Digital Sampling of Music and Copyrights: Is It Infringement, Fair Use, or Should We Just Flip a Coin?
Christopher C. Collie; Eric D. Gorman D.J. Girl Talk is one of the budding artists in the music industry today, and his instrument is a laptop. D.J. Girl Talk (hereinafter also referred to as “Girl Talk”), whose real name is Gregg Gillis, “samples,” or uses short clips, from other artists’ songs to create popular dance music. Girl Talk’s songs combine old, contemporary, and downright odd genres of music. Within these different genres, he samples from artists such as Clipse, Kelly Clarkson, and Hot Chip. At his live concerts, D.J. Girl Talk leads massive crowds who dance non-stop to his songs....
On Federal Preemption of Contractual First Sale Waivers
Gary Miller Congress is working with a very sensitive scale and it would be tough enough to keep things steady without copyright holders sneaking over and sticking a big toe on the edge every time they feel threatened. It is true that Congress (or at least some member or members of Congress) might have expected parties to contract around the first sale requirement, and of course, the copyright holders assert that, with the world changing too fast for the statute to keep up, therefore the big toe has been absolutely necessary for protection from looting, piracy and/or insolvency–in other words,...
The Unlitigated Case: A Study of the Legality of Guitar Tablatures
James T. Tsai Guitar tablature Web sites have been the subject of recent cease-and-desist letters, forcing most to shut down. Litigation has been side-stepped with the arrival of new creative means to continue operation. The case that may have gone to court is discussed here, ranging from the appropriate legal claims of copyright infringement to the fair-use-defense arguments that would have been made. Policy solutions are considered to resolve the tension between the public’s desire to use such tablatures and the copyright owners of the original artists. Read Full Text Here
Interpreting Chamberlain’s “Reasonable Relation” Between Access and Infringement in the Digital Mill
Zoe Argento The nature of the “reasonable relation” test goes to the heart of the DMCA and its impact on innovation. If the “reasonable relation” between access and infringement is too broad, the DMCA will stifle many ideas which build on protected works, because the public will be prevented from accessing works for the purpose of creating improved versions and interoperable products. Innovation depends in large measure upon building on the works of others. As Sir Isaac Newton famously said, “If I have seen farther than others, it is because I have stood upon the shoulders of giants.” On the...
Are Auteurs Really All That Special?
Jordan S. Hatcher Ever since 1954, when film critic Francois Truffaut “asserted that the worst of Jean Renoir’s movies would always be more interesting than the best of Jean Delannoy’s,” the director has come to be seen as the auteur of the films she directs. This idea, while fine for film critics, has unnecessarily crept into the law. Directors currently enjoy a unique status under UK law due in part to the idea that they are the sole creative auteur of a film. This article questions this special status and suggests some changes within the framework of existing EU directives...
Shooting the Messenger: ISP Liability for Contributory Copyright Infringement
David Ludwig Recent trends in judicial enforcement of contributory copyright infringement claims against ISPs and judicial interpretation of the DMCA safe harbor provisions undermine the balance sought by Congress in the DMCA by imposing excessive liability upon ISPs. The danger of this trend is that such enforcement will have a significant chilling effect on ISP investment in the internet, which fosters both the growth of e-commerce and the ability of a larger segment of the population to participate in the internet community– both of which ultimately benefit the holders of intellectual property rights. Shielding ISPs from liability for contributory copyright...
“For Limited Times”: The Supreme Court Finds the Copyright Term Extension Act Constitutional in Eldred v. Ashcroft, but When Does It End?
Sue Ann Mota In 1993 a European Union directive extended the copyright term to the author’s life plus seventy years. The United States followed suit in 1998 with the Sonny Bono Copyright Term Extension Act, which, like the E.U. directive, extended the copyright term for an individual’s works by twenty years, resulting in a term of the author’s life plus seventy years. It also extended the term for anonymous, pseudonymous, or works made for hire by twenty years, resulting in a term of ninety-five years from publication or 120 years from creation, whichever comes first. The CTEA also applied retroactively,...
Google’s Literary Quest in Peril
Michael Goldstein Recently, Google, Inc. (hereinafter “Google”), owner of the eponymous search engine, partnered with several libraries, in an effort to make their collections available for search on the Internet. This project has come under attack by The Author’s Guild (hereinafter “The Guild”). The Guild complains that scanning and uploading copyrighted works without the authors’ consent violates their rights under the Copyright Act. Google counters that its use of sections from the copyrighted works falls under the “fair use” doctrine described in the Copyright Act. However, the Guild notes that in order to use these sections, Google first reproduced the...
P2P File-Sharing: What the Supreme Court Has an Opportunity to Consider
Margo E. K. Reder When the United States Supreme Court hears Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. (04-480) on March 29th, it has an opportunity to consider for the first time, the rights, responsibilities and liabilities of p2p network creators and their users, the content industry, and ISPs. Over 25 of the world’s largest entertainment conglomerates joined together in petitioning the Supreme Court for a grant of certiorari. Petitioners characterize this case as “one of the most important copyright cases ever to reach this Court. Resolution of the question presented here will largely determine the value, indeed the very significance, of copyright...
Does Intermediate Copying of Computer Software for the Purpose of Reverse Engineering a Non-Infringing Product Infringe the Copyright in the Software?
Robert V. Donahoe Software developers have successfully applied the affirmative defense of fair use to defeat claims that this intermediate copying violated the owner’s copyright in the computer programmer. Courts have found the equitable nature of the fair use defense useful in analyzing claims of computer program copyright infringement because the functional elements are unintelligible unless the object code is decompiled. In Sony v. Connectix, 203 F.3d 596 (9th Cir. 2000), the Ninth Circuit applied the fair use doctrine to further expand the ability of computer software developers to legally make intermediate copies of computer software for the purpose of...