The knee jerk belief that Section 230 must be protected to preserve free speech on the internet is mistaken. Free speech must be protected but that does not mean different standards should apply to internet publishes than legacy publishers. Facebook and Twitter are publishers---not just platforms for user generated comments. They make billions and should be required to expend the same resources as legacy publishes spend to eliminate content that violates our laws, including intellectual property laws, defamation laws, election laws and others. It is a mistake to apply different standards to legacy publishers than to internet publishers. First Amendment protections should be sufficient, but Section 230 immunity goes too far, immunizing billion dollars platforms from any obligation to protect the public from attempts to misuse their platforms to violate the law, including, for example, limits on campaign contributions and limits on foreign intervention in U.S. political campaigns. The internet will survive just fine without Section 230, the elimination of which will require executives for Facebook and other such platforms to expend resources similar to those of legacy publishers to assure compliance with law.
I regularly defend copyright troll cases against Malibu Media. I detest these troll cases. But embedding is a much more complex issue. Copyright owners do deserve reasonable compensation. Copyright minimalists make not more sense than copyright maximalists. One person made a defamation accusation against me but I will just correct the record here. I am counsel of record adverse to Malibu Media in many cases
Copyright law needs to be updated to deal with the internet. For better or worse, as a copyright lawyer who specializes in this are, Judge Forrest's opinion is probably correct. The "server' rule in Perfect 10 really doesn't make sense under traditional concepts of the right to distribute and display. Even if the"server" rule could withstand Supreme Court scrutiny, it doesn't apply to embedded content like this. Copyright owners do have the right to limit distribution and display of their works, and that right was violated here, subject to other defenses. I have argued for years that while courts for reasons of practicality have asserted (with weak legal support) that hyperlinking (the essence of the internet) is not infringement, these decisions are technically wrong under traditional copyright law provisions. The law is now a hopeless muddle, and we need Congress to clarify the limits of copyright infringement law when it comes to the internet. In Europe (Germany and several other countries), courts have concluded that hyperlinking can be infringement. Here to, there are many decisions that news and information aggregation services can be sued for hyperlinking when the links are added to a short summary of the material. The problem is that in the interest of freedom of speech, the internet has become the wild west, short circuiting rights of content creators and diluting their value. We need a brand new legal paradigm that strikes the right balance between freedom of expression and rewarding creators of valuable works of art, music, and expression.
Copyright law needs to be updated to deal with the internet. For better or worse, as a copyright lawyer who specializes in this area, Judge Forrest's opinion is probably correct. The "server' rule in Perfect 10 really doesn't make sense under traditional concepts of the right to distribute and display. Even if the"server" rule could withstand Supreme Court scrutiny, it doesn't apply to embedded content like this. Copyright owners do have the right to limit distribution and display of their works, and that right was violated here, subject to other defenses. I have argued for years that while courts for reasons of practicality have asserted (with weak legal support) that hyperlinking (the essence of the internet) is not infringement, these decisions are technically wrong under traditional copyright law provisions. The law is now a hopeless muddle, and we need Congress to clarify the limits of copyright infringement law when it comes to the internet. In Europe (Germany and several other countries), courts have concluded that hyperlinking can be infringement. Here too, there are many decisions of district courts holding that news and information aggregation web-sites can be sued for hyperlinking when the links are added to a short summary of the material. The problem is that in the interest of freedom of speech, the internet has become the wild west, short circuiting rights of content creators and diluting their value. We need a brand new legal paradigm that strikes the right balance between freedom of expression and rewarding creators of valuable works of art, music, and expression.
I usually agree with every posting on this web-site, which is very valuable. However, as a practicing attorney in the music business, I must say that you are way off base here. I certainly agree that there is nothing inherently wrong with new technology. Services such as Spotify, You Tube (with whom music publishers have been forced into a licensing arrangement for covers of music which is very unfair to artists and composers), and Pandora have provided the public with broad access to music never before imaginable, and little or no cost to consumers (Spotify, for example, still has a free and paid tier---even on the paid tier, virtually every recorded song imaginable is available for $10 monthly). People love these services because of the choices they give them. But the license and royalties these services provide are simply inadequate to assure that composers and artists can be fairly compensated for their work. I don't care if record labels or music publishers make money but I do care about working musicians. These services have cut drastically into record sales (collectively digital downloads, CD's and Vinyl). Today it is possible to have a legitimate "charted" dance hit with 2,000 downloads or less with a retail value of less than $2000. Many of my artist/composer clients have made hit records that are staples of the dance music scene nationwide, and they make almost nothing---it is really unfair and ridiculous. Unless you are famous (Lady Gaga or Beyonce), you won't make enough money from royalties, license fees, and record sales to continue your music career. The checks individual artists receive as a result of downloads of their music on Spotify, You Tube, etc are a pittance compared to what they would previously earn from CD sales and publishing for songs of equal public acclaim (i.e., songs that make the Billboard top 100 in various charts).
Of course, if we required Spotify and other services to pay adequate royalties to compensate artist and composers in a manner comparable to amounts paid in the old system, these services would fail financially. Sure they pay billions but it is not even a fraction of what they should be paying if artists are to be compensated fairly.
I think we can agree that the purpose of copyright law is to provide incentives for talented artists and writers to devote their careers to their work. But the system is broken. New technology is great but we have to recognize that it has cheapened (I won't say looted) the value of the work of artists because it allows consumers to get a free ride---most people can hear their favorite songs and artists without paying a dime. Even the $10 monthly subscription fees paid for subscription, commercial free services, are ridiculous low. There is simply not enough money in the way the new technologies are deployed to fairly compensate artists and composers. A monthly subscription price for Spotify for $100 or more would start to raise the funds necessary to pay artists reasonably, and would be a more realistic representation of the value consumers get from the service (assuming they would otherwise have bought 100 music downloads per month). But Congress has made a mess out of the copyright laws, which has allowed technology companies such as You Tube and Spotify to profit handsomely while diluting the value of music as a whole. Simply put, people who listen to music should pay a fair price for doing so, whether for downloads, subscription fees or through advertising. Right now, however, consumers and companies like Spotify and You Tube are getting a free ride at the expense of composers and musicians (once again, I could care less about record companies and publishers). The only solution is a revision to copyright laws that requires that these services generate sufficient funds through subscriptions and otherwise to fairly compensate artists. That means that consumers will have to start paying for their music again.
This is not a mere procedural victory. The defendant is raising a critically important substantive issue. Copyright protection exists even without registration. But under the 1976 Copyright law, registration is still encouraged. Registration is a prerequisite for filing suit for infringement. Further, copyright law provides that unless registration occurs (or is at least applied for) within three months of publication, the copyright owner loses the right to statutory damages and attorneys fees. Without registration on a timely basis, most cases become worthless because actual damages are usually low or non-existence (most infringements cause no economic harm). Presenting this defense is no less important than a fair use defense because Congress wisely required copyright owners to register on a timely basis or else forego their rights to meaningful damages. This is a significant deterrent to the prosecution of trivial cases of infringement, and is one of the main ways in which Congress has protected defendants against trivial claims. In many ways this is no less important than a fair use defense.
I practice copyright law and am considered an expert at 30 years of practice. I usually agree with your posts but this time I believe you are clearly wrong. These photos qualify as original works of authorship. That is clear. The only issue is whether there is an author and who the author is. I see no reason why a monkey cannot be an author. Monkeys have cognitive skills similar to grade school students. They communicate with language--their own and human. So they can be authors of photos. The only difficult issue is who owns the photos and who has standing to sue. The law treats animals as property much like minor children. Thus, the owners of the monkey own the copyright and hold it in trust for the benefit of the monkey. This is not crazy or silly. This is what the law provides. And with respect, copyright is a right created by Congress under constitutional authority. Further, I see no public interest in causing the photos to be in the public domain. Why not use the license fees to provide a healthy life for the monkey? Perhaps over time he will learn to take more photos which could be invaluable to scientists studying cognitive functions.
The flaw in this analysis is the assumption that Portland is not using the sign in commerce. That is probably wrong. Portland's lawyers made a wise strategic decision that it is not worthwhile economically to fight this case against this individual user. But this does not mean that Portland's lawyers think the trademark is weak--as a trademark lawyer on both sides of these issues I can tell you from painful experience that these decisions are driven primarily by the high economic costs of litigation--not the risks that a trademark will be invalidated.
You can't use a photograph just because you own the copyright. Publicity rights protect the commercial exploitation of the image of a celebrity---i.e., you have to pay a celebrity to use his image to promote your product or service, or to use the image to bring players to your games. The right publicity differs from state to state but it is fairly well-understood among lawyers---it is about using celebrity images to endorse products or improve sales. You can't use celebrity images in games without permission because the purpose of the use is in part to sell the game. The First Amendment protects use of images for purposes of journalism or commentary etc., but not to sell products such as games. And use of an image in a game is not for purposes of journalism, commentary, etc--it is to create a new game experience for players which is a commercial use.
This is a wise and unsurprising decision. Legally, however, it has almost no impact on cases involving use of player images in games. Further, NFL players are compensated well in exchange for which they consent to the use of their images by their teams and leagues. College players are not paid (at least legally), which makes a big difference.
Research indicates that the situation is more nuanced. A small family company, Jacobus Pharmaceuticals, had been giving the drug away for this purpose for more than 20 years to about 200 patients per year, but had not conducted clinical trials, sought FDA approval, or done any of the other work required to get a drug on the market. It was apparently content to make and give away the drug to a small number of patients without compensation. However, the demand for the drug was much higher than 200 patients to whom Jacobus supplied it. Further, Jacobus' facilities failed repeated FDA inspections and it was unclear if it would ever be adequate to produce the drug in a manner approved by the FDA in sufficient quantities to meet demand. Catalyst sought to meet his consumer demand and to take advantage of the failures of Jacobus. Catalyst invested in the clinical trials and in developing manufacturing facilities that conform with FDA requirements. After Catalyst started its clinical trials, the small family business suddenly launched a small phase II clinical trial of its own---but many see that as an act of retaliation against Catalyst. Catalyst surely is seizing on a business opportunity, but opportunity arose because the smaller company, Jacobus, did not invest the funds necessary to bring this drug to market, get it approved by the FDA and meet consumer demand. Catalyst can be seen as doing a public service insofar as it has financed necessary clinical trials and sought FDA approval. Thus, it is not accurate to say that Catalyst did nothing to develop the drug or is engaging in free-riding. Here is a link to an article the explains this situation in a credible manner. http://www.lavoiegroup.com/news-and-events/bid/349029/Catalyst-Pharma-Fights-Greed-Charges-Over-Orphan-Drug
Didn't the company pay the costs of the clinical trials for this new indication? Isn't this a new use for an old drug? To get FDA approval of a new use for an old drug, companies need to spend millions on clinical trials. If so, then it is misleading to say the least to suggest that this company incurred no development costs. Further, the market for this drug seems relatively small--which may explain in part the high cost. I don't think any of us disagree that this company should be able to recoup its costs in developing this new use for the drug. I have no idea as to whether $80,000 per patient is the price necessary to allow the company to recoup its costs, but it might be.
Most patents are not invalid. Further, what many forget is that so-called "trolls" usually represent the little guy--individual inventors who refused to play the corporate game and develop valuable technologies that benefit all of us. The only way for the small guy to get paid is to license his invention (because the small guy doesn't have the millions that it takes to bring a product to market). The so-called trolls sue when big corporate America refuses to pay a reasonable license fee to the small guy and instead, try to steal the invention. Further, the lawyers who represent the small inventor/patent-owner often take the risk of losing the case and front the money for costs and expenses which can be hundreds of thousands of dollars. There needs to be some balance in the thinking here---anti-troll hysteria really amounts to anti-patent philosophy. But if you believe there is a place for patents in our system to reward innovation by the little guy, then the trolls and their lawyers actually perform an important public service. There is no other way for the individual inventor to compete without getting sucked up into the worst of corporate America.
Actually, the Prenda motion to disqualify has substantial merit. In New York, the U.S. Court of Appeals from the Second Circuit recently disqualified Judge Scheindlin from the famous "stop and frisk" case in substantial part because she made comments to the news media and spoke publicly about that ongoing case. Actually, Judge Scheindlin did not discuss the case, but merely responded to false accusations made against her by New York officials, but this was enough to warrant her removal. Judge Noel's participation in a copyright troll seminar is a far more egregious ethical violation than anything Judge Scheindlin is alleged to have done, and yet she was removed from the case.
Techdirt has not posted any stories submitted by Maurice Michael Ross.
Section 230
The knee jerk belief that Section 230 must be protected to preserve free speech on the internet is mistaken. Free speech must be protected but that does not mean different standards should apply to internet publishes than legacy publishers. Facebook and Twitter are publishers---not just platforms for user generated comments. They make billions and should be required to expend the same resources as legacy publishes spend to eliminate content that violates our laws, including intellectual property laws, defamation laws, election laws and others. It is a mistake to apply different standards to legacy publishers than to internet publishers. First Amendment protections should be sufficient, but Section 230 immunity goes too far, immunizing billion dollars platforms from any obligation to protect the public from attempts to misuse their platforms to violate the law, including, for example, limits on campaign contributions and limits on foreign intervention in U.S. political campaigns. The internet will survive just fine without Section 230, the elimination of which will require executives for Facebook and other such platforms to expend resources similar to those of legacy publishers to assure compliance with law.
I regularly defend copyright troll cases against Malibu Media. I detest these troll cases. But embedding is a much more complex issue. Copyright owners do deserve reasonable compensation. Copyright minimalists make not more sense than copyright maximalists. One person made a defamation accusation against me but I will just correct the record here. I am counsel of record adverse to Malibu Media in many cases
Copyright Decision
Copyright law needs to be updated to deal with the internet. For better or worse, as a copyright lawyer who specializes in this are, Judge Forrest's opinion is probably correct. The "server' rule in Perfect 10 really doesn't make sense under traditional concepts of the right to distribute and display. Even if the"server" rule could withstand Supreme Court scrutiny, it doesn't apply to embedded content like this. Copyright owners do have the right to limit distribution and display of their works, and that right was violated here, subject to other defenses. I have argued for years that while courts for reasons of practicality have asserted (with weak legal support) that hyperlinking (the essence of the internet) is not infringement, these decisions are technically wrong under traditional copyright law provisions. The law is now a hopeless muddle, and we need Congress to clarify the limits of copyright infringement law when it comes to the internet. In Europe (Germany and several other countries), courts have concluded that hyperlinking can be infringement. Here to, there are many decisions that news and information aggregation services can be sued for hyperlinking when the links are added to a short summary of the material. The problem is that in the interest of freedom of speech, the internet has become the wild west, short circuiting rights of content creators and diluting their value. We need a brand new legal paradigm that strikes the right balance between freedom of expression and rewarding creators of valuable works of art, music, and expression.
Copyright Decision
Copyright law needs to be updated to deal with the internet. For better or worse, as a copyright lawyer who specializes in this area, Judge Forrest's opinion is probably correct. The "server' rule in Perfect 10 really doesn't make sense under traditional concepts of the right to distribute and display. Even if the"server" rule could withstand Supreme Court scrutiny, it doesn't apply to embedded content like this. Copyright owners do have the right to limit distribution and display of their works, and that right was violated here, subject to other defenses. I have argued for years that while courts for reasons of practicality have asserted (with weak legal support) that hyperlinking (the essence of the internet) is not infringement, these decisions are technically wrong under traditional copyright law provisions. The law is now a hopeless muddle, and we need Congress to clarify the limits of copyright infringement law when it comes to the internet. In Europe (Germany and several other countries), courts have concluded that hyperlinking can be infringement. Here too, there are many decisions of district courts holding that news and information aggregation web-sites can be sued for hyperlinking when the links are added to a short summary of the material. The problem is that in the interest of freedom of speech, the internet has become the wild west, short circuiting rights of content creators and diluting their value. We need a brand new legal paradigm that strikes the right balance between freedom of expression and rewarding creators of valuable works of art, music, and expression.
Music Industry
I usually agree with every posting on this web-site, which is very valuable. However, as a practicing attorney in the music business, I must say that you are way off base here. I certainly agree that there is nothing inherently wrong with new technology. Services such as Spotify, You Tube (with whom music publishers have been forced into a licensing arrangement for covers of music which is very unfair to artists and composers), and Pandora have provided the public with broad access to music never before imaginable, and little or no cost to consumers (Spotify, for example, still has a free and paid tier---even on the paid tier, virtually every recorded song imaginable is available for $10 monthly). People love these services because of the choices they give them. But the license and royalties these services provide are simply inadequate to assure that composers and artists can be fairly compensated for their work. I don't care if record labels or music publishers make money but I do care about working musicians. These services have cut drastically into record sales (collectively digital downloads, CD's and Vinyl). Today it is possible to have a legitimate "charted" dance hit with 2,000 downloads or less with a retail value of less than $2000. Many of my artist/composer clients have made hit records that are staples of the dance music scene nationwide, and they make almost nothing---it is really unfair and ridiculous. Unless you are famous (Lady Gaga or Beyonce), you won't make enough money from royalties, license fees, and record sales to continue your music career. The checks individual artists receive as a result of downloads of their music on Spotify, You Tube, etc are a pittance compared to what they would previously earn from CD sales and publishing for songs of equal public acclaim (i.e., songs that make the Billboard top 100 in various charts).
Of course, if we required Spotify and other services to pay adequate royalties to compensate artist and composers in a manner comparable to amounts paid in the old system, these services would fail financially. Sure they pay billions but it is not even a fraction of what they should be paying if artists are to be compensated fairly.
I think we can agree that the purpose of copyright law is to provide incentives for talented artists and writers to devote their careers to their work. But the system is broken. New technology is great but we have to recognize that it has cheapened (I won't say looted) the value of the work of artists because it allows consumers to get a free ride---most people can hear their favorite songs and artists without paying a dime. Even the $10 monthly subscription fees paid for subscription, commercial free services, are ridiculous low. There is simply not enough money in the way the new technologies are deployed to fairly compensate artists and composers. A monthly subscription price for Spotify for $100 or more would start to raise the funds necessary to pay artists reasonably, and would be a more realistic representation of the value consumers get from the service (assuming they would otherwise have bought 100 music downloads per month). But Congress has made a mess out of the copyright laws, which has allowed technology companies such as You Tube and Spotify to profit handsomely while diluting the value of music as a whole. Simply put, people who listen to music should pay a fair price for doing so, whether for downloads, subscription fees or through advertising. Right now, however, consumers and companies like Spotify and You Tube are getting a free ride at the expense of composers and musicians (once again, I could care less about record companies and publishers). The only solution is a revision to copyright laws that requires that these services generate sufficient funds through subscriptions and otherwise to fairly compensate artists. That means that consumers will have to start paying for their music again.
Statutory Damages and Attorneys' Fees
This is not a mere procedural victory. The defendant is raising a critically important substantive issue. Copyright protection exists even without registration. But under the 1976 Copyright law, registration is still encouraged. Registration is a prerequisite for filing suit for infringement. Further, copyright law provides that unless registration occurs (or is at least applied for) within three months of publication, the copyright owner loses the right to statutory damages and attorneys fees. Without registration on a timely basis, most cases become worthless because actual damages are usually low or non-existence (most infringements cause no economic harm). Presenting this defense is no less important than a fair use defense because Congress wisely required copyright owners to register on a timely basis or else forego their rights to meaningful damages. This is a significant deterrent to the prosecution of trivial cases of infringement, and is one of the main ways in which Congress has protected defendants against trivial claims. In many ways this is no less important than a fair use defense.
PETA Suit
I practice copyright law and am considered an expert at 30 years of practice. I usually agree with your posts but this time I believe you are clearly wrong. These photos qualify as original works of authorship. That is clear. The only issue is whether there is an author and who the author is. I see no reason why a monkey cannot be an author. Monkeys have cognitive skills similar to grade school students. They communicate with language--their own and human. So they can be authors of photos. The only difficult issue is who owns the photos and who has standing to sue. The law treats animals as property much like minor children. Thus, the owners of the monkey own the copyright and hold it in trust for the benefit of the monkey. This is not crazy or silly. This is what the law provides. And with respect, copyright is a right created by Congress under constitutional authority. Further, I see no public interest in causing the photos to be in the public domain. Why not use the license fees to provide a healthy life for the monkey? Perhaps over time he will learn to take more photos which could be invaluable to scientists studying cognitive functions.
Portland Sign
The flaw in this analysis is the assumption that Portland is not using the sign in commerce. That is probably wrong. Portland's lawyers made a wise strategic decision that it is not worthwhile economically to fight this case against this individual user. But this does not mean that Portland's lawyers think the trademark is weak--as a trademark lawyer on both sides of these issues I can tell you from painful experience that these decisions are driven primarily by the high economic costs of litigation--not the risks that a trademark will be invalidated.
You can't use a photograph just because you own the copyright. Publicity rights protect the commercial exploitation of the image of a celebrity---i.e., you have to pay a celebrity to use his image to promote your product or service, or to use the image to bring players to your games. The right publicity differs from state to state but it is fairly well-understood among lawyers---it is about using celebrity images to endorse products or improve sales. You can't use celebrity images in games without permission because the purpose of the use is in part to sell the game. The First Amendment protects use of images for purposes of journalism or commentary etc., but not to sell products such as games. And use of an image in a game is not for purposes of journalism, commentary, etc--it is to create a new game experience for players which is a commercial use.
NFL Decision
This is a wise and unsurprising decision. Legally, however, it has almost no impact on cases involving use of player images in games. Further, NFL players are compensated well in exchange for which they consent to the use of their images by their teams and leagues. College players are not paid (at least legally), which makes a big difference.
Research indicates that the situation is more nuanced. A small family company, Jacobus Pharmaceuticals, had been giving the drug away for this purpose for more than 20 years to about 200 patients per year, but had not conducted clinical trials, sought FDA approval, or done any of the other work required to get a drug on the market. It was apparently content to make and give away the drug to a small number of patients without compensation. However, the demand for the drug was much higher than 200 patients to whom Jacobus supplied it. Further, Jacobus' facilities failed repeated FDA inspections and it was unclear if it would ever be adequate to produce the drug in a manner approved by the FDA in sufficient quantities to meet demand. Catalyst sought to meet his consumer demand and to take advantage of the failures of Jacobus. Catalyst invested in the clinical trials and in developing manufacturing facilities that conform with FDA requirements. After Catalyst started its clinical trials, the small family business suddenly launched a small phase II clinical trial of its own---but many see that as an act of retaliation against Catalyst. Catalyst surely is seizing on a business opportunity, but opportunity arose because the smaller company, Jacobus, did not invest the funds necessary to bring this drug to market, get it approved by the FDA and meet consumer demand. Catalyst can be seen as doing a public service insofar as it has financed necessary clinical trials and sought FDA approval. Thus, it is not accurate to say that Catalyst did nothing to develop the drug or is engaging in free-riding. Here is a link to an article the explains this situation in a credible manner. http://www.lavoiegroup.com/news-and-events/bid/349029/Catalyst-Pharma-Fights-Greed-Charges-Over-Orphan-Drug
Clinical Trial
Didn't the company pay the costs of the clinical trials for this new indication? Isn't this a new use for an old drug? To get FDA approval of a new use for an old drug, companies need to spend millions on clinical trials. If so, then it is misleading to say the least to suggest that this company incurred no development costs. Further, the market for this drug seems relatively small--which may explain in part the high cost. I don't think any of us disagree that this company should be able to recoup its costs in developing this new use for the drug. I have no idea as to whether $80,000 per patient is the price necessary to allow the company to recoup its costs, but it might be.
Patent Trolls
Most patents are not invalid. Further, what many forget is that so-called "trolls" usually represent the little guy--individual inventors who refused to play the corporate game and develop valuable technologies that benefit all of us. The only way for the small guy to get paid is to license his invention (because the small guy doesn't have the millions that it takes to bring a product to market). The so-called trolls sue when big corporate America refuses to pay a reasonable license fee to the small guy and instead, try to steal the invention. Further, the lawyers who represent the small inventor/patent-owner often take the risk of losing the case and front the money for costs and expenses which can be hundreds of thousands of dollars. There needs to be some balance in the thinking here---anti-troll hysteria really amounts to anti-patent philosophy. But if you believe there is a place for patents in our system to reward innovation by the little guy, then the trolls and their lawyers actually perform an important public service. There is no other way for the individual inventor to compete without getting sucked up into the worst of corporate America.
Motion For Disqualification
Actually, the Prenda motion to disqualify has substantial merit. In New York, the U.S. Court of Appeals from the Second Circuit recently disqualified Judge Scheindlin from the famous "stop and frisk" case in substantial part because she made comments to the news media and spoke publicly about that ongoing case. Actually, Judge Scheindlin did not discuss the case, but merely responded to false accusations made against her by New York officials, but this was enough to warrant her removal. Judge Noel's participation in a copyright troll seminar is a far more egregious ethical violation than anything Judge Scheindlin is alleged to have done, and yet she was removed from the case.