At the intersection of 1709Blog and TorrentFreak, a copyright Trollee asks a San Francisco court to deny copyright protection to adult content.

Not as good as Super Bowl 46 (no Roman numerals for me), but when EFF send their A team (IP Litigator Steven Yuen) to fight trolls, anything can happen.

So, if we deny copyright protection to “pornography”, then we put the courts into the posture of passing on the merits of copyright protection for a much broader category of intellectual work. Is this really the mission of my friends and colleagues at the Electronic Frontier Foundation?

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Our big firm brothers at Foley Hoag describe the facts well in their recent post “IP Dispatches from the Political Front: Mitt Slings Copyrighted Mud at Newt.”

The Romney video advertisement utilizes a clip of Tom Brokaw on NBC which “is little more than a short clip of a 1997 episode of NBC’s Nightly News, reporting that Gingrich was found guilty of ethics violations.” Last time I checked the Romney team has refused to take down the advertisement and stands behind its fair use claim.

Of course Romney is right and NBC wrong. I would suspect that NBC itself must Fair Use thousands of clips and textual material weekly in compiling the news.

The news is a series of Fair Use snippets.

The news is news itself.

The argument that the viewer would confuse a rebroadcast of a news clip as an endorsement is, quite frankly may I address NBC’s vice president of media law, David N. Sternlicht, absurd and irresponsible.

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Copyright mania hits new heights. Watch the RT video and check out the BBC article quoted from here:

“Richard O’Dwyer, 23, set up the TVShack website which US authorities say hosts links to pirated copyrighted films and television programmes. The Sheffield Hallam University student lost his case in a hearing at Westminster Magistrates’ Court. If found guilty in a US court he could face up to five years in jail.Mr O’Dwyer’s lawyer, Ben Cooper, indicated during the hearing that he would appeal against the ruling. Mr Cooper said the website did not store copyright material itself and merely directed users to other sites, making it similar to Google. He also argued that his client, who would be the first British citizen to be extradited for such an offence, was being used as a “guinea pig” for copyright law in the US.”

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[CLICK TO ENLARGE]
No idea who, if anybody, has rights to this image, but worthy of reproduction and found by me HERE.

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As reported today in NYTimes MediaDecoder blog, several major record labels have sued Grooveshark for admittedly unlicensed music uploaded by Grooveshark users.

Grooveshark actually has license deals with many major records labels, including even a related entity to one of the plaintiffs.

The copyright rub is that there is alleged evidence that Grooveshark itself directed its employees to upload unlicensed music.

I modestly refer to my recent post highlighting the article of Professor Haochen Sun, “Fair Use as a Collective Right”, which argues that Fair Use is a collective right of the community, and not of any one entity.

Although the Grooveshark litigation presents slightly different issues than the thrust of the Sun article, I suggest that the result ought to be the same.

The sharing community created by Grooveshark is an embodiment of this collective right, and Grooveshark’s own misconduct must be addressed seprately from its right to exist.

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The fair use of Fair use grows exponentially in the arsenal (small “a”) of copyright freedom litigators. In advising clients pre-litigation and in IP brainstorming sessions, clients often seek the moral as well as the legal justification to support the use and publication of materials that may raise copyright challenges.

In Lawrence Solum’s Legal Theory Blog, the January 15, 2012 law review article of Professor Haochen Sun, “Fair Use as a Collective Right” The article abstract provides the theory:

“This Article puts forward a new theory that reconceptualizes fair use as a collective user right in copyright law. It first argues that the fair use doctrine has not yet unleashed its full potential in protecting the public interest. The failure is caused by a firmly ingrained notion in copyright law that treats fair use as an affirmative defense against allegations of copyright infringements. Such a fixed characterization of fair use has led legislators and judges to define it as merely an individual right enjoyed by each user of copyrighted works. This characterization has also lead to a wide range of harms to the public interest in the free flow of information and knowledge.

“Against this backdrop, this Article explores the ways in which fair use can be revitalized to protect the public interest. It argues for repudiating the narrow-minded characterization of fair use as an individual right. It then proposes that fair use should instead be redefined as a collective right held by the public, which facilitates and enhances participation in communicative actions in what I call intangible public space. From this perspective, section 107 of the Copyright Act should be read as conferring a collective right to fair use upon members of the public. Moreover, this Article shows the power of the collective right to fair use in generating a new legal approach that will enrich copyright adjudication and policy-making discourse for protecting the public interest in the digital age.”

Although Fair Use is nominally a defense, I sense a shifting of the burden of proof to the shoulders of copyright holders who seek to block the fair and moral distribution of intellectual capital and ideas.

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The European Court of Justice ruled earlier this year that a British pub owner could purchase a decoder and rights from a Greek media outlet. The court reasoned as follows:

“In its judgement, the court said that attempting to prohibit the import, sale or use of foreign decoder cards is “contrary to the freedom to provide services and cannot be justified either in light of the objective of protecting intellectual property rights or by the objective of encouraging the public to attend football stadiums.”

Posted here as an example of a performer/consumer centric decision at the expense of distributing media.

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[RT @copyrightgirl: #copyright dispute around EA's video game use of military helicopters, fair use? sgp.cm/719bd5 RT @rachaelvaughn]There are no moral positions in copyright litigation in the United States. Clients who most of the time vigorously oppose fair use of their copyrighted material feel free to scream First Amendment and fair use when the situation ethics require it.

GamePolitcs reports today that Electronic Arts has asserted a vigorous First Amendment/Fair Use defense against claims of copyright infringment made by helicopter manufacturer Bell Helicopter.

One wonders how EA will respond if a competitor is able to lift the EA game code that depicts the helicopters and makes Fair Use of EA’s Fair USE?

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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.”

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

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