Friday, April 30, 2010

Can a candidate post an entire news story to YouTube?

The reelection campaign of Senate Majority Leader Harry Reid (D-NV) has posted to its official YouTube channel an entire local news story reporting on his GOP opponent Sue Lowden's "chicken for checkups" flap:

The video, which lasts 3 minutes, 15 seconds, is simply an entire news story from KTVN, the CBS affiliate in Reno; the the campaign hasn't added anything or altered the video in any way. The purpose of posting the video is crystal clear: to keep Lowden's gaffe in the news, in the hopes it sinks her campaign. I think any fair use argument would be weak. (I have no idea whether KTVN objects to this use.)

The point of this post isn't to single out Reid. I'm sure many other campaigns, of both parties, are engaging in similar practices. My point is simply that many campaigns and political observers are likely committing copyright infringement in their web video tactics, and there are bound to be numerous DMCA takedown imbroglios -- and perhaps even a few copyright lawsuits -- over the course of the cycle. Some of these takedowns will be legitimate; I'm sure others won't. Fair use should be at its height in the course of a political campaign. I would suggest campaigns familiarize themselves with at least the basics of copyright before they start letting staffers post video to the web. And I'd urge news organizations to post clear guidelines as to what they consider acceptable uses of their material. There are endlessly fascinating fair use and First Amendment arguments here, but it's better for both sides to have a good sense of the rules of the road, so that they can concentrate, respectively, on campaigning or reporting, rather than litigating.

Thursday, April 29, 2010

Second circuit approves subpoenas in P2P cases; finds 'no merit' in attacks on process

In a big win for the record labels, the Second Circuit today rejected a challenge to the subpoena process by which they have linked thousands of IP addresses to the names of alleged infringers. Ruling in a case called Arista Records LLC v. Doe 3, the court of appeals held that the labels' complaint -- which identified the IP addresses of the alleged infringers, the time of the alleged infringement, as well as the songs they were "sharing"-- contained allegations of sufficient specificity to overcome any of the subpoena target's purported privacy interests. And it brushed aside the accused infringer's argument that the First Amendment's protection for anonymous speech somehow gave him or her a license to infringe:
[T]o the extent that anonymity is used to mask copyright infringement or to facilitate infringement by other persons, it is unprotected by the First Amendment.
Second Circuit Opinion in Arista Records LLC v. Doe 3

Here is the brief of the defendant/appellant, and that of the labels (briefs via Recording Industry vs. The People's Ray Beckerman, who has likened the subpoena procedure blessed today by the Second Circuit to "Nazi Germany").

h/t to BNA's Thomas O'Toole.

UMG files Ninth Circuit brief in Veoh case

User-generated web video site Veoh has filed for bankruptcy, but its copyright litigation with Universal Music Group lives on. Last September, Judge Howard Matz granted Veoh's motion for summary judgment, finding that the site qualified for the safe harbor found at Section 512(c) of the DMCA. And now, UMG has filed its brief in the Ninth Circuit, arguing that Matz got just about everything wrong. From UMG's summary of argument:
Properly construed, the DMCA provides no protection for Veoh for several reasons. First, Veoh’s copyright infringement liability is not by reason of the “storage” of material at the direction of a user but instead arises from Veoh’s further and separate acts of reproducing, displaying, publicly performing, and distributing via downloads the material that is uploaded by its users. The District Court erred in holding to the contrary when it denied UMG’s motion for partial summary judgment.

Second, even assuming Veoh’s activities meet the threshold qualification for protection under Section 512(c), the District Court erred in granting Veoh’s motion for summary judgment that it satisfied the remaining elements of the “safe harbor.” Specifically, the District Court erred when it held that there were no genuine issues of fact that Veoh lacked actual knowledge of the infringement on its service and awareness of any facts and circumstances from which infringing activity was apparent. Further, the court below improperly found no genuine issues of fact existed as to whether Veoh obtained direct financial benefits from the infringement on its service when it had the right and ability to control such activity, including through the display of paid advertising driven by infringing content.

The District Court’s summary judgment rulings turn copyright law on its head in the context of the internet. If they are not reversed, activities that clearly give rise to liability in any other context would be permitted on the internet. The District Court’s opinion absolves Veoh of responsibility for conduct as, or arguably more, egregious than that which led to liability for prior services such as Napster, Grokster, or Kazaa. Napster, Grokster, and Kazaa offered indices that helped their users find infringing content and obtain it from other users. But they never stored the infringing files themselves nor directly engaged in the distribution of infringing content, as Veoh does.

Moreover, the District Court’s opinion upends the careful balance of interests between service providers and copyright holders that Congress sought to establish in the DMCA. Under the law as construed by the District Court, it is the responsibility of every copyright holder to constantly monitor and notify Veoh and all of the other internet sites that massively infringe copyrights and profit from such infringement – otherwise these sites can display infringing material with abandon. In the wake of the District Court’s opinion, businesses like Veoh will rationally eschew licenses from content companies and avoid implementing effective measures on their websites that can stop or limit infringement.
Corporate Counsel has additional detail on UMG's brief. And here is my earlier take on the District Court's ruling.

Wednesday, April 28, 2010

IP Czar posts public comments; Public Knowledge inspires copycats

Back in February, White House IP Czar Victoria Espinel solicited comments from the public about two topics: 1) "the costs to the U.S. economy resulting from intellectual property violations, and the threats to public health and safety created by infringement"; and 2) "recommendations from the public regarding the objectives and content of the Joint Strategic Plan and other specific recommendations for improving the Government’s intellectual property enforcement efforts."

The public -- or about 1,700 members of it -- has now spoken. And Espinel's office has now posted to the web what they had to say. I've only clicked through to a small percentage of the comments. Many written by individual artists and creators calling for strong copyright protection note that they were informed of the request for comment by the Copyright Alliance. I also came across a ton with identical language apparently copied and pasted from Public Knowledge's web site. ("Remember to add your name at the end of the comments, below the 'Sincerely,'" PK helpfully reminded visitors.) I realize PK gave all these people permission to do what they did, but when you're discussing copyright, wouldn't you think it important to be just a little bit creative?

Porn Purveyors Post Piracy PSAs

The porn industry has a serious piracy problem. And its trade association is doing something about it. The Free Speech Coalition has launched an "Anti-Piracy Action Program," which includes use of automated content ID technology from Vobile. And it has posted to YouTube two public service announcements featuring Ron Jeremy and other porn stars speaking about the harm piracy does to their business -- ads not too different from the MPAA spots that had grips, set painters, and other below-the-line workers speaking about the threat to their jobs from illegal downloads. Enjoy:

Postcast on Viacom v. YouTube case

A few weeks ago I participated in a podcast with Prof. Andrew Beckerman-Rodau of Suffolk University Law School about the Viacom v. YouTube copyright case. Here it is, available (for free) via iTunes. Lessons: podcasting, unlike blogging, doesn't allow you to go back and triple-check everything before hitting "publish" (though, thankfully, I don't think I made any noticeable errors). And I say "sort of" too much.

Tuesday, April 27, 2010

NY Times: 'In Shanghai, Hiding Bootlegs Before the World Visits'

Interesting story in the NY Times about how shops purveying pirated DVDs in Shanghai have been ordered by authorities to hide their contraband in advance of the World Expo:
The latest mystery in Shanghai, complete with sliding bookshelves, secret passageways and contraband goods, is this: Why are all the popular DVDs and CDs missing from this city’s shops?

But it’s a mystery easily solved. In China, embarrassments are usually hidden from sight when the world comes visiting, and that is what has happened to a large supply of bootleg DVDs and CDs as Shanghai prepares for the World Expo, which is expected to attract 70 million visitors.

A few weeks ago, government inspectors fanned out across the city and ordered shops selling pirated music and movies to stash away their illegal goods during the expo, a six-month extravaganza that opens May 1.

But shop owners found a novel way to comply — they simply chopped their stores in half.

In a remarkable display of uniformity, nearly every DVD shop in central Shanghai has built a partition that divides the store into two sections: one that sells legal DVDs (often films no one is interested in buying), and a hidden one that sells the illegal titles that everyone wants — Hollywood blockbusters like "Avatar" (for a dollar), Tim Burton’s “Alice in Wonderland” and even Lady Gaga’s latest CD "The Fame."

I guess the fact that China now considers rampant, out-in-the-open piracy an "embarrassment" is a sign of progress...

Reuters: 'The Obama aims to change Shanghai's clubbing scene'

I have no idea whether China even recognizes the concept of right of publicity. But, boys and girls, I strongly recommend that you do not try this at home:

The U.S. president has yet again unofficially lent his name to a place of entertainment, this time The Obama Club, one of Shanghai's largest entertainment venues which aims to revolutionize the city's thriving clubbing scene.

Designed by Las Vegas-based club and resort designers Cagley and Tanner, who are behind the Bellagio's Salon Prive, The Obama Club is a massive 6,000 square meters (64,580 sq ft).

It comes complete with pole dancers, hostesses as well as state-of-the-art audio and video systems in a city was once dubbed the "Paris of the East" for its glamorous lifestyle, but also the "Whore of the Orient" for it decadent ways.

And lest you think that the club's use of "Obama" was just a coincidental use of a Chinese sound-alike word, the owner helpfully dispels that notion:

"We had thought of all kinds of names but then, by coincidence the radio was on and we heard some news about Obama. So we thought this name was quite good. We just felt it was easy to say and was controversial enough," Dragon Chiang, vice chairman of Shanghai Yahe Investment and Management Co. Ltd, one of the owners, told Reuters.

"Because Obama mentioned 'change', we also hoped that this nightclub, a pinnacle of culture and entertainment, can be an instrument of change," Chiang added.

The popular U.S. president's name has been used as a drawcard by clubs, pubs and restaurants in many Asian cities.

Update: Now with video!

Saturday, April 24, 2010

Henley, DeVore file dueling briefs in copyright battle; are campaign videos fair use 'parodies' or infringing 'satires'?

Both sides in Don Henley's lawsuit against California US Senate candidate Chuck DeVore (R) over campaign "parody" videos that used Henley's tunes set to lyrics mocking Sen. Barbara Boxer (D) have now filed cross-motions for summary judgment, teeing up a case that will likely clarify the rules for political uses of third-party material.

The motions focus largely on one issue: whether the videos, which use the compositions "The Boys of Summer" and "All She Wants to do is Dance," are indeed "parodies," and thus likely fair uses, or, rather, unprivileged "satires." That's a dichotomy endorsed by the Supreme Court in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), which distinguished the two concepts as follows:
For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works. See, e. g., Fisher v. Dees, supra, at 437; MCA, Inc. v. Wilson, 677 F. 2d 180, 185 (CA2 1981). If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.
(Footnotes omitted.) Or, put simply: a parody comments on the work itself; a satire uses the work to comment on something else. (It's a distinction the journalists covering the "Downfall" controversy should recognize before they automatically label those videos "parodies." The vast majority aren't. Much of the coverage has been really terrible, simply labeling them all parodies without any nod to the actual legal definition.)

For Henley, this is a simple case: DeVore's videos do not comment on Henley's songs. Rather, they use Henley's songs to mock Boxer:
Defendants' assertion that their Internet videos, which feature full-length renditions of Plaintiffs' songs targeting President Barack Obama and Senator Barbara Boxer for the purpose of promoting DeVore's senatorial ambitions, are fair use "parodies" of Plaintiffs songs is an excuse manufactured after the fact. Defendants did not select Plaintiffs' popular musical compositions because they sought to mock, criticize, or comment on them. Rather, defendants took Plaintiffs' songs as instantly recognizable vehicles to broadcast their messages, which have no relation to Plaintiffs or their artistic works.
And Henley's brief cites evidence that DeVore and his campaign used Henley's songs, and fomented this lawsuit, largely to gain free media attention and raise money as he faced two better-funded GOP primary opponents in Carly Fiorina and Tom Campbell. Notably, Henley hired a total of four experts to bolster his claims: an English professor, a musicologist, a licensing consultant, and a survey expert. No one can accuse him of waging this lawsuit on the cheap.

DeVore's brief has a more difficult task: convincing the court that the videos can fairly be characterized as parodies:
Plaintiffs contend that Defendants' works are not parodic because they attack Barack Obama, Barbara Boxer, Al Gore, and others. They do, of course. But under Campbell, parodies are not limited only to those works that target only the original work or author. Instead, the question is whether the work at issue "is one that, at least in part, comments on that [original] author's works. Id. at 580."
DeVore goes on to argue that his videos do indeed target Henley, who has long been identified with liberal and Democratic causes, and indeed asserts that the campaign chose to use Henley's songs for precisely that reason. DeVore also argues that the campaign's uses are fair even if they are more appropriately characterized as satires, citing Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006), in which the Second Circuit found fair use in artist Jeff Koons' use of a photograph in a larger work.

DeVore's brief is indeed effective in dispelling the common oversimplification that "If it's parody, it's fair use; if it's satire, it's not." As the Supreme Court itself stated in footnote 14 of Campbell, it's not quite that simple:
A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work tocome within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody's critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required.
That said, under current Ninth Circuit law, I still think Henley is more likely to prevail here. DeVore's videos target Henley only in the loosest sense, and his brief's arguments that they are a comment on the specific lyrics of "The Boys of Summer" and "All She Wants to do is Dance" sound dangerously close to the post hoc rationalizations dismissed as "pure shtick" and "completely unconvincing" by the Ninth Circuit in Dr. Seuss Enters. v. Penguin Books USA, Inc., 109 F.3d 1394 (1997).

As I've said before, litigation -- and more, commonly, DMCA takedown notices to YouTube and ISPs -- involving campaign uses of others' copyrighted material is going to become increasingly common, given the cheap and easy ability of both campaigns themselves and interested third parties to create web videos that incorporate music, movies, and TV footage (including news broadcasts). The ruling in this case will likely help set the rules of the road for what campaigns and their supporters can and cannot do.

Opposition briefs are due by May 3, 2010, and replies fourteen days later. A hearing is set before Judge James Selna in Santa Ana June 1. Everyone involved in campaign media should be watching.

Tuesday, April 13, 2010

District of Massachusetts may amend local rule to permit courtroom broadcasts

Last April, the First Circuit barred the live webcast of proceedings in the major record labels' copyright case against Joel Tenenbaum. The Court of Appeals' decision rested not on the wisdom of courtroom broadcasts, but on its interpretation of District of Massachusetts Local Rule 83.3, which addresses "recording, or mak[ing] any broadcast" from a courtroom. While he concurred in the decision overturning a previous order by Judge Nancy Gertner permitting the webcast, Judge Kermit Lipez urged that the rule prohibiting courtroom broadcasts "be reexamined promptly."

The District of Massachusetts has now taken up Judge Lipez's suggestion, and on February 17 distributed for public comment a proposed new Rule 83.3, which would allow any judge to permit "the photographing, recording, or transmission of any civil proceeding" in his or her courtroom, "after notice and an opportunity to interested persons or entities to be heard."
District of Massachusetts proposed new L.R. 83.3

The new proposed Rule 83.3 does include a number of restrictions, including prohibitions on photographing jurors and sidebar conferences, and it grants any witness or party the right to opt out of allowing "photographing, recording, or transmission of that person’s recognizable images." The proposal also provides that judges "may impose such limitations and restrictions on the use or further dissemination of recordings or images." That power (found in proposed Rule 83.3(d)(2)) concerns me; once a recording has been lawfully made, it seems awfully invasive of First Amendment interests to allow a judge to unilaterally decide how that recording may be "use[d]" or "disseminate[d]." Could a court order that a webcast be shown only in its full, unedited state? Or only played on TV, but not on that pesky Internet? Would its orders bind others who might take the raw footage, and edit it for their own purposes?

But overall, the new rule would be a giant step forward, and I hope it is adopted. I don't know the process for the promulgation of new rules in the District of Massachusetts, but the Court is inviting public comment on the proposed amendment; comments are due April 16 (but, unfortunately, seem to be accepted only by snail mail).

Disclosure: I signed on to an amicus brief in the First Circuit in support of the webcast.

Monday, April 12, 2010

Supreme Court Justice Sidney Thomas?

Dear entertainment industry:

How do you feel about the judge who wrote this occupying a seat on the Supreme Court?

Friday, April 9, 2010

Chuck DeVore moves for summary judgment in Don Henley copyright suit; argues fair use of songs in 'parody' videos

Chuck DeVore, the Republican Senate candidate who used Don Henley's songs "The Boys of Summer" and "All She Wants to do is Dance" in campaign videos intended to promote his campaign against Sen. Barbara Boxer (D), has filed a motion for summary judgment in the copyright and Lanham Act suit brought by Henley. DeVore's primary argument is fair use. I'll have analysis later, but, for now, enjoy:
Chuck DeVore Motion for Summary Judgment

Tuesday, April 6, 2010

AP wins discovery rulings in Shepard Fairey case, hires UCLA's Doug Lichtman

The Associated Press has won a significant discovery battle in its case against artist Shepard Fairey, as the judge in the parties' copyright dispute has ordered Fairey to hand over information and documents related to his admitted falsehoods and destruction of evidence. In an order issued yesterday, Judge Alvin Hellerstein said that Fairey must "disclose the identities of those who performed these acts, of those who commanded and supervised these acts, and of those who were told of these acts," referring to "those who did the deletion and destruction, and of those who knew about such deletion and destruction" of evidence in the case. As previously reported, a federal grand jury is investigating Fairey for perjury and evidence tampering following his admission that he lied about which AP photo he used as the basis for his "Obama Hope" poster, and then created and destroyed evidence to cover his tracks. The court also ordered Fairey to hand over financial information, concluding that "Plaintiffs’ excuses for not producing all aspects of their financial records are frivolous." Here's the AP's own story on the discovery ruling.

In other news in the Fairey case, the AP has added some academic heft to its legal team, bringing on UCLA law professor Doug Lichtman as one of its attorneys of record (Dale Cendali of Kirkland & Ellis remains its lead counsel). Lichtman actually moderated a discussion about the Fairey case last year as part of his "IP Colloquium" podcast. Fairey is represented by Harvard Law School's Terry Fisher and a Jones Day team led by Geoffrey Stewart.

Under the court's schedule, summary judgment motions on the main liability issues in the case are due July 26, 2010. Dispositive motions on photographer Mannie Garcia's claim that he -- not the AP -- actually owns the copyright in the photo that Fairey used are due May 3.

Thursday, April 1, 2010

Obama Administration backs Performance Rights Act

The Obama Administration is backing the Performance Rights Act, which would require terrestrial radio stations to pay royalties to record labels when they play the labels' songs. Under current US law, radio stations pay royalties to music publishers and writers, but -- unlike in much of the world -- not to owners of sound recordings. In a letter to PRA backer and Senate Judiciary Commitee Chairman Patrick Leahy (D-VT), Commerce Department General Counsel Cameron Kerry (Sen. John Kerry's (D-MA) brother) said US government support for a public performance right in sound recordings dates back to 1978. The bill has been approved by the House and Senate Judiciary Committees and is awaiting floor action in both bodies.
Commerce Department Letter on Performance Rights Act