 The Clarinet BBoard
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Author: Mark Charette
Date: 2011-01-08 18:05
Interesting one ... UMG pursued an eBay seller of "Promo CDs" - CDs sent by UMG to DJs, critics, etc. . Many of the Promo CDs were marked as promo use only, etc., not to be sold. The question was whether or not the copyright was still in UMG's hands since the CDs were not sold ("First Sale Doctrine" allows anyone to re-sell copyrighted material after the first sale without compensation to the copyright holder). The arguments pro & con are interesting.
The 9th Circuit sided with the defendant in this case.
http://caselaw.findlaw.com/us-9th-circuit/1551202.html?DCMP=NWL-pro_ip
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Author: Alseg
Date: 2011-01-08 20:12
Apropos, Mark, since you seem knowledgeable on the subject, here is a question(s), :
CDs, DVDs, and, for that matter, books, are available for loan from a public library. The library bought the book, cd, or dvd, so the author, composer, artist, or publisher presumptively got their royalties or fees for the item.
Since a book (dvd, etc) circulates, does a library pay an increased fee?
For that matter, what about Netflix or other rental companies? How do these things work......contracts, etc?
Former creator of CUSTOM CLARINET TUNING BARRELS by DR. ALLAN SEGAL
-Where the Sound Matters Most(tm)-
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Author: EEBaum
Date: 2011-01-08 20:38
Netflix, for their Instant offerings, pays a flat fee to the filmmakers for a set period of time. They might pay $10,000 for permission to stream such-and-such film for a year.
-Alex
www.mostlydifferent.com
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Author: Bill Patry
Date: 2011-01-08 21:28
I've been a copyright lawyer for 30 years. (The court cited one of my treatises in the opinion referred to). The relevant law is 17 United States Code Section 109 (see here: http://www.copyright.gov/title17/92chap1.html#109). This is called the first sale doctrine. For most types of works, once the copyright owner has sold or given away a lawfully made copy, anyone else can sell or give away that copy, which is why we have second hand book stores. There are two exceptions: software and recorded performances. For these two types of works, the copyright owner can prevent unauthorized rental or lending because of a fear of copying of them. Nonprofit libraries however can rent or lend recorded performances.
Netflix and other type services, as well as video rental stores, buy directly from the motion picture studios, and so enter into contracts with the studios. Those contracts govern price and other terms.
Post Edited (2011-01-08 22:09)
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Author: Alseg
Date: 2011-01-08 22:58
Thanks you guyz.........that pretty much " 'spains it"
Former creator of CUSTOM CLARINET TUNING BARRELS by DR. ALLAN SEGAL
-Where the Sound Matters Most(tm)-
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Author: Ken Shaw ★2017
Date: 2011-01-09 16:07
Wow, a copyright specialist who plays clarinet. Glad to have your advice.
{Lawyer's hat/ON}
The decision comes from the Ninth Circuit and is not binding on the other Circuit Courts, which are free to make an opposite decision. Such Circuit conflicts can only be resolved by the Supreme Court. I don't know whether other Circuits have decided this issue, and even if there is a split, the Supreme Court might not think it's worth resolving, since it applies to only a small number of cases.
The Supreme Court has reversed the Ninth Circuit more often than other Circuits. Some say it's because Ninth Circuit is too "liberal" but statistics show that it's because the 9th the largest Circuit (by far), so more of its decisions get to the Supremes.
In New York, the four state first-level appellate courts (the Appellate Divisions) are officially a single system. Like the federal Circuit Courts, they may disagree, but if there is no AD contrary authority in, say, the 1st Department, then authority from, say, the 3rd Department is binding on the trial courts in the 1st Department.
I'm not sure whether it's the same in the federal context, i.e., whether this 9th Circuit decision is binding on federal District (trial-level) Courts in, say, the 2nd Circuit in the absence of contrary 2nd Circuit authority. My instinct is that other Circuit decisions are persuasive but not binding on federal District Courts. I'm sure Bill can clear this up.
For what it's worth, I think the decision is clearly correct.
{Lawyer's hat/OFF}
Ken Shaw
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