Disneys rights to young Mickey Mouse may be wrong – Los Angeles Times

Under thr 1909 copyright law, formalities (concerning notice and registration) were very important. I do not find it surprising then that the Disney’s may have messed up their copyright notice. The law then was that if there existed any ambiguity in the notice, then copyright was void. Of course, when a young law student working on an article asked Disnry about it, they threatened a slander of title suit if he made his thoughts public. Under the same difficulties in managing copyrights in the early days, I also firmly believe that other items generatin millions annually now, i.e. the Birthday Song, have expired copyrights. I am always available for anyone with unlimited funds who wants to take up this fight.

Ethically, a California slander of title action would not have been frivolous, and I have no doubt that they would bring such a suit, so the threat made by Disney General Counsel, now Los Angeles County judge, Louis Meisinger was not unethical. I do, however, find it unseemly – and just the sort of anecdote that makes the public hate lawyers. Threatening a law student with a lawsuit just for making a theory about a voided copyright public is an assault on decorum and propriety (and before dozens of people email me about the first amendment, please note that Disney is not a govt. actor).

Disneys rights to young Mickey Mouse may be wrong – Los Angeles Times

The notion that any Mickey Mouse might be free of copyright restrictions is about as welcome in the Magic Kingdom as a hag with a poisoned apple. Yet elsewhere, especially in academia, the idea has attracted surprising support.

“That Steamboat Willie is in the public domain is easy. Thats a foregone conclusion,” said copyright scholar Peter Jaszi of American Universitys Washington College of Law after studying the issue at The Times request.

The issue has been chewed over by law students as class projects and debated by professors. It produced one little-noticed law review article: a 23-page essay in a 2003 University of Virginia legal journal that argued “there are no grounds in copyright law for protecting” the Mickey of those early films.

Jackson Browne v. John McCain re: Copyright Infringement

Singer Jackson Browne is suing US Republican presidential candidate John McCain for using one of his songs without permission. (NY Times)

McCain used Browne’s 1977 hit “Running on Empty” in a commercial shown in Ohio. Browne claims that the use of the sone infringes hiis copyright and will make people conclude thaT he endorses McCain. He is seeking $75,000 on damages.

On a different front, a week ago on Swingtown,  Laurie ran away from the cabin so she could hitchhike back to Chicago so whe and Doug could go to a Jackson Browne concert. 

All in all, a big week for Jackson Browne. And I am not sure that “Running on Empty” is the best song for a campaign.

Online petition against the Orphan Works Act of 2008

Online petition: Against the Orphan Works Act of 2008. This bill is no better than the one that I wrote about the Journal of the Copyright Society this Spring. It even includes a registration database requirement, which is an anathema to the stated purpose of the copyright clause of the Constitution. If you have time, please sign.

UMG Recordings, Inc. v. Troy Augusto, et al.

The Central District of California granted summary judgment in UMG Recordings, Inc. v. Troy Augusto, No. CV 07-03106. (SJO), regarding the legality of reselling promo CDs. Mr. Augusto acquired promo CDs and resold them on eBay, which Universal alleged infringed their copyright due to the following language placed on the CDs:

This CD is the property of the record company and is licensed to the intended receipient for personal use only. Acceptance of this CD shall constitute an agreement to comply with the terms of the license. Resale or transfer of possession is not allowed and may be punishable under federal and state laws.

Augusto argued that his resale of the CDs was protected under the first sale doctrine. The court agreed.

Finally, a voice of reason in the wilderness. Thank you Judge Otero for a very well written opinion.

Here is the full opinion (pdf).

Orphan Works Bills

I haven’t gone through both new versions of the Orphan Works bills (House, Senate). However, this month the Journal of the Copyright Society of the USA published my article detailing problems with all previous versions of orphan works legislation. Here is a PDF of the article, Darrin Keith Henning, Copyright’s Deus Ex Machina: Economic Fostering of Orphan Works through Reverse Registration, 55 J. COPYRIGHT SOC’Y U.S.A. 201 (2008).

I will have more on the new bills next week.

S.2913 – Shawn Bentley Orphan Works Act of 2008

2d Session 
S. 2913

To provide a limitation on judicial remedies in copyright infringement cases involving orphan works.


April 24, 2008

Mr. LEAHY (for himself and Mr. HATCH) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

Continue reading

H.R. 5889 – Orphan Works Act of 2008

Six months ago, the last version of an Orphan Works bill died in Congressional committee. Now, a new Orphan Works bill has surfaced in two different versions, one in the House and one in the Senate. Here is the House version:

2d Session 
H. R. 5889  

To provide a limitation on judicial remedies in copyright infringement cases involving orphan works.


April 24, 2008

Mr. BERMAN (for himself, Mr. SMITH of Texas, Mr. CONYERS, and Mr. COBLE) introduced the following bill; which was referred to the Committee on the Judiciary

Continue reading

Pro-IP bill to become law in 2008?

Rep. Berman: Pro-IP bill will become law in 2008

Rep. Howard Berman, who heads a congressional panel in charge of writing copyright legislation, lashed out at Internet pirates this week and defended his effort to add stiffer anticopying penalties to federal law.
Berman, a Democrat who represents the congressional district near Hollywood, said at a technology policy conference here that he was on track to enact the so-called Pro-IP Act by the end of 2008. The bill ratchets up civil penalties for copyright infringement and creates a new federal agency charged with bringing about a national and international copyright crackdown.

“I don’t think there’s a lot of controversy,” Berman said on Wednesday. “This one is not like the patent bill.”

District Court Finds Portion of Copyright Remedy Clarification Act Unconstitutional

This month, in Marketing Information Masters v. The Trustees of the California State University (full PDF of decision here), the US Dist. Ct. for the S. Dist. of Cal. found the Copyright Remedy Clarification Act to be unconstitutional for removing sovereign immunity for state workers working in their official capacity. The court determined that Congress exceeded its power under the 14th Amendment and that state employees retain immunity for copyright infringement.

 See also Dear Professor: “You’ve Been Sued” 

For more history, specifically the Puerto Rico case of De Romero v. Institute of Puerto Rican Culture, 2006 WL 3735352 (D.P.R. Dec. 15, 2006) in which the court also found that Congress exceeded its power under 14th Amendment, read this article by Prof. Patry, and the last paragraph of that case.

New Arkansas RIAA Lawsuits Coming Soon to a Federal Courthouse Near You

I have gotten a number of phone calls and emails from students (as well as parents and attorneys of students) at the University of Arkansas at Fayetteville. Suffice it to say that there is another rash of RIAA lawsuits on its way. This time, all I have seen have been on the University of Arkansas network. I work for two entities of the U of A system, so can’t comment on the disclosure of student information . . . I will however point out that in Arista v. Does 1-21, Boston Univ. recently fought the RIAA’s subpoenas. The court quashed them based on “the privacy rights of students, and the existence of First Amendment issues in disclosing the identities of anonymous people accused of copyright infringement, and engaged in a balancing test between those rights and the rights of copyright owners” The 52 page ruling just on the subpoenas is a judicial tour-de-force and a good starting point for any university that would like to fight to uphold the privacy rights of students.

I think that these cases are winnable for the defendant, mostly because no one every forces the RIAA to prove its case and because the argument that “making available” = distribution flies in the face of historical copyright law. Thankfully, the courts have begun to see this as well. . . although to differnet degrees.  William Patry, the author Patry on Copyright and copyright attorney for Google (Prof. Patry . . . if you need a passionate copyright attorney from a state school for your team, just say the word), recently worte about the three recent cases which rejected the “making available” theory on his blog. The documents from the three cases are located here:

Atlantic v. Brennan
London-Sire v. Doe
Elektra v. Barker

The most troubling of this cases is Barker, in which Judge Karas equated distribution with publication – something I do not feel is intended by section 106.

For more on this issue, read The Patry Copyright Blog: The recent making available cases 



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