Archives For Inc.

So central is the idea of the freedom of speech, that the Bill of Rights places it first and foremost as the primary tenet of a democratic republic.  Specifically, “Congress shall make no law…abridging the freedom of speech, or of the press[.]”  Further, this potent protection providing freedom of speech presumptively applies to all forms of artistic expression: words, images, sounds, movements and more.  In an era where anyone with an Internet connection and a thought can be a writer/publisher, the importance of such a right has perhaps never felt more real to “We the people.”

In addition to this freedom, the U.S. Constitution provides a means of incentivising our creative authorship by protecting it for a limited time from misappropriation.  Specifically, Article 1, Section 8, Clause 8 of the U.S. Constitution, affectionately known as the Copyright Clause, reads: “Congress shall have Power to…[secure] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries…[.]”  By granting authors the right to prevent infringers from profiting off of unauthorized copies of their works, Congress provided a means by which creators of copyrightable content could make a living through the ability to monopolize their content for a set period of time.

Therein lies the contradiction.  Continue Reading…

Litigation Against Technology

While record label’s efforts in the marketplace have largely failed, their aggressive litigation strategies have won some technology-crushing verdicts.  Ever since the landmark case Sony Corp. of Am. v Universal City Studios, Inc.[1] the content and technology industries have frequently engaged in courtroom battles.  Three of the most influential decisions of the last decade will be summarized here.

First, UMG Recordings, Inc., v MP3.com, Inc.[2] in 2000, was centered on a website, MP3.com, which permitted users to access a huge database of music over the Internet after demonstrating independent ownership of an original copy of that recording.  The district court found MP3.com directly liable for copyright infringement because it failing to obtain authorization from plaintiffs to copy and distribute their copyrighted works, a violation of plaintiffs’ exclusive rights under §106 of the Copyright Act.[3] The court also rejected MP3.com’s Fair Use defense.  The court found that the purpose and character of MP3.com’s use of the plaintiff’s work was commercial and non-transformative; the nature of the work used was core protected content; the work was copied and distributed in its entirety; and finally, MP3.com’s actions would have an adverse market affect on the plaintiff’s music.[4]

Second, A&M Records v Napster, Inc.[5] in 2001, brought Napster, the principal architect of the online file-sharing, to its knees under the theory of contributory liability.  Continue Reading…