MediaTech Law

By MIRSKY & COMPANY, PLLC

Fair Use or Just Plain Stealing? “Transformative” Art in a Digital World

Posted February 21, 2012 by Andrew Mirsky 0

A recent New York Times article discussed the case of an artist was sued for copyright infringement after he created paintings and collages based on photographs without crediting or obtaining permission from the photographer.

The artist, Richard Prince, based his works on photographs from a book about Rastafarians “to create the collages and a series of paintings based on [those photographs],” reported Randy Kennedy in the Times.

Then ensued a discussion of the degree to which material must be transformed to fall under copyright law’s “fair use” protection, which would allow use of copyrighted material if, as the article explains, “the new thing ‘adds value to the original’ so that society as a whole is culturally enriched by it.”  (The reference is to a 1990 Harvard Law Review article by Federal Judge Pierre Leval.  I previously discussed fair use’s 4-prong analysis in the context of photographs and artwork, here and in mashups here.)

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Does Demand Media Really “Suck”? Fair Use and Freedom to Bash Your Boss

Posted August 3, 2011 by Kate Tummarello 0

Kate Tummarello is a Research and Social Media Intern with Mirsky & Company and a reporter at Roll Call/Congressional Quarterly.  Follow Kate on Twitter @ktummarello.  Andrew Mirsky of Mirsky & Company contributed to this post.

Gone are the days of bashing your boss in the breakroom. Now, colleagues gather online to anonymously air their grievances.  A group of disgruntled Demand Media, Inc. employees did just that with their website DemandStudiosSucks.com.  Then Demand Media struck back.

Late last month, attorneys for Demand Media, a content production company whose properties include eHow, LIVESTRONG.com, Cracked.com, typeF.com, Trails.com and GolfLink, sent a letter to DemandStudiosSucks.com asking it to remove content that had been copyrighted by Demand Media.

The media company accused the people behind this censorious website of creating and maintaining “a forum in which users can, and do, post and misuse Demand Media’s trademark, copyrighted material, including confidential and proprietary copy editing tests.”  The letter also referenced “an internal presentation regarding the company’s business plans”, published without permission on DemandStudiosSucks.com.

Immediately, of course, the letter was posted on DemandStudiosSucks.com.

The next day, a user named “Partick O’Doare,” who has posted the majority of the content on the site, published an open letter addressing the claims made by Demand Media’s attorneys.  Although the website removed the content addressed in the letter, O’Doare explained that the site’s creators had not acknowledged any infringement in removing the content.

Instead, those behind the website claimed that their use of the Demand Media content fell under fair use guidelines, specifically protections for commentary and criticism.  “Let’s be honest,” the open letter says, “if ever there was a case of unequivocal fair use, this would be it.”  A statement which should raise flags to anyone who previously felt similarly.

Fair use is a defense to a claim of copyright infringement, but not other claims.  A fair use argument cannot simply succeed on its merits where other legal rights are violated.  Context matters.  So, for example, as seen in some Facebook “suck site” cases, fair use will not protect against a claim of defamation.  Employees who publish company trade secrets and other proprietary information cannot rely on fair use to defend against claims of violations of corporate and employment law.

O’Daire’s letter proudly boasts that the voices behind DemandStudiosSucks.com were fully prepared to defend themselves, citing the fair use cases Lenz v. Universal Music Corp. and Online Policy Group v. Diebold, Inc.

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Dropbox TOS – In Praise of Clarity

Posted July 17, 2011 by Andrew Mirsky 0

Earlier this month, Dropbox spawned a new kerfuffle in internet-land with changes to its Terms of Service (TOS).

The outrage was fast and furious.  A nice deal of blog and Tumblr and other commentary zeroed in on changes Dropbox announced to its TOS before the 4th of July holiday, and in particular how this or that provision “won’t hold up in court”.  See for example J. Daniel Sawyer’s commentary here.

Sawyer was referring to language in the TOS for cloud-server services granting ownership rights to Dropbox or other cloud services.

At least I think that’s what he was referring to, because the Dropbox TOS did not actually grant those ownership rights to Dropbox.  Dropbox’ TOS – like similar TOS for SugarSync and Box.net – granted limited use rights to enable Dropbox to actually provide the service.  Here is the offending provision:

… you grant us (and those we work with to provide the Services) worldwide, non-exclusive, royalty-free, sublicenseable rights to use, copy, distribute, prepare derivative works (such as translations or format conversions) of, perform, or publicly display that stuff to the extent we think it necessary for the Service.

To be clear, if Dropbox actually claimed ownership rights to customer files – and actually provided for the same in its TOS – there’s no particular reason such a grant “won’t hold up in court”.   There are certainly cases of unenforceable contracts – contracts that are fraudulently induced or in contravention of public policy, for example – but a fully and clearly disclosed obligation in exchange for a mutual commitment of service is enforceable.

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Forever 21 – WTF? SLAPP Suit? Trademark Dilution?

Posted July 6, 2011 by Andrew Mirsky 0

A blogger publishing under the name “WTForever21.com” recently got threatened with litigation for trademark infringement by the LA-based clothing retailer Forever 21.

WTForever21.com, a parody site published by Rachel Kane, had prominently disclaimed any affiliation or endorsement by Forever 21.  And as indicated, Kane’s purpose was (some would claim clearly) parody.   Kane was the proud recipient of a cease and desist letter from Forever 21 on April 22 (a copy of which can be found here), which alleged trademark and copyright infringement, unfair competition and trademark dilution.

Without testing the merits of her legal position and, according to several initial reports, not willing to expend the resources to do so, Kane announced that she would pull down her site by June 10th.  Kane then reversed course, and issued a statement last month stating “If the company continues to makes threats that have no basis in law, my attorneys are prepared to vigorously defend me and seek all available legal redress against Forever 21.”  The site is currently live.

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Podcast #10: BitTorrent Copyright Infringement: Trouble for DMCA?

Posted June 20, 2011 by Andrew Mirsky 0

 

Today, I discuss BitTorrents, and a particular case in California challenging the copyright validity of what one service provider is doing.  BitTorrent has been in the (copyright) news lately – and not surprisingly – after the movie studios set their sites on bringing down yet the latest iteration of file-sharing technology.

Some of the issues I discuss are these:

  • What is the BitTorrent file sharing technology? And how is it different from Napster and its peer-to-peer progeny?
  • What are the 2 biggest distinctions between BitTorrent and peer-to-peer and, in particular, BitTorrent’s distributive approach to file-sharing?
  • Why is bitTorrent in the (copyright) news? I will particularly discuss a case in federal court in California, involving Columbia Pictures and other film studios who sued a bitTorrent company called isoHunt, together with its founder, Gary Fung.
  • What were the relevant legal issues in this case? Several important copyright arguments were made, but of most significance were 2 particular issues: inducement of copyright infringement, and the safe harbor for providers of “information location tools” under Section 512 of the Digital Millennium Copyright Act (the DMCA).
  • Why did Google get involved? I discuss how this case was an unusual instance where a court ruled that DMCA safe harbor protection was not available to a provider of “information location tools” who knew or should have known about potential or actual copyright infringement happening on its service.

Please click below for the podcast.

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BitTorrent Copyright Infringement: Trouble for DMCA?

Posted June 3, 2011 by Andrew Mirsky 0

BitTorrent has been in the (copyright) news lately – and not surprisingly – after the movie studios set their sites on bringing down yet the latest iteration of file-sharing technology.

2 great background sources on what BitTorrent is and how it works can be found here and here.  In short terms, BitTorrent is a file sharing technology, different from Napster and its peer-to-peer progeny in that it draws down pieces of large data files from multiple computers – rather than single computer to single computer peer-to-peer – based on a “community” structure of participating individual users.  The two biggest distinctions are (1) no single source for the compiled total file contributes more than a very small portion of the total file and (2) the distributive structure finesses the constant file-sharing problem of large data transfers demanding large broadband resources.

Why is bitTorrent in the (copyright) news?

BitTorrent is in the news not simply because Netflix’ CEO stated that “we’ve finally beaten bitTorrent.”  (“We”, by the way, presumably refers to Netflix’ full-file streaming capabilities.)

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