From the category archives:

PRIMARY LAW

Kirtsaeng v. John Wiley & Sons, Inc. – Will Supreme Court Review First Sale?

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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The United States Copyright Fair Use Statute Quick Primer

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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SOPA May Backfire and Cause Destruction of Copyright Stranglehold

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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Use the IP Property Paradigm to Advantage in Defending Copyright Fair Use

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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New York Ticket Legislation Requiring Paper Tickets to be Offered Falls Short of Necessary Consumer Freedom

July 8, 2010

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 [...]

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United States Copyright Ownership Statute

June 21, 2010

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 [...]

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