COPYCENSE

In this edition of Clippings, we go retro — covering some of the stories we missed from the end of last year through January.

Article & Quote of the Week

Cydney Tune and Jenny Yoo. Corporate officer held personally liable For IP infringement by his company. Mondaq. Jan 23, 2007. This is the first we’ve heard of an employee being held jointly and severally liable in an individual capacity for the copyright infringements of his business or employer. While this case is decided in the music realm, it has clear ramifications for printed works as well. Consider the following quote:

From February 1998 through December 2001, ASCAP made numerous attempts to persuade the defendants to obtain an ASCAP license which would allow the hotel to lawfully perform copyrighted musical works in the ASCAP repertory. ASCAP representatives contacted defendants with at least 10 letters, telephone calls and personal visits. The defendants were advised that in order to lawfully perform ASCAP’s copyrighted musical compositions, permission was required from either ASCAP or the individual copyright owners directly. They were also informed of their potential liability arising from the unauthorized public performances. Nevertheless, defendants repeatedly ignored and rejected ASCAP’s licensing offers.

We are almost certain that reproductive rights organizations such as the Copyright Clearance Center will quote and analogize to cases like this one. The position CCC will likely take is that dictum from a federal court case has determined that a “repeated” failure to license works can be cited as a contributing factor in a determination of institutional and personal copyright infringement liability. We’re interested in how CCC will leverage this case, which comes at about the same time the institution named chief operating office Tracey Armstrong to succeed Joseph Alen as chief executive officer in June.

The case is EMI Mills Music, Inc., et al., v. Empress Hotel, Inc., et al. (D.P.R. No. 03-01940, Sept. 20, 2006).

Clippings

• William Triplett. XM copyright suit proceeds. Variety. Jan. 22, 2007. The procedural stance of this decision — denying XM’s motion to dismiss the case before trial — was predictable. What we find interesting is the stance gives increasing current relevance to the Audio Home Recording Act, which has its 15th anniversary this year. Categories: Broadcasting & Journalism; Cases & Litigation; Music.
• Mark A. Fischer & Paul Sennott. Do attorneys follow their own copyright advice? Law.com. Jan. 22, 2007. The issues discussed in this article likely are well-known to Copycense readers, but you’d be surprised how often the most basic copyright principles are unknown — or ignored — in American law firms. Categories: Bundle of Rights; Fair Use & Other Exceptions.
• Victoria Shannon. Record labels rethink digital rights management at MIDEM. International Herald Tribune. Jan. 21, 2007. At Big Music’s annual global trade fair, suits discuss driving a stake through the heart of DRM. The honchos must be feeling rather desperate to openly discuss this tactic. Categories: DRM & Copy Protection; Events; International; Tech & Devices.
• Jim Dickins. Gyms face the music. The Daily Telegraph. Jan. 21, 2007. Mixtape DJs get prosecuted now; are aerobics instructors next? As revenue from music sales continues to fall, expect Big Music to use a variety of economic, legal, and legislative means to recoup that lost income through licensing deals. Categories: International; Law, Legislation & Regulation; Licensing & Permissions; Music.
• ArsTechnica. Privately, Hollywood admits DRM isn’t about piracy. Jan. 15, 2007. “For the movie studios, it’s the moment they have to admit that it’s not the piracy that worries them, but business models which don’t squeeze every last cent out of customers.” We couldn’t agree more. (See our article Remixing the Music Industry.) Categories: DRM & Copy Protection; Film.
• Amanda Bronstad. Turnabout is fair play in Internet copyright litigation. Law.com. Jan. 9, 2007. Traditionally, big law firm firepower was reserved for Big Content plaintiffs, likely because only Big Content plaintiffs could pay the hefty legal fees. Now, it seems that large firm lawyers are more likely to represent defendants in high profile copyright cases, or file amicus curiae briefs on defendants’ behalf in cases in which their clients are not directly involved, yet affected. We think the trend speaks to the extent to which law firms have begun to market and brand themselves more aggressively over the past few years, and being involved in high-profile, newsworthy cases is consistent with that tactic. Categories: Cases & Litigation.
• Daniel Terdiman. The legal rights to your ‘Second Life’ avatar. News.com. Jan. 5, 2007. There several timely, interesting doctrinal issues that arise in this story, including another example of DMCA notice abuse. (Gunther Graef, the husband of Ailin Graef — the Chinese business woman that created the Anshe Chung avatar under attack — later dropped the DMCA complaint.) But the question that jumps out at us is this: when did Web site owners and Internet service providers become so conservative with the DMCA takedown procedures even in the most egregious circumstances? Categories: Images, Art & Photos; Web & Online.
• The Patry Copyright Blog. A new Congress, a new act? Jan. 4, 2007. When it comes to handling copyright developments within Congress, few report on it better than the razor sharp William Patry. This article serves as the pre-game show for the 110th Congress. Categories: Law, Legislation & Regulation.
• Sion Touhig. How the anti-copyright lobby makes big business richer. The Register. Dec. 29, 2006. A professional photographer talks about how user-generated content has crushed the economics of his business, even while (as he claims) publishers fail to pay those users for the content they generate. Key quote: “It’s a race to the bottom, and is a fundamental failure by publishers to invest in their businesses for their readers benefit. It has consequently put massive pressure on professional photographers, who have to reduce their rates, or submit to copyright grabs themselves in order to get work, which is drying up and being replaced by stolen audience content.” Categories: Broadcasting & Journalism; Images, Art & Photos; International.
• InfoWorld GripeLine by Ed Foster. Will more DRM mean fewer audits? December 31, 2006. Be prepared for yet another new acronym: SAM. SAM stands for “software asset management,” a euphemism for a software audit. Software audits are one of those secrets few businesspeople discuss, and we’ll be the first to concede that Copycense has not done nearly enough reporting or writing on this issue. But with the increased and automated features in Microsoft’s new Vista operating system, software audits (and lawsuits resulting therefrom) are likely to be an increased source of pain for chief information officers. Categories: Computers & Technology; DRM & Copy Protection; Licensing & Permissions.

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