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  • Dec 9th, 2016 @ 7:48pm

    Subsequent remedial measures

    There's a legal doctrine of subsequent remedial measures, where repairs or improvements can't be used to show negligence, defects, etc. One policy rationale is that society doesn't want to discourage fixing a problem if the fix itself is used as proof of liability.

    See https://www.law.cornell.edu/rules/fre/rule_407

    While the doctrine doesn't necessarily apply to defamation, the same policy consideration is at issue.

  • Jun 23rd, 2016 @ 2:30pm


    The alleged infringement was ongoing and continuous.

  • May 17th, 2016 @ 9:26am

    Not 9th circuit precedent

    And, now, even with it being "fact" that APIs are covered by copyright in certain cases in the 9th Circuit (hopefully other courts have a chance to fix this at some point soon...), we're still facing the same kind of argument.

    This part of the article is incorrect. The Court of Appeals for the Federal Circuit made the ruling regarding copyright of APIs. The 9th Circuit has not, to the best of my knowledge. Since there was a patent aspect to the original case, the Federal Circuit (which has exclusive jurisdiction at the circuit level for patent appeals) took the appeal and set the precedent. It won't bind the 9th Circuit appeals court at all; it will bind cases that get appealed to the Federal Circuit though, so we might start seeing random patent claims attached to API copyright claims to make sure that the case is under Federal Circuit jurisdiction.

  • Mar 21st, 2016 @ 11:47am

    Re: Re: Re: Where do you draw the line?

    Privacy with respect to the 14th amendment applied to state actors, I thought, which would be inapplicable to a private entity such as Gawker.

  • Mar 21st, 2016 @ 10:11am

    Re: Re: Re: Re: Where do you draw the line?

    I'm not sure the tape is considered obscene. Obscenity definition from Miller v. California:

    The basic guidelines for the trier of fact must be: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

    I haven't seen the clip in question, but from the description, it could fail the prurient interest prong- it's sounds fairly plain in terms of the act. Also, it could have literary/political value given that Hogan/Bollea is a public figure who has injected his sex life into the public discussion.

  • Oct 7th, 2015 @ 8:40am


    FYI, under current law, registration of the copyright is a necessary (but not sufficient) condition of obtaining statutory damages.

    17 U.S. Code § 412

  • Oct 7th, 2015 @ 8:25am

    Re: Re:

    While some laws are applied retroactively, that is not at issue for happy birthday. The Copyright Act of 1976 represented a pretty clean "break" between the works fixed on or before Dec. 31, 1977 and those fixed on or after Jan. 1, 1978; the former were covered primarily by the Copyright Act of 1909.

    It was fairly easy to lose a copyright prior to 1976, and the recent decision was analyzed under the 1909 Act.

  • Oct 7th, 2015 @ 8:17am

    Re: Re: Re: Re:

    The copyright to the lyrics is separate from the copyright to the melody. The copyright to the melody is lapsed, so only the lyric's copyright (and authorship) is at issue.

  • Sep 24th, 2015 @ 10:29am

    Re: Lyrics published in 1919

    That's insufficient. It needed to have been published with the authorization of the copyright holder.

    The case described numerous publications, but, as it wasn't clear that they were authorized, the judge considered that insufficient evidence for divesting the copyright.

  • Sep 24th, 2015 @ 5:33am

    Re: how do you copyright this?

    The lyrics and musical score are considered distinct in copyright. Lyrics are essentially just the same as any other textual work like a poem, article, or book. The difference between lyrics and poetry can be rather thin.

    The musical score/composition has its own copyright. So the musical melody for Happy Birthday/Good Morning To You is a separate legal object. That's what the copyright suit over Blurred Lines (Robin Thicke) is about- whether the musical composition from the Marvin Gaye song was copied.

    And this is all different than the copyright interest in an actual audio recording.

  • Dec 2nd, 2014 @ 8:14am

    Re: Re:

    This is a "New Britain Superior Court Judge", not an article 3 federal judge.

    There is no "good behavior" limit. There's actually a good chance this is an elected position.

  • Oct 15th, 2014 @ 6:46am

    Re: I'm not persuaded

    I agree.

    The retailer is clearly trying to evoke Don Henley in the viewer.

    I don't think the trademark claim will fly because of the different industries (music vs clothing), but the others have some legal merit.

    The article is also wrong to bring up:

    Henley is also claiming false advertising and -- because this suit was filed in California -- violations of his right to publicity. In both cases, the simplest defense may be to point out that common English words were used, neither of which violate registered marks of Henley's publicity rights.
    The use of common English words is separate from violating a registered mark; the former is essentially an argument against all of the claims, and the Lanham and state publicity claim stand independently from the trademark claim

  • Aug 6th, 2014 @ 11:07am

    Re: Re:

    After getting laid off from my law firm, I actually talked to one of the Prenda people (a few years back before they became infamous) about being local counsel. I was told about the copyright lawsuits but didn't go through after seeing them in some of the early copyright trolling articles.

    Sure am glad I dodged that bullet.

  • Aug 6th, 2013 @ 10:29am

    Re: Billy Cub should go away...???

    1. The claim is trademark infringement, not copyright. The Cubs logo is certainly trademarked, and the uniform might be.

    2. The essence of a trademark infringement claim is consumer confusion- that is, are people mistakenly attributing the trademark owner as the source or endorser of something. In this case, if people believe "Billy Cub" is the official team mascot, then the Cubs have a decent claim at trademark infringement.

  • Apr 24th, 2013 @ 12:27pm


    In a nutshell, there are both federal and state level copyright laws. The (federal) Copyright Act of 1976 generally preempted existing state level copyright laws, and created a uniform, federal system that is the one that we usually think of. However, there were exemptions to this preemption (see http://www.copyright.gov/title17/92chap3.html#301), which means that the state laws would still be in effect.

    UMG claimed violations under NY state copyright for works that were not preempted by the federal statutes. Grooveshark argued it was protected under the federal DMCA safe harbor provision, but NY appellate court has now rejected that.

  • Apr 24th, 2013 @ 12:01pm

    Re: Re: Re:

    I argue that the DMCA and laws like it expand the rights and remedies of the copyright holder, at least when taken as a whole. It grants copyright holders the power to issue takedowns of infringing (and non-infringing) works with very limited oversight in addition to the original power to track down the infringer through discovery and sue them directly. The safe harbor effectively allows takedowns to occur without the service provider becoming liable for that content.

    First, whether or not on the whole copyright holders are in a stronger position post-DMCA, that's not the standard. 17 USC 301(c) states that "any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067". Emph. added. The question isn't whether the total bundle of rights is stronger/weaker, but if any particular right is weaker.

    Second, that "expansion" of rights you cite isn't actually an expansion. Copyright holders already had the ability to send a complaint about infringing material; the takedown notice wasn't a grant of a new right- remember, a takedown notice does not actually force a service provider to remove content. With the DMCA, takedown notices are actually much weaker for the copyright holder because now you can't sue the service provider because of the DMCA safe harbor provision. A pre-DMCA threat to a service provider to sue has leverage; a post-DMCA threat doesn't have as much.

  • Apr 22nd, 2013 @ 6:22am

    Re: Re: Re:

    Not correct at all. The court ruled that due to the public safety exception, those pre-Miranda statements were admissible in court.

    We hold that the Court of Appeals in this case erred in excluding the statement, "the gun is over there," and the gun because of the officer's failure to read respondent his Miranda rights before attempting to locate the weapon. Accordingly we hold that it also erred in excluding the subsequent statements as illegal fruits of a Miranda violation. 467 U.S. at 659-60.

    That's what make this an exception. The Miranda "rule" is (roughly) that pre-warning statements are inadmissible. The exception means that that those pre-warning statements would be admissible.

  • Apr 22nd, 2013 @ 5:06am


    There is a public safety exception to the general inadmissibility of evidence derived from a pre-Miranda interrogation. So assuming that this situation falls within that exception, any statements and resulting evidence would be admissible at trial. Here are some parts of the Supreme Court case, New York v. Quarles - 467 U.S. 649 (1984).

    [W]e do not believe that the doctrinal underpinnings of Miranda require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety. 467 U. S. 656

    So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it.

    In such a situation, if the police are required to recite the familiar Miranda warnings before asking the whereabouts of the gun, suspects in Quarles' position might well be deterred from responding. Procedural safeguards which deter a suspect from responding were deemed acceptable in Miranda in order to protect the Fifth Amendment privilege; when the primary social cost of those added protections is the possibility of fewer convictions, the Miranda majority was willing to bear that cost. Here, had Miranda warnings deterred Quarles from responding to Officer Kraft's question about the whereabouts of the gun, the cost would have been something more than merely the failure to obtain evidence useful in convicting Quarles. Officer Kraft needed an answer to his question not simply to make his case against Quarles, but to insure that further danger to the public did not result from the concealment of the gun in a public area.

    We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination. 467 U. S. 657

  • Apr 18th, 2013 @ 1:51pm


    I think that analysis is off in a few aspects.

    Yes, "derivative" and "transformative" are distinct terms, but neither are they mutually exclusive. In fact, "transformative" works are a subset of derivative works.

    A “derivative work” is a work based upon one or more preexisting works, such as a ... art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”. 17 USC 101, emph. added

    Definitionally, the contest image was a derivative work of the original image.

    Second, there isn't a transition from derivative to transformative. Even if the contest image were to be considered fair use, it is still a derivative work of the original image, but a non-infringing derivative work. Moreover, the transformative aspect of a derivative work is only one part of the fair use analysis. So you can transform a work to an extremely high degree and still fail on a fair use claim- that is, you would have a highly transformative but infringing work.

    Lastly, while I agree that copyright law has a lot of gray areas, the claims that (a) the original photo couldn't be copyrighted (the title of this thread is "YOU CANNOT COPYRIGHT NATURE!!") and that (b) "creating new ones that do not exist in the original image, or in nature, makes the new image original work" are just plainly incorrect according to current law.

    Certainly while a new, non-derivative work would be non-infringing, you can also have non-infringing derivative works. And trying to shoehorn the contest image into the former category just won't work definitionally- they started with the original image and photomanipulated it- that's a derivative work under copyright law. Whether or not it is fair use is a completely separate issue.

  • Apr 17th, 2013 @ 8:10pm


    Well, you never mentioned fair use- only the eligibility for copyright of the image. And arguing that the contest image was fair use is very different than arguing that the original image wasn't protected by copyright. All your statements about backdrops, shot angles, and general lack of originality only address the copyright, not whether or not the transformation was fair use.

    Flipping the image, obliterating the original spots, creating new ones that do not exist in the original image, or in nature, makes the new image original work.
    No, it makes it a derivative work with new original elements. If the contestant wanted to make a completely new work, he (she?) should have started with their own photo. Instead, there was transformation of an existing work. Reflecting around an axis, changing the shading, squaring the dots, etc. all amount to editing a pre-existing work and creating a derivative work.

    "[Did] not exist in the original image" is not the correct standard. Suppose I use photoshop to make the negative of the original image- so every pixel is different and does not exist in the original image. Is that a new work? Yes. Is that a derivative work? Yes.

    While there can be a lot of new original creative expression in the derivative work (for which the second artist can receive copyright protection), that doesn't obviate the infringement on the original work or the ability of that copyright holder to act on it.

    Whether or not the photographer is just "being a bitch", that's his choice. There are only a few compulsory licenses in the copyright code, and this wasn't one of them.

    Regarding the CC license, if you violate the terms of the license, then you're not protected by it. For example, that's the point behind the GPL- if you want to use my copyrighted computer code, then you can, subject to the GPL conditions. If you violate those conditions, then you are outside the scope of the license and are committing copyright infringement. In this case, it was a photograph and not computer code, but the same concept applies.

    Sorry, your argument just doesn't hold water, unless you're doing your damnedest to make sure everyone pays.

    Not liking the result doesn't make the argument invalid. If you think this is a crappy result, then get congress to change the copyright law.

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