Guide Through the Legal Jungle

Acceptable Newsgathering Techniques: Suzy Snooper Gets the Scoop

A Guide Through the Legal Jungle Trivia Question

Suzy Snooper is a reporter for Channel 41 News in Los Angeles. She has heard rumors that a famous English soccer star recently moved to California with his pop star wife. Suzy wants Channel 41 to be the first news station to capture footage of the couple in America. Which of the following strategies for getting “the scoop” is most likely to cause Suzy (and her bosses) legal troubles?

A. Hiding in a tree across the street from the couple’s home and snapping some photos with a zoom lens

B. Waiting outside the nightclub frequented by the couple in an attempt to interview the soccer player as he exits

C. Using a tiny but supersensitive microphone to record a hushed conversation between the couple as they wait in line at the supermarket

D. Calling the soccer player at home and asking personal questions under the pretense of a public opinion poll

Round One Goes to EBay Auctioneer in Battle to Sell Used Software

Recently, I discussed the Vernor v. Autodesk case under the blog posting “Does Copyright Law Prohibit the Sale of Used Software on eBay?”.  After Autodesk got a few of Timothy Vernor’s auction listings for used copies of AUTOCAD bounced off of eBay, Vernor filed a lawsuit asking for a declaratory judgment that his sale of the used software was legal.

Rather than backing down, Autodesk asked for a dismissal of Vernor’s lawsuit or for a summary judgment ruling in its favor. The court refused Autodesk’s request. After doing numerous somersaults and back flips through diverging case law precedent, a federal court in the state of Washington decided that Autodesk had sold rather than licensed copies of AUTOCAD to a Seattle architecture firm.  The Seattle architecture firm subsequently sold the copies to Vernor. As a result, the first sale doctrine applies to the AUTOCAD copies and Vernor’s sale of the used AUTOCAD software on eBay is not copyright infringement.

I wish I could stop my blog entry right here and tell you that the court's ruling is the end of the story.  But that would make life too easy.  So I continue . . .

Executive Action

A Guide Through the Legal Jungle Trivia Question

Which acquaintance of former President Bill Clinton sued unsuccessfully for defamation after news of her alleged relationship with the then-governor surfaced in tabloid newspapers?

A. Monica Lewinsky
B.Gennifer Flowers
C. Paula Jones
D. Kathleen Willey
E. Zsa Zsa Gabor

Jamie Thomas, the RIAA, and Jury Instruction No. 15

I recently wrote about Jamie Thomas and the $222,000 judicial penalty against her for placing twenty-four copyrighted recordings on a peer-to-peer network.

As anticipated, Ms. Thomas has appealed the decision and it’s possible she may be granted a new trial.Thomas based her request for a new trial on the grounds that the amount of the jury award is excessive. However,the Minnesota District Court is considering granting a new trial on different grounds - that one of the jury instructions misstated the law. Jury Instruction No. 15 instructed the jury that making copyrighted recordings available for electronic distribution without permission on a peer-to-peer network is infringement - regardless of whether there is actual distribution of those recordings.

Two recent cases are motivating the court to re-think Jury Instruction No. 15. There is an 8th Circuit case, National Car Rental System, Inc. v. Computer Associates Int’l, Inc (8th Cir. 1993) that requires actual distribution before there is infringement. A District of Arizona case on which the music industry relied, Atlantic Recording Corp. v. Howell, has been vacated with the Arizona court now holding that making sound recordings available for distribution is not actionable under the Copyright Act unless there is actual distribution of the recording. Minnesota is in the 8th Circuit so the National Car Rental System case is binding on the Thomas court. The Arizona Atlantic Recording case is not binding.

The music industry’s and Thomas’ briefs arguing whether Jury Instruction No. 15 was in error are due on May 29, 2008, with reply briefs due on June 5, 2008. Oral argument on the issue takes place on July 1, 2008 at 10:00 a.m. in Courtroom 1, in the Federal Courthouse in Duluth, Minnesota. In its order,the Minnesota District Court encouraged interested parties to submit “friend of the court” briefs. Undoubtedly, a number of music and media-related groups will offer their opinion for the court to consider.

What Copyright Orphan Work Legislation Does and Does Not Do

The House and Senate are both considering versions of copyright orphan work legislation.

What’s an Orphan Work

Orphan works are copyrighted works whose owners are difficult or even impossible to locate. Producers frequently hit the brick wall of discovering that the music, photographs, text, or other creative content they wish to use is an orphan. Since there’s currently no free pass under copyright law for “really trying to find the copyright owner”, in orphan work situations, the producer has the options of

• using something else,
• trying to re-format the use so it qualifies as a fair use, and
• using the material anyway and facing the risk of a rights holder emerging and demanding a license fee or other remedy – with no requirement that the rights holder be “reasonable” in his/her demands.

Purpose of Orphan Work Legislation

The pending orphan work legislation would restrict the copyright owner to reasonable compensation for the producer’s use of the work. The legislation takes off the table the copyright owner’s eligibility for statutory fees that can go up to $150,000 and limits the availability of an injunction.

Master of Ceremonies

A Guide Through the Legal Jungle Trivia Question

Which famous professional athlete sued unsuccessfully for the reproduction of his/her image in a collage featuring past winners of a prestigious sporting event?

1. Michael Jordan
2. Barry Bonds
3. Tiger Woods
4. Mary Lou Retton
5. Joe Montana

Artist Litigates His Own Copyright Infringement Lawsuit

It’s nice to see the virtuous, hard-working underdog triumph.

Many creative people have their online materials used without their authorization. If a cease-and-desist letter or DMCA take-down notice doesn’t resolve the issue, a copyright infringement lawsuit may be the only remaining alternative. It’s an illusive alternative for many because the cost of litigation may be more than the damages that can be recovered from the infringer.

Stock photographer, Chris Gregerson, didn’t let the cost of litigation deter him. Gregerson represented himself in a copyright infringement lawsuit after discovering that Vilana Financial, Inc. had used his photo of the Minneapolis skyline in its telephone book advertisement. He later discovered that Vilana had also used the photo on additional print and web advertisements including in an advertisement in a Russian-language newspaper, and had used another of Gregerson’s photos in a promotional brochure.