In July, the terms of the recent agreement on royalty payments reached between performers and record labels, on the one hand, and "pureplay" webcasters, on the other hand, were published in the Federal Register (the publication in which federal regulations are documented).  This marks the beginning of a 30-day period in which webcasters can opt-in to participate in this deal, as opposed to pay the rates for webcasters established by the Copyright Royalty Board.  This news drives home the fact that a clear regime is being established to compensate labels and artists for playing their recordings on digital services, while there is no such payment regime for playing the recordings on broadcast radio.  There is currently proposed legislation, called the Performance Rights Act, to change this by requiring broadcasters to pay a royalty for playing records.  Webcasters, labels and a number of artist representative groups (like SoundExchange, which represents labels and performers) are for it.  Radio broadcasters are against it.  Looking at the blogs out there, a lot of people appear to think this is yet another money grab by the labels that will put small radio stations out of business.

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In Facebook, Inc. v. Power Ventures, Inc., the US District Court for the Northern District of California denied defendant Power Ventures's motion to dismiss Facebook's copyright infringement claim arising out of Power Ventures's unauthorized harvesting of data from Facebook user accounts.  Power Ventures operates a website designed to integrate various social networking or email accounts into a single portal. After a user provides his or her user names and passwords to Power Ventures's service (power.com), it takes this access information to “scrape” user data from those accounts.  Subsequently, the user can log on to Power.com to view the data culled from Facebook and any other social networking sites or email accounts.

Power Ventures commenced licensing negotiations with Facebook to authorize its data scraping activity.  After negotiations broke down, Facebook brought suit claiming, among other things, that Power Ventures's actions violated the Copyright Act.  Power Ventures moved to dismiss, arguing that Facebook does not have a copyright interest in the content posted by its users.

The court agreed with Power Ventures that Facebook does not have a copyright on user content, which ultimately is the information that Power Ventures software seeks to extract.  The court stated further, however, that Power Ventures's making a copy of a user’s entire Facebook profile page in order to collect that user content,  could constitute infringement of Facebook’s copyright interest in the collection and arrangement of the user content in the form of the profile page.  Accordingly, the court denied Power Venture's motion to dismiss Facebook's copyright infringement claim.

This case may provide further ammunition to site owners in their attempts to thwart unauthorized collection of site user data, even where the site user has granted permission and the site owner does not actually own the data.

So what's the takeaway from the Barnes v. Yahoo, Inc. case?  This is the case decided this month involving the dumped boyfriend who posted nude pictures of his ex on Yahoo and impersonated her in various Yahoo chat rooms suggesting she's ready for action.  He also posted her contact information.  Some people have a hard time moving on.  After a slew of not-so-gentleman callers, Barnes contacted Yahoo in accordance with their policies to request removal of the information.  Barnes asserts she received a phone call from Yahoo's "Director of Communications" telling her that she would "personally walk [Barnes's request] over to the division responsible for stopping unauthorized profiles and they would take care of it."  According to Barnes, it didn't happen.  After a few more months, Barnes sued Yahoo.  Yahoo asserted that it is immune, under Section 230 of the Communications Decency Act, from any liability for its actions, or lack of action, relating to Barnes. 

Barnes sued under two legal theories.  But the court gave credence to only one, promissory estoppel, which basically alleges that Yahoo made a promise (to remove the offensive content) which Barnes relied on to her detriment.  The court did not accept that Section 230 of the CDA means that Yahoo could not liable to Barnes under a promissory estoppel theory.More...

Fair Use is one of those concepts that gets thrown around a lot when talking about content in social media.  But how many of us really get what Fair Use is?  Judging from blog posts I've seen at a few sites recently, there are a lot of misconceptions.  Here are a couple of  statements I've read lately (they're paraphrased, but they convey the gist):

Content owners should allow Posters to use their content on YouTube under Fair Use.

Here's the good news.  If it's Fair Use, they are allowed!  If a use is determined to be Fair Use under the Copyright Law,  you don't need to get the permission of the copyright holder.  The question is, what constitutes Fair Use.

Giving your only copy of a DVD to a friend is Fair Use.

Nope.  If you legally possess a DVD,  giving that DVD to a friend is permitted under a provision in the Copyright Law commonly referred to as the First Sale Doctrine,  but it's not Fair Use.   Sometime people use the term Fair Use to mean anything that is not copyright infringement.  Fair Use, however, is a specific limitation on the reach of copyright, based solely on an analysis of four Fair Use factors written into the Copyright Law.  The four factors, as they appear in the Copyright Law, are:

            (i) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

            (ii) the nature of the copyrighted work;

            (iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

            (iv) the effect of the use upon the potential market for or value of the copyrighted work.

 There are other limitations on copyright, but they're not Fair Use. More...