Graffiti Artist Claims Copyright, Judge Allows To Move Forward

By Carla Vercellone For many years graffiti was seen as a delinquent activity and public disturbance made by outlaws of society who sprayed their work on subway cars and alleyways, hiding behind an alias while trying not to be pursued by the police. But nowadays, society’s view on graffiti has changed and it has been used by fashion labels and major corporations in their ad campaigns. Although the perception of it may be more accepting by society, the law hasn’t necessarily caught up to us just yet. Currently, the Copyright Act (17 U.S. Code, §102(a)) protects any “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device” [1] this includes: (1) literary works; (2) musical works; (3) dramatic works; (4) pantomimes and choreographic work; (5) pictorial, graphic, and sculptural works; (6) motion pictures and

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“It’s Like Déjà Vu All Over Again”

By Dan McPheeters and Michael Stein Yesterday (presuming you read serials in order), we looked at the lines drawn in the private sector between supporters and opponents of the now-tabled Stop Online Piracy Act. We posited possible overriding concerns for each side, and wondered whether we might have seen this fight once before – like that time when a group of content providers sued a tiny search-engine company over a home-video website it had purchased the year before. All kidding aside, the titanic Viacom v. YouTube lawsuit was in many ways the prequel to the current debate, and the 2010 opinion denying the plaintiffs’ claims may very well have been the catalyst for advancing the legislation now known as SOPA. 

“In the Blue Corner, Our Challenger…”

By Dan McPheeters and Michael Stein In our last post, we explored an element of SOPA that served as a point of division between supporters and opponents of the bill. Today, we look at the dynamics of the fight and the driving concerns of each side. Much of this may be common knowledge by now, but it helps set up our next post, where we explore SOPA in the context of Viacom v. Youtube and try to determine whether this was a unique fight or merely another round of what could be a long war between entrenched content developers and online distributors. At the legislative level, at least initially, SOPA was surprisingly bi-partisan on both sides of the issue. With Rep. Lamar Smith (R) and John Conyers (D) on one side and Minority Leader Pelosi (D) and Rep. Issa (R) on the other, this was far from the typical controversial bill. Indeed, very little was made of SOPA on a

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SOPA is dead! (What, no longer newsworthy?)

By Dan McPheeters and Michael Stein Now that the immediate reactions and analyses have died down, we thought we could dedicate the inaugural series of the revamped Stein McEwen “blawg” to taking stock of the SOPA debate and explore what the future may look like for online regulation viz. piracy. The opposition to the Stop Online Piracy Act (“SOPA”), culminating in the internet blackout last Wednesday, coalesced around the idea that the bill would kill the internet as we know it (see, e.g., David Post’s series at the Volokh Conspiracy). Supporters, on the other hand, asserted that the bill “only target(ed) foreign websites that are primarily dedicated to illegal activity.” As is often the case in politics and PR, both statements are true. While SOPA was primarily aimed at foreign websites directed to US users, the enforcement provision allowed the Government to obtain an injunction against websites such as Google and Huffington Post in order to force their compliance with

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Federal Circuit Finds No Waiver of Sovereign Immunity under DMCA

In Blueport Co. v. United States, 533 F.3d 1374, 87 USPQ2d 1512 (Fed. Cir. 2008), Mark Davenport, a Technical Sergeant with the Air Force, worked with the Air Force’s Manpower Data System (MDS).  Through working with the MDS, Davenport concluded that the software used to run the MDS program was inefficient and began to seek ways of improving the software.  Davenport sought training in computer programming from the Air Force, but was denied.  As such, Davenport learned how to program on his own time, and subsequently wrote a new program called “the AUMD” program, also on his own time at his home. Davenport used the AUMD program at work and began sharing it with coworkers.  Based on his experiences using the AUMD program at work, Davenport made changes from time to time to improve the program.  At no time did Davenport bring the source code to work or copy it onto Air Force computers. The AUMD program began to catch

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Copyright Office Issues New Set of DMCA Exemptions in Third Triennial Rulemaking

ByDoug Agopsowicz INTRODUCTION On November 27, 2006, the Librarian of Congress, on the recommendation of the Register of Copyrights, announced the classes of works subject to the exemption from the Digital Millennium Copyright Act (“DMCA”).  The announcement marked the third time that the Librarian of Congress granted a series of exemptions to the DMCA.  This third rulemaking resulted in more exemptions being granted than the number granted in the first two rulemakings of 2000 and 2003.  This third rulemaking also marks a significant change in the way in which the Library of Congress defines a “class of works” exempt from the DMCA, by defining a “class of works” based at least partially on the intended use of the works in addition to intrinsic characteristics of the works.        BACKGROUND The Digital Millennium Copyright Act (“DMCA”), Pub. L. 105-304 (1998), amended Title 17 of the United States Code to add a new chapter 12.  One of the provisions of chapter 12

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Digital Millennium Copyright Act: Lexmark Reversed on Digital Millennium Copyright Act (DMCA) Since Unprotected Program Is Not Subject to DMCA Protection and Since Encryption Protected Program Was Not Copyrightable

Lexmark International, Inc. (hereinafter Lexmark) is a manufacturer of printers and printer cartridges.  In order to prevent unauthorized re-filling of the printer cartridges, Lexmark has been attempting to enforce its rights using a combination of actions, including one well publicized action based upon the DMCA.  Lexmark brought suit against Static Control Components, Inc. (hereinafter SCC) in the Eastern District of Kentucky and was initially granted a preliminary injunction preventing SCC from selling the chip.  Among the grounds supporting the preliminary injunction, the District Court found that Lexmark was likely to succeed on its claim that SCC’s chip was in violation of 17 USC 1201(a)(2) of the DMCA.  On appeal to the Court of Appeals for the Sixth Circuit, the District Court was reversed on the DMCA claim.


Genuine issues of fact as to whether consumers are authorized to use defendant’s transmitters to operate plaintiff’s garage door openers by circumventing “rolling code” technology in plaintiff’s computer program preclude summary judgment that defendant is liable for violation of anti-circumvention provisions of Digital Millennium Copyright Act, 17 U.S.C. §1201(a).  (Chamberlain Group Inc. v. Skylink Technologies Inc., 68 USPQ2d 1009, DC NIll, 8/29/03).