From the category archives:

PRIMARY LAW

We look forward to the brief being filed by PublicKnowledge. As set out by Williams Mullen, the Kirstaeng case is an interesting one:

“In John Wiley & Sons, Inc. v. Kirtsaeng, No. 09-4896-cv (2d. Cir. August 15, 2011), the Second Circuit affirmed a district court decision and held that the first sale doctrine does not apply to copyrighted works produced outside of the United States – in this instance, lawfully manufactured textbooks – that are subsequently imported and resold in the United States.”

It is just not clear to me why, in a global economy, there is any distinction between protection of a first sale abroad as opposed to a first sale in the United States.

Here is another take on this issue by ClodigyLaw:

“If this sounds like convoluted reasoning, that’s because it is. What really seems to be going on is that the court is protecting Wiley’s ability to set different prices for different markets, using copyright law to prevent arbitrage.”

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Noah Baron writes in HuffPost “if Fair Use isn’t clarified and broadened; and if formerly safe-havens for creativity on the internet go under, we are all in trouble.”

The Fair Use language of Section 107 of the Copyright Act is the common ground for authors, publishers, retweeters, bloggers, judges and the curious to address Baron’s concerns.
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Stop Online Piracy Act brought out the big guns against itself in United States Congressional hearings this week. As a member of the United States federal judiciary process, I am embarassed in front of my fellow attorneys in the international community and I apologize on behalf of the sane 99 percent of attorneys who do not represent major copyright holding conglomerates.

Mashable tells us that help is on the way, as follows. I quote their summary of this week’s SOPA opposition. Go for it, Jimmy, shut down Wikipedia.

A group of 83 prominent Internet engineers kicked things off on Thursday with a scathing open letter to Congress stating their opposition to both SOPA and its sister Senate bill PIPA.

“If enacted, either of these bills will create an environment of tremendous fear and uncertainty for technological innovation, and seriously harm the credibility of the United States in its role as a steward of key Internet infrastructure,” they wrote.
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CITATION: 54 Duke L. J. 1 CABINING INTELLECTUAL PROPERTY THROUGH A PROPERTY PARADIGM by MICHAEL A. CARRIER Full Text HERE

usa_cfmProfessor Carrier is no stranger to litigation. He clerked at the Fourth Circuit Court of Appeals and was a litigator at Covington & Burling. He now teaches intellectual property, antitrust and property law at Rutgers and recently published with Oxford Press “Innovation for the 21st Century: Harnessing the Power of Intellectual Property and Antitrust Law.”

For copyright and IP litigators, the genius of the 2004 Carrier Cabining Article, all 700 plus footnotes notwithstanding, is that it helps us understand how to tame the relenless IP property paradigm with cogent arguments articulating how and why all property rights in all legal disciplines, physical and intellectual, can and must be circumscribed.

Carrier explains that property rights are never absolute, and that ownership always comes with limitations. Consider how an attorney may craft a fair use defense argument based on the power of these organized factual/legal observations:

“Many of the drawbacks of exclusionary rights in property law have been avoided by the widespread use of defenses to property rights. Eminent domain precludes individual landowners from holding out and preventing the government from utilizing land that it needs to effectuate certain public policies. Easements allow landlocked owners to leave their land and access public roads. Courts refuse to enforce racial covenants. Adverse possession allows developers of land to reap the rewards of their productivity at the expense of those who let land lie idle (emphasis added) .”

And if the title word “Cabined” is at first blush obstuse, here is one Carrier statement of his premise, which will assist litigators in organizing legal memorandum and talking point arguments:

“Property rights are not absolute, but are cabined by several important limits. The foundational rights of property law are widely recognized to consist of the right to exclude, the right to transfer, and the right to use. Among these rights, the right to exclude is considered the most important.The right to transfer allows the conveyance of property to those who can use it most productively. And the right to use envelops not only use but also other rights that sometimes are considered separately, such as rights of access, extraction, and management.”

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As reported in Ticket News, the July 2010 legislation “(a)t its core, the bill requires artists, venues, teams and primary ticket sellers to give consumers the chance to purchase a traditional paper, or other type of ticket, if the seller is utilizing a paperless ticketing system that does not offer independent transferability of the paperless ticket.

For those of you not familiar with the problem of paperless tickets (non-transferability): “A paperless ticket is like a virtual ticket. It’s purchased with a credit card and the consumer receives nothing more than an electronic receipt. Paperless ticket holders gain access to an event via the credit card used in the transaction. Meaning, when you buy Miley Cyrus concert tickets for your daughter you have to wait in line with her so you can swipe your credit card and let her in.

The problem with the legislation is that it only requires that the primary ticket sellers offer a paper ticket option to ensure transferability. It does not require the paperless ticket to be transferrable. This forces the consumer who wants to transfer the ticket to someone else for gift, equal value, profit, or otherwise to take possession of the physical ticket and then transfer it physically. This is simpy not good enough.

I believe this is the language of the New York ticket statute as passed:

39 (C) EMPLOY A PAPERLESS TICKETING SYSTEM UNLESS THE CONSUMER IS GIVEN
40 AN OPTION TO PURCHASE PAPERLESS TICKETS THAT THE CONSUMER CAN TRANSFER
41 AT ANY PRICE, AND AT ANY TIME, AND WITHOUT ADDITIONAL FEES, INDEPENDENT
42 OF THE OPERATOR OR OPERATOR’S AGENT. NOTWITHSTANDING THE FOREGOING, AN
43 OPERATOR OR OPERATOR’S AGENT MAY EMPLOY A PAPERLESS TICKETING SYSTEM
44 THAT DOES NOT ALLOW FOR INDEPENDENT TRANSFERABILITY OF PAPERLESS TICKETS
45 ONLY IF THE CONSUMER IS OFFERED AN OPTION AT THE TIME OF INITIAL SALE TO
46 PURCHASE THE SAME TICKETS IN SOME OTHER FORM THAT IS TRANSFERRABLE INDE-
47 PENDENT OF THE OPERATOR OR OPERATOR’S AGENT INCLUDING, BUT NOT LIMITED
48 TO, PAPER TICKETS OR E-TICKETS.
THE ESTABLISHED PRICE FOR ANY GIVEN
49 TICKET SHALL BE THE SAME REGARDLESS OF THE FORM OR TRANSFERABILITY OF
50 SUCH TICKET. THE ABILITY FOR A TICKET TO BE TRANSFERRED INDEPENDENT OF
51 THE OPERATOR OR OPERATOR’S AGENT SHALL NOT CONSTITUTE A SPECIAL SERVICE
52 FOR THE PURPOSE OF IMPOSING A SERVICE CHARGE PURSUANT TO SECTION 25.29
53 OF THIS ARTICLE.

At the very least, the statute should have afforded the consumer the right to convert her paperless non-transferable ticket at any time to a paper ticket. Better, the statute should have banned paperless tickets from being non-transferable.

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17 United States Code

§ 201. Ownership of copyright

(a) Initial Ownership. — Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work.

(b) Works Made for Hire. — In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

(c) Contributions to Collective Works. — Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.

Articles:

Copyright Ownership and Transfers FAQ

Copyright: Joint Ownership

Understanding Joint Ownership

For the complexities of joint ownership and for extra credit, read the charming joint ownership decision of Circuit Judge Posner in Gaiman_v._McFarlane

“But where two or more people set out to create a character jointly in such mixed media as comic books and motion pictures and succeed in creating a copyrightable character, it would be paradoxical if though the result of their joint labors had more than enough originality and creativity to be copyrightable, no one could claim copyright. That would be peeling the onion until it disappeared. The decisions that say, rightly in the generality of cases, that each contributor to a joint work must make a contribution that if it stood alone would be copyrightable weren’t thinking of the case in which it couldn’t stand alone because of the nature of the particular creative process that had produced it.”

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