A Legal Blog by Aaron | Sanders, PLLC


Aereo into the Cloud: Further Thoughts About the Aereo Decision

“The Cable Defense,” “The Cloud” and More about Causation and Copyright

Last time, I tried to make sense of the Supreme Court’s decision in ABC v. Aereo. But there are a couple of major issues that I wasn’t able to touch on: (1) What’s all this about Aereo now saying it’s a cable system? (2) I thought maybe the Aereo decision was going to hurt “Cloud”-based industries? and (3) are we no longer to look “under the hood” of technology to resolve our copyright issues (after the Court dismissed on argument as relying on technology “behind the scenes”)? I also (4) have some further thoughts about the causation requirement in copyright cases (i.e., all that business about “volitional conduct” and “proximate causation”).

1. Is Aereo a Cable System?

As we all know by now, the Supreme Court ruled against Aereo essentially because Congress had set out in 1976 to ensure that cable systems (or, more precisely, their direct technological predecessors, community access TV systems) were “performing,” regardless of whether you thought of them as broadcasters, viewers, or mere conduits. Further, the Court held that such performances were public because Aereo looked a lot like a cable company, and cable companies perform their…

Cloud

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Copyright Holders Eat ReDigi’s Cake and Have it, Too

But is the Cake a Lie?

As many of you know, the trial court in Capitol Records v. ReDigi ruled over the weekend that ReDigi’s business model of re-selling digital music files infringed the copyright. Here’s the opinion. I’ve written about ReDigi quite a lot because (1) ReDigi’s business model poses lots of unresolved legal problems and (2) I had to create a new set of posts once I (along with the rights holders) learned how ReDigi really worked. My previous ReDigi posts are collected here. I only have time for a quick post before I have to go somewhere*, so here’s my quick analysis.

* I’ll be moderating a panel on gTLDs at the ABA Intellectual Property Meeting in Crystal City. You should totally come, if you can, because my panelists are awesome and the topic is timely, important and fascinating, which will more than make up for my bumbling attempts to ask incisive questions.

I couldn’t find a free image of a Portal Cake, but this cake looks pretty good.

Background: Is ReDigi’s Cake Just Mostly Frosting?

Here’s how ReDigi works, in a very tiny nutshell. You sign up. You upload songs…

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Pinterest and Copyright: So Why All the Fuss?

Part 2 (of 2): Welcome Nice Pinterest Users to the Bizarro World of Copyright and the Internet!

Last time, we took stock of the recent kerfuffle about Pinterest, copyright and Pinterest’s Terms of Use (“TOU”), and we even looked at those horrifying, normal TOU. In this post, I want to step back and answer two basic questions: Should Pinterest users really worry about being sued for copyright infringement? And is there really something to all this fuss?

I’ll preface the rest of what I’m going to say by emphasizing that, although I’m a lawyer in this field (i.e., copyright and the internet), I’m not giving you legal advice here. A lot of this is reasoned speculation, but I could turn out to be wrong, and I don’t know your specific legal situation and speak to it. OK?

Is Someone Really Going to Sue Nice Pinterest Users?

How much should you worry if you’re using Pinterest? I suspect you don’t have that much to worry about. Unlike Napster, Pinterest isn’t threatening an entire livelihood here. Flickr has already done all the damage the internet is going to do to professional photographers, in a perfectly legal manner, by (essentially) crowdsourcing cheap photographs and cutting the…

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Pinterest and Copyright: Everyone Just Take a Nice Deep Breath

Part 1 (of 2): Teacup in a Tempest

So, here I was all ready to write a post about how everyone should just stop freaking out about Pinterest’s terms of use (“TOU”), when someone tweeted this excellent piece from the Copyright Librarian (updated here) that basically makes all the points I was going to make. And lots of other people have been making all kinds of other points about Pinterest, copyright and terms of use. Is that going to stop me from writing about Pinterest? Of course not!

The Pinterest kerfuffle started a couple of weeks ago with several articles about a lawyer–not a copyright lawyer, but a good, solid lawyer–who (1) is a photographer and (2) actually read Pinterest’s TOU. In tears (a perfectly natural reaction from reading any TOU), she took down her Pinterest account. This generated a good deal of interest across the Internet, including from Pinterest’s CEO–and, alas, a good deal of legal misinformation.

Nipping it in the Bud

We’ll focus on the article in Business Insider article that “broke” the story (as opposed to the original blog post). What happened was that the lawyer/photographer posted a blog entry about how she came to the conclusion that she should stop using…

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Virtual Goods & the First-Sale Doctrine

Or, Why Your Kindle Isn’t Your Nightstand

Eighth Annual eCommerce Best Practices Conference
Stanford University, June 24, 2011

The second break-out session was wide-ranging, in part because it took a broad view of “virtual goods.”  A narrow definition of the term might be limited to “goods” that exist only in a virtual world, such as Second Life or World of Warcraft.  These “goods” are assuredly and obviously “virtual.”  But the essential insight here is that there is a whole category of “goods” that consumers think of as real but aren’t.  An obvious example of this is a book you buy for your Kindle.  Amazon works very hard to make it function like a book–an enhanced book, to be sure–but in many respects feels like a book.  If you don’t believe me, compare the experience of reading a book on Kindle with reading the same thing as a PDF.  It’s hard for me to put my finger on it, but when you read a PDF, you know you’re having a “computer experience.”  When you read a Kindle ebook, it’s easy to forget that.

The problem is that, if consumers are fooled into thinking a “virtual good” is a…

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