Flea World, Inc., one of the largest flea market hosts in the country, was found liable for both contributory and vicarious copyright infringement last month by a New Jersey district court. The case, a rehash of the old flea market cases of the 90s, was brought by Arista Records, Sony Music, and a number of other recording industry organizations. The plaintiffs sued Flea World for allowing vendors to sell pirated copies of music CDs and videos, even though it knew, or should have known, that these vendors were marketing illegal copies of plaintiffs’ products.

Both plaintiffs and defendants used as evidence the rules created by the defendant for its vendors, pointing to the fact that it a) prohibited counterfeit sales, b) regularly policed and reviewed merchandise, and c) often removed vendors from the flea market for violating those rules, at least in some areas. The court found that the evidence put forth at trial showed that defendants exercised substantial control over each of the vendors in question and also provided the vendors with amenities such as free parking, advertising, tables, maintenance, and security. Given that the defendants maintained a well-controlled environment, should have known that the piracy was taking place (and did, at least selectively), and received a substantial financial benefit from these pirated materials, liability was found.

In addition to its copyright troubles, Flea World may also have some trademark challenges ahead, since a number of organizations claim trademark rights in the term FLEAWORLD. Save a little for your next, battle guys.

The District Court of Nevada ruled in Blake Field v. Google that there is no copyright infringement when Google copies, using its “cache” program, third party content and allows internet users to view those cached, third party web pages. The court stated that it is the internet users who are downloading the stored content and that the search engine company is ‘passive’ in the copying and is protected under the DMCA. “Without the user’s request, the copy would not be created and sent to the user; and, the alledged infringement would not have occur. The automated, nonvolitional conduct by “Google in response to a user’s request does not constitute direct infringement under the Copyright Act.”

So on to the frosty window, one of the old chestnuts of the law school copyright class is the ask the question of whether writing word on a frosty window causes sufficient fixation for a copyright to arise. The copyright statute explicitly provides that a copyright subsists in original expression fixed intangible medium. And the ‘front on the window’ chestnut frames the question of what is enough permenance. The answer has been that writing on a frosty window is transient, but with sufficient permenance to be fixed for copyright purposes.

This case juxtaposed with the old chestnut of ‘enough’ highlights how our culture is at an inflexion point. The the visual world of atomic object lessons (frost on the window) are dischordant with the invisible world of electronic object lessons. The judge in Nevada is focusing on the ‘who’ in the atomic world is doing the acting in summoning the case and is oblivious to the ‘what’ in the electronic world where the copying is happening. No. 2:04-CV-0413 (D. Nev.). Good thing Google doesn’t have ‘frost’ caching.

One of the oddities of American copyright law was what was referred to as the “Industrious Collection” [ aka the "Sweat of the Brow"] doctrine which granted a copyright in works resulting from the laborious assembly of otherwise unprotectable data. Examples were telephone directories, sports statistics, maps and other ‘facts’….assembled by folks in green eye shades, no doubt.

Perhaps because of our international citizenship, perhaps because of the ubiquity of the computer’s power, perhaps because Sandra Day O’Connor had magic glasses when she read the Constitution Article One, Section Eight, Clause eight, perhaps because no one wears green eye shades at work anymore. Whatever the reason, the “Sweat of the Brow” doctrine died officially in the Supreme Court opinion, Feist v. Rural Telephone (1990).

In the recent case of Jeffrey A. Grusenmeyer & Associates Inc. v. Davison, Smith & Certo Architects Inc. et al., No. 1:04CV2381, N.D. Ohio; 2006 U.S. Dist. LEXIS 2757 Grusenmeyer, an architectural firm, submitted master plans with explicit understanding that the plans would be used in the development of a new campus. Claims that the plans were copyrighted were challenged because Plaintiff’s plan amounted to an AutoCAD program depicting the existing facility without new expression. The court, in finding no copyright, said,

“Although Plaintiff may have dedicated considerable time to the existing conditions drawings, copyright law rewards originality, rather than effort”.

‘Industrious Collection’ [aka 'Sweat of the Brow'] remains just detritus of last century…. along with those green eye shades.

Filmmakers, songwriters, and publishers often face frustration and “brick walls” when seeking to find owners of copyrighted works in order to get permission to use them. In many cases, despite best efforts, creators and their heirs may be unlocatable. This puts filmmakers and others in the precarious position of deciding whether to use the work and risk a copyright infringement lawsuit, or abandon the work, perhaps forever. Stories are legion of documentary film projects abandonned after years of effort all because copyright holders could not be located.

Deemed “orphan works” because it’s unclear who the “parents” are, the challenge of locating owners of copyrighted material has become such a large problem that the U.S. Copyright Office has been asked by Congress to propose a solution. The new Copyright Office Report On Orphan Works is an articulate statement of the problem, the current law and some candidate solution paths. Click HERE for Copyright Orphan Works Report.

The solution, however, presents challenges of its own and, in fact, may be over-reaching in terms of denying rights and royalties to owners who deserve them. The solution, as recommended in the Orphan Work Report, is feared by many to be the ‘exception that swallows the rule’. Just as Canadian law currently imposes a compulsory license to the person who can document ‘good faith effort to locate’, the recommended legislation will provide low to no monetary damages and relief from injunctions against the resulting derivative work when attribution is given and there is a documented but failed ‘good faith effort to locate’.

While the ‘fair use’ defense is explicitly not affected by this possible change, it would moot the whole ‘fair use’ defense in many circumstances. This would be especially true in the graphic arts arena.

While the United States is the only country which gives incentives for copyright registration, the concept of having a centralized location for the issuance of registration and the exhibition of works is catching on in other nations. The copyright registration fee is seen as an easy victimless tax; and the database of the works created a good benchmark and chronicle of an era and the creators in that era.

The Chinese Copyright Center will be located in Shanghai and will be focused especially on the protection, design, service and trading of cartoon and animation works. The tertiary benefit would be to boost awareness of copyright in a country beleagured by counterfeit and piracy of copyright.

The Republic of China (Taiwan) maintains its own copyright office and a good summary is provided on the Wang and Wang web site.

A federal court in Colorado denied Kathleen Todd’s claim for copyright infringement and granted defendant’s motion of summary judgment, on the ground that Todd’s jewelry had no copyrightable features.

In 1996, Tood applied for and received a copyright registration for her jewelry crafted from barbed wire. Montana Silversmith’s Inc. came out with their own line of barbed wire jewelry in 2000 and Todd sued for copyright infringement. The court found that while Todd was a skilled artists and her work had a certain “creative gestalt,” and emotional appeal, these things lacked the precision necessary to define them from a legal perspective and was therefore forced to find that her designs did not add anything to the public domain features of the barbed wire.

Siding with record labels and movie studios, the Supreme Court has held that peer-to-peer file sharing companies, such as Grokster and StreamCast can be held liable for contributory copyright infringement if their customers engage in illegal file-swapping while using their products.

Writing for the majority, Justice Souter summed up the decision in this way: “We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement.”

The Court was careful not to overturn its decision in the 1984 Sony Betamax decision. In that case, which addressed whether Sony could be held liable for creating a recording device that allowed third parties to infringe copyrighted works, the Court held that a company could not be held liable under a theory of contributory or vicarious copyright infringement for selling recording devices so long as the device had substantially non-infringing uses. Justice Souter noted that, in the Sony case, and the cases that followed, the creators of the technology were not actively encouraging illegal behavior. The Court underscored that the holding in the Sony case did not give companies a free pass on liability; in fact, the standard was that a product had to have a substantially non-infringing use, in order to avoid liability.

In the current case, wrote Souter, the evidence showed that Grokster and StreamCast made no efforts to put in place anti-infringement measures and in fact, seemed to be “aiming to satisfy a known source of demand for copyright infringement, the market comprising former Napster users.”

The court was careful to craft a decision that did not implicate any new technologies that might have the potential to foster illegal activity. Indeed, the ruling clearly suggests that technology alone is in sufficient to impute liability to a manufacturer. In short, the standard must involve technology-plus in order for liability to be found.

The Los Angeles Times reports that the Motion Picture Association, in conjunction with the Japan Boy Scouts, has created the world’s first merit badge awarded for “respect and protection of intellectual property.”

Evidently, the Motion Picture Association of America has approached the Boy Scouts several times in an attempt to persuade the Boy Scouts of America to create a similar badge. Thus far, the Boy Scouts are not considering the badge. The appropriately named spokesman for the National Council of the Boy Scouts, Greg Shields, has suggested that such a badge would be a departure from the other badges, which generally relate to career skills or lifelong interest. Well, Greg, the way things are going, a viable career choice in the U.S. will be National Police. Then the badge could be part of the invasion of privacy skill set.

Google News, one of the more recent additions to the Google family of specialty sites has been sued in the District of Columbia by Agence France Presse (AFP), the French equivalent of the Associated Press. In the suit, AFP claims that Google News is “reproducing and publicly displaying AFP’s photographs, headlines, and story leads on Defendant’s news aggregation Web site.” In addtion, the suit claims that Google also is stripping from the lead stories AFP’s copyright information.

Pivotal to this case will be the question of whether — in the new digital age — publishers of content have any duties beyond those noted in the Copyright Act to keep information on their web sites from being indexed by news web crawlers, like the ones at Google. According to Google, technology is available to block the web crawlers used by Google. AFP claims that a copyright statement is sufficient to ward off would-be infringers, and that it has not responsibility to purchase technology to keep out Google.

Other issues that will no doubt come up in the case include whether the headlines that Google is taking constitute the heart of AFP’s creative authorship. On the one hand, headlines typically constitute only a few words compared to the total article. On the other, many copy editors work very carefully to craft headlines that will attract the reader and accordingly, can come up with some unique presentations. Then again, many news organizations use a technology called Real Simple Syndication, which automatically pushes headlines to users. Such widespread use of this type of technology suggests that the market for purchasing the article may not be depleted by the taking of the headlines.

One hopes that Google’s litigation budget is not yet maxxed out. Google also recently launched a service called Google Books. According to Internetnews.com, Google Books indexes the content entire books such that a search query might trigger a quote from one of them. Shakespeare, perhaps or other books in the public domain may be fair game; still, wethinks we smell something smouldering.