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Have Great Minds Stopped Thinking Alike? The Split of Opinion within the Second Circuit on Copyright

There’s an adage that posits “If everybody’s thinking the same thing, then nobody’s thinking.” This line of reasoning seems to be on display at the Second Circuit Court of Appeals. This blog recently reported on a remarkable Second Circuit opinion regarding transformative use that appeared to “walk back” the expansive view given this doctrine by a previous panel of the same circuit in Cariou v. Prince. Again, last week saw yet another panel walk back the extreme ruling of the same circuit in Capitol Records v. Vimeo with a ruling in the case of EMI Christian Music v. MP3tunes, LLC. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines the two opinions and whether the Second Circuit is indeed pulling back from some of it’s more extreme positions regarding copyright.

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Who’s On First? “Nobody” Says Court of Appeals

Abbott and Costello’s classic comedy routine, best known as Who’s On First?, was back in the spotlight this week as the centerpiece of an interesting ruling from the Second Circuit Court of Appeals. Unfortunately for the heirs of the great comedy duo, it was a good news, bad news joke: the Court ruled that fair use did not protect the verbatim copying of the comedy routine into a Broadway play, but ultimately the heirs failed to prove they owned the copyright to the routine, making the dismissal correct, albeit for the wrong reason. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J. D., explains why the Court’s decision against the copyright owners in this case is nevertheless an important statement on the intricacies of the “transformative use” test.

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Florida’s Common Law Copyright Conundrum: Singing the “Repeal Me, Repeal You” Blues

There’s been a strange new twist in the Florida case Flo and Eddie brought against Sirius XM Radio. Previously, a Federal Judge had ruled that there was no specific Florida legislation covering the sound recording property right and that if the Court adopted Flo and Eddie’s position, it would be creating a new property right. But the Judge was wrong. Florida did recognize common law copyright in sound recordings all the way back in 1941, by expressly abolishing all such rights. Thirty six years later, in 1977, it then repealed the repeal. Now what? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., looks into the strange situation that happens when you repeal the repeal, and finds out “stranger things have happened.”

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Objection Your Honor! Another Lawyer Has Copied My Brief!

Lawyers frequently make available sample contracts, license agreements and court filings to other lawyers, knowing full well that they are going to be copied. They probably have benefited themselves from other lawyers sharing their work with young attorneys and are simply paying back the favor. What is rare is not only for a lawyer to directly plagiarize a majority of another lawyer’s work without explicit or implicit permission, but for the offended lawyer to file a copyright infringement suit over it. And last week, a Federal District Court handed down an opinion in just such a case. NSU Copyright Officer, Stephen Carlisle, J.D., discusses the problem of “legal thievery” and the case that sparked this unusual ruling.

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European Union’s Top Court Rules That for Profit Linking to Knowingly Infringing Material Violates Author’s Rights

As we have seen before, nothing makes the internet spin faster than pictures of naked women. So much, that the Dutch website GeenStijl gleefully linked to pictures of Dutch model Britt Decker. Problem was, they belonged to Playboy and had not been published yet. Playboy kept getting the pictures taken down by the third parties that hosted them. Geenstijl kept linking to new sites hosting the files, taunting Playboy in the process. Playboy sued the website and the Court of Justice of the European Union has now ruled that the linking to known infringing material violated Playboy’s rights. Nova Southeastern University's Copyright Officer, Stephen Carlisle J.D., explains the facts and the basis of the Court’s ruling and finds it’s not unlike what the Supreme Court of the United States has already ruled.

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A Year after Blocking 53 Websites, UK Piracy Drops And the Internet Still Functions

If you only listen to extremists, you would think that website blocking will lead to the destruction of the internet as we know it. A year ago, this blog wrote how courts in three different countries had ordered website blocking, and yet the internet failed to spontaneously self-destruct. In the ensuing year, it seems that the internet does not behave any differently than it did before. Recently released is this study that shows that not only does site blocking work, but the internet remains unscathed. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., examines Website Blocking Revisited: The Effect of the UK November 2014 Blocks on Consumer Behavior by researchers Brett Danaher, Michael D. Smith, and Rahul Telang, which makes an in-depth analysis of consumer behavior in the United Kingdom following the court ordered site blocking of 53 websites.

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Copyright Court Busts the “Gossip Cop”

Gossip Cop is a website that reports on celebrity gossip and opines on the veracity of celebrity news stories published by others. Along with stories critiquing the news reports, Gossip Cop also copied several photographs that illustrated those stories. When sued by the photo licensing agency, Gossip Cop responded with the all too familiar refrain of “but it’s a transformative use”! Not so fast, says the Court. What happened? Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., explains the Court’s reasoning and finds that maybe there are cracks in the walls of the “transformative use” defense.

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ASCAP and the Terrible, Horrible, No Good, Very Bad DOJ Decision That’s Going to Create Chaos in the Music Industry

We finally have the written statement from the U.S. Department of Justice mandating that ASCAP and BMI must engage in 100% licensing, and it’s a doozy. Start with the fact that no DOJ lawyer was brave enough to actually sign their name to this statement, but add in the fact that the statement contradicts the plain meaning of the consent decrees, takes quotes out of context from court opinions, and recommends that songwriters breach their own contracts. Plus, the DOJ acknowledges that because of their statement, some songs will become unavailable for public performance, making it clear this is a disaster that will cause chaos. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes apart the statement argument by argument to show the flaws in this terrible, horrible, no good, very bad decision.

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You Can’t Make This Stuff Up! The Department of Justice v. ASCAP

They’re at it again. A few weeks ago, it was the 2nd Circuit Court of Appeals that pulled out of thin air a ruling that Section 301 didn’t really say what it plainly said, despite no authority to the contrary. Now, it’s the U.S. Department of Justice’s turn. They have informed songwriter representatives that from now on, each performing rights organization will have the obligation to license 100% of musical compositions rights, even though that PRO did not own 100% of the rights. Or 50%. Or 5%. How did the DOJ come to this conclusion? They made it up. Nova Southeastern University's Copyright Officer, Stephen Carlisle J.D., examines the ins and outs of musical performance licensing and goes into the actual current consent decree and finds out that not only is 100% licensing not in the consent decree, the decree says the opposite of what the DOJ says it states.

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Forget What Congress Wrote, Forget What the Copyright Office Wrote; Court Of Appeals Re-Writes the Copyright Act

One of the bedrock principles of the current Copyright Act was that it did not apply in any way to sound recordings made before February 15, 1972. But now, in a horrific decision, the Second Circuit Court of Appeals ruled that the notice and takedown provisions of the Copyright Act do apply to pre-1972 sounds recordings, disregarding the clear directives of the Copyright Act and the clear opinion of the Copyright Office. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., analyzes the serious logical flaws in the Court’s ruling and highlights the dangers of what happens when a Court puts its opinion of “good policy” ahead of the “plain meaning” of a statute.

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