On May 3, 2013, Harper Lee, author of the renowned novel “To Kill a Mockingbird,” filed a lawsuit against her literary agent in federal court in New York. It must be acknowledged at the outset that the agent’s side of the story has not yet been heard because, as of now, only the complaint has been filed in the lawsuit. However, the allegations, if true, are egregious, and the narrative of the complaint presents a cautionary tale for literary agents on how not to behave in representing a client, any client, let alone one like Harper Lee, who is as universally venerated as she is famous.

Read more

It is common knowledge that when we access the internet, our computers, as part of their basic system functionality, make copies of the webpages we access. As soon as we type in a web address, the internet routers and proxy servers create copies of the webpage we want to look at, and then our computers download a copy for us to look at on our monitors, and our computers cache another copy on their hard drives. In short, copies occur at several stages in the most ordinary and everyday uses of our computers. This raises an uncomfortable copyright issue: because even looking at a webpage involves making copies, and the right of reproduction is a fundamental part of an author’s copyright, do we need a license to look at materials online? Common sense tells us that if an author, artist, photographer or filmmaker posts a copyrighted work on a website, the whole point of posting it where people can access it and look at it is to allow people to do just that, so an implied license should exist to cover our ordinary online activities. However, that is just a theory, and not everyone agrees.

Read more

Two aspects of the U.S. Supreme Court’s recent ruling in the Kirtsaeng v. John Wiley & Sons, Inc. copyright case are immediately remarkable. First, the Court ruled 6-3, a clear majority, in favor of petitioner Kirtsaeng and the argument that the First Sale doctrine applies to copyrighted goods purchased overseas and then imported into the United States, even though similar facts and issues split the Court 4-4 (Kagan recused) three years ago in the Costco v. Omega case (see my articles on this case here). Second, the case stands as one of the few limitations imposed on the scope of copyright in this new century, which started with the Court’s approving the constitutionality of the Sonny Bono Copyright Term Extension Act in 2003.

Read more

Yesterday the U.S. Supreme Court heard oral arguments in the closely watched copyright case of Supap Kirtsaeng v. John Wiley & Sons, Inc. The case concerns an interpretive conflict between two principles codified in the Copyright Act. One is the First Sale doctrine, which holds that once a copyright owner has made a lawful sale of a particular copy of copyrighted work, the owner’s rights are exhausted, and the owner can no longer control what happens to that particular copy, which can then be resold, leased, given as a gift, or even destroyed without risk of copyright infringement liability (Section 109(a)). The other is the Importation Ban principle, which holds that importing into the U.S., without permission of the copyright owner, copies of copyrighted works obtained overseas constitutes copyright infringement (Section 602(a)). The case arose when Supap Kirtsaeng, a Thai student pursuing a doctorate in California, asked family and friends in Thailand to purchase copies of foreign edition textbooks published by Wiley Asia and ship them to Kirtsaeng in California, so that Kirtsaeng could then sell those copies on eBay’s to U.S. customers. Wiley sued Kirtsaeng for copyright infringement under §602(a) Importation Ban, and Kirtsaeng invoked the §109(a) First Sale doctrine as a defense.

Read more

On Thursday, October 4, 2012, the Association of American Publishers announced that it had reached a settlement with Google, Inc. in regard to their seven-year-old copyright dispute over the Google Library Project, under which Google planned to scan and make available to the public every book ever published in digital form. The precise terms of the deal have not yet been made public, but Google has backed away from the “opt-out” model that contributed to derailing its proposed settlement in 2011, and, instead, Google has agreed to an “opt-in” model: going forward, publishers will have to negotiate and execute discrete and individual deals with Google for scanning their complete catalogs of book publications.

Read more

Last week the Second Circuit reaffirmed the old copyright doctrine that brilliance, originality, and a high level of creativity are not prerequisites for copyrightability, and at the same time it clarified a misinterpretation of the Architectural Works Copyright Protection Act (“AWCPA”). The opinion is Scholz Design, Inc. v. Sard Custom Homes, LLC.

Read more

On August 2, 2012, the Seventh Circuit Court of Appeals, in an opinion written by Judge Richard Posner, vacated a federal district court’s granting of a preliminary injunction against myVidster for infringing the copyright in videos owned by Flava Works, Inc. The opinion is Flava Works, Inc. v. Marques Rondale Gunter, dba myVidster.com (7th Cir. 2012).

Read more

On July 23, 2012, the Department of Justice issued a response to more than 850 public comments it received from publishing industry participants, author’s groups, and individuals in regard to its proposed settlement with Hachette Book Group, HarperCollins, and Simon & Schuster, which the DOJ had sued in April of this year, along with Apple, Macmillan, and Penguin, for violating anti-trust laws by colluding to fix e-book prices.

Read more

On December 13, 2010, the United States Supreme Court issued a split decision, with no opinion or explanation, in the Costco v. Omega copyright case: it went 4-4 because Justice Kagan, who had filed an amicus brief in the case while she was the U.S. Solicitor General, recused herself from the proceeding. The uncertainty that resulted from the split decision has already come back to knock on the door of the Supreme Court: the Justices granted the Petition for Certiorari in Supap Kirtsaeng v. John Wiley & Sons on April 16, 2012, an appeal from the Second Circuit’s ruling in favor of John Wiley & Sons.

Read more