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.”