Stanford Center for Internet and Society

The German Supreme Court (BGH) clarified last week that sampling does not infringe on copyright in the work from which samples were taken for the purpose of creating a new work. There is a catch hiding in the details, though.

A while ago I commented here on the Second Circuit’s decision in The Cartoon Network/Cable News Network v. CSC Holdings/Cablevision. It seemed to me like a decision that would leave a mark, one with implications reaching far beyond the particular dispute between the particular parties. Meanwhile, Cable News appealed to the Supreme Court. During the first week of November, a rainfall of amici curiea (friends of the court) briefs supporting the petition washed the threshold of the Court.

In the District of Minnesota, several recording companies including Capitol, Sony BMG, and Warner Bros. sued defendant Jammie Thomas for copyright infringement. The suit alleged that the defendant had illegally downloaded and distributed the plaintiffs' copyrighted sound recordings using peer-to-peer file-sharing software. The case went to trial, and the jury found for the plaintiffs, awarding $222,000 in damages. Following a careful review of the relevant statutes, legislative history, and case law, however, the court decided that a jury instruction that too broadly defined the concept of distribution had been erroneous and required a new trial. At the end of its opinion, the court called on Congress to standardize the range of peer-to-peer liability and damages.

EMI Records sought to enjoin Premise Media Corporation (Premise) from using a clip from John Lennon’s song, Imagine, in the documentary film, EXPELLED: No Intelligence Allowed. The court did not issue guidance on the exact amount of use needed to constitute copyright infringement. Instead, the court ruled that EMI was unlikely to win on the merits of the case because the fair use defense likely applied to Premise’s use of Imagine. The court denied the injunction since granting one would cause harm.

EMI Records v. Premise Media

The Second Circuit decided The Cartoon Network v. CSC Holdings & Cablevision already two and a half weeks ago. This means light years in terms of blogging, but due to its importance I've decided to take the liberty and offer a late (and somewhat elaborate) entry discussing this ruling and some of its implications. The Cartoon Network is a very significant decision and I will not be surprised to see it surfacing in many future decisions and law review articles to come. Its central import is in pinching a big hole in the balloon often referred to as the “MAI v. Peak and its progeny.” I believe that the decision will have far-reaching ramifications on the development of temporary reproduction law in the future.

A brief Draft Introduction to my study on copyright law is now available for download here.

I have just completed the draft of my extended study on copyright law, where I examine issues of access, access to information and digital copyright law. At bottom, I do not propose to abolish copyright law, nor do I think that adjusting the current system could successfully survive the transition to digital markets and digital cultures. Four years of research have led me to the conclusion that the present structure of entitlements is inherently inadequate for regulating an environment, in which the smallest tradable unit of transaction (and/or the smallest object of exchange in nonmarket constellations, if you will) is access to "expressions" - or, as I call them, “medial messages.”

Prof. Lessig has an OP-ED in the NYT today about the orphan works bill rolling now in Congress. Among the important points mentioned there, here are my three favorites: (1) to the extent that foreign authors are substantially deprived of copyright protection as a result of the new rule, the amendment will probably violate U.S. international obligations, and it would take the E.U. exactly two seconds to file a WTO complaint. (2) It makes no sense to put so much weight on the issue of “diligent effort” if rightholders are not required to register works, as in the case of patents, for instance. (3) It would be somewhat unfair to apply the rule retroactively to works by authors who relied on full, automatic copyright protection upon creation/fixation.

John Degen, a Canadian novelist, has a thoughtful post on how he has resolved to make his latest novel, The Uninvited Guest, freely available for download online. It his a short yet touching divulgation of a writer’s musing about copyright protection in the digital age, and about thinking out of the box. He says that the war is over. I’m not sure, but I liked the frankness of an author who writes books with his heart’s blood and his dilemma about coming to terms with the wired reality.

Next month Stanford CIS is hosting a conference about Legal Futures. Judging by the list of participants, the upcoming even should be nothing less than electrifying. This post is unrelated to the conference. In fact, it is not about legal “futures” at all. Rather, it is about legal “pasts.”