RAM Copying - An Issue of More Than Transitory Duration

In The Cartoon Network LP, LLP v. CSC Holdings, Inc., No. 07-1480 & 07-1511 (S.D.N.Y. Aug. 4, 2008), the Second Circuit considered several important issues on the way to concluding that Cablevision's proposed operation of a remote digital video recorder (RS-DVR) system does not infringe the rights of reproduction and public performance of its program providers.

Perhaps the most important issue in the case for new media lawyers is the court's treatment of the issue of RAM, or buffer, copying. The Second Circuit concluded that while a copy in RAM may a "copy" under the Copyright Act, it is not a copy as a matter of law. In so ruling, the Second Circuit took on not only the oft-cited (and oft-criticized) Ninth Circuit opinion in MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993), it also took on the opinion of the Copyright Office, and arguably created a split in the circuits on the issue.

It should come as no surprise that the RAM copying discussion in The Cartoon Network case has been much commented on. The opinion leaves open many questions for resolution in future cases. The issue of the copyright status of such copying will doubtless recur. As the district court noted in its (overruled) opinion, “All digital devices utilize transient data buffers, which are regions of memory that temporarily hold data.” Twentieth Century Fox Film Corp. v. Cablevision Sys. Corp., 478 F.Supp.2d 607, 613 (S.D.N.Y. 2007).

Considering the fundamental nature of the issue, below is a review of the court's ruling with links to resources addressing the issue, including prior cases, a recent ruling, and some of the amicus briefs submitted in the case.
 

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Federal Circuit Says Open Source License Conditions are Enforceable as Copyright Condition

There are so few judicial opinions dealing with open source licenses that any single one is of great interest, but the pro-open source ruling of the Court of Appeals for the Federal Circuit in Jacobsen v. Katzer, No. 2008-1001 (Fed. Cir. Aug. 13, 2008) easily goes to the top of the charts of this small category. This is a highly significant opinion that will greatly bolster the efforts of the open source community to control the use of open source software according to the terms set out in open source licenses.

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Welcome to the Proskauer New Media and Technology Law Blog

Welcome to the Proskauer New Media and Technology Law blog, presented by Proskauer Rose's Technology, Media and Communications Law practice group. This blog will cover legal developments related to technology, media and communications, including Internet and emerging technologies, new distribution platforms, electronic and online commerce, technology-based marketing, mobile issues and the like. We hope that you will be not only a reader of this blog but also an active contributor of comments with feedback, ideas and opinions.

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Things We Are Running Out of Besides Oil: IP Addresses

It's a shock to see gasoline routinely priced at over $4 a gallon, the consequence, many think, of ignoring impending scarcity of a limited resource over a long period of time. The same may be true of Internet Protocol addresses (IP addresses), the number strings that identify specific locations on the Internet. How many unique addresses are there in the current 32-bit "address space" in the IPv4 protocol? 4,294,967,296.

That may sounds like a lot, but according to some experts, we may run out of IP addresses fairly soon. A report issued in June by the international Organization for Co-Operation and Economic Development (OECD) urging government action on the subject says we may run out of IP addresses as early as 2010 or 2011, although those early dates are controversial.

Why is this important? Because a shortage of IP addresses may be a drag on bringing new networked services on line. Continue Reading...
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Between Commercial Parties, Online Agreement with "No Notice" Modification Clause Held Enforceable and Not Unconscionable

Disputes over the enforceability of Web site modifications to an agreement, based on claims of unconscionability, typically involve a consumer opposing the enforcement efforts of commercial party. An example of such a case is Comb v. PayPal, 218 F.Supp. 2d 1165, 1174 (N.D.Cal. 2002), in which the district court refused to enforce a provision in the PayPal agreement with users that allowed PayPal to modify the terms of the agreement without notice, by posting the modified terms on its Web site.

Unlike that paradigm case, the parties in Margae v. Clear Link Technologies, LLC, 2008 U.S. Dist. LEXIS 46765 (D. Utah June 16, 2008), were commercial parties involved in transactions involving affiliate marketing and search engine optimization services. Continue Reading...

Brevity is the Soul of Wit, and a Requirement of Many Local Federal Rules

The first part of that line is from Shakespeare (Hamlet, Act 2, Scene 2). The underlying principle is embodied in many local federal rules that set page or word limits on the length of various submissions, such as briefs and memoranda. In the District of Minnesota, the objections to the ruling of a magistrate judge are limited to 3,500 words, a measurement that can be made with ease using the "word count" technology in most word processing programs. But it is possible to tweak the word count technology to achieve a higher or lower word count.

In high school, we might have tweaked the word count technology to yield a higher number of words, in order to meet the length requirement for a term paper. But in Northbrook Digital LLC v. Vendio Services, Inc., 2008 U.S. Dist. LEXIS 45019 (D. Minn. June 9, 2008), counsel for the defendant did the opposite, the court found, and tweaked the technology to attain a lower word count in order to satisfy the 3,500 word limit. This approach turned out to be too clever by half.

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If It Quacks Like a Duck [Tour], It's Generic - Especially If Your Own Web Site Says So

In a dispute between the operators of rival "amphibious sightseeing tours," a panel of the First Circuit disagreed with the trial court's conclusion that the phrase "duck tours" was non-generic, and vacated the entry of a preliminary injunction against the defendant's use of the term. Boston Duck Tours, LP v. Super Duck Tours, LLC, 2008 U.S. App. LEXIS 12771 (1st Cir. June 18, 2008).

What's a "duck tour," you ask?

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Eleventh Circuit En Banc Rules in "Old Wine, New Bottles" Dispute Over CD-ROM Version of National Geographic Magazine

Greenberg v. National Geographic, in which photographers seek royalties for the inclusion of their works in the CD-ROM version of the National Geographic Magazine, is a case with legs, that's for sure. First filed ten years ago, it has been argued at the circuit court level three times, with several trips back to the trial court and at least one petition for certiorari to the U.S. Supreme Court. Only a few weeks after the first Eleventh Circuit court ruling in the case, the U.S. Supreme Court rendered its opinion in New York Times Co. v. Tasini, 533 U.S. 483 (2001), finding that freelance writers of newspaper articles are entitled to royalties for the inclusion of their works in an electronic database. Subsequent proceedings in Greenberg have sought to grapple with the applicability of the Tasini ruling that the disaggregation of the articles in an electronic database was outside the privilege provided in § 201(c) of the Copyright Act for a "revision" of a collective work under.

 In the latest opinion in Greenberg, the en banc ruling on June 30, the majority held that the CD-ROM version of the National Geographic Magazine is a privileged "revision" under § 201(c) because the CD-ROM presentation, unlike the electronic database in Tasini, replicated the "contextual fidelity" of the original collective work. That means, of course, that the plaintiff photographers whose works were included in the original, print version of the magazine, unlike the freelance writers in Tasini, are not entitled to royalties for the inclusion of their works in the CD-ROM version. There are two vigorous dissents.

 

 

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eBay Real Estate Auction Listing of Elvis's Former Home Deemed a Non-Binding Advertisement

The subject of the auction being a former home of Elvis Presley, and one of the plaintiffs being "celebrity psychic Uri Geller," the district court’s ruling in Gleason v. Freeman, No. 06-2443 (W.D. Tenn. June 16, 2008) is getting a lot of press. (And prompts one to wonder how it is that Geller didn't foresee that the litigation would have an unfavorable outcome, and save some attorney fees.) Continue Reading...

District Court Points to Conflicting Ninth Circuit Precedents on Copyright First Sale Doctrine

Some commentators on the ruling of the District Court in Vernor v. Autodesk [citation] are touting it as a victory for the applicability of the copyright first sale doctrine to licensed software, and while that is literally true in terms of the result in the case, it may not remain in the "win" column in the long run.  In ruling on the issue, Judge Richard A. Jones sent a clear signal, something like a really loud shout, to the parties and to the appellate court to the effect that precedents in the Ninth Circuit on the copyright first sale doctrine are conflicting and need to be reconciled.  Continue Reading...
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