Copyright

Music, Limited: Another Pre-1972 Sound Recording Suit Could Threaten Music Streaming Services

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Screen Shot 2015-02-02 at 2.40.14 PMBy Jeffrey Echert

The battle over pre-1972 sound recordings continues. For the uninitiated, here’s the lowdown: Songs recorded before February 16, 1972 aren’t covered under the 1976 Copyright Act; instead, they’re covered by preexisting state copyright regimes. Over the last couple of years, this disparity has come to a head—for example, one New York state court ruled that because of a non-preemption provision in the Copyright Act, online service providers don’t get to claim DMCA safe harbor protections when dealing with pre-1972 sound recordings.

The latest player in this burgeoning battleground is Zenbu Magazines, a holding company that claims to own songs by bands such as the Flying Burrito Brothers and Hot Tuna. It brought suit earlier this month against a host of music-streaming services, such as Apple, Google, Slacker Radio, Escape Media Group, and Sony. While most of those complaints were voluntarily withdrawn less than a week later, the complaint against Sony was not. In that complaint, Zenbu alleges misappropriation and conversion of its songs by Sony’s Music Unlimited service, which delivers streaming content to PlayStation and mobile users. What’s more, the complaint purports to be a class action—we might very well see other aging musicians join suit against Sony, seeking redress of what they feel is an oversight in the copyright regime. It might even result in pre-1972 sound recordings being removed from streaming services, if the required royalties end up prohibitively high. Continue reading →

High Time to Revisit the First Sale Doctrine: Omega S.A. v. Costco Wholesale Corporation

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Screen Shot 2015-01-28 at 12.15.32 PMBy Chris Ferrell

Normally, James Bond is the fictional MI6 spy who subdues international chaos before it starts. However, James Bond has yet to stop the decade-long battle between Omega S.A. and Costco Wholesale Corporation. Neither side has backed down in their international fight to claim the title for the “first sale doctrine” of a watch made famous by Mr. Bond.

In 2003, Omega and Costco “discussed the possibility of Costco carrying Omega watches,” but an agreement was never met. A year later, Costco began purchasing Omega “Seamaster” watches on the “gray market” to sell in Costco warehouses in the United States. (Gray market goods, or parallel imports refer to genuine branded goods that are imported into a market and sold there without the consent of the owner of the trademark or copyright of the goods.) The Seamaster watches bore the “Omega Globe”—a copyrighted symbol—on their backs. When Omega caught wind of Costco’s actions, it sued Costco for copyright infringement, specifically the importation of copyrighted work without the copyright holder’s permission. Costco responded that its importation right was a subset of its distribution right, and that the first sale doctrine provided it with an exception to the distribution right. Continue reading →

IP in Software: When is an API Protectable?

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ImageBy Lydia Ansari

On May 9th, the Federal Circuit ruled in Oracle v. Google that some APIs, or software application programming interfaces, are subject to copyright. Unless Google can successfully assert a fair use defense on remand, Google will have to pay Oracle for its use of the Java API in Android. The ruling draws disapproval from IP advocates and software developers alike, who predict it will have a stifling impact on innovation.

If the ruling stands, software companies will be able to copyright some aspects of their APIs. The Electronic Frontier Foundation, warns that “allowing a party to assert control over APIs means that a party can determine who can make compatible and interoperable software, an idea that is anathema to those who create the software.” Many developers agree that making APIs subject to copyright law would significantly limit their ability to build compatible programs and build on top of APIs. Continue reading →

Taking (Away) Your TV Shows To-Go

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ImageBy Amy Wang

Last week, Hulu announced that it will extend video streaming services this summer—and disrupt already low summertime productivity—by providing free, full TV episodes and movies on mobile devices, a feature normally reserved for Hulu Plus subscribers and limited to select clips. Although this is probably a temporary, promotional stunt to boost subscribership, the announcement comes just a week after the U.S. Supreme Court considered the legal implications of a similar video streaming service.

On Tuesday, April 22, 2014, the Supreme Court heard oral arguments for American Broadcasting Company, Inc. v. Aereo, Inc—for a thorough discussion of the case, see our winter publication. The premise of the case focuses on Aereo’s business model. The company provides its subscribers (currently, limited to NYC residents) unique technology: each subscriber is assigned a small antenna located at Aereo’s facility which captures and records live TV broadcasts and re-distributes them to the subscribers’ devices over the Internet. Subscribers can then watch shows live on their mobile devices, stop, and pick up the same programming when they get home on their tablet, computer, or TV. Continue reading →

Pandora’s Box, Reopened: A Shift in Record Labels’ Litigation Tactics May Mean Serious Problems for Online Streaming Services

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ImageBy Jeffrey Echert

Pandora’s in trouble again. We previously covered Pandora’s licensing dispute with performing rights organizations ASCAP and BMI, but this time around, it’s a bit more serious. A group of record labels, including Capitol, Sony, and UMG, filed a lawsuit against the streaming music service, claiming that it’s infringing the copyrights in a host of sound recordings, including works by the Beatles, Bob Dylan, and David Bowie. But the record labels filed the complaint in New York state court, alleging state law misappropriation. Why not go for federal charges, with their statutory damages provision? Because the record labels are specifically claiming infringement of recordings made before 1972, which aren’t protected under federal copyright.

Targeting pre-1972 recordings is a relatively new tactic among record labels, but one they’ve taken a shine to. Just last year, a group of labels filed suit in California state court against SiriusXM Radio alleging the same state law misappropriation theory. So what’s with the sudden shift in tactics? It might stem from Universal Music Group v. Escape Media, a 2012 New York state appellate decision. There, the court ruled that the 1976 Copyright Act explicitly refused to abridge the rights and remedies available to state law copyright holders in pre-1972 recordings – and that later federal laws (like the Digital Millennium Copyright Act) can’t reduce those entitlements. The DMCA gives online service providers a safe harbor from the consequences of their users’ infringing actions– if they comply with the DMCA’s notice and takedown regime, they aren’t liable for the actions of third parties. While filtering out copyrighted content is difficult, it’s better than a lawsuit. But the court denied Escape Media that safe harbor–it simply wouldn’t float as a defense for pre-1972 recordings. Without a defense, the court found that Escape Media infringed all the pre-1972 recordings at issue. While some might question the merits of a New York state court making important decision about federal copyright law, the same question came up in a federal case and is currently on interlocutory appeal to the Second Circuit. Continue reading →