December 2013

Viacom v. YouTube, Mother of All DMCA Copyright Cases (part 1 of 2-part post)

[This is the first of what will be a two-part post on Viacom v. YouTube]

[Update: Viacom v. Youtube was settled before the Second Circuit rendered its decision on the appeal discussed in this post]

It seems unlikely that the drafters of the DMCA — a law enacted in 1998, the same year Google was incorporated — anticipated how difficult the courts would find application of this complex, near-5,000-word statute. There may be no better case to illustrate this than Viacom’s long-running suit against YouTube (a company owned by Google). As of November 2013 briefs had been filed in the second appeal in Viacom v. YouTube, and the case is likely to be scheduled for oral argument before the Second Circuit sometime in the first few months of 2014.*

*[Note]: I have written about Viacom v. YouTube several times during its long history (the case was filed in 2007). 

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Guest Post: There Is No Substitute For Taking a Risk

by Lee Gesmer on December 26, 2013

“ In actual life, every great enterprise begins with and takes its first step forward in faith. ” — August Wilhelm von Schlegel


Now that Christmas is over its time to start thinking about 2014, and that means New Year’s resolutions. 

The guest post below was written by my partner Jonathan Draluck and published last month on Gesmer Updegrove LLP’s BostInno channel. Jonathan didn’t write this with New Year’s resolutions in mind, but it struck me as inspirational as we approach 2014. Maybe your New Year’s resolution will be, as he writes below, to conquer your personal fears and —  “take the leap.” 

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School is nice.  Sometimes necessary. But no education beats the school of hard knocks.  All the theory and fancy degrees in the world won’t get you anywhere unless you are willing to take what you have learned and add some elbow grease.… Read the full article

Crouch Quoting Chisum on CLS Bank

by Lee Gesmer on December 11, 2013

I can’t resist quoting Dennis Crouch, quoting Don Chisum, on the the Supreme Court’s pending review of the CLS Bank case:

The Supreme Court often intervenes to resolve splits among the various courts of appeal. Here a split exists within a circuit that the circuit itself is unable to resolve. The circuit judges’ varying interpretations of a body of recent and not-so-recent Supreme Court precedent riddled with fuzzy language and inconsistent results caused the split. Now, the Court has the opportunity (and the obligation) to clean up a mess that is, to a major extent, of its own making.

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Oral Argument in Oracle v. Google: A Setback for Google?

On November 26th I published a post titled “Oracle v. Google: How Google Could Lose on Appeal.”

Oral argument before the Court of Appeals for the Federal Circuit was held on December 4, 2013, and a recording of the oral argument has been released.

Based on comments and questions from the bench, the hearing went poorly for Google. The very  points I raised in my post were raised by the judges in questions to the attorneys for the parties.

As I commented in my post, District Court Judge Alsup’s order ruling that the Java declaring code copied by Google was not copyrightable was vulnerable because Judge Alsup seemed to rely on factors and cases relevant to copyright fair use (specifically interoperability) to justify a finding that the Java declaring code was not protected by copyright. And never, the CAFC judges rightly observed, may the two mix. It is quite correct to say (as Oracle has argued) that a finding that a work is not protected by copyright must stand on grounds independent from a finding that copying was permitted by fair use.… Read the full article