Second Circuit Finds Use of “Who’s on First” Routine Not Transformative and Not Fair

19 11 2016

Earlier this month, the U.S. Court of Appeals for the Second Circuit issued a consequential opinion on the meaning and scope of what has become the “transformative use” factor of the fair use defense to copyright infringement. TCA Television Corp. v. McCollum, No. 16-134-cv-, __ F.3d __, 2016 WL 5899174 (2d Cir. Oct. 11, 2016). While transformative use is one consideration within the first of four factors applied to determine whether a use of a copyrighted work is “fair” and thus not an act of infringement, it has become the predominant consideration in the Second Circuit. And while it is fair to say that the Second Circuit in recent decisions has stretched the scope of what had previously been considered a transformative use, McCollum appears to pull back on that expansion.

In a unanimous 3-0 ruling, the Second Circuit ruled that a Broadway play’s verbatim performance of a full minute from the iconic Abbott and Costello routine, “Who’s on First,” in a scene between an introverted, small-town boy and his demonic sock puppet, was not transformative or otherwise fair use as a matter of law. In doing so, the court rejected Southern District of New York Judge George B. Daniels’ dismissal (at the pleading stage) of the plaintiff (“TCA”)’s copyright infringement action on the basis of fair use. (The Circuit affirmed on the separate ground that plaintiffs failed to plausibly allege a valid copyright interest.)

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The content in this post was found at http://newmedialaw.proskauer.com/2016/11/01/second-circuit-finds-use-of-whos-on-first-routine-not-transformative-and-not-fair/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+NewMediaAndTechnologyLaw+%28New+Media+and+Technology+Law%29 and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Federal Circuit holds software claims to be patent-eligible because they recite a technological solution to a technological problem

19 11 2016

Amdocs (Israel), Ltd. v. Openet Telecom, Inc., Appeal No. 2015-1180, is a precedential case from the U.S. Court of Appeals for the Federal Circuit that reverses a judgment on the pleadings that certain asserted software claims directed to gathering network information were patent-ineligible. In so doing, Step One of Alice/Mayo is not clarified at all, because the majority accepted “for argument’s sake” the district court’s view of the disqualifying abstract ideas, and in each instance then explained why the claims seen in their entirety are not disqualified under Step two… The Federal Circuit concluded that the claim is “much closer to those in BASCOM and DDR Holdings than those in Digitech, Content Extraction, and In re TLI Commc’ns. The Court explained that even if it were to agree that claim 1 is directed to an ineligible abstract idea under step one, the claim is eligible under step two because it contains a sufficient ‘inventive concept.’

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The content in this post was found at http://www.ipwatchdog.com/2016/11/02/federal-circuit-holds-claims-patent-eligible-recite-technological-solution-technological-problem/id=74437/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Another Tortured DMCA Online Safe Harbor Ruling–EMI v. MP3Tunes

19 11 2016

We’re inadvertently “celebrating” Section 512 week at the Technology and Marketing Law Blog, with Monday’s post on the Copyright Office’s kneecapping of designated agents, today’s post on the MP3Tunes ruling, and a forthcoming post on Pond5. In the past, blogging such a confluence of Section 512 developments would be exciting; now, ennui has set in and I find the task mostly arduous. (Indeed, this post has festered for a week because working on it has been joyless). Most new developments continue to erode 512’s protective powers, and the case rulings involve highly technical statutory parsing that gets worse, and more tedious, with each iteration.

Today’s case involves the sad saga of MP3Tunes, a site that allowed searches of MP3 files and enabled users to sideload MP3 files into its database. In 2011, MP3Tunes mostly won the DMCA online safe harbor issues in district court. However, following the Second Circuit’s 2012 Viacom v. YouTube ruling, the district court reconsidered the case, and MP3Tunes’ case fell apart. On appeal to the Second Circuit, MP3Tunes suffers another stinging loss.

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Case citation: EMI Christian Music Group, Incorporated v. MP3tunes, LLC, 2016 WL 6211836 (2d Cir. Oct. 25, 2016)

The content in this post was found at http://blog.ericgoldman.org/archives/2016/11/another-tortured-dmca-online-safe-harbor-ruling-emi-v-mp3tunes.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Court Upholds Airbnb’s Terms of Service–Selden v. Airbnb

19 11 2016

This lawsuit alleges that Airbnb’s “hosts” racially discriminate when accepting customers’ bookings. Airbnb sought to send the case to arbitration per its Terms of Service, which the plaintiffs challenges.

 

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Case citation: Selden v. Airbnb, Inc., 2016 WL 6476934 (D.C.D.C. Nov. 1, 2016). Amended complaint.

http://blog.ericgoldman.org/archives/2016/11/court-upholds-airbnbs-terms-of-service-selden-v-airbnb.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Hasbro faces copyright infringement claim over My Little Pony gaming app

19 11 2016

Unfortunately for Hasbro, not all of its activities in the mobile gaming business have been completely original, leaving the game developer open to legal challenges. In late October, it was reported that Hasbro was named as a defendant in a copyright infringement action filed by Turkey-based gaming developer Peak Games in the San Francisco courthouse of the U.S. District Court for the Northern District of California (N.D. Cal.). At the center of Peak Games’ complaint is Hasbro’s My Little Pony: Puzzle Party mobile game app, which Peak Games alleges is essentially a clone of that firm’s Toy Blast game.

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The content in this post was found at http://www.ipwatchdog.com/2016/11/14/hasbro-faces-copyright-infringement-my-little-pony/id=74565/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.