. 1999) (holding that plaintiff failed to establish substantial similarity between two films portraying detectives investigating murder in small town. The court reasoned “scenes a faire, ‘sequences of events which necessarily follow from a common theme,’ are not protectable.”)

Unfortunately, this case shows where the problem lies with copyright. I’m no copyright abolitionist. I think that real infringement should be hit with real penalties. But, cases like this are the cancer within copyright — the cancer that threatens to eat creativity. The cancer that threatens to use copyright law to stifle free expression.

It deserves a POW! right in the face.


I DECLARE CONFIDENTIALITY!

November 4, 2014

You remember that episode, where Michael Scott declares bankruptcy?

Keep that in mind for this lesson, kids.

This happens to all of us, from time to time. A lawyer sends you a letter with some threatening language on it that he thinks accomplishes his goal of making it “confidential.” You know, like this:

CONFIDENTIAL LEGAL NOTICE
PUBLICATION OR DISSEMINATION IS PROHIBITED

The correct legal response is “suck my ass” or whatever you want to say. Ok, fine, how about “your point is invalid”. Let’s go with that. It is nicer, after all. And I’m all about being nice.

Now here’s one thing you can rest assured of: If someone puts that foolishness on their letter, it is because they’re afraid of that letter getting out there. They can’t possibly have confidence in what’s in it. Look, I write a letter, I expect that it might wind up getting slapped on Simple Justice, with Greenfield making fun of it. Even then, I can’t seem to catch every typo. But you know what? If my name is on it, you can bet your ass that I’ll own it.

And here’s why you can make the chucklefuck who signed YOUR letter own it by publishing the shit out of it, if you want.

For starters, saying “This letter constitutes confidential legal communication and may not be published in any manner.” is about as legally compelling as Michael Scott yelling “I DECLARE BANKRUPTCY.” Lawyers do not have magic powers that turn letters into confidential communications. You’re more likely to find a lawyer who can turn water into funk than a lawyer who has the magic spell to make a letter confidential. Sure, there might be some rules that make them inadmissible for certain purposes in litigation. But, you wanna share that letter? Go right the fuck ahead. Unless you’ve agreed to confidentiality, it ain’t confidential.

When I get one, I usually email the other guy and say “I’m not going to respect your request for confidentiality.” I give them a chance to support their position. When they don’t, I ask them if they want to give me something in exchange for confidentiality. So far, no takers.

Then, they realize “holy flaming peckerballs, this Randazza character can see right through the I DECLARE CONFIDENTIALITY trick! Randazza has spell capability? FUCK, he’s not a fighter, he’s a goddamned level 9 Ranger, and he’s got Druid spells! HE JUST CAST THE ‘SEE THROUGH BULLSHIT’ SPELL!!!!!

I know, it's my intellectualize proprietary res judicata!

I know, it’s my intellectualize proprietary res judicata!

So then they try again…

Aha, smart ass. That letter is COPYRIGHTED! I hereby throw the spell of Title 17!

Bush. League. Shit.

If someone pulls that on you, they’re even more full of shit than the guy who just tries the I DECLARE CONFIDENTIALITY spell.

Dumbass rolls a 2.

Here’s why:

It is no secret that the film, The People vs. Larry Flynt is one of my favorite movies of all time. It was required viewing in my classes, back when I did the lawprof thing. New hires need to watch it at my firm. You need to watch it.

Most of my readers are fully aware of the Supreme Court case depicted in the film. However, the lesser known case, mentioned for all of 30 seconds in the film, is the Hustler v. Moral Majority countersuit.

In that case, Jerry Falwell took the “Jerry Falwell Talks About His First Time” Campari parody and sent it to his Moral Majority minions — soliciting donations. Falwell took the entire copyrighted work and used it for a blatantly commercial purpose.

One of Falwell’s top executives conceded that the inclusion of a copy of the ad parody was part of a “marketing approach” to fund-raising, and the court can safely assume that this strategy involved encouraging the faithful to donate money. Hustler v. Moral Majority, 606 F. Supp. 1526, 1534 (C.D. Calif. 1985).

However, the court also found that he was not using the ad to elicit support for purely commercial gain, but even if he was, this did not dissolve his fair use defense.

[T]he court must also consider whether “the alleged infringers copied the material to use it for the same intrinsic purpose for which the copyright owner intended it to be used.” Marcus, 695 F.2d at 1175; Jartech, Inc. v. Clancy, 666 F.2d 403, 407 (9th Cir.), cert. denied 459 U.S. 879, 74 L. Ed. 2d 143, 103 S. Ct. 175 (1982) (same); see Italian Book Corp. v. American Broadcasting Companies, 458 F. Supp. 65, 70 (S.D.N.Y. 1978) (fair use generally sustained if defendant’s use not in competition with the copyrighted use). Under this principle, defendant’s use is more likely to be considered fair if it serves a different function than plaintiff’s.

In distributing the parody Falwell evidently meant to provoke the anger of his followers and to comment on the level of obscenity in the work.

The C.D. of California also pointed out portions of the Copyright Act’s legislative history, upon which a re-poster of a demand letter can rely:

The court discerns additional support for Falwell’s position in the legislative history to section 107. The House Report states: “When a copyrighted work contains unfair, inaccurate, or derogatory information concerning an individual or institution, the individual or institution may copy and re-produce such parts of the work as are necessary to permit understandable comment on the state-ments made in the work.” House Report, supra, at 73. It would thus be consistent with congressional intent to find that Falwell was entitled to provide his followers with copies of the parody in order effectively to give his views of the derogatory statements it contained.

Accordingly, when a law firm sends you a cease and desist letter accusing you of illegal activity, you can use that letter to provide your own supporters with copies of it in order to effectively give your own views on the issue — and to gather support for your cause. And… to make fun of that shit (because making fun of buffoons is classic fair use)

The legal landscape for I DECLARE CONFIDENTIALITY gets even more gloomy as we continue to read the Hustler case. The First Amendment rears her sexy pouty slutty face. (Yes, I want to bang Lady Liberty. Its a fetish. Constitutional cosplay anyone?)

First amendment considerations also enter into the court’s assessment of the purpose and character of defendants’ use. Although the first amendment does not provide a defense to copyright infringement, when an act of copying occurs in the course of a political, social or moral debate, the public interest in free expression is one factor favoring a finding of fair use. See Keep Thomson Governor Committee v. Citizens for Gallen Committee, 457 F. Supp. 957, 959-60 (D.N.H. 1978) (political committee’s use of a portion of rival candidate’s musical composition amounted to fair use in light of public interest in full debate over election and absence of injury to plaintiff). Cf. Robert Stigwood Group Limited v. O’Reilly, 346 F. Supp. 376, 383-84 (D. Conn. 1972), (priests’ un-authorized copying of rock opera, “Jesus Christ Superstar,” was not fair use where facts did not support defendants’ contention that their performance was counterattack to original’s “perverted” version of the Gospel), rev’d on other grounds, 530 F.2d 1096 (2d Cir.), cert. denied, 429 U.S. 848, 50 L. Ed. 2d 121, 97 S. Ct. 135 (1976).

Similarly, anyone who receives a cease and desist letter, from any lawyer (including me) can certainly claim that there is a debate at hand. Without the debate, there would be no complained-of statements or actions. It does not take Justice Brennan to see the First Amendment protection inherent in the republication of a demand letter in this context.

The purpose of copyright is to create incentives for creative effort. Even copying for noncommercial purposes may impair the copyright holder’s ability to obtain the rewards that Congress intended him to have. But a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author’s incentive to create. The prohibition of such non-commercial uses would merely inhibit access to ideas without any countervailing benefit. Sony Corp. v. Universal City Studios, 104 S. Ct. 774, 793 (1984)

Under the “harm to the market for the original” prong of fair use, if the defendant’s use would tend to diminish sales of the plaintiffs work, then the factor can count against the defendant. However, that only applies if it would supplant the marketplace for the original. For example, if I copied a demand letter and used it as my own, then I might be committing copyright infringement. On the other hand, if I use the demand letter to ridicule the author, and the result of that ridicule is that consumers form the opinion that perhaps it would not not be a wise choice to select that lawyer to represent them, that is protected speech.

Let us return to Hustler v. Falwell:

The court has carefully considered all the evidence placed before it in light of the factors set out in section 107. It concludes that the “‘equitable rule of reason ‘ balance,” Sony Corp., 104 S. Ct. at 795, tilts sharply in favor of a finding of fair use. Any other result would mean applying the copyright laws in an inflexible manner and ignoring fundamental considerations of fairness. The ad parody was a satire about Falwell. He was entitled to use it as he did.

Exactly. The cease and desist is an instrument of attack upon the recipient. Any court that would find that this is copyright infringement should be reversed or impeached.

Okay counselor, but do you have a case that is exactly on point?

As a matter of fact, I do.

In Online Policy Group v. Diebold, the Northern District of California held that “fair use is not an infringement of copyright.” This is a slight tilt from the more common “fair use is an affirmative defense” logic. The N.D.Calif. held that the copying of the copyrighted materials (Diebold email archives) was so clearly fair use that “[n]o reasonable copyright holder could have believed that [they] were protected by copyright.” The court in that case held that a DMCA notice and take down was defective and that the sender was liable for material misrepresentation. § 512(f) FTW.

Conclusion

In short, while this is not legal advice, I’d say that if you want to reproduce a cease and desist letter as an act of self-defense or criticism, you should feel comfortable that the fair use defense will back you up.

And if you are the author of a cease and desist letter, don’t write anything that you don’t want the entire world to see.

Bottom line, no court has ever held I DECLARE CONFIDENTIALITY to be valid, nor has any court supported the “DON’T MAKE FUN OF ME BECAUSE COPYRIGHT” position – but an undisturbed case, relying on mountains of precedent, refutes it.

Lena, meet Barbara.

Lena, meet Barbra.

So with that, here’s a really stupid demand letter from Lena Dunham’s attorneys. It isn’t just dumb because it tries the aforementioned tricks — but substantively, dood… really? You’re supposed to be a better lawyer than that.

Short version of the story: Lena Dunham wrote a book in which she arguably wrote about doing some sketchy shit with her little sister. Truth Revolt wrote about it. The quotes from the book back up the Truth Revolt article. Dunham got all snippy about it. (source)

Yeah, that was pretty fucking stupid.

Its not stupid that she did it. She was a child. Ok. I can live with that. Its not even stupid that she wrote about it. Respect to her. (Ok, not really, book sounds like a piece of shit) But, what the monkeys-eating-their-own-feces-fuck was she thinking in authorizing a law firm to make a stink about it? Stupid. Well, unless they had a meeting and said “hey, Lena, want us to totally fiddle-fuck you by making you look like an asshole? Well then, have we got a plan for you!” If that happened, then GENIUS!

This article constitutes confidential legal communication and may not be published in any manner.

(just kidding)


Germany limits piracy penalties

July 5, 2013

Germany has limited individual piracy penalties to about $1,300 a pop. (source). On one side, I think that’s a reasonable penalty for stealing a song or a movie. On the other hand, it isn’t if there are procedural hurdles to actually being able to enforce even that low amount. I don’t know German civil procedure, so no idea on that.