by Thomas Chisena, Penn Law '16 and Jeffrey Bashara, Penn Law '17Read More
Ignorance is no excuse for breaking the law. After all, the law is readily available. Unless it's not. In an engaging and interesting post on RegBlog, Jessica Bassett discusses the current debate in a subcommittee of the U.S. House of Representatives over federal standards that are not spelled out in the Code of Federal Regulations (uncopyrighted and free for all to access) but instead incorporated in the Code by reference to a private standard-setting organization responsible for setting those standards but under no obligation to provide them for free. Unsurprisingly, this has sparked some debate in the subcommittee responsible for reforming the copyright law. For the full discussion and the interesting arguments for and against "secret laws," see Jessica Bassett, House Subcommittee Airs Debate Over Secret Law, REGBLOG (Feb. 11, 2014), http://www.regblog.org/2014/02/11-bassett-incorporation-by-reference-hearing.html.
Major broadcasters filed a Supreme Court petition on Friday (ahead of today's filing deadline) alleging that the online streaming service infringes on the broadcaster's copyright to publicly perform their works. Aereo's technology allows consumers to access broadcasts of the content outside of the licensed cable and satellite platforms. More info from the Wall Street Journal: http://online.wsj.com/news/article_email/SB10001424052702303382004579129752289337822-lMyQjAxMTAzMDEwMDExNDAyWj
If you engage in online file sharing, you could soon be the recipient of a stern warning! The new Copyright Alert System is a collaboration between Internet Service Providers and content owners. Content owners search file sharing sites for infringing content and then notify the Internet Service Providers (ISPs) when they find infringing content. The ISP, in turn, sends the infringing user a warning. Harmless so far. But get six such warnings and providers will take actions–or “mitigation measures”– such as throttling you internet speed. Wrongly accused? Worry not! For $35 you can appeal the decision (reimbursed if you prevail). So read this AP article while you still have that lightning-fast internet speed and watch this video that explains it all. Happy (legal) browsing!
With millions in book sales and a movie in the works it is a question that is all too obvious to ignore—does Fifty Shades of Grey infringe on the copyright of Stephenie Meyer’s Twilight series from which it was adapted? (Find the text of Ewan Morrison's article in which he explores the same question here) Federal law, specifically 17 U.S.C.A. § 106, gives the owner of a copyright the exclusive right to prepare or authorize “derivative works based upon the copyrighted work.” But the fair use doctrine found in § 107 generally allows copying of the theme or ideas of copyrighted work though not its particular expression. Protected expression typically includes particular plot elements and characters as well as the “total concept and feel” of the work. Roth Greeting Cards v. United Card Co., 429 F.2d 1106, 1110 (9th Cir. 1970). In short, the ordinary person should not recognize the work “as having been taken from the copyrighted source.” Bradbury v. Columbia Broadcasting System, Inc., 287 F.2d 478, 485 (9th Cir. 1961).
Has E.L. James in her book Fifty Shades of Grey crossed the line of infringement? Unfortunately there is no bright line test. In general terms, the idea of a young innocent girl falling for the perfect male but with one fatal flaw, be it blood-sucking or an erotic need to control, is not copyrightable. See Doody v. Penguin Group (USA) Inc., 673 F. Supp. 2d 1144, 1156 (D. Haw. 2009). Neither could the general setting of Seattle, Washington or the meet, date, break up, make up, marry, have kids sequence. But even if no single similarity would be subject to infringement, courts have held the arrangement or “combination of many different elements” as well as the order in which an author strings together concrete elements and the relationships between characters may command protection. Roth 429 F.2d at 1110.
Since Ms. James wrote the Fifty Shades trilogy as fan fiction for Twilight it is fair to conclude that she substantially copied the idea. The question therefore, is a factual one; did E.L. James in writing her work of fan fiction copy so much of the “total concept and feel” from the original work that a reasonable person would see that similarity? Id.
I invite you to be the one man jury. Go with your gut, consider Ms. James rendering of ideas, “the total sequence of events and the relationships between the major characters”, and you decide whether her work does in fact infringe on Twilight. Berkic v. Crichton, 761 F.2d 1289, 1293 (9th Cir. 1985).
And then take a deep breath. Because your favorite author probably won’t get sued. No suit has been brought to date and if history is any guide, presumably no suit will be brought. Why not? Many authors were themselves writers of fan fiction when they were young, many are flattered by the fan participation, and some even encourage it while very few condemn it. The few that have fought back have only succeeded in alienating the very fans they sought to secure. See Aaron Schwabach, The Harry Potter Lexicon and the World of Fandom: Fan Fiction, Outsider Works, and Copyright, 70 U. Pitt. L. Rev. 387, 415 (2009).
It seems that for now fan fiction lies in that grey area of law, neither wholly accepted nor wholly enforced. How much grey is still okay? All we know to date is—at least fifty shades.
Both the House and the Senate have presented bills in the past year that, if passed, would introduce increased liability to copyright infringers on the internet. The bills have had deeply different receptions amongst industries affected by copyright law. The entertainment industry steadfastly supports increased attempts to control copyright infringement while many in technology and computer industries believe the bills overstep necessary enforcement strategies and will negatively affect their ability to carry on their business as usual.
The Senate bill was introduced in May and is called the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PROTECT IP Act). The entire text of the bill can be found here. The act creates a right of action for infringement against domain name owners of websites that are found to be "dedicated to infringing activities." S. 986, 112th Cong. § 3. The act goes on to note that Internet Advertising Services and Information Location Tools have a responsibility not to facilitate access to infringing websites. This could mean that Google and other search engines would be held liable when their search engines provide users with links to websites that contain infringing material. Not surprisingly, this portion of the act is particularly controversial because of the huge costs it would impose on search engines. Additionally, the act repeatedly notes that it is applicable to direct, various, and contributory copyright infringement; hinting at the idea that websites that may only tangentially have an effect on copyright infringement might now be subject to lawsuits.
The PROTECT IP act would also implement important measures to more effectively crack down on websites with infringing material that threaten the public health. These type of websites are generally fraudulent pharmaceutical websites that infringe on company copyrights and trademarks to illegally sell prescription drugs. S. 986, 112 Cong. § 5. Despite the Act controversy, The Senate Judiciary Committee approved the PROTECT IP act but it has yet to make it to the floor of the Senate as it was blocked by Senator Ron Wyden.
In coordination with the Senate's act, the House introduced the Stop Online Piracy Act (SOPA) at the end of October. The text for that bill can be found here. The provisions in this Act overlap with PROTECT IP and are opposed or supported by the same industries. Website and domain name owners are additionally worried about SOPA because of its broad language that would not give possible contributory infringers reasonable time to clean up their website before either being sued or having their site attacked.The House of Representatives Judiciary Committee will hold a hearing on the Act this Wednesday, at which time the proponents and opponents of the bill will have a chance to try to integrate their opposing views into the bill.
For more information on the passage of these bills, see The Stop Online Piracy Act: Big Content’s full-on assault against the Safe Harbor, House Hearing on Stop Online Piracy Scheduled.