Professor Weird Al Teaches Lady Gaga The First Amendment

Courtesy Boing Boing, Lady Gaga refused to let Weird Al make a parody of her song with proceeds to charity, so he claimed fair use and released it anyway.

Maybe Weird Al can get hired at YouTube's Copyright School to put the First Amendment into the curriculum?

More on parody here. Boing boing's analysis here.

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Fair Use Fridays: Kandinsky and Copyright: The Murder of American Culture - A Copyright PSA

An unintentionally terrifying Copyright PSA. Zombified children, unintentionally hilarious "fair use" mistakes - I thought it was a spoof, but... this video really shows how misunderstood the fair use doctrine is... by someone purporting to teach it.

Wassily Kandinsky, Composition VII 1913 thanks Wikimedia

The video shows children chanting that a teacher can show no more that 5 images from the artist Wassily Kandinsky in a classroom. Really weird.   Even when things are in the public domain, teachers are brainwashing children that use of the images are verboten.  And then using music samples in a way that is clearly NOT fair use...

but using the zombified kids is really Jonestown Massacre.   Pass the KoolAid.

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Fair Use Fridays: Rebecca Black Bob Dylan and Hitler Take on Friday Mornings

Genius parody - Bob Dylan does Rebecca Black's Friday. Original went viral, over 50 million views on YouTube, watch it below:



Slow version below:



Hitler's reaction:






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Fair Use Fridays: Twitter Parody, Mayor Emanuel and the Fair Use Doctrine

Parody and satire are types of free speech that the First Amendment should protect.   For each type of speech, enough has to be borrowed from the original to make the joke or criticism funny or biting.

Above, an example of a parody of Twitter, full example Twitter as It Really is here.   The real name, logo and layout of Twitter is used, but the tweets and entries are faked.

The First Amendment protects free speech.  The fair use provision of the Copyright Act 17 USC 107 is designed to resolve the tension between the First Amendment, which protects free speech, and the Copyright Act, which is designed to abridge certain forms of speech (i.e., there is no right to make the speeches of others).  

One of the more interesting used of Twitter was the infamous Mayor Emanuel Twitter account:

As you can see, the parodist stole a political candidate's identity, adopted his trademark use of a certain four letter word, and achieved over 47,000 followers.   Check out Mayor Emanuel here.   The punk rock journalist who was the impersonator revealed here.    Great analysis of the numbers relating the Mayor Emanuel here.

Good-natured winner Mayor Rahm Emanuel pledged $5,000 to his impersonator's charity of choice here.

Here is the text of 17 USC 107 in italics:

§ 107. Limitations on exclusive rights: Fair use40



Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Courts analyze the four factors bolded above to test whether a use of someone else's copyrighted work is "fair use".

A definition of "parody" from Wikipedia:

A parody (pronounced /ˈpærədi/; also called send-up, spoof or lampoon), in contemporary usage, is a work created to mock, comment on, or make fun at an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation. As the literary theorist Linda Hutcheon (2000: 7) puts it, "parody … is imitation, not always at the expense of the parodied text." Another critic, Simon Dentith (2000: 9), defines parody as "any cultural practice which provides a relatively polemical allusive imitation of another cultural production or practice." Often, the most satisfying element of a good parody is seeing others mistake it for the genuine article.

Parody may be found in music, art or culture, including literature, music (although "parody" in music has an earlier, somewhat different meaning than for other art forms), animation, gaming and cinema.
The writer and critic John Gross observes in his Oxford Book of Parodies, that parody seems to flourish on territory somewhere between pastiche ("a composition in another artist's manner, without satirical intent") and burlesque (which "fools around with the material of high literature and adapts it to low ends"). [1]

Wikipedia's definition of satire:

Satire is primarily a literary genre or form, although in practice it can also be found in the graphic and performing arts. In satire, vices, follies, abuses, and shortcomings are held up to ridicule, ideally with the intent of shaming individuals, and society itself, into improvement.[1] Although satire is usually meant to be funny, its greater purpose is often constructive social criticism, using wit as a weapon.

A common feature of satire is strong irony or sarcasm—"in satire, irony is militant"[2]—but parody, burlesque, exaggeration, juxtaposition, comparison, analogy, and double entendre are all frequently used in satirical speech and writing. This "militant" irony or sarcasm often professes to approve (or at least accept as natural) the very things the satirist wishes to attack.
Satire is nowadays found in many artistic forms of expression, including literature, plays, commentary, and media such as lyrics.

Courts, content owners and lawyers sending out cease and desist letters often do not appreciate the humor displayed by the would-be parodist or satirist.

The Chilling Effects website was created to catalog cease and desist letters sent to people by lawyers demanding that they cease infringing activity.

"Chilling effect" is a term of art from First Amendment case law referring to activities that "chill" free speech.

More on the fair use doctrine in copyright law here.   Posts labeled "Fair Use Fridays" deal with problems and examples of conduct which may fall on either side of the fair use doctrine.

Virtually all commentators find case law interpreting the fair use doctrine to be subjective and problematic, some find it too restrictive, others find it too liberal, others find it arbitrary and incomprehensible.


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Supreme Court Accepts Progress Clause and First Amendment Challenges To Copyright Extension

From SCOTUS blog on Golan v. Holder:

Issue: (1) Does the Progress Clause of the United States Constitution, Article I, § 8, cl. 8, prohibit Congress from taking works out of the public domain? (2) Does Section 514 of the Uruguay Round Agreements Act violate the First Amendment of the United States Constitution?


Materials from appeal at SCOTUS blog including petition for cert here.

More explanation of the case from Patently-O here.

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Fair Use Fridays: Copyright Professors and Law Students - Help Wikipedia Rewrite The Fair Use Doctrine

I have reproduced almost the entirety of Wikipedia's entry on the fair use doctrine in italics below, you can find the original here.   It really needs some sprucing up: there is a lot of good, but it needs some of the smart folks from say EFF to give it a facelift.

I think any discussion of fair use of copyrighted works should start with the First Amendment to the U.S. Constitution and reason from there.

If I read the terms of the Wikimedia license correctly, I think I am permitted to copy the Wikipedia entry wholesale, or chop it out and edit out some things, as long as I provide attribution, that is: a credit and a link to the original, which in turn, links to the Wikipedia terms of use.

If I am incorrect, I would appreciate Wikipedian or Wikimedian feedback.


Fair useFrom Wikipedia, the free encyclopediaJump to: navigation, search
Fair use, a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders. Examples of fair use include commentary, criticism, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test. The term fair use originated in the United States. A similar principle, fair dealing, exists in some other common law jurisdictions. Civil law jurisdictions have other limitations and exceptions to copyright.


Contents


1 Fair use under United States law
1.1 Purpose and character
1.2 Nature of the copied work
1.3 Amount and substantiality
1.4 Effect upon work's value
1.5 Fair use and professional communities
2 Practical effect of fair use defense
3 Fair use as a defense
4 The economic benefit of fair use
5 Fair use and parody
6 Fair use on the Internet
7 Common misunderstandings
8 Influence internationally
8.1 Fair dealing in Canada
8.2 Fair use in Israel
8.3 Fair use in South Korea

[edit] Fair use under United States lawThe legal concept of "Test copyright" was first ratified by the Kingdom of Great Britain's Statute of Anne of 1709. As room was not made for the authorized reproduction of copyrighted content within this newly formulated statutory right, the courts created a doctrine of "fair abridgment" in Gyles v Wilcox, which eventually evolved into the modern concept of "fair use," that recognized the utility of such actions. The doctrine only existed in the U.S. as common law until it was incorporated into the Copyright Act of 1976, 17 U.S.C. § 107.


17 U.S.C. § 107


Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:


1.the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2.the nature of the copyrighted work;
3.the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4.the effect of the use upon the potential market for or value of the copyrighted work.


The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.[1]


The four factors of analysis for fair use set forth above derive from the classic opinion of Joseph Story in Folsom v. Marsh, 9 F.Cas. 342 (1841), in which the defendant had copied 353 pages from the plaintiff's 12-volume biography of George Washington in order to produce a separate two-volume work of his own. The court rejected the defendant's fair use defense with the following explanation:


[A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy…

In short, we must often… look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.

Once these factors were codified as guidelines in 17 U.S.C. § 107, they were not rendered exclusive. The section was intended by Congress to restate, but not replace, the prior judge-made law. Courts are still entitled to consider other factors as well.

Fair use tempers copyright's exclusive rights to serve the purpose of copyright law, which the U.S. Constitution defines as the promotion of "the Progress of Science and useful Arts" (Art. I, § 8, cl. 8). This principle applies particularly well to the case of criticism and also sheds light on various other limitations on copyright's exclusive rights, particularly the scenes à faire doctrine.


[edit] Purpose and characterThe first factor is regarding whether the use in question helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public, or whether it aims to only "supersede the objects" of the original for reasons of personal profit. To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative.


When Tom Forsythe appropriated Barbie dolls for his photography project "Food Chain Barbie," Mattel lost its claims of copyright and trademark infringement against him because his work effectively parodies Barbie and the values she represents.[2] But when Jeff Koons tried to justify his appropriation of Art Rogers' photograph "Puppies" in his sculpture "String of Puppies" with the same parody defense, he lost because his work was not presented as a parody of Rogers' photograph in particular, but of society at large, which was deemed insufficiently justificatory.[3]


However, since this case, courts have begun to emphasize the first fair use factor—assessing whether the alleged infringement has transformative use as described by the Hon. Judge Pierre N. Leval.[4] More recently, Koons was involved in a similar case with commercial photographer Andrea Blanch,[5] regarding his use of her photograph for a painting, whereby he appropriated a central portion of an advertisement she had been commissioned to shoot for a magazine. In this case, Koons won; the case sets a favorable precedent for appropriation art where the use is deemed transformative.


The subfactor mentioned in the legislation above, "whether such use is of a commercial nature or is for nonprofit educational purposes," has recently been deemphasized in some Circuits "since many, if not most, secondary uses seek at least some measure of commercial gain from their use."[6] More important is whether the use fulfills any of the "preamble purposes" also mentioned in the legislation above, as these have been interpreted as paradigmatically "transformative." Although Judge Pierre Leval has distinguished the first factor as "the soul of fair use," it alone is not determinative. For example, not every educational usage is fair.[7] See also L.A. Times v. Free Republic, described below.


[edit] Nature of the copied workAlthough the Supreme Court of the United States has ruled that the availability of copyright protection should not depend on the artistic quality or merit of a work, fair use analyses consider certain aspects of the work to be relevant, such as whether it is fictional or non-fictional.[8]


To prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are separate from copyright—only their particular expression or fixation merits such protection. On the other hand, the social usefulness of freely available information can weigh against the appropriateness of copyright for certain fixations. The Zapruder film of the assassination of President Kennedy, for example, was purchased and copyrighted by Time magazine. Yet their copyright was not upheld, in the name of the public interest, when they tried to enjoin the reproduction of stills from the film in a history book on the subject in Time Inc. v. Bernard Geis Associates.[9]


Following the decisions of the Second Circuit in Salinger v. Random House, Inc.[10] and in New Era Publications Int'l v. Henry Holt & Co.,[11] the aspect of whether the copied work has been previously published suddenly trumped all other considerations because of, in the words of one commentator, "the original author's interest in controlling the circumstances of the first public revelation of his work, and his right, if he so chooses, not to publish at all." Yet some[who?] view this importation of certain aspects of France's droit moral d'artiste (moral rights of the artist) into American copyright law as "bizarre and contradictory" because it sometimes grants greater protection to works that were created for private purposes that have little to do with the public goals of copyright law, than to those works that copyright was initially conceived to protect. This is not to claim that unpublished works, or, more specifically, works not intended for publication, do not deserve legal protection, but that any such protection should come from laws about privacy, rather than laws about copyright. The statutory fair use provision was amended in response to these concerns by adding a final sentence: "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."
[edit] Amount and substantialityThe third factor assesses the quantity or percentage of the original copyrighted work that has been imported into the new work. In general, the less that is used in relation to the whole, e.g., a few sentences of a text for a book review, the more likely that the sample will be considered fair use. Yet see Sony Corp. v. Universal City Studios for a case in which substantial copying—entire programs for private viewing—was upheld as fair use, at least when the copying is done for the purposes of time-shifting. Likewise, see Kelly v. Arriba Soft Corporation, where the Ninth Circuit held that copying an entire photo to use as a thumbnail in online search results did not weigh against fair use, "if the secondary user only copies as much as is necessary for his or her intended use." Conversely, in Harper & Row, Publishers, Inc. v. Nation Enters,[12] the use of fewer than 400 words from President Ford's memoir by a political opinion magazine was interpreted as infringement because those few words represented "the heart of the book" and were, as such, substantial.
Before 1991, sampling in certain genres of music was accepted practice and such copyright considerations as these were viewed as largely irrelevant. The strict decision against rapper Biz Markie's appropriation of a Gilbert O'Sullivan song in the case Grand Upright Music, Ltd. v. Warner Bros. Records, Inc.[13] changed practices and opinions overnight. Samples now had to be licensed, as long as they rose "to a level of legally cognizable appropriation."[14] In other words, de minimis sampling was still considered fair and free because, traditionally, "the law does not care about trifles." The recent Sixth Circuit Court decision in the appeal to Bridgeport Music has reversed this standing, eliminating the de minimis defense for samples of recorded music, but stating that the decision did not apply to fair use.
[edit] Effect upon work's valueThe fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his or her original work. The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original. The burden of proof here rests on the defendant for commercial uses, but on the copyright owner for noncommercial uses. See Sony Corp. v. Universal City Studios,[15] where the copyright owner, Universal, failed to provide any empirical evidence that the use of Betamax had either reduced their viewership or negatively impacted their business. In the aforementioned Nation case regarding President Ford's memoirs, the Supreme Court labeled this factor "the single most important element of fair use" and it has indeed enjoyed some level of primacy in fair use analyses ever since. Yet the Supreme Court's more recent announcement in Campbell v. Acuff-Rose Music, Inc.[16] that "all [four factors] are to be explored, and the results weighed together, in light of the purposes of copyright" has helped modulate this emphasis in interpretation.
In evaluating the fourth factor, courts often consider two kinds of harm to the potential market of the original work: First, courts consider whether the use in question acts as a direct market substitute for the original work. In the judgement of the Supreme Court in Acuff-Rose Music they decisively stated that, "when a commercial use amounts to mere duplication of the entirety of the original, it clearly supersedes the object of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur." In one instance, a court ruled that this factor weighed against a defendant who had made unauthorized movie trailers for video retailers, since his trailers acted as direct substitutes for the copyright owner's official trailers.[17] Second, courts also consider whether potential market harm might exist beyond that of direct substitution, such as in the potential existence of a licensing market. This consideration has weighed against commercial copy shops that make copies of articles in course-pack for college students, when a market already existed for the licensing of course-pack copies.[18]


Courts recognize that certain kinds of market harm do not oppose fair use, such as when a parody or negative review impairs the market of the original work. Copyright considerations may not shield a work against adverse criticism.


[edit] Fair use and professional communitiesCourts, when deciding fair use cases, in addition to looking at context, amount and value of the use, also look to the standards and practices of the professional communities where the case comes from.[citation needed]

[edit] Practical effect of fair use defenseThe practical effect of this law and the court decisions following it is that it is usually possible to quote from a copyrighted work in order to criticize or comment upon it, teach students about it, and possibly for other uses. Certain well-established uses cause few problems. A teacher who prints a few copies of a poem to illustrate a technique will have no problem on all four of the above factors (except possibly on amount and substantiality), but some cases are not so clear. All the factors are considered and balanced in each case: a book reviewer who quotes a paragraph as an example of the author's style will probably fall under fair use even though he may sell his review commercially. But a non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself is non-commercial.

Free Republic, LLC, owner of the political website freerepublic.com, was found liable for copyright infringement in L.A. Times v. Free Republic for reproducing and archiving full-text versions of plaintiffs' news articles even though the judge found the website minimally commercial. She held that "while defendants' do not necessarily 'exploit' the articles for commercial gain, their posting to the Free Republic site allows defendants and other visitors to avoid paying the 'customary price' charged for the works."


The April 2000 opinion ruled concerning the four factors of fair use that 1) "defendants' use of plaintiffs' articles is minimally, if at all, transformative," 2) the factual content of the articles copied "weighs in favor of finding of fair use of the news articles by defendants in this case," though it didn't "provide strong support" 3) concerning the amount and substantiality prong, "the wholesale copying of plaintiffs' articles weighs against the finding of fair use," and 4) the plaintiffs showed that they were trying to exploit the market for viewing their articles online and defendants didn't rebut their showing by proving an absence of usurpation harm to plaintiffs. Ultimately the court found "that the defendants may not assert a fair use defense to plaintiffs' copyright infringement claim."


[edit] Fair use as a defenseThe Supreme Court of the United States described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc..[16] This means that, in litigation on copyright infringement, the defendant bears the burden of raising and proving that his use was "fair" and not an infringement. Thus, fair use need not even be raised as a defense unless the plaintiff first shows (or the defendant concedes) a "prima facie" case of copyright infringement. If the work was not copyrightable, the term had expired, or the defendant's work borrowed only a small amount, for instance, then the plaintiff cannot make out a prima facie case of infringement, and the defendant need not even raise the fair use defense.


Because of the defendant's burden of proof, some copyright owners frequently make claims of infringement even in circumstances where the fair use defense would likely succeed in hopes that the user will refrain from the use rather than spending resources in his defense. This type of lawsuit is part of a much larger problem in First Amendment law; see Strategic lawsuit against public participation.


Because paying a royalty fee may be much less expensive than having a potential copyright suit threaten the publication of a completed work in which a publisher has invested significant resources, many authors may seek a license even for uses that copyright law ostensibly permits without liability.


The frequent argument over whether fair use is a "right" or a "defense"[19] is generated by confusion over the use of the term "affirmative defense." "Affirmative defense" is simply a term of art from litigation reflecting the timing in which the defense is raised. It does not distinguish between "rights" and "defenses," and so it does not characterize the substance of the defendant's actions as "not a right but a defense."


In response to perceived over-expansion of copyrights, several electronic civil liberties and free expression organizations began in the 1990s to add fair use cases to their dockets and concerns. These include the Electronic Frontier Foundation ("EFF"), the American Civil Liberties Union, the National Coalition Against Censorship, the American Library Association, numerous clinical programs at law schools, and others. The "Chilling Effects" archive was established in 2002 as a coalition of several law school clinics and the EFF to document the use of cease and desist letters. Most recently, in 2006, Stanford University began an initiative called "The Fair Use Project" (FUP) to help artists, particularly filmmakers, fight lawsuits brought against them by large corporations.


In 2009, fair use appeared as a defense in lawsuits against filesharing. Charles Nesson argued that file-sharing qualifies as fair use in his defense of alleged filesharer Joel Tenenbaum.[20] Kiwi Camara, defending alleged filesharer Jammie Thomas, announced a similar defense.[21]


On September 2, 2009 Israeli District court ruled out a detailed decision[22] not allowing disclosure of "John Doe"'s details for the request of the FA Premier League based on several reasons, but the most interesting were that "fair use" under the new Israeli law of 2007 (which is based on the US 4 factors test) is a right and not merely a defense. The court specifically states that the public may have base for a legal cause of action if its fair use right is infringed by the copyright holder. Other important decision in said judgment is the fact that the court finds streaming Internet filesharing site of live soccer games not infringing copyright as this use is fair use (mainly due to the importance of certain sport events and the public's right). The court analyzes the 4 factors and decides that due to such importance of sporting games (and other less important factors), such use is fair.


[edit] The economic benefit of fair useA balanced copyright law provides an economic benefit to many high tech businesses such as search engines and software developers. Fair Use is also crucial to non-technology industries such as insurance, legal services, and newspaper publishers.[23] On September 12, 2007, the Computer and Communications Industry Association (CCIA),[23] a group representing companies including Google Inc., Microsoft Inc.,[24] Oracle Corporation, Sun Microsystems, Yahoo[25] and other high tech companies, released a study that found that Fair Use exceptions to US copyright laws were responsible for more than $4,500 billion dollars in annual revenue for the United States economy representing one-sixth of the total U.S. GDP.[23] The study was conducted using a methodology developed by the World Intellectual Property Organization.[23] The study found that fair use dependent industries are directly responsible for more than 18% of U.S. economic growth and nearly 11 million American jobs.[23] “As the United States economy becomes increasingly knowledge-based, the concept of fair use can no longer be discussed and legislated in the abstract. It is the very foundation of the digital age and a cornerstone of our economy,” said Ed Black, President and CEO of CCIA.[23] “Much of the unprecedented economic growth of the past ten years can actually be credited to the doctrine of fair use, as the Internet itself depends on the ability to use content in a limited and nonlicensed manner."[23]


[edit] Fair use and parodyProducers or creators of parodies of a copyrighted work have been sued for infringement by the targets of their ridicule, even though such use may be protected as fair use. These fair use cases distinguish between parodies (using a work in order to poke fun at or comment on the work itself) and satires (using a work to poke fun at or comment on something else). Courts have been more willing to grant fair use protections to parodies than to satires, but the ultimate outcome in either circumstance will turn on the application of the four fair use factors.


In Campbell v. Acuff-Rose Music, Inc.[16] Supreme Court recognized parody as a fair use, even when done for profit. Roy Orbison's publisher, Acuff-Rose Music Inc., had sued 2 Live Crew in 1989 for their use of Orbison's "Oh, Pretty Woman" in a mocking rap version with altered lyrics. The Supreme Court viewed 2 Live Crew's version as a ridiculing commentary on the earlier work, and ruled that when the parody was itself the product rather than used for mere advertising, commercial sale did not bar the defense. The Campbell court also distinguished parodies from satire, which they described as a broader social critique not intrinsically tied to ridicule of a specific work, and so not deserving of the same use exceptions as parody because the satirist's ideas are capable of expression without the use of the other particular work.


A number of appellate decisions have recognized parody as a protected fair use, including both the Second (Leibovitz v. Paramount Pictures Corp.) and Ninth Circuits (Mattel v. Walking Mountain Productions). Most recently, in Suntrust v. Houghton Mifflin, a suit was brought unsuccessfully against the publication of The Wind Done Gone, which reused many of the characters and situations from Gone with the Wind, but told the events from the point of view of the slaves rather than the slaveholders. The Eleventh Circuit, applying Campbell, recognized that The Wind Done Gone was a protected parody, and vacated the district court's injunction against its publication.
[edit] Fair use on the InternetA US court case in 2003, Kelly v. Arriba Soft Corporation, provides and develops the relationship between thumbnails, inline linking and fair use. In the lower District Court case on a motion for summary judgment, Arriba Soft was found to have violated copyright without a fair use defense in the use of thumbnail pictures and inline linking from Kelly's website in Arriba's image search engine. That decision was appealed and contested by Internet rights activists such as the Electronic Frontier Foundation, who argued that it is clearly covered under fair use.
On appeal, the 9th Circuit Court of Appeals found in favor of the defendant. In reaching its decision, the court utilized the above-mentioned four-factor analysis. First, it found the purpose of creating the thumbnail images as previews to be sufficiently transformative, noting that they were not meant to be viewed at high resolution like the original artwork was. Second, the fact that the photographs had already been published diminished the significance of their nature as creative works. Third, although normally making a "full" replication of a copyrighted work may appear to violate copyright, here it was found to be reasonable and necessary in light of the intended use. Lastly, the court found that the market for the original photographs would not be substantially diminished by the creation of the thumbnails. To the contrary, the thumbnail searches could increase exposure of the originals. In looking at all these factors as a whole, the court found that the thumbnails were fair use and remanded the case to the lower court for trial after issuing a revised opinion on July 7, 2003. The remaining issues were resolved with a default judgment after Arriba Soft had experienced significant financial problems and failed to reach a negotiated settlement.
In August 2008 U.S. District Judge Jeremy Fogel of San Jose, California ruled that copyright holders cannot order a deletion of an online file without determining whether that posting reflected "fair use" of the copyrighted material. The case involved Stephanie Lenz, a writer and editor from Gallitzin, Pennsylvania, who made a home video of her 13-month-old son dancing to Prince's song Let's Go Crazy and posted the video on YouTube. Four months later, Universal Music, the owner of the copyright to the song, ordered YouTube to remove the video enforcing the Digital Millennium Copyright Act. Lenz notified YouTube immediately that her video was within the scope of fair use, and demanded that it be restored. YouTube complied after six weeks, not two weeks as required by the Digital Millennium Copyright Act. Lenz then sued Universal Music in California for her legal costs, claiming the music company had acted in bad faith by ordering removal of a video that represented fair-use of the song.[26]
[edit] Common misunderstandingsFair use is commonly misunderstood because of its deliberate ambiguity. Here are some of the more common misunderstandings with explanations of why they are wrong


Any use that seems fair is fair use. In the law, the term fair use has a specific meaning that only partly overlaps the plain-English meaning of the words. While judges have much leeway in deciding how to apply fair use guidelines, not every use that is commonly considered "fair" counts as fair use under the law.


Fair use interpretations, once made, are static forever. Fair use is decided on a case by case basis, on the entirety of circumstances. The same act done by different means or for a different purpose can gain or lose fair use status. Even repeating an identical act at a different time can make a difference due to changing social, technological, or other surrounding circumstances.[13][citation needed]


If it's not fair use, it's copyright infringement. Fair use is only one of many limitations, exceptions, and defenses to copyright infringement. For instance, the Audio Home Recording Act establishes that it is legal in some circumstances to make copies of audio recordings for non-commercial personal use.[27]


It's copyrighted, so it can't be fair use. On the contrary, fair use applies only to copyrighted works, describing conditions under which copyrighted material may be used without permission. If a work is not copyrighted, fair use does not come into play, since public-domain works can be used for any purpose without violating copyright law.


Note: In some countries (including the United States of America), the mere creation of a work establishes copyright over it, and there is no legal requirement to register or declare copyright ownership[28]


Acknowledgment of the source makes a use fair. Giving the name of the photographer or author may help, but it is not sufficient on its own. While plagiarism and copyright violation are related matters—-both can, at times, involve failure to properly credit sources—-they are not identical. Plagiarism—using someone's words, ideas, images, etc. without acknowledgment—is a matter of professional ethics. Copyright is a matter of law, and protects exact expression, not ideas. One can plagiarize even a work that is not protected by copyright, such as trying to pass off a line from Shakespeare as one's own. On the other hand, citing sources generally prevents accusations of plagiarism, but is not a sufficient defense against copyright violations. For example, reprinting a copyrighted book without permission, while citing the original author, would be copyright infringement but not plagiarism.[citation needed]


Noncommercial use is invariably fair. Not true, though a judge may take the profit motive or lack thereof into account. In L.A. Times v. Free Republic, the court found that the noncommercial use of L.A. Times content by the Free Republic Web site was in fact not fair use, since it allowed the public to obtain material at no cost that they would otherwise pay for.


Strict adherence to fair use protects you from being sued. Fair use is an affirmative defense against an infringement suit; it does not restrain anyone from suing. The copyright holder may legitimately disagree that a given use is fair, and they have the right to have the matter decided by a court. Thus, fair use does not guarantee that a lawsuit will be prevented.


The lack of a copyright notice means the work is public domain. Not usually true. United States law in effect since March 1, 1989, has made copyright the default for newly created works. For a recent work to be in the public domain the author must specifically opt-out of copyright. For works produced between January 1, 1923 and March 1, 1989, copyright notice is required; however, registration was not required[29] and between January 1, 1978 and March 1, 1989 lack of notice is not necessarily determinative, if attempts were made immediately to correct the lack of notice. Any American works that did not have formal registration or notice fell into the Public Domain if registration was not made in a timely fashion. For international works, the situation is even more complex. International authors who failed to provide copyright notice or register with the U.S. copyright office are given additional contemporary remedies that may restore American copyright protection given certain conditions. International authors/corporations who fail to meet these remedies forfeit their copyright. An example of a company who failed to prove copyright was Roland Corporation and their claimed copyright on the sounds contained in their MT-32 synthesizer.


It's okay to quote up to 300 words. The 300-word limit is reported to be an unofficial agreement, now long obsolete, among permissions editors in the New York publishing houses: "I'll let you copy 300 words from our books if you let us copy 300 words from yours." It runs counter to the substantiality standard. As explained above, the substantiality of the copying is more important than the actual amount. For instance, copying a complete short poem is more substantial than copying a random paragraph of a novel; copying an 8.5×11-inch photo is more substantial than copying a square foot of an 8×10-foot painting. In 1985, the U.S. Supreme Court held that a news article's quotation of approximately 300 words from former President Gerald Ford's 200,000 word memoir was sufficient to constitute an infringement of the exclusive publication right in the work.[30]


You can deny fair use by including a disclaimer. Fair use is a right granted to the public on all copyrighted work. Fair use rights take precedence over the author's interest. Thus the copyright holder cannot use a non-binding disclaimer, or notification, to revoke the right of fair use on works. However, binding agreements such as contracts or license agreements may take precedence over fair use rights.[31]


If you're copying an entire work, it's not fair use. While copying an entire work may make it harder to justify the amount and substantiality test, it does not make it impossible that a use is fair use. For instance, in the Betamax case, it was ruled that copying a complete television show for time-shifting purposes is fair use.


If you're selling for profit, it's not fair use. While commercial copying for profit work may make it harder to qualify as fair use, it does not make it impossible. For instance, in the 2 Live Crew—Oh, Pretty Woman case, it was ruled that commercial parody can be fair use.


[edit] Influence internationallyWhile many other countries recognize similar exceptions to copyright, only the United States and Israel fully recognize the concept of fair use.[32]
While influential in some quarters, other countries often have drastically different fair use criteria to the US, and in some countries there is little or no fair use defense available. Even within Europe, rules vary greatly between countries. Some countries have the concept of fair dealing instead of fair use. However many countries have some reference to an exemption for educational use, although the extent of this exemption may vary widely.[33]
[edit] Fair dealing in CanadaThe Copyright Act establishes fair dealing in Canada, which allows specific exceptions to copyright protection. The open-ended concept of fair use is not observed in Canadian law. In 1985, the Sub-Committee on the Revision of Copyright rejected replacing fair dealing with an open-ended system, and in 1986 the Canadian government agreed that “the present fair dealing provisions should not be replaced by the substantially wider ‘fair use’ concept.”[34]
CCH Canadian Ltd. v. Law Society of Upper Canada [2004] 1 S.C.R. 339, 2004 SCC 13 is the landmark Supreme Court of Canada case that establishes the bounds of fair dealing in Canadian copyright law. The Law Society of Upper Canada was sued for copyright infringement for providing photocopy services to researchers. The Court unanimously held that the Law Society's practice fell within the bounds of fair dealing.
[edit] Fair use in IsraelIn November 2007, Israel passed a new Copyright Law that included a US style fair use exception. The law, which took effect in May 2008, permits the fair use of copyrighted works for purposes such as private study, research, criticism, review, news reporting, quotation, or instruction or testing by an educational institution.[35] The law sets up four factors, similar to those of section 107 under American law, to determine whether a use is fair use.
See also "Fair use as a defense" above and the Fapl v. Ploni decision.[22][36]
[edit] Fair use in South KoreaThe Korean Copyright Act newly amended in 2009, in articles 23~38 of section 4-2 (Limitation to the author's property rights), defines the exceptional use of copyrighted material without permission from copyright holders. However, a broad concept of fair use as in the above countries still does not exist in the Korean Copyright Act.


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United States Pirate Party Platform - Abolish the DMCA!

Logo of the United States Pirate Party
(courtesy Wikipedia)

To learn about joining the United States Pirate Party, go here.

Platform (courtesy Wikipedia)

The Pirate Party's platform centers around issues of intellectual property. "Like its international counterparts, the USPP’s main practical concerns are digital intellectual property and privacy laws—specifically, the abolition of a 1998 digital U.S. copyright law, the reduction of copyrights to 14 years (from 95 years after publication, or 70 years after the author’s death), and the expiration of patents that don’t result in significant progress within four years (as opposed to 20 years)."[3]

Reform of TrademarkTrademarks are abused around the world, in that they contain elements which are protected by either copyright or patent. A single protection for trademarks should exist, and fair use provisions made as with copyright. Trademarks should also not appear as the central issue on any dispute not arising from fraud.

Abolition of Digital Rights ManagementAll DRM and similar schemes do are to encourage people to find ways to prevent loss by circumvention. DRM is the key issue in the DMCA, and the chief reason that our population is now breaking the law en masse. DRM itself also inhibits the rights of artists to have their works experienced in as close to a live act as possible.

Right to PrivacyRegulatory bodies are, by their very nature, governing. They should therefore be prohibited from interfering in a person's private affairs. However, people should remember that their private affairs should remain private. Passwords, encryption, and other forms of electronic privacy should be afforded the same privileges as sealed envelopes.

Right to Government TransparencyThe population should at all times understand what a governing body is doing, with or to whom it is doing these things, and for what reasons. Though there is a need for national security for so long as there are enemies outside of our borders, there should never be any issue with ordinary citizens who need information. Likewise, the responsibility of citizens is to ensure that information which is of a sensitive nature is handled in a sensitive manner, so that it does not fall into the hands of those who would misuse such information to harm human life.

Reform of CopyrightCopyright is flagrantly abused around the world, has an unreasonable term length, and is used to prevent, rather than promote, innovation. This is directly counter to its stated intent in the beginning, of protecting authors' works. Additionally, the right of use should never be in question; merely the right to be credited. The term should be reverted to the 14 year term of the Copyright Act of 1790, with a right to renew for 14 additional years, at most.

Right to AssemblePeaceful assembly is guaranteed by our Constitutional First Amendment, just as free speech and free press is. Permits to protest should only be necessary if protests are planning to be disruptive (marching down streets, etc.). Police should not have a right to—though they are currently not prohibited from—disrupting the exercise of the expression of unpopular free speech.

This also covers community organization, where the political and other needs of a community sometimes requires localized political activism. People need to be able to know that what they believe can be supported; and they need to know that what they believe can be correct—or corrected.

Reform of PatentPatent is abused extensively around the world, has become the chief legal means to suppress innovation, and is largely to blame for stymieing technological progress. The practice of shelving a patent (failing to develop a patented idea which competes with one's own ideas instead of developing both and allowing innovation to spring from them) is abhorrent, and needs to be curtailed within the law. Patents which fail to be developed or have significant progress in any four-year term should be unenforceable.

Right to Free PressSpeech is protected under our Constitution, even unpopular speech, though action carries with it consequences. However, recent erosion of the First Amendment by inattentive lawmakers has led to a suppressive ideology that endangers journalistic freedoms (a necessary freedom in order to keep governments, political parties, and every other organization honest).

Underscored by recent events in St. Paul, reporters who are arrested by mistake for being in an area to report the news should have all charges summarily dismissed unless they were in fact doing damage or harm. This should be a standing policy in all city governments. Reporters form a necessary part of our government process, in bringing truth to the public.

News agencies which seek to misreport the news cannot be trusted to serve the best interests of the people, but there is a difference between news and entertainment. News agencies should have the freedom to decide which is which. However, news agencies should also be restricted from becoming the mouthpieces of special interest. One of the major issues is the limitation of small media outlets. Big media should not control 80% of the market; there should be a limit to the amount of the market that large networks control in any area.

Rejection of the Concept of Copyright infringement or "Online Piracy"Pirate Party Members hold the idea that sharing anything online is piracy is absurd on its face. Some say that actual piracy requires forceful and aggressive acts, committed against those who would keep a cargo safe from harm. The cargo in this case of this viewpoint is the freedom to act. Members would take it from those who jealously guard it for themselves and divide it amongst everyone in the country.

The Pirate Party wants to "raid" the law and "carry away" (repeal) laws which do not serve those on their metaphorical boat. The trick of it is: we're all in the same boat. It is in service to those on our boat (the Earth) that we aim to help.

Members are not willing to accept that file sharing should be banned (and will take steps, once party members are in office, to ensure that any laws in this regard are adamantly opposed, since in their perspective technology isn't the problem, but rather education about what its proper use is). On the other hand, we do agree that there is a significant amount of wrong being done to our rights in the name of protecting those whose sole aim for over 50 years has been the control and manipulation of human minds. Brainwashing our population is against our national interest in maintaining a democracy.

Abolition of the Digital Millennium Copyright Act and related subsequent provisions within copyright lawThe Digital Millennium Copyright Act of 1998 provided for legal repercussions for circumvention of copy protection, as well as making backup copies of any media illegal. This act has resulted in the intimidation, prosecution, and/or conviction of tens of thousands of people in our country—people who are otherwise law-abiding and who are not interested in being labeled thieves or crooks for doing what the internet was intended to do: share ideas. This is therefore a First Amendment issue, being freedom of expression, and we call for a repeal of this highly illogical and vertically-oriented law on the grounds that it is simply a bad law.




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First Amendment: The Obscenity of Wasting Taxpayer Money By Chasing Milkmaids Instead of Criminals

The National Law Journal reports here that a rare obscenity trial was thrown out against porn producer John Stagliano a/k/a "Buttman".  A federal agent went online and purchased "Jay Sin's Milk Nymphos" among other choice titles.

Robert Corn-Revere was on the defense team.  Years ago Bob participated in a CLE panel I organized on The Trials of Lenny Bruce, a great book (with sound recordings on CD).  Bob was also part of a successful petition to posthumously pardon Lenny Bruce.  Some more on Lenny Bruce here.

Lenny Bruce thought that war, not sex, was obscene.  Funny how the more money the government flushes down the toilet on useless and unwinnable foreign wars, the more it attacks people for engaging in or watching sex.

Try chasing Osama Bin Laden instead of wasting taxpayer money on chasing imaginary Milk Nymphos.  Human trafficking, sexual exploitation of children, and the health safety and welfare of those exploited in the sex trade should be much higher on law enforcement priorities.



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Art Litigation: Trademarks in Works of Fine Art NaziSexyMouse Deemed Legal In Poland

Max Papeschi's NaziSexyMouse

Max Papeschi's Faschion

Today the Baltimore News.net reported here that a spokesperson for Poland's public prosecutor found that an art gallery's display of artist Max Papeschi's NazySexyMouse was legal.  Poland lost six million lives due to Nazism.  My earlier post on the controversy here.
More Max Papeschi here (nuclear war at Disneyland) and here.

Below Papeschi uses Hitler to hawk a Chanel-type perfume.




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CDCA: Politico's Use of Henley Songs Copyright Infringement - Not Fair Use

In Henley v. Devore (SACV 09-481) the Central District of California doled out a "sort of rough justice" and found that a politician whose campaign got a little crazy with a karaoke machine and a mashup campaign video engaged in copyright infringement.  On June 10, 2010, summary judgment was granted, decision below.

All She Wants To Do Is Tax

They’re pickin’ up the taxpayers and
puttin’ ‘em in a jam
And all she wants to do is tax, tax
Liberals been liberals since I don’t know
when
They’re pickin’ up the taxpayers and
puttin’ ‘em in a jam
And all she wants to do is tax, tax
Liberals been liberals since I don’t know
when
Well, we barely made twenty ten, the vote
was in doubt
And we finished up the campaign she
could hear the people shout
They said, “Don’t come back here
Boxer!”
But if she ever does – we’ll bring more
money
‘Cause all she wants to do is tax
and break our backs
Never mind the heat comin’ off the street
She wants to party
She wants to get down
All she wants to do is –
All she wants to do is tax
All she wants to do is tax and break our
backs
All she wants to do is tax

From the decision (page 24):

“The [fair use] doctrine has been said to be ‘so flexible as virtually to defy definition.’” Princeton Univ. Press v. Mich. Document Servs., Inc., 99 F.3d 1381, 1392 (6th Cir. 1996) (quoting Time Inc. v. Bernard Geis Assocs., 293 F. Supp. 130, 144 (S.D.N.Y. 1968)). The case-by-case analysis resists bright-line determinations and the resulting decisions inevitably represent a sort of rough justice.

After you read the decision, drop down for a genius mashup video of Sarah Palin yodeling for taxes.  Note to file: yodeling and Sarah Palin is fair use, but Don Henley Barbara Boxer ain't.  Since no one can define "fair use" - justice is really rough these days.

I am one of the few that think electioneering is core political speech that is really really tough to trump and I note that the political history of our nation was forged by anonymous mudslingers slinging every conceivable mockery at one another.  The Supreme Court's jurisprudence on political speech supports this view. 

I think that the district court erred because a politician's campaign video is not commercial speech (see p 18), even though the politicians want $$$$.  In politics, the Supreme Court has ruled that money = speech.   This I believe is at the core of the whole Obama/Hope poster drama, if you look at my posts on Shepard Fairey, it is explained there.

But I been a liberal since I don't know when.
CDCA: No Fair Use - Politico Infringed Don Henley Copyrights




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10th Cir: Golan v Holder - First Amendment Challenge to Berne Convention's Taking Works Out of Public Domain Retroactively Fails

The 10th Circuit ruled yesterday against a group of distributors of foreign copyrighted works that had fallen into the public domain, but which Congress had restored copyright status by 1994 legislation implementing the Berne Convention, following the Uruguay Round of trade negotiations.

The group, represented in part by Prof. Lawrence Lessig and the Center for Internet and Society, included a man who had composed a marching band song based on a Shostakovitch symphony that had fallen into the public domain.

The situation arose because the US used to have a rule that if you didn't put a copyright notice on your work and register it with the US copyright office, it would fall into the public domain.   Many distributors of foreign copyrighted works failed to put proper notices on them or register them with the copyright office.  Notices and registration are known as "formalities".   For a while, the US was a rare country that required formalities, most didn't, pursuant to the Berne Convention.   The US enacted the Berne Convention Implementation Act in 1988 abolishing the requirement of formalities, but it did not restore copyright protection to foreign works that had fallen out of copyright.  In 1994, Congress restored copyright protection to these foreign works (it was not automatic and involved some bureaucracy).  People who'd used the works or created derivative works were supposed to work out reasonable license fees or have them fixed by the courts.

You can find the requirement of formalities in the Copyright Act of 1909.  I have included the entire 1909 Copyright Act for easy reference as an appendix to my Copyright Litigation Handbook.

The decision has a lot of interesting legislative history, and it's got a lot of litigation history.  (From my memory) it was in district court where plaintiff lost, there was an appeal that plaintiff won with instruction to perform a First Amendment analysis on remand, then plaintiff won again with the district judge holding that the statute violated the First Amendment.  Now, the 10th Circuit reverses, link to decision below:

10th Cir: Golan v Holder - First Amendment Challenge To Removal of Copyrighted Works From Public Domain Fails



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Know Your Meme: Growing Up With a New Gotti Haircut

Fair use, parody, internet commentary, the importance of Growing Up Gotti

Register of Copyrights Marybeth Peters in a Mashup

Mashup: Arizona's Governor Urges Politicians To Read Immigration Law

Nice example of ripping the faces of politicians and mashing them to music.  This is what Arizona is spending its tax money on?  If you learn how to read, you will want to throw away the right to be free from unreasonable searches and seizures?

Thanks to http://www.gather.com/

Copyright, Censorship and the First Amendment Salinger v. Colting (Catcher in the Rye)

Salinger v. Colting, 2010 WL 1729126, 9 (2d Cir. April 30, 2010)

Here is the court's holding (emphasis mine)

Therefore, in light of Winter and eBay, we hold that a district court must undertake the following inquiry in determining whether to grant a plaintiff's motion for a preliminary injunction in a copyright case.

First, as in most other kinds of cases in our Circuit, a court may issue a preliminary injunction in a copyright case only if the plaintiff has demonstrated “either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the [plaintiff]'s favor.” NXIVM Corp., 364 F.3d at 476; see also, e.g., Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 116 (2d Cir.2009).

Second, the court may issue the injunction only if the plaintiff has demonstrated “that he is likely to suffer irreparable injury in the absence of an injunction.” Winter, 129 S.Ct. at 374. The court must not adopt a “categorical” or “general” rule or presume that the plaintiff will suffer irreparable harm (unless such a “departure from the long tradition of equity practice” was intended by Congress). eBay, 547 U.S. at 391, 393-94. Instead, the court must actually consider the injury the plaintiff will suffer if he or she loses on the preliminary injunction but ultimately prevails on the merits, paying particular attention to whether the “remedies available at law, such as monetary damages, are inadequate to compensate for that injury.” eBay, 547 U.S. at 391; see also Winter, 129 S.Ct. at 375 (quoting 11A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2948.1 (2d ed.1995), for the proposition that an applicant for a preliminary injunction “must demonstrate that in the absence of a preliminary injunction, ‘the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered’ ”).

Third, a court must consider the balance of hardships between the plaintiff and defendant and issue the injunction only if the balance of hardships tips in the plaintiff's favor. Winter, 129 S.Ct. at 374; eBay, 547 U.S. at 391. Finally, the court must ensure that the “public interest would not be disserved” by the issuance of a preliminary injunction. eBay, 547 U.S. at 391; accord Winter, 129 S.Ct. at 374.

In analyzing the second prong, the court noted:

The plaintiff's interest is, principally, a property interest in the copyrighted material. See Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 661, 8 L.Ed. 1055 (1834). But as the Supreme Court has suggested, a copyright holder might also have a First Amendment interest in not speaking. See Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 559, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). The defendant to a copyright suit likewise has a property interest in his or her work to the extent that work does not infringe the plaintiff's copyright. And a defendant also has a core First Amendment interest in the freedom to express him- or herself, so long as that expression does not infringe the plaintiff's copyright.

*  *  *  and


Additionally, “[t]he loss of First Amendment freedoms,” and hence infringement of the right not to speak, “for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976).FN10


The interplay of these rights: a First Amendment right to speak, a First Amendment right NOT to speak, and a First Amendment right to portions of the work that do not infringe - will be the fair use battleground of the future.

The problem with this case is that we can't get a copy of the book to see what it actually looks like.   I am skeptical that a book written about a 60-year old man named "Mr. C" could really be so likely to be copyright infringement.  The testimony of the English professors in favor of the defendant and the degree of Holden Caulfield literature out there, Holden's iconic status - and the lack of exploitation appear to be factors weighing in his favor. 

I am not persuaded that Salinger's "right not to speak" is implicated.  Back to the land analogy: if you let your land lie fallow for too long and it becomes overgrown, let someone else till it.  A hot new character in whom a corporate entity is pumping millions should be considered "strong" - like a well-advertised trademark.   But a "Mr. C" who is said to resemble a character not developed for 60 years?  That is a stretch to me.

More troubling to me is that the publicity or book jacket said it was a "sequel".  That is a problem and was probably a stupid mistake that could be remedied without censoring the book.

The case raises First Amendment issues for me unless the book really has major cuts and pastes from "Catcher".   But since I'm banned from reading it, my readers are irreparably harmed by my ignorance, and the poor judges involved are harmed by my skepticism that they are correct.

Fair Use Fights Captain America - Basic Books v Kinko's Copyright PSA

Second Circuit - Arista Records v Doe 3: Copyright Infringement Trumps Anonymity and First Amendment

In Arista Records v. Doe 3, --- WL --- 172107 (2d Cir. April 29, 2010) the Second Circuit permitted a record company to subpoena the anonymous defendants' internet service provider, the State University of New York at Albany.   Doe 3 tried to quash the subpoena, arguing that Doe 3 had a First Amendment right to anonymous speech through the internet.   The court acknowledged the First Amendment right to anonymous speech, but noted that the interest or "qualified privilege" was outweighed by the rights of a copyright owner that had made sufficiently specific allegations of copyright infringement.   In getting there, the court applied a test devised by then-District Court Judge Denny Chin (who is now on the Second Circuit):

1. the concreteness of the plaintiff's showing of a prima facie claim of actionable harm;
2. the specificity of the discovery request;
3. the absence of alternative means of obtaining the subpoenaed information to advance the claim; and
4. the objecting party's expectation of privacy.

The subpoena listed 236 works, with specific owners and songs, among them Beastie Boys' Licensed To Ill.  The Urban Dictionary defines "illin" here, and in relevant part:

3. illin

buy illin mugs, tshirts and magnetsDoing stuff you shouldn't be doing (aka bad shit) while hanging out with friends, like drugs or vandalism.


Donna: "What are the plans for tonight, Fred?"


Fred: "Oh Hangin', Chillin'.... Little bit a illin."


chilling chillaxing hanging causing ruckus creating trouble

Doe 3 and the kids at SUNY Albany been illin.  Decision below.

Second Circuit - Arista Records v Doe 3 Copyright Infringement Trumps Anonymity and First Amendment

SCOTUS - Congress Lacks Power to Criminalize Depictions of Killing Wounding and Torturing Animals

In an attempt to stop "crush videos" (explanation of a sexual fetish involving a dominatrix stomping on animals in high heels or bare feet here and here ), Congress passed a law reading as follows:

18 U.S.C. §48. Depiction of animal cruelty


“(a) CREATION, SALE, OR POSSESSION.—Whoever knowingly creates,sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5years, or both. “(b) EXCEPTION.—Subsection (a) does not apply to any depictionthat has serious religious, political, scientific, educational, journalistic, historical, or artistic value. “(c) DEFINITIONS.—In this section— “(1) the term ‘depiction of animal cruelty’ means any visual orauditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured,wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place,regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State; and ( ... ***)
 
In United States v. Stevens, 559 U.S. ___ (April 20, 2010) found here, Congress affirmed the Third Circuit's striking the statute down as overbroad and unconstitutional.  From the decision:
 
The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” “[A]s a general matter, the First Amendment means that gov-ernment has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573 (2002) (internal quotation marks omitted). Section 48 explicitly regulates expression based on content: The statute restricts “visual [and] auditory depiction[s],” such as photographs, videos, or sound recordings, depending on whether they depict conduct in which a living animal isintentionally harmed. As such, §48 is “‘presumptively invalid,’ and the Government bears the burden to rebut that presumption.” United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 817 (2000) (quoting R. A. V. v. St. Paul, 505 U. S. 377, 382 (1992); citation omitted).
 
The Supreme Court goes on to analyze how the statute may be used to apply to situations involving perfectly legal and ethical behavior having nothing to do with crush videos.   The defendant was prosecuted for inter alia distributing videos of legal Japanese dogfights from decades past.
 
The decision shows a healthy skepticism of the government's claims that prosecutorial discretion will be used in the enforcement of an overbroad statute.   It is amazing how many Americans watch hunting videos (for recreation, not instruction), and the decision is interesting for its exploration of the depth and breadth of human cruelty for enjoyment's sake.
 
I agree with Clancco that the decision is a correct one.  The decision will be misread by popular media as endorsing cruelty to animals, it does no such thing and it speaks approvingly of state statutes regulating cruelty to animals.