The Second Circuit Shuts Down Resale of Digital Music Files in Capitol Records, LLC v. ReDigi, Inc., Lexology, December 18, 2018

Weil Gotshal & Manges LLP - Samuel J. Zeitlin and Bruce Rich, Lexology; The Second Circuit Shuts Down Resale of Digital Music Files in Capitol Records, LLC v. ReDigi, Inc.

 

"If you purchase a copy of music in physical form--like a CD or vinyl record-- you own your copy even though you do not own the underlying songs. Although the law reserves to the copyright owner the right to make more copies, she cannot stop you from selling your copy or giving it away. This rule is called the right of first sale, and it enables all secondhand sales of copyrighted material, from the smallest used bookstore to eBay and Amazon Marketplace. The right of first sale began as judge-made law in the early 20th century, and today is part of the copyright statute at 17 U.S.C. 109(a). In technical terms, Section 109(a) creates an exception for the owners of legal copies to the copyright owner's exclusive right to distribute her work, although not to her exclusive right to reproduce her work.

 

But what happens if you purchase a digital music file? Digital copying unravels the balance between the rights of copyright owners and customers set by the first sale doctrine. Section 109(a) only allows the owner of a copy to distribute it, not to make more copies. In a digital environment, however, distributing a file is done by making a copy of that file in a new location. When the distinction between copying and distributing collapses, is it still possible to exercise the right of first sale?

 

The Second Circuit has just confronted this issue in its December 12, 2018 ruling on the legality of ReDigi, an online marketplace designed to let people resell digital music files purchased from iTunes. In a unanimous decision in Capitol Records, LLC v. ReDigi, Inc. penned by the Second Circuit's preeminent copyright expert, Judge Pierre Leval, the court upheld the conclusion of the district court that ReDigi's business model violated the law."

Did a Typo Accidentally Make Rudolph's TV Special Public Domain?; Comic Book Resources, December 15, 2018

Brian Cronin, Comic Book Resources; Did a Typo Accidentally Make Rudolph's TV Special Public Domain?

"Not so fast.

You see, the main character in the film, Rudolph the Red-Nosed Reindeer, WAS under copyright (in one of the sweetest stories of corporate generosity ever, Montgomery Ward gave the copyright to the character to the employee who created Rudolph as part of a store Christmas giveaway). Rudolph is also currently protected by federal trademark, meaning that you couldn't name any project "Rudolph the Red-Nosed Reindeer" without permission from the Rudolph trademark owners (I think there's a company specifically set up just to handle this Rudolph-related intellectual property stuff). Similarly, all of the songs in the film were independently copyrighted, so you couldn't use any of them."

Gift Guide For The Intellectual Property Geek; Above The Law, December 13, 2018

Krista L. Cox, Above The Law; Gift Guide For The Intellectual Property Geek

"Still looking for a holiday gift for the IP geek who loves all things copyright, patent, and trademark?Try one of these gift ideas below, some of which were the subject of litigation (including in other countries)."

It’s not a trade war with China. It’s a tech war.; The Washington Post, December 14, 2018

Michael Morell and David Kris, The Washington Post; It’s not a trade war with China. It’s a tech war.

"Michael Morell, a Post contributing columnist, is a former deputy director and twice acting director of the Central Intelligence Agency. David Kris is a former assistant attorney general for national security and co-founder of Culper Partners consulting firm.

The United States is in an escalating technological cold war with China. It’s not centered on tariffs and trade, which President Trump often cites; instead, it involves both China’s use of technology to steal information and the theft of technology itself."

Indigenous Knowledge Misappropriation: The Case Of The Zia Sun Symbol Explained At WIPO; Intellectual Property Watch, December 11, 2018

Catherine Saez, Intellectual Property Watch; Indigenous Knowledge Misappropriation: The Case Of The Zia Sun Symbol Explained At WIPO

"The three panellists mentioned the importance of the United Nations Declarations on the Rights of Indigenous Peoples [pdf], and in particular Article 31, which asserts the right of indigenous peoples to maintain, control, protect and develop their cultural heritage, TK and TCEs,  and the right to maintain, control, protect and develop their intellectual property over their cultural heritage, TK, and TCEs.

Commenting on the Zia case, June Lorenzo, a lawyer advocating in tribal and domestic courts and legislative and international human rights bodies, said in the late 1890s, Zia was at a very vulnerable point, as many other tribes were. A number of archaeologists came and took “what they could because they thought we were going to disappear as a civilisation,” she said, noting that the stolen pot was repatriated in 2000 or 2002.

In 1925, when the Zia symbol was adopted by the state of New Mexico, the Zia were not even considered as citizens of the United States, she said, and could not vote. “So the idea that they should have objected to this [ the use of the symbol] in 1925 … is just absurd.”"

Fortnight [sic] Sued Over Swiped Dance Move; Forbes, December 11, 2018

Oliver Herzfeld, Forbes; Fortnight [sic] Sued Over Swiped Dance Move

"Rapper 2 Milly recently filed a lawsuit against Epic Games, the maker of Fortnite Battle Royale. Essentially, 2 Milly claims Epic engaged in copyright infringement by stealing his dance move, the “Milly Rock,” renaming the move “Swipe It” and offering if for sale in Fortnite. The question is, are dance moves copyrightable?"

Drama in South Africa Leads to Passing Fair Use; infojustice.org, December 6, 2018

Sean Flynn, infojustice.org; Drama in South Africa Leads to Passing Fair Use

"It was a day of copyright drama in the South African Parliament on the anniversary of Nelson Mandela’s passing...

After passing a new performers protection bill, more MPs from the ANC were whipped to join the chamber and the Copyright Amendment Bill was passed on a second vote.

The process is far from over. Now the bill must pass through the National Council of Provinces and then return to the National Assembly to rectify any changes before being signed into law by the President.  But the passage was a major victory for those in South Africa who have been working for over 20 years to update its user rights and other provisions."