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March Madness


March Madness applies not only to the basketball court – but to the court of law as well, as we have seen this month. It has been nearly a month since I last wrote a post – and much has happened since then with respect to copyright law. I apologize for my tardiness in giving these significant events due attention. But my own month of March has been marked by “madness” – including three conference/workshop presentations and, more significantly, preparations for a move across country for a new job as scholarly communications librarian at the University of Florida.

So let’s review what has happened during this very busy March:

Righthaven Lawsuits:  Fair Use – 1, Trolls – 0

Righthaven LLC, organized in 2010 upon acceptance of assignment of copyright ownership in the content of the Las Vegas Review-Journal and other media outlets, has filed over 250 lawsuits against bloggers, web sites, journalists and others for copyright infringement. Prospective defendants are identified through a tactic referred to as “trolling,” whereby Righthaven allegedly searches the Internet for use of content and then seeks assignment of copyright and sues for infringement. Many of the lawsuits stem from the copying of a single image or the quoting of a sentence or two of copyrighted content.  However, in one lawsuit, Righthaven claimed a non-profit immigrant rights organization committed infringement when it republished the full text of a Review-Journal article on immigration. That lawsuit came to a conclusion this month after a trial judge ruled that the use by the NPO was in fact a fair use. Upon reviewing the four factors of fair use, the judge determined that there was no effect upon the market (Factor Four). Righthaven did not assert any effect upon the Review-Journal’s ability to report the news; rather, the copyright was relied upon solely as a basis for the lawsuit. Further, there was essentially no overlap between the NPO’s audience and that of the newspaper.  Finally, the use of the article was for informational purposes and fit squarely within the NPO’s educational mission (Factor One). For a complete history of the Righthaven lawsuits, visit http://www.righthavenlawsuits.com/.

Full Court Press: Second Motion to Dismiss Filed in AIME v. UCLA

Following the filing of UCLA’s motion to dismiss in the copyright infringement action against it in January, plaintiff AIME amended its complaint. The amended complaint alleges additional facts in an attempt to support the initial and added claims against a now expanded list of defendants. A second motion to dismiss was filed by the UCLA defendants this month. In this motion, much like the first, UCLA renews its claim to immunity under the Eleventh Amendment. UCLA challenges AIME’s contention in the amended complaint that immunity was waived by the University’s assent to the license agreement. And, as previously discussed here, the contract vs. copyright claims remain to be at issue in the amended complaint and follow-up motion to dismiss. This case continues to be one to watch.

Review by the Ref: Certiorari Granted in Golan v. Holder

In 1994, in an attempt to bring federal law into compliance with the Berne Convention, Congress enacted legislation, under authority of the “Copyright Clause,” extending copyright protection to thousands of foreign works that were still considered copyrighted in their countries of origin) but had long been considered part of the U.S. public domain.  Many creative works, such as symphonies and films, that had been treated for decades as being in the public domain and as such had been performed, adapted, distributed and restored, were now protected by copyright. In an action brought by representatives of composers and film distributors, it was alleged that this retroactive extension of copyright protection to works previously treated as out-of-copyright was not only not within Congress’s power under the Copyright Clause but was also a violation of the petitioners’ First Amendment rights. The claims were rejected by the 10th Circuit, but this month, despite the government’s plea to refrain, the Supreme Court granted cert to hear the case. The outcome of this case has significant copyright implications because, as the petition for review argued, “if Congress is free to restore material from the public domain at will, then the public’s federal right to copy and to use public domain material this Court has recognized may evaporate at any time.”

Slam Dunk: Rejection of the Google Books Settlement Agreement

In the several days since, and surely in the days and weeks to come, librarians, attorneys, authors, and scholars will be debating the probable effects of the court’s sweeping rejection of the settlement agreement initially drafted in the Google Books litigation three years ago. Following months of wrangling and amending, the latest iteration of the agreement was rejected in totality last week by the federal court presiding over the case. In his opinion, Judge Denny Chin rejected the settlement agreement primarily on the ground that the major issues, namely the status of orphan works and the rights of foreign authors and publishers, were ones that were better resolved by Congress than a federal court. In particular, the orphan works problem is so amorphous that it cannot be adequately served by a settlement agreement between a possibly inadequate class of plaintiffs and a private entity. Moving forward, of concern to universities that had been participants in the Google Books mass digitization project is potential liability. While I do not foresee a rash of lawsuits or outrage for this noble effort to make works searchable and accessible by the public, it will be very interesting to see what develops in the weeks ahead.

Jump Ball: Trial Date Set in Georgia State University E-Reserves Case

In late September 2010, the judge in the copyright infringement action filed against GSU considered a motion for summary judgment filed by the University and the publishers who filed the action. In her ruling on that motion, she permitted the case to go forward on the issue of contributory infringement. Last week, the judge denied the University motion to dismiss the remaining claim, thereby setting the matter for trial, which is to commence May 16th. The hope is that this case will finally resolve some contentious issues regarding the bounds of fair use, particularly in this context of educational use of copyrighted materials online in electronic reserve or course management systems.


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