Guide Through the Legal Jungle

Copyright Public Domain – Explained in 60 Seconds

In the One Minute How-To, podcaster George Smyth challenges his guests to explain how to do something. The something can be anything the guest chooses. The catch is the guest has only 60 seconds in which to make the explanation.

I decided to take the challenge and explained “How to Determine if Creative Material Is Public Domain or Copyright Protected”.  You can listen to my 60-second explanation of this complicated topic

One-Minute How To Interview Dec 2007

. 

Fewer Squeaky Clean Films

A Guide Through the Legal Jungle Trivia Question

Many parents want to watch movies at home with their children – but without the profanity, nudity, and other potentially objectionable material. Imagine a Basic Instinct in which Michael Douglas and Sharon Stone just hold hands. A July 2006 federal court ruling shut down the companies that distribute sanitized versions of popular movies finding those companies guilty of copyright infringement. Unaffected by the ruling are companies that offer software that bleeps out profanity and obscures nudity while the original dvd plays on a computer or specialized dvd player.  Do you know which one of the following four answers explains why these software-based filtering companies are still in business?

1. Federal law specifically protects the software-based filtering business model.
2. The software-based filtering companies have entered licensing agreements with Hollywood studios.
3. Most of the software-based companies are foreign-based so a US court decision does not affect them.
4. The software-based filtering companies work on movies that are in the public domain.

Public Domain Status and the Punch of International Copyright Law

Normally, one assumes that if you operate your business exclusively within the confines of a single country, you need concern yourself with only the laws of that particular country. Doing business on the Internet challenges this assumption as illustrated by the recently forced hiatus of classical music site International Music Score Library Project (IMSLP).

IMSLP is a free online library which offers its visitors copies of musical scores that are in the public domain. The site’s owner, its server and its operations are based in Canada so it relied on Canadian law when determining which musical scores were in the public domain and could be permissibly offered through the site.

Can You Post Lyrics on Your Website? A Few Services that Make It Legal.

Hopefully, it comes as no surprise to anyone that song lyrics are protected by copyright law. Song lyrics are protected whether or not they are registered with the U.S. Copyright Office. They are protected whether they are used with or without an accompanying melody.

Websites offering song lyrics without permission are violating copyright laws and exposing themselves to claims of copyright infringement.  Of course, IF you’re displaying the lyrics in a manner that qualifies as fair use, you’re not violating any copyright laws. But, like most fair use questions, that’s a big, shaky, and potentially messy “IF”.

March Madness

A Guide Through the Legal Jungle Trivia Question

Which one of the following sports organizations first coined the phrase March Madness to describe an athletic tournament?

A. Illinois High School Association
B. National Collegiate Athletic Association (NCAA)
C. Olympics
D. National Basketball Association (NBA)

Public Performance v. Private Performance of Songs

Incorporating music into your business model usually requires payment of a music licensing fee.  One company offered onsite children’s’ activities with music in the background. The business owner legally downloaded the music from an online digital music store and played it on a modest stereo set-up.

Not surprisingly, one of the performing rights organizations (PROs) came knocking at the business owner’s door claiming that the company’s use of the music required a license. Public performances of songs do require licenses and the payment of royalties. Since many people do not realize the necessity of a license for the public performance of music, the initial step of PRO’s upon finding an unlicensed use is “to educate”. However, if the company does not comply, the PRO will move to legal action which can result in damages of a few thousand dollars for each song the PRO can document the business played without a license.

The PROs in the United States are ASCAP, BMI, and SESAC. Each PRO has a different catalog of songs. BMI is the largest. SESAC is the smallest of the three with the smallest catalog. If one approached the company mentioned above, the other two may very well be in touch soon.

While public performances of songs require licenses, private performances do not. However, there have been many disagreements concerning what constitutes a public performance versus what constitutes a private performance. For example, a performance may be deemed as public even if it takes place in a semi-public place such as a social club.

I discuss the topics of music licensing, PRO’s and public versus private performances in depth in my book The Permission Seeker’s Guide Through the Legal Jungle: Clearing Copyrights, Trademarks and Other Rights for Entertainment and Media Productions (available at www.GuideThroughtheLegalJungle.com and from retail and online bookstores).

Does Copyright Law Prohibit the Sale of Used Software on eBay?

The pending lawsuit of Vernor v. Autodesk might answer this question.

Timothy Vernor makes his living as an eBay vendor selling used comic books, video games, software, and collectibles.  Autodesk, the maker of software application AUTOCAD, managed to get several of Vernor’s auctions shut down. Autodesk managed this feat by sending a take-down notice to eBay  claiming that Vernor’s sale of used versions of AUTOCAD is copyright infringement.

Like many online sites, eBay relies on a safe harbor provision under the Digital Millennium Copyright Act (DMCA) to insulate it from copyright infringement liability for material posted by eBay online visitors and vendors. In order to qualify for that safe harbor, eBay must remove any material identified by the copyright owner as infringing. However, under the DMCA, eBay vendors shut down by a takedown notice can get their auctions reinstated by sending eBay a counter notice claiming that the material is not infringing and was improperly removed. That’s exactly what Vernor did, triggering a DMCA dance of takedown notices and counter notices through which Autodesk repeatedly had Vernor’s auctions shut down and Vernor subsequently got them re-instated.

Vernor ultimately tired of the game and has filed suit against Autodesk in which he asks a Washington federal court to declare his sale on eBay of used AUTOCAD copies as lawful. You can read the full complaint here.

The most relevant issue in the case is application of copyright law’s First Sale Doctrine to software.

A Bumpy Ride for XM Satellite

A Guide Through the Legal Jungle Trivia Question

 XM Satellite Radio is one of the two satellite radio services in the United States. Satellite radio is pay-for-service radio with stations accessible nationwide. Think of it as the radio equivalent of cable television. During its relatively short corporate history, XM Satellite Radio has confronted a variety of business and legal challenges. Which one of the following problems has XM Satellite Radio NOT experienced? 

1. The music industry sued XM for copyright infringement in connection with XM portable devices, the Inno and Helix, that allow listeners to download songs as they hear them on XM Radio. 

2. The Federal Communications Commission initiated an investigation of XM in connection with FM transmitters found in XM-compliant devices. 

3. XM-program providers included ads in their programming even though XM’s entire marketing campaign emphasizes the absence of ads.

4. The FCC fined XM $100,000 for indecency in connection with the Howard Stern Show.