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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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To Boldly Go…Where Others Have Gone Before: The Copyright Problems of “Fan Fiction”

On December 29, 2015, Paramount Pictures and CBS Studios filed a lawsuit against Axanar Productions, Inc. and its principal Alec Peters, contending the proposed film uses many elements from Star Trek television series and motion pictures. In response, Axanar claims that it is "fan fiction." Fan fiction arises when fans of a particular movie, book or series of movies or books, create new works involving the same characters, settings and events, usually without the permission of the creators. Additionally, there were cries of "free speech" and "fair use" as a justification for allowing the film to go forward. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., explains the controversy, along with the legal and practical concerns over fan fiction, and asks "why do you want to boldly go where someone has already gone?"

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How Spotify Pays (or Doesn’t Pay) Songwriters

Two months ago, the Wall Street Journal reported that Spotify was not paying a large amount of royalties to songwriters on the songs they played, even though Spotify had a specific legal obligation to do so. Then, other songwriters spoke up and said that they also had songs being played by Spotify, but had never been paid. Is this possible? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., gets directly involved and discovers that this seems to be another example of a tech company that treats obeying the law as a mere inconvenience.

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14 Strikes and You’re Out! (Maybe): How Cox Communications Lost its DMCA Safe Harbor

It hasn’t been a good couple of weeks for Cox Communications. The Internet Service provider was hit with a Federal Judge’s decision that because of its business practices, it was not eligible for immunity from copyright infringement committed by their subscribers, or what is generally referred to as “safe harbor.” Wasting no time, Cox’s insurance company, Certain Underwriters at Lloyd’s, London, immediately filed suit in New York State Court, seeking a declaration that it would not be obligated to insure Cox against any damages assessed. Nova Southeastern University’s Copyright Officer, Stephen Carlisle, J.D., explains the 35 page decision, which details Cox’s efforts to not only restrict the number of notices it received, but also keep active subscribers who were known to be serial copyright infringers.

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Google’s DMCA Publicity Stunt

On November 19, 2015, Google announced a new program that will offer to underwrite the legal costs of YouTube posters who are the recipients of an “abusive” DMCA takedown request. The Electronic Frontier Foundation immediately hailed the move, as did several news outlets, including one that breathlessly called it a “game changer.” But does it really change anything? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., analyzes the program and its likely effect on both those who file takedown notices and those who receive them, and finds it’s really “same game, different day.”

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Publishing Sleight of Hand Redux: Anne Frank, 70 Years Later, Suddenly Gains a “Co-Author”

Last week, the New York Times reported that the internationally famous book “Diary of a Young Girl” by Anne Frank had suddenly gained a new co-author, her father, Otto Frank. The reason for this has to do with the copyright afforded Anne Frank. She died in 1945, which means that “Diary of a Young Girl,” having exhausted its “life of the author plus 70 years” copyright term, will enter the public domain in most of the world on January 1, 2016. Yet, the Anne Frank Fonds, the Swiss foundation that holds the copyright in “Diary of a Young Girl,” contends that Anne’s father, Otto, is a co-author of the work, so this seminal work will not pass into the public domain until 2050, 70 years after the death of Otto. Are they right? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the contentions of the Foundation and asks “can you really be a co-author with someone who is dead?”

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