Tony Falzone is the Deputy General Counsel at Pinterest, Inc.
Prior to joining Pinterest, Tony co-founded CIS’s Fair Use Project, which he led as its Executive Director from 2006 to 2012. In the course of his work at CIS, Tony represented conductor Lawrence Golan in his challenge to Congress's constitutional power to remove works from the public domain, which he argued before the Supreme Court of the United States. He also represented visual artist Shepard Fairey in copyright litigation against The Associated Press over Fairey's "Obama Hope" posters, and represented RDR Books as trial counsel in its copyright and Lanham Act dispute with J.K. Rowling and Warner Brothers over the Harry Potter Lexicon. Those cases followed notable victories on behalf of the producers and distributors of the film Expelled: No Intelligence Allowed in litigation against Yoko Ono Lennon and EMI Records, on behalf of Professor Carol Shloss in her lawsuit against the Estate of James Joyce. Tony also represented a wide array of organizations as amicus curiae in federal appeals courts throughout the country, including The Andy Warhol Foundation for the Visual Arts, Creative Commons, and the American Library Association. In addition to litigating, Tony advised dozens of documentary filmmakers, writers, artists and other content creators on fair use and other intellectual property issues.
As a Lecturer in Law, Tony has taught both lecture and clinical courses at Stanford Law School, including Fair Use in Film, Advanced Topics in Cyberlaw, and the Cyberlaw / Fair Use Clinic.
Prior to his work at Stanford, Tony was a litigation partner in the San Francisco office of Bingham McCutchen. He is a 1997 graduate of Harvard Law School, and was a law clerk to the Hon. Barry T. Moskowitz, U.S. District Judge, Southern District of California.
The long saga of Professor Carol Shloss's dispute with the Estate of James Joyce over her right to use copyrighted source materials in connection with her biography of Lucia Joyce has come to a remarkable end: Last May, the Court ordered the Estate to pay more than $326,000 in attorneys' fees. After initially appealing that decision to the Ninth Circuit, the Estate thought better of it and agreed to pay $240,000 in fees to resolve the matter once and for all.
This lawsuit represented the culmination of more than ten years of threats and intimidation by Stephen James Joyce, who purported to prohibit Professor Shloss from quoting from anything that James or Lucia Joyce ever wrote for any purpose. As a result of these threats, significant portions of source material were deleted from Shloss's book, Lucia Joyce: To Dance In The Wake. Roughly a year into the lawsuit, the Estate agreed to settle the case on terms that permit the publication of the material that was deleted. But Shloss also demanded the Estate pay attorneys' fees to compensate her counsel for the many hours they put in vindicating her rights in the face of the Estate's assertions of infringement. With this payment, much of that cost has been recouped.
The key here is to realize there are solutions to problems like the one Carol Shloss faced other than simple capitulation. The risks and costs of standing up for important rights like hers may be significant, but they can be managed. The playing field can be leveled and the tables can be turned. I hope this fact is impressed not only on other scholars, but also on the institutions that need to support them when they are faced with threats like these, as well as lawyers who are in a position to donate their time to help.
I hope what we accomplished here becomes a model for dealing with problems like the one Carol faced, whether my organization is involved or not. Whether that happens or not, I'm proud of Carol for standing her ground, proud of what we accomplished with her, and proud to have worked with the fantastic team of lawyers that got us here.
There is a fascinating debate raging about who owns the news -- or more precisely, who owns which parts of a news story. The AP kicked it off in earnest last April when Chairman Dean Singleton channeled his inner Howard Beale and announced the AP would no longer "stand by and watch others walk off with our work . . . . We are mad as hell, and we are not going to take it any more." Just a few days ago, the Nieman Journalism Lab at Harvard posted a confidential AP document outlining an aggressive online strategy, which led Reuters blogger Felix Salmon to rail against the AP's "be-evil" policy. The AP and other traditional news organizations, on the other hand, have suggested that nothing less than the future of journalism is at stake here, because journalism can't survive if everyone is free to "steal" content.
So far this debate has played out largely in generalities and hypotheticals, but a recent complaint from Washington Post writer Ian Shapira helps focus us on some of the specifics. Last month, Shapira wrote an article about business coach Anne Loehr, who charges clients big bucks to help them understand the "millennial generation." The same day, Gawker ran its own take on Loehr's business. The headline: "'Generational Consultant' Holds America's Fakest Job." Gawker went on to use lots of quotes from Loehr that ran in Shapira's article to skewer her in precisely the way the headline suggests, but used little else from Shapira's article.
Shapira was "flattered." Then his editor wrote him back and said: "They stole your story. Where's your outrage, man?"
Flattery quickly turned into disenchantment and a long complaint from Shapira that ran in the Post under the headline "The Death of Journalism (Gawker Edition)." In it, Shapira worried about the profitability of newspapers, the future of journalism and other issues of legitimate concern. His basic complaint was simple: he busted his hump to interview Loehr and get the quotes Gawker used for free.
And that's the interesting part. What Gawker took were for the most part Loehr's words, not Shapira's. Gawker found a news story, and decided it had something to say about it, humorous as it was. It used Loehr's quotes to mock her. Shapira worked hard to chase down the facts he reported. But they were just facts.
So who owns those facts? That's the real question raised by Shapira's complaint, and by the repeated demands by the AP and others to extend legal protection for news stories, whether through expanded copyright protection or reinvigorated unfair competition rules.
When you hear these demands, it's important to remember news stories are already protected by copyright, which protects all of the story's original expression -- the way it reports the facts. But copyright does not give reporters or news organizations any rights in the facts themselves, no matter how hard they work to uncover those facts. So as news organizations like the AP demand greater and greater legal protection, it's the facts they're going after. It has to be. They own the expression. The facts are really all that's left.
This is where the alarm bells should go off. Journalists and news organizations do play a critical role in building an informed and democratic society. They are entitled to protect the product of their hard work. But the facts they report are not theirs. They are the product of human activity. They represent knowledge itself. They don't belong to anybody, and shouldn't.
In the rush to save newspapers, we can't give away the news itself. If that's what Shapira, the AP, or anyone else wants, then then they're stealing from all of us. So where's the outrage, man?
About a month ago, a New York District Court issued an order prohibiting the U.S. publication of 60 Years Later - Coming Through The Rye on the ground it represented a likely infringement of JD Salinger's copyrights in Catcher In The Rye. That decision has been appealed to the Second Circuit Court of Appeals, which is reviewing the case on an expedited basis. An injunction banning a book is a big deal.
We filed an amicus brief today in Gaylord v. U.S., a potentially important but little-noticed fair use case on appeal in the Federal Circuit. We filed it on behalf of the Andy Warhol Foundation, and several other amici, including the Warhol Museum, contemporary artists Barbara Kruger, Thomas Lawson, Jonathan Monk, and Allen Ruppersberg, and a variety of law professors who care about the extent to which copyright promotes and protects free expression. One of the important questions the case presents is whether this stamp makes fair use of the statue that appears in it.
Last Summer, the Center for Social Media released the Code of Best Practices in Fair Use for Online Video, a first of its kind document—coordinated by American University professors Pat Aufderheide and Peter Jaszi—outlining what constitutes fair use in online video. (I was a member of the committee that drafted the Best Practices.) In collaboration with the Fair Use Project, the Center has now released a fantastic video that helps explain the Best Practices and how to put them to work -- Remix Culture: Fair Use Is Your Friend. Read more and see the video here. Additional thanks to Google for funding the production.
We filed an amicus brief in the Second Circuit on behalf of The Andy Warhol Foundation for the Visual Arts urging the appeals court to reverse a district court decision that ignored established fair use principles that many artists rely upon in creating their work.
The FUP filed this suit on behalf of a University of Denver conductor and others, challenging Congress’s restoration of copyright to works that had entered the public domain.
We filed an amicus brief on behalf of the Electronic Frontier Foundation asking the First Circuit to affirm the district court’s reduced damages award in Sony v. Tenenbaum, a file-sharing case in which a jury originally ordered a college student to pay $675,000 for infringing copyright in 30 songs.
We filed an amicus brief in the Third Circuit on behalf of Brave New Films urging affirmance of the district court’s finding of fair use and rejection of plaintiff’s DMCA claims.
We filed an amicus brief in the Fourth Circuit in support of the Baltimore Ravens and the NFL urging the Fourth Circuit to grant rehearing or rehearing en banc, after a divided panel ruled that the Raven’s incidental use of a copyrighted logo in historical game films was not a fair use.
This Article consists of some general observations and a few examples that illustrate them. First, technology can benefit tremendously from government involvement. Regulation may be part of that involvement, but thinking just in terms of regu‐ lation obscures some important points. When people talk about regulating technology, they usually assume technology is a private good, and the question becomes whether—and how— the government should regulate private property. This ob‐ scures the truth that technology is frequently a product of pub‐ lic and private collaboration.
The first part of this article outlined the mechanics of the Megaupload website, and the novel questions of criminal inducement on which the government's indictment is premised. Here, we explore two more extensions of existing law on which the indictment is based, and the impact this prosecution is likely to have on Internet innovators and users alike.
Days after anti-piracy legislation stalled in Congress, the U.S. Department of Justice coordinated an unprecedented raid on the Hong Kong-based website Megaupload.com. New Zealand law enforcement agents swooped in by helicopter to arrest founder Kim Dotcom at his home outside of Auckland, and seized millions of dollars worth of art, vehicles and real estate. Six other Megaupload employees were also arrested. Meanwhile, the Justice Department seized Megaupload's domain names and the data of at least 50 million users worldwide.
Amicus brief filed in the Second Circuit on behalf of The Andy Warhol Foundation for the Visual Arts urging the appeals court to reverse a district court decision that ignored established fair use principles that many artists rely upon in creating their work.
Supreme Court Reply Brief filed by Petitioners.
For the originator of a meme, legal protections are slim, and that’s the way it should be, says copyright attorney Anthony Falzone, executive director of the Fair Use Project at Stanford Law School. “If you’re the first person to do the video S- -t Girls Say, that doesn’t mean someone else can’t use the same idea with girls saying different stuff,” he says. “Just because you’re the first one to do something doesn’t mean you should be the only one to get to do it.”
Read the full publication at the original link below.
Anthony Falzone, Executive Director of the Fair Use Project, along with Larry Kramer, Mark Lemley, Richard Epstein, Peter Thiel and Ted Ullyot in the Federalist Society's panel "Effect of Regulation on Technology & Innovation.
Mid-winter meeting hosted by the Copyright Society. Six California-based associations promoting copyright law education and understanding are invited.
Anthony Falzone, Executive Director of the Fair Use Project, is par tof the panel: How Public is the Public Domain
Learn about the Center for Internet and Society. Come meet CIS and hear about our exciting work and ways to get involved. Learn about the Fair Use Project, Consumer Privacy Project, and more. Lunch will be provided. RSVP for this free event today.
Updated April 27, 2011Check out photos from the Joseph Gordon-Levitt talk.
hitRECORD.org is a project Joseph Gordon-Levitt started almost five years ago. They have evolved into a professional open production company that creates and develops art and media collaboratively. Rather than just exhibiting and admiring each other's work as isolated individuals, they invite users to gather and collectively work on projects together.
Anthony Falzone and Mark Schultz will debate whether significant developments in U.S. copyright law protects or violates individual freedom. Falzone, Executive Director of the Fair Use Project and a Lecturer in Law at Stanford Law School, will evaluate the affects of copyright law on freedom of expression, while Prof. Schultz will assess the affects of copyright law on the liberty of IP creators and owners. Professor Paul Goldstein will moderate. Professor Paul Goldstein will moderate. Lunch will be served. Hosted by the Stanford Federalist Society
Copyright, Remix and the Art of Collaborative Media: A conversation with Joseph Gordon-Levitt and Anthony Falzone
Stanford Law School - April 25, 2011
Hosted by the Center for Internet and Society
Copyright, Remix and the Art of Collaborative Media: A conversation with Joseph Gordon-Levitt and Anthony Falzone. hitRECORD.org is a project Joseph Gordon-Levitt started almost five years ago. It has evolved into a professional open production company that creates and develops art and media collaboratively. Rather than just exhibiting and admiring each other's work as isolated individuals, they invite users to gather and collectively work on projects together.