[This post authored by FMC Legal Intern Joseph Silver]
The first sale doctrine within American copyright and trademark law has been getting a lot of attention in recent months. A number of federal circuit courts have touched upon this important copyright principle, which says that when a consumer purchases a good on the legitimate marketplace, the law affords them the right to lend, resell and dispose of that item (along with a number of other related uses). However, the first sale doctrine, also known as the exhaustion doctrine, does not permit a purchaser to reproduce, publicly display or perform the work, all of which are exclusive rights held by the copyright holder. Absent a “fair use” defense for consumers, those rules are pretty steadfast. Still, the first sale doctrine is an important limitation on copyright, which allows consumers who have lawfully purchased copyrighted goods to choose how the particular copy they purchased is distributed. This much remains settled. Yet two issues have recently arisen that aren’t so cut-and-dry: whether the first sale doctrine applies to digital goods and whether it applies to goods manufactured internationally.
If you live in an area with a population larger than, say, twelve, you’ve likely run across someone wearing a pair of Beats headphones. And even if you haven’t, you may have stumbled across the marketing campaign, which includes prominent positioning in shows like “American Idol.” These “lifestyle” headphones (which are bass heavy and not all that great sounding) are the brainchild of superstar producer/label honcho Jimmy Iovine and hip-hop maestro Dr. Dre.
If you follow our work, then you probably know that we think there’s a lot to be done to make today’s music marketplace more efficient. The growth of the internet as a global musical delivery device has strained our copyright architecture, likely necessitating new ways of doing business. Which is why you often hear talk about the difficulties of music licensing in today’s networked environment. read more
[…] The suit doesn’t surprise Kembrew McLeod, associate professor of communication studies at the University of Iowa, and co-author, with economist and researcher Peter DiCola, of the book “Creative License: The Law and Culture of Digital Sampling.” “‘Paul’s Boutique’ and other albums of that era are like ticking legal time bombs,” says McLeod, who also co-produced the acclaimed documentary “Copyright Criminals.” “For instance, in 2005, Run DMC was sued by the Knack for using ‘My Sharona’ for its song ‘It’s Tricky.’ And they were sued 20 years after the fact.” read more
Big news for anyone who’s been following the termination of transfer issue: a California judge has ruled in favor of Victor Willis, original singer of the Village People, in his battle with the publishing companies that administer rights for the Village People’s catalog. Last year, Willis had filed to terminate rights to his share of “YMCA” and thirty-two other songs that he co-wrote, and publishers responded by claiming he lacked legal standing to do so without having his co-authors on board. Judge Barry Ted Moskovitz disagreed, writing: read more
“Advancing the Creative Economy” was the theme of the Copyright Clearance Center’s OnCopyright 2012 conference on March 30, and an important first order of business seemed to be defining what, exactly, a creative economy is. For many, it became a matter of semantics: “piracy” and “stealing” vs. “infringement,” “individual” vs. “commercial,” “intellectual property” vs. “creative greater good,” and “copyright” vs. “licensing.” The philosophical implications of these words clearly depended on what roles panelists played in the creative economy, as did the preference as to whether copyright ambiguities be better defined, or remain vague and fungible… read more
Ever find yourself in a situation where a hot court decision drops but you have precious little time for a proper analysis? That was exactly the case this week, when your steadfast FMC’ers found ourselves with an appeals ruling in Viacom’s high-profile case against YouTube. The decision just dropped yesterday, but dammit, we like to be first in analysis! (OK, maybe second; Public Knowledge is pretty quick on the draw.)
The following is the gist of the case and the April 5, 2012 decision by the 2nd Circuit Court of appeals. read more
In July of 2011, several Internet Service Providers (ISPs) announced a “Memorandum of Understanding” with the major content industries. In essence, the ISPs agreed to implement a “graduated response” policy to educate and potentially penalize internet users sharing or downloading unauthorized content. Our initial statment on the Copyright Alert System (CAS) lives here. read more