IAmNotYourLawyer 's Techdirt Comments

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  • On the post: World Of Tanks Developer Gets Negative Review Video Taken Down Under Threat Of Copyright Claim, Backlash Ensues

    IAmNotYourLawyer ( profile ), 26 May, 2017 @ 08:00am

    Re: Re: Re: Copyright?

    While I agree it's almost certainly fair use, fair use is always determined on a case-by-case basis, and that provides some (weak) basis for a copyright claim.

  • On the post: World Of Tanks Developer Gets Negative Review Video Taken Down Under Threat Of Copyright Claim, Backlash Ensues

    IAmNotYourLawyer ( profile ), 26 May, 2017 @ 07:16am

    Re: Copyright?

    From the article, it sounds like the video included shots/clips from the game or otherwise produced by Wargaming. Those would be covered by copyright.

  • On the post: Media Organizations (Correctly) Worry That Rolling Stone Verdict Will Make Saying Sorry Actionable

    IAmNotYourLawyer ( profile ), 09 Dec, 2016 @ 07:48pm

    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.

  • On the post: Led Zeppelin Wins Copyright Case Over Stairway To Heaven

    IAmNotYourLawyer ( profile ), 23 Jun, 2016 @ 02:30pm

    Re:

    The alleged infringement was ongoing and continuous.

  • On the post: How Java's Inherent Verboseness May Mess Up Fair Use For APIs

    IAmNotYourLawyer ( profile ), 17 May, 2016 @ 09:26am

    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.

  • On the post: Hulk Hogan's $115 Million Win Against Gawker Raises Serious First Amendment Questions

    IAmNotYourLawyer ( profile ), 21 Mar, 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.

  • On the post: Hulk Hogan's $115 Million Win Against Gawker Raises Serious First Amendment Questions

    IAmNotYourLawyer ( profile ), 21 Mar, 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.

  • On the post: Happy Birthday And The Problem With The Copyright Office's 'Orphan Works' Plan

    IAmNotYourLawyer ( profile ), 07 Oct, 2015 @ 08:40am

    Re:

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

    17 U.S. Code § 412

  • On the post: Happy Birthday And The Problem With The Copyright Office's 'Orphan Works' Plan

    IAmNotYourLawyer ( profile ), 07 Oct, 2015 @ 08:25am

    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.

  • On the post: Happy Birthday And The Problem With The Copyright Office's 'Orphan Works' Plan

    IAmNotYourLawyer ( profile ), 07 Oct, 2015 @ 08:17am

    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.

  • On the post: Judge Says Warner Chappell Doesn't Hold The Copyright On Happy Birthday (But Not That It's Public Domain)

    IAmNotYourLawyer ( profile ), 24 Sep, 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.

  • On the post: Judge Says Warner Chappell Doesn't Hold The Copyright On Happy Birthday (But Not That It's Public Domain)

    IAmNotYourLawyer ( profile ), 24 Sep, 2015 @ 05:33am

    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.

  • On the post: Connecticut Court Ignores First Amendment, Blocks Paper From Publishing Article Based On Public Court Document

    IAmNotYourLawyer ( profile ), 02 Dec, 2014 @ 08:14am

    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.

  • On the post: Don Henley Sues Clothing Retailer Over Its Use Of Common English Words

    IAmNotYourLawyer ( profile ), 15 Oct, 2014 @ 06:46am

    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

  • On the post: Appeals Court Smacks Down Team Prenda… Again

    IAmNotYourLawyer ( profile ), 06 Aug, 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.

  • On the post: Even When Trademark Is Done Right, It's Hilarious

    IAmNotYourLawyer ( profile ), 06 Aug, 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.

  • On the post: Grooveshark Loses Latest Round In Court, In A Ruling That Could Gut The DMCA's Safe Harbors

    IAmNotYourLawyer ( profile ), 24 Apr, 2013 @ 12:27pm

    Re:

    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.

  • On the post: Grooveshark Loses Latest Round In Court, In A Ruling That Could Gut The DMCA's Safe Harbors

    IAmNotYourLawyer ( profile ), 24 Apr, 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.

  • On the post: Why The DOJ's Decision To Not Read Dzhokhar Tsarnaev His Miranda Rights Is A Terrible Idea

    IAmNotYourLawyer ( profile ), 22 Apr, 2013 @ 06:22am

    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.

  • On the post: Why The DOJ's Decision To Not Read Dzhokhar Tsarnaev His Miranda Rights Is A Terrible Idea

    IAmNotYourLawyer ( profile ), 22 Apr, 2013 @ 05:06am

    Re:

    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

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