Quick thoughts on the Aereo judgment, more to come

I'll give a more full post imminently, but my initial thoughts

1. The majority opinion is policy, not law. It's telling that they never once reference the prior precedent, Cablevision, except to note that it was the prior precedent. That means they're not giving any meaningful guidance, which is what you do when you're trying to reach a targeted result.
2. Justice Scalia is 100% right: the Court's ruling replaces widely-accepted rules for service-provider liability with an improvised standard of "looks like cable TV".
3. There is no reason to limit this reasoning to cable TV. Although the Court takes great pains to say it's not ruling on cloud computing or any other technology, I'm not talking about technology. I'm talking about a method of legal reasoning. If "looks like cable TV therefore is regulated like cable TV" is the test for determining the scope and ambit of a law, then why stop with cable TV? "Uber looks like a taxi therefore it should be regulated like a taxi and be forced to get medallions.". "Food trucks look like a restaurant therefore they should be regulated like a restaurant and be forced to provide restrooms."

Like I said, more to come, but especially #3 concerns me.

SOURCES:
Aereo judgment http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf

Netflix and Comcast enter agreement to speed up streaming: 5 consequences for you and me

I hope you like Netflix. I know I do. Good thing. Because this week the world changed in a way to make Netflix even more likely to be your only real option in streaming media.

"Is this the worst paragraph in your publishing agreement?"

The Passive Voice, a blog I follow that has tons of information for authors, has a really important post today entitled "Is this the worst paragraph in your publishing agreement?"

The advice in here is good for not just authors. App developers and film/TV producers should know about it too.

Three reasons the ex-Register of Copyrights doesn't like change (and one reason he's wrong)

"[Aereo] appears to have been designed by a copyright lawyer peering over the shoulder of an engineer to exploit what appeared to Aereo to be a loophole in the law and shoehorn the Aereo business model into the Cablevision decision"

Designed by a copyright lawyer... He says that like it's bad!

Okay, maybe I'm kidding. And some background may be helpful.

Ralph Oman, the retired Register of Copyrights (the person who runs the office that handles copyright registrations), has filed a brief in the ongoing Aereo litigation. Aereo, as you may know, is a service that uses thousands of little antennas to capture over-the-air TV broadcasts and stream them. One stream per subscriber. Why not have one big antenna? Well, that takes some explaining too.

Three basic questions about using real people as inspirations for your characters

Authors, filmmakers, and other creatives have always built their stories from their own experiences. Being inspired by real events and real people is almost impossible to avoid. But sometimes people go a step further and build their creations directly from reality, including real people or real events that can be traced back to real people. And, when done right, this can lead to increased interest translating into increased sales. As a wise gnome once said, Step 3 is Profit!

But doing it wrong can lead to real problems.

Although there's more than just four things to consider when using real people in your creations, the questions I've gotten have revolved around three big issues.

Avoiding option clauses and cross-collateralization by using LLCs

A short post today, but hopefully a helpful one.

I've recently seen people complaining of two standard problems with traditional publishing contracts:

• Option clauses: where publishers require you to give them an option on your next book.
• Cross-collateralization: where publishers won't pay you royalties on your first book until you've paid back the advance on your second.

It seems to me that there's a very easy way around each of these problems.

1DollarScan, Cablevision, and two reasons you can't always get what you want

Books are portable. But one company wants to make your books even more portable than they already are. So why is the Authors' Guild so angry about it, and do they have any right to be?

In an interesting deal announced last week, a service called 1DollarScan has closed a partnership with Evernote to take your physical books, scan them, drop them into your Evernote account, and then destroy the original copy you sent them (it would appear that it actually gets destroyed as part of the scanning process). 1DollarScan apparently already had deals with services like Dropbox and some others. But linking to Evernote, one of the most widely-used note-taking services out there, appears to have brought a lot of attention to 1DollarScan, including some it may wish it had never attracted.

According to Publishers' Weekly, the Authors' Guild has made some statements that 1DollarScan is violating copyright law and infringing the author's right to choose whether their book should be made available digitally. Unpacking this statement gives me a chance to look at two often-misunderstood issues around content creation: whether making copies breaks the law, and why media companies don't think like people.

Why optioning your characters may be a horrible idea

If anyone asks to take an option on your characters as opposed to on your next project of whatever type, you might be tempted to say yes. Think hard before you do.

The general rule of entertainment contracts is that buyers want to buy as much as possible and sellers want to sell as little as possible. So a character license may seem like the best of both worlds: if you work with the same characters then the publisher/studio/whatever gets a first pass (I'll use publisher to keep things simple), but if you don't work with those characters then the publisher has no claim on whatever you do and you can take it wherever you'd like.

Or so you may think.

If you review content on the Internet, don't forget one thing

Do you take review comments from blogs or from Amazon and use them to promote your work? If so, do you feel you have a good sense for when people are trying to be sarcastic or ironic? And if you think reviews are sarcastic or ironic, do you avoid using them in your promotional materials?

Unless you've answered all of these with yes, you need to know about one aspect of the FTC Endorsement Guides that might come as a surprise.

Below, I've embedded and linked to the trailer for a film called Birdemic. Watch the whole thing if you like (and if you can) but in any event fast forward to 2:08 where you start to see review comments like:

When agents are better than lawyers, and vice versa

Agents and lawyers both negotiate contracts. They both seem to fill very similar roles. And they both want your money.

So how are you supposed to know whether you need one, the other, or both?

Oversimplifying the role of each of an agent and a lawyer:

Quick thoughts on the Apple-Publishers public comments and proposed settlement

I've been following this case with some interest, in part because the US filed its case the morning that I was scheduled to teach the Book Publishing Law class in my Entertainment Law course - it was one of those days that you take the slides you've prepared and throw them aside for the last 15 minutes of class - and in part because I was an antitrust litigator in a previous life. But also because, if you're interested in books and publishing or really any part of the entertainment industry, this litigation is huge.

Right before filing, the DOJ made it clear that it had reached a settlement agreement with 3 defendants: Hachette, HarperCollins, and Simon & Schuster. But they filed the lawsuit against them anyway. You might wonder why they would do this: it's to make sure the settlement agreement has the power of a court judgment. This way if the publishers break the settlement the DOJ doesn't have to sue them: they already have a judgment, so they can just go to the judge and get contempt of court proceedings. Much quicker and much cheaper.

Under US law, where the government wants to settle antitrust class actions it needs to solicit comments from the public to make sure that it has considered the public interest before acting. Today it publicized all of the 868 comments it received and response to them.

I've read the response (link below) and skimmed a selection of the comments. Here's my (admittedly not very orderly) thoughts.

Three myths (and two truths) about idea theft

MYTH #1: Idea theft never happens, people who think that are paranoid.
Actually, it does. One of the most famous cases on "Hollywood accounting" is Buchwald v. Paramount, in which Art Buchwald sued Paramount and got a judgment saying that Paramount stole the idea for "Coming to America" from him. And studios aren't the only people who can steal ideas...

MYTH #2: Idea theft happens all the time, people who don't think that are crazy.
This is even less true than #1, for three reasons.

The hidden cost of exotic locations

Paris... Rome... Athens... some names just conjure up images of romance and adventure. For many people creating stories and setting their locations, one of the fastest ways to do it is with an establishing shot: show the Eiffel Tower and your audience doesn't need to see another word to know they're looking at Paris. But put that in your screenplay and you're raising a hidden cost.

Three things that didn't change last week about nudity on TV

In 2002 at the Billboard Music Awards, in response to comments that she was on her way out, Cher's response to her critics was clear: "f*** em". In 2003 at the same awards show Nicole Richie described getting "cow s*** out of a Prada purse" as "not so f***ing simple." And also in 2003 ABC showed an episode of NYPD Blue with 5 seconds of naked butt and 7 of sideboob. And in 2012 the US Supreme Court finally handed down a ruling saying that because Fox and ABC didn't have advance warning that fleeting instances of cursing or nudity would put them at risk of fines, the FCC couldn't fine them.

There are people out there saying this judgment means short bursts of cursing and nudity are fair game for US TV networks and that creators should be making more edgy content. There are other people saying nothing has changed. They can't both be right. If you're preparing content containing this type of content, keep 3 things in mind.