2H 2015 Quick Links, Part 1 (Copyright)

* Norberto-Colon Lorenzana v. South American Restaurants Corp., No. 14-1698 (1st Cir. Aug. 21, 2015): “a chicken sandwich is not eligible for copyright protection. This makes good sense; neither the recipe nor the name Pechu Sandwich fits any of the eligible categories and, therefore, protection under the Copyright Act is unwarranted. A recipe — or any instructions — listing the combination of chicken, lettuce, tomato, cheese, and mayonnaise on a bun to create a sandwich is quite plainly not a copyrightable work.” Related post.

* Tomaydo-Tomahhdo, LLC, V. Vozary, 15-3179 (6th Cir. Oct. 20, 2015):

Tomaydo does not point to anything demonstrating that the recipe book is an original compilation. While Tomaydo stresses that they purposefully selected and arranged the menu items, Tomaydo never identifies what is original and creative about their process. Their description merely characterizes how recipes are developed and further perfected. See Feist, 499 U.S. at 363 (“[N]o one disputes that [the telephone company] undertook the task of alphabetizing the names itself. But there is nothing remotely creative about [that process].”). Tomaydo also asserts that the menu items are purposefully coordinated with each other, but never identifies any creative manner by which they are.

* I never got the chance to blog the Ninth Circuit’s en banc opinions in Garcia v. Google. Good result, even if justice delayed is justice denied. What stands out for me is how Judge Kozinski stood alone. Not only did all of his 9th Circuit peers reject his arguments, but the Seventh Circuit (in the Banana Lady case) and the Second Circuit (in 16 Casa Duce LLC v. Merkin) rejected Kozinski’s position as well. It’s scary to think how close a single rogue federal appellate judge came to horking the law of online videos.

* Fox News Network, LLC v. TVEyes, Inc., 2015 WL 5025274 (S.D.N.Y. August 25, 2015): “TVEyes’ archiving function qualifies as fair use, and its downloading and Date-Time search functions do not qualify as fair use. Its e-mailingfeature can qualify as fair use, but only if TVEyes develops and implements adequate protective measures.”

* In CloudFlare, another example of a judge misapplying FRCP 65(d) to bind non-litigants to court orders.

* Marya v. Warner/Chappell, 2:13-cv-04460-GHK-MRW (C.D. Cal. Sept. 22, 2015). “Happy Birthday to You” isn’t owned by Warner/Chappell. Yay! However, it’s now officially an orphan work. Boo! Sarah Jeong’s explainer.

* Batmobile is a copyrighted character.

* Albert v. Youtube, 2015 U.S. Dist. LEXIS 163154 (N.D. Cal. Dec. 4, 2015): “Albert has not alleged that YouTube has an insufficient notification system for dealing with takedown requests. Albert does state that YouTube’s refusal to “even consider” his takedown request creates this cause of action, but YouTube did respond to his request and gave its license agreement with VEVO as the reason for its decision not to comply with his takedown request. Therefore, he fails to state a violation of the DMCA.”

* BWP Media USA v. Clarity Digital Group, 1:14-cv-00467-PAB-KMT (D. Colo. March 31, 2015). For purposes of 512(c)(1), the term “user” “describes a person or entity who avails itself of the service provider’s system or network to store material.”

* China Cent. Television v. Create New Technology (HK) Ltd., 2015 WL 3649187 (C.D. Cal. June 11, 2015):

Plaintiffs are likely to prove the third element by showing that defendant CNT intends to foster, promote and profit from App Infringers’ and TVpad users’ direct infringement of plaintiffs’ copyrighted works, since it advertises the Infringing TVpad Apps, and provides customer support and technical assistance to users attempting to locate, install and use the Infringing TVpad Apps to share Plaintiffs’ copyrighted programming. The evidence also demonstrates that CNT collaborates with App Infringers to develop and improve the Apps and their content. It has not developed filtering tools, and the success of its business model depends on customers paying a one-time fee for unlimited access to infringing programming.

* Ryoo Dental, Inc. v. Thomas D. Han DMD, SACV 15-308-JLS (RNBx) (C.D. Cal. July 9, 2015). Dentist brings copyright and state law claims alleging a rival copied SEOed content and triggered a duplicate content penalty in Google. In this ruling, the court says all of the state law claims are preempted by copyright, and the plaintiff probably can’t get attorneys’ fees due to an untimely registration.

Similar lawsuits: FC Online Marketing v. Burke’s Martial Arts, Ivymedia v. iLikeBus

* Pro Publica: Hollywood’s Home Theater Freebies for the U.S. Government

* From the Australian government: “new research on the levels of online copyright infringement in Australia and why people choose to download content illegally.” Highlight: “The Australian survey found people would likely stop infringing if legal content was: cheaper (39 per cent), more available (38 per cent), and had the same release date as other countries (36 per cent).”

* NY Times: Vinyl LP Frenzy Brings Record-Pressing Machines Back to Life

* NY Times: YouTube to Pay Fees for Some Video Makers to Fight Takedowns

* Cracked: Makers of an Adult Swim viral parody video explain how they did it. Good insights about the copying involved in parodies and the myth of an instant success.

* Jessica Silbey, Parody and Fair Markets, JOTWELL (October 13, 2015) (reviewing Kris Erickson, Martin Kretschmer, and Dinusha Mendis, Copyright and the Economic Effects of Parody: An Empirical Study of Music Videos on the YouTube Platform and an Assessment of the Regulatory Options (2013)).

* AdWeek: Why The Beatles Needed Digital Streaming to Maintain Their Brand. Just like being out of Google’s index is tantamount to invisibility, not being in the streaming databases is tantamount to being culturally irrelevant.

* Polygraph: Using Spotify Plays to Quantify How Old Music Has Stood the Test-of-Time

* Nieman Lab: “The Salt Lake Tribune, its future uncertain, offers to eliminate all its ads — for 10 bucks a month”

* LA Times: The squabble over Anne Frank’s diary shows the absurdity of copyright law

* Techdirt: After Illegally Censoring Websites For Five Years On Bogus Copyright Charges, US Gov’t Quietly ‘Returns’ Two Domains. NY Times coverage.

* NY Times: The Creative Apocalypse That Wasn’t

The Napsterization of culture turned out to be less of a threat to prices than it initially appeared. Consumers spend less for recorded music, but more for live. Most American households pay for television content, a revenue stream that for all practical purposes didn’t exist 40 years ago. Average movie-­ticket prices continue to rise. For interesting reasons, book piracy hasn’t taken off the way it did with music. And a whole new creative industry — video games — has arisen to become as lucrative as Hollywood. American households in 2013 spent 4.9 percent of their income on entertainment, the exact same percentage they spent in 2000.

At the same time, there are now more ways to buy creative work, thanks to the proliferation of content-­delivery platforms. Practically every device consumers own is tempting them at all hours with new films or songs or shows to purchase. …

And just as there are more avenues for consumers to pay for creative work, there are more ways to be compensated for making that work….

The biggest change of all, perhaps, is the ease with which art can be made and distributed. The cost of consuming culture may have declined, though not as much as we feared. But the cost of producing it has dropped far more drastically.

* NY Times: A Sharing Economy Where Teachers Win

* Priceonomics: The Richest Photographer in the World