Some interesting tidbits from the seminar –

Can you have a copyright in a tweet? In theory, yes. While Twitter requires tweets to be 140 characters or less, there is no reason why a tweet can’t possess the minimal “modicum” of creativity needed to be copyrightable. After all, short poems and haikus are copyrightable. However, “I’m sitting on the couch” probably doesn’t qualify.

Does a copyright owner have an obligation to consider fair use before sending a Digital Millennium Copyright Act take-down notice? Yes, at least according to the federal district court in the famous “dancing baby case” of Lenz v. Universal Music Corp., 572 F.Supp.2d 1150 (N.D.Cal. 2008). A mom had posted a 29-second video on YouTube (you can see it here) showing her toddler bopping up and down with a Prince song playing in the background. The sound quality was awful, to put it charitably. However, Universal issued a DMCA take-down notice, YouTube complied, and then angry mom sued Universal for allegedly misrepresenting in its notice that it had a good-faith belief that the use of the material was unauthorized (a statutory requirement under the DMCA) and for a declaratory judgment that her use of the song was non-infringing. Angry mom won. Everyone at the seminar agreed this was pretty obviously a fair use (it’s non-commercial and the record company is not going to lose any royalties from Prince aficionados duping the song off the video rather than downloading it from iTunes or buying the album). So, all you copyright owners, think before you bring out that big DMCA hammer.

Transform, transform, transform. In the era of digital fair use, everything’s about “transformation,” which can often happen in a mashup or otherwise through the use of digital editing tools. The Copyright Act lists four factors to be taken into consideration when evaluating whether or not a use of copyrighted material is a fair use. One of these is the purpose and character of the use, including whether the use is of a commercial nature (fair use is often, although not exclusively, associated with non-commercial uses like education, criticism, news reporting, etc.) When assessing the purpose and character of a use and in which party’s favor this factor weighs, courts consider whether the use is “transformative” of the original material. This is nowhere in the Copyright Act, but it is all the rage in digital fair use cases.

Bottom line: while there is no simple calculus, if the use you are making of copyrighted material is not a traditional fair use, you can help yourself by making sure it significantly transforms the nature and/or purpose of the content somehow (as opposed to simply reproducing it or reproducing it with modifications). So, for example, when Ben Stein used a 15-second clip of John Lennon’s song “Imagine” in his film Expelled to critique the anti-religious message of the song and comment on the concept of a world without religion, the court in Lennon v. Premise Media Corp., 556 F.Supp.2d 310 (S.D.N.Y. 2008) found Messr. Stein’s use highly transformative.

What should you ask for in your widget development contract? SLA’s and source code escrow (if the developer is going to host the widget), insurance (general liability and E&O to establish that your developer is a real business; however, copyright and trademark infringement insurance may be too expensive), ownership of rights in the widget, acceptance criteria, delivery deadlines.

Embedding third-party content on your site. To reduce the risk of copyright infringement liability, stay away from uses that are clearly infringing, stick to official embed channels for videos from major rights-holders like TV networks, stick to the more popular amateur videos, and where appropriate include commentary, criticism and/or analysis, because that helps you a make a “transformative use” argument (see above).

Enjoy the weekend and stay dry.

Apple’s iPhone includes software locks to prevent applications (or “apps”) other than those sold through Apple’s App Store from running on the iPhone platform. Jailbreaking is the increasingly popular practice of bypassing the locks so that iPhone owners can run non-Apple-approved apps of their choosing. According to the Electronic Frontier Foundation (EFF), which is leading the battle to legalize jailbreaking, Apple has become somewhat puritanical about what apps may be featured on the App Store, barring, for example, a Nine Inch Nails-themed app from the band’s front man Trent Reznor, as well as “Me So Holy,” an irreverent app that pastes a snapshot of the user’s face over the faces of hallowed religious figures.

In any litigation to prevent jailbreaking, Apple is likely to invoke the so-called “anti-circumvention” provision of the DMCA, 17 U.S.C. Section 1201(a)(1). This clauses prohibits the circumvention of technological measures (also known as digital rights management or DRM) that “effectively control[] access” to copyrighted works. Apple’s position would be that the software locks bypassed by the jailbreakers are genuinely designed to protect Apple’s copyrighted code for the iPhone bootloader and operating system from unauthorized modification and copying. While this is far from clear, jailbreakers and their legal advocate the EFF have taken preemptive action to clear the way for the free exchange of iPhone apps outside of Apple’s control.

Under the DMCA, the Library of Congress and the Copyright Office may hold rulemakings to create three-year exemptions from the anti-circumvention provision of the DMCA for certain classes of works if it is determined that users are likely to be adversely affected in their ability to make non-infringing uses of those works due to the prohibition on circumvention of access controls. The EFF has specifically requested the creation of a formal exemption to permit jailbreaking and installation of non-App Store apps on the iPhone platform. The period for public comment ended February 2, and the Copyright Office held hearings on the proposed rulemaking at Stanford Law School on May 1 and in Washington, D.C. on May 6-8. The EFF is essentially arguing that Apple’s software locks are intended to protect a closed business model with respect to the distribution of apps, rather than any legitimate copyright interest. Apple has countered that the software locks protect its copyrighted firmware, with the goals of protecting the iPhone device from harm, excluding malware, protecting Apple’s and its authorized developers’ rights in their apps, and preventing the circulation of pirated apps. A final rule is expected in October 2009.

For more on the EFF’s involvement with the jailbreaking movement and its other digital crusades, check out their website at http://www.eff.org.