Aereo’s network receives broadcast television programming through thousands of dime-sized antennas. Aereo makes that programming available to subscribers by streaming the programming over the Internet. Each subscriber is assigned a dedicated antenna that is not available to any other subscriber for the duration of the selected program. A personal copy of the selected program is made for each subscriber. Only the subscriber can access her personal copy. When the broadcast companies sued Aereo for copyright infringement, the district court denied the broadcasters’ motion for a preliminary injunction. The Second Circuit affirmed, ruling that Aereo does not publicly perform the transmitted works because the stream to the subscriber is a private transmission. Read more about the Second Circuit’s decision in my post Unauthorized Streaming of Television Broadcasts Not Infringing.
Copyright owners have the exclusive right to publicly perform the works that they own. The U.S. Supreme Court majority saw this case as reducing down to two questions: “First, in operating in the manner described above, does Aereo ‘perform’ at all? And second, if so, does Aereo do so ‘publicly’?” (Opinion pdf page 8). The Court ruled that Aereo’s activities are both a performance and a public performance. Aereo infringes by violating the copyright owners’ exclusive right of public performance.
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Can the editor of a collection of stories based on the Sherlock Holmes characters and written by modern authors publish and distribute the collection without infringing the copyrights on the 10 Sherlock Holmes stories that are still protected by copyright? Yes, ruled the Seventh Circuit Court of Appeals, as long as the collection is based on the 56 stories and 4 novels that are in the public domain and not on the 10 stories that are still protected by copyright. Arthur Conan Doyle’s estate can’t leverage the copyrights of the 10 protected stories to claim copyright protection for the other 56 stories and 4 novels.
Arthur Conan Doyle wrote the Sherlock Holmes stories between 1887 and 1927. The Copyright Act of 1976 protects works that were created from 1923 to the present. The 56 stories and 4 novels written by Doyle before 1923 are in the public domain. A public domain work is a work that is not protected by copyright. Public domain works belong to the public and anyone can use them without permission and, therefore, without infringing the rights of the most recent copyright owner. Leslie Klinger planned to publish a collection of stories created by modern authors and based on the Sherlock Holmes characters. Conan Doyle Estate, Ltd., heard of the plan and threatened to prevent distribution of the book. Klinger brought a declaratory judgment action against the estate, asking the court to declare that he can use the Sherlock Holmes stories and novels that are no longer protected by copyright. The district court ruled in Klinger’s favor and the Seventh Circuit affirmed.
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The Second Circuit Court of Appeals upheld the district court’s decision that two of the three uses of copyrighted works by the HathiTrust Digital Library (HDL) are fair uses. The three uses are full text search, access to the print-disabled and preservation. Categorizing these uses as “fair uses” runs contrary to true fair use, according to Professor Jane C. Ginsburg. My post, True Fair Use Is About Authorship and Nothing Else, further describes Professor Ginsburg’s position. I agree with Professor Ginsburg that the uses upheld by the Second Circuit have nothing to do with authorship. However, these uses benefit society and would not be allowed to continue if they weren’t found to be fair uses. The greater question becomes how far should we extend copyright protection to benefit society when the legal analysis undertaken by the court doesn’t make sense from a legal theory point of view.
The HDL contains over ten million works contributed by colleges, universities and other nonprofit institutions. The HathiTrust began in 2008, when thirteen universities agreed to allow Google to electronically scan their book collections and create a repository for the digital copies of the scanned works. Authors and authors’ associations sued HathiTrust for copyright infringement. The Second Circuit ruled that because third parties cannot file suit on behalf of authors under the Copyright Act, author associations based in the U.S. do not have standing to bring this suit. Only the copyright owner can enforce the copyright. Foreign author associations do have standing, though, and the Second Circuit proceeded with its analysis on that basis. The Second Circuit did not discuss the standing of the individual author plaintiffs.
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As a business model, Prenda Law, a law firm, formed AF Holdings. AF Holdings acquired the copyrights to pornographic movies and filed massive copyright infringement lawsuits against anonymous copyright infringers, John Does, for unauthorized downloading. AF Holdings would next seek discovery. Through discovery, it would obtain contact information for account subscribers of the IP addresses from which the porno films were downloaded. It would then contact and negotiate settlements with the subscribers. Lawsuits against defendant subscribers who decided to litigate were dismissed by AF Holdings. According to an article on Prenda Law’s practices, it made about $15 million from the John Doe copyright infringement lawsuits in less than three years.
After the district court judge granted discovery from Internet service providers in one such case, Cox Communications and other Internet service providers appealed, arguing that responding to the subpoenas would be unduly burdensome and that the district court lacked venue and personal jurisdiction over most subscribers. Most of the subscribers resided outside of the district court’s jurisdiction. Obtaining information about Internet subscribers residing outside of the district would allow AF Holdings to pressure those subscribers into settlements without requiring AF Holdings to comply with applicable statutes and court rules.
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