I’ve been trying to write a paper on patent law the last couple days…I know, I know, my life is thrilling.  In one of my moments of utter boredom I decided to take a peer through the wonders that YouTube has to offer.   (more…)

Internet, Media, User Generated Content

The legal tabloid blog Above the Law posed the question on Friday whether a video posted on YouTube of a group of young men playing on a beach and lipsyncing to Miley Cyrus’s song “Party in the USA” was a fair use.

As a reminder, fair use is a copyright doctrine by which someone who has infringed a copyright can avoid liability.  The doctrine began as common law, but was codified by Congress in 17 U.S.C. § 107.  As codified, the doctrine consists of four factors: (1) purpose and character of the use, (2) nature of the copyrighted work, (3) the amount and substantiality of the portion used, and (4) the effect of the use upon the potential market for or the value of the copyrighted work.  If a court (or jury) finds that the factors balance in favor of the user of the copyrighted work, the use is not considered an infringement.

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Intellectual Property, Media

In this post I address Braden Cox’s argument that the EU missed the boat in its fining Intel today, because it didn’t focus a sufficient amount of attention on consumer welfare, choosing instead to look at the competition between Intel and AMD. What Mr. Cox fails to realize is that, even in the United States, our antitrust laws do not focus on whether consumers are better off when compared to where they were before the competition began. Instead, we focus on market power and anticompetitive conduct, because even if consumers are better off, there is no way to know if we could have been benefited even more had there been no anticompetitive behavior.

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Litigation, Media, Technology

Back in February, I mentioned that before Russia physically invaded Georgia, they launched Internet-based attacks against the Georgian infrastructure. Well, it seems that I wasn’t the only one paying attention. Various United States military organizations—including the Navy, Air Force, Coast Guard, Merchant Marines, the Naval Postgraduate Academy, the Air Force Institute of Technology, and the National Security Agency—are training their members in cyber warfare.

After the jump, see more of the New York Times’ coverage.

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Cyber Warfare, New York Times

Britannia, rule the waves: Britons never will be slaves.

I don’t know what it is about British television, but I adore it. Perhaps it’s that the news is balanced and takes a world view. Perhaps it’s that the entertainment programs are less about being sensationalist and more about entertaining people. Or perhaps it’s just that the shows are smarter. Like they say in “Shakespeare in Love,” “I don’t know; it’s a mystery.” (Of course, they were talking about theatre).

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Media, News Organizations

A few days ago, David Post wrote about how the controversy surrounding the Google Books settlement could be heating up soon. I agree with him that as we near the fairness hearing (although it was moved back to October), things will get interesting, but I think he misses a crucial point.

Post’s post was responding to complaints by copyright holders about the unfairness of the settlement. His response focused on how amazing Google Books would be and the fundamental reasoning for having copyright and how, if it is no longer making “society better off,” it shouldn’t be upheld in this situation.

Post ignores the fact that the settlement was an agreement. The copyright holders could have taken the case to trial instead of settling, but they didn’t do that because they knew that a determination that what Google had done was fair use would have been disastrous for the future of book publishing (and at least the economic incentives for authorship). True not all copyright holders were part of the discussion, but class counsel was, and they had copyright holders in mind in reaching the agreement. It seems odd under these circumstances for commenters (read: IP lawyers) to argue that their clients aren’t going to get a fair shake, and somehow we should punish Google beyond the payments Google is making in the settlement.

At the end of the day, I agree with much of what Post says, but I think far too often we miss the forest for the trees. Google isn’t getting away for free, and copyright holders might see avenues of economic return that were impossible before the settlement was reached.

Cross Posted from The Spontaneous Huddle

Intellectual Property, Internet, Litigation

What is wrong with CNN? Everyone is trying to calm the American public’s worries about this Swine Flu Epidemic, and what does CNN do? They throw gas on the fire. Today they announced the “first U.S. death” associated with the outbreak. However, they don’t know anything about the child other than his or her age (they didn’t even know the gender) and that s/he came from Mexico. Well let me ask you something, CNN. If the child came from Mexico and was being treated in the United States, is that really a U.S. death? The fact that we haven’t had any deaths is not really because America is super rad and the flu knows to stay on the other side of the border. We have medicine here, and a higher standard of living. Americans are more likely to withstand a flu epidemic than Mexico just generally. The fact that this was a young child made it even less likely that even getting proper medical care it was going to survive.

I grieve for this child’s family and all the families who have been affected by this major health crisis, but making people paranoid and ratcheting up the panic level is not going to help anyone. Obviously, this is what CNN and any other news organization that cares about advertising dollars does, but that is a discussion for another time. For the moment, calm the heck down.

Cross Posted from The Spontaneous Huddle

Health, News Organizations

Previous live blogs from the event:  Part 1; Part 2; and Part 3.  Please remember that these are not transcriptions, and therefore should not be relied on or ascribed to those whose statements they are based on.

4:00 pm The Public Interest
Moderator: Mary Rasenberger, Counsel, Skadden, Arps, Slate, Meagher & Flom LLP
Panelists: Jeffrey Cunard, Managing Partner, Washington, D.C. office, Debevoise & Plimpton LLP;
Robert Darnton, Carl H. Pforzheimer University Professor and Director of the Harvard University Library;
James Grimmelmann, Professor, New York Law School;
Alexander Macgillivray, Associate General Counsel for Products and Intellectual Property, Google Inc.;
Carol A. Mandel, Dean, Division of Libraries, New York University

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Intellectual Property, Internet, Litigation

More live blogging after lunch, with…

2:00 am Authors and Incentives
Moderator: Professor Jane C. Ginsberg, Columbia Law School
Panelists: Tracey Armstrong, President and CEO, Copyright Clearance Center;
Michael J. Boni, partner, Boni & Zack LLC, lead counsel for the Authors Guild and the Author Sub-Class in the Google Settlement;
Jan Constantine, General Counsel & Assistant Director of the Authors Guild;
Arthur Klebanoff, President of both Scott Meredith Literary Agency and RosettaBooks, an e-book publisher;
Eugene Linden, Author, Winds of Change, The Future and Plain Sight and other books;
Victor S. Perlman, General Counsel and Managing Director, American Society of Media Photographers, Inc. (ASMP)

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Intellectual Property, Internet, Litigation

Live blogging continued…Please note this is not a transcript.

11:00 am The Future of “Books”
Moderator: June M. Besek, Executive Director, Kernochan Center, Columbia Law School
Panelists: Allan R. Adler, Vice President – Legal and Governmental Affairs, Association of American Publishers (AAP);
Richard Sarnoff, Co-Chairman, Bertelsmann, Inc. and President, Bertelsmann Digital Media Investments;
Jule Sigall, Senior Policy Counsel/Copyright and Trademark, Microsoft Corp.;
Herman Spruijt, President, International Publishers Association;
Lois F. Wasoff, Legal Consultant, former Vice President and Corporate Counsel, Houghton Mifflin Company

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Intellectual Property, Internet, Litigation