US Public Affairs - 30/10/09

Copyright Owners Must Consider the Fair Use Doctrine when Issuing DMCA Takedown Notices

"The plaintiff, Stephanie Lenz, posted a 29-second video clip on YouTube of her children dancing to the Prince song “Let’s Go Crazy.” Universal, the copyright holder of that song, issued a DMCA takedown notice with which YouTube complied. Lenz believed that her otherwise unauthorized use of the song was permissible under the fair use doctrine and issued a counter-notice. YouTube reinstated the video six weeks later. Under 17 U.S.C. § 512(c)(3)(A)(v), DMCA takedown notices must contain a statement that the issuer has a “good faith belief that use of the material in the manner complained of is not authorized by the copyright owner … or the law.” Lenz sued Universal and claimed that forming such a good faith belief required a consideration of the fair use doctrine. She argued that because Universal had allegedly not given such consideration, it had misrepresented in its takedown notice that it had, in breach of 17 U.S.C. § 512(f)." [CyberLaw]

Fair Use Protection Limits Common Law Copyright Claims Over Sound Recordings in New York

"This was a case of first impression for fair use as a defense against common law copyright infringement of a sound recording. For the first time, the court defined the doctrine of fair use in New York and applied it to sound recordings. Fair use applied to the sound recording regardless of its publication since the song was subject to ‘de facto publication’ and dissemination. The court then looked to both the history of common law copyright in New York and the current federal statute for guidance about fair use. The court applied the federal fair use factors: the purpose and character of use, the nature of the copyrighted work, the amount and substantially of use, and the effect on the market." [CyberLaw]

Chinese Copyright Law, Peer Production and the Participatory Media Age: An Old Regime in a New World

"In 2005, a funny flash song, "I Don't Want to Say I'm a Chicken", spread over the Internet (hereafter referred to as the Chicken Song Case). People were sharing it among friends, downloading it and using it as a mobile phone ring tone, and singing the song on KTV. The flash song is the lament of a chicken that was happy to be a source of eggs and meat, but is now facing extermination because of the threat of bird flu. Although the lyrics of the "Chicken Song" are creative and humorous, the melody of the song is lifted entirely from a famous Chinese song, "I Don't Want to Say", written by Li Haiying. As a result Li has sued the wireless content provider Kongzhong.com where the "Chicken Song" first appeared, for copyright infringement. Li believes he is owed an apology, 2 million Yuan in compensation, court costs and 50000 Yuan for mental suffering." [SSRN]

Ezra Pound's Copyright Statute: Perpetual Rights and the Problem of Heirs

"This Article explores the historical and present-day significance of proposals for copyright reform advanced by the controversial American poet, Ezra Pound, in 1918. These proposals have never been discussed by legal scholars and have received but scant attention from literary scholars. Yet, like William Wordsworth and Mark Twain, whose efforts to reform copyright law are much better known, Pound is a major writer whose views shed considerable light on the state of copyright law and the conditions of authorship in his time. Pound's proposed statute-offered as a "cure" for American book piracy-begins by making authors' copyrights exclusive and perpetual, and goes on, surprisingly, to introduce broad compulsory-license provisions that would prevent authors and their heirs from interfering with later efforts to disseminate authors' works, and would require publishers only to pay a fixed royalty on sales. The tension in Pound's proposal between a perpetual, exclusive copyright and expansive compulsory licenses shows him to be an inheritor of two legal and economic traditions: on the one hand, a Lockean and Romantic belief in a strong property rule grounded in an author's natural rights and unique personality, and, on the other, an anti-monopoly, free-trade preference for a liability rule that would encourage wide dissemination of affordable works to serve the public interest. As the author of such a dual-purpose proposal, Pound emerges as remarkably and presciently alert to the dangers currently posed by lengthy copyright terms unaccompanied by limitations that adequately protect the public. Today, the estates of James Joyce, T.S. Eliot, Marianne Moore, Samuel Beckett, and other modernist authors use extended copyrights to discourage or control use of those authors' works by scholars, critics, and others. Pound's perpetual, royalty-based copyright would, in principle, have removed or reduced such obstacles to the study and enjoyment of modernist authors. Moreover, Pound's draft statute anticipates recent proposals by Richard Posner, Lawrence Lessig, and others for mitigating the conflict between the lengthy copyright monopoly and the needs of the public." [SSRN]