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Amazon Taking On Counterfeiters

In November of 2016 Amazon filed lawsuits against counterfeiters and infringers for the first time in its 20-year history. This follows on the heels of Amazon’s announcement in August of 2016 that they would be stepping up enforcement measures against counterfeit sellers. This move towards enhanced enforcement has been increasingly called for by Amazon users, both purchasers and sellers, who had to deal with a growing problem of counterfeit sellers with little to no recourse for addressing the issue.   Amazon’s problem with counterfeit sellers is nothing new, and has been growing in the last years. Many large retailers such as Apple, NFL, and Birkenstock have refused to sell their products through Amazon because of the inability to control counterfeit sellers of their items. To address this issue Amazon began taking increased enforcement measures in 2016, starting with an announcement in August. Amazon announced they would be stepping up fees for retailers who desire to sell brand-name products. For example, if a retailer seeks to sell Adidas, Nike, or Hasbro products they are required to pay between $1,000-1,500 non-refundable fee. This is in attempt to foil fly-by-night counterfeit seller operations, which usually open for a short time to sell counterfeit products, but disappear as soon as any complaints arise. No exact list of brands requiring said fees has been released, but it is safe to say Amazon is taking increasing efforts to restrict sales of products only through authorized retailers. While this is welcomed news to brands, this could be a serious impediment to third-party resellers who made their money from retail arbitrage, reselling products purchased a wholesale or...

GIFs and Copyright: With Money Comes the Laws

GIF’s, or short looping video clips, ubiquitously populate the Internet and have quickly become a new form of communication unto themselves. Usually these short looping videos borrow clips from popular television shows, movies, or video of cultural figures, or in other words, copyright protected materials. For the most part copyright holders of these borrowed-from properties have ignored the possible infringements of these GIFs because most are seen as “fair use” (not to mention the sheer volume to police). A key element of “fair use” however is the commercial nature of the work in question. Up until now the vast majority of GIFs created by individuals were not commercial in nature, however that may be beginning to change with a $72 million round of funding raised this week by the Internet’s main GIF creating and search engine GIPHY. GIFs just became big business, and with money always come laws. When assessing whether something is protected under “fair use” four factors are looked at: 1) Amount and substantiality of the portion taken; 2) Purpose and character of your use; 3) Nature of the copyrighted work; and 4) Effect of the use upon the potential market. GIFs are normally seen as “fair use” because of a few key features. First, they are usually very short, favoring fair use because a very unsubstantial portion of the larger copyrighted work is used. Second, the purpose of the GIFs is usually satirical or parodic, favoring fair use because the meaning is different than that of the original work. Third, the nature of GIFs is normally to alter the original video in some way, (looping, speeding...

Cheering for Copyright: The Supreme Court Hears Consequential Dispute over Cheerleader Uniforms

In a case heard by the Supreme Court on October 31st this year, Star Athletica, LLC v. Varsity Brands, Inc., basic premises of copyright law was up for dispute. At the heart of this case is a dispute between two manufactures of cheerleading uniforms, Star Athletica and Varsity Brands. Varsity Brands accused Star Athletica of essentially copying their cheerleading uniforms and selling them at a lower price. For their side of the argument, Star Athletica counters that the cheerleading uniforms are not protectable by copyright because they are functional rather than expressive. For that matter, Star Athletica claims the Supreme Court should adopt a precedent where all garments are exempt from copyright protection. This argument revolves around a basic premise of copyright law that says copyright protection is only offered for expressive content of work, not functional ideas or objects. This principal was instantiated in Mazer v. Stein, which involved a statuette of a woman that was intended for, and was used as, the base of a lamp.   The Court held that the Copyright Act protected the expression of the statuette, but not the idea of using a statuette as a lamp base. Therefore, others could make statuettes used as bases of lamps, however they could not copy that exact expression of a women as a lamp base that was protected by copyright. This same principal is at issue in the present case. Star Athletica argued there should be a blanket presumption against copyright protection for garments. According to their argument, if the design features on a garment cannot be conceived of separate and apart from the garment itself,...

Sound Engineers as “Authors”: New Copyright Protection to Re-mastered Pre-1972 Recordings

In the world of music copyrights there is a divide between songs created “pre” and “post” 1972. The Sound Recordings Act of 1971 granted copyright protection to sound recordings (adding to the existing protection for underlying compositions) created from 1972 onwards, however all were required to grant a compulsory license for the performance of these songs. Part of this act was there were no royalties to be paid for terrestrial radio broadcast of these post-1972 sound recordings. All pre-1972 sound recordings were not granted federal protection, and hence were not subject to the compulsory performance license requirement. As such, pre-1972 sound recordings are under the protection of state copyright law. California’s copyright laws gives an exclusive right of public performance of sound recordings, therefore without a license from the sound recording holder, performance of the sound recordings, such as on the radio, would be copyright infringement. This scenario is exactly where CBS Radio found itself when it was sued for the public performance of a number of pre-1972 sound recordings with ABS Entertainment v. CBS Radio In response to the accusation of copyright infringement, CBS Radio argued it was not preforming the pre-1792 recordings; rather, it was preforming recently re-mastered digital versions of these recordings. CBS argued these re-mastered versions were created after 1972, and therefore subject to the compulsory licensing requirement of the Sound Recordings Act of 1971, hence granting the exemption of royalty payment for performance over terrestrial radio. The main crux of this case became the copyright-ability of re-mastered sound recordings as “derivative works”. CBS Radio argued that its sound engineers had altered the pre-1972 recording...

Hyperlinks and Copyright Infringement: EU’s New Rules

This month the Court of Justice of the European Union (CJEU) issued a ruling directly impacting the practice of posting links to works hosted on other websites, also known as hyperlinks. Even though an individual may not be hosting or displaying copyrighted material on their website, in certain circumstances outlined in this new ruling, an individual can still be liable for copyright infringement for the act of linking to said copyrighted work hosted on other websites. This case was the result of a Dutch news website, GeenStijl, posting hyperlinks to Playboy photos of a popular model. Despite being asked multiple times by Playboy to stop linking to the copyrighted images, GeenStijl refused and posted links to the images in multiple different news stories. While GeenStijl were not directly hosting or displaying any of the images, Playboy argued that their repeated linking to third parties hosting said images, especially after multiple cease and desist requests, made them liable for copyright infringement. The CJEU agreed with Playboy and issued an important holding outlining the contours of copyright infringement in this area. The crux of the case was what constitutes “communication to the public”. In a 2014 case, Svensson, the CJEU ruled that posting a link to material that is already available to the public does not constitute “communication to the public” and hence does not infringe on the copyright holder’s rights. The theory was that there would need to be a new act where by the copyrighted material was communicated to a “new public” for infringement. According to the Svensson ruling, simply posting a link to material already available on the...

Brexit: And its Effect on IP Rights

On June 23rd the United Kingdom (UK) voted to leave the European Union (EU), a move now commonly referred to as the “Brexit”. With their exit from the EU, the UK will now have to renegotiate a long list of rules, regulations, and treaties that were formally governed under the EU regime. How this process of renegotiation affect intellectual property rights in the UK and the EU depends on the exact type of right, and how unified the protection of that right was throughout the EU member nations. To begin, the process of leaving the EU will take two years from the time UK leaders invoke Article 50, beginning the process of a member nation leaving the Union. As of current, Art. 50 has not been invoked, so the two year clock on unwinding the relationship between the UK and EU has not yet begun. With this being the case, any IP rights that were governed by institutions of the EU, unified over all of the member nations, will continue to be in-force. However it is these exact rights, the ones that are governed by EU regulations, which will be the most effected by Brexit. Patents: The European Patent Office (EPO) currently governs patent law in the EU. This is an institution made up of both member and non-member nations to the EU, so the UK’s exit from the EU will not effect its membership in the EPO. The European Patent Convention (executed by the EPO) allows for a European Patent (EP), which itself is not a single patent, but a bundle of patents that an inventor may obtain...