©opyBites: Copyright Law Blog

Some People Started Singing It Not Knowing What It Was . . .

• At this point, if anyone doesn't believe that Copyright law doesn't encourage creative expression, then they obviously have not been following the ever-increasing number of opinions expressed over the Google Print controversy. This time around, the founder and CEO of O'Reilly Media, Tim O'Reilly, provides an overview of positions on the Google Print controversy expressed over on Dave Farber's IP mailing list. Participants in the discussion include Tim O'Reilly, Cindy Cohn of the EFF, and other notable individuals.

Summary of Arguments Favoring Google

• Donna Wentworth has gathered snippets of commentary from the "discussion" surrounding Google Print that, with one exception, consistently criticizes the Authors Guild's and the Association of American Publishers' lawsuits against Google. The one exception, by the way, was likely provided to serve only as reference for a succeeding quote of material that criticized it. While Wentworth is clearly not interested in providing an unbiased view of the opinions on Google Print, the post is still worthwhile summary of various arguments defending Google's activities.

Is the Copyright Holders' Agenda the True Radical Agenda?

• Tim Lee, editor at the Show-Me Institute, describes his new article on Reason Online as contending with "a disingenuous argument that’s often heard in copyright debates: that those who defend the traditional scope of copyright (including principles such as fair use and limited terms) are really just opponents of intellectual property who want to (as Jame DeLong put it a couple of months ago) 'abolish intellectual property rights in favor of some mystical commune wherein all IP is free as the air and creators are compensated by government.'"

Judg Alito on Copyright

• Judge Alito is now the new nominee to replace Sandra Day O'Conner on the Supreme Court. William Patry, Laura Quilter, and Joe Miller have posts discussing Alito's past positions on issues of Copyright Law.

  Alito's most famous copyright case is likely Southco v. Kanebridge, 258 F.3d 148 (3rd Cir. 2001). In Southco, Alito held that Southco's part numbers were not copyrightable due to lack of creativity in forming the numbers. This lack of creativity was found, in part, because the numbers could essentially be determined by a process based on their physical characteristics. In addition, Alito felt that the principle in Copyright Law that short phrases in Copyright Law are not copyrightable was another persuasive reason for denying copyright protection to part numbers.

Avnet Guilty of Willful Infringement

Coogan v. Avnet, Inc. (D.Ariz. Oct. 24th, 2005)

Plaintiff Dan Coogan, on a motion for partial summary judgment, claimed that Avnet, Inc. and others had willfully violated his copyright in photographs of Avnet's CEO, Roy Vallee. Coogan had taken the photographs for Upside Magazine and afterward provided one-time usage rights over the photographs to Avnet. Later, Coogan discovered that Avent had used the photographs more than once without permission. Avnet responded to Coogan's concerns by entering into a limited license agreement with Coogan. Eventually, Avnet again violated their license and Coogan filed suit.

Avnet and its representatives defended against the charge of willful infringement by claiming that "the copyright violation was the product of a good faith mistake as to the terms of the Invoice, and was therefore not 'willful' within the meaning of the Copyright Act." Judge Bolton rejected the argument, as a defense against willful infringement requires not only a good faith belief in the mistake, but also that the mistake was a reasonable one. In this case, where Avnet and its representatives had violated prohibitions explicitly established in the license, the district court had no difficulty in granting partial summary judgment to the plaintiff on the issue of willfull infringement.

Originality of Drum Loop Goes to Trial

Vargas v. Pfizer, Inc. (S.D.N.Y. Oct. 26th, 2005)

Defendant on motion for summary judgment claimed that the musical composition "Bust Dat Groove Without Ride" lacks originality “because, as a ‘one-bar drum rhythm,’ it is a common groove track whose elements are found in elementary drum instruction books and frequently used by musical artists.” The district court denied the motion for summary judgement. Judge Pauley noted that under Feist, the court only requires minimal creativity, and further that "[o]riginality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying." Thus, on the a motion for summary judgment, as a matter of law, the court could not rule that the composition of Bust Dat Groove lacks originality.

Lessig on Google Print

• Wired: Larry Lessig's column on Wired argues that a loss for Google would chill technological innovation. In addition, he gives a glimpse of his legal argument for Google's protection:

  "[T]he Congress that altered the copyright statutes in 1909 didn't have Google Print in mind. By copy, Congress meant the sort of act that would be in competition with the incentives that copyright law was (fittingly) meant to establish for authors. Nothing in what Google wants to do affects those incentives to creativity."

Getting to Know Brewster Kahle

• Mercury News: Chris O'Brien, reporter for the Mercury News, has written an article that details the life and motivation of Brewster Kahle. Brewster Kahle is the founder of the Internet Archive project and also a major figure in the development of the Open Content Alliance.

Upcoming "Mobblog" on Copyright Law and Users of Copyrighted Works

• University of Chicago Law Professor Randy Picker has announced that his next "Mobblog" will be on Julie Cohen's new paper The Place of the User in Copyright Law.

  The Mobblog will start on November 15th with a posting of Cohen's article. The article will then be followed by scholarly commentary by designated participants, which will likely include the author, Randy Picker, Doug Lichtman, Rebecca Tushnet, Tim Wu, and perhaps even others.

RLG Joins Open Content Alliance

• The Research Library Group, which consists of over 150 research libraries, archives, museums, and other cultural memory institutions, has joined the Open Content Alliance. "RLG's immediate role in this initiative will be to supply the bibliographic information needed to aid in materials selection and description . . . ."