I have to say, the gloss over the "fascinating legal argument" is interesting--the argument amounts to AstraZeneca saying, "sure, the last time someone in our position tried to do exactly this, the court threw them out so hard they cracked the pavement...but the court was wrong!" which I'm sure is going to get a lot of traction in the courts.
It's not good that companies are trying to do this, but it's important to note that they keep failing.
I don't disagree, but given he was using the FATE system, a preexisting open-licensed system, and again given that this was an area that it was perfectly reasonable for Bioware to want to move into as demonstrated by Dragon Age, I don't think this is the most sterling example of "IP hurts creators" one could pick...
Given that Dragon Age, Bioware's other RPG property, has a tabletop RPG setting, it's reasonable to say that this is a market within the copyright holder's relevant sphere of consideration. (This is a point that Geigner glosses by saying "OK, fine, it could be a good test case of the transformative rule, but we'll concede that it infringes." It strikes me as a very bad test case for the transformative standard, in fact.)
I think it's a fair question to ask this: If the game was so good, why was it Mass Effect? Wouldn't it have been just as successful if it didn't use the Mass Effect name, setting, races, and structure? And whatever the answer to that question is, what does that indicate?
Of course, if Garcia's "scene" is an independent work then your court order should have been to takedown copies of Garcia's scene, not copies of the whole of Innocence of Muslims.
In fairness, the court order did do that after a modification, but that didn't work either:
In February 2014, the panel majority issued the following injunction: “Google, Inc. shall take down all copies of ‘Innocence of Muslims’ from YouTube.com and from any other platforms under Google’s control, and take all reasonable steps to prevent further uploads of ‘Innocence of Muslims’ to those platforms.” Soon after, the panel amended the order to state that the prohibition did “not preclude the posting or display of any version of ‘Innocence of Muslims’ that does not include Cindy Lee Garcia’s performance.”
Although the first order was more sweeping, the second cast the court in the uneasy role of film editor. The amendment only mattered if Google assumed authority to change the content of someone else’s copyrighted film. To no one’s surprise, the end result was the same: the entire film remained removed from YouTube.
Wait, what? The 9th Circuit is "the Hollywood Circuit?" I mean, sure, technically Hollywood is in the 9th Circuit, but...
Kozinski said before that, "for better or worse, we are the Court of Appeals for the Hollywood Circuit."
Of course, that was when he was dissenting from the Ninth Circuit's decision to uphold the rights of an actress (Vanna White) against someone making money off of her likeness (Samsung Electronics).
I went looking for the PACER filing too, and even though there were occasional references to the case number (13-3000, Lee v. Pinkus), I couldn't find it. (Those same references also said the case was in both SDNY District and SDNY Bankruptcy, so I think there may be some issues to be sorted...)
That's protected by the First Sale Doctrine, 17 USC 109:
"[T]he owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord."
Of course, the ability to sell or otherwise dispose of a particular copy/phonorecord doesn't equal the ability to make copies and distribute them. So Bob can sell his DVD to Carol, who can sell to Dave, who can sell to Eve, and it's all protected by copyright--but if Eve sells not the DVD but a copy of the content to Fred, that's not protected.
The issue here is that Fred is bound by the same rules of behavior as Bob, even though Alice and Fred never even met, let alone negotiated a contract.
There's a flip side to this, too. In Jacobsen v. Katzer in 2008, the Federal Circuit Court of Appeals ruled that violation of a license such as the Artistic License (or, by extension, the GPL or a Creative Commons license) was not merely a violation of contract, with redress in state court with money only, but a violation of a copyright condition, with redress in federal court and an injunction.
It was a pretty big win for open source licensing.
Techdirt has not posted any stories submitted by Will "scifantasy" Frank.
(untitled comment)
It's not good that companies are trying to do this, but it's important to note that they keep failing.
Re: Re:
They say bad cases make bad law. This is one such.
Re: Re:
(untitled comment)
I think it's a fair question to ask this: If the game was so good, why was it Mass Effect? Wouldn't it have been just as successful if it didn't use the Mass Effect name, setting, races, and structure? And whatever the answer to that question is, what does that indicate?
Re:
In fairness, the court order did do that after a modification, but that didn't work either:
In February 2014, the panel majority issued the following injunction: “Google, Inc. shall take down all copies of ‘Innocence of Muslims’ from YouTube.com and from any other platforms under Google’s control, and take all reasonable steps to prevent further uploads of ‘Innocence of Muslims’ to those platforms.” Soon after, the panel amended the order to state that the prohibition did “not preclude the posting or display of any version of ‘Innocence of Muslims’ that does not include Cindy Lee Garcia’s performance.”
Although the first order was more sweeping, the second cast the court in the uneasy role of film editor. The amendment only mattered if Google assumed authority to change the content of someone else’s copyrighted film. To no one’s surprise, the end result was the same: the entire film remained removed from YouTube.
The Hollywood Circuit
Kozinski said before that, "for better or worse, we are the Court of Appeals for the Hollywood Circuit."
Of course, that was when he was dissenting from the Ninth Circuit's decision to uphold the rights of an actress (Vanna White) against someone making money off of her likeness (Samsung Electronics).
Outpaced
Re: What happens when bob sells used dvd? (as Will)
"[T]he owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord."
Of course, the ability to sell or otherwise dispose of a particular copy/phonorecord doesn't equal the ability to make copies and distribute them. So Bob can sell his DVD to Carol, who can sell to Dave, who can sell to Eve, and it's all protected by copyright--but if Eve sells not the DVD but a copy of the content to Fred, that's not protected.
The issue here is that Fred is bound by the same rules of behavior as Bob, even though Alice and Fred never even met, let alone negotiated a contract.
Settled Law
It was a pretty big win for open source licensing.
Techdirt has not posted any stories submitted by Will "scifantasy" Frank.
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