Time-Shifting?

From a former student who always has interesting things to say on Internet law topics:

Say, doesn’t this sound like the Betamax case?  Wouldn’t the “time-shifting” argument held by the Supreme Court still hold?

The Sony decision did not create an absolute right to time-shift. The Court recognized time-shifting to be fair use in that case–by a 5-4 decision, not a slam dunk–in part because the recorded programs had originally been broadcast for users to watch them once, and most Betamax users watched their recorded programs once, shifting only the time at which they watched them. (Another reason the Court ruled for Sony is that the plaintiffs represented only a small portion of copyright holders affected by video recording. Other copyright holders–the sports networks, PBS, Mr. Rogers–did not object to their content being recorded by Betamax users.) YouTube is not perfectly analogous to the old broadcast networks, Sony does not fit perfectly.

Imagine a fair use

Yesterday the trial court ruled against Yoko Ono and John Lennon’s sons, holders of the copyright to Lennon’s song “Imagine,” in their lawsuit against challenging use of 15 seconds of the song in Ben Stein’s film “Expelled: No Intelligence Allowed.” Ono et al did not want use of the song to appear to endorse the message of Stein’s pro-intelligent design film. The judge ruled that use of the song was fair use. I’ve not seen the film but the judge’s ruling appears to be correct, based on what I’ve read. The song is played against a montage of images criticizing its anti-war and anti-religion lyrics, a straightforward example of transformative, parodic use. Ono plans to appeal but success on appeal is unlikely.

Lexicon Litigation

Timed perfectly to provide material for class discussions about Fair Use, the trial started this week in J.K. Rowling’s copyright infringement lawsuit against publisher RDR Books and author Stephen Vander Ark over The Harry Potter Lexicon, the print version of Vander Ark’s website of the same name. In her testimony Rowling characterized the Lexicon as “sloppy,” “lazy,” “derivative,” and “riddled with errors.” Rowling claims that the Lexicon could interfere with her own plans to write a Potter enyclopedia, proceeds of the sale of which she would donate to charity. RDR court filings state that Vander Ark’s Lexicon “provides a significant amount of original analysis and commentary concerning everything from insights into the personality of key characters, relationships among them, the meaning of various historical and literary allusions, as well as internal inconsistencies and mistakes in the novels.” Stanford Law School’s Fair Use Project is lined up behind RDR, arguing that companion guides to other works are fair uses that have a long literary tradition.

Students Sue TurnItIn.com

This story about high school students suing TurnItIn.com made the rounds on Friday: McLean Students Sue Anti-Cheating Service. I’ve not analyzed it closely but their claim–that TurnItIn.com violates copyrights in their papers and essays by copying them to its database–has some legal merit, and wise-ass ironic flavor to boot. The Volokh Conspiracy blogged about it here, succinctly summarizing the arguments on both sides and predicting TurnItIn.com has the better of the arguments. I agree that the transformative nature of TurnItIn.com’s service probably tips the scales in its favor.

An apology for the number of recent posts echoing stories from other sites. A number of things have caught my eye recently but between course prep, exams, and papers I have not been able to get much beyond the surface of anything.