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Week in Review

By Martha Nimmer

"Girls" and 'Boys'

"Girls to build a spaceship / Girls to code the new app / Girls to grow up knowing / That they can engineer that", sing three young actresses in toy maker GoldieBlox's advertisement promoting its engineering and construction toys aimed at girls. The video, which has received millions of views online since appearing late last year, parodies the Beastie Boys' song "Girls," whose lyrics are decidedly less politically-correct, to say the least: "Girls to do the dishes / Girls to clean up my room / Girls to do the laundry / Girls and in the bathroom." GoldieBlox says that they chose the 1986 hit song to poke fun at it, but also to "break down gender stereotypes and to encourage young girls to engage in activities that challenge their intellect, particularly in the fields of science, technology, engineering and math."

The Beastie Boys, however, were not so impressed by the toy maker's music choice, and claimed copyright infringement. GoldieBlox, in turn, filed suit in November, seeking a declaratory judgement that the promotional video was a parody and thus fell within fair use. Beastie Boys responded to the suit, voicing their support for the GoldieBlox product, but airing their dismay at the company's handling of the copyright infringement controversy: "[m]ake no mistake, your video is an advertisement that is designed to sell a product and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads. When we tried to simply ask how and why our song 'Girls' had been used in your ad without our permission, you sued us." GoldieBlox ended up removing the viral video, but the Beastie Boys chose to go forward a counter-suit in December, calling out the toy company for not creating its own advertising campaign "to inspire its customers to create and innovate," instead using one that "condones and encourages stealing from others."

Now, according to a spokesperson for Goldieblox, that suit has been settled. That settlement will include an apology by GoldieBlox, to be posted on the toy maker's website, and a payment by the company to one or more charities selected by Beastie Boys that support science, technology, engineering and mathematics education for girls. So, lawsuits aside, this looks like a "win" for both "Boys" and "Girls."



Of E-Books and Children's Books

A children's book published in 1973 is at the center of a major ruling regarding backlist e-book rights. Earlier this month, a federal judge in New York ruled that e-book publisher Open Road infringed publishing company HarperCollins' copyright in Jean Craighead George's bestselling children's book, Julie of the Wolves, when Open Road released an e-book version of the work.

Much of the legal dispute between the two publishers focuses on contract language from the 1970s. In 1971, HarperCollins signed George's book for a $2,000 advance and standard royalties. In the publishing contract with George, HarperCollins agreed that it "shall grant no license without the prior written consent of the Author... including uses in storage and retrieval and information systems, and/or whether through computer, computer-stored, mechanical or other electronic means now known or hereafter invented..." This provision, referred to as paragraph 20, formed the basis of HarperCollins' lawsuit 40 years later against Open Road, after George had agreed to publish an e-book edition of her award-winning book with the e-book company. HarperCollins argued that two contract clauses, including the aforementioned provision, gave it "the exclusive right to license an electronic edition--albeit, only to be executed with the permission of George." Open Road, however, maintained that the language in paragraph 20 had "nothing" to do with e-books, arguing that the clause applied "solely to storage and retrieval systems," and was not a publishing grant.

Unable to question George or her agent, both of whom had passed away, Judge Buchwald was left with only the 1971 contract language to consult for guidance in reaching her decision, which relies heavily on paragraph 20. "This language, encompassing as it does the forward-looking reference to technologies 'now known or hereafter invented,' is sufficiently broad to draw within its ambit e-book publication," Buchwald ruled. "Although no commercial market for e-books existed at the time of its drafting, e-book technology comprises a later-invented version of the very computer, computer-stored, mechanical or other electronic means provided by Paragraph 20."

Unhappy with the outcome, Open Road officials said in a written statement that the company was exploring its options.


A "Landmark" Settlement

After seven years of legal wrangling, Google and Viacom have settled what legal observes call a "landmark" lawsuit over Google's online video service, YouTube. Viacom, Inc., which owns Comedy Central, MTV, Nickelodeon and the Paramount movie studio, filed its original lawsuit against the search engine in 2007, accusing Google of posting Viacom's programs on YouTube. The media company sought $1 billion in damages, and would eventually claim that Google illegally posted 79,000 Viacom videos on YouTube between 2005 and 2008. Google acquired YouTube in 2006.

Now, that dispute looks to be over, reflecting "the growing collaborative dialogue between our two companies on important opportunities, and we look forward to working more closely together," Google and Viacom said in a joint statement. Terms of the settlement have not been disclosed, however. According to Reuters, "no money changed hands, a person close to the matter said." That individual was not authorized, however, to discuss the settlement's terms.

This settlement comes almost a year after a federal judge in Manhattan ruled against Viacom's damages claims over Viacom-copyrighted material that YouTube users had uploaded without permission. U.S. District Court Jude Louis Stanton ruled that YouTube was not required to search its website repeatedly for infringing content, provided that the online video service remove such videos after receiving take-down notices from copyright owners. Viacom was appealing that decision to the Second U.S. Circuit Court of Appeals in New York, and oral arguments had been scheduled for March 24th.



In writing that "[it] cannot be said the employer's scholarship players are 'primarily students,'" the Chicago district of the National Labor Relations Board (NLRB) ruled on Wednesday that Northwestern University football players qualify as employees of the university, and can unionize. As support for that decision, NLRB regional director Peter Sung Ohr touched on the fact that the university's football players regularly work more hours than other full-time employees, and are, as BuzzFeed Politics writes, "subject to control and regulations of their day-to-day activities that the rest of the student population is not." Consequently, Ohr ruled, the members of the Northwestern University football team "fall squarely within the [National Labor Relations] Act's broad definition of 'employee' when one considers the common law definition of 'employee.'"

The NLRB regional director's ruling means that members of the Northwestern football team may now vote on whether they want to be represented by the College Athletes Players Association (CAPA). CAPA brought the case to the NLRB, along with former Northwestern quarterback Kain Colter, and the United Steelworkers union, which has provided the financing for legal counsel. Disappointed by the NLRB ruling, Northwestern has indicated that it will appeal the ruling to the NLRB headquarters in Washington, D.C.; a final decision could take months. "While we respect the NLRB process and the regional director's opinion, we disagree with it," said Alan Cubbage, vice president for university relations, in a written statement. Cubbage added that the university "believes strongly that our student-athletes are not employees, but students. Unionization and collective bargaining are not the appropriate methods to address the concerns raised by student-athletes." The NCAA was similarly displeased with the NLRB ruling, stating, "[w]e strongly disagree with the notion that student-athletes are employees. "We frequently hear from student-athletes, across all sports, that they participate to enhance their overall college experience and for the love of their sport, not to be paid."

Supporters of CAPA, however, were quick to celebrate the ruling. On Wednesday, Colter tweeted: "This is a HUGE win for ALL college athletes!" During an interview with ESPN that evening, Colter also said he was "pleased with how strong the ruling was. The regional director did not budge one bit, he backed us up on all of our points. I believe it's going to be hard to overrule his decision, given how strong it is." He added that he was "confident" the Northwestern players would vote to unionize.

Read the NLRB decision here: http://www.scribd.com/doc/214711605/NLRB-Regional-Northwestern-Decision



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This page contains a single entry from the blog posted on March 28, 2014 8:33 AM.

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