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Is a “Mirror Copy” a Transformative Fair Use? This Court Says Yes…These Courts Say No…and the Supreme Court Says Nothing

Monday, April 18, 2016 saw the Supreme Court of the United States deny the Author’s Guild petition for writ of certiorari in the long running lawsuit against Google and their mass digitization of library books. Google had scanned complete copies of books provided to them by participating libraries and made them searchable, and when asked, displayed verbatim portions of the text. The Second Circuit had pronounced this “transformative” even though the copies were “mirror images” of the original texts. The Eleventh Circuit, by contrast, has ruled that mirror image copies are not “transformative” as has the Sixth Circuit. What’s going on here? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., looks at the cases and the reasoning, and suggests that maybe it’s just as well the Supreme Court passed this one up.

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The “Stairway to Heaven” Guitar Melody Is In the Public Domain! But Does This Get Led Zeppelin Off The Hook?

The website Digital Music News uncovered two stunning facts last week that reshape the landscape of the rather heated court battle between the Trust of Spirit guitarist Randy California and Jimmy Page and Robert Plant of Led Zeppelin. They have uncovered not one, but two previous musical compositions that sound an awful lot like the opening guitar melody to “Stairway to Heaven,” which is claimed to infringe the Spirit song “Taurus.” The part where it gets interesting is that one musical composition is so old it is in the public domain. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes a listen a takes and a look at the music and the law to find out what effect it might have on the upcoming trial.

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Google Funded Study Concludes Google Needs More Legal Protection From Small Copyright Owners!

On March 29, 2016, a huge study on the volume and effectiveness of DMCA takedowns was published. Titled “Notice and Takedown in Everyday Practice,” the authors made some rather stunning assertions which were widely reported in the news media. Problem is that a lot of what was reported was flat out wrong, and could have been corrected by simply reading the study. The news media that reported on the story, including The Washington Post, CNBC and Variety also seemed to have missed the fact that on the very first page it is revealed that Google funded this study, one that nicely fell in line with Google’s interests. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes an in-depth look at the 147-page study and finds it has numerous flaws, including glossing over major problems, making assumptions that just don’t hold up, and being contradicted by Google’s own transparency report.

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How to Send a Takedown Notice to Google in 46 (or more) Easy Steps!

Filing a take down notice with Google should be easy, right? After all, they are on pace to receive 1 billion take down notices this year. Except that trying to get a take down filed with Google is more akin to running a military obstacle course. First, Google hides where the form is, then, requires multiple steps to try and get to the form, including red letter warnings about possible damages and other intimidation tactics. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes you through all the hoops and barriers thrown up by Google, and asks, why is a multi-billion dollar corporation trying to prevent me from exercising my legal rights under Federal law?

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Dear Madame Register of Copyrights: Please Support Take Down-Stay Down

The Register of Copyright has called for public comments on the continued efficacy of Section 512 of the Copyright Act, the so called “take down” and “safe harbor” provisions. It doesn’t take long to see the system is utterly failing to prevent the wide dissemination of infringing material on the internet. Google processed 345 million takedown notices in 2014. They are on pace to process 975 million takedown notices this year. Shouldn’t artists create art, instead of takedown notices? NSU Copyright Officer, Stephen Carlisle J.D., crunches the numbers, analyzes the arguments, excuses and rationalizations, and shows how “take down-stay down” is the only way out of this mess.

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The Growing Problem of Phony “Fair Use” Claims: From Michelle Shocked to Axanar

Last week saw a settlement in the closely watched fair use case of Equals Three v. Jukin Media. It’s a good thing Equals Three settled the case. The jury would have ruled that all 48 videos at issue were not fair use, and damages would have been assessed accordingly. This reflects a growing problem, namely that fair use is being manipulated from a fairly complex legal defense, to a Harry Potter style magical incantation that, in the minds of the content borrower, makes all copyright problems go away. NSU's Copyright Officer, Stephen Carlisle, J.D., examines the growing trend of claiming any use of someone else’s material is “fair use,” without any regard to whether the claim has any basis in fact or law.

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The “Making Available” Right: What Is It and Why Should You Care?

On February 22, 2016, the U.S. Copyright Office released its nearly 120 page report on whether the U.S. Copyright Act conferred upon the copyright holder the exclusive right to “make available” the copyrighted work in electronic formats. Essentially, this provides that “authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means.” But what does that really mean, and why should you care? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the report and its findings and explains how this right works for you when placing your copyrighted works online.

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Why Reducing Current Copyright Terms Would be Unwise… And Unconstitutional

Many copyright critics rail against the long copyright terms which currently exist. Some suggest that copyright terms be busted back down to as little as 14 years and propose bringing back formal registration requirements. In view of the long terms of copyrights granted by most of the world, would this be wise? Further, would it be allowed by the Constitution? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes a deep dive into the “takings” clause of the 5th Amendment to the Constitution and finds that legislation to reduce current copyright terms won’t make it out of the starting gate.

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The Good, the Bad and the Strange of the Department of Commerce’s White Paper on Copyright

Last month saw the release of the Department of Commerce’s White Paper on Copyright. Specifically, the voluminous (107 page) report took up three specific issues: “Remixes,” broadly defined to include all forms of combining copyrighted works, including “fan fiction;” “The First Sale Doctrine,” especially whether the doctrine should apply to digital goods and “Statutory Damages,” including whether the penalties should be lessened or further guidelines established. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes a look at the contentions on all sides of these issues, and suggests where the DOC went right, or perhaps wrong, in their recommendations.

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The Real Cost of Making Music: Why Respect for Copyright Matters

It’s becoming clearer that streaming, the supposed “savior” of the music business, is not up to the task. Despite millions of songs being made available at a low cost or even free, music piracy continues to increase. And for the first time in modern music history, catalog albums outsold new releases. More and more evidence points to the fact that while people love music, they just don’t want to pay for it. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., shares his experience from 26 years as an entertainment attorney, shows how the music business really works, and why the “touring and t-shirts” solution to internet piracy is a fallacy that just doesn’t add up.

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