Net Neutrality Rules Upheld

The Net Neutrality Rules have been upheld by the U.S. Court of Appeals: https://www.yahoo.com/news/u-appeals-court-rejects-challenge-obama-net-neutrality-142305055–finance.html?ref=gs.  It appears that everyone on the Internet is going to get to be treated the same.

Idea Submission and Avatar: James Cameron and Lightstorm Prevail

There are several lessons to be learned from this idea submission and breach of contract case, where the plaintiff contends that his idea was misappropriated by James Cameron for the film Avatar, among which are the proof that one must have demonstrated in order to claim a similarity between the alleged infringing work and one’s own idea, and the questions of timing. An interesting analysis can be found here: http://www.loeb.com/publications-ipentertainmentcaselawupdates-20160325-rydervlightstormentertainmentincetal.

The unpublished opinion of the court can be found here: https://scholar.google.com/scholar_case?case=15675251615603331785&hl=en&as_sdt=6&as_vis=1&oi=scholarr

Are the Turtles Certifiable? Music Industry To Litigate Pre-1972 Public Performance Right

There’s an interesting case percolating in the Court of Appeals dealing with the Turtles and Sirius XM radio. Here is an excerpt from “Copyright Litigation Blog” by Ray Dowd (the entire blog post can be found here: http://archive.feedblitz.com/445362/~5153291/25405111/1462521c88182b58dcf7fc1a6dd57035):

 

Are The Turtles Certifiable? Music Industry To Litigate Pre-1972 Public Performance Right @ New York Court of Appeals In Albany.

 

On April 13, 2016, the United States Court of Appeals for the Second Circuit “certified” the question of whether New York common law provides a right of public performance to owners of pre-1972 sound recordings to the New York Court of Appeals, which is New York State’s highest appellate court.

The “Second Circuit” is a federal court, just below the U.S. Supreme Court, that has appellate jurisdiction over all of the U.S. District Courts in Connecticut, New York and Vermont. The “certification” came about because the band the Turtles complained that Sirius FM radio was copying, caching, and broadcasting their pre-1972 sound recordings.

The full decision in Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 15-1164 (2d. Cir. 2016) can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/553686b6-6886-4a6b-91b1-c3a464df341b/1/doc/15-1164_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/553686b6-6886-4a6b-91b1-c3a464df341b/1/hilite/.

 

* * *

 

“Certification” means that the Second Circuit asks the New York Court of Appeals to decide an important question of New York law.

Here is what the Second Circuit considers in determining whether to “certify” the question to the New York Court of Appeals:

(1) whether the New York Court of Appeals has addressed the issue and, if not, whether the decisions of other New York courts permit us to predict how the Court of Appeals would resolve it;

(2) whether the question is of importance to the state and may require value judgments and public policy choices; and

(3) whether the certified question is determinative of a claim before us.

 

Here is Judge Guido Calabresi’s explanation of the issue certified:

In 1971, Congress amended the Copyright Act to grant limited copyright protection to sound recordings fixed on or after February 15, 1972, while expressly preserving state-law property rights in sound recordings fixed before that date. See 17 U.S.C. § 301(c). Later, Congress created an exclusive performance right in post-1972 sound recordings performed by digital audio transmission. See 17 U.S.C. § 106(6). Performances of post-1972 sound recordings transmitted by other means, such as AM/FM radio, still do not enjoy federal copyright protection. Because Appellee’s recordings were fixed before February 15, 1972, they are protected, if at all, by state copyright law. While New York provides no statutory protection to owners of pre-1972 sound recordings, New York common law does provide certain rights to copyright holders in these recordings. See Capitol Records, Inc. v. Naxos of Am., Inc., 4 N.Y.3d 540, 563 (2005) (Naxos II). As a result, the issue before us is whether New York common law affords copyright holders the right to control the performance of sound recordings as part of their copyright ownership.

 

Judge Calabresi has left the “policy choice” as to whether to recognize the right to the New York Court of Appeals. Many law professors and folks in the broadcasting industry have filed amicus briefs, guaranteeing that the Amtrak to Albany will be booked on argument day.

Fashion and Copyright: Will the U.S. Supreme Court (SCOTUS) Address the Dress?

Here is a link to the Copyright Blog about the intersection of fashion designs, copyright, protection of useful articles, design patents for the ornamental design of a functional item, and the Supreme Court of the United States (SCOTUS): http://copyrightlitigation.blogspot.com/.  Enjoy.

Some Legal Issues About Websites

Most every business now has a website, among the purposes of which are to attract customers, disseminate information to attract customers and inform the population, provide the means for customers to purchase products and/or services, and to become better known as a credible expert in a chosen field, ultimately to attract customers. A brief survey of websites reveals some similarities, broken down into two categories: those with Terms of Use and Privacy Policies, and those without.

It may seem like a small thing, but the consequences of not having Terms of Use and Privacy Policies on the webpages may have serious repercussions. This is especially so when the website provides an opportunity for its visitors to leave Personal Identifiable Information (PII), such as an e-mail address, when subscribing to a blog; or name, address, telephone number, and credit card information when purchasing a product through eCommerce. California and Federal law each impose various requirements, and additional requirements are imposed when there is a likelihood that children 13 and under may visit the site. There are other areas that require compliance, such as rules promulgated by the Federal Trade Commission (FTC) regarding endorsements and testimonials, as well as misleading and deceptive advertising.

The Womens’ Economic Ventures (WEV) maintains an online library of webinars and other materials, including a webinar that the Matthew I. Berger Law Group presented on the Legalities of Websites. The following are the links that will begin the download of the files for the audio portion: http://wevonline.org/index.php/about-wev/learning-library/doc_download/352-legalities-of-web-sites, and the PDF file containing the slides: http://wevonline.org/index.php/about-wev/learning-library/doc_download/351-legalities-of-web-sites-pdf. If you would like to merely browse the library, click here: http://wevonline.org/index.php/about-wev/learning-library/cat_view/48-main-categories/49-thrive-in-five/37-webinars

Please feel free to contact us if you have any questions about the many areas of compliance for all aspects of eCommerce, the Internet, and websites. Our phone number is (805) 456-1200 You can find us on the web at www.mbergerlaw.com.