Seattle Copyright Watch - Insight and Commentary on Copyright and other Intellectual Property topics and, occasionally, Dogs

I previously discussed the copyright termination of transfer provisions in my post, Termination of Transfer Provision Applies to All Authors, Not Just Musicians.  17 U.S.C. §203 provides for the termination of a copyright grant 35 years after the grant was made, if the grant was made after January 1, 1978.  Section 304(c) creates a similar right of termination for copyrights that were registered before January 1, 1978.  The law on copyright termination of transfers recognizes the unequal bargaining power between publishers and authors and is an attempt to allow authors and their families the opportunity to reclaim and benefit from the authors’ commercially successful works. 

The effect of loan-out corporations on the implementation of the §203 grant termination provision adds a potentially fatal wrinkle to an author’s ability to successfully terminate a copyright grant.  A loan-out corporation is corporation that is usually wholly owned by one person and is used to “loan-out” that person’s services to employers.  Actresses, musicians and professional athletes often provide their services through loan-out corporations.  Loan-out corporations generally limit the liability of the employee and provide tax benefits.  The use of loan-out corporations dates back to the 1930’s. 

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The U.S. Department of Justice (DOJ) filed a civil antitrust action against Apple and five major book publishers – Hachette, HarperCollins, Macmillan, Penguin and Simon & Schuster (Publisher Defendants) – for violations of Section 1 of the Sherman Act.  The DOJ seeks “to enjoin the Publisher Defendants and Apple from further violations of the nation’s antitrust laws and to restore the competition that has been lost due to the Publisher Defendants’ and Apple’s illegal acts.”  (Complaint pdf page 5).  This lawsuit attacks the legality of the “agency model,” as implemented by Apple and the Publisher Defendants.

Alleged facts.  Technology has transformed the book publishing industry.  E-books, books in electronic form, are much cheaper to produce and distribute than print books (e.g., reduced manufacturing and distribution expenses, no warehousing and unsold stock expenses).  E-books benefit consumers by allowing them to read books on various electronic devices, by providing consumers with around the clock access to products, by enabling easier portability and storage and by allowing consumers to adjust font size.

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The Second Circuit issued its opinion in Viacom v. YouTube last week.  This case is similar to UMG v. Shelter Capital Partners, LLC in that it addresses issues arising out of applying the Digital Millennium Copyright Act (DMCA) safe harbor provisions to a service provider that permits users to upload videos to its website and view video clips uploaded by others without charge.  See my post Veoh’s Services Protected by DMCA Safe Harbor, Rules Ninth Circuit for details on UMG v. Shelter Capital.  The Second Circuit agreed with some, but not all, of the Ninth Circuit’s DMCA safe harbor analysis.

The plaintiffs in Viacom v. YouTube appealed the district court’s ruling granting YouTube’s motion for summary judgment on the grounds that YouTube was protected by the DMCA §512(c) safe harbor and denying plaintiffs’ cross motions for partial summary judgment.  This case is actually comprised of related actions in which the plaintiffs, including Viacom, film studios, television networks, music producers, sports leagues and class action plaintiffs, are copyright holders who sued YouTube for copyright infringement based on the public performance, display, and reproduction of video clips that appeared on the YouTube website between 2005 and 2008.  The specific video clips at issue are 63,497 clips identified by Viacom and 13,500 clips identified by the class action plaintiffs.  The Second Circuit refers to the clips at issue as “clips-in-suit.”

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The title of France’s new law says it all:  Act No. 2012-287 of 1 March 2012 on the digital exploitation of twentieth century unavailable books.  (Website in French.)  The law will be enforced beginning six months from March 1, 2012.  According to literary scholar Gillian Spraggs, “[t]he law has been promoted by its supporters as a means to enable public access to literary works of the twentieth century that are still under copyright but no longer commercially available.”  See Spraggs’ post, France Guillotines Copyright.  As that title suggests, author groups now accuse France of stripping authors of their copyright rights.

The law sets out a scheme under which a collective management society grants publishers non-exclusive licenses to publish, in digital form, commercially unavailable books.  Commercially unavailable books are books that that were published in France before January 1, 2001 and are not currently published in paper or digital form.  The French National Library will manage a publicly accessible database of unavailable books.  Anyone can request that a book title be added to the database. 

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Skydive Arizona sued defendants collectively doing business as SKYRIDE, alleging trademark claims of false advertising, trademark infringement and cybersquatting.  The district court granted partial summary judgment in Skydive Arizona’s favor on the false advertising claim.  The jury awarded damages to Skydive Arizona:  $1 million for willful false advertising, $2.5 million for willful trademark infringement, $2,500,004 for lost profits and $600,000 statutory damages for six violating domain names.  The district court doubled the false advertising and trademark infringement awards.  SKYRIDE appealed the judgment against it to the Ninth Circuit Court of Appeals.  Skydive Arizona appealed the district court’s grant of an injunction against SKYRIDE limited to Arizona, instead of a nationwide injunction.

Skydive Arizona is one of world’s most well known skydiving centers.  It hosts 145,000 to 160,000 skydives within Arizona each year and provides planes and personnel for skydiving events in 30 other states.  SKYRIDE is a third-party advertising and booking service for skydiving centers, but does not own skydiving facilities.  Customers pay SKYRIDE for a certificate that can be redeemed at drop zones across the country.  SKYRIDE owned and operated a number of website referencing locations in Arizona, such as PhoenixSkydiving and TucsonSkydiving, as well as domain names such as skydivearizona.net.  Both Skydive Arizona and SKYRIDE promote their businesses extensively on the Internet.

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