Beyond the hot topic of “fake news,” two recent controversies highlight the important distinction between what’s true and what’s fiction: it’s a lot easier to sue for copyright infringement if you made it up. Both the movie "The Conjuring" and "All Eyez On Me" supposedly depict true events. But, now, the authors of the underlying works say they made up the facts, making the works fictional and want to sue for copyright infringement. Can they really do this? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the cases of where fact becomes fiction, and reveals how the courts feel about this rather unique form of “gotcha.”
“We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.” With those incisive words, the Supreme Court of Canada finally called Google out for its long time practice of turning a blind eye to infringement of intellectual property, and ordered that Google block a pirate site, not just in Canada, but around the world. The case is landmark decision in the protection of intellectual property, and one that is going to instruct creators and artists on how to best protect their creations. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., explains this important ruling on protecting creator’s rights.
Cloudflare, the most notorious purveyor of internet peek-a-boo, found itself back in Court again, this time on the receiving end of a lawsuit brought by porn website ALS Scan. The allegations of the complaint are that by providing CDN services to 13 pirate websites, Cloudflare is guilty of contributory infringement of the copyrighted photographs of the Plaintiff. This poses some very thorny questions, namely, can one be contributorily liable if the website is located outside the U.S, is Cloudflare’s service fair use, and how does the display right figure into all of this? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., digs in deep to make sense of this very complex decision.
On June 9, 2017, a District Court Judge in California denied a Motion to Dismiss claiming that a “mash-up“ of Dr. Seuss and Star Trek was fair use. The book attempted to “mash-up” (or should that be “mind meld”?) Oh, The Places You’ll Go! from the legendary children’s book author with various elements of the fictional universe of Star Trek. What does the Judge have to say about this attempt to boldly go further than previous attempts at a Dr. Seuss “parody”? Nova Southeastern University's Copyright Officer, Stephen Carlisle J.D., takes an in depth look at the opinion and finds once again, the “transformative use” test is causing big problems.
Depending on your point of view, the settlement agreement reached last year between Flo and Eddie and Sirius XM is looking like sheer genius or fool hardy folly. On June 5, 2017, a Federal Judge in the Northern District of Illinois ruled that pre-1972 sound recordings did not have performance rights under Illinois law, joining New York in denying protection for scores of recording artists. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., analyzes the curious logic of the Court in ruling that the Plaintiff had rights, until they wanted to actually use them.
A lot of people use the “Creative Commons” license, in which they waive some or all of their rights under the Copyright Act. This is of course, fine, as any author should be able to control the distribution of their work in any manner that they see fit, and those wishes should be respected. But as with regular copyright, what happens when the restrictions of a Creative Commons license are not respected? What happens then? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines a recent case and explains why the answer is “applying the principles of copyright law.”
If someone has infringed your copyright, you’d certainly like to be able to find out who they are and where they are. But since online pirates would rather not have you find out this information, various companies have sprung up that make quite a nice living in hiding people. The biggest is Cloudflare. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes an in depth look at this “Content Delivery Network” and how it works with copyright infringers to keep their locations hidden.
The latest twist in the 10 year old saga of the “Dancing Baby” case happened May 5, 2017. On that date, the U.S. Solicitor General responded to the Supreme Court of the United States' request last October for guidance on whether it should take up the case of Lenz v. Universal Music Group. The brief itself is a complete surprise. It contends that not only did the 9th Circuit get it wrong, but everybody got it wrong. On top of that, the brief contends the SCOTUS should not fix it by taking up the case. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes an in depth look at the opinion of the Solicitor General and asks: "You mean it’s broke, but we’re not going to fix it?"
A recently introduced bill in the current session of Congress would, for the first time, require radio stations to pay a fee for the performance of sound recordings. Any radio station that refused to pay the fee would allow the owner of the sound recording to prohibit that station from playing the sound recording. Three companies control 87% of all commercially available sound recordings. They wouldn’t choose the nuclear option, and give up all that “free promotion,” would they? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the arguments on both sides and the possible ramifications of the proposed bill.
Typically, websites use moderators to keep their websites clean of spam, trolling, pornography and harassment. This certainly makes for a better internet experience for the user. But, does this moderating activity amount to “content control” that might cause a website to lose its DMCA “safe harbor” from copyright infringement? A new appellate court decision rules this is indeed possible. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines this recent court ruling and what it might mean for operators of websites across the internet.