A Legal Blog by Aaron | Sanders, PLLC


Poking Bears and Blocking ISPs

I’m going to post this and then go hide out in a bunker somewhere.  I’m not even sure I can get through the introductory paragraph before needing to take cover.

 

 

SOPA.

 

(Crawling back out from her hiding space under her desk…..)

 

You will all remember the Day the Internet Went Black in protest of the twin legislative boogey men, the Stop Online Piracy Act in the House and the Protect IP Act in the Senate.  The acts were secretly negotiated and quickly drafted attempts to curb piracy and counterfeit from foreign sites by prohibiting U.S. companies from advertising on those sites or processing payments to those sites, or from indexing those sites on search engines. We’re coming up on the 5th anniversary of Protest Day. The primary arguments against the bills were that the DNS blocking provisions would “break the internet,” that it was not narrowly tailored to avoid curbing free speech, that it would chill sites for user-generated content, and that it would generally stifle internet innovation.

The short history is that the bills came out, the Internet went berserk, the Internet went black, and the bill died.  Prior to the demise, those of us who moderated panels on the issue that…

dreamstime_m_48059685

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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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My Response to Prof. Menell Regarding the Propriety of Relying on Pre-Enactment Legislative History of the Copyright Act of 1976

Prof. Menell Comments on 15% of My Article; I Respond.

This is the first of a series of blog posts in which I respond, in detail, to the following assertion by Prof. Peter Menell in a recent blog post post made on the Media Institute’s website:
Mr. Rick Sanders also questioned my exploration of legislative history, suggesting that it is improper to consult legislative history predating the enacting Congress. His assertion overlooks Supreme Court opinions in Kirtsaeng, Tasini, CCNV, Abend, Dowling, and Sony [a/k/a “Betamax”] adverting to 1976 Copyright Act legislative history predating the enacting Congress.
Prof. Menell was, indirectly, responding to one (of several) arguments I made in an article I wrote on whether the distribution right includes a “making available” right, i.e., whether just making something (a book or digital song file) available (for sale or download) violates the distribution right. I was, in turn, responding to Prof. Menell’s re-writing of the section of the authoritative treaties on copyright law, Nimmer on Copyright. Prof. David Nimmer, who maintains (and mostly writes) Nimmer on Copyright had previously either (depending on whose recollection you’re using) taken no position on the issue or was leaning against the existence of a “making available” right…

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I Need a Copyright License for My Personal Virtual Island?

Yes, if You Hired Someone to Design it for You.

Remember when Second Life was all the rage? I’ll admit that my memory is a little hazy, but I swear it was a huge deal a few years ago. Anyway, it’s still around, with a new slogan: YOUR IMAGINATION, YOUR WORLD.* If you’re not familiar, Second Life is an interactive virtual world that emphasizes the creation of virtual lands, complete with topography, buildings, etc. Subscribers operate avatars that may move through and interact with these worlds.

* Judging from this promotional video: ALSO BOOBS. Seriously.

Subscribers can also purchase virtual land and “terraform” it—i.e., give it mountains, forests, buildings, beaches, caves—to their liking. These lands can be private—i.e., cut off except for those specifically invited—in which case they’re called “islands.”

In this post, I’ll be discussing a recent decision in a lawsuit about whether terraformed virtual “islands” are copyrightable. More practically, the lawsuit is an object-lesson how badly things can go when copyright is involved in what appears to be “just a business transaction.”

Prelude to an Accidental Copyright Dispute

A teacher (we’ll call her the Teacher) working for a particular school district (we’ll call it the District) got the idea that these…

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Is Nimmer & Menell’s “Lost Ark” of Copyright Just a Prop?

Spoiler: Yes.

So, I’m talking about this article of mine that was kindly published by the Vanderbilt Journal of Entertainment and Technology Law (“JETLaw”). See part I here. The issue has to do with one of copyright law’s “exclusive rights”—i.e., things only the copyright owner and his or her authorized licensees may do with a copyrighted work—the right to distribute copies of the work to the public, which we’ll just call the “distribution right.” The question is whether the distribution right includes only consummated acts of distribution, or can also include attempts and offers to distribute.* Most (but not all) courts have held that the right is limited to consummated distributions, but rights holders would very much prefer the broader interpretation. The issue used to be academic, but with file-sharing, it matters now because it’s very difficult to detect consummated downloads**, but it’s easy to prove that the unlicensed works were “made available” for download on the file-sharer’s computer.

* Remember that the distribution right has an important exception: the first sale doctrine. Once you legally obtain a physical embodiment of the work, you may dispose of it as you see fit.

** Putting aside what I have…

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