Tony Falzone is the Deputy General Counsel at Pinterest, Inc.
The Center for Internet and Society at Stanford Law School is a leader in the study of the law and policy around the Internet and other emerging technologies.
A healthy copyright system must balance the need to provide strong economic incentives through exclusive rights with the need to protect important public interests like free speech and expression. Fair use is foundational to that balance. It's role is to prevent copyright from stifling the creativity it is supposed to foster, and from imposing other burdens that would inhibit rather than promote the creation and spread of knowledge and learning.
The Fair Use Project (FUP) was founded in 2006 to provide legal support to a range of projects designed to clarify, and extend, the boundaries of fair use in order to enhance creative freedom and protect important public rights. It is the only organization in the country dedicated specifically to providing free and comprehensive legal representation to authors, filmmakers, artists, musicians and other content creators who face unmerited copyright claims, or other improper restrictions on their expressive interests. The FUP has litigated important cases across the country, and in the Supreme Court of the United States, and worked with scores of filmmakers and other content creators to secure the unimpeded release of their work.
Tony Falzone is the Deputy General Counsel at Pinterest, Inc.
Brett Frischmann’s expertise is in intellectual property and internet law. After clerking for the Honorable Fred I. Parker of the U.S. Court of Appeals for the Second Circuit and practicing at Wilmer, Cutler & Pickering in Washington, DC, he joined the Loyola University Chicago law faculty in 2002. He has held visiting appointments at Cornell and Fordham.
Lauren is an experienced attorney, frequent speaker and start-up advisor who has worked in the field of Internet law and policy since 1995. She is the founder of BlurryEdge Strategies, a legal and strategy consulting firm located in San Francisco that advises technology companies and investors on cutting-edge legal issues.
This is the last of three posts on the Ninth Circuit’s decision in Mavrix v. LiveJournal. The first post considered the court’s conclusion that LiveJournal’s moderation and curation of user-submitted posts created a triable issue of fact on the question of the site’s eligibility for the section 512(c) safe harbor for sites that store material “at the direction” of users. The second post examined the court’s analysis of LiveJournal’s potential knowledge of the alleged infringements in light of the fact that Mavrix didn’t send takedown notices for them. This final entry takes a look at what I identified in the first post as issue (4): whether LiveJournal had the right and ability to control the infringements, as evidenced by the required “something more” than the right to remove or block access to user-submitted infringing material.
This is the second of three posts on the Ninth Circuit’s decision in Mavrix v. LiveJournal. The first post considered (and found fault with) the court’s conclusion that LiveJournal’s moderation and curation of user-submitted posts created a triable issue of fact on the question of the site’s eligibility for the section 512(c) safe harbor for sites that store material “at the direction” of users. This post will consider the court’s analysis of issue (3) of the six issues I called out in the first post: whether, in the absence of takedown notices, LiveJournal had actual or red flag knowledge that the watermarked Mavrix photos were infringing.
The Ninth Circuit has decided Mavrix Photographs v. LiveJournal, and the outcome is in every respect bad news for LiveJournal. In some respects, it’s also bad for the safe harbors themselves, as I’ll explain below and in subsequent posts. The district court in the case granted summary judgment for LiveJournal on grounds that there were no material factual disputes concerning LiveJournal’s eligibility for safe harbor under Section 512(c) of the DMCA. Mavrix alleged that LiveJournal infringed copyrights in its watermarked photographs. Users submitted the photos to LiveJournal along with celebrity gossip news items, and the site's moderators posted them following a fairly intensive screening process (including screening for copyright infringement). There was no question in the case that LiveJournal complied with the DMCA’s notice and takedown requirements when it received notices from right holders. However, Mavrix did not send notices for any of the photos in suit. LiveJournal removed the photos when Mavrix filed its complaint.
Amazon’s latest effort to mitigate IP infringement in its third-party seller program is a ban on the sale of streaming media devices (“Kodi boxes”) that promote piracy. In addition to banning sales of the devices, Amazon reserves the right to destroy any offending physical inventory in its warehouses. The new policy raises not-so-new questions about the ability of copyright holders to control the distribution of dual-use technologies that can (but needn’t necessarily) be used to infringe copyrights.
This is the third in a series of articles focusing on the experimental economics of intellectual property. In earlier work, we have experimentally studied the ways in which creators assign monetary value to the things that they create. That research has suggested that creators are subject to a systematic bias that leads them to overvalue their work.
Letter to Congress explaining that proposed copyright legislation would violate the First Amendment and be struck down in court.
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.
We filed an amicus brief on behalf of a group of library associations and others asking the Second Circuit to reverse a lower court’s injunction of the publication of 60 Years Later: Coming through the Rye an unauthorized story based on J.D. Salinger’s in Catcher In The Rye.
We filed an amicus brief in the Federal Circuit on behalf of the Warhol Foundation and Warhol Museum, contemporary artists and law professors in support of the U.S. Postal Service, urging affirmance of the district court’s finding of fair use.
We defended the publisher of the Harry Potter Lexicon against suit from J.K. Rowling and Warner Brothers.
Yoko Ono and EMI sued a documentary filmmaker for using a short clip from the John Lennon song “Imagine” as part of a critique of the lyrics of the song. We defended the filmmaker and successfully argued that the use of the copyrighted song was fair use.
"“There’s this perverse thing where sometimes the more obvious a thing is, the harder it is to prove it’s been awarded a patent improperly because it’s so obvious that no one would write it down so there’s no documentation,” said EFF staff attorney Daniel Nazer. “No one is going to write in a technical article, ‘hey it might be a good idea to reach out to people to pay for services,’ because that’s so obvious.”
"Annemarie Bridy, a University of Idaho law professor and affiliate scholar at Stanford University's Center for Internet and Society, co-wrote a law professors' amicus brief on behalf of YouTube Inc. in the Viacom v. YouTube case, which raised some similar issues. She says she has been following BMG v. Cox and that the court's decision on the DMCA safe harbor provision is the issue in the case that is most likely to have wider-reaching implications.
"Elon University School of Law professor David Levine is one of 42 law and technology experts to weigh in opposing a cyber-espionage act in Congress.
Levine is one of four writers of a 23-page letter to leaders of the House Judiciary Committee opposing the Defense of Trade Secrets Act.
"The Nov. 17 scholars' letter opposing DTSA was addressed to Senators Charles Grassley and Patrick Leahy, and U.S. Representatives Robert Goodlatte and John Conyers, Jr., the chairman and ranking members of Congressional committees with oversight over the legislation.
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The song “Happy Birthday” has a long, litigious history dating back to the 1930s. Every year, people spent millions in royalties to use the song, until a class action lawsuit was brought challenging whether the owner, Warner/Chappell Music, actually owned the copyright it so aggressively enforced. Elizabeth Townsend-Gard, Tulane School of Law professor specializing in copyright law, discusses the case of “Happy Birthday.”
CIS Affiliate Scholar David Levine interviews Prof. Andrea Matwyshyn of Northeastern University Law School, on the Digital Millennium Copyright Act (DMCA) and the Volkswagen fraud scandal.
Read or listen to the full interview at NPR.
NPR's Audie Cornish talks to Daniel Nazer of the Electronic Frontier Foundation about the impact of this ruling. An appeals court ruled the music used in the video was an instance of fair use.
AUDIE CORNISH, HOST:
When Stephanie Lenz saw her toddler jamming out in the kitchen to the Prince song "Let's Go Crazy," naturally she took a video and posted it to YouTube.
CIS Affiliate Scholar David Levine interviews Pedro Roffe of the International Centre for Trade and Sustainable Development and Prof. Xavier Seuba of the University of Strasbourg, co-editors of ACTA and the Plurilateral Enforcement Agenda.