Is "Offering to Distribute" the Same as "Distribution" Under the Copyright Act

Posted on April 30, 2008 by Kraig Baker

The District Court for Arizona in Atlantic v. Howell rejected the record industry's motion for summary judgment that contended that merely making available music files for downloading through a file sharing service constituted copyright infringement.  This reverses the court's previous ruling from August 2007.   The key issue is whether "making available" or "offering to distribute" copyrighted works, absent evidence of actual distribution, violates a copyright owner's exclusive distribution rights under Section 106 of the Copyright Act.  This is the third case this April to weigh in on this issue.  Howell joins the U.S. District Court in Massachusetts in London-Sire Records v. Doe in requiring more than merely making the infringing works available.  The Southern District of New York held the opposite in Elektra v. Barker.  Undoubtedly this is just the beginning so stay tuned.  For more information (albeit from an interested party), the EFF has a page addressing these issues. 

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When Are You a Leech? Lawsuit Alleges that Project Playlist Infringes Label Copyrights

Posted on April 29, 2008 by Kraig Baker

A fascinating new lawsuit filed by the major record labels.   The record labels sued Project Playlist on Monday alleging that the website was guilty of massive infringement.  What's fascinating is that Project Playlist purports that it only allows it's users to make playlists of existing, legal music.   In other words, it claims to allow its users to make a playlist consisting of multiple links to music resident on servers elsewhere.  While this behavior has led to liability in Europe, it seems inconsistent with general linking law in the United States.   (although the movie studios have sued so called "leeching" websites like torrentspy.com).  It is unclear whether the record labels are alleging that Project Playlist is solely a leeching website like torrentspy or whether they are alleging more garden variety file sharing liability.  I haven't been able to get a complaint yet, but the reports suggest that the record labels are alleging both the standard Grokster inducement claim as well as Project Playlist's illegal reproduction of the music.  If it turns out that the only allegedly infringing activity of Project Playlist is the inline linking from user's playlists to third party hosted music, this could create new linking law since Project Playlist purports to do more than the typical leeching websites of the world.

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Lennon Family Attempts To Expel Filmmakers

Posted on April 25, 2008 by Kraig Baker
John Lennon's sons and widow, Yoko Ono, are suing the filmmakers of "Expelled: No Intelligence Allowed" for using the song "Imagine" in the documentary without permission.  The filmmakers claim fair use as part of the use.  Although I haven't seen the film, this seems like a strategy on behalf of the filmmakers who had to have known that (a) fair use is always a risky proposition for use of music in film; and (b) using a song publicly known for its association with liberal political causes in a documentary film about a conservative political cause would just waive a red flag in front of the Lennon heirs.  Of course, Expelled's legal defense costs may be the same line item as its marketing budget...
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For Those of Us Who Can't Keep Up With Everything

Posted on April 25, 2008 by Kraig Baker
Here are Professor Goldman's Quick Links for March.
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Copyright and Garbage

Posted on February 11, 2008 by Brian Kennan

Ever throw your copyrighted expression into the trash only to find out that a dumpster diver has found and resold it? Me neither. But if you or someone you represent has, you may find William Patry's discussion of United States v. Chalupnik, 2008 WL 268997 (8th Cir. Feb. 1, 2008) illuminating (or infuriating). Patry and commentators on his blog locked the lower court's decision in the pillory and began pelting it with vegetables days ago. While the discussion there goes in a predictable direction, it's worth a skim.

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eBay and Personal Jurisdiction

Posted on February 7, 2008 by Brian Kennan

Yet another eBay jurisdiction case. From Decision of the Day:

So the [plaintiffs file] a pro se suit in Colorado, seeking a declaratory judgment that their wares constituted fair use.

The defendants are a Connecticut company and a British company with no ties to Colorado, so they moved to dismiss on the ground that the court lacked jurisdiction over them. Although a magistrate judge disagreed, the district judge overrode his recommendation and dismissed the suit for lack of personal jurisdiction.

On appeal, the Tenth Circuit reverses, adapting the standard test for personal jurisdiction to the internet age.

The basis? According to Fairly Useful

The court noted that the defendants did more than simply assert their rights to the plaintiff; they involved eBay as a third party and invoking the VeRO procedures. Thus the defendants terminated (or suspended) the plaintiffs' auction causing them lost business and a damaged business reputation.

If you want a bit more, the details are here. Or go here. The case is Dudnikov v. Chalk & Vermillion Fine Arts, Inc., 06-1458 (10th Cir., Jan. 28, 2008)

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