Cases You Should Know

Commercial Movie Claims 15 Second Clip is Fair Use
Lennon v. Premise Media Corp., 556 F.Supp.2d 310 (S.D.N.Y., 2008).

For many years religion and science have battled in the class room and the courts. Now one movie has taken the battle to the silver screen. "Expelled" was a 2008 documentary narrated by Ben Stein and produced by Premise Media Corp. The movie addressed the ongoing difficulty that various scientists have when attempting to practice their faith alongside their field of study. At one point in the movie, several speakers express negative views of religion and advocate for religion's diminished role in society. The producers of the documentary criticize this view as "merely lifting a page out of John Lennon's songbook," and then follow up with 15 seconds of the song "Imagine" written by John Lennon. While the song is played, subtitles display the lyrics, "Nothing to kill or die for/ And no religion too." Behind the subtitles are images of black and white footage, ranging from children frolicking to a military parade, and then a close up of former Soviet Ruler, Joseph Stalin. No license was obtained for the commercial use of this excerpt, but licenses were secured for all the other music used in the movie.

Yoko Ono Lennon, and her sons, Julian and Sean Lennon, sought to enforce John Lennon's copyright by requesting issuance of a preliminary injunction by the federal court in the Southern District of New York. The court, however, ruled that the defendant’s were likely to prevail on their affirmative defense of “fair use.”

Fair use is a fact based inquiry. The court took into account that the original song was three minutes long, but the excerpt was only 15 seconds long. But the plaintiffs point out rightly that that excerpt was the hook of the original song, and therefore had greater value and impact. The court, however, found that the use was a form of criticism, and the use was transformative. The court also concluded that the transformative use would not usurp the market for licensing of the original song. The case was ultimately settled, but the decision of the court is a very troubling expansion of fair use. Writers and publishers must by wary of this type of analysis that may be a form of political speech, yet seeks protection as a transformative work.

U.S. Courts Split on the "Making Available" Right
Elektra Entertainment Group, Inc. v. Santangelo and Capitol Records Inc. v. Thomas

In 2005 the RIAA filed a copyright infringement suit against Patti Santangelo based on evidence gathered by MediaSentry. This evidence consisted of screenshots, a list of files in a Kazaa shared folder, and an IP address which an Internet Service Provider identified as Santangelo's at the time of the infringement. Santangelo denied sharing files herself, but her son, Robert, and teenage daughter, Michelle, were implicated in discovery. While the RIAA eventually dropped the case against Patti Santangelo, it did file suit against Robert and Michelle. In both cases, whether "making available" constitutes copyright infringement became a pivotal issue. In terms of file-sharing, the "making available" issue arises due to evidentiary difficulties. A file-sharer joins a p2p network, and the RIAA's representative (in this case MediaSentry) would also log onto the same network. The representative would search for music created by one of the member record labels, and find numerous computers sharing those files. Then, the representative would log the IP address of those computers sharing the files, and even download a copy of the files to verify that the songs were created by one of the member record labels. In the subsequent litigation, the defendants in these suits then claim that no infringement has been proven with that evidence. After all, the RIAA instructed its own agent to make the copy, and so evidence shows only that an authorized copy was made and that someone had made these songs available. Additionally, the defendants typically argue that even if "making available" constitutes copyright infringement, the IP address evidence alone fails to identify even a computer, nevermind an actual person.

These two issues were further developed when the RIAA pursued Jammie Thomas in a similar Kazaa related incident. In this case, the issue of whether Jammie Thomas herself was the one sharing the files was much less disputable. When logging into the Kazaa network, a file-sharer can choose a username for identification, and the RIAA's evidence showed that the file-sharer had chosen the username "Terrastar" -- the same username Jammie Thomas had used for many other online services. At trial, one of the jury instructions allowed for liability if the jury found merely that the copyrighted works were made available by Thomas. The jury returned a verdict in favor of the RIAA for $222,000. Even though Thomas had reportedly shared over 1700 songs, the case only covered 24 songs. Subsequently, Thomas moved for a new trial, arguing that the "making available" jury instruction was erroneous, and that actual unauthorized copying should have to be proven for infringement liability. The judge ordered a new trial after finding that the courts are split on whether a "making available" right exists, and decided that such a right does not exist yet in the United States.

The National Music Publishers Association supports a "making available" right, to put U.S. law on par with international copyright law which generally includes a "making available" right.

Court Finds 1.2 Second Buffer Copy Does Not Constitute Infringement
Cartoon Network LP v. CSC Holdings, Inc. and Cablevision Systems Corp., reversing Twentieth Century Fox v. Cablevision Systems Corp.

Digital video recorders are now in millions of U.S. homes, put there by cable and satellite companies and independent tech companies like Tivo. In seeking to reduce the cost of deploying this new technology, one cable provider named Cablevision developed a DVR that would store the recorded video not in a box in a consumer's entertainment center, but in a remote facility where the company could purchase mass storage for rock bottom prices. The obvious way to do this was to store video created by television and movie studios, and then serve it out to customers on demand. However, in reviewing prior case law on public performances, Cablevision realized that they would expose themselves to copyright liability if they just made a single copy and served it up to all of their subscribers. So instead, each Cablevision subscriber had their own apportionment of storage at the Cablevision facility. In the process of storing and delivering the content to subscribers, entire copies of the video were streamed through a buffer, but only for at most, 1.2 seconds. The studios then sued Cablevision for direct infringement. Prior courts investigating buffer and cache copy disputes often found infringement liability, but on occasion did not, based on a number of factors. However, no court had stepped as far as the Second Circuit of Appeals did. The court held that copies up to 1.2 seconds were "transitory," or in other words, too short, and thus, they could not be infringing. With this hard and fast limit, tech companies are encouraged to merely use faster hardware to evade copyright liability.

The studios have requested an appeal before the Supreme Court of the United States, although the Supreme Court is waiting on a brief from the Solicitor General's office before granting or denying that request. The National Music Publishers Association supports a reversal of this case.

Reproducing 30 Second Clips of Music is Not Fair Use
U.S. v. American Society of Composers, Authors, and Publishers, --- F.Supp.2d ----, 2009 WL 484449 (S.D.N.Y.,2009).

Ringtones have recently become a fashion statement as consumers want to have the latest and greatest hits play as their friends and family call them. Additionally where callers used to hear the sound of a phone ringing as they waited for someone to pick up, ringback tones can instead play a song. AT&T set up online and mobile stores to sell ringtones and ringback tones, but they included the ability to preview these songs without seeking appropriate licensing to commercially use these tracks. The American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI) both came to the defense of the artists by arguing that this usage is completely commercial and exists to increase AT&T's sales. In these storefronts, AT&T promoted other products alongside the work of musicians. ASCAP also pointed out that dozens of other organizations already license these same exact previews, and that AT&T merely did not want to compensate artists in ways that everyone else already does.

In a classic fair use analysis, a New York court stood by the artists, realizing that this usage was merely to facilitate the sales of AT&T's own products. The court acknowledged the creative energies it takes to produce our industry's music, and that AT&T's usage typically exploited the melody or chorus, which is often the most interesting and entertaining portion a song. Finally, the court acknowledged that it is customary in the music industry to compensate the artists, publishers, for the right to play these previews, and because this market exists, this kind of unlicensed use really is not fair to artists. The National Music Publishers Association appreciates the efforts of ASCAP and BMI to protect the core of our industry -- the artists.

Courts Continue to Immunize Video Websites Using ISP Safe Harbors
Io Group Inc. v. Veoh Networks, Inc., and UMG Recordings, Inc v. Veoh Networks Inc.

Veoh is a video hosting website much like Youtube that allows its users to upload videos to share with the rest of the visitors to the site. Universal Music Group is a record label that promotes and services artists, while Io Group is a pornography studio. Users of these video sites constantly upload content created by Universal, Io, and many other artists and organizations that assist in the promotion of artists. Universal, and Io send takedown notices to the video sites, and the video is taken down. Sometimes in minutes, the same video is reposted elsewhere on the site. More takedown notices are sent, more videos are taken down, only to be unlawfully reposted again. Finally, Io and Universal got tired of playing whack-a-mole with these unauthorized video uploads, and filed their own lawsuits against Veoh.

In Io's case, the court ruled that Veoh complied with the requirements of hosting immunity as set forth by the Digital Millenium Copyright Act. Veoh had a ban on pornographic content, and users uploading such content would have their accounts terminated. The court ruled that this process for handling infringers was sufficient to grant the site immunity from copyright infringement when hosting content uploaded by users of the site. Universal's litigation against Veoh is currently ongoing. Universal found out that upon uploading a copy of a video, Veoh automatically makes multiple copies of this video in different formats for storage and delivery purposes. Universal argued that hosting immunity only applies to the copy that the user uploads, not the others created by Veoh. The court ruled that these copies are made at the direction of the user, not Veoh.