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The Copyright Law Journal brings you in-depth analysis of recent important cases in copyright law. In each issue, several cases are discussed, analyzed, and placed into perspective with decisions by other courts. The Copyright Law Journal was founded, and solely written, by Neil Boorstyn from 1984 through the Mar-April 2016 issue. Neil, who passed away on March 1, 2016, was Of Counsel to current publisher of The Copyright Law Journal, Owen, Wickersham & Erickson, P.C.. Neil was one of the country's leading copyright and computer law experts. Under the new authorship of Linda Joy Kattwinkel, Neil's student, mentee and colleague, The Copyright Law Journal continues to provide the valuable and unique perspective of a seasoned copyright practitioner. Read a tribute to Neil here.

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In the latest issue of The Copyright Law Journal:

KIRTSAENG v. JOHN WILEY & SONS: In a unanimous decision, the Supreme Court held that district courts considering an award of attorneys' fees must give substantial weight to the objective reasonableness of the losing party's position, but retain discretion to award fees even upon finding that the losing party's position was objectively reasonable
VMG SALSOUL, LLC v. CICCONE: Creating a split with the Sixth Circuit, the Ninth Circuit held that the de minimis exception to copyright infringement applies to sampling of sound recordings
CAPITOL RECORDS, LLC v. VIMEO: The Second Circuit held that the Digital Millennium Copyright Act's safe harbor protections are available for online service providers with respect to pre-1972 sound recordings, and set high bars for proving a service provider's red flag knowledge or willful infringement


In arguing for a fee award, prevailing parties should first establish, if possible, the objective unreasonableness of the losing party's position. All other relevant factors should also be addressed, including the losing party's frivolousness, motivation (bad faith), and/or misconduct, the need to deter repeated instances of copyright infringement, or to deter overly aggressive infringement claims, the need to compensate the prevailing party, or that the prevailing position clarified an important point of copyright law
In the Ninth Circuit, and perhaps other courts not bound by Sixth Circuit precedent, sampling is not subject to strict liability, and the de minimis exception, as well as fair use and other statutory and common law defenses, are available to defendants accused of infringement based on sampling
When the Copyright Office is not speaking within its delegated authority for rulemaking, its interpretations of the Copyright Act deserve at most Skidmore "persuasive" deference rather than the stricter controlling deference under Chevron. Under Skidmore, deference is given only to the extent the office has specialized experience, broader investigations, and more information available to it than the judiciary. Skidmore deference or at least some deference is also appropriate when evaluating the office's decisions regarding registration

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