Gesmer Updegrove LLP

Is the Internet Archive’s “National Emergency Library” Copyright Infringement or Fair Use?

by Lee Gesmer on June 8, 2020

Sorry, Library Closed

After the Internet Archive launched a “National Emergency Library” the copyright community held its collective breath, waiting to see if the authors and publishers affected would tolerate it, or challenge it in court. Now we have the answer. On June 1, 2020, four major publishers — Hachette, HarperCollins, Wiley, and Penguin Random House — filed a copyright infringement suit against the Archive.

Background. In late March 2020, in response to the COVID 19 pandemic, the Internet Archive opened a digital “library” of 1.4 million books, to last until June 30, 2020 or the end of the emergency in the U.S., “whichever is later.” Anyone, anywhere in the world, can access this online collection. Users can “check out” (download) books for two weeks at no cost, with no limit on the number of copies that can be checked out at any one time. One thousand or ten thousand copies of The Catcher In The Rye could be downloaded and read simultaneously by different users.… Read the full article

The Messy Legalities of Trump’s Social Media Executive Order

by Lee Gesmer on June 1, 2020

On May 28, 2020 President Trump issued an “Executive Order on Preventing Online Censorship” (the Order). It takes aim at Twitter, Facebook and Google through the lens of 47 U.S. Code § 230 (Section 230), the federal law that allows  internet platforms to host and moderate user created content free of  liability under state law. The Order came just days after Twitter, for the first time, added warning labels and fact-checking to several of Trump’s tweets.

A lot has already been written about the politics behind the Order. But what does the Order accomplish as a legal matter? Here’s my take, in brief.

First, the Executive Order directs the Commerce Department to ask the FCC to do rulemaking to interpret Section 230. Section 230 does not delegate to the FCC rule-making authority, so I don’t see how the FCC could exercise rule making authority with respect to Section 230.… Read the full article

Massachusetts Recognizes Contract Damages Based on Destruction of Researcher’s Life’s Work

by Lee Gesmer on May 30, 2020

[Disclosure: Kevin Peters and Jennifer Henricks, attorneys at Gesmer Updegrove LLP, represented Dr. Hlatky in the case discussed below]

Contact law is complicated. It dates back centuries, and is mostly common law, meaning it evolves case-by-case in judicial opinions. There are thousands of cases, involving thousands of fact patterns, and it seems like there’s always room for one more variation.

This was the case in the Massachusetts Supreme Judicial Court’s (SJC) April 28, 2020 decision in Hlatky v. Steward Health Care System LLC, where the plaintiff was awarded $10.2 million for damage to an asset — a cancer research lab — that she didn’t own.

The Facts. Dr. Lynn Hlatky is a prominent cancer researcher. She has over three decades of research experience, including at one time a faculty position in the radiation and oncology department at Harvard Medical School. Her research targets the development of a cancer vaccine.

In 2010 Dr.… Read the full article

A Renter Uses Your House to Film Porno Movies – Can You Sue For Copyright Infringement?

by Lee Gesmer on May 12, 2020

A Renter Uses Your House to Film Porno Movies – Can You Sue For Copyright Infringement?

I can’t let a decision on this case pass by, both because the facts are so bizarre and because the case is in my backyard, the Federal District Court for the District of Massachusetts.

The plaintiff, Leah Bassett, owns a house on Martha’s Vineyard. She entered into a several-month long lease with Joshua Spafford. Spafford allowed the house to be used to film a number of pornographic movies. Ms. Bassett sued everyone involved, and one of her claims is copyright infringement. She claims that the movies include shots of paintings, slipcovers, wall hangings and the like (over 50 works in total), all of which were created by her.  She asserts that their appearance in the movie scenes violate her copyright rights (reproduction, distribution and public display).

This case received a lot of attention when it was filed. See, for example,What if your house was used in a porn shoot? This homeowner says hers was, and she’s suing (Boston Globe, March 2018)(link);Martha’s Vineyard homeowner says rental was used as porn set (New York Post, March 2018)(link).… Read the full article

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