Posts tagged ‘copyright’

USC’s IP Clinic Wins! Petition for Exemption to Diagnose and Repair Agricultural Machinery Granted

USC’s IP Clinic successfully petitioned the Library of Congress to grant an exemption allowing farmers to fix their tractors without fear of legal repercussions. You read that correctly: prior to the rule issued today farmers were unable to repair their own agricultural machinery, including tractors, transplanters, manure spreaders and diesel hauler trucks. The Digital Millennium Copyright Act (DMCA) was enacted by Congress to prohibit the circumvention of technological measures employed by copyright owners to protect access to their work. Manufacturers of agricultural machinery rely on the DMCA to employ technological protective measures such as proprietary software, passwords and memory modification to to prevent farmers from obtaining access necessary to diagnose, repair and modify farm equipment.

The Clinic’s petition explained that the restricted access places the livelihood of farmers at risk, because they must often wait significant periods of time before their disabled vehicles can be repaired by a technician authorized by the manufacturers, and that those delays can lead to problems with time-sensitive crops or planting. The Register of Copyrights agreed, concluding “owners of … agricultural machinery are adversely impacted as a result of [the technological protective measures] that protect the copyrighted computer programs on the [electronic control units] that control the functioning of their vehicles.”

Based on the Register’s recommendation, adopted the new exemption will become operative twelve months from today. (Query whether there is statutory authority to delay the implementation… a conversation for another day!)
Dan and Farmers 1201For more info:

Michael Donaldson, Long-Time Friend of Clinic, Testifies to the Committee of the Judiciary’s Subcommittee on Courts, Intellectual Property, and the Internet regarding Orphan Works

As part of the clinic’s continuing work on the orphan works problem, we are excited to announce that Michael Donaldson of Donaldson + Callif, LLP, long-time friend of the clinic, former President of theInternational Documentary Association (IDA), and pro bono outside counsel for Film Independent(FIND), recently testified to the Committee of the Judiciary’s Subcommittee on Courts, Intellectual Property, and the Internet regarding the issue.

​Clinic members Patrick Boyle and Patrick McCormick helped Mr. Donaldson prepare his testimony, bringing to bear their experience testifying at the Orphan Works Roundtable Discussions held earlier this month at the U.S. Copyright Office.  This proved to be very valuable as the committee members asked several questions that raised issues discussed at the Roundtables.

Donaldson’s testimony included poignant stories from his clients who have been plagued by the orphan works problem.  He used these stories to explain how the orphan works situation negatively affects filmmaker clients and why a solution is desperately needed.  He also explained the proposed solution that IDA and FIND support, which would protect rightsholders while permitting uses of orphan works for creators and users who have conducted a good faith diligent search for the owner.

We congratulate Donaldson on an excellent job and we are confident that his testimony will be part of the process for finding a workable solution to the orphan works problem.


Clinic files amicus brief in closely-watched Ninth Circuit copyright case

Guest post by recent USC Law grad Rom Bar-Nissim ’13, who was on the legal team on the brief.  Clinic interns Patrick Boyle and Patrick McCormick also worked on the project.

Today the Clinic filed an amicus brief in the Garcia v. Google case in the Ninth Circuit on behalf of long-time Clinic client the International Documentary Association as well as Film IndependentFredrik Gertten, and Morgan Spurlock.  We were absolutely thrilled to partner on this project with several of the best attorneys in the business:  Gary L. Bostwick, who carried the laboring oar on much of the drafting, Michael C. Donaldson, and Lincoln Bandlow

Garcia v. Google is a copyright case brought by an actress in the highly controversial film The Innocence of Muslims. The actress, who was lied to about the nature of her role, claimed a copyrightable interest in her 5-second performance; the Ninth Circuit Court of Appeals accepted her theory and ordered Google to disable access to all copies of the film.

The Clinic argued that the Ninth Circuit’s opinion will create three forms of chaos for independent filmmakers and will result in a chilling effect on filmmaking activity. First, the opinion makes it unclear to filmmakers when a “copyrightable interest” arises for someone who appears onscreen. Consequently, a filmmaker does not know when or whether to get a release. Second, the court appeared to state that unestablished filmmakers are not “employers . . . in the regular business of filmmaking” for copyright purposes. Employer status is important for burgeoning filmmakers. If a filmmaker is considered an employer of someone who makes a copyrightable contribution to the film, then the filmmaker owns the copyright in that contribution. Third, the court held that even if the filmmaker had an implied license from the actor or other contributor, there are limits on how far the filmmaker can stray from the actor’s understanding. Unfortunately, the court did not articulate how far the filmmaker can stray.

Ultimately, the chaos created by the Ninth Circuit’s opinion creates so much uncertainty for independent filmmakers that the only way forward will be to retain costly legal counsel. But even with counsel, many films may still be more likely to see a lawsuit then the light of day.

In making our argument, we solicited and used statements from Academy Award-nominated filmmakers like Josh Fox (GasLand) and Scott Hamilton Kennedy (The Garden). We also employed a wide array of films and examples to illustrate our arguments, including Easy RiderErrol Morris’s Tabloidskateboard viral videos, and reality TV. We also explored the humble beginnings of filmmakers like Christopher Nolan’s FollowingRobert Rodriguez’s El MariachiJim Jarmusch’s Permanent Vacation, and filmmaker Lee Storey who made the documentary Smile ‘Til it Hurts: The Up with People Story in her spare time while working as a lawyer and then successfully beat the IRS in court to be recognized as a filmmaker.

The brief is available here.

Clinic Members Speak on Orphan Works at Library of Congress

This week, Patrick Boyle, Patrick McCormick and Professor Lerner of the USC IP & Tech Law Clinic spoke at the Library of Congress on behalf of the International Documentary Association and Film Independent at a series of roundtable sessions hosted by the United States Copyright Office regarding the orphan works problem in copyright.
Orphan works are works that are clearly protected by copyright but for which the owner cannot be identified or located. Independent documentary and narrative filmmakers often seek to create new works that incorporate other works, but cannot find the rightsholder, and when that happens, that can prevent the use altogether.

At these roundtables, we spoke about a solution that would protect rightsholders while permitting uses of orphan works for creators and users who have conducted a good faith diligent search for the owner. With such a solution, filmmakers such as members of IDA and FIND–along with many other communities–would be able to make their films, find more rightsholders, and when no rightsholder can be found, use orphan works without fear of crushing liability or an injunction that would stop the project in its tracks.

You can read more about our work on the orphan works issue here:

Read more about the roundtable here:


pmcormick pboyleall

Clinic Members Lead Seminar on Fair Use & the DMCA

On Monday April 22, 2013, the USC Intellectual Property and Technology Law Clinic gave a presentation to over 100 documentary filmmakers as part of the International Documentary Association‘s Doc U educational series on the exemption to the Digital Millennium Copyright Act (“DMCA”) that the clinic and Donaldson + Callif helped win for documentary filmmakers in 2012.



The DMCA was enacted in 1998 and, among other things, made breaking technological locks that protect copyright material–like the encryption on DVDs–a crime.  This became a problem for documentary filmmakers because while fair use gives them the right to use material, more and more of it is locked up by the DMCA.  So the IPTLC helped obtain an exemption for documentary filmmakers in 2010 and again in 2012 that allows them to take from DVD’s and online sources for the purposes of commentary and criticism.  Unfortunately, the exemption is so long and complicated that even lawyers find it dauntingly complex.

Clinical interns Katharine Trendacosta and Garrett Lee, along with Professor Jack Lerner, created a seven-step analysis that allows documentary filmmakers to use the exemption and obtain videos for use in their films for purposes of criticism and commentary without having to hire a lawyer.  To start off the seminar, Dean Cheley of Donaldson + Callif gave a primer on fair use for documentary filmmakers.

We had a lot of fun at this event, which took place at the Cinefamily Theater.  Photos here and here.  In case you missed it, the presentation was filmed for IDA’s Doc U series and will be posted online for viewing in the near future.  Stay tuned!



Clinic hosts screening of landmark surf documentary “Accidental Icon: The Real Gidget Story”

On April 25, the IPTLC, together with the USC Entertainment Law Society, presented a screening of the documentary Accidental Icon: The Real Gidget Story. The Clinic worked on various copyright issues during the making of this film. Click the image below for the full size poster detailing the event.



Clinic files amicus curiae brief in the Eleventh Circuit Court of Appeals in a major educational fair use case on behalf of professors


Today, the USC Intellectual Property and Technology Law Clinic filed an amicus curiae brief in the Eleventh Circuit in the case Cambridge University Press, et al v. Mark Becker, et al. The brief was filed on behalf of American Association of University Professors, International Communication Association, Modernist Studies Association, Society for Cinema and Media Studies, and Professors Peter Decherney and Tsitsi Jaji of University of Pennsylvania.

In the district court case (Cambridge University Press v. Becker), several publishers brought dozens of copyright infringement claims against Georgia State University (GSU). The publishers argue that GSU’s professors are infringing on their copyright when professors post excerpts of copyrighted materials on electronic course reserves–websites that allow professors to interact with, and distribute materials, to students enrolled in their courses. The court held that, in the majority of the instances, the professors’ use of electronic course reserves did not infringe on the plaintiff’s copyrights and that many of the uses constitute fair use.

The publishers appealed the district court’s decision to the United States Court of Appeals for the Eleventh Circuit. On behalf of four national organizations and two professors–together representing over 48,500 professors, scholars, and media professionals–the Clinic filed a brief as amicus curiae asking the Court of Appeals to acknowledge that fair use protects key pedagogical activities. These activities, such as using copyrighted materials for criticism and commentary, are critically important to the educational mission because they add new meaning to the original works and grow our collective knowledge. The  great weight of case law supports that such uses are quintessentially transformative and highly likely to be fair use.

A copy of the brief can be found here.


Clinic submits reply comment on Orphan Works and Mass Digitization to U.S. Copyright Office

Today, the USC Intellectual Property and Technology Clinic submitted a reply comment to the Copyright Office on the issue of orphan works and mass digitization on behalf of the International Documentary Association, Film Independent, the National Alliance For Media Arts and Culture, Kartemquin Educational Films, Inc., Glen Pitre, and the Tallgrass Film Association. The reply comment emphasizes the need for a comprehensive orphan works solution across all types of works and elaborates on the provisions necessary to adequately protect the interest of all rightsholders, enable potential users to bring critical historical and cultural works to light for the first time, and limit the creation of new orphan works in the future.

We thank the Copyright Office for providing us the opportunity to express our position on this issue and we respectfully urge the Office to continue moving forward on this important issue.

The comment can be downloaded at

Clinic submits comment on Orphan Works and Mass Digitization to U.S. Copyright Office

In October of 2012, the U.S. Copyright Office issued a Notice of Inquiry regarding Orphan Works and Mass Digitization. In response to this inquiry, the USC Intellectual Property and Technology Clinic filed a comment on behalf of the International Documentary Association, Kartemquin Educational Films, and the Independent Filmmaker Project, along with other organizations and individuals in the independent and documentary filmmaking industry.

An orphan work is a work protected by copyright for which the rightsholder cannot be identified or located. When filmmakers wish to license this material to use in their films, they will be unable to contact the rightsholder to obtain permission. Without authorization from the rightsholder, filmmakers are deterred from using such materials because there is a risk that the rightsholder will resurface once use has commenced and may take legal action against the filmmaker for copyright infringement.

The comment articulates the need for orphan works reform to allow independent and documentary filmmakers to draw upon the rich cultural and historical content that is becoming more readily accessible due in part to the growing ubiquity of digital technologies. We urge the Copyright Office to explore solutions to the orphan works problem that will enable filmmakers to make responsible and valuable uses of orphan works.

The comment can be downloaded at

Clinic Wins Battle on Behalf of Filmmakers, E-book Authors

The Clinic achieved a historic copyright exemption today when the Librarian of Congress determined that documentary filmmakers and multimedia e-books authors may obtain materials from DVD and online media for commentary in their works.

“Encryption and other forms of technological locks have become pervasive in the digital environment, and these locks have special legal protection under the Digital Millennium Copyright Act,” said Jack Lerner, a professor at USC Gould and director of the Intellectual Property and Technology Law Clinic. “That is why today’s exemption is so important—it preserves the ability for filmmakers and e-book authors to use films in criticism and commentary, as they have done for decades.”

Under Lerner’s supervision and in collaboration with co-counsel Michael C. Donaldson of Donaldson & Callif in Beverly Hills, USC Gould students Brendan Charney ’13 and Alex Cohen ’13 drafted lengthy comments and coordinated a nationwide coalition of documentary filmmakers and filmmaker organizations, including the International Documentary Association, Kartemquin Films, Independent Filmmaker Project, and the National Alliance for Media Arts and Culture, as well as several prominent film scholars.

“When I found out that I had been accepted into the Clinic, I never imagined that I would have the opportunity to go to Washington, D.C. and argue in front of the Copyright Office on behalf of such an impressive group of filmmakers and authors,” said Cohen. “I am particularly proud of the Clinic’s role in giving filmmakers and e-book authors access to the exponentially growing number of materials delivered through the Internet that are restricted by digital locks.”

Included in the comments were statements from a variety of filmmakers working on projects that require taking fair use content from DVD, Blu-Ray and online video. A wealth of documentaries, including Kartemquin’s The Trials of Muhammad Ali, American Arab and Mormons Make Movies, require the DMCA exemption, as do a burgeoning group of authors using new tools to create multimedia e-books on platforms such as the iPad and the Kindle Fire.

“Multimedia e-book technology allows authors to express ideas in amazing new ways,” said Charney. “Film scholars can now embed film clips and other media into their books, enabling them to present analysis in book form that had previously been confined to the classroom. Today’s decision means that authors can now explore that technology without the fear of crushing legal liability.”

Without this exemption, many important projects currently in production could not have been made, said Donaldson. “This is a great day for documentary filmmaking and for the future of books.”

The exemption goes into effect Monday, October 28, and will expire in late 2015. The ruling may be found at

USC Gould School of Law
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