The Second Circuit’s recent opinion in Capitol Records v. Vimeo is, to put it mildly, pretty bad. From its convoluted reasoning that copyrights under state law for pre-1972 sound recordings are limited by the DMCA safe harbors, despite the explicit statement in Section 301(c) that “rights or remedies” under state law “shall not be annulled or limited” by the Copyright Act, to its gutting of red flag knowledge by limiting it to the nearly-impossible situation where a service provider actually knows that a specific use of an entire copyrighted work is neither fair nor licensed yet somehow doesn’t also surmise that it’s infringing, it’s hard to see how either result is compelled by the statutes, much less how it was intended by Congress. Read more
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How Strong Patents Make Wealthy Nations
By Devlin Hartline & Kevin Madigan
How did the world’s wealthiest nations grow rich? The answer, according to Professor Stephen Haber of Stanford University, is that “they had well-developed systems of private property.” In Patents and the Wealth of Nations, recently published in the CPIP Conference issue of the George Mason Law Review, Haber explains the connection: Property rights beget trade, trade begets specialization, specialization begets productivity, and productivity begets wealth. Read more
Advertiser Pledge Sets Example of Accountability in the Fight Against Piracy
Cross-posted from the Mister Copyright blog.
It should come as no surprise that popular websites make money by hosting advertisements. Anyone surfing the web has undoubtedly been bombarded with ads when visiting certain sites, and for websites that offer free services or user experiences, advertisements are often the only way to generate revenue. Read more
Capitol Records v. Vimeo: Courts Should Stop Coddling Bad Actors in Copyright Cases
Here’s a brief excerpt of my new post that was published on IPWatchdog:
Here’s where we are after Capitol Records v. Vimeo: A service provider can encourage its users to infringe on a massive scale, and so long as the infringement it encourages isn’t the specific infringement it gets sued for, it wins on the safe harbor defense at summary judgment. Read more
IP Scholars to FCC: It’s Not About "The Box"
This past April, we joined other IP scholars in explaining how the FCC’s proposed set-top box rules would undermine the property rights of creators and copyright owners. In reply comments filed last month, the EFF and a group of IP academics argued that the proposed rules would not implicate any copyright owners’ exclusive rights. Read more
Radiohead Video Makes Unauthorized Use of Fictional Characters
Cross-posted from the Mister Copyright blog.
Last month, Radiohead released their ninth studio album, A Moon Shaped Pool, after a five-year hiatus from recording. In true Radiohead fashion, the album’s release was preceded by a unique succession of mysterious social media postings, teaser artwork and music videos for the singles Burn the Witch and Daydreaming. Read more
FCC’s Extreme Proposal Threatens the Livelihood of Creators
By Matthew Barblan & Kevin Madigan
Earlier this year, the FCC proposed a new regulatory scheme ostensibly designed to improve the market for pay-TV set-top boxes. Chairman Wheeler claimed that the proposed rules would “tear down the barriers that currently prevent innovators from developing new ways for consumers to access and enjoy their favorite shows and movies on their terms.” Read more
Google Image Search and the Misappropriation of Copyrighted Images
Cross-posted from the Mister Copyright blog.
Last week, American visual communications and stock photography agency Getty Images filed a formal complaint in support of the European Union’s investigation into Google’s anti-competitive business practices. The Getty complaint accuses Google of using its image search function to appropriate or “scrape” third-party copyrighted works, thereby drawing users away from the original source of the creative works and preserving its search engine dominance. Read more
Copyright Policy Should Be Based On Facts, Not Rhetoric
Here’s a brief excerpt of a post by Kevin Madigan & Devlin Hartline that was published on IPWatchdog.
After nearly twenty years with the DMCA, the Copyright Office has launched a new study to examine the impact and effectiveness of this system, and voices on both sides of the debate have filed comments expressing their views. Read more
Separating Fact from Fiction in the Notice and Takedown Debate
By Kevin Madigan & Devlin Hartline
With the Copyright Office undertaking a new study to evaluate the impact and effectiveness of the Section 512 safe harbor provisions, there’s been much discussion about how well the DMCA’s notice and takedown system is working for copyright owners, service providers, and users. Read more