Archives for June 2011

Copyright Registration Alert: Copyright Office Extends Interim Rule for Expedited Registration

The Copyright Office has extended its interim rule allowing (in limited circumstances) free conversion of a regular application to the expedited “special handling” track if the regular application has been pending without Copyright Office action for over six months.

The Copyright Office’s transition from an antiquated and byzantine “paper” processing system to a streamlined electronic system has been, well, interesting. . . .  One unintended consequence has been a backlog, particularly with respect to applicants who for whatever reason choose to still use the old paper application process.  In recognition of this issue, the Copyright Office issued an interim rule in 2009, allowing applicants caught in that backlog for over six months to convert a regular application to special handling status (meaning that the application will typically be acted upon within one week) with a waiver of the special handling fee.  Although special handing (if you choose it and pay the fee) is available upon a showing of compelling need due to (1) pending or prospective litigation; (2) customs matters; or (3) contractual or publishing deadlines, an applicant may only take advantage of the fee waiver upon showing that the applicant is about to file suit for copyright infringement.

This interim rule was set to expire on July 1, 2011, but the Office has now extended it for another year until July 1, 2012.

Here is the Federal Register notice:



Nimmer Expert Testimony Excluded: Copyright Treatise Authors As Expert Witnesses

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Creative Commons License photo credit: clemsonunivlibrary

On June 16, 2011, the Ninth Circuit Court of Appeals upheld a district court’s decision to exclude the expert testimony of David Nimmer, current author of the well-known treatise Nimmer on Copyright Law.  Since taking over from his father, Melville Nimmer, as author of that treatise (more on that debacle some other time), David Nimmer has from time to time hired himself out as an expert witness in copyright cases.  Often times his “expert report” essentially reads more like a brief than a typical expert report, with a factual recitation relating to a topic like substantial similarity or protectability, then a summary of precedent, complete with citation of precedent and his own treatise leading up to Nimmer’s own legal conclusion based upon his application of his view of the facts to his view of the law.  I have always been somewhat dubious of this kind of “expert” evidence.  It seems to me that it seeks to supplant the role of the judge (with respect to the law) and jury (with respect to ultimate evaluations like substantial similarity), and also to coat pure attorney advocacy with the varnish of perceived (perhaps by a jury) independence and “expert” legitimacy. [Read more…]

Third Circuit Issues Important DMCA and Fair Use Ruling

The Third Circuit issued important rulings on the issues of DMCA  Section 1202 copyright management information and fair use on June 14, in the appeal of Murphy v. Millenium Radio Group LLC, reversing the district court’s summary judgment in favor of the defendants on both defenses.  In Murphy, the plaintiff was a photographer who was hired by a local magazine to take a cover photo of two radio show hosts, Carton and Rossi.  In that issue, the two hosts were given the dubious honor of being named the “best shock jocks” in New Jersey.  Plaintiff Murphy retained copyright ownership of the cover photo.

An unknown employee of Carton and Rossi’s radio station scanned and cropped the cover photo in a way that removed Murphy’s photo credit, and placed the copy on various websites, including the station’s website, inviting the public to make digital alterations to the photos and submit the new versions to the station.  A number of fans submitted altered version of the photo and the radio station displayed 26 of the submissions on the station’s website. [Read more…]

Hot News Flash: Second Circuit Holds Hot News Misappropriation Claim Preempted

The Second Circuit has revisited the issue of New York “hot news” misappropriation claims, and the extent to which such claims are preempted by the Copyright Act.  The plaintiffs in Barclays Capital case were major financial institutions that not only provide securities brokerage services, but also provide research and recommendations concerning the purchase and sale of securities.  The plaintiffs distribute these recommendations largely to encourage transactions, and make their money on the transactions (not the recommendations themselves).  The defendant,, provides an electronically distributed news service and, among other things, uses various means to obtain the plaintiffs’ securities recommendations and then reports them. The plaintiffs sued for “hot news” misappropriation. [Read more…]

PRO DMX Commercial Background Oral Argument – Recap

Having watched the oral arguments in the ASCAP and BMI appeals of the DMX commercial background music service rate decisions, I thought I would post a few of my impressions.

Overall, the arguments went as I expected.  Seth Waxman and Ted Olson performed like the former Solicitors General that they are: very polished speakers.  But they argued as if this was a Supreme Court case, and it is not (at least not yet).  Both emphasized big-picture policy grounds over the specific evidentiary record in the case.  On the rate side of the equation, both ASCAP and BMI argued that both rate court judges erred, as a matter of law, by rejecting ASCAP’s and BMI’s proposed benchmarks.  The PROs seem to believe that [Read more…]