Megan Miller, CNN; Appeals court upholds ruling in Seinfeld cookbook case:
"The author of a children's cookbook cannot copyright ideas for slipping vegetables into children's food, a federal appeals court said in upholding a ruling in favor of the wife of comedian Jerry Seinfeld in a copyright infringement case.
Jessica Seinfeld wrote a cookbook, "Deceptively Delicious," offering tips that were similar to those of author Missy Chase Lapine, author of "The Sneaky Chef." Lapine sued, claiming that Seinfeld had stolen the ideas.
In a ruling announced Wednesday, the 2nd U.S. Circuit Court of Appeals upheld a lower court's judgment there was no copyright infringement.
"Stockpiling vegetable purees for covert use in children's food is an idea that cannot be copyrighted," the court said in its decision.
In upholding the lower court's ruling, the appellate conducted it's own comparison of the books and confirmed that they were very different. Both courts found that the books were not substantially similar, and that there was no copying.
Seinfeld's attorney, Orin Snyder, called Lapine's accusations "an abuse of the judicial system."
"Two different courts have now seen through these false allegations, and that is why this case has been definitively thrown out of court," he said in a statement.
But Lapine's attorney, Howard Miller, said the copyright issue is only "one part of the dispute."
"We regret that the court ruled the way it did, [but] the other part of the case will go forward," Miller said, citing a defamation lawsuit against Jerry Seinfeld for remarks he made about Lapine on "Late Show With David Letterman.""
http://www.cnn.com/2010/CRIME/04/28/jessica.seinfeld.ruling/
Monday, May 3, 2010
Sunday, April 25, 2010
Judge Presiding Over Google Settlement Moves Up; Publishers Weekly, 4/22/10
Andrew Albanese, Publishers Weekly; Judge Presiding Over Google Settlement Moves Up:
"In yet another twist in the Google Books Settlement, the judge presiding over the deal's approval, Denny Chin, was confirmed by the Senate for a seat on the Second Circuit Court of Appeal, 98-0. Although it is unclear exactly how Chin's promotion might affect the Google Settlement, four immediate questions stand out:
First, does the appointment mean a settlement decision is coming sooner, rather than later? With Chin to take his seat as soon as possible, he will certainly want to expedite his current caseload as much as possible. On the other hand, Chin may choose to pass the case on to another judge entirely, which could delay a ruling. On his blog, Scrivener's Error, attorney C.E. Petit thinks Chin will likely pass along the Goolge ruling. "If Judge Chin isn't pretty well already done writing his opinion(s)," Petit summarized, "everything that is currently live in GBS is almost certainly going to be decided by somebody else."
Second, looking ahead, how might Chin's appointment affect the settlement's appeal process? Many suspect that whatever Chin's ruling, it will be appealed to the Second Circuit-the very Court Chin has just been appointed to. Chin will certainly have to recuse himself from the appeal.
Third, the recently-launched visual artists' suit against Google will be impacted. Chin was assigned to that case as well, and a new judge will now be appointed. Given Chin's familiarity with the settlement, there will be some affect on the judicial economy of that suit. The suit, which seeks "monetary, injunctive, and declaratory relief," was filed after Chin denied a request by the artists to join authors and publishers' $125 million class action settlement as a party.
And fourth, could Chin could now be involved in the Muchnick v. Reed Elsevier appeal? That case was recently remanded to the Second Circuit by the Supreme Court. It could be fascinating to see how Chin's thinking on the Google settlement manifests itself in that ruling, or, if he recuses himself from that case, citing similarity. Muchnick v. Reed Elsevier stems from the long-running Tasini v. New York Times case, the settlement of which includes a license-by-default much like the one at issue in the Google settlement. "I believe that, from a practical standpoint, the root issues in [Google and Tasini] are identical," lead objector Irv Muchnick told PW in April, "and that they should be coordinated in some fashion."
While the publishing world knows Chin to be the man deciding the fate of the Google settlement, he is probably better known to the world-and the Senate-as the man who put Ponzi-schemer Bernie Madoff away. In addition, Chin, born in Hong Kong, is now the only active Asian-American judge on a federal appeals court. Chin's appointment had been held up by anonymous holds in the Senate. The Second Circuit Court is based in New York City, and most recently saw one its own, Sonia Sotomayor, rise to the Supreme Court."
http://www.publishersweekly.com/article/457043-Judge_Presiding_Over_Google_Settlement_Moves_Up.php
"In yet another twist in the Google Books Settlement, the judge presiding over the deal's approval, Denny Chin, was confirmed by the Senate for a seat on the Second Circuit Court of Appeal, 98-0. Although it is unclear exactly how Chin's promotion might affect the Google Settlement, four immediate questions stand out:
First, does the appointment mean a settlement decision is coming sooner, rather than later? With Chin to take his seat as soon as possible, he will certainly want to expedite his current caseload as much as possible. On the other hand, Chin may choose to pass the case on to another judge entirely, which could delay a ruling. On his blog, Scrivener's Error, attorney C.E. Petit thinks Chin will likely pass along the Goolge ruling. "If Judge Chin isn't pretty well already done writing his opinion(s)," Petit summarized, "everything that is currently live in GBS is almost certainly going to be decided by somebody else."
Second, looking ahead, how might Chin's appointment affect the settlement's appeal process? Many suspect that whatever Chin's ruling, it will be appealed to the Second Circuit-the very Court Chin has just been appointed to. Chin will certainly have to recuse himself from the appeal.
Third, the recently-launched visual artists' suit against Google will be impacted. Chin was assigned to that case as well, and a new judge will now be appointed. Given Chin's familiarity with the settlement, there will be some affect on the judicial economy of that suit. The suit, which seeks "monetary, injunctive, and declaratory relief," was filed after Chin denied a request by the artists to join authors and publishers' $125 million class action settlement as a party.
And fourth, could Chin could now be involved in the Muchnick v. Reed Elsevier appeal? That case was recently remanded to the Second Circuit by the Supreme Court. It could be fascinating to see how Chin's thinking on the Google settlement manifests itself in that ruling, or, if he recuses himself from that case, citing similarity. Muchnick v. Reed Elsevier stems from the long-running Tasini v. New York Times case, the settlement of which includes a license-by-default much like the one at issue in the Google settlement. "I believe that, from a practical standpoint, the root issues in [Google and Tasini] are identical," lead objector Irv Muchnick told PW in April, "and that they should be coordinated in some fashion."
While the publishing world knows Chin to be the man deciding the fate of the Google settlement, he is probably better known to the world-and the Senate-as the man who put Ponzi-schemer Bernie Madoff away. In addition, Chin, born in Hong Kong, is now the only active Asian-American judge on a federal appeals court. Chin's appointment had been held up by anonymous holds in the Senate. The Second Circuit Court is based in New York City, and most recently saw one its own, Sonia Sotomayor, rise to the Supreme Court."
http://www.publishersweekly.com/article/457043-Judge_Presiding_Over_Google_Settlement_Moves_Up.php
GBS: Chin Is In; James Grimmelmann's Laboratorium Blog, 4/22/10
James Grimmelmann's Laboratorium Blog; GBS: Chin Is In:
"Denny Chin was unanimously confirmed by the Senate this morning for a seat on the United States Court of Appeals for the Second Circuit. Congratulations to Judge Chin.
I don’t know what this means for the Google Books case, and would rather just wait to see than speculate."
http://laboratorium.net/archive/2010/04/22/chin_is_in
"Denny Chin was unanimously confirmed by the Senate this morning for a seat on the United States Court of Appeals for the Second Circuit. Congratulations to Judge Chin.
I don’t know what this means for the Google Books case, and would rather just wait to see than speculate."
http://laboratorium.net/archive/2010/04/22/chin_is_in
Tech Companies Fear Implications of Trade Pact; New York Times, 4/20/10
Associated Press via New York Times; Tech Companies Fear Implications of Trade Pact:
"Companies across the technology industry -- from Internet access providers to social networking sites to video-sharing services -- are bracing for this week's release of a draft of a trade agreement that they fear could undermine all sorts of online activities.
The agreement, being negotiated by the United States and nearly a dozen trading partners, is intended to create an international framework to crack down on counterfeiting, copyright violations and other intellectual property theft. But skeptics warn that it could chill free speech and other online expression by making technology companies liable for the misdeeds of their users.
''If online platforms themselves are held liable in a way that is overly broad, the platforms themselves will start screening and censoring or scaling back how open to user participation they are,'' said David Sohn, senior policy counsel for the Center for Democracy & Technology, an interest group that advocates for civil liberties online. ''They will have to exercise really tight control.''
The Bush administration began negotiating the Anti-Counterfeiting Trade Agreement, or ACTA, in the fall of 2007 in an effort to harmonize intellectual property protections across different nations. The far-reaching agreement would encompass everything from counterfeit pharmaceuticals to fake Prada bags to online piracy of music and movies. Once ratified, trade agreements take full effect and a country can face complaints for noncompliance.
Since early on, the talks have been mired in controversy. For one thing, countries that are considered the biggest sources of intellectual property theft -- such as China and Indonesia -- are not participating. Nations taking part include the European Union member states, Japan, Korea, Canada, Mexico, Morocco, New Zealand, Singapore, Switzerland and Australia.
The negotiations have been held behind closed doors, with no opportunity for public comment or outside input. Earlier versions of the trade agreement have been leaked, but the first official draft won't be released until Wednesday -- even though last week's talks in New Zealand marked the eighth round of negotiations. The next round will take place in Switzerland in June.
Michael Geist, a law professor at the University of Ottawa who specializes in Internet and electronic commerce issues, argues that because the agreement could reshape intellectual property laws in so many countries, the proper forum for such negotiations is the World Intellectual Property Organization. WIPO negotiations are more open to public scrutiny and include countries where much of the counterfeiting takes place, he noted.
''Anyone in a democratic country should be uncomfortable when governments go behind closed doors to negotiate an agreement that will ultimately have a significant impact on domestic law,'' Geist said.
Many technology companies fear that ACTA could undermine existing legal precedent and intellectual property laws in the United States, including the landmark 1998 Digital Millennium Copyright Act. The current U.S. legal framework includes important protections for Internet service providers and other technology companies when their users are accused of copyright infringement. Although current law requires companies to remove infringing content, it limits their liability.
Most big technology companies are hesitant to comment on the record about ACTA until they see an official draft, but privately they say that immunity is critical not just for Internet service providers such as AT&T Inc. and Verizon Communications Inc., but also for any online company that hosts user-generated content. That includes social networking sites such as Facebook, video-sharing sites such as Google Inc.'s YouTube and even the online encyclopedia Wikipedia.
The darkest fear of the technology companies is that ACTA contains provisions that would require them to cut off access to users who violate copyright protections and possibly would hold the companies liable for violations.
The dangers of such ''secondary liability'' were underscored by a recent court ruling in Italy, which held three Google executives criminally responsible for hosting an online video of an autistic teenager being bullied, said Sohn of the Center for Democracy & Technology.
Sohn also said he worries that the trade agreement will exclude another ''safeguard'' in U.S. law -- the ''fair use'' doctrine, which allows limited use of copyright-protected material for commentary, criticism, research, teaching and news reporting.
''While this is being characterized as an anti-counterfeiting agreement, it is really a copyright deal with rules that will affect the daily lives of millions of people both online and in the digital realm,'' Geist said.
ACTA skeptics aren't only worried that it will bring more-restrictive rules to the U.S. Sherwin Siy, deputy legal director for Public Knowledge, another public interest group, fears that ACTA could also export strict, punitive copyright enforcement measures that exist in U.S. law to other countries. That could include high statutory damage awards, he said.
To be sure, ACTA has plenty of defenders. In November, a long list of media companies and trade groups, including the Motion Picture Association of America and the Recording Industry Association of America, sent a letter to Congress expressing support for the agreement.
ACTA, they wrote, has the potential to ''preserve high value American jobs, and create new ones'' and ''buttress our country's leading position in the creation, publishing and distribution of software, video games, films, music, books, television programs, journals, visual materials and other works protected by copyright.''
The office of the U.S. Trade Representative, which is negotiating ACTA on behalf of the U.S., said in a statement that it is working to implement ''President Obama's commitment to aggressively protect American intellectual property overseas'' and is ''respecting the balance struck by the U.S. Congress on these issues.''
The trade representative added that secondary liability for copyright infringement already exists in U.S. and foreign laws. ACTA, it hopes, would ''protect Internet intermediaries from secondary liability if they play by the rules.''"
http://www.nytimes.com/aponline/2010/04/20/business/AP-US-TEC-Copyright-Trade-Agreement.html?_r=1&scp=1&sq=acta&st=cse
"Companies across the technology industry -- from Internet access providers to social networking sites to video-sharing services -- are bracing for this week's release of a draft of a trade agreement that they fear could undermine all sorts of online activities.
The agreement, being negotiated by the United States and nearly a dozen trading partners, is intended to create an international framework to crack down on counterfeiting, copyright violations and other intellectual property theft. But skeptics warn that it could chill free speech and other online expression by making technology companies liable for the misdeeds of their users.
''If online platforms themselves are held liable in a way that is overly broad, the platforms themselves will start screening and censoring or scaling back how open to user participation they are,'' said David Sohn, senior policy counsel for the Center for Democracy & Technology, an interest group that advocates for civil liberties online. ''They will have to exercise really tight control.''
The Bush administration began negotiating the Anti-Counterfeiting Trade Agreement, or ACTA, in the fall of 2007 in an effort to harmonize intellectual property protections across different nations. The far-reaching agreement would encompass everything from counterfeit pharmaceuticals to fake Prada bags to online piracy of music and movies. Once ratified, trade agreements take full effect and a country can face complaints for noncompliance.
Since early on, the talks have been mired in controversy. For one thing, countries that are considered the biggest sources of intellectual property theft -- such as China and Indonesia -- are not participating. Nations taking part include the European Union member states, Japan, Korea, Canada, Mexico, Morocco, New Zealand, Singapore, Switzerland and Australia.
The negotiations have been held behind closed doors, with no opportunity for public comment or outside input. Earlier versions of the trade agreement have been leaked, but the first official draft won't be released until Wednesday -- even though last week's talks in New Zealand marked the eighth round of negotiations. The next round will take place in Switzerland in June.
Michael Geist, a law professor at the University of Ottawa who specializes in Internet and electronic commerce issues, argues that because the agreement could reshape intellectual property laws in so many countries, the proper forum for such negotiations is the World Intellectual Property Organization. WIPO negotiations are more open to public scrutiny and include countries where much of the counterfeiting takes place, he noted.
''Anyone in a democratic country should be uncomfortable when governments go behind closed doors to negotiate an agreement that will ultimately have a significant impact on domestic law,'' Geist said.
Many technology companies fear that ACTA could undermine existing legal precedent and intellectual property laws in the United States, including the landmark 1998 Digital Millennium Copyright Act. The current U.S. legal framework includes important protections for Internet service providers and other technology companies when their users are accused of copyright infringement. Although current law requires companies to remove infringing content, it limits their liability.
Most big technology companies are hesitant to comment on the record about ACTA until they see an official draft, but privately they say that immunity is critical not just for Internet service providers such as AT&T Inc. and Verizon Communications Inc., but also for any online company that hosts user-generated content. That includes social networking sites such as Facebook, video-sharing sites such as Google Inc.'s YouTube and even the online encyclopedia Wikipedia.
The darkest fear of the technology companies is that ACTA contains provisions that would require them to cut off access to users who violate copyright protections and possibly would hold the companies liable for violations.
The dangers of such ''secondary liability'' were underscored by a recent court ruling in Italy, which held three Google executives criminally responsible for hosting an online video of an autistic teenager being bullied, said Sohn of the Center for Democracy & Technology.
Sohn also said he worries that the trade agreement will exclude another ''safeguard'' in U.S. law -- the ''fair use'' doctrine, which allows limited use of copyright-protected material for commentary, criticism, research, teaching and news reporting.
''While this is being characterized as an anti-counterfeiting agreement, it is really a copyright deal with rules that will affect the daily lives of millions of people both online and in the digital realm,'' Geist said.
ACTA skeptics aren't only worried that it will bring more-restrictive rules to the U.S. Sherwin Siy, deputy legal director for Public Knowledge, another public interest group, fears that ACTA could also export strict, punitive copyright enforcement measures that exist in U.S. law to other countries. That could include high statutory damage awards, he said.
To be sure, ACTA has plenty of defenders. In November, a long list of media companies and trade groups, including the Motion Picture Association of America and the Recording Industry Association of America, sent a letter to Congress expressing support for the agreement.
ACTA, they wrote, has the potential to ''preserve high value American jobs, and create new ones'' and ''buttress our country's leading position in the creation, publishing and distribution of software, video games, films, music, books, television programs, journals, visual materials and other works protected by copyright.''
The office of the U.S. Trade Representative, which is negotiating ACTA on behalf of the U.S., said in a statement that it is working to implement ''President Obama's commitment to aggressively protect American intellectual property overseas'' and is ''respecting the balance struck by the U.S. Congress on these issues.''
The trade representative added that secondary liability for copyright infringement already exists in U.S. and foreign laws. ACTA, it hopes, would ''protect Internet intermediaries from secondary liability if they play by the rules.''"
http://www.nytimes.com/aponline/2010/04/20/business/AP-US-TEC-Copyright-Trade-Agreement.html?_r=1&scp=1&sq=acta&st=cse
India Introduces Draft Copyright Amendments; Some Good, Some Bad; TechDirt, 4/23/10
Mike Masnick, TechDirt; India Introduces Draft Copyright Amendments; Some Good, Some Bad:
"Michael Geist points our attention to the news that India has introduced a draft of proposed amendments to its copyright law, in an attempt to bring India's copyright laws into alignment with those ever popular "international obligations" found in various (industry dominated) treaties. There were reports late last year that the proposals were likely to be draconian, as the negotiations had mainly been between the government and the recording industry with no input from the public. However, the actual proposal (pdf) is much more of a mixed bag -- with lots of somewhat surprisingly good things included.
For example, it extends the concept of "fair dealing" to cover "private and personal use" and makes sure that anti-circumvention rules only apply when the circumvention is used to infringe on copyrights. The US anti-circumvention clause in the DMCA makes no such distinction (so even if you circumvent copy protection for a perfectly legal reason -- such as to make a personal backup -- it's still infringement just to circumvent). Also, the new proposal would allow more access to copyrighted works by "physically challenged persons." However, it appears that some feel that those provisions don't go far enough. It allows for the conversion of copyrighted works into Braille without having to pay a fee, but many visually impaired point out that it does not cover converting the works to audio formats with e-reading software or audiobooks. Some political parties are threatening to boycott the proposal if this part isn't fixed.
The part of the bill that's getting the most attention in India is that it would create an additional right for content creators, which they would hold onto, rather than having the right transferred over to the producers and record labels. In other words, it seeks to make sure that the actual content creators don't have their rights stripped from them by the industry. Not surprisingly, the record labels are up in arms about this, and find the whole thing to be terribly unfair. In their defense, it is a bit strange to set up a copyright where the rights are not transferable, even if the purpose is really to give more power to the content creators themselves.
That controversial clause does seem like a mixed bag itself. Decreasing the control the industry has over actual content creators is a good thing, but I'm not sure layering on another "right" is the way to do it. There are some other questionable aspects of the bill as well -- including (of course) extending the length of copyright, in some cases, for no good reason. It also sets up new statutory compulsory rights. While those sometimes are useful in clearing up confusion, it creates a totally arbitrary system for setting payment rates, rather than letting the market figure it out.
Overall, it sounds like this is better than many of the proposed copyright law changes out there -- and I'm sure that the entertainment industry, who had been pushing for India to put potential infringers in jail, won't like this one bit -- but it's not that great either."
http://www.techdirt.com/articles/20100422/1533599145.shtml
"Michael Geist points our attention to the news that India has introduced a draft of proposed amendments to its copyright law, in an attempt to bring India's copyright laws into alignment with those ever popular "international obligations" found in various (industry dominated) treaties. There were reports late last year that the proposals were likely to be draconian, as the negotiations had mainly been between the government and the recording industry with no input from the public. However, the actual proposal (pdf) is much more of a mixed bag -- with lots of somewhat surprisingly good things included.
For example, it extends the concept of "fair dealing" to cover "private and personal use" and makes sure that anti-circumvention rules only apply when the circumvention is used to infringe on copyrights. The US anti-circumvention clause in the DMCA makes no such distinction (so even if you circumvent copy protection for a perfectly legal reason -- such as to make a personal backup -- it's still infringement just to circumvent). Also, the new proposal would allow more access to copyrighted works by "physically challenged persons." However, it appears that some feel that those provisions don't go far enough. It allows for the conversion of copyrighted works into Braille without having to pay a fee, but many visually impaired point out that it does not cover converting the works to audio formats with e-reading software or audiobooks. Some political parties are threatening to boycott the proposal if this part isn't fixed.
The part of the bill that's getting the most attention in India is that it would create an additional right for content creators, which they would hold onto, rather than having the right transferred over to the producers and record labels. In other words, it seeks to make sure that the actual content creators don't have their rights stripped from them by the industry. Not surprisingly, the record labels are up in arms about this, and find the whole thing to be terribly unfair. In their defense, it is a bit strange to set up a copyright where the rights are not transferable, even if the purpose is really to give more power to the content creators themselves.
That controversial clause does seem like a mixed bag itself. Decreasing the control the industry has over actual content creators is a good thing, but I'm not sure layering on another "right" is the way to do it. There are some other questionable aspects of the bill as well -- including (of course) extending the length of copyright, in some cases, for no good reason. It also sets up new statutory compulsory rights. While those sometimes are useful in clearing up confusion, it creates a totally arbitrary system for setting payment rates, rather than letting the market figure it out.
Overall, it sounds like this is better than many of the proposed copyright law changes out there -- and I'm sure that the entertainment industry, who had been pushing for India to put potential infringers in jail, won't like this one bit -- but it's not that great either."
http://www.techdirt.com/articles/20100422/1533599145.shtml
Climatologist sues, wants paper to erase all traces of libel; Ars Technica, 4/25/10
John Timmer, Ars Technica; Climatologist sues, wants paper to erase all traces of libel:
"It's probably an unfortunate measure of the quality of modern journalism that few of us would be surprised to hear that an editorial on a politically controversial topic contained significant factual inaccuracies. But climate change seems to have reached the point where even some apparent facts have become points of contention, and at least some reporters have become comfortable with simply making things up and ascribing their imaginings to credible scientific sources. Apparently fed up with similar practices in editorials produced by Canada's National Post, a climatologist has now sued the publisher for libel and defamation. But the suit seeks a judgement that's remarkably sweeping: the scientist wants the publisher to hand over the copyright to the editorials so he can attempt to erase them from the Internet."
http://arstechnica.com/science/news/2010/04/climatologist-sues-for-libel-demands-copyright-of-articles.ars
"It's probably an unfortunate measure of the quality of modern journalism that few of us would be surprised to hear that an editorial on a politically controversial topic contained significant factual inaccuracies. But climate change seems to have reached the point where even some apparent facts have become points of contention, and at least some reporters have become comfortable with simply making things up and ascribing their imaginings to credible scientific sources. Apparently fed up with similar practices in editorials produced by Canada's National Post, a climatologist has now sued the publisher for libel and defamation. But the suit seeks a judgement that's remarkably sweeping: the scientist wants the publisher to hand over the copyright to the editorials so he can attempt to erase them from the Internet."
http://arstechnica.com/science/news/2010/04/climatologist-sues-for-libel-demands-copyright-of-articles.ars
Friday, April 16, 2010
GAO piracy report: A deeper look; CNet News, 4/13/10
Greg Sandoval, CNet News; GAO piracy report: A deeper look:
"Copyright owners are in need of some good researchers.
I've already written a news story about the report on piracy and counterfeiting issued Monday by the U.S. Government Accountability Office (GAO) that called into question some of the assertions made by copyright owners about the effects of piracy on their businesses.
Because the claims about piracy's effects could influence copyright legislation in the future, it's worth taking a closer look at the GAO's year-long investigation. I also wanted to cover some points I wasn't able to make in the previous story."
http://news.cnet.com/8301-31001_3-20002348-261.html
"Copyright owners are in need of some good researchers.
I've already written a news story about the report on piracy and counterfeiting issued Monday by the U.S. Government Accountability Office (GAO) that called into question some of the assertions made by copyright owners about the effects of piracy on their businesses.
Because the claims about piracy's effects could influence copyright legislation in the future, it's worth taking a closer look at the GAO's year-long investigation. I also wanted to cover some points I wasn't able to make in the previous story."
http://news.cnet.com/8301-31001_3-20002348-261.html
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