Bludogbiz Magazine - Web & Entertainment U.S. Legal News, May

WEB & ENTERTAINMENT LEGAL NEWS

PULLING THE PLUG ON ONLINE MOVIE TRAILERS - In Video Pipeline v. Buena Vista Home Entertainment Inc., a New Jersey federal judge ruled for Disney and Miramax and has prevented Video Pipeline from providing online "streaming" of movie trailers from its site to the sites of its 25 Internet-retailer clients, like Amazon.com, Netflix.com, and Yahoo.com (April 11, 2002).

"LOADING" OF COMPETITOR'S TRADE NAME ON WEBSITE INFRINGES ON TRADEMARK - Defendant Steven Kassel, used his competitor's name, J.K. Harris' trade name up to 75 times on his website, www.taxes.com, including in the header tags, and underlined tags. His attorneys from Ervin, Cohen & Jessup of Beverly Hills, California, however, were unable convince federal judge Claudia Wilken of the Northern District of California that their client's website was neither confusing nor protected speech under the 1st Amendment in the matter of J.K. Harris v. Steven Kassel. The court halted the defendant's excessive use of its competitor's name, except for what was reasonably necessary to describe J.K. Harris, including in the headers and underlined tags, which plaintiff argued manipulated search engines (April 19, 2002).

CRIMINAL PROSECUTION OF MOSCOW SOFTWARE CO. BEGINS - Joseph Burton and Daralyn Durie, a partner in San Francisco's Keker & Van Nest, the defense attorneys for Elcomsoft, a Moscow software company, argued to have the charges dismissed against their client. Elcomsoft has been indicted for marketing software that allows users to break the encrypted protection-codes on Adobe Systems' eBooks and PDF files. The defense disputed the criminal charges which they said were based on an overreaching Digital Millennium Copyright Act (DCMA) that fails to provide for "fair use" of the copyrighted material (i.e., making duplicates for personal use such as for backup copies), and thus violates due process and the first amendment. Federal prosecutors called the defense's argument a "red herring." Federal Judge Ronald Whyte of the Northern District of California is presiding over the case, United States v. Elcomsoft. The case arose after the arrest of programmer Dmitry Sklyarov in Las Vegas where he had been a speaker at a technology convention. Sklyarov agreed to testify against Elcomsoft in exchange for dismissal of the charges against him (April 1, 2002).

NAPSTER CALLS FOR PROOF OF OWNERSHIP RIGHTS- In the long and winding road of A&M Records v. Napster, Chief Judge Marilyn Hall Patel of the U.S. District Court of the Northern District of California is requiring that the record labels prove they own the digital rights to the 213 songs they claim were pirated over the Napster website. The question here is whether the record labels' contracts provided copyright protection for "new media development" like digital recordings versus whether this is just another defense delay-tactic (March 22, 2002).

FOR FREELANCERS, 3'S THE CHARM - A TRILOGY OF PUBLISHING DIGITAL COPYRIGHT CASES - Three recent digital-copyright cases have jolted the publishing industry. The case that started it all, Tasini v. New York Times, ended up at the US Supreme Court, where freelance writers won a breakthrough victory. Here, the court found that the Copyright Act did not give the publishers the right to make and sell digital reprints of their freelance articles to the electronic database, Lexis-Nexis. The Court held that the publisher could reprint the freelancer's work, without their consent only if it was in the same context in which it originally appeared--i.e., in microfiche form. Because the digital format allowed the articles to now be electronically searched and individually retrieved, they were not covered under the Copyright Act (June 25, 2001).

Another jolt struck publishers in Greenberg v. National Geographic Society, an 11th Circuit Court of Appeals case. In ruling that National Geographic could not make CD-ROMs of old magazines containing freelancers' work without their permission, the court found that the compilation was not equivalent to its original microfiche format. Instead, the CD-ROM was a "new collective work," and not a "permissible compilation revision," because they were searchable and included an animated introduction. National Geographic appealed to the US Supreme Court, but its appeal was turned down (March 22, 2001).

Lastly, in Random House v. Rosetta Books, the Appeals Court of the 2nd Circuit affirmed the lower court's denial of injunctive relief to Random House, who sued in the federal court of the Southern District of New York to stop the electronic publisher from selling e-versions of eight of the publisher's previously published hardcopy books, including Kurt Vonnegut's "Slaughterhouse-Five and "Cat's Craddle," and William Styron's "Sophie's Choice." The 2nd Circuit ruled that under New York law, digital rights are not covered under the Copyright Act unless expressly provided for by contract (January 24, 2002).

US SUPREME COURT AGREES TO HEAR A 1998 COPYRIGHT EXTENSION ACT CASE - The US Supreme Court will hear a case that challenges the Sonny Bono Copyright Term Extension Act of 1998 ("Extension Act"), in the matter of Eldred v. Ashcroft. The Extension Act is named after the late congressional representative and former rock singer Sonny Bono, who campaigned to extend the copyright law from 50 years to 70 years after the death of its creator, or 95 years for works done for hire. Many refer to the new law as the "Mickey Mouse Protection Act," since its was no secret that Disney's copyrights to certain Mickey Mouse creations would be expiring in 2003. In 1999, Eric Eldred, who operates the Internet book publishing company of Eldrich Press, sued to contest the new law in the federal district court in Washington D.C. Both the lower court and the US Court of Appeals for the DC Circuit have upheld the Extension Act in ruling against Eldrich Press. The US Supreme Court will now settle the issue. But the high court's acceptance of the case has sent a rippling effect of uncertainty to works that have entered the public domain since the Extension Act's effective date. What is at stake is whether the court will revoke all or part of the Extension Act, and if so, will they apply such revocation retroactively? (February 25, 2002).

THUMBNAIL SIZED IMAGES ARE "FAIR-USE" OF COPYRIGHTED WORKS - In Kelly v. Arriba Soft Corp., the Appeals Court of the Ninth Circuit held that search engines can display "thumbnail," but not full-sized images of copyrighted works on their websites. In this case, the defendant Arriba (now ditto.com) displayed search results by using thumbnail images of plaintiff's photographs instead of text. By clicking on the thumbnail image, the user can import a larger version of the picture within the Arriba website, instead of merely being linked to Kelly's images. This process is called inline linking. The Ninth Circuit also held that the inline linking which displayed Kelly's full-sized images is not "fair use" and therefore violated Kelly's exclusive right to publicly display his copyrighted works. (February 6, 2002)

LINKING IS NOT PER SE A COPYRIGHT VIOLATION - In Ticketmaster, Inc. v. Tickets.com, the Appeals Court of the 9th Circuit, in an unpublished opinion, has upheld, the lower court's ruling that hyperlinking itself does not involve a copyright violation since no copying is involved. But here, the lower court found that that no deception was in involved in Ticket.com's linking (January 22, 2001).

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WEB & ENTERTAINMENT LEGAL NEWS PULLING THE PLUG ON ONLINE MOVIE TRAILERS - In Video Pipeline v. Buena Vista Home Entertainment Inc., a New Jersey federal judge ruled for Disney and Miramax and has prevented Video Pipeline from providing online "streaming" of movie trailers from its site to the sites of its 25 Internet-retailer clients, like Amazon.com, Netflix.com, and Yahoo.com (April 11, 2002). "LOADING" OF COMPETITOR'S TRADE NAME ON WEBSITE INFRINGES ON TRADEMARK - Defendant Steven Kassel, used his competitor's name, J.K. Harris' trade name up to 75 times on his website, www.taxes.com, including in the header tags, and underlined tags. His attorneys from Ervin, Cohen & Jessup of Beverly Hills, California, however, were unable convince federal judge Claudia Wilken of the Northern District of California that their client's website was neither confusing nor protected speech under the 1st Amendment in the matter of J.K. Harris v. Steven Kassel. The court halted the defendant's excessive use of its competitor's name, except for what was reasonably necessary to describe J.K. Harris, including in the headers and underlined tags, which plaintiff argued manipulated search engines (April 19, 2002). CRIMINAL PROSECUTION OF MOSCOW SOFTWARE CO. BEGINS - Joseph Burton and Daralyn Durie, a partner in San Francisco's Keker & Van Nest, the defense attorneys for Elcomsoft, a Moscow software company, argued to have the charges dismissed against their client. Elcomsoft has been indicted for marketing software that allows users to break the encrypted protection-codes on Adobe Systems' eBooks and PDF files. The defense disputed the criminal charges which they said were based on an overreaching Digital Millennium Copyright Act (DCMA) that fails to provide for "fair use" of the copyrighted material (i.e., making duplicates for personal use such as for backup copies), and thus violates due process and the first amendment. Federal prosecutors called the defense's argument a "red herring." Federal Judge Ronald Whyte of the Northern District of California is presiding over the case, United States v. Elcomsoft. The case arose after the arrest of programmer Dmitry Sklyarov in Las Vegas where he had been a speaker at a technology convention. Sklyarov agreed to testify against Elcomsoft in exchange for dismissal of the charges against him (April 1, 2002). NAPSTER CALLS FOR PROOF OF OWNERSHIP RIGHTS- In the long and winding road of A&M Records v. Napster, Chief Judge Marilyn Hall Patel of the U.S. District Court of the Northern District of California is requiring that the record labels prove they own the digital rights to the 213 songs they claim were pirated over the Napster website. The question here is whether the record labels' contracts provided copyright protection for "new media development" like digital recordings versus whether this is just another defense delay-tactic (March 22, 2002). FOR FREELANCERS, 3'S THE CHARM - A TRILOGY OF PUBLISHING DIGITAL COPYRIGHT CASES - Three recent digital-copyright cases have jolted the publishing industry. The case that started it all, Tasini v. New York Times, ended up at the US Supreme Court, where freelance writers won a breakthrough victory. Here, the court found that the Copyright Act did not give the publishers the right to make and sell digital reprints of their freelance articles to the electronic database, Lexis-Nexis. The Court held that the publisher could reprint the freelancer's work, without their consent only if it was in the same context in which it originally appeared--i.e., in microfiche form. Because the digital format allowed the articles to now be electronically searched and individually retrieved, they were not covered under the Copyright Act (June 25, 2001). Another jolt struck publishers in Greenberg v. National Geographic Society, an 11th Circuit Court of Appeals case. In ruling that National Geographic could not make CD-ROMs of old magazines containing freelancers' work without their permission, the court found that the compilation was not equivalent to its original microfiche format. Instead, the CD-ROM was a "new collective work," and not a "permissible compilation revision," because they were searchable and included an animated introduction. National Geographic appealed to the US Supreme Court, but its appeal was turned down (March 22, 2001). Lastly, in Random House v. Rosetta Books, the Appeals Court of the 2nd Circuit affirmed the lower court's denial of injunctive relief to Random House, who sued in the federal court of the Southern District of New York to stop the electronic publisher from selling e-versions of eight of the publisher's previously published hardcopy books, including Kurt Vonnegut's "Slaughterhouse-Five and "Cat's Craddle," and William Styron's "Sophie's Choice." The 2nd Circuit ruled that under New York law, digital rights are not covered under the Copyright Act unless expressly provided for by contract (January 24, 2002). US SUPREME COURT AGREES TO HEAR A 1998 COPYRIGHT EXTENSION ACT CASE - The US Supreme Court will hear a case that challenges the Sonny Bono Copyright Term Extension Act of 1998 ("Extension Act"), in the matter of Eldred v. Ashcroft. The Extension Act is named after the late congressional representative and former rock singer Sonny Bono, who campaigned to extend the copyright law from 50 years to 70 years after the death of its creator, or 95 years for works done for hire. Many refer to the new law as the "Mickey Mouse Protection Act," since its was no secret that Disney's copyrights to certain Mickey Mouse creations would be expiring in 2003. In 1999, Eric Eldred, who operates the Internet book publishing company of Eldrich Press, sued to contest the new law in the federal district court in Washington D.C. Both the lower court and the US Court of Appeals for the DC Circuit have upheld the Extension Act in ruling against Eldrich Press. The US Supreme Court will now settle the issue. But the high court's acceptance of the case has sent a rippling effect of uncertainty to works that have entered the public domain since the Extension Act's effective date. What is at stake is whether the court will revoke all or part of the Extension Act, and if so, will they apply such revocation retroactively? (February 25, 2002). THUMBNAIL SIZED IMAGES ARE "FAIR-USE" OF COPYRIGHTED WORKS - In Kelly v. Arriba Soft Corp., the Appeals Court of the Ninth Circuit held that search engines can display "thumbnail," but not full-sized images of copyrighted works on their websites. In this case, the defendant Arriba (now ditto.com) displayed search results by using thumbnail images of plaintiff's photographs instead of text. By clicking on the thumbnail image, the user can import a larger version of the picture within the Arriba website, instead of merely being linked to Kelly's images. This process is called inline linking. The Ninth Circuit also held that the inline linking which displayed Kelly's full-sized images is not "fair use" and therefore violated Kelly's exclusive right to publicly display his copyrighted works. (February 6, 2002) LINKING IS NOT PER SE A COPYRIGHT VIOLATION - In Ticketmaster, Inc. v. Tickets.com, the Appeals Court of the 9th Circuit, in an unpublished opinion, has upheld, the lower court's ruling that hyperlinking itself does not involve a copyright violation since no copying is involved. But here, the lower court found that that no deception was in involved in Ticket.com's linking (January 22, 2001). [Back to the Top] [Back to Home Page]
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