Are Uniforms Copyrightable?

Recently, The Fifth Circuit Court of Appeals resolved a case about infringement of uniform designs for employees of Harrah's casinos. When trying to determine if the uniforms were copyrightable, the 5th Circuit imported the "marketability" test from the 9th circuit in relation to garments only. The test is "conceptual separability exists where there is substantial likelihood that even if the article had no utilitarian use it would still be marketable to some significant segment of the community simply because of its aesthetic qualities." Since the uniforms served no commercial purpose outside of being uniforms, the court affirmed summary judgment for the defendants.

However, one can think of examples where the opposite result would occur. There is a whole niche for "mechanic" T-shirts. They are apparently quite popular with people who are far cooler and more trendy than me. Mechanic T-shirts would be an example of uniforms that are marketable outside of their utilitarian function, and hence could be copyrightable.

Official name and cite of the case-
Galiano v. Harrah's Operating Co., 416 F.3d 411 (5th Cir. 2006)

Judge Posner in Second Life

Recently, Judge Richard Posner put in an appearance in Second Life, the virtual world that now has 1 million inhabitants. He discussed some cases that he had decided, and survived a couple terrorist attacks. He also repeatedly commented on how much he liked the tail of a racoon avatar. Interesting, and surprisingly amusing.

My Paper on YouTube

After much blood, sweat and tears, here is my final paper on "The Copyright Implications of YouTube"
Brief overview:
1. I first discuss how YouTube has blown up.
2. Then I give a brief overview of the DMCA section that YouTube is using as a defense in the lawsuit against it by Robert Tur, and problems in YouTube's DMCA defense
3. I talk about the ambiguous inducement theory set up in MGM v Grokster by the Supreme Court
4. How the inducement theory and Safe Harbor provisions interact.
5. I discuss how the market is shifting to deal with the problem, and propose legislation to help protect the little guys like Robert Tur from copyright infringement.

I hope that it is more enjoyable and informative than droll and soporific.

An Argument about YouTube's Knowledge of Infringement under the DMCA

So as I was writing my final paper on YouTube the other day, and trying to make sense of the ever-frustrating Safe Harbor provisions of the DMCA's Online Copyright Infringement Liability Limitation section, a new argument occurred to me. The problem is that it seems very obvious and yet very murky at the same time. It relates to whether or not YouTube can claim safe harbor under the DMCA. Here goes:

In 512 (c) it discusses systems like YouTube where there is "information residing on networks at directions of users." It sets up the notice-and-takedown provisions that everyone is familiar with, but it also states that if an ISP has accumulated certain levels of knowledge it can't claim safe harbor. My basic argument is that YouTube is "aware of facts or circumstnaces from which infringing activity is apparent" because it has received thousands upon thousands of successful notices of copyright infringing material that perfectly complied with DMCA requirements. Now here is where my argument ties in specifically to the statutory construction-
512 (c) says that an ISP can be safe if it:
(A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or`
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;`
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
Now notice that parts (i) and parts (iii) refer to specific "material", but (ii) and (B) refer to more general "infringing activity." Later on in the provision, in Section 512 (c)(3)(B)(i) it says that an improperly executed notice does not count towards the knowledge requirements above. But it says nothing about successful notices!!
So my argument is that successful notices should count as awareness of "infringing activity." Whereas actual knowledge is determined on a case by case basis in reference to specific infringing "material", the accumulation of successful notices should constitute "awareness of infringing activity". As applied to YouTube, it would mean that YouTube can no longer claim that its compliance with takedown procedures protects it from being held liable for copyright infringing content that its users upload to the site. This would open it up to liability under a number of different theories, including contributory and vicarious liability, and perhaps the Grokster inducement theory.