Tuesday, December 14, 2010

Harvard shocker: Crimson rails against piracy, endorses university 'three strikes' penalty

It's less than a mile from Harvard Law School's Berkman Center to the offices of the Harvard Crimson. But it doesn't seem that the Berkman Center's ideas have made that short journey south. From a Crimson editorial that ran Monday:
Recently, the Motion Picture Association of America began sending thousands of letters to colleges and universities across the country, reminding them of their obligation to set up a "written plan to effectively combat the unauthorized distribution of copyright material by users of the institution's network" under the Higher Education Opportunity Act of 2008. Because we believe that intellectual property rights are important and the unauthorized downloading of copyrighted music, movies, and television programs is wrong, we applaud this move and hope that universities abide by the guidelines set down in the HEOA.

Our support for the MPAA’s actions is based on our belief that the unauthorized downloading of music, movies, and television programs, although easy, is questionable at the most basic level. In our postindustrial economy, the protection of intellectual property rights is important for several reasons. First, these rights must be safeguarded in order to provide an incentive for innovation. Without any guarantee of legitimacy, entrepreneurs will have no motivation to create new intellectual property, as it could be stolen at any time. Second, at a broader level, intellectual property rights are important because each person has a fundamental right to enjoy the fruits of his or her mental labor. Intellectual entrepreneurship requires a broad societal commitment to the rule of law and the importance of private enterprise.
Read the whole, excellent, thing.

Washington Legal Foundation: 'The Supreme Court Left Most Copyright Litigants Wanting in 2010'

On the Washington Legal Foundation's blog, Brad R. Newberg of Reed Smith LLP has a good summary of the Supreme Court's action (and inaction) on copyright in 2010. Here's the intro:
It has been a busy month for the Supreme Court not tackling copyright issues. On November 29, 2010, the Court denied certiorari in two copyright cases, Harper v. Maverick Recording Co., No. 10-94, and Bryant v. Media Right Productions, No. 10-415. Then, on December 13, it announced that no decision would be issued in Costco Wholesale Corp. v. Omega, S.A., No. 08-1423, due to a 4-4 split (Justice Kagan was recused). Along with the Court’s decision back in March to avoid the Section 411 registration/application issue in Reed Elsevier, Inc. v. Muchnick, 2010 will end with the Supreme Court having missed some opportunities to clarify parts of the Copyright Act that have real-world ramifications for copyright owners, users, and legal practitioners.
Definitely read the whole thing.

Wednesday, December 8, 2010

New House Judiciary Chaiman Smith vows to protect IP

Rep. Lamar Smith (R-TX), currently the ranking Member on the House Judiciary Committee, announced today that he will serve as chairman in the next Congress. And he made clear that he will continue the committee's strong support for intellectual property rights:
As Chairman of the Committee, I will focus on efforts to strengthen national security, protect intellectual property, prevent frivolous lawsuits and keep children safe from Internet sex predators. The Judiciary Committee will support industries that employ millions of Americans by protecting their patents and copyrights.
(h/t TechDailyDose)

Tuesday, December 7, 2010

Thomas-Rasset: I owe nothing; labels seek injunction; court to Nesson: you're no amicus of mine

Several developments in the case of Jammie Thomas-Rasset following the third jury's award of $1.5 million to the major record labels in their copyright infringement suit:
  • Thomas-Rasset is seeking to have the award reduced to zero, on constitutional grounds. She is explicitly forgoing an argument based on common-law remittitur, the means by which the court reduced the second jury's award of $1.92 million down to $54,000. The court's decision on this motion -- which I expect him to grant, at least in part -- will allow one or both sides to appeal immediately to the Eighth Circuit, mercifully sparing all parties a fourth trial.
  • The labels are seeking an injunction against further infringement by Thomas-Rasset via peer-to-peer or other means.
  • The court told Harvard Law Professor Charles Nesson "thanks, but no thanks," rejecting his proposed amicus brief attacking the jury's award. "The proposed brief would not be of assistance to the Court," ruled Chief Judge Michael Davis of the District of Minnesota. " "Not so much as a thank you for the effort," lamented Nesson, adding, ":<("

Tuesday, November 30, 2010

C&C again named to ABA Journal's top 100 law blogs

I'm pleased to report that for the second year in a row the editors of the ABA Journal have named Copyrights & Campaigns one of the top 100 legal blogs. Thanks to all who have read, commented, tipped, passed along documents, and otherwise contributed to this effort. Posting hasn't been as frequent this year because of my day job, but I'm still blogging, as well as writing a regular legal column for Billboard.

If you're so inclined, you can vote for C&C as the top blog in the IP category here.

Monday, November 29, 2010

Supreme Court denies cert. in Harper 'innocent infringer' case

The Supreme Court today declined to hear a case challenging a lower court's decision that the "innocent infringer" defense under 17 U.S.C. § 504(c)(2) does not apply in a case of peer-to-peer infringement where the copyright owner had affixed proper notices on physical CDs embodying the work at issue. See 17 U.S.C. § 402(d) ("If a notice of copyright in the form and position specified by this section appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504."). The High Court's action leaves in place the Fifth Circuit's decision in in Maverick Recordings v. Harper, one of the major record labels' cases against an individual p2p user. In Harper, the defendant, a teenage girl, argued that she qualified for the defense -- actually, a limitation on statutory damages to $200 per work -- because she was not aware that she was engaged in infringing activity. Accord BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005).

Justice Samuel Alito filed a dissent to the denial of cert., questioning whether Section 402(d) was meant to apply to a digital file, as opposed to a copy made directly from a physical object like a CD. See Order at 26.

Wednesday, November 10, 2010

CLE event to explore uses of music in political campaigns

Next Wednesday, Nov. 17 I'll be participating in a CLE event that will explore various legal issues related to the use of music in political campaigns. Anyone can participate (for a fee) via telephone conference or live webcast hosted by the ABA. Details below:

The Politics of Fair Use:

A Practical Discussion of Fair Use Principles Using Recent Examples of Popular Music in Political Campaigns

Date: Wednesday, November 17, 2010
Format: Teleconference and Live Audio Webcast
Duration: 60 minutes


The American Bar Association Section of Intellectual Property Law, Forum on the Entertainment and Sports Industries and the ABA Center for Continuing Legal Education

12:30 PM-1:30 PM Eastern

11:30 AM-12:30 PM Central

10:30 AM-11:30 AM Mountain

9:30 AM-10:30 AM Pacific

Program Description

Recently, high profile politicians including John McCain, Charlie Crist, and Chuck DeVore have had lawsuits brought against them for using the music of famous musicians such as Jackson Browne, David Byrne, and Don Henley in their campaigns without receiving the necessary permissions and licenses. What rights do politicians have to use popular music at their live events and in advertisements? Are such uses a "fair use"? Our expert panel will discuss these issues and use them as a means to review principles of the Fair Use doctrine.

Program Faculty

Robert Clarida (Moderator) is the partner in charge of the copyright practice at the New York firm of Cowan, Liebowitz & Latman, P.C., which was named “Copyright Firm of the Year” for both 2008 and 2009 by Managing Intellectual Property magazine. He has conducted jury trials, argued federal appeals, and served as lead litigation counsel in a number of reported federal copyright cases. He also counsels clients on non-litigious copyright matters, and has been the principal drafter of amicus curiae briefs on copyright matters in the U.S. Supreme Court and a number of Circuits, on behalf of organizations including the AIPLA, the Motion Picture Association of America, the New York City Bar Association, and the Recording Industry Association of America. Mr. Clarida speaks and writes frequently on copyright issues, is the author of the treatise Copyright Law Deskbook (BNA 2009), and the principal author of the annual review of copyright decisions published each year by the Journal of the Copyright Society of the USA.

Jacqueline C. Charlesworth is of counsel in the litigation department in the New York office of Morrison & Foerster LLP. Ms. Charlesworth's practice focuses on copyright law in the digital environment. She represents media, entertainment, and other clients in litigation, legislative, regulatory, and transactional matters. In addition to handling infringement matters, she has negotiated industry-wide licensing agreements to facilitate the development of online music services. She advises on copyright-related legislation and appears in proceedings before the
U.S. Copyright Office.

Ben Sheffner is a copyright/First Amendment/media/entertainment attorney and former journalist. Currently senior counsel, Legal Affairs in the NBC Universal Television Group, Mr. Sheffner has also worked as senior counsel, Content Protection Litigation at Twentieth Century Fox, as litigation counsel in the NBC Universal Television Group, and as an associate in the Century City office of O'Melveny & Myers LLP. From July-November 2008, Mr. Sheffner served as special counsel on Senator John McCain's presidential campaign where, among other responsibilities, he handled the campaign's copyright, trademark, and other intellectual property issues. Mr. Sheffner blogs at http://copyrightsandcampaigns.blogspot.com/, which was recently named as one of the top 100 legal blogs by the American Bar Association, and writes a regular column on legal issues in the music industry for the Billboard.

Andrew Sparkler is the associate director, Legal Corporate at the American Society of Composers Authors and Publishers ("ASCAP") where he focuses on legislative and international issues, as well as providing legal support to ASCAP's internal departments and The ASCAP Foundation. He is a co-chair of the New York Chapter of the Copyright Society of the U.S.A. In 2009, he was named the New York State Bar Association's "Outstanding Young Lawyer." Mr. Sparkler received his law degree from the Fordham University School of Law and his undergraduate degree from Brown University.

CLE Credit

1.0 hours of CLE credit in 60-minute states/1.2 hours of CLE credit in 50-minute states have been requested in states accrediting ABA teleconferences and live audio webcasts.*

NY-licensed attorneys: This non-transitional CLE program has been approved for experienced NY-licensed attorneys in accordance with the requirements of the New York State CLE Board for1.0 total NY CLE credits.

The following states accept ABA teleconferences for CLE credit:

*States currently not accrediting ABA teleconferences: DE, IN, PA, KS, OH

Click here to view a map of MCLE states

Wednesday, November 3, 2010

Third Thomas-Rasset verdict: $1.5 million

The third time was not the charm for Jammie Thomas-Rasset.

The jury in the third copyright trial of the Brainerd, Minnesota woman has just returned a verdict of $1.5 million in statutory damages, or $62,500 for each of the 24 songs that she downloaded and "shared" over the KaZaA peer-to-peer network.

The award is significantly higher than the $222,000 award in her first trial (which was thrown out when the judge determined the jury instructions to be flawed), and a bit lower than the $1.92 million award in the second, which was reduced by the judge to $54,000 under the common-law doctrine of remittitur. After the second trial, Thomas-Rasset -- who denied downloading any music over peer-to-peer networks -- rejected a settlement offer of $25,000 from the record label plaintiffs, who said they would donate the amount to a music-related charity.

The RIAA said in a statement after the verdict:
We are again thankful to the jury for its service in this matter and that they recognized the severity of the defendant's misconduct. Now with three jury decisions behind us along with a clear affirmation of Ms. Thomas-Rasset’s willful liability, it is our hope that she finally accepts responsibility for her actions.
This is far from the end of the road in this case. Thomas-Rasset is expected to challenge the size of the award again, and the judge has already determined that $54,000 is the maximum acceptable size for an award given the evidence in the case.

I'll update as more information becomes available.
Jammie Thomas-Rasset Verdict

Friday, October 29, 2010

Labels file First Circuit brief in Joel Tenenbaum case; ex-SG Paul Clement joins team

The record label plaintiffs filed their appellate brief in the First Circuit this week, seeking to reinstate the $675,000 copyright infringement award against Joel Tenenbaum that the district court held was unconstitutionally excessive and reduced to $67,500.

Readers of this blog are likely already familiar with the arguments over whether awards of copyright statutory damages are subject to review under the Supreme Court's punitive damages cases, including BMW v. Gore. I thought this brief did a particularly effective job at explaining why Gore and its progeny are inapplicable to statutory damages awards, where Congress has clearly established the permissible damages range, and thus the jury is not left without the "guideposts" that the court set forth in Gore, where no statute cabined the jury's discretion. And the brief highlights the flaws in the district court's own damages analysis, including its failure to take into account the evidence that Tenenbaum distributed (uploaded) songs to countless others in addition to downloading them. Of note, the labels' appellate team now includes former US Solicitor General Paul Clement, now a partner at King & Spalding.

Tenenbaum's defense team has also indicated that it will appeal, arguing that even the reduced award is unconstitutionally excessive.
Record Labels' appellate brief in Sony v. Tenenbaum

Nesson seeks to join Thomas-Rasset trial fray

The third trial of Jammie Thomas-Rasset may have just gotten a lot more interesting:
Nesson motion for pro hac vice

Trial is set to begin Tuesday, Nov. 2, and will concern only damages.

(Headline changed. Nesson sought to represent Harvard's Berkman Center, not to formally join Thomas-Rasset's defense.)

Wednesday, October 27, 2010

St. John's Law School synmposium explores music downloading cases

Those readers in the New York area may be interested in attending a symposium this Friday, Oct. 29 at St. John's University School of Law in Queens about the record labels' litigation against individual peer-to-peer infringers. The panel looks a bit heavy on the "anti" side, but it should be an interesting event nonetheless:

Reaching Acc[h]ord: Resolving Disputes Over Music Downloading

October 29, 2010 9:00 AM - 2:00 PM
Law School | Belson Moot Court Room | 2nd Floor

The Hugh L. Carey Center for Dispute Resolution, together with the Law School's Dispute Resolution Societyand Entertainment, Arts and Sports Law Society, presents:

Reaching Acc[h]ord: Resolving Disputes Over Music Downloading

  • Charles S. Nesson | Harvard Law School professor and counsel to Joel Tenenbaum
  • Joel Tennenbaum | Boston University student initially found liable for over $600,000 in damages for unauthorized music downloading
  • Ray Beckerman | Respected entertainment attorney and blogger on the topic of music downloading
  • Jake Walden | Independent recording artist.
  • Cathy Constantino | Conflict Management System Design Expert

Click to view larger imageClick to view larger image

Friday, October 29, 2010

9 a.m. - 2 p.m.

School of Law | Belson Moot Court Room | Second Floor

$25 entry fee
Free admission for law students with valid Law School ID

Please register at specialevents@stjohns.edu by Wednesday, October 27, 2010

More Information
Maureen Mulligan
Associate Director of Special Events
(718) 990-1950

Friday, October 22, 2010

Third Jammie Thomas-Rasset trial: Game on

The third trial of Jammie Thomas-Rasset for downloading and "sharing" songs over the Internet without permission from copyright holders will proceed as scheduled Nov. 2. Today Judge Michael Davis denied the defendant's motion for reconsideration of the court's earlier order reducing the verdict in the second trial on common-law remittitur grounds. Thomas-Rasset had sought to have the court void or reduce the $1.92 million jury award in the second trial on constitutional grounds, which would have permitted an immediate appeal to the Eighth Circuit. But in his brief order today, he concluded that his remittitur order "contain[]ed no manifest errors of law or fact." The third trial will focus only on damages; Thomas-Rasset's liability for willfully infringing 24 songs has already been established.
Order denying motion for reconsideration

Wednesday, October 20, 2010

Labels, government oppose Thomas-Rasset's attempt to avoid third trial

The record label plaintiffs case have filed their brief opposing Jammie Thomas-Rasset 's last-minute attempt to avoid a third trial in the peer-to-peer copyright case. The labels argue that such a late motion for reconsideration -- the trial, which will involve damages only, is scheduled to start Nov. 2 -- is procedurally improper, and that there is no compelling reason to disturb the court's previous ruling reducing the previous jury's $1.92 million award on common-law remittitur (i.e., non-constitutional) grounds.

The Justice Department, which has intervened in the case in defense of the constitutionality of the statutory damages provision of the Copyright Act, also filed a brief opposing reconsideration, citing the long-standing doctrine that courts should avoid ruling on constitutional issues where possible.

With trial set to begin in less than two weeks, I expect a fairly quick ruling from Judge Michael Davis of the District of Minnesota. I'm told that at a hearing last week Judge Davis expressed serious interest in such a motion for reconsideration, but it's far from certain that he will grant it.

Friday, October 15, 2010

Labels oppose cert. in 'innocent infringer' case

The major record labels have filed their opposition to the defendant's cert. petition in Maverick Recordings v. Harper, arguing that the admitted peer-to-peer user is absolutely barred from asserting an "innocent infringer" defense under 17 U.S.C. § 504(c)(2) because they had properly affixed copyright notices to CDs containing the songs she infringed. See 17 U.S.C. § 402(d) ("If a notice of copyright in the form and position specified by this section appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504.").

Here's the intro to the labels' brief:
This case involves a straightforward application of 17 U.S.C. § 402(d). Petitioner has never disputed that Respondents placed proper copyright notices on the published sound recordings at issue and that Petitioner had access to these published works. Therefore, as the Fifth Circuit correctly determined, section 402(d) bars Petitioner from asserting a so-called “innocent infringement” defense as a matter of law.

Petitioner’s primary argument for certiorari rests on the false premise that the circuit courts are divided on the legal standard for applying section 402(d). There is, however, no circuit split. The Second Circuit authority upon which Petitioner relies never even considered the application of section 402(d). In addition to the absence of any circuit split, this case provides an ill-suited vehicle for considering the legal standard for applying section 402(d). Petitioner’s argument that a lack of copyright notice on the specific digital recordings she infringed should defeat application of section 402(d) does not square with the plain language of the statute, ignores Petitioner’s admission that she had access to Respondents’ published works carrying the proper copyright notices, and was never raised in the lower courts. For all of these reasons, the Court should deny the Petition.
The Fifth Circuit here and the Seventh Circuit in BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005) came to the the same conclusion on this very point in very similar cases. And the label's brief explains why D.C. Comics, Inc. v. Mini Gift Shop, 912 F.2d 29 (2d Cir. 1990) -- which did not involve sound recordings, the Internet, or indeed 17 U.S.C. Sec. 402(d) -- is not in conflict with Harper and Gonzalez, the defendant's arguments to the contrary notwithstanding.

See my previous posts on this case here and here.
Plaintiffs' Opposition to petition for certiorari in Maverick Recordings v. Whitney Harper

Judge in Thomas-Rasset case may scuttle third trial

The judge in the Jammie Thomas-Rasset case is considering canceling the third trial in this long-running litigation brought by the major record labels against an individual peer-to-peer user.

The parties are preparing for a new trial starting Nov. 2, to focus only on damages, following the court's remittitur of the $1.92 million verdict handed down by a Minneapolis jury in 2009. But Judge Michael Davis indicated at a pre-trial hearing on Tuesday that he will give serious consideration to a defense request to modify his order so that it would instead rest on constitutional grounds. That would bring a degree of finality to the case, at least in the district court, and allow for an immediate appeal by one or both sides. I'm told that at the hearing, Judge Davis actually alluded several times to the movie Groundhog Day, referencing the scenario where he would repeatedly remit jury awards, only to have that remittitur refused by the plaintiffs, necessitating yet another trial, and ad infinitum.

Today the defense filed its brief seeking such reconsideration. It cites to the order issued by Judge Nancy Gertner in the Joel Tenenbaum case, which reduced the jury's award from $675,000 to $67,500 on constitutional grounds. In his original order, Judge Davis declined to reach the constitutional issues, citing United States v. Allen, 406 F.3d 940, 946 (8th Cir. 2005) (“When we are confronted with several possible grounds for deciding a case, any of which would lead to the same result, we choose the narrowest ground in order to avoid unnecessary adjudication of constitutional issues.).” In her order in the Tenenbaum case, Judge Gertner concluded that avoiding the constitutional issues was impossible essentially because of the Groundhog Day problem.

I'm told that the labels' plan to oppose Thomas-Rasset's motion for reconsideration; their response is due Wednesday, Oct. 20.

Defendant's Motion for Reconsideration

Wednesday, October 13, 2010

Grayson campaign ad apes 'Sopranos' opening; Henley v. DeVore redux?

The campaign of Rep. Alan Grayson (D-FL) has released a clever new ad -- one that closely mimics the opening of The Sopranos, only with Orlando rather than Northern New Jersey as the setting:

I don't think there's much of a copyright issue with the visuals in the Grayson spot; as far as I can tell, there's no copying of actual HBO footage, and I doubt HBO has a copyright in the idea of a montage of urban scenes from a driver's perspective. The much tougher issue for the Grayson campaign is the music, which appears to be a re-recording of the Sopranos theme (a song called "Woke Up This Morning" by British band Alabama 3 (aka A3)), with new lyrics that mock Grayson's opponent Daniel Webster (R). As to the music, the facts appear to be very similar to those in the Henley v. DeVore case, where the defendant also took a well known song and re-recorded it, substituting new lyrics attacking his political opponents. The court in the DeVore case soundly rejected the defendants' fair use argument, largely on the grounds that the campaign's use was satirical (using the work to poke fun at something else) rather than parodic (poking fun at the work itself). See Campbell v. Acuff-Rose Music, Inc., 510 US 569 (1994) (explaining parody/satire distinction).

Here's some background from the Orlando Sentinel.

Thursday, October 7, 2010

Copyright battle in Ohio Gov. race over use of clip to expose 'steelworker' as actor

Here's a very interesting copyright battle going on in the Ohio governor's race. As described by EFF's Kurt Opsahl:

A couple of days ago, Congressman John Kasich put out a commercial that featured a man dressed as a steelworker discussing Governor Ted Strickland’s record. It turns out that the steelworker depicted in the commercial wasn't an actual steelworker, but paid actor Chip Redden.

In response, the Ohio Democratic Party promptly published a YouTube video capitalizing on this, illustrating its point with short clips from Redden's acting career. One of the clips came from a film by Arginate Studios, LLC, which then used the DMCA (Digital Millennium Copyright Act) to send a take down demand to YouTube. YouTube removed the video. Under the DMCA, the political video would be unavailable on YouTube for at least 10 days (a significant portion of the time remaining before the election), though the video remains available on Vimeo.

Given the facts as I know them, I'm with EFF on this one. The Ohio Democratic Party's use of clip was strictly non-commercial: to make a political point about Kasich's ad. And the clips they used were very short -- just long enough to demonstrate that the "steelworker" really wasn't. Arginate's action will have the unfortunate effect of keeping the video off YouTube at the height of the campaign. YouTube can re-post the video at any time; yes, it would lose the DMCA safe harbor as to this video, but it doesn't need any safe harbor given that the Ohio Democratic Party's inclusion of the clip is almost certainly a non-infringing fair use. YouTube has taken such a step before; it should do so again.

Update: as of the morning of October 8, the video has been restored to YouTube. I'll tryto find out whether Arginate withdrew its notice, or whether YouTube re-posted it on its own.

Further update: Google Senior Copyright Counsel Fred von Lohmann confirmed to me that YouTube did re-post the video on its own.

Wednesday, October 6, 2010

CDT releases report on campaign uses of copyrighted material

The Center for Democracy and Technology has released a new report documenting political campaigns' uses of third-party materials, and the copyright battles that sometimes ensue. Readers of this blog will be familiar with many of the incidents described in the report, but the author, CDT Policy Analyst Andrew McDiarmid, also unearths a few I was not aware of. While I might quibble a bit with the emphasis the report places on the notice-and-takedown provisions of the DMCA, I agree with its overall conclusion that too often content owners, particularly news organizations, have sought to enforce their copyrights out of concern for their reputational interests -- a form of damage that is really not cognizable in copyright law. Definitely read the whole thing.

Tuesday, October 5, 2010

NFL demands Feingold campaign remove clips from ad; Senator quickly complies

The National Football league today demanded that the campaign of Sen. Russ Feingold (D-WI) remove clips of actual NFL footage from a campaign ad. The Feingold campaign quickly complied.

Here's the original ad:

And the edited version:

Tuesday, September 21, 2010

Supreme Court requests response on 'innocent infringer' cert. petition

Good news for Whitney Harper and other opponents of the record labels' suits against individual peer-to-peer users: the Supreme Court has asked the record label plaintiffs to file a response to Harper's cert. petition that sought review of the Fifth Circuit's decision that precluded her from asserting the "innocent infringer" defense under 17 U.S.C. § 504(c)(2). While the Court's request is far from a guarantee that it will take the case, it only takes such action in a small percentage of cases, and it is an indication that the justices are at least intrigued by the issues presented and are seriously considering granting cert. As the Blog of Legal Times, which first reported the decision, stated:
The Court's unusual action is a sign of the Court's interest in the case. A recent study indicated that the Court's request for a response significantly increases the chances the Court will ultimately grant review -- which could turn into a major contest for the music industry.

Monday, September 20, 2010

New paper examines distribution and 'making available'

Professor Peter Menell of Berkeley Law has published a new paper examining copyright's right of distribution, and the related debate about whether it encompasses a "making available" right. The debate is important in litigation against peer-to-peer users and facilitators; a conclusion that "making available" is not a violation of the distribution right torpedoed the verdict in the first Jammie Thomas-Rasset trial. Prof. Menell definitively concludes that the evidence, including the legislative history of the 1976 Copyright Act, "shows unequivocally that Congress intended to encompass broadly the 1909 Act rights to 'publish' and 'vend' within the right to distribute, and rejects the position that Congress required proof of 'actual distribution' to prove violation of the distribution right."

Here's the entire abstract:

In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age

Peter S. Menell
University of California, Berkeley - School of Law

September 19, 2010

Prior to the emergence of peer-to-peer technology, the Copyright Act’s distribution right was largely dormant. Most enforcement actions were premised upon violations of the reproduction right. The relatively few cases invoking the distribution right involved arcane scenarios. During the past several years, direct enforcement of the Copyright Act against file sharers has brought the scope of the distribution right to center stage. Whereas the 1909 Act expressly protected the rights to “publish” and “vend,” the 1976 Act speaks of a right to “distribute.” Interpreting “distribute” narrowly, some courts have held that copyright owners must prove that a sound recording placed in a peer-to-peer share folder was actually downloaded to establish violation of the distribution right. Other courts hold that merely making a sound recording available violates the distribution right. The ramifications for copyright enforcement in the Internet age are substantial. Under the narrow interpretation, the relative anonymity of peer-to-peer transmissions in combination with privacy concerns make enforcement costly and difficult. A broad interpretation exposes millions of peer-to-peer users to potentially crushing statutory damages.

Drawing upon the historical development of copyright law and the legislative history of the Copyright Act of 1976, this article explains why Congress selected the term “distribute” in its last omnibus revision of copyright law, shows unequivocally that Congress intended to encompass broadly the 1909 Act rights to “publish” and “vend” within the right to distribute, and rejects the position that Congress required proof of “actual distribution” to prove violation of the distribution right. This critical legislative history has been notably absent from treatise accounts and briefing on the liability standard in the file sharing cases, leaving courts without a compass to navigate this statutory terrain. This article traces the origins of the key legislative terms to elucidate the scope of the distribution right in the Internet age.

Thursday, September 16, 2010

Fox news and correspondent sue Senate candidate over use of news footage in ad

Fox News and its correspondent Chris Wallace have sued the campaign of Senate Candidate Robin Carnahan (D-MO) over her campaign's use of Fox footage in a TV ad attacking her opponent, Roy Blunt (R). As first reported by THR, Esq., the complaint, filed in the Western District of Missouri on Wednesday, alleges copyright infringement and two forms of violation of Wallace's right of publicity under Missouri law.

The campaign ad has been removed from Carnahan's web site and YouTube, so unfortunately I can't independently evaluate it. (Update: here it is, at least for now.) But the complaint alleges that it was a "smear ad" that falsely implies that Fox and Wallace endorsed Carnahan's campaign. The complaint says that the 32-second ad uses "an essentially verbatim copy of a 30-second clip of both video footage and voice-over commentary appropriated from" an interview Wallace conducted with Blunt in 2006. The complaint also seems to say that the Fox footage included in the Carnahan ad included only Wallace's questions -- but not Blunt's answers:
The defendant’s conduct in stealing only certain footage from the [Fox] Interview is also false and misleading: Wallace’s tough questions were included, but Blunt’s answers and explanations were not.

The Kansas City Star described the ad as follows:

“You have to show you’re the party of reform,” Wallace says to Blunt in the clip, as it’s replayed on the Carnahan ad. “But some question whether you are the man to do that.”

The screen than flashes examples from Blunt’s political and congressional career, including his insertion of legislation in a Homeland Security bill that would have helped tobacco maker Philip Morris.

Without having seen the ad myself, I'm not going to offer an opinion on the ultimate merits of the suit. But I do have a bit of skepticism about the copyright claim, for at least two reasons. First, the complaint repeatedly emphasizes the alleged reputational damage to Fox for use of the footage. Even assuming that the ad does falsely imply that Fox and/or Wallace are endorsing Democrat Carnahan (a dubious proposition, it seems to me), reputational damage is just not a cognizable copyright interest. And second, the complaint asserts that the campaign's use of the Fox footage "allows Defendant to profit commercially without paying the traditional price." But that statement appears to contradict the thrust of the complaint, which is that Fox would never license such footage to a campaign, because it would damage its reputation. In other words, there is no "price" here, "traditional" or otherwise. Moreover, courts have rejected the argument that campaign uses of third-party material are "commercial" simply because they are used to solicit contributions. See American Family Life Insurance Co. v. Hagan, 266 F. Supp. 2d 682, 697 (N.D. Ohio 2002) (use of trademark in a political campaign ad was “properly classified not as a commercial transaction at all, but completely noncommercial, political speech”); MasterCard International Inc. v. Nader 2000 Primary Committee, Inc., 2004 WL 434404 (S.D.N.Y. Mar. 8, 2004) (even if a candidate’s ad resulted in increased contributions, the ad would still not be “commercial;” “If so . . . all political campaign speech would also be ‘commercial speech’ since all political candidates collect contributions”).

As for the right of publicity claims, I am not familiar enough with the specifics of Missouri law to say anything too definite. I would just point out that courts are very protective of First Amendment interests in the political context, see, e.g., Meyer v. Grant, 486 US 414 (1988) (First Amendment interests are "at its zenith" in the political realm), and there are strong arguments for limiting right of publicity claims to truly commercial uses of an individual's name and likeness.

(Updated with additional detail about the ad.)

Wednesday, September 8, 2010

'Copyhype' joins the blogosphere

Just a quick plug for the new copyright blog "Copyhype," by recent law school graduate Terry Hart. Hart has a very smart post debunking the superficial and ultimately silly argument that copyright infringement must never be referred to as "theft" because the Supreme Court held in Dowling v. United States, 473 U.S. 207 (1985), that the National Stolen Property Act, 18 U. S. C. § 2314, does not apply to interstate transportation of bootleg records. And he does important work in demolishing much of the disinformation about ACTA by carefully comparing what the proposed agreement says to actual US law. A very welcome addition to the copyright blogosphere.

Monday, August 30, 2010

Commerce Secretary rails against 'scourge of music piracy'

In a speech today in Nashville, Commerce Secretary Gary Locke promised action against the "scourge of music piracy," repeating Vice President Biden's proclamation that "Piracy is flat, unadulterated theft," and vowing that "it should be dealt with accordingly." Locke said his department is "conducting a comprehensive review of the relationship among copyright policy, creativity, and innovation in the Internet economy" and reiterated the Obama Administration's support for the Performance Rights Act, which would require terrestrial radio stations to pay royalties to owners of sound recordings. The current state of affairs, where songwriters and composers, but not recording artists, get paid for airplay, "makes absolutely no sense," said Locke.

Go read the whole thing, including Locke's entreaty to "content owners and Internet service providers [] to work collaboratively to combat intellectual property infringement online" and "[e]specially to combat repeat infringement."

'Cruel Summer' campaign video removed

The video from Congressional candidate Sean Mahoney (R-NH) that featured the Bananarama hit "Cruel Summer" has been removed from several web video sites, apparently by the campaign itself.

Jimmy Asci, a spokesman for music publisher Sony/ATV, which owns the composition to the 1983 single, confirmed that the Mahoney campaign had used the song without obtaining a license, and that the video was removed before a cease-and-desist letter was even issued. "It wasn't licensed," he said. "This happens all the time. 99.9% of the time, they take it down" upon receipt of a notice, according to Asci. "We don't really go any further than that."

It's notable that of the three recent copyright lawsuits involving campaigns of which I'm aware -- Jackson Browne v. John McCain, Don Henley v. Chuck DeVore, and David Byrne v. Charlie Crist -- all involved individual songwriters as plaintiffs, not publishers or record labels. Corporations simply want campaigns to knock off their unlicensed uses. Individual artists -- who often have strong political views of their own, and strong feelings about unwanted uses of their material -- tend to demand a pound of flesh.

Thursday, August 26, 2010

Could 'Cruel Summer' campaign video lead to a cruel copyright lawsuit?

A Republican House candidate from New Hampshire has used over a minute of the 80s hit "Cruel Summer" in a campaign video attacking his Democratic opponent, Rep. Carol Shea-Porter. The video from the campaign of Sean Mahoney -- which identifies itself as a "political parody" -- argues that the economic policies of Shea-Porter and the Obama Administration "have given us a cruel summer."

I have inquiries in to the Mahoney campaign as well as what I believe to be the copyright owners (Sony/ATV for the publishing and London Records for the master), to confirm what I strongly suspect: that the campaign did not get licenses for this use. (I will update this post when and if I hear back.) The self-imposed "parody" label notwithstanding, I think the copyright owners would have a very strong claim if they decided to pursue this. California Senate candidate Chuck DeVore (R) had a much more plausible claim to parody than does Mahoney -- and it was still a loser.

Monday, August 23, 2010

Court sets trial date in Shepard Fairey case; Mannie Garcia drops out

The judge refereeing the dispute between the AP and artist Shepard Fairey over the "Obama Hope" poster has set a trial date of March 21, 2011. Of course, it's not certain there will actually be a trial; I expect one or both sides to seek summary judgment, and settlement is always a possibility.

Also, last Friday the AP and Mannie Garcia, the photographer who took the photo that served as the basis for Fairey's poster, voluntarily dismissed their claims and counterclaims. The two sides disputed whether the AP or Garcia owned the copyright in the photo. A source tells me that there was no "settlement," which suggests that Garcia simply dropped his claim. I have an inquiry in to his attorney and will update this post if I get additional information.

Update: The AP has released the following statement:

The Associated Press is very pleased that Mannie Garcia has withdrawn from the case with prejudice, meaning that he cannot refile his claim against the AP. The AP has not wavered in its belief that Mr. Garcia was a staff photographer at the time he took the image of then-Sen. Barack Obama, that AP properly employed Mr. Garcia, and that AP is the rightful copyright owner of the photo in question. Further, the AP is pleased that Mr. Garcia voluntarily withdrew without any payment or consideration of any kind -- this was not a settlement.

In a Court hearing on Monday, Judge Alvin Hellerstein indicated that he would sign the stipulation and enter the order. Also in Monday’s hearing, the judge set both a summary judgment schedule and a trial schedule for the case involving Shepard Fairey. The AP is happy to have these dates set. The AP continues to be confident in its position that the use Mr. Fairey made of its photo is not fair use, but one that should have been licensed so as to help ensure the AP's photographers will be able to continue creating new works. The AP looks forward to resolution whether through summary judgment or trial on the merits.

Wednesday, August 18, 2010

Billboard: 'The Legal Issues Behind The Slowed-Down Justin Bieber Track'

My Billboard piece on super-slow Justin Bieber. Bottom line: his label says it's fine ("and Justin thinks it’s great"!). EMI, one of the publishers, declines to comment.

Friday, August 13, 2010

'Girl' Trouble: Examining The Merits Of Rondor Music's Complaint About The Katy Perry Hit

My Billboard column this week explores the legal issues behind the claim that the "I really wish you all could be California girls" line in Katy Perry's hit "California Gurls" infringes on "I wish they all could be California girls" in the Beach Boys' classic. Also cross-posted at THR, Esq.

I don't argue that Rondor (the publisher of the Beach Boys' song) has a particularly strong claim. But before dismissing it as frivolous, consider such cases as:
  • Heim v. Universal Pictures, 154 F.2d 480 (2d Cir. 1946) ("There may be wrongful copying, though small quantitatively; so if someone were to copy the words, "Euclid alone has looked on Beauty bare," or "Twas brillig and the slithy toves.")

Monday, August 9, 2010

Third Thomas-Rasset trial moved to Nov. 1

Round three in the record labels' copyright suit against Jammie Thomas-Rasset has been moved from Oct. 4 to Nov. 1. This third trial will focus only on damages, after the court granted the defense's motion for remittitur, slashing the jury's award in the second trial from $1.92 million down to $54,000. The labels opted for a third trial rather than accepting the reduced amount.

My Washington Legal Foundation 'Legal Backgrounder' on Tenenbaum statutory damages ruling

I wrote the following "Legal Backgrounder" for the Washington Legal Foundation on Judge Nancy Gertner's July 9 ruling slashing the Joel Tenenbaum jury's award of $675,000 statutory damages: "Due Process Limits on Statutory Civil Damages? Unprecedented Ruling In Copyright Case A Double-Edged Sword For Businesses."

Thursday, August 5, 2010

Henley, DeVore settle lawsuit; Henley rails against remixes and mash-ups, YouTube, 'dark side' of Internet; songs are not 'toys or playthings'

Eagles frontman Don Henley and his fellow songwriters Mike Campbell and Danny Kortchmar have settled their copyright suit against former GOP Senate candidate Chuck DeVore for an apology and payment of an undisclosed sum.

“This is a moral victory, and a victory for every copyright holder in the United States,” said Henley in an exclusive interview with Copyrights and Campaigns yesterday. “We set a precedent that will likely discourage this kind of behavior,” he added, referring to unauthorized uses of copyrighted songs by political campaigns. "I think this is going to have a very positive effect on the creators of music."

DeVore and co-defendant Justin Hart, the campaign’s Internet director, said in a statement, “We apologize for using the musical works of Don Henley, Mike Campbell and Danny Kortchmar without respect for their rights under copyright law. The court’s ruling in this case confirms that political candidates, regardless of affiliation, should seek appropriate license authority before they use copyrighted works.”

The lawsuit, which Henley had largely won at the district court, involved two videos made by the DeVore campaign which took the lyrics from Henley’s songs “The Boys of Summer” and “All She wants to do is Dance” and substituted in new lyrics attacking president Obama and Sen. Barbara Boxer (D-CA). DeVore argued that the videos were fair use parodies of Henley’s songs, but the court held that the videos were satirical rather than parodic and rejected the fair use defense. Questions of willfulness and damages were still to be resolved. The court did rule for the defendants on the plaintiffs' Lanham Act claim, which alleged that DeVore's videos falsely associated Henley with the Republican's campaign. DeVore lost the June primary to former HP exec Carly Fiorina (R) for the chance to take on Boxer in November.

In his interview with C&C, Henley said that his motivation for the lawsuit was not financial or political, but “simply a matter of my copyrights being violated by music being used in a way it was never intended to be used.” Henley -- who has donated $9,000 to Boxer’s campaigns over the years but shuns the “liberal” label (“my political life is not that simple”) -- insisted that he did not target DeVore because of the state Assemblyman’s conservative views, and indeed objects to all political uses of his songs, regardless of the candidate or cause. Henley noted that he similarly complained after 2008 North Carolina Democratic gubernatorial candidate Richard Moore’s campaign used the song “Life in the Fast Lane” in a YouTube video without permission. The Moore matter was settled after the campaign voluntarily took down the video and admitted error, Henley said.

Asked what advice he has for other musicians and songwriters whose songs are used by campaigns without permission, he said, “When you think you’re right—when you know you’re right—when someone has stolen and misused your intellectual property, you have to do something about it.... I could have let this go, but I had to stand up and do something about it.”

Henley blasted all unauthorized uses of his music, whether by politicians or just amateurs making remixes, mash-ups, and similar unlicensed uses on sites like YouTube. “I don’t condone it,” he said of such practices. “I’m vehemently opposed to it. Not because I don’t like parodies or satires of my work. But it’s simply a violation of U.S. copyright law.” He added, “People in my age group generally don’t like it. Songs are difficult to write; some of them take years to write. To have them used as toys or playthings is frustrating.” Henley noted that he does not license his songs for commercials and only rarely does so for uses in films and television.

And Henley reserved particularly ire for YouTube, which he described as a “fence” for stolen intellectual property. “YouTube is one of the biggest violators or copyright laws in the world,” he said. “A tremendous amount of the content on YouTube is a copyright violation.... I’m not a fan of YouTube at all for their part in aiding and abetting copyright violations.” YouTube, which hosted the videos at issue in the DeVore case, took them down in response to DMCA notices, but DeVore filed counter-notices, and YouTube would have re-posted them but for the filing of the lawsuit. (YouTube, of course, recently won a major copyright decision in a case brought by Viacom and other copyright owners, including a putative class of music publishers, when a federal court ruled that the site was protected by the DMCA’s safe harbor for hosts of user-generated content.)

And Henley lamented what he views as the lack of response in Washington to rampant infringement on the Internet: “The politicians are not supporting creators on these issues, and it’s extremely disappointing.” He blamed what he views as the lack of action on the political power of Internet companies. “The people who create and run these sites like YouTube have a lot of clout,” he said.

“The Internet is slowly but surely killing the whole concept of copyright,” complained Henley. “I don’t like where it’s going.... The Internet is a wonderful thing but it also has a very dark side.”

I have an inquiry in to DeVore and will publish his thoughts should he wish to share them.

Wednesday, August 4, 2010

No more court-ordered settlement talks in Thomas-Rasset case

The judge in the Jammie Thomas-Rasset case today granted the parties' joint motion for relief from the court's previous order to participate in settlement talks. A third trial in the peer-to-peer infringement case, which will consider only the issue of damages, remains set for October 4.