Anthony Falzone's blog

Recut, Reframe, Recycle

Pat Aufderheide, Peter Jaszi and their colleagues at American University's Center for Social Media have released a fantastic new study on creativity on the web -- and the threat that overly-aggressive copyright enforcement and so-called "anti-piracy" software pose to free speech.

Read the full study here, and view a slew of videos that represent the creativity that digital media has unleashed.

Defending The Lexicon

Yes, it's true. As Zohar Efroni reported, the Fair Use Project has signed on as co-counsel representing RDR Books in its litigation against J.K. Rowling and Warner Brothers. The case concerns the HP Lexicon, a Harry Potter reference guide that has existed on the web for a long time, and has become the authoritative guide to the people, places and things of the Harry Potter universe. Upon learning that RDR Books planned to publish a printed version of the Lexicon, Rowling and Warner Brothers filed suit, alleging copyright and trademark infringement, and seeking to permanently enjoin the publication of the HP Lexicon in printed form. Read a copy of the complaint here. More in the new year, as we file our opposition to Rowling's motion for preliminary injunction. In the meantime, view the online version of the Lexicon (which Rowling herself honored with a fansite award) here.

Doing God's Work

Here is a very nice plug for CIS from one of the most respected and accomplished copyright lawyers around -- Bill Patry. In it, he notes my recent article about Sean Combs in Slate, and reminds us that Combs was also at the center of another copyright controversy about controlled composition clauses. Thanks, Bill, for the kind words.

Why, Diddy? Why?

Music sampling has suffered a strange fate at the hands of copyright law. It should fare well under the fair use doctrine. In general, it's very transformative, uses small amounts of the copyrighted work, and there exists little possibility that the new work would serve as any plausible substitute for the old. Yet there are precious few cases that even address the application of fair use to music sampling.

I'm afraid much of this is due to the refusal of music publishers, record labels -- and even artists -- to raise the defense in the first place. A case in point: The Sixth Circuit's recent decision in Bridgeport Music v. Justin Combs Publishing, which affirmed copyright infringement liability against the defendants, including Bad Boy Records, the label founded and still headed by CEO Sean "Diddy" Combs. (The opinion also reversed an absurd punitive damage award. Read a full copy of the decision here.)

Fair Use And Free Speech

All too often, copyright is viewed in strcitly economic terms, as if it does no more than determine who pays what to whom, and when. In his editorial in today's LA Times, Kembrew McLeod reminds us that copyright enforcement and the scope of fair use rights also have profound free speech implications. Read it here.

Victory In The 10th Circuit: What Enters The Public Domain Stays In The Public Domain

The Tenth Circuit handed us a momentous victory today, holding that the Uruguay Round Agreements Act ("URAA") altered the "traditional contours of copyright protection" by resurrecting copyright protection for works that had fallen into the public domain, thus contravening the "bedrock principle of copyright law that works in the public domain remain in the public domain."

While this decision does not invalidate the URAA, it does hold that the URAA must pass either strict or intermediate First Amendment scrutiny on remand.

Read the full decision here.

Manda Bala's Theatrical Debut

It didn't take long for Director / Producer Jason Kohn to find success. His very first film, Manda Bala, won both the Grand Jury Prize and top honors for cinematography at Sundance this year. It's a superbly-composed and riveting look at kidnapping and corruption in Brazil.

Manda Bala makes its theatrical debut this Friday, August 17 at the Angelika Film Center in New York, with nationwide release to follow this Fall. Details here. We are proud to have helped Jason on this film, and thrilled that you can now experience it too. More about the film here.

The Outsider To Premiere On Showtime

With assistance from the Fair Use Project, Nicholas Jarecki's wonderful examination of director James Toback and his work is premiering August 9 on Showtime. Featuring, a behind-the-scenes look at Toback at work, interviews with loads of celebrities from Woody Allen to Robert Downey Jr. to Harvey Keitel to Mike Tyson, and an examination of the unexpected autobiographical elements of Toback's work, The Outsider presents a captivating portrait of an immensely talented filmmaker. Don't miss it!

The L.A. Times Opines On Shloss v. Joyce Estate

Here is an editorial from today's L.A. Times, entitled Portrait of the Old Man as a Copyright Miser: How a Lawsuit About Some Old Books and Letters Sheds Light on 21st Century I.P. Madness.

To quote Tim Cavanaugh, its author:

"New works alter, and deepen, our understanding of their sources. This is something for copyright holders to keep in mind in the era of infinite mashups and YouTube parodies. The love of a creative work is like any other kind of love: If you try too hard to control it, it can only die."

As one of Shloss's very proud lawyers, I couldn't have said it better myself.

Virtual Property, Real Litigation: Second Life Cannot Prevent User From Suing In Court

A Pensylvania federal court has held that Second Life's user agreement cannot be enforced insofar as it requires arbitration of claims alleging that Linden Research wrongfully confiscated a user's virtual property.

A Pennsylvania user sued Linden Research and its CEO, asserting that Linden wrongfully conifscated proprty the user bought in an auction that Linden later declared invalid. Linden argued that the user could not pursue those claims in court, and instead had to pursue them before an arbitration panel in San Francisco, as required by Second Life's terms of use. The court held those terms of use were unconscionable and could not be enforced insofar as they required the user to give up his right to pursue his claims in court.

Read the entire order here.

Another Victory For Carol Shloss

Most who have followed Professor Carol Shloss's lawsuit against the Estate of James Joyce and its Trustees know she prevailed completely when the Estate agreed to let her publish the materials at issue free from copyright infringement liability. Now the Court has confirmed what we all knew to be true. In an order issued today, the Court held that Shloss is the prevailing party in her lawsuit and is therefore entitled to recover attorneys' fees from the Estate. Read the order here.

The amount of fees to be awarded is still to be determined, but we hope this demonstrates that inadequate respect for fair use's critical role in scholarly inquiry and free expression can have substantial and serious consequences.

The Two Faces Of Perfect 10 v. Google

The Ninth Circuit has issued its long-awaited opinion in Google v. Perfect 10. Read the decision here. My initial take is that it's a mixed bag. On one hand, it's great for fair use, and recognizes the profound public benefit of search technology. On the other hand, it imposes an ill-considered and difficult-to-apply rule for secondary liability.

Victory for BT!

After a very long saga, BT has been vindicated in his fight againt New York Musician Ralph Vargas and Vargas's producer, Bland-Ricky Roberts, who together alleged that BT copied a drumbeat from Vargas's album. Today, the Court held Vargas and Roberts presented no credible evidence that BT had done so, granted summary judgment in BT's favor, and dismissed the case in its entirety.

Read the decision here.

This case is about much more than whether one artist copied a particular drumbeat from another. Basic drumbeats and rythm patterns should not be subject to copyright protection at all. If one musician can sue another and impose hundreds of thousands of dollars in legal costs just because one short drumbeat happens to sound a bit like another, that threatens creative freedom in a profound way. We hope this discourages Vargas and others from pursuing spurious claims like this.

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