Reposted from Sports, Media, and Entertainment Intelligence, May 2013 

By Scott W. Pink

In a setback for resellers of digital products, a New York federal court issued a decision on March 30, 2013 holding that ReDigi’s online platform for reselling digital used music violated the copyrights owned by record companies in that music. In the case of Capitol Records v. ReDiGi, the court held that the resale of the digital files facilitated by ReDigi’s technology was not protected by the first sale doctrine, which allows one to resell a lawfully acquired copyrighted work, because the sale of the digital used music involves making an unauthorized copy of the digital file. This decision calls into question whether there could be any viable means for legally reselling any form of digital content through the Internet.

It has long been an accepted practice for music lovers to clean out their music collections by selling their used LPs and CDs. Indeed, you will still find retail stores that have used LPs and CDs for sale. With the advent of digital music distribution through such online services as iTunes, these traditional means for reselling music collections are not viable because the music is typically stored on the consumer’s computer or mobile device, and not on a separate medium. 


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By Ryan Compton

Bruce Willis may take a lot of chances in his movies, but recent newspaper stories reported he’s not interested in taking any chances with his real-life digital media. While the statements in these press reports, which indicated that Mr. Willis was considering challenging licensing terms prohibiting transfer of his digital media collection after his death, have since been retracted, the issue has caught the attention of digital media purchasers. Like many, Mr. Willis presumably has extensive physical and digital media collections he would like to transfer to his heirs; however the law treats the transfer of physical and digital media differently. While it seems Mr. Willis may not be interested in taking action at this time, his reported concerns shed light on an often overlooked discrepancy in transfers of media containing copyrightable expression.

For the last 150 years, entertainment lovers have purchased their favorite media on one physical format after another: wax cylinders, piano rolls, vinyl LPs, 8 tracks, cassettes, Compact Discs, MiniDiscs, BetaMax, VHS, DVDs, BlueRay discs. But while the various forms have evolved, one fundamental characteristic has remained the same: what happened to these assets when their original owner passed away. Each physical item and its title passed on to the heirs of the deceased, subject to state estate law. Further, the First Sale Doctrine prohibited copyright owners from blocking such transfers: after the first sale of an item embodying copyrightable content, the copyright holder’s rights to control that particular item is exhausted. The owner of that item can distribute, sell, or otherwise dispose of it as they please.

 


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Reposted from DLA Piper’s Media Intelligence Bulletin

Editorial Team: Nick FitzpatrickDuncan Calow and Patrick Mitchell

HarperCollins Publishers LLC (“HarperCollins”) has filed a law suit against digital publisher Open Road Integrated Media (“Open Road”) for copyright infringement in relation to the e-book rights to the children’s book, ‘Julie of the Wolves’ (the “Work”).


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Reposted from DLA Piper’s Law à la Mode Edition 4 – Winter 2011

By:  Michael K. Barron, Sarah Phillips and Nadea Taylor (Boston and London)
“AdWords,” the paid, subscription-based Google referencing service which allows users to advertise their companies alongside Google search results, has recently been the subject of much legal scrutiny.  In late September, the European Court of Justice (ECJ) gave a preliminary ruling on questions referred to it by the English High Court in the case between Interflora and Marks & Spencer (“M&S”), regarding the purchase by M&S of the Google AdWord “Interflora” and other similar AdWords. 
In answering the questions referred to it, the ECJ repeated much of the recent jurisprudence in this area, in particular from the Google France case.  Previous cases established that purchasing a third parties’ trademark as an AdWord would only amount to trademark infringement if such use would have an adverse effect on one of the functions of the trademark.  
The ECJ gave the following guidance on how national courts should assess whether the use by a third party of a sign identical with a trademark in relation to identical goods or services has an adverse affect on one of the functions of the trademark:

By: Caroline Olstedt Carlström (Stockholm)

The new digital landscape and its embrace by the corporate world create new challenges for all marketing professionals at a pace that has never before been encountered.  In fact, organisational procedures and legal standards are struggling to keep up.  Few jurisdictions have marketing regulations in place that are up-to-date with the latest digital possibilities.  Social media can be an effective tool for marketing and brand awareness, but it also poses great challenges for marketing professionals navigating new issues. 

On September 15th, the International Chamber of Commerce (ICC) presented its new 2011 Consolidated ICC Code of Advertising and Marketing Communication Practice (the “Code”). The Code raises the standards for consumer protection globally and also includes new online rules.  It is recognised as the gold standard for self-regulation and now offers best practice guidance across all sectors, technologies and platforms and guides marketing professionals as they deal with many of the most challenging topics, such as Online Behavioural Advertising (OBA), marketing in digital interactive media, privacy protection, environmental claims and marketing to children.  


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Reposted from DLA Piper’s Law à la Mode Edition 4 – Winter 2011

By:  Michael K. Barron, Sarah Phillips and Nadea Taylor (Boston and London)
“AdWords,” the paid, subscription-based Google referencing service which allows users to advertise their companies alongside Google search results, has recently been the subject of much legal scrutiny.  In late September, the European Court of Justice (ECJ) gave a preliminary ruling on questions referred to it by the English High Court in the case between Interflora and Marks & Spencer (“M&S”), regarding the purchase by M&S of the Google AdWord “Interflora” and other similar AdWords. 
In answering the questions referred to it, the ECJ repeated much of the recent jurisprudence in this area, in particular from the Google France case.  Previous cases established that purchasing a third parties’ trademark as an AdWord would only amount to trademark infringement if such use would have an adverse effect on one of the functions of the trademark.  
The ECJ gave the following guidance on how national courts should assess whether the use by a third party of a sign identical with a trademark in relation to identical goods or services has an adverse affect on one of the functions of the trademark:

By: Michael K. Barron, Sarah Phillips and Nadea Taylor (Boston and London)

“AdWords,” the paid, subscription-based Google referencing service which allows users to advertise their companies alongside Google search results, has recently been the subject of much legal scrutiny.  In late September, the European Court of Justice (ECJ) gave a preliminary ruling on questions referred to it by the English High Court in the case between Interflora and Marks & Spencer (“M&S”), regarding the purchase by M&S of the Google AdWord “Interflora” and other similar AdWords. 

In answering the questions referred to it, the ECJ repeated much of the recent jurisprudence in this area, in particular from the Google France case.  Previous cases established that purchasing a third parties’ trademark as an AdWord would only amount to trademark infringement if such use would have an adverse effect on one of the functions of the trademark.  


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by Patrick Van Eecke, Cameron Craig and Jim Halpert

Viviane Reding, European Commission Vice-President and Commissioner responsible for justice, fundamental rights and citizenship, has announced the long-awaited Proposal for a new Data Protection Regulation. 

The Proposal, announced December 6, has now entered into inter-service consultation with other Commission Directorates-General, after which the text will be considered by the Parliament and the Council, who may make significant changes. 

The Regulation would repeal the current Data Protection Directive 95/46. It is expected to become law in two to three years. 


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Reposted from DLA Piper’s Media & Sport Group Bulletin

Editorial Team: Nick FitzpatrickDuncan Calow and Patrick Mitchell

A Joint Committee of MPs and peers from the House of Commons and House of Lords (“the Committee”) has issued a report on the Draft Defamation Bill (“the Bill”), approving many of the Government’s proposals but also recommending further changes that should be made to libel laws.

The unanimously-agreed report was published on 19 October 2011. In considering the Bill, which was published in March 2011 (please see the article in our April 2011 issue of Media Intelligence here), the Committee established the following core principles to act as a guide in developing their recommendations:


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Reposted from DLA Piper’s Media & Sport Group Bulletin

Editorial Team: Nick FitzpatrickDuncan Calow and Patrick Mitchell

Internet Service Providers (“ISPs”) BT and TalkTalk have been granted permission to appeal against the High Court’s April 2011 ruling in their judicial review proceedings in relation to the Digital Economy Act.

The Digital Economy Act (“the Act”) was passed by the Government in April 2010 with a view to protect creative industries such as music and film-making by introducing measures to tackle online copyright infringement. Under the Act, ISPs would be compelled to take an active role against pirates by, for example, sending out warning letters to alleged illegal downloaders.
BT and TalkTalk, two of the UK’s largest ISPs, brought a judicial review of the Act in April 2011, claiming that the measures to tackle online copyright infringement were not only disproportionate but were also not compliant with EU law. However, the High Court ruled in favour of the Government, recognising the measures as both lawful and proportionate (please see the article in our April 2011 issue of Media Intelligence here).
After failing to obtain permission to appeal against the decision in June 2011, BT and TalkTalk finally succeeded on 7 October 2011. Lord Justice Lewison granted leave to appeal on four of the five grounds addressed in the initial case. The ISPs argue that the Act is not compliant with the following European Directives: the Technical Standards Directive, the Authorisation Directive, the E-Commerce Directive and the Privacy and Electronic Communications Directive. The ISPs accepted the High Court’s opinion that there is a very high threshold of proving disproportionality and therefore have not sought appeal on their original claim that the act “represents a disproportionate interference with the rights of internet service providers, subscribers and internet users and with the concept of freedom of expression”.
The hearing at the Court of Appeal is likely to be held next year, meaning the full implementation of the Act is likely to be further delayed. BT’s challenge to the Act coincides with separate action taken by Hollywood studios under the Copyright, Designs and Patents Act 1988, under which BT has been ordered to block access to a website that facilitates online infringement of copyright (please refer to the next item in this newsletter here).


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