Two events popped up this week where persons argued that somehow copyright law is preventing them from being creative. The first was a reversal by the German Constitutional Court of a lower Court’s determination prohibiting the distribution of the 1997 song called "Nur mir" ("Only to me") because it included a sample of the 1977 song "Metall auf Metall" by the German electronic pioneers Kraftwerk. Next, a post on MTV’s website titled “Steal This Riff: How To Fix Copyright Law And Set Musicians Free,” called again for the passage of legislation forcing musicians to give up their rights to control derivative works. Both of these events suffer from the same illogical mindset: that musicians cannot be creative unless they can make note for note copies of something another composer has already done. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes a look at the arguments advanced in both instances, points out what the U.S. Courts have already taken on issue, and determined, once again, that copying is not creativity.
A recent post to the website of “The Chronicle of Higher Education," titled “Colleges Shouldn’t Have to Deal With Copyright Monitoring” bemoaned the requests of book publishers for an injunction in the long running suit against Georgia State University. The post called the requests “onerous” and “costly.” Never mind the fact that injunction has not been issued yet, but a lot of what is being requested is what colleges and universities already do as a matter of policy, including Nova Southeastern University. NSU Copyright Officer, Stephen Carlisle, J.D., explains the process by which NSU examines fair use claims and shows how it’s not only good policy but the right thing to do.
On May 12, 2016, a Federal Court in Florida refused to dismiss a lawsuit alleging that Google’s various statements about its search results, including that “[i]t is Google’s policy not to censor search results,” are false, deceptive and misleading. The chief complaint is that Google, contrary to its public pronouncements, made all of the Plaintiff company’s’ websites disappear from all possible Google search results. Since Google controls 70% of the U.S. search market and 90% of the European search market, this is equivalent to making the websites virtually disappear from the internet. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes a look at the allegations and the Court’s decision and finds it’s mostly a case of Google stating “we don’t do this…except when we do.”
May 2nd and 3rd of 2016 saw the U.S. Copyright Office holding live “roundtable” discussions in New York City about the continuing problems associated with the “notice and takedown” system of section 512 of the Copyright Act. If you were a heavy hitter, either on the copyright side (like Disney) or the tech side (like Verizon), this was your chance to have your voice heard by the Copyright Office. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., was not only present for the roundtables, but was an invited participant on two panels, and presents a frontline recap of what went down.
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.
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.
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.
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?
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.
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.