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Google Book-Scanning Lawsuit Turns to Fair Use Doctrine

By [Monday, July 1st, 2013]

google-books-featured-300x204Back in 2009, when New York Law School launched the Public Interest Book Search Initiative, we anticipated that by now the discussion of the law and policy of digitizing books would have resolved many critical issues relating to the future of digital books and libraries, including how to fairly compensate copyright owners.  As of today’s Second Circuit Court of Appeals decision, the battle is still pitched.

Some background:  Google is creating a massive online library and bookstore out of countless old books scanned from libraries around the world.  Some of those books are out of copyright and in the public domain, so Google is free to disseminate.  Many of those books are still protected by copyright, hence the lawsuits by publishers and authors seeking compensation for use.  And hence the opposition from scholars, consumer interests, and business competitors who claim the plan gives Google too much control over a priceless store of information.  Publishers, authors, and other rightsholders around the world quickly brought suit.  Google attempted to settle the lawsuits in part by paying copyright holders for the right to scan their books.  But what about the vast number of out-of-print books whose rightsholders can’t be found, a.k.a., the “orphan books”?  Google offered to establish a fund and registry to find those copyright holders, but opponents remain concerned that Google would realize a windfall from millions of orphan books.  The SDNY Court presiding over the litigation ultimately rejected that settlement approach because it would allow private, self-interested parties to resolve the matter of “orphans.”  In the court’s view, Congress is better situated to address the interests of non-parties in the copyright context.  See the court filings and parties’ positions staked out at the NYLS Public Index.

Google Books ultimately settled the litigation with the publishers, but the lawsuit brought by the Authors Guild and individual authors continues.  The plaintiff authors most recently attempted to certify a class of rightsholders to pursue the copyright claims, but the district court’s certification order was vacated by today’s Second Circuit decision.  The Second Circuit found the certification order to be premature because the trial court was required to first determine the merits of Google’s fair use defense:  “Putting aside the merits of Google’s claim that plaintiffs are not representative of the certified class—an argument which, in our view, may carry some force—we believe that the resolution of Google’s fair use defense in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues.”  Google claims that its use of “snippets” of the orphan books are fair use, requiring no compensation to the rightsholders.  The authors claim that because the display of snippets first requires Google to scan the entire book, the copying does not fall within the fair use defense.

The case is now headed back to New York district court, for evaluation of Google’s activities under the four-part “fair use” test that looks at issues like the purpose of the copying and its effect on market sales.  (See our recent discussion of the fair use doctrine here.)  Google has long argued that its book scanning does not hurt authors, but helps to make forgotten or hard-to-find works available to a larger audience.  Whether the Authors Guild is willing to continue this expensive and protracted litigation is another issue that might guide the parties either back to the settlement table or to Congress to work out a legislative solution.

Premier League to Block Internet Site Streaming Live Matches

By [Monday, June 24th, 2013]

Back in March 2013, Europe’s highest court issued a landmark ruling shutting down websites that stream live TV to the public, without a license or permission from broadcasters and rights holders.  See ITV v. TVCatchup.  For the first time, a European sports league is seeking to apply that ruling to sites that show live sport contests.

The U.K.’s Premier League is requesting a court order from the European Court of Justice that would force Internet Service Providers to effectively ban their customers from accessing a website that streams live football matches.  ISPs are unlikely to challenge the petition, solidifying the breadth of European Union copyright protection.  The court is expected to issue the order by the end of the month, just in time to preserve the value of the 2013-2016 TV rights deals the Premier League recently closed, estimated at 5.5 billion pounds.

The EU ruling is based on the WIPO treaty copyright principle that a “communication to the public” of copyrighted work requires permission from the author.  At issue in ITV v. TVCatchup was whether the Internet retransmission of free-to-air broadcasts was not a communication to the public, but only a technical means for the TV audience to see streamed programs that they were legally entitled to watch anyway.  The European court held the retransmission was a communication to the public because:

  1. TVCatchup used a specific technical means of transmission different from that of the original communication;
  2. TVCatchup’s intervention was not intended to maintain or improve the quality of the transmission by the original broadcaster; and
  3. The retransmission was aimed at an indeterminate number of potential recipients, implying a large or public audience.

Interestingly, the court’s decision disclaimed any reliance on the fact that  TVCatchup profits from selling advertising that brackets its retransmissions, thus directly competing with the original broadcaster for advertising revenues.

Meanwhile, the US approach to internet retransmission of broadcasts remains muddled.  For a comparative analysis of EU and US infringement rulings in this area, read here.

Fair Use of Serena’s Melt-down?

By [Tuesday, June 18th, 2013]

Venus and SerenaVenus and Serena –– you’ve met the tennis powerhouses, now meet the movie.  In their joint directorial debut, Maiken Baird and Michelle Miller spent the last three years working on a documentary about the Williams sisters.  The film, which had a brief theatrical release last month and is available on iTunes, focuses on 2011 when the sisters’ careers seem to falter as they struggled through injuries and other health problems.  But most of their fans may never get to see the film, set to air on Showtime in July, if the USTA has its way.   On June 14, the USTA filed a federal lawsuit asking for a permanent injunction against Venus and Serena.

The complaint alleges copyright infringement because the filmmakers used without permission over 20 minutes of video footage shot during the U.S. Open.  The USTA claims it gave the filmmakers access to U.S. Open archival footage and permission to film live during the 2011 tournament, subject to:  execution of the standard licensing agreement, adherence to broadcast limitations, and payment of license fees.  After the filmmakers took what they needed, they balked when the USTA tried to exert editorial control, refusing to allow them to use, among other things, video of Serena William’s infamous outburst at the 2009 contest.  The filmmakers refused to sign the license agreement, and instead decided to use the footage under the fair-use exception to the copyright law.

The fair use doctrine may not protect the filmmakers here because of the amount  and substantiality of the USTA footage used and the documentary’s commercial value.  Furthermore, fair use presupposes good faith and fair dealing, arguably lacking here given that the filmmakers initially acknowledged the need for a license agreement, and secured the USTA’s cooperation by agreeing to comply with its footage usage policies.

Keeping with the Documentary Filmmakers’ Statement of Best Practices in Fair Use, two possible bases exist for privileging the footage used in Venus and Serena.  First, the film used copyrighted material in a historical sequence.  That is, the filmmakers might claim that the footage was necessary to tell a particular historical story, and the use was no more extensive than necessary to make a critical illustrative point.  However, the documentarian must also be able to show there was no adequate licensing system in place or the licensing fees for the material were excessive relative to the film’s budget.  The USTA was willing, indeed eager, to license most of the footage used in the film and there’s no evidence the fees were out of the ordinary.  Baird and Miller would have to make the somewhat novel argument that, in connection with the archived footage they used, the USTA’s assertion of editorial control rendered the licensing system inadequate.

Second, the filmmakers’ access to on-site filming during the 2011 U.S. Open might be defended as the incidental capture of media content in the process of filming something else.  They were permitted to film only behind-the-scenes action at the Open, and  might claim that to the extent they also captured match play, it was integral to the ordinary reality being documented.  However, regardless of the nature of the footage used, the complaint contends they were given unprecedented permission to use their own film crew at the Open subject to adding all footage captured to the USTA library and then licensing that film from the USTA at standard rates.  If this allegation proves true, then none of the 2011 U.S. Open footage would be subject to the “incidental capture” privilege.

This is the sort of dispute that ought to be quickly settled for an amount that reasonably compensates the USTA, given the footage used and success of the film.  What stands in the way is the filmmakers’ resistance to the USTA’s policy prohibiting use of footage it deems “not in the best interest of the sport.”  If you made a film about this lawsuit, what narrative would emerge?  USTA as censor or dupe sandbagged by shrewd filmmakers?

ROLL TIDE…Alabama Artist in Danger of Being Sacked

By Steven Ward [Monday, April 9th, 2012]

Daniel Moore with one of his University of Alabama football paintings

Imagine you are an alumnus of the University of Alabama and obviously a big fan of their Crimson Tide football team.  If you were to purchase a painting that depicted running back Trent Richardson rushing for a touchdown in this year’s BCS National Championship Game, would you think that the painting is licensed by the University? This is the argument that The University of Alabama, along with vigorous support from colleges across the country, is making in a court battle that will be settled soon by the 11th U.S. Circuit Court of Appeals.

As explained in a recent New York Times article outlining the case, Daniel Moore has been painting pictures of the Alabama Crimson Tide football team for over 30 years without a license from the University to do so. His paintings are original but depict scenes from the team’s history incorporating the players and their uniforms in the artwork. Mr. Moore sells both original paintings and reprints ranging in price from $35 to $3,000.  Alabama objects to his use of the team’s uniform and colors in the pictures claiming trademark infringement. The District Court ruled in favor of Mr. Moore for purposes of the paintings and reprints but barred him from using the images on other memorabilia. While the New York Times article outlined some of the history of the case and the stance of the opposing parties, it did not indicate the strength of their arguments or suggest who may win on the appeal. We will do so here.

Read More…

Judge Blocks Access to NCAA Documents

By John Kelly [Saturday, February 11th, 2012]

Recently, a San Francisco Federal judge blocked an attempt by former NCAA athletes to obtain “highly sensitive” TV sports contracts and other documents concerning a class action lawsuit that alleges that the NCAA and its affiliates are unfairly profiting off of athletes images.  This class action in San Francisco, along with a few other related cases going on around the country, alleges a conspiracy in which the NCAA forces collegiate athletes to relinquish their rights while various corporations earn billions of dollars off of their talent and likenesses.  The motion, if granted, would have compelled many “outside” licensing entities including the videogame publisher Electronic Arts, and networks such as FOX and TBS to produce highly sensitive internal information regarding their dealings with the NCAA and its conferences.  The court found compelling Fox’s argument that producing such documents would be extremely burdensome.  The question now is, how big of a blow is this ruling to the plaintiffs’ case?  If the sought-after documents actually exist and are the keys to any valid claim by plaintiffs, this has to be a substantial blow, and possibly the death knell to any chances the plaintiffs had.