Computer programs are functional, but they are also “literary works” that may be protected under copyright law. In December 2016, Arista Networks defended itself against a $335 million copyright infringement lawsuit from Cisco Systems. Cisco is now appealing the decision.
Cisco Systems, the largest networking company in the world, is trying to prevent Arista Networks from building ethernet switches which partially rely on technology copied from Cisco. Now on appeal before Federal Court in California (9th Circuit), the legal question is whether aspects of the particular technology deserves copyright protection in the first place.
Copyright protects creative expressions of an idea, but not the idea itself. This “idea–expression dichotomy” therefore limits the scope of copyright protection. In an earlier blog post, The Copyright Between Oceans,I explained how the scène à fairedoctrine was used as a successful defence in a copyright lawsuit regarding the novel The Light Between Oceans, and its subsequent film adaptation. When scène à faire (French for “essential scene”) is applied, common or typical plot developments are denied copyright protection. This means that broad themes, storylines and ideas which are common in a particular genre remain free for use by authors, screen writers, and other artists.
In the United States, computer programs are considered “literary works” under the Copyright Act, 17 U.S.C.§ 101. Accordingly, scène à faire may be applied to preclude copyright protection from aspects of a computer program which are common or otherwise “dictated by practical realities.” Practical realities include hardware compatibility, manufacturer design, and industry practice. Arista’s defence turns on this concept.
All human beings have three lives: public, private, and secret.
― Gabriel García Márquez
The European Union’s Court of Justice decision in Google Spain v Agencia Española de Protección de Datos, Mario Costeja González (“Google Spain”) confirmed the “righttobeforgotten” for European citizens. This right is further enshrined in the upcoming General Data Protection Regulations (GDPR). Accordingly, European data protection law grants individuals a qualified rightto have personal data relating to them removed from search engines.
This right is however considered by some to be a uniquely European phenomena, which resulted from one unusual CJEU judgement. Now, two upcoming cases against Google will be the first time in which the “right to be forgotten” will be considered by the English Courts.
The UK’s Digital Economy Act 2017 is to be amended by the Breaching Limits on Ticket Sales Regulations, which will criminalise use of internet bots to bypass limits on ticket purchases set by event organisers.
In practice, the problem is not necessarily how the tickets are purchased – by bots or otherwise – but rather, the crazy prices fans are forced to pay on the secondary market.
When tickets first go on sale for an event, they hit the primary market. If somebody resells their ticket, they do so on the secondary market. This secondary market is estimated to be worth more than £1bn ($1.4b) per year in the UK alone. When resales are done on a large scale or for considerable profit, it’s known as “touting” or “scalping”.
Touting in the digital age. “Bots” are software applications that run automated tasks (scripts) over the internet, used for years to quickly buy up thousands of tickets at lightening speed. By way of example, American company Prestige Entertainment is alleged to have bought over 300,000 tickets in a two-year period. This included 30,000 Hamilton Tickets and, in another instance, bought over 1,000 tickets to a U2 concert in less than one minute (see Ticketmaster v Prestige Entertainment, case 2:2017cv07232).
High and dry. When ticket supply is drastically limited, the bot masters (“power sellers”) can resell the bot-obtained tickets to fans at high mark-ups. Tickets for Radiohead’s 2016 show had a face value of £65, but were placed on Viagogo for £3,934. A ticket for Adele’s concert in London was listed on Get Me In! for an eye-watering £24,840.
Before I started law school, I spoke to a lawyer at Universal Music about licensing, copyright, and other fascets of law pertaining to the music industry. Since becoming a lawyer myself, I’m even more fascinated by the ways in which commercial contracts, digital strategy, artists’ rights and expression interact with and shape each other: Facebook’s new global, multi-year agreements with Universal and Sony Music are perfect examples of such dynamism.
Facebook first inked a deal with Universal Music in late December 2017. The deal with Sony, the largest music publisher in the world, was announced on 9 January. These deals allow Facebook and Instagram users to upload homemade video clips containing songs owned by Universal or Sony, without generating a takedown notice.
I’m excited to announce that for the next six months, I’ll be an intern blogger for the 1709 Blog – a website dedicated to all things copyright. If you are familiar with IPKat, you may recognise CopyKat posts. I should be writing at least once or twice a month, and hope to focus on copyright issues which pertain to film and music. I will still be writing here at kelseyfarish.com but hope that you’ll check out the 1709 Blog, too! You can also follow the 1709 Blog on twitter.
In 1709 the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all.
this post is featured on the University of the Arts London’s intellectual property blog, creativeIP.org
♫♬ Now we’ve got problems / and I don’t think we can solve them (without lawyers…)
The right to freedom of expression is not an absolute right: there are certain restrictions in place to protect an individual’s reputation. But those restrictions vary significantly, depending on which side of the Atlantic you’re on. Considering the shared legal traditions of the United States and Great Britain, their differences on the issue of free speech is surprising.
In early September, PopFront published an article entitled “Swiftly to the alt-right: Taylor subtly gets the lower case kkk in formation.” Exploring the singer’s (somewhat convoluted, if not contrived) connections to the American alt-right, PopFront suggests Swift’s song “Look What You Made Me Do” resonates with Breitbart readers, Trump supporters, and white supremacists, et al. The article also shows a screenshot from Swift’s music video juxtaposed with a photo of Hitler, noting that “Taylor lords over an army of models from a podium, akin to what Hitler had in Nazi Germany.”
Has New Zealand been too friendly towards Hollywood, at the expense of its own workforce? New Zealand’s incoming Labour Government promises to restore certain employment protections for film cast and crew, by repealling the controversial “Hobbit Law” within the next 100 days.
New Zealand is famous for being film-friendly. Gorgeous landscapes provide dramatic settings not far from the city comforts, and generous financial incentives are available in the form of government grants. Since the 1990s in particular, the country’s film and television industry has participated in many large, complex international productions: such films include The Hobbit and Lord of the Rings franchises, The Chronicles of Narnia, the 2005 King Kong remake, Avatar, District 9,The Lovely Bones, and – a personal favourite of mine – The Piano (pictured above).
Earlier this year, Statistics NZ announced that the country’s screen industry revenue had increased to $3.3 billion in 2016, with film production revenue doubling to more than $1 billion. In addition to direct revenues, film and television content also promotes and enhances New Zealand’s “national brand,” with many tourists visiting the country specifically because of what they’ve seen on screen.
But has New Zealand been too friendly towards Hollywood, at the expense of its own workforce? New Zealand’s so-called “Hobbit Law” came into force in 2010 as a direct result of actors on Peter Jackson’s film The Hobbit threatening industrial action. Warner Brothers’ Studio suggested it would retaliate by relocating the US $500m production elsewhere, with Jackson mentioning the possibility of filming in Eastern Europe instead. To keep The Hobbit in New Zealand, Parliament passed the Employment Relations (Film Production Work) Amendment Bill 2010to limit screen industry workers’ rights.