Berne, Baby, Berne: International Copyright and You
April 10th, 2012
© Bay Oak Law, 2012
Maybe its your company’s simple yet addictive game. Or perhaps it’s the new song your band wrote that is flooding the airwaves. Maybe its just your smartphone video of your pet yapping in time to a song. You immediately register your American copyright, yet within a few hours the Internet reveals that your work is being copied from Albania to Zimbabwe. How do you enforce your copyright?
Unfortunately, American law ends where American sovereignty ends. You cannot sue here in the United States for a copyright infringement that occurs in another nation. However, that does not mean you are helpless.
First, just because an infringement starts in another nation does not mean that American laws never apply. If a work is imported into the United States, it becomes subject to American law. Thus, if someone ports an infringing copy of your pet video onto YouTube’s servers, it becomes subject to American requirements under the Digital Millenium Copyright Act, including being taken down if the copyright owner demands it.
Still, most foreign infringements will not enter the United States, and there is no international copyright registration agency. However, your American registered copyright can still be enforced in the foreign country itself, if that foreign country has joined the Berne Convention for the Protection of Literary and Artistic Works. Almost all major countries have joined the “Berne Convention” to protect their country’s copyrighted works in other countries. (Countries that have not signed onto the Berne Convention include Afghanistan, Iran, Iraq, Burma, Cambodia, Laos, Somalia, and Ethiopia).
If someone infringes your copyright in a foreign country, your remedy is to sue the infringer where the infringement occurred, under the laws of that country. Under the Berne Convention, you are entitled to the same legal rights for your American-registered copyright as you would have if you had registered your work in that country. You will need to rely upon the legal processes of that country, so you will need competent legal advice there. Bay Oak Law cannot represent you in the foreign country, but we can help you find competent legal assistance if you need it.
It is always a good idea to note the copyright, even (or, especially) if you are not registering the copyright. Once you make your expression available to the world, you have rights under copyright. If someone is profiting from the expression that you worked so hard to create, you have a right to those profits, even if the profiteer/infringer is in a different country.
New Employee Poster Requirement
April 3rd, 2012
UPDATE: April 17th: The Federal Court of Appeals for the District of Columbia has delayed enforcement of the posting of the poster below, to allow for an appeal. A Federal District Court in South Carolina has also struck down the rule, and that will likely be appealed. The D.C. Circuit probably will not hear the case until later in the summer, and a decision might not be made for several months after that. Until further notice, there is no need to put the poster on the wall. For the time being, we will continue posting the article we published earlier in April.
The National Labor Relations Board is requiring that most private sector businesses with employees put up a new poster, beginning at the end of April.
The poster gives employees notice of their rights to choose (or not choose) collective bargaining,to organize a union, to strike or picket, or even to improve working conditions.
The poster can be printed on your own printer, in color or in black and white paper. The NLRB prefers that you use 11″x17″ paper, but there is also a version that can be printed on two pages of 8.5″x11″ paper. There are versions in various other languages, from Albanian to Vietnamese, if 20% or more of your employees speak another language.. You can find the English language poster and the instructions here.
The only private sector businesses not covered by this law are those industries that have their own labor relations act, like agriculture, airlines and railways, those who employ only children or spouses, and domestic workers.
The rule that provides for penalties for not displaying the poster was struck down, so there is no direct penalty for not posting. The NLRB intends to use a willful failure to post as evidence of other unfair labor practices. The NLRB also says that it will not enforce the rule over very small businesses, but does not say what a “very small” business is.
Bay Oak Law’s advice: print it, post it, forget it.
Aye, Ye Maties, ‘Ere’s Sunken Treasure Here!
March 30th, 2012
Right across the street from Bay Oak Law, in Lake Merritt.
Department of What The . . . ?
March 27th, 2012
Copyright Concerto for Campaigning
March 18th, 2012
Way back in the paleolithic era, also known as September 1984, I was driving cross-country to a Congressional internship. I was listening to a local radio station that was broadcasting live from a campaign event for then-President Reagan. To warm up the crowd, the campaign played Bruce Springsteen’s “Born in the U.S.A.,” and in the background I could here the crowd scream the refrain. (I’m not sure it is the same event, but an article on the Ronald Reagan Rock in Hammonton, New Jersey sums things up pretty well.)
The sheer obliviousness shocked me: even a quick listen to the lyrics reveals that “Born in the U.S.A.” is not an affirmation of the greatness of the United States, but an exclamation against the shortchanging of a large portion of the American people: even though the song’s narrator was “Born in the U.S.A.,” “the first kick I took was when I hit the ground,” and since Vietnam it’s been “ten years down the road, nowhere to run, ain’t got nowhere to go.” This was not the storyline for an incumbent’s re-election campaign. Springsteen complained, and the campaign stopped using the song.
It is a presidential election year once again, and once again, the presidential campaigns’ choice of music is getting them into trouble. Former Speaker of the House Newt Gingrich and his campaign have been sued for using Survivor’s anthem, Eye of the Tiger, from the movie Rocky III. (Worse, Survivor frontman Dave Bickler retaliated by reading from Gingrich’s latest book “A Nation Like No Other”). Rep. Michelle Bachmann used Tom Petty’s “American Girl” until he got wind of it. Four years ago, Jackson Browne sued the Republican Party and John McCain for copyright infringement and false endorsement for using “Running on Empty” without permission.
There are issues of both copyright infringement and trademark infringement. Artists and other copyright owners are entitled to royalties when their works are played – that is what copyright is all about. However, for politically active artists, having those they disagree with using their works could tarnish the artist’s “brand.” Browne’s claims for false endorsement and a likelihood of confusion survived a motion to dismiss by Sen. McCain and the other defendants, who eventually settled the case.
National Public Radio has a good article on the pitfalls of campaign music: since they play the music in various locales, campaigns need licenses to legally play the songs. Both President Obama’s and Gov. Romney’s campaigns have created their own official campaign music lists, and have (presumably) cleared their use with the copyright holders. Former Senator Clinton’s 2008 Presidential campaign even had people vote for the official campaign song.
Campaigns use music the same way most of us do: to inspire, to create a connection. Speaker Gingrich probably wanted voters to associate him with Rocky, fighting against the odds after having taken a hard fall. However, what works in our personal lives doesn’t always translate well in a public venue. Political campaigns have gradually come to realize that ignoring the rights (and lyrics) of copyrighted songs doesn’t work.
Nah, No Employer Would Be That Dumb
March 15th, 2012
One criticism of attorneys that non-attorneys ( better known as “real people”) have is that we spend too much time in the netherworld of hypothetical situations. Surely, no employer would ever:
1. Refuse to believe his assistant when she announced that she was pregnant, because she told him for the first time on April 1st;
2. Call his assistant’s fetus a “thing” and refuse to look at the ultrasound picture;
3. Refuse to hire a temporary replacement for his assistant after the birth because she only had to be gone a few days – not the several weeks allowed by law;
4. Complain that “just because somebody’s pregnant, doesn’t mean I should have to pay for it,” even though it was actually covered by insurance;
5. Complain that his assistant was going to doctor’s appointments too often for her high-risk pregnancy;
6. Give his assistant a patent application entitled “Apparatus for Facilitating the Birth of a Child by Centrifugal Force,”* saying that it would allow her to come back to work sooner;
7. Terminate both his assistant and her medical insurance coverage while she was still in the hospital, recuperating from her Caesarian – but not telling her until several days after that.
Well, these are some of the facts from EEOC v. HCS Medical Staffing, which entered judgment against the employer last month. The Wisconsin District Court awarded $48,340.40 in backpay, $50,000 in compensatory damages, and $50,000 in punitive damages. Yeah, even attorneys sometimes have their brains in the real world.
*One of Bay Oak Law’s favorite Oakland authors, Mary Roach, author of “Packing for Mars,” wrote about this invention. She especially liked the apparatus’ “elasticized ‘pocket-shaped newborn net.’”
Pi Day: Who Doodled For Google?
March 14th, 2012
Who doodled for Google on Pi Day, 3/14? Why, our friend and client Robert Lang, the noted origami artist. You can see a time lapse video of the folding of his origami Google. Today is the 101st anniversary of the birth of the modern father of origami, Akira Yoshiwara. You can also see one of several articles about Robert Lang’s Google Doodle here.
The Breyer Copyright Manifesto
March 12th, 2012
The length of US copyrights has been growing ever longer. Supreme Court Justice Stephen Breyer‘s recent dissent in Golan v. Holder, 565 U.S. ___ (2012) (“Golan”), relies on the Constitution to reveal the folly of that lengthening. While some wonder why judges write dissenting opinions, those dissents sometimes grow into majority opinions later. Justice Breyer’s Golan dissent aids the fight against those who seek again to extend copyright terms into a second century – long past the time of any possible benefit to the human authors of works.
A copyright is a constitutionally authorized monopoly. It gives authors (which now includes everyone in the expressive arts: dancers, sculptors, artists, composers, musicians, photographers, etc.) an incentive to create works that the public can learn from and enjoy. While the Constitution requires that the monopoly be “for limited times,” those times have grown from fourteen years in 1790 to ninety-five years for works for hire today, and for works by individuals, the life of the individual author plus seventy years. Author J.D. Salinger published The Catcher in the Rye in 1951. He died in 2010. Under current copyright law, his estate will enjoy the copyright to this rock of American literature until 2080.
Golan upheld Congress’ 1994 vote to retroactively award copyright protection for foreign works that were never registered in the United States. The authors had registered their copyrights in their home countries, which did not have agreements with the US to respect those copyrights here. Justice Ruth Bader Ginsberg‘s majority opinion concluded that Congress’ grant of retroactive copyright protection “does not transgress constitutional limitations on Congress’ authority. Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit.”
Justice Breyer’s dissent, joined by Justice Samuel Alito, focused on the source of Congress’ power over copyrights:
“In order ‘[t]o promote the Progress of Science’ (by which term the Founders meant ‘learning’ or ‘knowledge’), the Constitution’s Copyright Clause grants Congress the power to “secur[e] for limited Times to Authors . . . the exclusive Right to their . . . Writings.’ Art. I, §8, cl. 8. This ‘exclusive Right’ allows its holder to charge a fee to those who wish to use a copyrighted work, and the ability to charge that fee encourages the production of new material.”
Justice Breyer stresses that “[t]he possibility of eliciting new production is, and always has been, an essential precondition for American copyright protection. . . . That philosophy understands copyright’s grants of limited monopoly privileges to authors as private benefits that are conferred for a public reason—to elicit new creation.” In contrast, Congress’ retroactive award of copyright protection “does not encourage anyone to produce a single new work. By definition, it bestows monetary rewards only on owners of old works— works that have already been created and already are in the American public domain.”
Justice Breyer concluded that the Constitution’s Copyright Clause does not authorize the statute, arguing that
“This statute does not serve copyright’s traditional public ends, namely the creation of monetary awards that ‘motivate the creative activity of authors,’ . . .’encourag[e] individual effort,’ . . . and thereby ‘serve the cause of promoting broad public availability of literature, music, and the other arts’ . . . . [Citations omitted.] The statute grants its ‘restored copyright[s]’ only to works already produced. It provides no monetary incentive to produce anything new. Unlike other American copyright statutes from the time of the Founders onwards, . . . it lacks any significant copyright-related quid pro quo.”
Breyer’s dissent finds that the majority opinion ignores the express purpose of the Constitution’s copyright monopoly: to give authors an incentive to create new works. Breyer equates the majority to the dreaded Stationers’ Company that squashed expression critical of the crown. The Stationers’ Company enjoyed a monopoly on printed works in England until 1710′s Statute of Anne, when Parliament awarded the copyright monopoly to the authors, instead of publishers.
Justice Breyer finds that“[t]he possibility of eliciting new production is, and always has been, an essential precondition for American copyright protection.” Instead of the singular Continental focus on artists’ “moral rights,” British and American copyright law balances the interests of the artistic creators and consumers of those creations. A copyright monopoly should last only while it benefits society by providing incentives for creating new works. Its purpose is not to maximize the authors’ returns. Justice Breyer condemns the majority’s ignorance of “[t]his utilitarian understanding of the Copyright Clause [that] has long been reflected in the [Supreme] Court’s case law.” Justice Breyer notes that
“In Twentieth Century Music Corp. v. Aiken, 422 U. S. 151 (1975), the Court says that underlying copyright is the understanding that ‘[c]reative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.’ Id., at 156 (emphasis added). And in Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417 (1984), the Court, speaking of both copyrights and patents, points out that the ‘monopoly privileges that Congress may authorize are . . . [not] primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors . . . by the provision of a special reward.’ Id., at 429 (emphasis added); see also, e.g., Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 6 (1966) (The ‘constitutional command. . . `[to] promote the Progress [of Science]‘ . . . is the standard expressed in the Constitution and it may not be ignored’); Fox Film Corp. v. Doyal , 286 U. S. 123, 127 (1932) (‘The sole interest of the United States . . . lie[s] in the general benefits derived by the public from the labors of authors’).”
Justice Breyer focuses on the constitutional justification for copyright, to “the power of copyright to elicit new production. Congress in particular cases may determine that copyright’s ability to do so outweighs any concomitant high prices, administrative costs, and restrictions on dissemination.” When that incentive is removed from the equation, as Justice Breyer concludes it does for these (already created) foreign works, then Congress lacks the power to give copyright protection to them.
In 1998′s Sonny Bono Copyright Extension Act, Congress prolonged copyright terms yet again. The same lobby that pushed that Act will return to Congress soon to extend those terms even further. Justice Breyer’s analysis of the constitutional rationale for copyright will demand the answer to this question: what will the public get when (not if) Congress tries to extend copyright terms into a second century? Does the additional revenue from extending copyrights a century or more from the date of creation cause more works to be created? It is hard to imagine an author saying that she won’t create a work unless the copyright lasts ninety, instead of seventy, years after her death. If the Constitution’s drafters wanted to give all the rights to authors, they would not have prefaced the right with an incentive clause, and they would have given the rights for all time – not for “limited times.”
Justice Breyer’s manifesto did not carry the day in Golan. However, he reinvigorates the constitutional link between incentive and copyrighted work – a rationale long ignored by those who seek to stretch copyright terms into a second century. Justice Breyer provides valuable ammunition for those who restore the balance between private and public interests.
Felony Stupidity Is Not a Crime — But He’s Got That Covered, Anyway
March 9th, 2012
Steal from a judge that you were just in front of, then post the proof on Facebook. Smart!
Allergan’s IS a Botox Smile; or, No Mirth for Merz
March 8th, 2012
Allergan, the maker of the first botulinium toxin cosmetic product (better known as Botox) is smiling today because it won a trade secret misappropriation trial against competitor Merz Pharmaceutical. Merz markets Xeomin, another botulinium toxin product that until recently was authorized only for muscle cramps.
Allergan sued for trade secret misappropriation after Merz poached Allergan’s botox sales teams. Federal Judge Andrew Guilford of the Central District of California found the sales teams helped themselves to large doses of confidential sales information before blowing off Allergan. For all the advanced chemistry and biology involved, apparently the trade secrets misappropriated were garden variety (albeit vital) sales and customer information.
Judge Guilford’s full ruling and terms of the injunction are due on Friday, March 9th; we will provide a link here when it becomes available.
A hearty huzzah, though, for Merz’ counsel, Rick McKnight, who tried to make the best of a bad result: he is quoted as saying that he thinks the judge’s ruling after trial is a way of “encouraging settlement.”