How the hell am I going to do this? I'm not a trial lawyer.Good question! Read the whole thing.
Tuesday, March 31, 2009
Here's the full description:
Sinking the Copyright Pirates: Global Protection of Intellectual Property
You are respectfully requested to attend the following open hearing of the Full Committee to be held in Van Nuys Civic Center, 14410 Sylvan Street, Van Nuys, CA 91401.
Mr. Steven Soderbergh
National Vice President
Directors Guild of America
Mr. Richard Cook
The Walt Disney Studios
Mr. Michael F. Miller, Jr.
International Vice President
The International Alliance of Theatrical Stage Employes (IATSE)
Mr. Zach Horowitz
President and Chief Operating Officer
Universal Music Group
Mr. Timothy P. Trainer
Global Intellectual Property Strategy Center, P.C.
Monday, March 30, 2009
Copyleft academics to Nesson: fair use defense is a loser; Lessig urges jury nullification; Mrs. Nesson savages naysayers, 'Ray'
Just when you thought the Joel Tenenbaum case couldn't get any wackier, Tenenbaum's counsel, Harvard Law Professor Charles Nesson, has now posted to his blog emails containing internal strategy discussions with several top copyleft academics in which those academics flatly reject Nesson's theory of the case. [UPDATE: Nesson appears to have removed the emails from his blog post on the morning of March 31. But...saved for posterity.] Those academics -- whom Nesson had planned to call as expert witnesses to testify on Tenenbaum's behalf -- tell Nesson in no uncertain terms that his plan to mount a fair use defense of Tenenbaum's peer-to-peer activities is a sure legal loser. And Stanford Law Professor Lawrence Lessig urges Nesson to argue for outright jury nullification: "whatever the law requires, We, the Jury, won’t allow it."
A sampling from the emails:
Lawrence Lessig, Professor, Stanford Law School:
I am surprised if the intent is to fight this case as if what joel did was not against the law. of course it was against the law, and you do the law too much kindness by trying to pretend (or stretch) “fair use” excuses what he did. It doesn’t. But if you want to argue it does, then I should think it a big mistake to include Terry on the team, or me for that matter. I have given literally hundreds of speeches where I expressly say p2p filesharing is wrong, and kids shouldn’t do it. I think FREE CULTURE says that more than a dozen times.
I should have thought instead this was a simple nullification case. Of course, it is practically impossible to frame and present a nullification case. despite the framers belief that nullification was an essential part of the jury right (at least in the context of criminal law), it has over the centuries been emaciated. but that’s the only honest frame for joel’s case — whatever the law requires, We, the Jury, won’t allow it.Terry Fisher, Professor, Harvard Law School:
I cannot, however, testify that Joel’s activity constitutes a fair use under current copyright law, because I don’t think it does. Thus, I’m worried by your statement that “our case is fair use.” I fear that what I have to say will not contribute to that assertion. Moreover, I will be subject to cross examination, in which I will have to say the opposite.
My view is that it’s not credible to argue that widespread P2P filesharing has not and will not give rise to “some meaningful likelihood of future harm” to the revenues of the holders of copyrights in sound recordings and musical works.... I think you need to engage more than you have as yet with the case law in this area, which is quite hostile to your assertion that ordinary P2P filesharing is fair use. The key decisions are Napster, Aimster, and Grokster. In answer to your question, yes, I fear that failure to address the holdings (or dicta) of those decisions will give rise to a directed verdict or summary judgment against you — and you will never get a chance to make your case to the jury.
Wendy Seltzer, Practitioner in Residence, American University's Washington College of Law:
Add me to those puzzled by the “fair use” arguments. I understood the argument to be that statuory damages are inappropriate and unconstitutional in response to personal-use copying, not that such copying was within the bounds of existing law.
I think it would be more convincing to argue that Joel’s conduct was “fair” as an ethical matter than to claim that it meets the legally established category of “fair use.”
I fear that we do damage to fair use by arguments that stretch it to include filesharing — weakening our claims to fair use even for un-permissioned transformations. I am much more comfortable disagreeing with the law than claiming at this point in time that it already excuses
Raymond Bilderbeck, Harvard Law School student and member of Tenenbaum legal team:
All of this looks very bad from my perspective. I think that introducing our experts at this late stage to the very novel argument that we intend to raise at trial - an argument which has no real basis in case law or moderate academic scholarship - is a blunder that could have very serious consequences. At this point, I have no idea what our disclosures will look like. And they have to be filed TOMORROW. Bad, bad, bad.
We should have been working on this for weeks rather than days.
And not content to waive the work-product privilege, Nesson has also waived the marital privilege, posting to his blog an .mp3 of a conversation between him and his wife Fern, in which Mrs. Nesson delivers a rousing -- and profane! -- pep talk to her husband, urging him to stick with fair use, and savaging the naysaying experts:
They're going to have to go back to the fucking cases and really consider it, instead of spouting all the shit that they're teaching their students.... And it wouldn't hurt to point out to them that you're a better case-reader than they are.
One last question: who exactly is "Ray," and why is he "such a schmuck"?
[Update on Prof. Nesson's blog: "ray is one of my students, not ray beckerman."]
UPDATE: this is far from the first time Nesson's posting of apparently private emails and recordings has raised eyebrows. From a 2002 Crimson profile:
The referenced Warren/Ogletree/Nesson emails are here.
In addition to his formidable legal reputation, [Nesson] is know throughout HLS for his habit of frustrating other professors and publicizing confidential information.
In September, Climenko Professor of Law Charles J. Ogletree scheduled Jesse Jackson to speak at HLS, during the meeting time of several classes, including one taught by Law professor Alvin C. Warren.
Warren then sent an e-mail to a small group of faculty members, including Nesson and Ogletree, asking that the event be rescheduled.
Ogletree and Warren had a heated and personal debate over e-mail that Nesson wanted to share with students and faculty. Warren said he thought it was better not to.
Nesson shared the e-mails with his class anyway. When Warren met with Nesson to discuss the ethics of divulging the e-mails, Nesson secretly tape-recorded this conversation, then put the audio and the e-mails on his website and told students and faculty where they could find it.
Sunday, March 29, 2009
First, the terminology. "Graduated response" is a term generally used to describe a program implemented by an ISP to address claims by copyright owners of infringement by the ISP's subscribers. Under graduated response, the ISP "graduates" -- i.e., increases, or makes more severe -- its response to the infringing subscriber upon each successive notice of infringement. So, for example, the first claim may lead to a warning. The next claim may lead to a harsher warning. The next claim might lead to a suspension, a monetary penalty, a degradation of service, or worse. A "three strikes" program refers to a particular subset of graduated response programs where the penalty upon the third notice of infringement is termination of the subscriber's account.
So what is the state of US law regarding graduated response and three strikes? Are ISPs legally required to implement these programs? Almost certainly no, as to peer-to-peer users. I think the law is now fairly clear that ISPs may not be held financially responsible for infringement by their users via p2p networks -- and that ISPs are not obligated (absent specific court order) to take action against users who infringe by p2p, even repeatedly. The reason lies in 17 U.S.C. § 512(a) -- the ("clear (albeit complex)"!) DMCA safe harbor for "Transitory Digital Network Communications" systems like ISPs. Section 512(a) provides a safe harbor from infringement claims against operators of so-called "dumb pipes" where "the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider." (More detail in RIAA v. Verizon and pages 50-51 of the House DMCA report.) Significantly, the 512(a) safe harbor does not have a "notice and takedown"
[UPDATE: It is true that Section 512(i) provides that, to benefit from any of the DMCA safe harbors, the ISP/host must have "adopted and reasonably implemented, and inform[ed] subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers." However, I know of no court that has interpreted that provision as requiring the forwarding of notices by an ISP to accused p2p infringers.]
(It's crucial to keep in mind the distinction between the Section 512(a) safe harbor for ISPs and the Section 512(c) safe harbor that governs "Information Residing on Systems or Networks At Direction of Users." The 512(c) safe harbor arguably covers hosts of user-generated content like YouTube and MySpace (though my friends at Viacom and UMG and NBCU don't concede this point). Section 512(c) does have a notice-and-takedown provision, and, to maintain the safe harbor, hosts must "terminat[e] in appropriate circumstances...repeat infringers." "Three strikes" is not a concept completely alien to the DMCA. YouTube, for one, has stated that it terminates upon a third DMCA notice as part of its implementation of the "repeat infringer" provision. See pages 17-18 of this brief.)
But wait: isn't an ISP at least required to pass on infringement notices to its subscribers when it receives such notices from copyright owners? CNET says so:
The Digital Millennium Copyright Act of 1998 has mandated that ISPs forward those letters to people accused of violating copyright.And so (though I hesitate to cite such an openly pro-infringement site) does TorrentFreak:
For years, content owners such as record labels or movie studios have been sending copyright infringement notices to ISPs, who are legally obliged to forward these to their customers.(my emphasis). Here's the explanation: I think CNET and TorrentFreak are both just plain wrong. Neither cites any DMCA provision that would obligate an ISP to forward infringement notices premised on p2p infringement by an ISP customer, and I know of none (and believe me, I've looked).
So why, if not forced by the DMCA or other provisions of copyright law, would ISPs forward notices, implement graduated response programs, or even terminate repeat p2p infringers (as TorrentFreak accurately says has been going on for years)? At least three reasons:
1) Because ISPs want to keep Congress off their backs. While the copyleft generally doesn't think online copyright infringement is a serious problem, virtually the entire Congress does. (Remember, the PRO-IP Act passed the House last year 410-11, and by unanimous consent in the Senate.) Suppose ISPs tell copyright owners: "Stop sending us your silly notices, and go pound sand. Section 512(a) protects us, and if our subscribers use BitTorrent to download every movie, TV show, and song on earth, that's your problem, not ours." Legally, they may well be within theirs rights to do exactly that. But politically, they would be virtually begging Congress to amend the DMCA in such away that their safe harbor would become considerably more dangerous. Better to cooperate with copyright owners at least to some extent -- if not all the way up to three strikes -- than to risk a new legal regime in which they would face massive liability if they do not take much stronger action against their infringing subscribers.
2) Because of contractual obligations -- or hopes of getting them. Major copyright owners often have business relationships with ISPs/cable operators/telecoms. For example: a studio may license its movies to a cable provider as part of a VOD service. The studio may say to the MSO: "We'll license you our movies. But you also run an ISP that provides Internet service to millions of subscribers, and neither of us should want to undermine our VOD service (where we split revenue) by having people downloading these very titles for free on BitTorrent. So, as part of our agreement, we want you to pass along infringement notices, institute graduated response, etc." ISPs/MSOs may push back, citing cost, technical difficulties, concern over customer privacy, or Internet freedom, but if they want the content badly enough, they will agree to some cooperation in copyright enforcement above and beyond what the DMCA actually requires. (Of course, ISPs will resist three strikes with all their might. Who wants to terminate customers paying $50 or more every month?)
3) Because -- as the WSJ puts it -- "the increasing burden of large amounts of music and movies [are] clogging [ISPs'] pipes." If forwarding infringement notices and taking stronger action against the worst of the infringers can free up bandwidth and thus increase connection speeds for everyone, then it's perhaps in the ISPs' interest to do it. (This is probably the weakest of the three reasons I've listed. ISPs don't really seem to mind when their customers use p2p systems -- and in fact the ability to download music and movies for free surely attracts many customers -- as long as such uses don't significantly disrupt the operations of their networks.)
So the studios and the record labels will continue to negotiate with the ISPs, and will probably reach various agreements to implement graduated response -- though I have real doubts whether three strikes will be implemented on a large scale. But remember that these negotiations are taking place because of business, long-term political, and technical reasons -- and not because the DMCA actually requires it.
We sometimes overestimate what this is by [using] the word 'czar.'... If it was really a copyright czar, then illegal file sharers would be lined up and shot.--Daryl Friedman, VP of Advocacy & Government Relations, National Academy of Recording Arts and Sciences.
Friday, March 27, 2009
President Obama campaigned on a pledge to change Washington, vowing to upend the K Street lobbying culture, and at one point, he said lobbyists wouldn't work in his White House. Immediately after taking office, he imposed lobbying limits that have been hailed as historically strict. Although officials said MacBride's appointment would not violate those rules, some prosecutors and governmental watchdogs wonder whether it would violate their spirit.
"The issue is whether Obama is being consistent," said Melanie Sloan, a former prosecutor who heads Citizens for Responsibility and Ethics in Washington. "They wanted the American people to think they weren't going to hire any lobbyists, and that was never realistic."
Thursday, March 26, 2009
Wednesday, March 25, 2009
DOJ again intervenes to defend statutory damages from constitutional attack; and just what about Ray Beckerman's favorite cases?
Like the Tenenbaum brief, this brief likewise ignores Parker v. Time Warner, Napster, UMG v. Lindor, and Atlantic v. Brennan, and the Georgetown and University of Texas Law Review Articles, all cited in the amicus curiae brief of the Free Software Foundation in Tenenbaum.
And it may be that in a sufficiently serious case the due process clause might be invoked, not to prevent [class] certification, but to nullify that effect and reduce the aggregate [statutory] damage award. Cf. State Farm Mutual Auto. Ins. Co. v. Campbell, ___ U.S. ___, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003) ("The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor."); BMW of North America, Inc. v. Gore,517 U.S. 559, 580, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996) (noting that the "most commonly cited indicium of an unreasonable or excessive punitive damages award is its ratio to the actual harm inflicted on the plaintiff."). At this point in this case, however, these concerns remain hypothetical. There has been no class certification motion filed nor any actual evidence presented that raises a reasonable possibility that principles of due process may restrict an ultimate damages award. Accordingly, we decline to consider what limits the due process clause may impose.Note that the Parker court did not hold that the limits BMW and State Farm impose on punitive damages apply to statutory damages (it used only a "cf." (i.e., "only kinda sorta on point") citation); it explicitly declined to reach that issue as "hypothetical."
The Supreme Court has not indicated whether Gore and [State Farm v.] Campbell apply to awards of statutory damages. We know of no case invalidating such an award of statutory damages under Gore or Campbell, although we note that some courts have suggested in dicta that these precedents may apply to statutory-damage awards. See, e.g., Parker v. Time WarnerEntm't Co., 331 F.3d 13, 22 (2d Cir.2003) (suggesting that "in a sufficiently serious case," due process may require courts to reduce a statutory-damage award in a class action, and citing both Campbell and Gore); Leiber v. Bertelsmann A G (In re Napster, Inc. Copyright Litig.), Nos. C MDL-00-1369 MHP & C 04-1671 MHP, 2005 WL 1287611, at *10 (N.D.Cal. June 1, 2005) (unpublished) (citing Gore and Campbell); DirecTV v. Gonzalez, No. Civ.A.SA-03-1170 SR, 2004 WL 1875046, at *4 (W.D.Tex. Aug. 23, 2004) (unpublished) (citing Campbell); but see Lowry's Reports, Inc. v. Legg Mason, Inc., 302 F.Supp.2d 455, 459-60 (D.Md.2004) (concluding that Gore and Campbell do not limit statutory damages in copyright cases).Regardless of the uncertainty regarding the application of Gore and Campbell to statutory-damage awards, we may review such awards under St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63, 66-67, 40 S.Ct. 71, 64 L.Ed. 139 (1919), to ensure they comport with due process. In such cases, we inquire whether the awards are "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable." Id. at 67, 40 S.Ct. 71. This review, however, is extraordinarily deferential—even more so than in cases applying abuse-of-discretion review.Douglas v. Cunningham, 294 U.S. 207, 210, 55 S.Ct. 365, 79 L.Ed. 862 (1935) (Congress's purpose in enacting the statutory-damage provision of the 1909 Copyright Act and its delineation of specified limits for statutory damages "take the matter out of the ordinary rule with respect to abuse of discretion"); Broad. Music, Inc. v. Star Amusements, Inc., 44 F.3d 485, 487 (7th Cir.1995) (interpreting the modern Copyright Act and noting "that the standard for reviewing an award of statutory damages within the allowed range is even more deferential than abuse of discretion").***If the Supreme Court countenanced a 113:1 ratio in Williams, we cannot conclude that a 44:1 ratio is unacceptable here. We acknowledge the Supreme Court's preference for a lower punitive-to-compensatory ratio, as stated in Campbell, but emphasize that this case does not involve a punitive-damages award. Until the Supreme Court applies Campbell to an award of statutory damages, we conclude that Williams controls, not Campbell, and accordingly reject Panorama's due-process argument.
Tuesday, March 24, 2009
[A]ny such recording without permission of the participants, as well as the broadcast of such communications, runs afoul of Mass. Gen. L. c. 272 § 99.
Reading all of [the press coverage of the DOJ brief], you'd be forgiven for thinking that the Department of Justice had decided to support tough statutory damages for copyright infringement because it was infested with entertainment industry lawyers.
I don't think this view of the world aligns well with reality.
When the Department of Justice fields questions like this, it doesn't write on a clean slate. It doesn't check the results of the most recent election, it doesn't consult the views of high-ranking appointed officials, and it doesn't in any way embark on a quest for the "right" outcome. Rather, the traditional view within the Department of Justice is that it has an obligation to defend the constitutionality of all federal laws, except in the rarest of circumstances.***The Department of Justice's obligation is to defend the Copyright Act as Congress wrote it, not to re-evaluate or critique it. I am pretty sure the DOJ's submission would have looked the same, even if the office was not brimming with RIAA attorneys.
Plaintiffs sued Defendant based on substantial evidence that Defendant used the KaZaA file sharing program to upload (distribute) more than 800 sound recordings—including many of Plaintiffs’ copyrighted sound recordings—to potentially millions of other users on the file sharing network. Plaintiffs also allege that Defendant used KaZaA to download Plaintiffs’ copyrighted sound recordings from other KaZaA users. Although Defendant’s Answer denies liability, Defendant has largely admitted Plaintiffs’ allegations in his deposition, in pleadings, in the press, and in his letter to the Attorney General asking the government to intervene in the case.Indeed, Defendant concedes that Exhibit B to Plaintiffs Complaint is a copy of his KaZaA shared folder and that he created and used the “sublimeguy14@KaZaA” username. Defendant further admits that he used similar file sharing programs for years before Plaintiffs caught him, starting with the infamous Napster file sharing program, and that he continued to engage in file sharing, switching from using KaZaA at home to using LimeWire when he was away at school. The evidence also shows that Defendant’s conduct was willful, and that Defendant knew what he was doing was wrong but did it anyway thinking he would not be caught.In an effort to escape liability for his infringement, Defendant’s Motion seeks to overturn copyright law altogether, arguing that Congress somehow exceeded its authority by (1) creating a private right of enforcement and (2) allowing the victims of copyright infringement to seek statutory damages in lieu of actual damages. While Defendant and his counsel may be on a crusade to redraft the law to permit copyright infringement of music on the Internet, Plaintiffs are seeking to apply long-standing and well-grounded copyright law to address a real-life case with real-life economic and cultural consequences.As demonstrated below, the Copyright Clause of the U.S. Constitution gives Congress the power “to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.” Eldred v. Ashcroft, 537 U.S. 186, 222 (2003). The private enforcement of copyright laws by copyright holders and the availability of statutory damages are fundamental aspects of the intellectual property regime established by Congress. They reflect Congress’ rational decisions about how to achieve the goals of the Copyright Clause and Defendant has not and could not provide any factual or legal basis for challenging Congress’ decisions.
Monday, March 23, 2009
"We didn't think litigation was probable," Leo Cunningham, a RealNetworks attorney, told U.S. District Judge Marilyn Hall Patel during a brief hearing.
Solons urge Obama to appoint IP Czar; Susan Crawford tapped for separate White House tech policy slot
As President Barack Obama's first 100 days whiz by, Senate Judiciary Chairman Patrick Leahy, ranking member Arlen Specter, and Sens. Evan Bayh, D-Ind., and George Voinovich, R-Ohio, are pressuring the White House to make intellectual property protection a priority. The foursome who was the driving force behind last year's PRO IP Act, which former President George W. Bush signed in October, wrote to Obama last week urging him to nominate an IP enforcement coordinator. The position within the Executive Office of the President was created in their legislation and "can improve the effectiveness and efficiency of the administration's efforts to protect American intellectual property," they wrote in a letter obtained by Tech Daily Dose.
She will likely hold the title of special assistant to the president for science, technology, and innovation policy, they said. Crawford, who was most recently a visiting professor at the University of Michigan and at Yale Law School, was tapped by Obama's transition team in November to co-chair its FCC review process with University of Pennsylvania professor Kevin Werbach. Her official administration appointment has not been formally announced. Crawford may be best known for her work with the Internet Corporation for Assigned Names and Numbers, the California-based nonprofit group that manages the Internet address system. She served on ICANN's board for three years beginning in December 2005.
Surely a high-priority item for any new President will be looking hard at public long-term infrastructure investment - not just open-access municipal fiber (although that’s central), but also basic research, graduate education in the sciences, anything that will help us address an increasingly hot, flat, and crowded world with new ideas.