Audio Technology from a Legal Perspective

Updates in 2011/2012 in Patent and Copyright Law

Kevin D. Jablonski

Overview of Discussion Topics

Intellectual Property in General America Invents Act Google Book Settlement – not so fast Termination Reclaim Interesting cases in 2011 SOPA/PIPA DJ Girl Talk

Intellectual Property

Patent Copyright Trademark Trade Secret Publicity

Rights Conveyed by Copyright

The right to reproduce the work The right to prepare derivative works based

on the original The right to distribute copies to the public The right to perform the work publicly The right to display the work publicly. The right to digitally stream a work.

America Invents Act of 2011

On March 16 2013, US invokes first inventor to file rule.

Eliminates False Marking lawsuits (other than US government).

Adds micro-entity status for individuals and universities.

USPTO satellite office in Detroit.

Authors Guild v. Google

Google sought to digitally reproduce every book in existence – snippets of every book would then be available to entice people to purchase a book.

Author’s Guild sued saying that reproducing snippets is a violation of their copyrights.

Google claimed fair use. A settlement was reached whereby Google agreed to pay

royalties based on a Books Rights Registry and contribute $125 million to the system infrastructure.

The Court rejected the settlement, stating that authors of orphan works were not represented.

Termination – 2013 will be fun

The 1976 Copyright Act went into effect on January 1, 1978. It included a provision for a creator of a work to reclaim any work 35 years after creation.

The presumption is that artists cannot know the value of their work when they sign contracts – therefore the artist may then reclaim the copyright 35 years later regardless of any intervening contract.

This does not apply to works for hire.

Interesting Case Law in 2011

Golan v. Holder – Restoration Warner Bros. v. One X Production United States v. ASCAP Arista Records v. LimeWire

Golan v. Holder - Restoration

Prior to joining the Berne Convention in 1989, certain foreign works (such as Peter and the Wolf) fell into the public domain because of renewal of copyright policies in the US.

In 1994, the US passed the Uruguay Round Agreement Act – which restored rights of foreign copyright holders for works that fell into the public domain.

Golan sued on 1st amendment grounds arguing that once a work is in the public domain, the public has an expectation of free use.

Supreme Court has upheld the law.

Warner Brothers v. X One X Prod.

X One X Production purchased promotional materials of Wizard of Oz, Gone with the Wind, etc. -- which then after the purchase, the materials became public domain, e.g., copyright expired.

X One X then altered the images to resemble scenes from the movies (which were still under copyright).

Appellate court upheld a holding of copyright infringement. This ruling restricted the manner in which public domain works

may be altered – essentially reinforcing protection of “characters” so long as new material keeps getting created.

United States v. ASCAP

A public performance is a right reserved to a copyright holder.

Most music artists (e.g., the copyright holder – which may be the record label) enter a publishing contract with ASCAP or BMI to collect royalties for the public performances.

A ring tone is not a public performance – so says the 2nd circuit Appellate court.

Arista Records v. LimeWire

LimeWire is the next generation of Napster and Grokster – a peer-to-peer file sharing network.

LimeWire was ordered to change its ways. LimeWire was found to be:

– Aware of substantial infringement by users– Making efforts to attract infringing users– Enabling users to infringe– Depending on infringing use for business success– Failing to mitigate infringing use

SOPA/PIPA

SOPA – House bill PIPA – Senate bill Aimed at combating online piracy.

SOPA/PIPA proponents arguments

Bolsters enforcement of copyrights against foreign websites.

Forces search engines to remove links to known domains infringing on copyright.

Forces ISPs to block access to some known infringing sites.

Supporters include RIAA, CBS, NBC, Pfizer, Ford, NBA, Lamar Smith, John Conyers

SOPA/PIPA detractors arguments

“The day the internet went dark.” Threatens free speech and innovation by having a

chilling effect on certain activities. Weakens safe harbor provisions of the DMCA Opponents include Google, Facebook, Wikipedia,

AOL, Yahoo, Nancy Pelosi, Ron Paul, ACLU

DJ Girl Talk

Artist whose real name is Gregg Gillis “Mashup” artist who creates works from other music subject to

copyright protections “A law suit waiting to happen” – New York Times Mr. Gillis argues fair use as a defense to using the copyrighted

work