Rights Management Info, First Sale Doctrine, Scrapers of UGC and Free Legal Advice

Snippets from issue 4, 2013 volume of The Copyright & New Media Law Newsletter:

Editorial: Rights Management Information

Identifying a copyright owner can be a difficult step in the process of obtaining the copyright owner’s permission. Sometimes there is no information near or on the content you want to use that indicates who created the work or who owns the work.  This can be frustrating for someone trying to comply with copyright law. How do you determine the duration of copyright if you have no knowledge of the author and/or owner of a work?  Where do you start when trying to locate a copyright owner?  These are important questions, because it is not legal to use a work without permission even if you cannot identify the copyright holder.

RMI is an increasingly popular and important practice. New companies that offer technological means to manage RMI and offer content owners a way to monitor the use of their online content are arising.

— Editorial by Lesley Ellen Harris

The First Sale Doctrine in the Digital World

The first sale doctrine—which allows the owner of a particular copy of a copyright-protected work to resell, lend, or otherwise dispose of that copy without the copyright owner’s permission—has an impeccable historic pedigree that in the United States dates back to the 1908 decision of the Supreme Court in Bobbs-Merrill Co. v. Straus.

The first sale doctrine represents a balancing of policies. On the one hand there is the policy of encouraging the creative work of authors: a policy that is embodied in the Constitution and is furthered by the U.S. Copyright Act’s grant of a limited monopoly to copyright owners. On the other hand there is the policy against restraints on trade and the alienation of property: a policy the first sale doctrine furthers by cutting off the copyright owner’s exclusive distribution right after the initial sale of or other transfer of title to a copy of the copyright-protected work. The doctrine also may further another policy embodied in the Copyright Act of promoting the broad public availability of creative works by freeing up their distribution.

More recently, the continued viability of the first sale doctrine in a digital world was dealt another significant blow, this time in the context of the resale of digital music.  The case involved a copyright infringement claim by Capitol Records against ReDigi, which offered a service allowing users to buy and sell digital music lawfully purchased from iTunes.

— The First Sale Doctrine in a Digital World?  by Stacia N. Lay

How Do You Afford Legal Advice on Intellectual Property Matters?

It may be an understatement to say that copyright and intellectual property (IP) law is a complex and convoluted area of the law.

However, help may be available beyond books and blogs on copyright law.  Recently the number and variety of services/clinics providing individuals and small businesses (as well as others, e.g., nonprofits, cultural institutions) opportunities to obtain free summary advice and to obtain access to reduced-fee legal services on copyright and related issues has grown.  These services include litigation support as well as transactional services such as negotiating performance or exhibition contracts and establishing and protecting copyrights and trademarks.

Clinics that are established by law schools and staffed with law students serve two purposes:  they offer clients access to free, high-quality legal advice; they provide law students with opportunities to put theory into real-world practice while developing practical skills.  Law students are supervised by law professors—often industry specialists—to ensure that clients receive appropriate advice.

—  Affordable Copyright Advice by Lesley Ellen Harris

Staving Off Scrapers of User-Generated Content

Screen scraping typically involves an outside entity using automated software to extract data from a competitor’s website contrary to the site’s terms of use.  It is a problem that has vexed website owners since the days of the dot-com boom—how to make certain user-generated content available to users or subscribers, but also prevent competitors and other unauthorized parties from scraping, linking to, or otherwise accessing that content for their own commercial purposes.

The law on scraping and linking remains undeveloped and has not provided clear remedies for this kind of access.  Given the state of the law, sites often employ the “kitchen sink” strategy against scraping competitors: throwing multiple claims at the unauthorized party in the hope that at least one viable legal theory survives.

— Staving Off Scrapers of User-Generated Content with Electronic Copyright Transfers: A Legal (But Perhaps Not User-Friendly) Solution by Jeff Neuburger and Jonathan P. Mollod


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