Is Google Books Fair Use? We May Never Know.

Instead of battling it out in court, Google has agreed to pay $125 million to settle two copyright lawsuits by publishers and authors over Google Books. The deal will make millions of books searchable and printable online, although downloads of copyrighted material are going to cost you.

The settlements requires Google to obtain content owners' permission before publishing snippets for in-print books, although pages of text from out-of-print will still be available. Unfortunately for copyright scholars, this part of the settlement precludes a court decision about whether such snippets constitute "fair use"--a subject that has inspired a great deal of debate since Google Books launched in 2004 (see here for comments from the pro-fair use crowd (check out the video!), here for an argument that more legislation is needed in this area, and here and here for a more detailed analysis).

Here's the full story, including more details about the settlement. Google's press release about the deal can be found here.

Sony accuses Rev. Phelps of copyright violation for online video parody

This week, Sony/ATC Music Publishing in New York City wrote to Rev. Fred Phelps and his church group, known for picketing soldiers’ funerals across the nation, telling them to stop what it claimed was “unauthorized use” of the song “Holding Out for a Hero,” featured in the 1984 film “Footloose.” Sony accused Phelps and the Westboro Baptist Church of violating copyright laws with their online video parody, “There Are No Heroes.”

The video highlights the church’s controversial stance against homosexuality in connection with the belief that soldiers’ deaths in the Iraq and Afghanistan wars serve as God’s punishment for the U.S. tolerating homosexuality.

Fred Phelps’ daughter and the church’s attorney said the group will continue hosting its video of the song on its Web site. She maintains that Sony “said in their letter that it is a parody, but they lost their perspective. They hate these words. We said plainly there are no heroes and that is what the song is about. Under the fair use doctrine, this is proper for us to do.”

Phelps responded to the letter from Peter Brodsky, Sony’s executive vice president for business and legal affairs, this past Friday, claiming that Westboro’s use of the song is exempt from copyright laws because the video is a parody.

This is the second time in recent years that a music company has accused Phelps and his church of copyright infringement. Last year, Warner/Chappel Music Inc. in Los Angeles viewed the group’s parody of “God Hates the World,” to the tune of “We are the World” as a violation of its copyright.

Find this article in Business Week. Further details on this story and a link to the “There Are No Heroes” video can be found here.

Analysis: The Politics of IP Law

Apparently, politics and intellectual property are more related than I thought! Two articles this week discuss the role of YouTube in the presidential campaign.

A Wired article describes the problem of DMCA notices in the political context. The McCain campaign, which has seen several videos yanked from YouTube based on alleged DMCA violations, has asked the site to commit a full legal review of all take-down notices for content posted by political candidates and campaigns.

In the New York Times, Prof. Lawrence Lessig explains that the use of excerpts from debates and interviews should be considered fair use when employed to create political advertisements. Instead of relying on the existing nebulous fair use analysis, however, Lessig suggests that copyright law be revised to clearly exclude political content. Otherwise, Lessig says, free speech will be unjustly stifled. The editorial can be found here.

Background:

The Supreme Court has hinted that the fair use doctrine is necessary to reconcile the inherent tension between the Copyright Clause and the First Amendment. See Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985) (describing copyright law as "the engine of free expression"). This doctrine is particularly well-developed within the Second Circuit, which has explained that the role of the fair use doctrine is to balance "the public interest in the free flow of ideas with the copyright holder’s interest in the exclusive use of his work.” Warner Bros., Inc., v. Amer. B’casting Co., Inc., 720 F.2d 231, 242 (2d Cir. 1983). Thus, where matters of public interest are concerned, courts have held that the importance of the public’s right to full information may outweigh the content owner’s profit interest. See, e.g., Time, Inc. v. Bernard Geis Asscs., 293 F. Supp. 130 (S.D.N.Y. 1968) (holding the reprint of video stills from President Kennedy’s assassination to be fair use).

The notion of fair use has often come into conflict with the Digital Millennium Copyright Act (DMCA), passed in 1998 to prevent copyright infringement on the Internet. The DMCA set up a notice-and-takedown system, requiring those who believed their rights were infringed to notify a website. So long as the site removes the offending content, it avoids liability. In order to have their content allowed back on the site, posters must affirmatively challenge the DMCA claim. Because this encourages sites to remove content first and ask questions later, this system has been subject to criticism on First Amendment grounds (see the EFF's site for more).

Political advertisements fall in an interesting area of First Amendment doctrine. In general, political speech receives the highest degree of First Amendment protection, because it is at the core of a democratic society. Commercial speech, however, may be subject to greater restrictions. In its most recent decision dealing with campaign advertisements paid for by third parties, the Supreme Court declared, "Where the First Amendment is implicated, the tie goes to the speaker, not the censor." See FEC v. Wisconsin Right to Life, 551 U.S. __ (2007).

Analysis:

Although the removal of political advertisements mid-campaign is troubling, there is an easy solution to the McCain campaign's soundtrack problem--buy a license to use the songs! We have a mandatory licensing scheme for music in the U.S., and those who wish to use the creative works of others should pay them for it. Moreover, a use will not be "fair" when it affects the licensing market for a work, which unfettered access to the works of others may well do. It is one thing when a creator makes a mashup for fun and posts it on YouTube, but here we are dealing with presidential campaigns that have millions of dollars to spend. Licensing fees tend to be quite reasonable, so is it really too much to ask campaigns to pay them? Feel free to disagree with me the comments.

The use of debate clips and interviews is more problematic. Although most courts would find it to be fair use, the DMCA system allows websites--not courts--to make the initial call. Websites have every incentive to err on the side of caution, and remove the content from their sites. For this narrow use, I believe Lessig's suggestion is an important one to consider.

No You Can't: Obama Campaign Sued for Trademark Infringement (but not really)

Generally, politics and IP law don't come into contact much, but this story was too fun to ignore. According to a humor column in New Jersey's Politicker, the phrase "yes we can" is trademarked by the National Center for Home Food Preservation and Canning, a D.C. lobbying group. (Get it?) A protest rally against the campaign's alleged trademark infringement drew a whopping 35 people. Asked about the lawsuit, a canning executive stated, "That slogan is known all over the country for just one thing: canning.”

Although not a real claim, we thought it would be interesting to give it a brief analysis. Since no consumer would reasonably believe Obama has entered the canning industry, presumably the claim here would be one of dilution. Under the Trademark Dilution Revision Act of 2006, the NCHFPC need only show that the campaign's use of the phrase is likely to cause dilution. However, they must also demonstrate that their use of the phrase is "famous" and "distinctive." Canning executives' claims aside, the "plaintiffs" here would be unlikely to meet this burden.

The full story can be accessed here.

Penn Law Review Seeks IP-Related Submissions

The University of Pennsylvania Law Review is seeking essay submissions advancing a legal argument related to the 2008-2009 symposium topic, "Foundations of Intellectual Property Reform." The symposium will explore possible reforms, innovations, and impending issues in patent, copyright, and trademark law.

The winning paper will be published in the University of Pennsylvania Law Review’s Symposium Issue in Spring 2009, and the author will be invited to attend the conference in Philadelphia on January 16-17, 2009.

For more information, following this link.

Prof. Lessig Praises Amateur Remixing

In an essay for the Wall Street Journal Online, Prof. Lawrence Lessig of Stanford Law condemns copyright owners for pursuing legal action against amateur creators. He urges several changes in the law, including the deregulation of the "amateur remix" and the de-criminalization of peer-to-peer file sharing. The full article can be read here.

The essay is excerpted from Lessig's book "Remix," which will was released yesterday.

Welcome Back!

The Penn Intellectual Property Group (PIPG) develops and promotes intellectual property programs within the Penn Law and greater Philadelphia community. Among its activities, PIPG has hosted panels on topics including IP Careers, Biotechnology, and Arts and Entertainment. Last year, we organized a symposium on copyright and technology that brought prominent legal scholars and representatives of Google, Viacom, Comcast, and Sony, among others (see posts below).

This year, we hope to be even stronger by creating additional on-campus programs and developing this blog as a resource for current developments in IP law. If you are interested in serving as a contributor to this blog, or in helping with our activities in any way, please contact Karen Chesley at karenac@law.upenn.edu.

More information about the club will be provided at our introductory meeting on Wednesday, October 15, 2008, in room G-213 at noon. Pizza will be served.