A Legal Blog by Aaron | Sanders, PLLC


The Force Toys Around: Can You Post a Picture of Your Favorite Star Wars Action Figure?

DMCA = Darth’s Malicious Copyright Attack

Warning: careful about clicking some of the links. There may be spoilers. Well, a spoiler.

I have it on good authority that Star Wars fans were surprised to discover an action figure of a major character from the upcoming Star Wars: The Force Awakens movie for sale at their local Walmart. What’s more, said action figure might constitute something of a spoiler because the packaging depicts the character as holding … something that might give away a hitherto unknown secret about the character. Excited, these people took pictures of the toy (with packaging) and uploaded to websites, such as Star Wars Action News and plain-old Facebook and Twitter. Disney and/or LucasFilm then got those images removed by sending DMCA take-down notices to their hosts. TorrentFreak has details. Fortune and Ars Technica have also covered.

If you’re OK learning a possible spoiler, here’s the photograph at issue.

Ah, the delicate balance between fandom and intellectual-property enforcement! This seems a little heavy-handed, no? Maybe an instance of automation gone overboard? Or, perhaps the toy was mistakenly released early and someone wants to stop a certain spoiler from getting out? Relating to the last theory: the DMCA notifications have described…

figures1

Read More»

My Response to Prof. Menell Part 3-Supreme Court Disrepsects Legislative History in Kirtsaeng

Kirtsaeng’s Near-Contempt for 1960’s-Era Legislative Materials

This post continues my response to Prof. Menell’s contention that, based on the Supreme Court’s use of 1960’s-era legislative materials to construe the Copyright Act of 1976 (the “1976 Act”), it is appropriate to use such materials to help resolve the knotty question of whether merely making a copyrighted work available (for download or whatever) violates the distribution right. I had previously criticized Prof. Menell for relying on such materials when courts have generally limited the use of legislative materials to those generated by the Congress that enacted the legislation in question. For more background, see my first post in this series.

After reading the Supreme Court decisions cited by Prof. Menell, I came to the conclusion that most of them are irrelevant, referencing the 1960’s-era materials in passing or for context, but three of them—CCNV, Kirtsaeng and Stewart v. Abend—had something of relevance to say on the subject. Last time, I discussed the decision that most supports Prof. Menell’s, view, CCNV. This time, I’ll discuss the decision that most supports my view, Kirtsaeng.

At a minimum, CCNV seems to accept the possibility 1960’s era legislative materials could be used to construe the Copyright Act of…

Stephen_Breyer_official_SCOTUS_portrait_crop

Read More»

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…

4586899100_55b0451468_z

Read More»

Rick’s Copyright Course Final Exam: Part 2 of 3

Part II: Short Essays

Last time, I explained my philosophy informing the way I constructed the final exam I gave to my copyright class last semester at Vanderbilt University Law School (which happens to be where I went to law school), plus Part I of said exam which consisted of 12 short answers.

Here, now, is my annotated Part II, complete with my comments about how the essay topics should have been addressed.

Preliminary note: The students were presented with eight short-essay topics a week before the exam period began. Of those, I chose four, and each student chose three of those to answer. That’s why the topic numbers go 1, 2, 4, 7. So, on the one hand, the students got to prepare in detail. On the other hand, there were diminishing returns in over-preparing. I chose to do this because of the three-hour time constraint. The idea is that the students would be able to address the topics in less time if they were able to prepare for specific topics. As a side-benefit, they were also forced to prepare for a wider range of topics than could actually be crammed into a three-hour exam.*

* The idea came to…

Read More»

Rick’s Copyright Course Final Exam: Part 1 of 3

Part 1: The Important Details

If you follow my Twitter account very much, you already know that, in early January, I was really suffering. I was grading law exams for my Copyright course that I had taught at Vanderbilt University Law School. The problem wasn’t what the students had written. Many of the exam papers I received were excellent. The suffering was largely self-inflicted. I could have written a shorter, simpler or narrower exam, and spared myself a lot of grief. Had I known how hard the grading would be, I might have quailed when I was preparing the exam.

Exam Philosophy

And, yet, I don’t regret how I structured the exam. It was structured to test the ability to analyze core copyright concepts (e.g., substantial similarity, originality, authorship, ownership, fair use, the exclusive rights, etc.) and the many small but important details (e.g., termination rights, duration, restoration, misuse, minor defenses, etc.), plus stuff in between (useful articles, statutory licenses, architectural works, etc.). By and large, I think it succeeded.

One can’t cover everything, and traditionally law professors have tended not to sweat the details. But I felt I had to. In copyright law, details matter. And I remember how frustrated I was…

Read More»