Letter from AmeriKat - 2009 Countdown (Part I)

Last week the AmeriKat was still debating over her New Years Eve plans - what country and with whom to celebrate her least favored holiday - right up to the point she was meant to be journeying to the airport back to London. The permutations and consequences of her decisions of whether to stay or to go were whizzing through her brain. These split second decisions can have either profound effects or minimal consequences. Our lives of made up of these decisions and in looking back at the year that was, the events of 2009 were “events” because someone somewhere made a decision: whether or not to sue Apple, to draft an overly broad copyright class-action settlement, to issue a writ of certiorari to the Supreme Court in a patent case, or to allow your children to download pirated songs on your computer. These decisions have had profound consequences in the world of intellectual property law and some have yet to be felt.

Having impulsively made her decision as to where to ring in the New Year, the AmeriKat has curled up to watch her favorite movie (Alfred Hitchcock’s Vertigo) with the New Mexican sunshine streaming through the window. While watching Edith Head's costumes swirl about on the screen, the AmeriKat has collected her top five favorite US intellectual property stories of 2009.

NUMBER 5: Salinger Comes Out to Fight for Rye

In June JD Salinger, the reclusive author of The Catcher in the Rye, filed a lawsuit in the

US District Court in New York claiming that a sequel entitled 60 Years Later: Coming Through the Rye infringed “both his novel and the character of Holden Caulfield” and aiming to prohibit the publication of the sequel in the US. 60YL, written by Fredick Colting under the pseudonym JD California, put forward the affirmative defence of fair use arguing that the sequel was a work of meaningful criticism. After the oral submissions later in June, US District Judge Deborah Batts held that there did exist substantial similarities between the sequel and the original book and blocked its publication for ten days in order to determine whether the sequel qualified as “fair use” of Salinger’s work. Judge Batts also stated that the purely literary character of Holden Caulfield may be entitled to copyright protection. In July Colting appealed this decision citing misapplication of the fair use defence and First Amendment implications of the injunction. In support of Colting’s appeal, amicus curiae briefs were filed by amici including The New York Times Company, The Associated Press and library associations citing similar First Amendment grounds. In September a three-judge appeal panel of the Second Circuit Court of Appeals began questioning raising doubts over Judge Batt’s decision that the sequel should be subject to an injunction.

With a literary recluse, First Amendment issues and the strange notion of being able to copyright a literary character, this tail was stranger than fiction. The case continues.

NUMBER 4: Ring Ring: District Judge Cote hangs up on ASCAP

The Number 4 story, although an unsurprising decision and not legally earth-shattering, made the AmeriKat smile quite a bit. Earlier in 2009, ASCAP brought a claim against wireless phone provides like Verizon alleging that they engaged in public performance of musical works when they download ringtones to customers and when those customers’ phones ring. In short, every time your phone rings ASCAP wanted a royalty. ASCAP alleged that Verizon was both directly and secondarily liable for these performances. In October, District Judge Denise Cote dismissed ASCAP’s claim ruling in favor of Verizon’s application for summary judgment. Judge Cote held that when a ringtone audibly rings in public “Verizon customers are not playing the ringtones for any “commercial advantage”; they do not get paid any fee or compensation for these performances; and they do not charge admission. In sum, customers do not play ringtones with any expectation of profit. The playing of a ringtone by any Verizon customers in public is thus exempt under section 110(4) and does not require them to obtain a public performance license.” Given that Verizon’s customers were not infringers of ASCAP’s rights in the public performance of musical works it followed that Verizon was therefore not secondarily liable for their infringement. Fred von Lohmann, a copyright lawyer with the Electronic Frontier Foundation (EFF, an amicus curiae in the case) stated that “The ruling is an important victory for consumers, making it clear that playing music in public, when done without any commercial purpose, does not infringe copyright.”