By , August 09, 2013.

Terry Hart is on vacation, so I have the great pleasure of presenting this week’s Endnotes.

First Amendment Constraints on Copyright After Golan v. Holder – Professor Neil Netanel has a fascinating look at the intersection of copyright law and the First Amendment in the wake of the Supreme Court’s opinion in Golan v. Holder. Back in 2001, Netanel argued that First Amendment challenges to copyright laws should be analyzed under the content-neutral rubric of intermediate scrutiny. The Supreme Court twice since then has rejected that approach, instead adopting Melville Nimmer’s view that copyright law internally balances First Amendment values. Working within that framework, Netanel now launches a new challenge of the DMCA anti-circumvention provisions and the now-defunct SOPA provisions for intermediary liability. Even if you disagree with Netanel’s conclusions (as I do), it’s a well-argued and thought-provoking article that I think is a must-read for all copyright geeks.

Copyright: The Inverted Human Period – Reflecting on the recent copyright revision hearings, Faza at the Cynical Musician looks into why copyright is important for the entire nation and not just for individual rightholders. Faza starts with the copyright granted to a songwriter and then traces the value stemming therefrom: “What we get in the end is an inverted human pyramid: a vast, tree-like structure of innumerable jobs being created, all resting on the back of our original songwriter and her songs. Take her away and the whole edifice collapses. *** It should be clear that even those who are most vocal against copyrights – tech companies who’d like to be in the content distribution biz without the content acquisition costs and their supporters – would lose out big time if the content were taken away. So whence the blindness?” Kudos to Faza who regularly turns out thoughtful and insightful pieces such as this.

Appeals Court Denies Jack Kirby Estate’s Bid to Overturn Marvel Copyright Ruling – Eriq Gardner at Hollywood, Esq. brings us the latest news in the copyright battle between the heirs of legendary comic book artist Jack Kirby and comic book publisher Marvel Comics. The Second Circuit affirmed in part the district court’s rejection of the heirs’ attempt to terminate under Section 304 certain copyright assignments made by their father. The termination rights turned on whether the works at issue were “works made for hire,” and the opinion is an interesting one as it shows the difficulty courts face in making that determination when the facts cut both ways. Ultimately, the court of appeals held that, even though Kirby was a freelancer with much independence, he nevertheless worked so closely and continuously with Marvel that the latter was the copyright owner ab initio under the work-for-hire doctrine.

Are Implied Licenses Enforceable? – At Forbes, Oliver Herzfeld looks at a district court opinion analyzing the enforceability of implied licenses. The dispute in that case turned on the fact-specific inquiry as to whether a sports arena had been granted an implied license to use a photographer’s photos on its Facebook page. Based on the lessons derived from the opinion, Herzfeld warns that “licensors would be well advised to (i) avoid engaging in casual communications or conduct that may imply a consent to actions or omissions on the part of licensees that exceed or contradict the terms of the parties’ license agreements, (ii) maintain a disciplined license agreement amendment process to document and memorialize all license agreement changes in signed writings, and (iii) include provisions in all license agreements reserving all rights not expressly granted to the licensees therein and explicitly disclaiming that any course of conduct on the licensor’s part will constitute a consent to, or waiver of, any term or provision of the license agreements.”

Comcast Developing Anti-Piracy Alternative to ‘Six Strikes’ (Exclusive) – Andrew Wallenstein at Variety has the news that Comcast is working on a plan to convert illicit file-swappers into paying customers. The system would work in real-time by presenting an infringer with a pop-up providing links to legal sources for the material being infringed. Wallenstein posits that this “reflects an alternate philosophy regarding copyright infringement, one that sees the illegal activity less as a crime that requires punishment and more as lead generation to a consumer whose behavior is borne out of inadequate legitimate digital content options.”

Academic Senate approves open access policy – The University of California has announced that future research articles by its faculty will be made available to the public at no cost: “The policy covers more than 8,000 UC faculty at all 10 campuses of the University of California, and as many as 40,000 publications a year. It follows more than 175 other universities who have adopted similar so-called ‘green’ open access policies. By granting a license to the University of California prior to any contractual arrangement with publishers, faculty members can now make their research widely and publicly available, re-use it for various purposes, or modify it for future research publications.”

Charge of Copyright Infringement in PTO Prior Art Disclosure Suffers Another Blow – Tony Dutra at Bloomberg BNA discusses a setback for the publisher plaintiffs in one of their many ongoing lawsuits against patent law firms that copy technical journal articles as part of the prior art submission process at the USPTO. The magistrate judge, after finding that all four fair use factors weighed in the defendants’ favor, issued a report recommending that the district court side with the patent law firm defendants. In the magistrate judge’s opinion, the defendants’ “use of the Articles facilitates the complete disclosure required in the patent-application process, assisting patent examiners in determining whether applications for patent protection should be granted, and, consequently, fulfilling the very same purpose of promoting science and the arts that the Copyright Act was intended to accomplish.”

About the author: Devlin Hartline

Devlin is a husband, father, and law geek (JD & LLM). He is currently an SJD candidate at Tulane Law in New Orleans, Louisiana, where he is writing his dissertation on copyright law. He is also a Mark Twain Copyright Fellow at the Center for the Protection of Intellectual Property at George Mason Law in Arlington, Virginia.


  1. I read Professor Neil Netanel’s .PDF that you provide. On Page 1113-1114, he states the legality of someone using their favorite clips and circumnavigating DeCSS software (i.e.: Macrovision) on a DVD is footage that one requires is only there. From that, this “remix” of footage is then posted on YouTube.

    In his analysis he uses the DMCA against the “casual infringer”, and the the amendment deeming a DeCSS bypass is therefore illegal. This is 100% incorrect. It is YouTube (owned by Google) that enables the public display with appended ads of the copyrighted content to further require a DMCA Takedown Notice when the actual copyright holder/s find the YouTube DMCA violation that blames the user. However, the copyright holder may never know, and it is YouTube collecting money and depleting the value of the copyright with the user assuming a fair use defense, or YouTube willfully blind of their business model (the latter more apt) Again:

    1) Google/YouTube is NOT a service provider under 17 USC § 512(k)(1)(B). The service does not provide Internet access; hence, enable subdirectories of themselves of their own single URL as the responsible entity. Case-law states otherwise; however, rulings omit half the statute. There is case-law that does not and holds parties like YouTube fully liable (See [rulings omitted here without prejudice])
    2) The YouTube service ENABLES the public display for anyone to freely post theft (from anywhere) without proof of the exclusive right. But see Eldred v. Ashcroft (to speak for others without permission is not a 1st Amendment Freedom), and see Aimster Copyright Litigation (software that enabled the right to use other people’s music willfully holds Aimster liable).
    3) The public display enabled by the business, YouTube, willfully blinds itself to guilt, not the anonymous user that can sign an enabled terms of service anonymously and ambiguously; hence, an invalid signature. See Windsor Mills, Inc. v. Collins & Aikman Corp., 101 Cal. Rptr. 1972) at 351 (“[W]hen the offeree does not know that a proposal has been made to him this objective standard does not apply.”). See Specht v. Netscape, 306 F.3d 17 (2d Cir. 2002) at 28 (“unambiguous manifestation of assent to those terms by consumers are essential”).

    I could go on.

    Circumnavigating DeCSS software is not within the service provider 17 USC § 512(k)(1) classification; therefore, it is bound under 17 USC § 106 (see 17 USC § 501). A user doing this, and then posting to YouTube may assume safety inside one’s household thinking YouTube is part of “fair use” inside one’s closed personal belonging/abode. However, YouTube is a commercial, for-profit, public display, and therefore even if the user cannot be “excuse[d from] the wrong by showing how much of his work he did not pirate.” See Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir.), at the moment it is allowed to appear on the Google/YouTube public display of its sub-directory, by Google/YouTube, de minimis non curat lex protection is obliterated. See Playboy Entertainment, Inc. v. Frena, 839 F. Supp. 1552 at Pg. 11 (M.D. Fla. 1993) (“The detrimental market effects coupled with the commercial-use presumption negates the fair use defense”; hence, denying the principle).

    See the book HR-2281: And Then the DMCA Didn’t Apply on the Earth (Viacom v. Google) by author ALAN COLOSI. Acknowledge it.


    • You appear to be confusing Title 2 of the DMCA, which created safe harbors for certain online intermediaries (codified in §512) with Title 1 of the DMCA, which added anti-circumvention provisions to copyright law (codified, in relevant part, in §1201). Netanel is discussing the latter in the portion you address.

      • No, I’m not. Because in his example, Netanel specifically stated in the example to posting the work on YouTube. YouTube is specifically mentioned; hence, 17 USC § 1201 becomes immaterial. The actual site, Google/YouTube, enables Professor’s Netanel’s example to be placed on a public display (that he states is the ***MOTIVE***). Thus, my argument addresses the result of the infringement.

        He is using §512 which nullifies his entire argument (at that section of his research).


      • No, I’m not. Because in his example, Netanel specifically stated posting the work on YouTube. YouTube is specifically mentioned as the ***MOTIVE***; hence, 17 USC § 1201 becomes immaterial. The actual site, Google/YouTube, enables Professor’s Netanel’s example to be placed on a public display. Thus, my argument addresses the result of the infringement.

        17 USC § 1201 is accurate if the public display is other than 17 USC § 512. He resolves 17 USC § 512 as the public display which nullifies his entire argument (at that section of his research).


  2. Please read the 2nd of the 2 reply comments. I can’t delete the 1st of the 2 reply comments.

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