When Rightholders Die

Yesterday and today, the internet’s abuzz with the unfolding story of Michael Jackson’s death.  Of course we at Ip’s What’s Up have no news to add about what happened; what we have are some IP related questions.

At one point Michael Jackson owned a large amount of the Beatles’ catalogue.  How much of it does he still own?  Or rather, how much of it remained and is now part of his estate?  What will happen to the rights previously held by Jackson?  Does Sir Paul have a chance to recover the rights?

There are a variety of intellectual property issues related to estates.  Intellectual property is property, and the rights given under the IP laws (with some exceptions) can be transferred just as any other property, including through trusts, through a Will or through an estate sale.  However, intellectual property also brings with it some interesting caveats.  Depending on the jurisdiction and when the work was created, rights may return to the original owner (the creator or his heirs) upon someone’s death.  Death also affects how long the rights will be valid as most copyright regimes begin counting the life of a copyright from the death of the creator.

Ip’s What’s Up will continue to report as we attempt to find out more about what’s left of Michael Jackson’s Beatles collection and what’s going to happen to it.

That Lady that Got Sued in Minnesota (Clearing up some lay-misconceptions about the Jammie Thomas trial)

One of the neat things about being an Ipper is that people know you’re interested in intellectual property.  One of the sometimes neat things about this is that they try to talk to you about whatever their idea of intellectual property is.  It’s not neat because you have to try to figure out what someone’s talking about and do some straightening out.  It is neat because you get a sort of down on the ground insiders view to the misconceptions that are out there.

Today, Ip’s What’s Up would like to clear up a few misconceptions overheard about the Jammie Thomas/RIAA trial.

• Jammie did not sue the music industry – the Recording Industry Association of America, an organization that represents a good chunk of the music industry in the United States sued Jammie.  The RIAA began a campaign of lawsuits in 2003 where they tracked down people who had shared files over the internet.  Both copying and distributing music without permission is against the copyright law.
• The ‘deal’ Jammie refused was a standard settlement offer that some view as extortion – Jammie’s case was a big deal because it was the first one where the person accused of sharing songs refused the settlement deal.  The RIAA usually offers that the person accused of sharing music pay about $5,000 and the RIAA will drop the law suit.  Some experts, such as Ray Beckerman, feel that this offer is simply the RIAA scaring people and extorting money from them.  There are questions about how accurately the RIAA can identify people it things have shared music.  There is also concern over how much of a difference there is between the $5,000 settlement offer and the $24 value of the songs supposedly shared.  (In Jammie’s case, she was accused of sharing 24 songs.)  In short, the settlement was refused on the principle of the matter.
• Jammie was not sued twice – although this was her second trial, she was not sued a second time.  The first trial was ruled a mistrial because of some problems with the instructions given to the jury.  The second trial sort of replaces the first one.

The widely publicized results of the second trial were worse for Jammie than the first trial.  In the first trial she was found to have committed copyright infringement and the RIAA was awarded $200,000 in damages.  This time, the RIAA was awarded almost $2 million.  There is talk in the copyright world of a third lawsuit; one that would challenge the constitutionality of the damages for copyright infringement.

Copyright War Summit Report: Law vs. Technology: Embracing Not Suing New Technologies

Today Ip’s What’s Up brings you our report on the last of the four BrightTalk presentations in the Copyright War Summit we attended: Law vs. Technology: Embracing Not Suing New Technologies.  E. Michael Harrington explained his four work mantra and reviewed the good, the bad and the neutral of copyright and technology.

Harrington’s Mantra

• Everything – access to all audio/visual media
• Everywhere – access in your home, on any mode of transportation, anywhere you might go
• Anytime – access any and all the time
• Anyway – including using media to create derivative works and using whatever device you please to access and change media

The realization of Harrington’s mantra is currently blocked by both law and technology.  Copyright law prevents ‘everything’ and ‘anyway.’  Technology, with its proprietary protections, can prevent ‘anyway’ as well.  ‘Anytime’ and ‘everywhere’ are pretty well covered now, being allowed (to some extent) by both technology and the law.  Harrington’s good/bad/neutral list helps explain how technology and the law both hinder and help in the achievement of Harrington’s Mantra.

Copyright and Tech – The Good, the Bad and the Neutral

The Good

• The Sony Betamax case from 1984, introducing “substantial noninfringing use” and “time shifting” as key copyright terms (also mentioned by Howard Knopff during his presentation)
• Audio Home Recording Act of 1992 (AHRA), allowing consumers access to blank digital media (and imposing a levy on specific blank digital media, paid to the recording industry)
• RIAA v. Diamond Multimedia case from 1999, allowing consumers access to mp3 players
• introduction of the iTunes music store in 2003, allowing consumers a legal and easy way to download music
• Amazon introducing DRM-free mp3s in 2008

The Bad

• Telecommunications Act of 1996, deregulated the broadcast industry so that it was ok for a single company to own many, many stations (for plenty of commentary on why this is bad and where it’s led, see Inside Music Media)
• Digital Millennium Copyright Act [pdf] in 1998, made circumventing technologies put in place by media owners a crime in itself, regardless of legality of use of the media
• UMG v. Mp3.com case in 2000, Mp3.com was the first of the ‘store your own music in the cloud’ music lockers; Universal’s lawsuit shut down the service
• A&M v. Napster case in 2001, the infamous case that changed the face of Napster.  Harrington pointed out that there were “so many reasons why [turning Napster into something the industry could use] should have worked”
• Closing of Tower Records in 2006, the beginning of the end of brick and mortar record stores

The Neutral

• Marketplace
• New technology
• Litigation
• Legislation

For more details on Harrington’s mantra or his list of good, bad and neutral aspects of technology and the law, or to explore some reasons why people break the law, check out Harrington’s full presentation.  Even if you’re not that interested in the topics, you will be entertained.

Copyright War Summit Report: ACTA, WIPO and in Canada

Howard Knopf, of Excess Copyright, did a presentation for the BrightTalk Copyright War Summit that summed up three important copyright topics: the ever-top-secret Anti-Counterfeiting Trade Agreement (ACTA), the World Intellectual Property Organization (WIPO), and that horrible den of copyright infringement – according to the USTR Special 301 Report – Canada.  (Readers, please be sure tongue is properly inserted in cheek when reading that last part.)

ACTA

Much talk and speculation have surrounded ACTA since leaks of its existence first began to surface.  Knopf does not get into any of the meat of ACTA (meat can be found here).  Instead, he focuses on the very important issues surrounding the agreement.

One of the biggest concerns is the plurilateral nature of the agreement, the absence of major international organizations like WIPO and the World Trade Organization.  These two organizations traditionally handle international intellectual property treaties, yet they are completely uninvolved with ACTA.  Also missing from the negotiations: developing countries.  There are more developing than developed countries in the world; they are important.

ACTA’s secretiveness comes down to one thing.  It is a lobby-driven effort being propelled forward by music, film and software industries.  These industries don’t want to protect against fake drugs or other ‘counterfeits’; they want ex officio border control measures, customs officials who check iPods for illegally obtained music, and 3 strike ISP rules.

[For more information on the ACTA part of Knopf’s presentation and ACTA in general, see IP JUR.]

WIPO

WIPO has had its fair share of trials and tribulations during the past decade.  The Treaty for the Protection of the Rights of Broadcasting, Cablecasting and Webcasting Organizations is still just ‘proposed.’  The Audiovisual Performances Treaty is dead in the water.  And the Treaty for Improved Access for Blind, Visually Impaired and other Reading Disabled Persons has met with some unexpected opposition.

Yet, Knopf appears hopeful that WIPO is on the mend.  The new Director General, Francis Gurry brings a lot of energy and integrity back to the organization.  Committees continue to meet and move forward on their individual projects and the Treaty for the Blind is still on the table.

Canada

Knopf believes (and this Ipper thinks there’s a lot of sense in his argument) that Canada has one of the best IP regimes.  Like Baby Bear’s bed, Canada’s IP laws are not too hard and not too soft.  Canada has a tax on blank media, which compensates rightsowners for media sharing.  There is also wide Fair Dealing (similar to US concept of Fair Use) for educators and librarians, outlined in Canada Supreme Court case CCH 2004.

Knopf also gave a short summary of important marks in copyright’s history: the Statute of Anne, Apollo v. White Smith, introduction of the first portable computers, Sony, Napster, Grokster.

If you’re interested in more about the superiority of Canadian IP law, WIPO’s strength going forward or the controversy surrounding ACTA, you can check out Howard Knopf’s excellent and informative presentation in full at BrightTalk.

Copyright War Summit Report: The Future of Google Book Search

Google Policy Analyst Derek Slater presented on Google Book Search and its future.  In addition to explaining the Google Book Settlement (discussed here, with follow-ups here and here), Slater clarified the underpinnings of Google Book Search itself.  He also provided some interesting statistics on orphan works and the public domain.

For those following the Google Book Search Settlement controversy, the most interesting part of the presentation would probably be Slater’s discussion of how the Settlement makes competition easier rather than eliminating it (one of the biggest criticisms of the Settlement Agreement).

Book Search Sources

The books contained in Google Book Search come from two different projects.  One of these projects is undisputedly legit.  It is a Partnership Program in which authors and publishers contribute to Book Search by sending copies of their works to Google for scanning.  The authors and publishers have agreements with Google where they share the revenue from any advertising displayed alongside views of the scanned books.  Slater confirmed over 1.5 million books have been added to Google Book Search in this way.

The Library Project is a partnership not with publishers and authors, but with a number of libraries around the world.  Basically, the agreement is that Google scans the books and the libraries receive digital copies of their collections.  Google separates works in this project into two subdivisions: out of copyright and in copyright.  The in copyright books scanned from the Library Project are the cause of the controversy that led to the law suit and subsequent Settlement Agreement.

Facilitating Competition

Slater argues that the Google Book Search Settlement actually facilitates competing with Google Book rather than giving Google a monopoly.  In short, this is because Google is doing all the heavy leg work.  Google is helping to fund the registry that will contain information about who is willing to license and who is not, or under what circumstances someone is willing to license (assuming the settlement is approved). 

Google’s work will lead to less orphan works problems by increasing the number of claimed works.  This will help open up access to currently orphaned works for others wishing to compete.  Google’s work will also help clarify the status of older works, works whose creation date falls into the 40 year grey period created by various changes to the US Copyright Act.  Google believes that a great number of these works are actually in the public domain.  Once the status of a book is known, possible competitors will have an easier time accessing the book.

Google is also facilitating access for potential competitors by making copyright renewal records available for download.  Slater’s arguments address many of the concerns raised by those fearful of a monopoly of knowledge, except for one big one: competitors access to original copies of the books to scan.  Perhaps Google assumes competitors will just have to go through libraries as Google has for out-of-print works.  Will libraries be willing to partner with lesser-knowns or start-ups?

The full presentation goes into more detail and does a good job of explaining the Settlement and its perceived benefits.  If you are interested in details of the Settlement or the statistics on copyright and books, it’s worth a view.

Copyright War Summit Report: Recording Industry vs. The People

Recording Industry vs. The People, presented by attorney and author of the blog Recording Industry vs. The People, Ray Beckerman
Beckerman discusses how the RIAA has proceeded in their law suits thus far, highlighting the biggest problems with the RIAA's tactics.  Some of these problems include: unlicensed investigators, insufficient evidence, and violations of various rules governing Federal Court procedures (Federal Rules of Civil Procedure). 

Most interesting is the missing proof of registration.  Under US copyright law, registration is not required for copyright protection, but it is required in order to recover statutory damages in an infringement case.  Most RIAA cases settled, and for the few that went to court, none investigated the required registrations.  But it looks like that’s about to change in the new Thomas retrial.

Another surprising element to the RIAA cases (or not-so-surprising, depending on how you’re looking at it) is that the RIAA has not gone after anyone who has used bitTorrent types of services.  Hmm… seems to me that’s like only chasing after pirates who don’t have boats.

If you’re interested in the RIAA’s lawsuits, have ever downloaded  music or even ever thought of sharing music online, Beckerman’s presentation is well worth a watch.

Copyright War Summit on BrightTalk

A bullet-less, death-less war sounds like it should be a dream come true. Too bad it's only a poorly named threat to some large industries. The Copyright War is often discussed like some big blockbuster series, complete with rampaging pirates. Today, BrightTalk hosted a Copyright War summit, bringing together webanair presentations from a variety of people in a variety of locations. Topics ranged from the RIAA and ACTA to Creative Commons and Google Book Search.

Unlike the summits, panels and seminars we usually discuss on Ip’s What’s Up, the Copyright War Summit is unique in that you can still see the actual presentations. And they’re free. Originally presented live, the slide shows and accompanying audio were recorded by BrightTalk and remain available on the BrightTalk website. goldenrail was able to attend four of the seven presentations in the summit. Ip’s What’s Up will present small summaries of these presentations over the next few days.

Here is a full list of the presentations and presenters

• Recording Industry vs. The People - Ray Beckerman
  The Future of Google Book Search – Derek Slater
• Anti-Counterfeiting Trade Agreement (ACTA), WIPO and in Canada – Howard Knopf
• Law vs. Technology: Embracing Not Suing New Technologies – E. Michael Harrington
• Successfully Defending Software Audits – Robert J. Scott
• Creative Commons: The Sharing Standard – Fred Benenson
• HADOPI – David-Irving Tayer

[fyi: There’s a few places in the presentations where slides get a little mixed up or presenters get flustered. Many of the presenters were new to BrightTalk and ran into various technical issues. Just bear with them and enjoy!]

US Developments in Internet Trademark Usage

Today, Ipper goldenrail had the opportunity (thanks to a friend at IP Society) to attend an interesting panel discussion on trademark law and the internet: Marked for Confusion: Has the Internet Changed Trademark Law?

Various Bay Area attorneys and other IP enthusiasts gathered in the early morning hours at Bingham's Silicon Valley office* for a special treat.  (And not just the fresh fruit and delicious tea.)  What they received was a well-done discussion with expert panelists Eric Goldman, of Santa Clara University Law School, and Mary Huser of eBay.  Moderator  Tom Kuhle, of Bingham McCutchen, added more experience and plenty of witty fun to the presentation.  The entire event was like a superbly done law school text book, using cases to illustrate basic elements of trademark law and the new developments within those elements.  A list of the cases used and some special points on each are listed below.

Several parts of the event deserve special praise: 1) the panel started at exactly 8:30, as promoted; 2) the panel ended at exactly 10:00, as promoted; 3) despite the local nature of the presentation, there was plenty of international focus with an emphasis to the audience of how important international law and cases are when dealing with anything on the internet.  This Ipper was impressed and thinks some fellow bloggers might have preferred this session to a certain "International" session dealing with the internet and trademarks.

Cases Used in Discussion

• 1-800 Contacts v. When U (2005): a staple of any Trademark text book, 1-800 Contacts was one of the first cases involving internet advertising and trademarks in the behind-the-scenes part of the web.  In this case, the 2nd Circuit held that using trademarks in the internal workings to bring up information about competitors was not "use in commerce," something required by the Lanham Act for trademark infringement.
  
  Be careful, the panel warned that Rescuecom may have limited 1-800 Contacts to its facts, and its facts involve outdated technology no longer in use.
  
• Rescuecom v. Google, 562 F. 3d 123 (April 3, 2009): this time the Second Circuit found that trademark words in the internal workings of a search engine did equal "use in commerce."  The reason: google sells the keywords.
  
  The court did not decide whether or not the use was infringing as this is an appellate decision overturning the lower court's dismissal of the case.
  
• Hearts on Fire v. Blue Nile 2009 WL 794482 (D. Mass. Mar. 27, 2009) (summary and analysis): another keyword "use in commerce" case.  This case is a battle between two competitors rather than the usual company x verses a search engine.  Again, the court said there was use in commerce; this time because the defendant purchased trademark words as keyword terms.  The court denied the motion for dismissal.
  
  As Eric pointed out, Blue Nile faces a massive tidal wave of litigation costs if it chooses to defend its use.  It will be interesting to see whether this case moves forward or settles.
  
• Beltronics v. Midwest Inventory Distribution (April 9, 2009): a confusion case with a first sale defense.  Midwest was selling Beltronics radar detectors below retail cost on eBay with a non-manufacturer's warranty.  The Tenth Circuit held that the possibility of creating confusion by selling legitimate products with a different warranty was enough for Beltronics to "demonstrate a substantial likelihood of success on the merits," the standard needed to grant the preliminary injunction at issue.  The court did not decide the actual matter of confusion.
  
  The panel members had strong feelings about this case, mostly negative.  Eric sees no real confusion and Mary sees one of many recent cases using trademark law in an attempt to keep prices uncompetitively high.
  
• Babyage.com v. Leachco, M.D. Pa. Jan. 12, 2009: deals with the newer "initial confusion".  This is the type of confusion that might lead a customer to the wrong website but not to buying the wrong product.  Here a search for Leachco led customers to Babyage where Leachco products were compared with Babyage products.  The court held there was a question of fact as to whether or not this created initial confusion and denied summary judgment for Babyage.  Another case that will be interesting to watch if it continues to trial.
  
• Mary Kay, Inc. v. Webber, 2009 WL 426470 (N.D. Tex. Feb. 20, 2009) (summary and analysis): another failing of the first sale defense.  The court decided that discontinued and expired beauty products were different than actual Mary Kay products and therefore the first sale doctrine did not apply to the case.  Summary judgment was denied.
  
  As an Independent Beauty Consultant myself, I am a bit confused as to why this is a trademark infringement case and not a breach of contract case.  Beauty Consultants are not allowed to sell products below the suggested retail price, as this Beauty Consultant was doing on eBay.  Makes one wonder if Mary was on to something when she again mentioned brand owners attempting to use trademark law to protect anti-competition measures.
  
• Tiffany v. eBay (pdf), 576 F. Supp.2d 463 (S.D. N.Y. 2008): a rather well-known case in the TM field.  The court in Tiffany held that eBay was not liable for the few non-legit 'Tiffany' pieces that slipped through eBay's extensive infringement-stopping process.  The case is now going up for appeal, where the key issue will be whether the correct standard of knowledge for liability is specific or general.
  
  Mary stressed that one of the most important things in this case was eBay's putting before the judge all the information about what eBay does to help prevent against infringing sales on its platform.  The court was then able to compare all the work eBay had done with Tiffany's simple statement than any seller selling more than five Tiffany items must be selling counterfeit items.  Tom recommended the courts opinion as excellent reading because it goes through eBay's process in detail.
  
  Eric pointed out that many courts have written decisions in which they praise third-party platforms for their involvement in helping to protect brand-owners and sellers.  He contrasted this with the common position from the 1990s where third-party platforms wanted as little involvement as possible with any of the other parties in order to lessen their liability.

* The event was sponsored both by Bingham McCutchen and by the High Tech Law Institute at Santa Clara Law School.