kmrayburn 's Techdirt Comments

Latest Comments (13) comment rss

  • On the post: Looking At The Details Of The Released Leaked ACTA Draft

    kmrayburn ( profile ), 17 Jul, 2010 @ 07:52am

    Con. Law 101

    When the US signs a treaty, that treaty becomes US law. If it contradicts already established US law, the treaty trumps it. The legal rule is, the most recent action (either the signing of the treaty, or the passing of a US law) is what is the current law because acts of Congress and treaties have the same level of authority. Treaties always trump state laws, and never trump the US Constitution.

    If the ACTA remains just that, an agreement, it would have no impact on contradictory US laws. But if it becomes a treaty, it would become US law (unless parts are held unconstitutional).

  • On the post: Psystar Loses Big To Apple

    kmrayburn ( profile ), 16 Nov, 2009 @ 03:13am

    Court Order

    I have uploaded the Court's order granting Summary Judgment if anyone wants to view or download it. It is a well reasoned order and summarized the arguments fairly well. The following claims are still to be litigated in the case: (1) breach of contract; (2) induced breach of contract, (3) trademark infringement; (4) trademark dilution; (5)trade dress infringement; and (6) state unfair competition under California Business and Professions Code § 17200; and (7) common law unfair competition.

  • On the post: Does Bluebeat Actually Have A Legal Basis For Its Claim Of Copyright Over Beatles' Songs?

    kmrayburn ( profile ), 10 Nov, 2009 @ 01:42pm

    Bridgeport Seems Relevant

    If Bluebeat used even just three notes directly from the original Beatles's music recording in their "transformation", then, by following Bridgeport's holding, they have committed copyright infringement. In Bridgeport, the 6th Cir. Court essentially removed any de minimus exception to sampling. The Court even left open the question of whether taking one note directly from another's music recording was infringement.

    From Bridgeport, 410 F.3d 792:

    "The balance that was struck was to give sound recording copyright holders the exclusive right 'to duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording.' 17 U.S.C. § 114(b). This means that the world at large is free to imitate or simulate the creative work fixed in the recording so long as an actual copy of the sound recording itself is not made.FN8 That leads us directly to the issue in this case. If you cannot pirate the whole sound recording, can you 'lift' or 'sample' something less than the whole. Our answer to that question is in the negative."

    And Most damning from Bridgeport...

    "By clarifying the rights of a sound recording copyright owner in regard to derivative works, Section 114(b) makes it clear that the digital sampling of a copyrighted sound recording must typically be licensed to avoid an infringement.... The import of this language is that it does not matter how much a digital sampler alters the actual sounds or whether the ordinary lay observer can or cannot recognize the song or the artist's performance of it. Since the exclusive right encompasses rearranging, remixing, or otherwise altering the actual sounds, the statute by its own terms precludes the use of a substantial similarity test."

    Copyright in the Internet Age Blog

  • On the post: Levi Johnston's Lawyers Threaten Twitter, Despite No Legal Basis

    kmrayburn ( profile ), 10 Nov, 2009 @ 04:18am

    ISP

    Techdirt is correct that ISPs are protected from libel suits as seen in the case Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997).

    However, Twitter is not an ISP! "An ISP (Internet Service Provider) is a company that collects a monthly or yearly fee in exchange for providing the subscriber with Internet access." (wisegeek definition). Twitter does not provide access to the internet, it merely is a web based business that provides a service. This is a huge difference and prevents Twitter from having the legal protections afforded to ISPs like AOL and Comcast.

    Copyright in the Internet Age Blog

  • On the post: Levi Johnston's Lawyers Threaten Twitter, Despite No Legal Basis

    kmrayburn ( profile ), 10 Nov, 2009 @ 04:08am

    Re: Re: Re: Keep the Change

    What will be interesting is if the Plaintiff argues that the 140 Character limit put in place by Twitter is an act of editorial control making Twitter a publisher. I think this argument is weaker than spam and vulgarity filters, but it might survive summary judgment. Concerning Notice, if the plaintiff is alleging Twitter with contributory liability, than Notice does become an important issue. If Twitter was given notice of the specific defamation and continued to allow it to be published, it may be found contributorily liable.

    Copyright in the Internet Age Blog

  • On the post: Levi Johnston's Lawyers Threaten Twitter, Despite No Legal Basis

    kmrayburn ( profile ), 09 Nov, 2009 @ 07:22pm

    Not so Fast

    Actually it isn't an open and shut case and there is legal liability to the publisher, and if Twitter is deemed the publisher of the defamatory statements, it can be held liable. To determine if someone is a publisher, you look at editorial control. This will vary by jurisdiction, but some have even said that having word filters (to prevent cursing) may be editorial control making the website, forum, ect... a publisher and liable.

    "Stratton Oakmont v. Prodigy, 1995 -- Stratton Oakmont is an investment banking group based in New York. One one of Prodigy's bulletin boards, MoneyTalk, someone anonymously posted a mesage saying that Stratton engaged in criminal fraud. Stratton Oakmont sued Prodigy claiming that Prodigy was a "publisher" of the MoneyTalk bulletin board and thus was liable for its content. Prodigy said it was only a passive conduit for material posted on its bulletin boards, but the problem was that it used automatic editorial filters for obscene words, and therefore acted as a publisher. The New York federal court said that since Prodigy exercised some editorial control, it was liable as a publisher of the defamatory statements."

    http://www.runet.edu/~wkovarik/class/law/1.5libel.html

  • On the post: EMI Sues Music Site Offering Beatles MP3s

    kmrayburn ( profile ), 05 Nov, 2009 @ 04:51pm

    Court Grants TRO

    The Federal Court granted the TRO (Temporary Restraining Order). You can view or download the Court Order over at Copyright in the Internet Ages.

  • On the post: EMI Sues Music Site Offering Beatles MP3s

    kmrayburn ( profile ), 05 Nov, 2009 @ 10:54am

    Court Documents for Capitol Records v. BlueBeat

    I found the Complaint, Reply and Response to the Reply. You can view or download the documents HERE

  • On the post: More ACTA Details Leak: It's An Entertainment Industry Wishlist

    kmrayburn ( profile ), 04 Nov, 2009 @ 01:08pm

    America is in trouble

    America's #1 export nowadays is Intellectual Property. While the ACTA may not be the right approach, something has to be done in foreign markets if the US economy is ever going to be strong again. If they world can continue unfettered pirate our software, music, movies, and video games, the American economy will be in big trouble going forward.

    Copyright in the Internet Age

  • On the post: Law Professor (?!?) Claims Copyright Infringement Because Blog Uses Faculty Photo In Blog Post [Update]

    kmrayburn ( profile ), 04 Nov, 2009 @ 11:36am

    Law Prof. Complaint

    You can view or download the complaint with all its poor grammar, spelling, and legal assertions HERE.

  • On the post: Guy Who Helped Mod Cable Modems Arrested By The FBI

    kmrayburn ( profile ), 03 Nov, 2009 @ 09:52am

    Why is the FBI involved? because there are civil AND criminal penalties for violating parts of 1201 of the DMCA, which is alleged here.

    § 1204. Criminal offenses and penalties

    (a) In General. — Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain —

    (1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and

    (2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.

    (b) Limitation for Nonprofit Library, Archives, Educational Institution, or Public Broadcasting Entity. — Subsection (a) shall not apply to a nonprofit library, archives, educational institution, or public broadcasting entity (as defined under section 118(g)).

    (c) Statute of Limitations. — No criminal proceeding shall be brought under this section unless such proceeding is commenced within five years after the cause of action arose.


    www.nextgencopyright.blogspot.com

  • On the post: Firebowls, Copyright And Crowdfunding (Oh My)

    kmrayburn ( profile ), 30 Oct, 2009 @ 10:44pm

    "So, in the end, I think Wittrig should be free to make these firebowls and to sell them in the marketplace and compete with Unger."
    But if Unger did not think he could get copyright protection for the artwork on his firebowls, he arguably would have never created the artwork. The purpose of the artwork was to sell bowls, and add value to the bowls. Without copyright, anyone can just copy his exact bowl, and if they can do so cheaper, knock him out of the market. If Unger believed that could happen, he would be less likely to create the artwork to begin with. I think we would lose out on a lot of great art and media if we followed your path to get rid of copyright and just slug it out in the market.

    Copyright in the Internet Age

  • On the post: Latest Bogus DMCA Takedown Sent By NPR?

    kmrayburn ( profile ), 27 Oct, 2009 @ 03:53pm

    Non-Commercial Use /= Fair Use

    Just because a use is non-commercial does not make that use a "fair use". Whether a use is commercial or not is only one FACTOR of the fair use analysis (there are 4 factors).