Comments for shadesofgray http://www.shadesofgraylaw.com Copyright law from black to white and everything in between Sat, 03 Jul 2010 18:46:46 -0400 http://wordpress.org/?v=2.8.4 hourly 1 Comment on The Mildred RuleKeeping Clients’ Email Out of the Spotlight When Litigation Hits the Fan by Laurence M. Porter http://www.shadesofgraylaw.com/2010/07/01/the-mildred-rulekeeping-clients-email-out-of-the-spotlight-when-litigation-hits-the-fan/comment-page-1/#comment-4346 Laurence M. Porter Sat, 03 Jul 2010 18:46:46 +0000 http://www.shadesofgraylaw.com/?p=291#comment-4346 Dear Naomi, sound advice, well articulated. Lawyers who advise their clients ahead of time not to engage in foolish behavior may greatly decrease their clientele, but I admire you for working outside the establishment to make life better and simpler for all of us. Dear Naomi,
sound advice, well articulated. Lawyers who advise their clients ahead of time not to engage in foolish behavior may greatly decrease their clientele, but I admire you for working outside the establishment to make life better and simpler for all of us.

]]> Comment on The Mildred RuleKeeping Clients’ Email Out of the Spotlight When Litigation Hits the Fan by Naomi Jane Gray http://www.shadesofgraylaw.com/2010/07/01/the-mildred-rulekeeping-clients-email-out-of-the-spotlight-when-litigation-hits-the-fan/comment-page-1/#comment-4343 Naomi Jane Gray Fri, 02 Jul 2010 21:15:46 +0000 http://www.shadesofgraylaw.com/?p=291#comment-4343 Vicki, thanks for your comment. You're absolutely right - both about the inherently quicker (and less reflective) nature of email communications, and the fact that younger employees, who have grown up with the technology (the "digital natives") are less sensitive to the perils of letting emails fly. I believe YouTube's founders were not long out of college when grappling with these complex copyright issues over email, and the email containing the "steal it, haha" quote was sent at 1 a.m. (according to its timestamp) - not the best time of day for contemplative writing. But that is a reality of doing business in an Internet start-up, and it is part of counsel's job to find the balance between fostering the development of more disciplined communications practices without stifling the employees or the business itself. Happy 4th! Vicki, thanks for your comment. You’re absolutely right – both about the inherently quicker (and less reflective) nature of email communications, and the fact that younger employees, who have grown up with the technology (the “digital natives”) are less sensitive to the perils of letting emails fly. I believe YouTube’s founders were not long out of college when grappling with these complex copyright issues over email, and the email containing the “steal it, haha” quote was sent at 1 a.m. (according to its timestamp) – not the best time of day for contemplative writing. But that is a reality of doing business in an Internet start-up, and it is part of counsel’s job to find the balance between fostering the development of more disciplined communications practices without stifling the employees or the business itself. Happy 4th!

]]> Comment on The Mildred RuleKeeping Clients’ Email Out of the Spotlight When Litigation Hits the Fan by Victoria Kummer http://www.shadesofgraylaw.com/2010/07/01/the-mildred-rulekeeping-clients-email-out-of-the-spotlight-when-litigation-hits-the-fan/comment-page-1/#comment-4336 Victoria Kummer Fri, 02 Jul 2010 09:29:41 +0000 http://www.shadesofgraylaw.com/?p=291#comment-4336 Wise counsel -- which all too few clients bother to follow, no matter how many times we have this discussion and relate the details of horror stories. I've come to suspect that the failure of clients to heed this advice (to be fair, it's usually some of the younger employees, not the company as a whole) is that many people engage in email communication in a way that does not lend itself to reflection. On the spectrum between slow, deliberative manual writing of a document and lightening quick conversation on the phone, email falls much closer to the latter for many people. Imagine having a tape recorder hung around your neck recording for posterity every stupid thing that comes out of your mouth -- people are just not going to filter their every utterance in casual conversation, and many people appear to communicate by email in much the same way. Your article is a good reminder of the need to constantly educate and re-educate our clients -- and not just the GC office! Wise counsel — which all too few clients bother to follow, no matter how many times we have this discussion and relate the details of horror stories. I’ve come to suspect that the failure of clients to heed this advice (to be fair, it’s usually some of the younger employees, not the company as a whole) is that many people engage in email communication in a way that does not lend itself to reflection. On the spectrum between slow, deliberative manual writing of a document and lightening quick conversation on the phone, email falls much closer to the latter for many people. Imagine having a tape recorder hung around your neck recording for posterity every stupid thing that comes out of your mouth — people are just not going to filter their every utterance in casual conversation, and many people appear to communicate by email in much the same way. Your article is a good reminder of the need to constantly educate and re-educate our clients — and not just the GC office!

]]> Comment on Guestbook by Naomi Jane Gray http://www.shadesofgraylaw.com/guestbook/comment-page-1/#comment-4331 Naomi Jane Gray Fri, 02 Jul 2010 00:11:49 +0000 http://02ec907.netsolhost.com/shadesofgray/?page_id=8#comment-4331 Hi and thanks for your comment! In answer to your question how I find the time - not easily, as demonstrated by how long it's taken me to respond to your comment. My apologies for that - and now that the opinion has issued, it's all hindsight. However, I wouldn't have been surprised had the judge found a fact issue requiring trial. I thought the YouTube moving briefs were terrific - so methodical, so thorough. On the other side, I was blown away (at least in the moving briefs) by the seemingly damning email evidence that Viacom put in of YouTube's knowledge, though I thought YouTube's opposition briefs did a fine job of contextualizing the emails and showing them in a different light. The opinion itself surprised me most of all. I've posted my thoughts about it in detail and won't repeat them here, but it was an awfully lean opinion given the density and complexity of the issues as briefed. Please continue to share your comments - I will try to respond more promptly next time! Hi and thanks for your comment! In answer to your question how I find the time – not easily, as demonstrated by how long it’s taken me to respond to your comment. My apologies for that – and now that the opinion has issued, it’s all hindsight. However, I wouldn’t have been surprised had the judge found a fact issue requiring trial. I thought the YouTube moving briefs were terrific – so methodical, so thorough. On the other side, I was blown away (at least in the moving briefs) by the seemingly damning email evidence that Viacom put in of YouTube’s knowledge, though I thought YouTube’s opposition briefs did a fine job of contextualizing the emails and showing them in a different light. The opinion itself surprised me most of all. I’ve posted my thoughts about it in detail and won’t repeat them here, but it was an awfully lean opinion given the density and complexity of the issues as briefed. Please continue to share your comments – I will try to respond more promptly next time!

]]> Comment on One Award to Rule Them AllSecond Circuit Addresses What Constitutes a “Work” For Statutory Damages Purposes by Andrew Berger http://www.shadesofgraylaw.com/2010/06/21/one-award-to-rule-them-allsecond-circuit-addresses-what-constitutes-a-work-for-statutory-damages-purposes/comment-page-1/#comment-4142 Andrew Berger Fri, 25 Jun 2010 18:45:34 +0000 http://www.shadesofgraylaw.com/?p=217#comment-4142 Naomi, good to see you last week and good post. Bryant may result in some unfairness. Copyright law is designed to stimulate creation by protecting the creators. But the last sentence of 17 U.S.C. § 504 (c)(1) appears to do the opposite in this case. The one-work limitation, instead of stimulating creation, shields infringers here from multiple awards of statutory damages no matter how many works they infringe simply because the copyright owner issued the works collectively. Now that digital technology enables infringers to break apart albums into individually infringed songs, as here, one wonders about the continuing justification for the one-work limitation. But as you indicate this limitation is now fixed and well mapped out in the Second Circuit. I talk about this a bit in my post at http://www.ipinbrief.com/bryant/. See you soon. Andrew Naomi, good to see you last week and good post. Bryant may result in some unfairness. Copyright law is designed to stimulate creation by protecting the creators. But the last sentence of 17 U.S.C. § 504 (c)(1) appears to do the opposite in this case. The one-work limitation, instead of stimulating creation, shields infringers here from multiple awards of statutory damages no matter how many works they infringe simply because the copyright owner issued the works collectively. Now that digital technology enables infringers to break apart albums into individually infringed songs, as here, one wonders about the continuing justification for the one-work limitation. But as you indicate this limitation is now fixed and well mapped out in the Second Circuit. I talk about this a bit in my post at http://www.ipinbrief.com/bryant/. See you soon.

Andrew

]]> Comment on 2nd Circuit Rejects Crumby Old PI StandardApplies eBay to Preliminary Injunctions in Copyright Cases by Andrew Berger http://www.shadesofgraylaw.com/2010/05/05/2nd-circuit-rejects-crumby-old-pi-standardapplies-ebay-to-preliminary-injunctions-in-copyright-cases/comment-page-1/#comment-3717 Andrew Berger Thu, 10 Jun 2010 21:15:01 +0000 http://www.shadesofgraylaw.com/?p=164#comment-3717 Naomi, I agree with your comment at the end of your fine Salinger post that the 2d Circuit has invited “district courts to continue to find irreparable harm as a matter of course where the plaintiff has established a likelihood of success on the merits.” As Salinger indicates, demonstrating irreparable harm has always been fairly easy. Once there is the likelihood of infringement, plaintiffs can show loss of market share, or market confusion, or loss of monopoly control or loss of the incentive to create, all of which make out the necessary harm. I just posted a refresher on proving irreparable harm in the wake of Salinger on my blog at http://www.ipinbrief.com/don’t-despair/ Thanks. Naomi, I agree with your comment at the end of your fine Salinger post that the 2d Circuit has invited “district courts to continue to find irreparable harm as a matter of course where the plaintiff has established a likelihood of success on the merits.”

As Salinger indicates, demonstrating irreparable harm has always been fairly easy. Once there is the likelihood of infringement, plaintiffs can show loss of market share, or market confusion, or loss of monopoly control or loss of the incentive to create, all of which make out the necessary harm. I just posted a refresher on proving irreparable harm in the wake of Salinger on my blog at http://www.ipinbrief.com/don’t-despair/

Thanks.

]]> Comment on Another One Bites The DustCourt Rules Against Torrent File-Sharing Service by Bobby Brede http://www.shadesofgraylaw.com/2010/01/12/another-one-bites-the-dust-court-rules-against-torrent-file-sharing-service/comment-page-1/#comment-3710 Bobby Brede Thu, 10 Jun 2010 16:42:21 +0000 http://02ec907.netsolhost.com/shadesofgray/?p=54#comment-3710 A very thought-provoking article. I will come back to this site again soon. A very thought-provoking article. I will come back to this site again soon.

]]> Comment on Another One Bites The DustCourt Rules Against Torrent File-Sharing Service by Velva Teele http://www.shadesofgraylaw.com/2010/01/12/another-one-bites-the-dust-court-rules-against-torrent-file-sharing-service/comment-page-1/#comment-2827 Velva Teele Fri, 21 May 2010 00:10:12 +0000 http://02ec907.netsolhost.com/shadesofgray/?p=54#comment-2827 Really informative blog.Really looking forward to read more. Really Great. Really informative blog.Really looking forward to read more. Really Great.

]]> Comment on Guestbook by Nick S. Williams http://www.shadesofgraylaw.com/guestbook/comment-page-1/#comment-2284 Nick S. Williams Fri, 07 May 2010 20:56:25 +0000 http://02ec907.netsolhost.com/shadesofgray/?page_id=8#comment-2284 This site is a tremendous resource! Thank you! When do you find the time? I am eager to hear your analysis and assessment of the competing (and voluminous) summary judgment briefs in Viacom v. YouTube. In particular, do you think any part of the case is likely to disposed of on summary judgment? Or do you find any particular argument more compelling than others? I understand that the case involves weighty issues, but to the extent you care to comment, I'd love to hear what you think. This site is a tremendous resource! Thank you! When do you find the time?

I am eager to hear your analysis and assessment of the competing (and voluminous) summary judgment briefs in Viacom v. YouTube. In particular, do you think any part of the case is likely to disposed of on summary judgment? Or do you find any particular argument more compelling than others? I understand that the case involves weighty issues, but to the extent you care to comment, I’d love to hear what you think.

]]> Comment on Guestbook by Naomi Jane Gray http://www.shadesofgraylaw.com/guestbook/comment-page-1/#comment-604 Naomi Jane Gray Wed, 10 Mar 2010 18:33:35 +0000 http://02ec907.netsolhost.com/shadesofgray/?page_id=8#comment-604 Thanks, Marc! Thanks, Marc!

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