Tuesday, September 29, 2009

Court denies preliminary injunction in constitutional challenge to Copyright Royalty Board

A federal judge in Washington has denied a motion by Internet radio aggregator Live365.com to preliminarily enjoin the operation of the Copyright Royalty Board on the grounds that its judges are appointed in violation of the US Constitution. In a brief order issued yesterday, Judge Reggie Walton stated that "the plaintiff has failed to demonstrate its entitlement to the extraordinary relief of a preliminary injunction." Walton said that he anticipates issuing a fuller ruling within 30 days.
Order denying preliminary injunction in Live365 v. CRB
Live365 filed suit August 31, seeking a declaration that the appointments process for the CRB judges is flawed because they are appointed by the Librarian of Congress. Live 365 argues that under the Constitution's Appointments Clause, the CRB judges are "principal officers" who may only be appointed by the president. The argument has been raised in other CRB proceedings, but courts have never reached the merits. In a case brought by SoundExchange, DC Circuit Judge Brett Kavanaugh did opine that the challenge to the CRB judges "raises a serious constitutional issue." A similar challenge to the appointment of members of the Public Company Accounting Oversight Board is pending before the Supreme Court, and a decision in that case, Free Enterprise Fund v. Public Company Accounting Oversight Board, could affect the outcome of the challenge to the CRB.

Here is Live365's motion for a PI, and the government's opposition.

Friday, September 25, 2009

IP 'Czar' nominee Espinel bows to boffo reviews

It's only been a few hours since President Obama named former USTR and Senate staffer Victoria Espinel as the first-ever US Intellectual Property Enforcement Coordinator, aka "IP Czar," and the reviews are already coming in. The verdict? They like her! They really like her!

Dan Glickman, Chairman & CEO, MPAA:
We applaud President Obama’s decision today to nominate Victoria Espinel as the administration’s Intellectual Property Enforcement Coordinator. Given her extensive experience working on intellectual property issues as the former Assistant United States Trade Representative for Intellectual Property and Innovation along with her work as the chief U.S. trade negotiator on IP issues before the World Trade Organization, Espinel brings a wealth of knowledge and expertise to the position. We look forward to working with her in this new and increasingly important role.

Intellectual property industries are an essential economic engine to the U.S. economy. The motion picture industry alone employed over 2.5 million workers in 2007 and paid more than $41.1 billion in wages to employees working behind-the-scenes and in front of the camera. We commend the administration for appointing such a capable and experienced advocate for the artists and creators who make their living by creating the content that is not only loved by millions of consumers around the world, but that is a significant contributor to the American economy.
Mitch Bainwol, Chairman & CEO, Recording Industry Association of America:
We warmly welcome the decision of President Obama to nominate Victoria Espinel as the new Intellectual Property Enforcement Coordinator. Victoria is a polished and respected veteran on intellectual property and global trade-related issues. Throughout her distinguished career, she has worked to establish herself as one of the top minds in the global intellectual property forum. She brings an impressive track record to this newly-created but vital position. This valuable expertise will help protect the American jobs, ingenuity and creative innovation that helps drive so much of our economy. We encourage Congress to move quickly to approve her nomination.

Victoria has a full plate in front of her. In this challenging economic environment, the importance of developing and implementing common-sense solutions to protect our nation’s intellectual property industry and promote innovation cannot be underscored enough. A vigorous defense of intellectual property strengthens our ability to compete as a world leader in global commerce. As numerous studies have attested, intellectual property is a unique growth driver for this country, employing more than 5.6 million U.S. workers and contributing more than $889 billion to the U.S. GDP. We are confident that Victoria is up to the task.
Joint statement of SAG, WGAW, DGA, AFTRA, and IATSE:

We welcome the announcement today by President Obama of the nomination of Victoria Espinel to the position of this Administration's Intellectual Property Enforcement Coordinator. There is no issue more important to our unions than the protection of the films and television programs that our members create. Too often in public debate these works are given the abstract labels of "content" or "information." In reality however, they are much more than that-they are one of our country's greatest economic and cultural contributions loved by both the American public and by billions around the world. And, most importantly, they are not abstractions, they represent real jobs and real income to millions of people in this country. We look forward to working with our Administration, Congress and the new IP Enforcement Coordinator to ensure that our films and television programs are respected and protected both here and abroad so that our children and grandchildren may enjoy them as we do today.

Gigi Sohn, President, Public Knowledge:

We congratulate Victoria Espinel on her nomination to be the Intellectual Property Enforcement Coordinator. She is well qualified for the position, having served as the assistant U.S. Trade Representative for Intellectual Property and Innovation. We look forward to working with her upon confirmation by the Senate. We believe she will be fair in her approach to intellectual property enforcement issues.

NBC Universal, Inc.

We applaud the Administration for its action today in filling this critically important position. This new White House executive, once confirmed by the Senate, should be well-positioned to ensure that American innovation and creativity generate American jobs. We look forward to working with the administration, and the nominee once confirmed, to protect and grow well-paid IP jobs that will help the US economy recover from the recession and thrive in the 21st century.

Mark T. Esper, executive vice president, U.S. Chamber of Commerce’s Global Intellectual Property Center

Last year, Congress passed the bipartisan PRO-IP Act to protect the ownership rights of inventors and creators while ensuring the products consumers use are authentic, safe and effective. President Obama’s choice of Victoria Espinel as the nation’s first IP enforcement coordinator is significant, and marks an important step towards fulfilling the promise of the PRO-IP Act.

Throughout a long and distinguished career working on intellectual property issues, Victoria has been on the front lines of efforts to protect the ideas that are the basis of our innovation economy. Under Victoria’s leadership, intellectual property protection, promotion, and enforcement will now be rightly elevated to the highest level of the executive branch, an important sign about the administration’s commitment to protecting jobs throughout America’s IP-intensive industries.

Growing the economy, improving America’s competitiveness, and protecting ideas go hand-in-hand because our economy is built on IP-driven innovation. In these uncertain economic times, it is more critical than ever that our government aggressively protect the rights of innovators and artists who are turning ideas into full-fledged inventions that create jobs and meet the public’s needs.

In the coming weeks and months, we look forward to learning more about IPEC’s plan to tackle the IP challenges that face the nation. We are anxious to work with Victoria on the development of the first comprehensive national strategy, as mandated by Congress, to address the full range of IP issues now facing American industry, workers, and consumers. Today’s nomination is a positive development towards fully implementing and funding the PRO-IP Act, and we hope President Obama and Congress will continue this important work by ensuring Victoria has the resources and authority necessary to get the job done.

Patrick Ross, Executive Director, Copyright Alliance:

The Copyright Alliance congratulates President Obama on his selection of Victoria Espinel to serve as the first U.S. Intellectual Property Enforcement Coordinator. Her leadership roles at the Office of the U.S. Trade Representative not only put her front and center in intellectual property promotion and enforcement, they also allowed her to demonstrate her ability to work with multiple agencies and stakeholders in a productive, effective manner.

Today’s appointment is the welcome culmination of many months of work toward a more streamlined approach to intellectual property enforcement by the federal government. This appointment and its locale within the Office of Management and Budget is a strong sign by the Administration that it believes in the importance of creators’ rights and seeing those rights are enforced here and abroad.

Now the real challenges begin. The copyright community will watch with great interest and stand ready to contribute where needed as this new office is established and begins operations.

We urge the Administration to give her every resource, and encourage all officials with a stake in intellectual property enforcement to work with her on a task that is critical to our nation’s economic growth and job creation.

So far, I have not located any public statements critical of Espinel's appointment, though copyleft groups such as EFF and Center for Democracy and Technology have yet to weigh in. I will update this post as warranted.

It's official: Victoria Espinel nominated as 'IP Czar'

Almost a year after President Bush signed the PRO-IP Act into law, President Obama today named former USTR attorney and IP expert Victoria Espinel to be the first US Intellectual Property Enforcement Coordinator -- better known as the IP Czar. According to National Journal's Tech Daily Dose, the IP Czar position will be housed in the Office of Management and Budget, which is part of the Executive office of the President. Pursuant to Section 301 of the PRO-IP Act, which created the position, the IP Czar's duties include:
  • The development of a Joint Strategic Plan against counterfeiting and infringement
  • Assisting in the implementation of such a plan
  • Facilitating the issuance of policy guidance to departments and agencies on basic issues of IP to ensure consistency throughout the government
  • Chairing an interagency IP enforcement committee established by the statute
  • Reporting to Congress on domestic and international IP enforcement, and recommending improvements
The statute explicitly provides that the IP Czar "may not control or direct any law enforcement agency, including the Department of Justice, in the exercise of its investigative or prosecutorial authority." The position is subject to Senate confirmation.

Here's the official White House announcement:

Victoria A. Espinel, Nominee for U.S. Intellectual Property Enforcement Coordinator, Office of Management and Budget

Victoria A. Espinel is the founder and President of Bridging the Innovation Divide, a not-for-profit foundation focused on addressing the "innovation divide" and empowering all Americans to obtain the full benefit of their creativity and ingenuity. From 2007-2009, Ms. Espinel was a Visiting Assistant Professor at the George Mason University School of Law. Her areas of teaching and research were intellectual property and international trade. She has acted as advisor on intellectual property issues to the staff of the Senate Judiciary Committee, Senate Finance Committee, House Judiciary Committee and House Ways and Means Committee. She also served as an advisor to Romulus Global Issues Management and is a member of the Brain Trust of the Global Innovation Forum. In 2005, Ms. Espinel was asked to serve as the first ever Assistant United States Trade Representative for Intellectual Property and Innovation at the Office of the U.S. Trade Representative, serving as the chief U.S. trade negotiator for intellectual property and innovation. She testified on numerous occasions before the House Judiciary Committee and the Senate Committee on Homeland Security and Governmental Affairs. Ms. Espinel also served as Deputy Assistant USTR for Intellectual Property and as Associate General Counsel at USTR. Before joining USTR, Ms. Espinel was with the law firms of Covington & Burling in London and Washington, D.C., and Sidley, Austin, Brown & Wood in New York. She holds an LLM from the London School of Economics, a JD from Georgetown University Law School, and a BS in Foreign Service from Georgetown University's School of Foreign Service.

So far, Espinel's nomination has been warmly received by groups ranging from from Public Knowledge to the US Chamber of Commerce. I'll collect more reactions to Espinel's reaction later. In the meantime, congratulations.

One last thing: before Glenn Beck and the rest of the anti-czar brigade use this as another example of a "shadow government . . . giving the Obama administration unprecedented power with virtually no oversight," please keep in mind at least two things. First, "IP Czar" is a completely unofficial term, used by the media and others as shorthand. The official title is "Intellectual Property Enforcement Coordinator" or "IPEC." Second, the statute that created the position passed the House 410-11 and by unanimous consent in the Senate, and it was signed into law by then-President George W. Bush. This was not some left-wing, "czarist" power-grab.

Wednesday, September 23, 2009

Why ACORN's suit against 'pimp,' 'hooker,' and Breitbart.com is probably doomed

Today ACORN and two former employees filed suit against the young filmmakers who videotaped Baltimore employees of the community organizing group dispensing advice to a fake pimp and prostitute, as well as against the web site that publicized the videos, alleging violations of Maryland's law against surreptitious audio recording. The lawsuit, which seeks monetary damages and an injunction against further broadcast of the videos, is unlikely to succeed. Here's why.

First, the facts. The filmmakers, James O'Keefe, 25, and Hannah Giles, 20, visited ACORN's Baltimore office in the early summer of 2009, seeking advice on how to set up and run a brothel staffed by underage Salvadoran hookers. ACORN workers Tonja Thompson and Shera Williams gave such advice to O'Keefe and Giles, as the Borat-esque pair secretly videotaped their conversation; here's Part I and Part II, and a transcript. The meeting appears to have taken place in a conference room in the ACORN office. The door is open, and children can be heard, apparently from the adjacent room. After making the video, O'Keefe approached Andrew Breitbart, the conservative web entrepreneur, who publicized the videos on his BigGovernment.com site. (I've seen no indication that Breitbart participated in the Baltimore recording, or was even aware of it until after O'Keefe and Giles shot the video.) ACORN fired Williams and Thompson September 10, shortly after BigGovernment.com broke the story.

ACORN's complaint, filed in Maryland state court, names O'Keefe, Giles, and Breitbart.com LLC as defendants, and includes a single count, for violation of Maryland Courts and Judicial Proceedings Code §§ 10-402(a) and 10-410. Section 10-402(a) makes it unlawful to "[w]ilfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any ... oral ... communication" or to "disclose" or "use" any such communication. Section 10-410 provides that a successful plaintiff is entitled to "[a]ctual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher," punitive damages, and attorneys' fees. The complaint demands $1,000,000 for ACORN and $500,000 for each of the individual plaintiffs, plus punitive damages of $1,000,000 against each defendant, and an injunction against further broadcast of the videos.

Maryland's statute requires consent from all parties to record -- which the defendants clearly appear to have lacked. But, crucially, courts have interpreted the statute to apply only where the plaintiffs have a reasonable expectation of privacy ("REP"). See Malpas v. Maryland, 695 A.2d 588 (Md. Ct. Spec. App. 1997) (no REP where voices can be heard outside apartment where conversation occurred); Benford v. ABC, 649 F. Supp. 9 (D. Md. 1986) (question of fact for jury whether plaintiff had REP during sales presentation inside private home). While the law in Maryland itself is scant, and the question is not entirely free of doubt, I think it unlikely that a Maryland court would find that ACORN and its employees had a REP in the circumstances here. Thompson and Williams were speaking with complete strangers they had just met. They were meeting in an office open to any customer who happened to wander in off the street. Though the meeting itself appears to have occurred in a conference room, the door was open. And it appears likely that their voices could be heard outside the room; after all, in the video, we can hear children's voices carrying into the room where the recording occurred.

Cases from outside Maryland in which journalists have conducted hidden-camera investigations in places of business generally hold that plaintiffs alleging violations of similar statutes or common law duties do not have a REP when interacting with customers. See, e.g., Med. Lab. Mgm't Consultants v. ABC, 306 F.3d 806 (9th Cir. 2002) (no REP during meeting with reporters posing as customers in medical lab conference room, even where doors were closed); Desnick v. ABC, 44 F.3d 1435 (7th Cir. 1995) (no cause of action for trespass against reporters posing as patients in medical offices; "The test patients entered offices that were open to anyone expressing a desire for ophthalmic services and videotaped physicians engaged in professional, not personal, communications with strangers (the testers themselves)."); PETA v. Berosini, 895 P.2d 1269 (Nev. 1995) (in suit brought by animal rights activists who videotaped trainer's alleged mistreatment of orangutans, trainer had no subjective expectation of privacy in a hotel's backstage area where "[h]e had nothing to hide-nothing to be private about"); but cf. Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999) (upholding jury verdict of trespass against journalists who gained employment through deception and filmed in non-public portions of supermarket, though rejecting claim for damages based on broadcast of videos made during trespass).

Aside from the plaintiffs' lack of a REP, the defendants have at least one other potential defense under the statute. Violations of section 10-402(a) must be "wilfull," meaning "either an intentional violation or a reckless disregard of a known legal duty." Benford, 649 F. Supp. at 10. O'Keefe and Giles may be able to argue that they did not actually know of their legal duty to obtain the ACORN employees' consent before recording; ignorance of the law can, in certain circumstances, provide a defense.

Lastly, I think the claim against Breitbart.com, including the request for an injunction against further broadcast of the videos, is clearly barred by the First Amendment pursuant to the Supreme Court's decision in Bartnicki v. Vopper, 532 U.S. 514 (2001). In Bartnicki, the Court held that a journalist could not, consistent with the First Amendment, be held liable for broadcasting a recording made in violation of federal and state wiretap statutes, as long as: 1) the journalist played no role in making the illegal recording; and 2) the recording involved a matter of public concern. Again, as far as I am aware, Breitbart had no involvement in the actual recording. And there is no doubt that the exposure of ACORN employees advising supposed pimps and prostitutes how to conduct their business is a matter of public concern. The disclosures led both the House and Senate to vote to cut off funds to the organization, and the Census Bureau and the IRS have both announced they will no longer work with ACORN. Holding a news organization liable for broadcasting true speech on a matter of public concern, or, even worse, enjoining further publication, would be a grave First Amendment violation.

Disclosure: Andrew Breitbart is a friend. I have not spoken with him about the ACORN matter.

Sunday, September 20, 2009

Class action copyright suit filed against Scribd; is filtering an act of infringement?

In what could be Viacom v. YouTube for print, a Houston financial writer has sued Scribd.com for copyright infringement, purporting to represent a class of authors who allege their works have been illegally copied, re-formatted, and displayed by the popular document-hosting service. As first reported by CNET's Greg Sandoval, the plaintiff, Elaine Scott, is represented by Kiwi Camara, famous in the copyright world for his defense of p2p infringer Jammie Thomas-Rasset.
Scott v. Scribd Complaint
Scott's complaint is in many ways similar to those filed by movie, TV, and music companies against user-generated content web video sites like YouTube and Veoh. But there's an interesting twist, involving Scribd's efforts to prevent copyright infringement. Scribd has implemented its own "Copyright Management System" similar to the Audible Magic filter employed by Veoh and other sites, and YouTube's own proprietary sytem. According to Scribd:
Every document uploaded to Scribd is compared to the CMS database. If someone tries to upload a document that our system identifies as one of the tens of thousands of works in our CMS database (with more added daily), that document is automatically removed from Scribd.
There are two ways the documents get into the CMS database. First,
Each time Scribd receives a DMCA-compliant takedown request from a copyright holder, we quickly remove the unauthorized document and add a unique reference file corresponding to that document to our copyright database, deleting previously-uploaded copies of the same work identified by the system.
Or copyright owners can pre-emptively give Scribd a copy of their works to add to the database:
Automated future protection: We also urge authors and publishers to proactively add the text of their work to the Scribd CMS. Click here to upload your original works to the copyright management system.
Sounds pretty good, no? According to Scott's complaint, no! In fact, the complaint specifically cites the operation of the CMS as an act of infringement:
Without permission of the authors, Scribd maintains copies of author's [sic] works for use in a copyright protection system. Once a copyrighted work is uploaded to Scribd without the copyright holder's permission, the infringement is ongoing and permanent. Even if the work becomes unavailable for download by users, Scribd illegally copies the work into its copyright protection system, without permission or compensation to the author.
In other words, asserts the complaint, making and retaining copies of infringing works in order to remove them from the system, and prevent future uploads, is itself infringing. One question I have is whether what Scribd maintains in its database are actual "copies" of the infringing materials, or merely (as in the case of the audio and video ID systems I'm aware of) digital "fingerprints" of the materials. The distinction may sound technical, but it could determine whether Scribd's CMS is itself infringing.

The complaint colorfully attacks the "West coast technology industry" that has "produced a number of startup firms premised on the notion that commercial copyright infringement is not illegal unless and until the injured party discovers and complains of the infringing activity and the infringer fails to repond to such complaints," and heaps scorn on "previous cases decided in the Ninth Circuit" which "do[] not reflect Fifth Circuit law and good policy." It asserts claims for direct, contributory, and vicarious copyright infringement, and seeks a declaration (probably superfluous) that Scribd is not protected by the DMCA's safe-harbor provisions.

There is already one similar suit pending against Scribd (though not a class action), filed August 25 by a San Diego financial writer named Larry Williams. Williams has also sued the individuals who apparently uploaded his works, though he now knows them only by his Scribd user IDs. (Williams will likely be able to out them either through discovery in his case, or via subpoenas under 17 USC § 512(h).) Of course, even if the DMCA Section 512(c) safe harbor shields Scribd from infringement claims, it definitely does not protect individuals who upload material without the permission of the copyright owner.

Disclosure: I use Scribd to host documents for this blog. A lot.

Saturday, September 19, 2009

Some additional thoughts on UMG v. Veoh

I assume most readers are now familiar with Judge Howard Matz's September 11 order granting summary judgment in favor of the web-video site Veoh in the copyright suit brought by several Universal Music Group entities. The decision has been universally (and accurately) described as a big win for Veoh, and a worrisome sign for Viacom and the other plaintiffs in the similar suit pending in New York against YouTube. I wanted to dig in a bit deeper and identify some of what I think are the most significant, and troubling, parts of Judge Matz's decision.

The death of "red flag" infringement
Section 512(c) of the DMCA identifies two triggers for the obligation of the host to remove the subject material (if it wants to maintain the safe harbor). First is actual knowledge of infringement (which can be obtained through receipt of a facially valid takedown notice pursuant to Section 512(c)(3)). Second is where the host becomes "aware of facts or circumstances from which infringing activity is apparent." Id. § 512(c)(1)(A)(ii). This latter situation is known as "red flag" infringement; the idea is that the host can't claim the safe harbor if red flags are being waved in its face, suggesting the obvious presence of infringing activity. The Ninth Circuit gutted the red flag doctrine in Perfect 10 v. CC Bill, specifically in this thoroughly unconvincing paragraph:
Perfect 10 alleges that CCBill and CWIE were aware of a number of "red flags" that signaled apparent infringement. Because CWIE and CCBill provided services to "illegal.net" and "stolencelebritypics.com," Perfect 10 argues that they must have been aware of apparent infringing activity. We disagree. When a website traffics in pictures that are titillating by nature, describing photographs as "illegal" or "stolen" may be an attempt to increase their salacious appeal, rather than an admission that the photographs are actually illegal or stolen. We do not place the burden of determining whether photographs are actually illegal on a service provider.
In other words, under Ninth Circuit precedent (which bound Judge Matz), having material identified by its poster as "illegal" and "stolen" is not a red flag that infringing activity is taking place. One is left to wonder whether the panel would have ruled the same way had actual red flags been waved in the defendants' faces.

Judge Matz's decision, which cited the "high bar" for red flag infringement placed by CCBill, further renders Section 512(c)(1)(A)(ii) a dead letter. He rejected UMG's argument that Veoh had red flag knowledge "because its founders, employees, and investors knew that widespread infringement was occurring on the Veoh system," and because of several other alleged "red flags," including Veoh's knowledge that music is protected by copyright, and its tagging of videos as "music videos." I'm unaware of a single case from any jurisdiction where a court has actually relied on the "red flag" portion of the statute to conclude that a site is not entitled to the Section 512(c) safe harbor. Courts, including this one, simply read it so narrowly that, for all intents and purposes, it might as well not even exist.

"Right and ability to control"
A host loses the safe harbor where it "receive[s] 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." 17 USC § 512(c)(1)(B). Judge Matz gave a very narrow reading to "right and ability to control" -- one narrower than the standard in the 9th Circuit's Napster decision and the "right and ability to control" standard under the common law vicarious liability doctrine. But the 9th Circuit in CC Bill said the "direct financial benefit" in the same clause does get the same definition as in the common law. I think this part of the ruling is fairly vulnerable on appeal, though it may not be enough for the whole thing to get overturned. (I love the way Prof. Eric Goldman put it: "This dichotomous language parsing seems particularly unstable." That's a polite, academic way of saying that Judge Matz's ruling on this point is simply inconsistent with CC Bill and Napster.)

What about inducement?
Judge Matz's opinion never explains how a site can induce users to infringe (which UMG alleged) and yet still be protected by the DMCA safe harbors. It seems incoherent to me to say that a site can take steps to actively encourage users to infringe (a rough description of the inducement doctrine), and then still be able to claim the safe harbor (which, broadly speaking, covers only those sites that act in good faith to combat infringement). Can it really be the case that a hypothetical UGC site that advertises "Upload primetime TV, Hollywood movies, and top 40 hits here!" really claim the safe harbor as long as it takes down infringing material promptly upon receipt of takedown notices? As absurd as it sounds, that seems to be the logic of Judge Matz's decision.

Can a takedown notice include a mere "representative list" of infringements?
Among the elements that must be included in a takedown notice under Section 512(c)(3)(A) is the following:
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
§ 512(c)(3)(A)(ii) (emphasis added). This clause suggests that, at least in some circumstances, a DMCA notice need not list every single instance of infringement; a "representative list" is enough to trigger takedown obligations (in order to stay within the safe harbor). In other words, a site would need to take down not just the works specifically identified, but also those within a category of which the copyright owner provided a representative list. UMG (through its agent the RIAA) apparently provided lists of artists whose recordings it owns, with the implication that Veoh had to search for videos containing those artists' songs. But the court rejected UMG's argument, holding that a list of artist names doesn't suffice.

I'm not aware of any case where a court has actually held that the provision of a "representative list" of infringed works places the onus on the site to take down works not specifically referenced -- even though that appears to be the import of the statute. Judge Matz's decision does not provide much clarity as to when such a "representative list" will suffice.

Again, this was undoubtedly a big win for Veoh. But does it necessarily mean a loss for Viacom and the other plaintiffs in the YouTube suits? Not at all. This is a district court opinion that binds no one except UMG and Veoh; Judge Stanton in New York is perfectly free to ignore it. And the facts in the YouTube litigation may be different; the fruits of discovery have not yet been made public, so no one except the parties and their attorneys know for sure.

Thursday, September 17, 2009

New IP Colloquium podcast takes on derivative works, fair use, and the 'Harry Potter Lexicon'

UCLA Law School professor Doug Lichtman has posted a new edition of his IP Colloquium series of podcasts, this one taking on the scope of the derivative work right in 17 U.S.C. § 106(2) and its interaction with the fair use doctrine. The jumping-off point for the discussion is the lawsuit by Warner Bros. and J.K. Rowling against the publisher of the "Harry Potter Lexicon," a reference book about the fictional world created by Rowling found to be infringing by a New York federal court.

The featured guests are Warner Bros. SVP Jeremy Williams, and Anthony Falzone, executive director of Stanford Law School's Fair Use Project. Jeremy, one of the most thoughtful studio lawyers I know, is about as far from the caricature of the "Hollywood attorney" portrayed in the copyleft blogosphere as one could imagine. His discussion of the line Warner draws between noncommercial (though probably infringing) fan sites, which it tolerates, and the commercial infringers whom it targets, should be required listening for those who claim, falsely, that the studios simply "sue 'em all." (And from what I have observed, Warner's practices are fairly consistent with those at other studios.)

CLE credit is available in California, New York, Texas, Illinois, Tennessee, and Washington, as well as other reciprocating states.

Monday, September 14, 2009

Tenenbaum wants to file opposition to motion for entry of judgment -- 10 days after judgment is entered

Leave it to the Joel Tenenbaum defense to turn a routine request for an extension into a trip to bizarro-land, one that may redound to its own detriment.

Here's what I mean: On September 1, the record label plaintiffs, having won a jury verdict in their copyright suit, moved for entry of judgment pursuant to FRCP 58(d). The labels requested a monetary judgment in the amount of $675,000, the amount awarded by the Boston jury, and an injunction against further infringement by Tenenbaum.

Today, Tenenbaum counsel Charles Nesson filed a motion seeking an extension of time to oppose what he termed "Plaintiffs' motion for injunction," citing work on a separate brief and a trip to Europe. But instead of the normal practice of asking for, say, an extra two weeks, Nesson "request[ed] an extension of time in which to respond to the Plaintiffs' motion for injunction until ten days after the entry of judgment." (my emphasis). This makes no sense. Plaintiffs moved for entry of judgment (including the injunction). Nesson is now saying he'd like to file his opposition to the motion 10 days after Judge Gertner does what the plaintiffs have asked her to do. To which I can only say: Huh?
Defendant's Motion for Extension of time re Entry of Judgment
UPDATE: Judge Gertner did Nesson and Tenenbaum a favor, construing the motion for extension in a way such that it actually makes sense (rather than as it was actually written). She gave him until Oct. 5 to file his opposition:
Judge Nancy Gertner: Electronic ORDER entered granting [940] Motion for Extension of Time to 10 days after judgment to Respond to Plaintiffs' request for injunction by Joel Tenenbaum. "The Court construes counsel's motion as a motion for extension of time to respond to plaintiffs' motion for entry of judgment -- a judgment that will include any injunction that the Court decides to issue. The Court orders the defendant to file his objection to plaintiffs' motion for entry of judgment by October 5, 2009." (Gaudet, Jennifer)

Court grants summary judgment for Veoh in Universal Music Group copyright suit; says web video site protected by DMCA safe harbor

In a big win for web hosts, a federal court in Los Angeles has granted summary to Veoh in a copyright suit brought by several Universal Music Group entities, ruling that the web video host is protected by the safe harbor in Section 512(c) of the DMCA, and thus not liable for infringing uploads by its users.
UMG v. Veoh summary judgment order
From my quick read of the opinion, it appears to be a total victory for Veoh, which won a similar suit in 2008 brought by an adult film producer called Io Group. While this district court opinion does not bind any other courts, it will surely be examined closely by the litigants and Judge Stanton in the massive Viacom v. YouTube suit pending in New York.

More later after I've had a chance to digest the opinion.

UPDATE: Here's UMG's official statement in response to the ruling:
The ruling today is wrong because it runs counter to established precedent and legislative intent, and to the express language of the DMCA. Because of this and our commitment to protecting the rights of our artists and songwriters who deserve to be compensated for the use of their music, we will appeal this ruling immediately.

The balance between copyright holders and technology that Congress sought in enacting the DMCA has been upended by this decision.

My debate with Bill Patry continues

Just a reminder that my friendly debate with Bill Patry continues at his blog. Recent installments include back-and-forth on such topics of Fairey v. AP, the copyright status of a hypothetical unauthorized Star Wars sequel, and whether it was the Jews or the Greeks who popularized the habit of answering a question with another question (wherein we pit Barney Frank against Socrates).

Monday, September 7, 2009

Roxanne Shanté set to appear on BET Tuesday; a few suggested questions for her interviewer

Roxanne Shanté, whose story of getting Warner Music to pay for her education, including a Ph.D. from Cornell, was debunked in Slate last week, is scheduled to appear on the BET program "106 & Park" Tuesday at 6:00 p.m. E.D.T. and P.D.T. My August 28 interviews with Shanté were brief (less than 30 minutes total), and there are many questions I did not have the chance to ask. Here are a few I would ask Shanté if I had the chance to interview her again. BET, these are yours for the asking:
  • Ms. Shanté, you previously claimed to have earned a Ph.D. in psychology from Cornell. Yet you told Slate that you did not earn a Ph.D., but instead earned an M.A. Why did you falsely claim to have earned a Ph.D.?
  • According to Cornell, you did not attend the university at all, let alone earn a degree. Do you have any proof that you attended and earned an M.A.? A copy of your diploma? A copy of your masters' thesis? Who were your professors? Any faculty members or fellow graduate students who would be willing to talk about your alleged attendance there? What years do you contend you attended and earned a degree?
  • The web site for Cornell's psychology program says that it "does not have an M.A. program." How do you explain this, given your claim that you earned an M.A. there?
  • You told Slate that you graduated from Marymount Manhattan College in 1995. However, according to Marymount Manhattan records, Lolita S. Gooden (your real name) attended "02/06/1995 to 05/23/1995" but left before ever earning a degree. (And Marymount Manhattan has no record of "Roxanne Shanté" ever attending.) A spokesman for the college confirmed to Slate, "She was only here for the three months in 1995. She did not graduate from Marymount Manhattan." Do you still maintain that you graduated from Marymount Manhattan?
  • If you still maintain that you graduated from Marymount Manhattan, do you have any proof of that? A diploma, a transcript, or any other documents? Any faculty members, administrators, or classmates who can confirm your version of events?
  • You gave Slate several explanations for the alleged failure of Marymount Manhattan records to accurately note your attendance and graduation, including a "Domestic Violence situation," use of an "alias," and a "computer error" stemming from "a mistake on an application [where you] put [your] old name." What other name or names did you use while attending Marymount Manhattan?
  • Did you attend any colleges or universities other than Marymount Manhattan and Cornell?
  • Numerous press accounts, as well as your speakers bureau's page advertising your services, describe you as a psychologist. Are you, in fact, a psychologist? Are you licensed to practice psychology (or any related field) in any jurisdiction? Do you see patients/clients for a fee? What is the address of your office?
  • You say that you had a recording contract with Warner Music. Do you have a copy of that contract? Who were the Warner employees you dealt with?
  • Did Warner Music (or any of its subsidiary labels) ever release any albums or singles by you? Which ones?
  • In an interview for a 2004 documentary, you speak of receiving letters from Warner, inquiring about the progress of your education. Do you have copies of these letters?
  • Did Warner Music ever pay you an advance or royalties? Do you have any record of such?
  • What were the circumstances that led to the August 23 New York Daily News article? Do you know why the Daily News did the article at this time? Did you have any previous dealings with Walter Dawkins, the freelancer who wrote the article?
  • Do you believe there is anything inaccurate in the Daily News article? How do you feel about the Daily News running an extensive correction that disputed many of your claims?
  • You were quoted in the Daily News as saying, "Everybody was cheating with the contracts, stealing and telling lies." Who is the "everybody" that you were referring to? If any of your record labels were cheating you, did you ever take legal action? If not, why not?
  • Lastly, do you have any documents at all to support your claims that: 1) you attended and received a degree from Cornell; 2) you graduated and received a degree from Marymount Manhattan College; 3) you had a contract with Warner Music that obligated Warner to pay for your education; and 4) you are a psychologist?
UPDATE: I TiVo'd the show and scanned through the entire two hours, which happened to be a special on the importance of education. No sign of Shanté.

Saturday, September 5, 2009

Roxanne Shanté speaking about her 'Ph.D.'

The New York Daily News' August 23 story "Rapper behind 'Roxanne's Revenge' gets Warner Music to pay for Ph.D." was not the first place Roxanne Shanté claimed to have earned a doctorate from Cornell. Check out this short clip, which I believe is from the 2004 documentary Beef II, in which Shanté tells her story of signing with Warner Music and then getting Warner to pay for her Ph.D. from "Cornell Medical." "I socked it to them [Warner] for over $175,000 worth of education," Shanté says.

As you watch this, keep in mind that Shanté admitted to me in an August 28 interview that she did not earn a Ph.D. from Cornell, or anywhere else. Also, keep in mind that Warner says that neither it nor any of its subsidiary labels ever had a contract with Shanté, let alone one obligating the label to pay for her education. Also notable is that the "over $175,000" Shanté mentions in this clip became "$217,000" in the Daily News article (which the Daily News has now essentially disavowed).

Lastly, note that Shanté says in the video that she got her Ph.D. from "Cornell Medical." However, if one were to pursue a Ph.D. in psychology at Cornell, one would do so through the Department of Psychology, not the medical school. Shanté told me that she got her M.A. in psychology from Cornell. But Cornell told me (and others) that Shanté never attended or earned a degree.

Friday, September 4, 2009

Daily News issues stronger Roxanne Shanté correction in paper version

Someone who got today's paper version of the New York Daily News passed along a copy of the correction of its now-debunked story on Roxanne Shanté -- and it turns out the correction on paper was a bit stronger than the one the Daily News ran online.

For example, the web correction merely states, "there have been recent media reports that there never was an education clause in Shante's recording contract," without commenting one way or the other whether such "media reports" were true. The paper correction, however, says that Shanté's story of a clause in a contract with Warner Music Group obligating the company to pay for her education for life "has been called into serious doubt in recent media reports," adding that "a former lawyer for [Shanté's] label says he is 'confident' its contract contained no education clause." Just to reiterate: Warner told me on the record that it never had any contract with Shanté, let alone one obligating WMG to pay for her education.

Thursday, September 3, 2009

NY Daily News issues correction to debunked Roxanne Shanté article

The New York Daily News has appended the following correction to its now-debunked story on rapper Roxanne Shanté:

Correction: It has come to the attention of the Daily News that a number of statements in this article written for the Daily News by a freelance reporter are, or may be, false. Cornell University has told us that Shante did not receive any degree from it under either her birth or stage name. We have confirmed that prior to the article, at least four publications on Cornell's own website reported that Shante had earned a Ph.D. from the university. Those references have now been removed. And in response to an inquiry today, Marymount College stated that Shante attended there for less than one semester.

Numerous e-mail and telephone inquiries by the freelance reporter to Marymount during the preparation of the article to confirm Shante's account were not responded to. Finally, there have been recent media reports that there never was an education clause in Shante's recording contract. When the reporter contacted Warner Brothers Records about the contract before the article, its only response was that it was having difficulty finding someone within the company who could "talk eloquently" about it.

Wednesday, September 2, 2009

My Slate piece: 'Roxanne's Nonexistent Revenge'

When I read this New York Daily News piece about 80s rapper Roxanne Shanté supposedly getting Warner Music to pay for her education for life (including a Ph.D. from Cornell), I knew something just didn't smell right. I've read enough entertainment industry contracts to know that companies simply don't enter into contracts like that.

So I started digging. Little did I realize what I would find:
  • According to Warner, neither it nor any of its subsidiary record labels ever had a contract with Shanté, and it was not obligated to pay for her education. Indeed, there's no evidence that it ever did.
  • Shanté—real name Lolita Shanté Gooden—doesn't have a Ph.D. from Cornell or anywhere else. Indeed, she admitted that to me in an interview. And Cornell has no record of Gooden (or "Shanté") ever attending or receiving a degree.
  • According to Marymount Manhattan College records, Shanté enrolled there but dropped out less than four months later without ever earning a degree.
  • New York state records indicate that no one named Lolita Gooden or Roxanne Shanté is licensed to practice psychology or any related field.
Read my piece in Slate for the whole story.

UPDATE: Shanté told the following to Lemondrop.com:
I'm just gonna let it go...What he's trying to do is trying to get himself known, to get the popular sites to read after him. This is not a $5 billion Ponzi scheme. What would make someone go so hard and heavy at that?
In other words, she does not dispute anything in the Slate piece.

Tuesday, September 1, 2009

Record labels move for entry of judgment in Joel Tenenbaum case; cite Pirate Bay promotion

The plaintiffs in the Joel Tenenbaum case have moved for entry of judgment in their favor, and have asked the court to permanently enjoin Tenenbaum from further infringing their copyrights. The record labels, whom a Boston jury awarded $675,000 for downloading and "sharing" 30 of their songs, cite Tenenbaum's long history of using peer-to-peer software to obtain music without paying for it, his unrepentant attitude since the July 31 verdict, and his team's promotion of a Pirate Bay collection of 30 songs at issue, available for easy download:
In short, despite the verdict and a clear finding of willful copyright infringement by Defendant, he continues to promote, indeed advertise, illegal online file-sharing of Plaintiffs’ copyrighted sound recordings—the very sound recordings for which a jury found him liable for willful copyright infringement. As such, a broad injunction enjoining Defendant from engaging in continued online copyright infringement, or acting in concert with others in committing copyright infringement, is necessary.
The entry of judgment will start the clock ticking toward the filing of post-trial motions (including a constitutional attack on the size of the verdict), as well as a probable appeal.
Plaintiffs' Motion for Entry of Judgment