COPYCENSE

This is an action for copyright infringement brought by plaintiff Blake Field against Google Inc. Field contends that by allowing Internet users to access copies of 51 of his copyrighted works stored by Google in an online repository, Google violated Field’s exclusive rights to reproduce copies and distribute copies of those works. On December 19, 2005, the Court heard argument on the parties’ cross-motions for summary judgment.

Based upon the papers submitted by the parties and the arguments of counsel, the Court finds that Google is entitled to judgment as a matter of law based on the undisputed facts. For the reasons set forth below, the Court will grant Google’s motion for summary judgment: (1) that it has not directly infringed the copyrighted works at issue; (2) that Google held an implied license to reproduce and distribute copies of the copyrighted works at issue; (3) that Field is estopped from asserting a copyright infringement claim against Google with respect to the works at issue in this action; and (4) that Google’s use of the works is a fair use under 17 U.S.C. § 107.

The Court will further grant a partial summary judgment that Field’s claim for damages is precluded by operation of the “system cache” safe harbor of Section 512(b) of the Digital Millennium Copyright Act (“DMCA”). Finally, the Court will deny Field’s cross-motion for summary judgment seeking a finding of infringement and seeking to dismiss the Google defenses set forth above.

U.S. District Court, District of Nevada. Blake A. Field v. Google, Inc. (.pdf, 201 KB) Jan. 12, 2006.

Update:

The Patry Copyright Blog. Google Caches One. Jan. 26, 2006.

Attribution: CopyCense first learned of this decision through a posting on the EFF Deep Links Web site.

CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.

“Satellite radio is a pretty good technology that’s attracting a respectable audience primarily through excellent programming. But let’s be clear — satellite doesn’t hold a candle to podcasting, and not even Howard Stern can change that.

“Sirius signed Stern for $500 million, a deal that’s helped it attract nearly 3.5 million subscribers. It’s hard to argue with a half billion incentives. But — aside from cash — it’s hard to see what satellite could do for Stern that podcasting couldn’t do better.”

Eliot Van Buskirk. Real Stern Shocker: No Podcast. Wired News. Jan. 23, 2006.

Update:

Dawn C. Chmielewski. Sirius Shock: Pirates Hit Howard Stern Show. LATimes.com. Feb. 2, 2006.

CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.

“The music industry’s annual conference is abuzz with the success of legal download services such as Apple iTunes, but some participants warn that a shakeout could be coming among its many competitors.

“There are some 355 online music sellers, according to a report by the International Federation of the Phonographic Industry released last week, and their revenues tripled to $1.1 billion in 2005.

“But with Apple’s iTunes Music Store commanding a dominant share in many of the biggest markets, there are concerns that some of its smaller rivals may be forced to consolidate.”

Adam Pasick. Shakeout Looms In Booming Digital Music Sector. Reuters. Jan. 23, 2006.

See also:

BBC. Apple iTunes Users Growing Fast. Jan. 23, 2006.

CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.

“Do you prefer to search for information online with Google or Yahoo? What about bargain shopping — do you go to Amazon or eBay? Many of us make these kinds of decisions several times a day, based on who knows what — maybe you don’t like bidding, or maybe Google’s clean white search page suits you better than Yahoo’s colorful clutter.

“But the nation’s largest telephone companies have a new business plan, and if it comes to pass you may one day discover that Yahoo suddenly responds much faster to your inquiries, overriding your affinity for Google. Or that Amazon’s Web site seems sluggish compared with eBay’s.

“The changes may sound subtle, but make no mistake: The telecommunications companies’ proposals have the potential, within just a few years, to alter the flow of commerce and information — and your personal experience — on the Internet.”

Christopher Stern. The Coming Tug of War Over the Internet. WashingtonPost.com. Jan. 22, 2006.

Updates:

Drew Clark. Verizon Splits With Other Bells On Need For ‘Net Neutrality’ Solution. National Journal’s Insider Update. Jan. 27, 2006.

Lauren Gelman. President Bush Must Get Serious. The Wireless Internet Institute. Jan. 24, 2006.

CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.

“In the fast-moving world of technology, Fox is the tortoise and CBS is the hare.

“CBS has spent the past few months making deals to distribute the network’s fare in every conceivable way — on the Internet, through on-demand services, on iPods, on cell phones. Fox has been content to mostly watch this frenzied activity from the sidelines.

“Considering their images as TV networks, it’s a fascinating reversal of type.”

David Bauder. CBS, Fox Show Different Approaches to Tech. Yahoo! News. Jan. 22, 2006.

CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.

“A growing number of rock star wannabes are launching online, using Internet buzz, free samples and cyberscouts to get their music heard.

“And while the traditional record deal remains the holy grail for up-and-coming acts, the Internet’s ability to build a fan base from scratch puts more power into artists’ hands and is changing the way many labels are doing business. On Monday, British group the Arctic Monkeys release their debut album “Whatever People Say I Am, That’s What I’m Not.” Hailed as one of the first to break out without the backing of a manager or label, the quartet’s high-octane record is widely tipped to top the charts.

“But underlining how hard it is to make it really big via the Web alone, the group signed up with independent label Domino Recording in June last year.”

Reuters. Can the Web Make A Rock Star Of Me? News.com. Jan. 20, 2006.

CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.

“Digital music sales tripled last year to $1.1 billion as consumers downloaded 420 million tracks, boosting digital receipts to 6 percent of the music industry’s revenue as it combats an overall sales slump.

“Boosted by the global purchase of 60 million portable digital music players, downloads accounted for 60 percent of 2005 digital sales while ring tones and songs for mobile phones comprised 40 percent, the London-based International Federation of the Phonographic Industry said today in a report. Digital sales totaled $380 million in 2004.”

Bloomberg. Digital Music Sales Tripled in 2005 to $1.1 Billion. Jan. 19, 2006.

See also:

International Federation of the Phonographic Industry. Global Digital Music Sales Triple to US$1.1 billion in 2005 As New Market Takes Shape. (Press Release) Jan. 19, 2006.

International Federation of the Phonographic Industry. The Digital Music Report 2006 – Facts and Figures. Jan. 19, 2006.

International Federation of the Phonographic Industry. IFPI Digital Music Report – Executive Summary. Jan. 19, 2006.

Update:

Laurence Frost. Music Sales Resumed Decline in 2005. Yahoo! News. Jan. 22, 2006.

CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.