Copyrights & Campaigns

A Blogging Hiatus

2011-03-07T09:44:00.000-08:00

When I started this blog in December 2008, I said I wanted to counter the “shocking lack of balance in discussion of copyright and related issues on the Internet.” For almost two and a half years, I’ve tried to do just that. Armed with nothing but free Blogger software and a not-so-free PACER account, I’ve done my best to provide copyright owners’ side of the story on the major anti-piracy cases of the day, while countering the misinformation about copyright that too often dominates the blogosphere. And, thanks to help, tips, and encouragement from countless others who fight in obscurity for creators’ rights – not to mention the antics of Joel Tenenbaum, Jammie Thomas-Rasset, and most of all, Charlie Nesson – it’s been a blast. And hopefully I’ve done a small part to demonstrate why, when the studios, record labels, and music publishers go to court to enforce their rights, they usually win.

So it’s with a sense of accomplishment but some regret that that I’m putting the blog on hiatus for the foreseeable future. On February 28 I started in a new position as Content Protection Counsel at the Motion Picture Association of America, where my primary responsibility will be litigating anti-piracy cases on behalf of the MPAA’s member studios. For reasons that I think most litigators will understand, I’ve concluded that it won’t be possible to continue the blog in my current role; the issues of privilege, confidentiality, and conflicts, even if ultimately surmountable, are simply too dicey to worry about day-to-day. I plan to leave the blog up as long as Blogger will host it; the disclaimer that I’ve posted since the beginning still applies: “This is Ben's personal blog and does not necessarily represent the views of any past, present, or future clients or employers.”

I encourage anyone and everyone who knows and cares about these issues to speak out, blog, comment on other blogs, and do whatever you can consistent with your day job. There is plenty of room out there for thoughtful commentary; I’d particularly recommend readers bookmark Terry Hart’s “Copyhype,” which since last summer has been providing rigorously researched debunking of some of the copyleft’s latest tropes.

Thanks again to everyone who has helped out over the past couple years. I’m still reachable at copyrightsandcampaigns [at] gmail.com.

Court: Merchandising of Shepard Fairey 'Obama Hope' image not fair use; factual issues remain on substantial similarity

2011-02-23T16:28:00.000-08:00

The court in the case involving Shepard Fairey's use of an AP photograph in his famous "Obama Hope" poster has ruled that a company that manufactured and distributed clothing bearing the Obama Hope image under license from one of Fairey's corporate entities did not engage in fair use. The court, however, held that there remains a factual dispute whether the images used by One 3 Two, Inc. on its merchandise were "substantially similar" to the AP photo. Judge Alvin Hellerstein did not explain his reasoning in his brief summary order. Trial on the remaining issues is set for March 21. Here is One 3 Two's opening brief, and the AP's.
Shepard Fairey Summary Judgment Order

The claims between the AP and Fairey and his corporate entities have been dismissed pursuant to settlement.

AP and Shepard Fairey settle case; claims against corporate entities remain

2011-01-12T08:55:00.000-08:00

The Associated Press announced that it has "settled in principle" its copyright case against artist Shepard Fairey over his use of an AP photograph in the iconic "Obama Hope" poster. The announcement of the settlement comes a little more than seven months after the judge in the case stated at a hearing, "sooner or later, The Associated Press is going to win" the case and urged settlement.

According to the AP's announcement:

In settling the lawsuit, the AP and Mr. Fairey have agreed that neither side surrenders its view of the law. Mr. Fairey has agreed that he will not use another AP photo in his work without obtaining a license from the AP. The two sides have also agreed to work together going forward with the image and share the rights to make the posters and merchandise bearing the image and to collaborate on a series of images that Fairey will create based on AP photographs. The parties have agreed to additional financial terms that will remain confidential.

The AP's claims against other Fairey-related entities, however, remain. So do its claims against One 3 Two, Inc., a company that manufactured and distributed clothing bearing the Obama Hope image under license from Obey Giant, one of Fairey's entities. One 3 Two's summary judgment brief argues that it didn't copy protectable elements of the AP's photo but, for procedural reasons, does not address fair use. The AP's brief does argue that Fairey's and One 3 Two's use of its photo was not fair.

Still unknown is the status of the federal grand jury investigation of Fairey for his admitted falsehoods and evidence spoliation regarding which photograph he used as a basis for the poster.

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

2010-12-14T14:35:00.000-08:00

It's less than a mile from Harvard Law School's Berkman Center to the offices of the Harvard Crimson. But it doesn't seem that the Berkman Center's ideas have made that short journey south. From a Crimson editorial that ran Monday:

Recently, the Motion Picture Association of America began sending thousands of letters to colleges and universities across the country, reminding them of their obligation to set up a "written plan to effectively combat the unauthorized distribution of copyright material by users of the institution's network" under the Higher Education Opportunity Act of 2008. Because we believe that intellectual property rights are important and the unauthorized downloading of copyrighted music, movies, and television programs is wrong, we applaud this move and hope that universities abide by the guidelines set down in the HEOA.

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

Read the whole, excellent, thing.

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

2010-12-14T12:55:00.000-08:00

On the Washington Legal Foundation's blog, Brad R. Newberg of Reed Smith LLP has a good summary of the Supreme Court's action (and inaction) on copyright in 2010. Here's the intro:

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

Definitely read the whole thing.

New House Judiciary Chaiman Smith vows to protect IP

2010-12-08T09:15:00.000-08:00

Rep. Lamar Smith (R-TX), currently the ranking Member on the House Judiciary Committee, announced today that he will serve as chairman in the next Congress. And he made clear that he will continue the committee's strong support for intellectual property rights:

As Chairman of the Committee, I will focus on efforts to strengthen national security, protect intellectual property, prevent frivolous lawsuits and keep children safe from Internet sex predators. The Judiciary Committee will support industries that employ millions of Americans by protecting their patents and copyrights.

(h/t TechDailyDose)

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

2010-12-07T19:55:00.000-08:00

Several developments in the case of Jammie Thomas-Rasset following the third jury's award of $1.5 million to the major record labels in their copyright infringement suit:

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

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

2010-11-30T09:12:00.000-08:00

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

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

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

2010-11-29T07:59:00.001-08:00

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

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

CLE event to explore uses of music in political campaigns

2010-11-10T18:20:00.000-08:00

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

The Politics of Fair Use:

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

Date: Wednesday, November 17, 2010

Format: Teleconference and Live Audio Webcast

Duration: 60 minutes

Sponsors:

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

12:30 PM-1:30 PM Eastern	11:30 AM-12:30 PM Central
10:30 AM-11:30 AM Mountain	9:30 AM-10:30 AM Pacific

Program Description

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

Program Faculty

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

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

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

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

CLE Credit

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

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

The following states accept ABA teleconferences for CLE credit:
AL, AK, AR, AZ, CA, CO, FL, GA, IA, ID, IL, KY, LA, ME, MN, MO, MS, MT, NC, ND, NH, NM, NV, NY, OK, OR, RI, SC, TN, TX, UT, VA, VI, VT, WA, WI, WV, WY.

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

Click here to view a map of MCLE states

Third Thomas-Rasset verdict: $1.5 million

2010-11-03T17:24:00.000-07:00

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

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

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

The RIAA said in a statement after the verdict:

We are again thankful to the jury for its service in this matter and that they recognized the severity of the defendant's misconduct. Now with three jury decisions behind us along with a clear affirmation of Ms. Thomas-Rasset’s willful liability, it is our hope that she finally accepts responsibility for her actions.

This is far from the end of the road in this case. Thomas-Rasset is expected to challenge the size of the award again, and the judge has already determined that $54,000 is the maximum acceptable size for an award given the evidence in the case.

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

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

2010-10-29T16:52:00.000-07:00

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

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

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

Nesson seeks to join Thomas-Rasset trial fray

2010-10-29T15:40:00.000-07:00

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

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

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

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

2010-10-27T06:24:00.000-07:00

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

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

October 29, 2010 9:00 AM - 2:00 PM

Law School | Belson Moot Court Room | 2nd Floor

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

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

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

Click to view larger image

Date
Friday, October 29, 2010

Time
9 a.m. - 2 p.m.

Location
School of Law | Belson Moot Court Room | Second Floor

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

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

More Information
Maureen Mulligan
Associate Director of Special Events
(718) 990-1950
mulligam@stjohns.edu

Third Jammie Thomas-Rasset trial: Game on

2010-10-22T09:00:00.001-07:00

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

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

2010-10-20T10:21:00.000-07:00

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

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

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

Labels oppose cert. in 'innocent infringer' case

2010-10-15T16:22:00.000-07:00

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

Here's the intro to the labels' brief:

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

Petitioner’s primary argument for certiorari rests on the false premise that the circuit courts are divided on the legal standard for applying section 402(d). There is, however, no circuit split. The Second Circuit authority upon which Petitioner relies never even considered the application of section 402(d). In addition to the absence of any circuit split, this case provides an ill-suited vehicle for considering the legal standard for applying section 402(d). Petitioner’s argument that a lack of copyright notice on the specific digital recordings she infringed should defeat application of section 402(d) does not square with the plain language of the statute, ignores Petitioner’s admission that she had access to Respondents’ published works carrying the proper copyright notices, and was never raised in the lower courts. For all of these reasons, the Court should deny the Petition.

The Fifth Circuit here and the Seventh Circuit in BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005) came to the the same conclusion on this very point in very similar cases. And the label's brief explains why D.C. Comics, Inc. v. Mini Gift Shop, 912 F.2d 29 (2d Cir. 1990) -- which did not involve sound recordings, the Internet, or indeed 17 U.S.C. Sec. 402(d) -- is not in conflict with Harper and Gonzalez, the defendant's arguments to the contrary notwithstanding.

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

Judge in Thomas-Rasset case may scuttle third trial

2010-10-15T08:42:00.000-07:00

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

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

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

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

Defendant's Motion for Reconsideration

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

2010-10-13T09:16:00.000-07:00

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

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

Here's some background from the Orlando Sentinel.

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

2010-10-07T18:41:00.000-07:00

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

A couple of days ago, Congressman John Kasich put out a commercial that featured a man dressed as a steelworker discussing Governor Ted Strickland’s record. It turns out that the steelworker depicted in the commercial wasn't an actual steelworker, but paid actor Chip Redden.
In response, the Ohio Democratic Party promptly published a YouTube video capitalizing on this, illustrating its point with short clips from Redden's acting career. One of the clips came from a film by Arginate Studios, LLC, which then used the DMCA (Digital Millennium Copyright Act) to send a take down demand to YouTube. YouTube removed the video. Under the DMCA, the political video would be unavailable on YouTube for at least 10 days (a significant portion of the time remaining before the election), though the video remains available on Vimeo.

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

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

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

CDT releases report on campaign uses of copyrighted material

2010-10-06T08:34:00.001-07:00

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

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

2010-10-05T19:47:00.000-07:00

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

Here's the original ad:

And the edited version:

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

2010-09-21T14:15:00.000-07:00

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

The Court's unusual action is a sign of the Court's interest in the case. A recent study indicated that the Court's request for a response significantly increases the chances the Court will ultimately grant review -- which could turn into a major contest for the music industry.

My previous coverage is here.

New paper examines distribution and 'making available'

2010-09-20T08:44:00.001-07:00

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

Here's the entire abstract:

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

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

September 19, 2010

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

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

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

2010-09-16T08:27:00.000-07:00

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

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

The defendant’s conduct in stealing only certain footage from the [Fox] Interview is also false and misleading: Wallace’s tough questions were included, but Blunt’s answers and explanations were not.

The Kansas City Star described the ad as follows:

“You have to show you’re the party of reform,” Wallace says to Blunt in the clip, as it’s replayed on the Carnahan ad. “But some question whether you are the man to do that.”
The screen than flashes examples from Blunt’s political and congressional career, including his insertion of legislation in a Homeland Security bill that would have helped tobacco maker Philip Morris.

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

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

(Updated with additional detail about the ad.)

'Copyhype' joins the blogosphere

2010-09-08T20:30:00.000-07:00

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

Commerce Secretary rails against 'scourge of music piracy'

2010-08-30T21:44:00.000-07:00

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

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

'Cruel Summer' campaign video removed

2010-08-30T20:19:00.000-07:00

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

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

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

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

2010-08-26T17:48:00.001-07:00

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

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

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

2010-08-23T10:49:00.000-07:00

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

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

Update: The AP has released the following statement:

The Associated Press is very pleased that Mannie Garcia has withdrawn from the case with prejudice, meaning that he cannot refile his claim against the AP. The AP has not wavered in its belief that Mr. Garcia was a staff photographer at the time he took the image of then-Sen. Barack Obama, that AP properly employed Mr. Garcia, and that AP is the rightful copyright owner of the photo in question. Further, the AP is pleased that Mr. Garcia voluntarily withdrew without any payment or consideration of any kind -- this was not a settlement.
In a Court hearing on Monday, Judge Alvin Hellerstein indicated that he would sign the stipulation and enter the order. Also in Monday’s hearing, the judge set both a summary judgment schedule and a trial schedule for the case involving Shepard Fairey. The AP is happy to have these dates set. The AP continues to be confident in its position that the use Mr. Fairey made of its photo is not fair use, but one that should have been licensed so as to help ensure the AP's photographers will be able to continue creating new works. The AP looks forward to resolution whether through summary judgment or trial on the merits.

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

2010-08-18T11:40:00.000-07:00

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

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

2010-08-13T17:03:00.000-07:00

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

I don't argue that Rondor (the publisher of the Beach Boys' song) has a particularly strong claim. But before dismissing it as frivolous, consider such cases as:

Life Music, Inc. v. Wonderland Music Co., 241 F. Supp. 653 (S.D.N.Y. 1965) (copying of single word "supercalifragilisticexpialidocious" may constitute infringement)

Heim v. Universal Pictures, 154 F.2d 480 (2d Cir. 1946) ("There may be wrongful copying, though small quantitatively; so if someone were to copy the words, "Euclid alone has looked on Beauty bare," or "Twas brillig and the slithy toves.")

Bridgeport Music, Inc. v. Dimension Films, 410 F. 3d 792 (6th Cir. 2005) (refusing to recognize de minimis defense to copying 2 seconds of sound recording)

Bridgeport Music, Inc. v. UMG Recordings, 585 F.3d 267 (6th Cir. 2009) (upholding jury's rejection of fair use defense in copying of phrase "Bow wow wow, yippie yo, yippie yea")

Third Thomas-Rasset trial moved to Nov. 1

2010-08-09T12:36:00.000-07:00

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

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

2010-08-09T12:03:00.000-07:00

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

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

2010-08-05T08:33:00.000-07:00

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

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

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

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

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

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

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

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

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

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

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

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

2010-08-04T13:22:00.001-07:00

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

Labels file notice of appeal in Tenenbaum case

2010-07-22T10:45:00.000-07:00

The record label plaintiffs have filed their notice of appeal in the Joel Tenenbaum case, challenging Judge Nancy Gertner's ruling reducing the jury's award of $675,000 in statutory damages down to $67,500 on constitutional grounds. It will be interesting to see whether Tenenbaum also appeals on the grounds that the reduced award for the infringement of 30 songs is still unconstitutionally excessive. Update: Tenenbaum has indeed appealed.

Plaintiffs' Notice of Appeal

Court slashes Tenenbaum award by 90% on constitutional grounds

2010-07-09T12:59:00.000-07:00

Judge Nancy Gertner has slashed the jury's award against admitted peer-to-peer user Joel Tenenbaum from $675,000 down to $67,500, taking the apparently unprecedented step of holding an award of copyright statutory damages unconstitutional. Wrote Judge Gertner in her 62-page order:

There is no question that this reduced award is still severe, even harsh. It not only adequately compensates the plaintiffs for the relatively minor harm that Tenenbaum caused them; it sends a strong message that those who exploit peer-to-peer networks to unlawfully download and distribute copyrighted works run the risk of incurring substantial damages awards. Tenenbaum’s behavior, after all, was hardly exemplary. The jury found that he not only violated the law, but did so willfully.

Reducing the jury’s $675,000 award, however, also sends another no less important message: The Due Process Clause does not merely protect large corporations, like BMW and State Farm, from grossly excessive punitive awards. It also protects ordinary people like Joel Tenenbaum.

Judge Gertner's opinion thus differs significantly from that of Judge Michael Davis in the Jammie Thomas-Rasset case, which reduced an award of copyright statutory damages on common law remittitur (i.e., non-constitutional) grounds.

Keep in mind that while the reduced award of $67,500 -- $2,250 multiplied by the 30 songs on which the record labels sought damages -- is certainly better from Tenenbaum's perspective than $675,000, he could have easily settled long ago for $4,000. And he has told the Boston Globe that the lower amount is still "unpayable to me."

I'll have additional analysis once I've had the chance to read the entire opinion.
Order on motion for new trial/remittitur in Joel Tenenbaum case

Kagan wins coveted Luther Campbell endorsement; rapper praises 'my homegirl' for obscenity stance

2010-07-07T13:57:00.000-07:00

Well, this ought to put her over the top. Former 2 Live Crew Member Luther Campbell, who was saved from a possible obscenity prosecution in part with the help of a young Williams & Connolly associate named Elena Kagan, has repaid the favor, endorsing the Supreme Court nominee in a Miami New Times op-ed:

In 1989, Broward County Sheriff Nick Navarro banned the sale of our album, As Nasty as They Wanna Be, and a federal judge backed him. We appealed. The next year, Kagan, who was working at a Washington, D.C. law firm, wrote a brief that argued the album "does not physically excite anyone who hears it, much less arouse a shameful and morbid sexual response." In other words, my homegirl Kagan was saying people could not be aroused by the lyrics "'cause my dick's on bone" or "me so horny, me fuck you long time." She realized these words did not meet the standard of appealing to prurient interests. She did a great job fighting on 2 Live Crew's behalf, which lets you know that Kagan is not easily swayed by public opinion or by politicians with their own hidden agendas.

Campbell, of course, has an undefeated record at the Supreme Court. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

(h/t Above the Law)

Labels and Thomas-Rasset agree: We won't settle!

2010-07-06T11:51:00.000-07:00

The major record labels and Jammie Thomas-Rasset don't agree on much, but they have come together in perfect harmony to tell the court: Hell no, we won't settle. Or can't. Or refuse to. Or, in the words of the joint motion they filed with the court today:

[T]he parties have concluded that a settlement of the present case is not possible. Any further settlement efforts would be futile, wasting the time and resources of the parties and the Special Master.

According to the motion, the parties tried to settle, both on their own and with the assistance of the special master the court appointed in June, to no avail. So it appears there really will be a third trial on October 4, this one addressing only the issue of damages. At last summer's second trial, the jury awarded the labels a total of $1.92 million for illegally downloading and "sharing" 24 songs, but the court later remitted the verdict down to $54,000. The labels opted for the new trial on damages rather than accepting the reduced award.
Joint motion re settlement

Problem with comments

2010-07-06T08:48:00.000-07:00

Please be patient if you have submitted a comment that has not been posted yet. I keep getting error messages when I hit the "publish" link, and the comments do not actually appear on the comment moderation page. Hopefully this is just a temporary glitch with the Blogger software.

Nevada Senate candidate objects to opponent's posting of earlier version of web site

2010-07-05T15:42:00.001-07:00

Talking Points Memo reports on a campaign IP kerfuffle in Nevada, where Senate Majority Leader Harry Reid (D) is fending off a challenge from Sharron Angle (R). The Reid campaign apparently posted a cached copy of an earlier version of Angle's web site, in an effort to show that she had "toned down her right-wing rhetoric" in the current version. A cease-and-desist letter from the Angle campaign's attorney followed.

The TPM story suggests that the Angle campaign was simply complaining about Reid's use of its copyrighted material. If that were so, I would think the copyright claim would be weak; the fair use and First Amendment arguments in favor of allowing a political candidate to post his opponents' campaign material in order to comment on it would be strong. See, e.g., Keep Thomson Governor Committee v. Citizens for Gallen Committee, 457 F. Supp. 957 (D.N.H. 1978) (rejecting copyright claim in campaign context; emphasizing that "The First Amendment affords the broadest protection to such political expression in order to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people.").

But it's clear from the C&D letter that the Angle campaign is not actually making a copyright claim. Rather, they are concerned that the Reid campaign, by posting the former Angle web site, which included a form for supporters to submit their names and email addresses, may have been harvesting those on their own, and misleading Angle supporters who genuinely wanted to submit their names to her campaign -- not Reid's. Indeed, the actual demand in the C&D letter is confined to this point:

[W]e demand that the Reid campaign immediately cease its nefarious actions of requesting and obtaining the names, email addresses, and zip codes under false pretenses from unsuspecting supporters of his opponent, Sharron Angle.

According to TPM, the Reid campaign acquiesced and took down the site. It's one thing to post an opponent's words to comment on or criticize them; I would support the Reid campaign's right to do just that. But it's quite another to trick supporters of one candidate into giving their contact info to the other, and it appears Angle had every right to complain about that aspect of Reid's tactics.

Update: Several people have pointed out to me that the C&D letter includes some broad language about the Reid campaign's use of copyrighted material. That's true, but I think that in context, what Angle is really complaining about is the use of that copyrighted material to mislead her supporters into submitting their contact info to the wrong site.

Court allows copyright suit vs. Scribd.com to proceed

2010-07-03T12:49:00.000-07:00

In a little-noticed case in San Diego, a federal court has declined to dismiss a copyright suit against Scribd.com filed by a financial writer whose books were uploaded to the document-storage site without permission. Scribd had moved to dismiss Larry Williams' entire complaint under Rule 12(b)(6), relying chiefly on the DMCA Section 512(c) safe harbor for "storage at the direction of a user." But, as I predicted, the court held that a ruling on the applicability of the safe harbors was not appropriate at the motion-to-dismiss stage, given the inherently fact-specific nature of the inquiry. Indeed, the major rulings on the scope of the Section 512(c) safe harbor -- Io v. Veoh, UMG v. Veoh, and Viacom v. YouTube -- all came in the context of summary judgment, after extensive discovery regarding the defendants' copyright compliance practices.

The court also made significant rulings about the adequacy of the complaint's allegations regarding direct, contributory, and vicarious infringement claims. The court -- which repeatedly criticized the poor quality of the complaint -- held that Williams did not adequately plead direct infringement under CoStar v. LoopNet's requirement of "volitional conduct"; alleging that the uploader was "friends" with Scribd's CEO didn't cut it. The court did, however, hold that Williams' complaint contained sufficient allegations of contributory and vicarious infringement to survive the 12(b)(6) motion.

So now discovery proceeds, and I'm sure a summary judgment motion will follow. Judge Burns' order contains multiple indications that he is likely to grant it.
Order on Motion to Dismiss in Williams v Scribd

Billboard: Reading the Tea Leaves on Elena Kagan and the Music Industry

2010-07-03T10:51:00.000-07:00

Here's my Billboard column on what Elena Kagan's record may -- or may not -- say about her views on issues important to the music business. A taste:

Supreme Court nominee Elena Kagan endured questioning at the end of June from the U.S. Senate Judiciary Committee about the weightiest legal issues of the day. Abortion. Separation of powers. The president's authority in wartime.

But even though committee chairman Patrick Leahy, D-Vt., is a champion of the recording industry and strong copyright protection for all creators, Kagan managed to avoid a grilling on her views about the proper scope of the Digital Millennium Copyright Act's safe harbors or whether sound recordings properly qualify as works made for hire.

To get a sense of how she would rule on issues of interest to the entertainment industry, we are instead left to scour her record for tea leaves. Let's take a look...

Please go to Billboard and read the whole thing...

Shades of Gray on Viacom v. YouTube opinion: 'Where's the beef?'

2010-07-03T10:28:00.001-07:00

Apparently I'm not alone in my belief that the district court's summary judgment ruling in the Viacom v. YouTube case was "too damn short to do justice to the complex, heavily-litigated issues in the case." Blogs San Francisco copyright attorney Naomi Jane Gray at Shades of Gray:

In sharp contrast to the voluminous materials submitted by the parties in support of their cross-motions for summary judgment in the Viacom v. YouTube litigation, the court’s opinion granting judgment in favor of YouTube is surprisingly lean. Indeed, a third of the 30-page opinion is devoted to verbatim quotes of the statute and legislative history. The opinion represents a resounding victory for YouTube and, by extension, the rest of the user-generated content industry (for the time being, anyway – Viacom, not surprisingly, has indicated that it will appeal the decision). But – leaving the merits of the dispute aside for a moment – it also represents a lost opportunity for a thoughtful contribution to the jurisprudence in this developing area of law.
***
Given the size of the case (the complaint sought $1 billion in damages), the significance of the legal issues, and the need for a well-developed body of jurisprudence to guide the ongoing development of new business models and to create settled expectations among copyright owners and users of content, it would have been nice to see a little closer parsing of the language in the statute and legislative history. Clients, in my experience, are never thrilled to be advised on the tenor of the law – they want to know what the law is, so they can act accordingly.

Go read the whole thing.

Patty Murray campaign pulls video that used Billy Joel song

2010-07-03T09:37:00.000-07:00

The campaign of Sen. Patty Murray (D-WA) has pulled a campaign video from YouTube due to copyright concerns over inclusion of a portion of the Billy Joel song "Only the Good Die Young." According to a report in the Spokane Spokesman-Review, the video was meant to jab Murray's GOP opponent Dino Rossi, who recently referred (in jest, it appears) to those who don't support his campaign as "sinners." The video included the portion of the song in which Joel sings, "I’d rather laugh with the sinners than cry with the saints/The sinners are much more fun." "It did seem to be the perfect song," Murray's spokeswoman told the paper. The campaign took down the video after being contacted by the Spokesman-Review; there's no indication that Joel or his record label complained.

It's impossible to say whether the video at issue was infringing without knowing more, including how much of the song was included. If it was just a few lines, the campaign might have a fairly decent fair use defense. But of course it's hard to blame them for taking the cautious route; their energy should be devoted to winning their race, not litigating interesting copyright issues.

Lastly, for the umpteenth time, is it really that hard for reporters to get the facts of Jackson Browne's 2008 copyright suit correct? The Spokesman-Review wrote, "John McCain’s 2008 presidential campaign was sued by Jackson Browne when it used 'Running on Empty'..." Wrong. The McCain campaign did not "use" the song. As this sworn declaration makes clear, the song was included in a video made by a staffer at the Ohio Republican Party -- not the McCain campaign. And Browne did not sue the McCain campaign -- he sued John McCain in his individual capacity.

Viacom v. YouTube: A disappointing decision, but how important?

2010-06-27T19:29:00.000-07:00

I've now had a chance to re-read and digest last week's summary judgment ruling in Viacom v. YouTube. A few thoughts:

1) A disappointing opinion
Put aside, for a moment, whatever you may think of Judge Stanton's ultimate holding absolving YouTube of copyright infringement. Purely as a matter of judicial crafting and analysis, I found the court's order to be extremely cursory. While I certainly don't equate quality with quantity, this opinion was just too damn short to do justice to the complex, heavily-litigated issues in the case. It was nominally 30 pages, but about 11 of those were just long block quotes from Section 512 of the DMCA and its legislative history. Both parties amassed, and cited, thousands of pieces of evidence. The court was of course under no obligation to discuss them all individually. But it barely mentioned them at all! What about all the evidence of specific -- not just general -- knowledge on YouTube's part of infringing Viacom works on its system? See Viacom Motion at 25 n. 15 (citing Statement of Undisputed Facts Paras. 32, 59, 69, 105, 110, 116-17, 122, 130, 132, 165) (e.g., March 2006 memo from YouTube co-founder Jawed Karim: "As of today episodes and clips of the following well-known shows can still be found: Family Guy, South Park, MTV Cribs, Daily Show, Reno 911, Dave Chapelle. This content is an easy target for critics who claim that copyrighted content is entirely responsible for YouTube's popularity."). Judges have almost complete freedom to craft their opinions as they see fit, but I think the court fell short here by failing to engage the evidence, especially the evidence garnered by the party against whom it granted summary judgment. Judge Stanton issued his opinion barely a month after briefing was completed -- a very quick result. I don't think I've ever said this about a judge before, but I wish he had taken a lot longer.

2) What in the world is "red flag" infringement?
As I noted last September when a court in the Central District of California granted summary judgment to Veoh in the copyright suit brought by UMG, 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..., 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 Stanton, incorrectly in my view, adopted CCBill's holding without much analysis, further rendering red flag infringement a dead letter. The statute (and legistlative history) clearly indicate that some form of knowledge beyond that imparted via DMCA notices qualifies as knowledge of "facts or circumstances from which infringing activity is apparent," thus triggering a site's takedown obligation (on pain of losing the safe harbor). But after reading Judge Stanton's opinion several times, I simply have no idea what would actually constitute such "red flag" knowledge. And, again, his opinion does not even scratch the surface of the evidence presented by Viacom on this issue, see, e.g, Viacom Br. at 5-24, 50-56, and explain why none of it would raise a red flag for a reasonable service provider in YouTube's position.

3) The interplay between the DMCA safe harbor and inducement
Can a site induce infringement by third parties, and yet still claim safe harbor under Section 512? At least two courts have said no. See Columbia v. Fung at 43 ("inducement liability and the Digital Millennium Copyright Act safe harbors are inherently contradictory. Inducement liability is based on active bad faith conduct aimed at promoting infringement; the statutory safe harbors are based on passive good faith conduct aimed at operating a legitimate internet business."); Arista v. Usenet at 17 ("if Defendants...encouraged or fostered such infringement, they would be ineligible for the DMCA’s safe harbor provisions."). But Judge Stanton appears to have rejected the holding of Fung (from the CD of Cal.) and Usenet (from his court in the SDNY). At page 23 of his order, Judge Stanton appears to be saying that a site that takes down infringing material upon receipt of DMCA notices qualifies for the safe harbor, even if it is inducing that very infringement. For immediately following his discussion of Grokster and inducement, Judge Stanton concludes, "To such a provider [i.e., one that complies with DMCA notices], the DMCA gives a safe harbor, even if otherwise he would be held as a contributory infringer under the general law." (my emphasis).

But that can't be true, at least as so broadly stated. Can a site really run banners saying, "Upload the top 20 movies, TV shows, and songs here! And everyone else: watch and listen!" And then walk away from a copyright suit as long as it complies with DMCA notices regarding those very works whose infringement it induced? Judge Stanton's words certainly suggest so. But I think that's contrary to the statute (Section 512(c) only applies to material on a system "by reason of the storage at the direction of a user," which is not the case when the site induces the infringement), as well as the legislative history and common sense. Perhaps there was sufficiently conflicting evidence on the issue of inducement that Judge Stanton could not make a finding that YouTube induced infringement (as he suggests on page 22), but I don't think it was correct as a matter of law for him to conclude that YouTube was not liable even if it induced infringement. I expect this to be a major issue on appeal.

4) How important is this decision?
No doubt, it puts an end (for now) to a massive potential liability hanging over YouTube's head. And that's important in and of itself. But this decision is probably not as important as everyone appears to have concluded in the initial analysis last week. First, Viacom has already said it's appealing, and I think it's likely that the Second Circuit will at least modify parts of Judge Stanton's rather thin opinion. Second, keep in mind something I wrote just after the first round of briefing in March: Viacom effectively dropped any claim based on YouTube's activities after May 2008, when, according to Viacom, YouTube began filtering for Viacom content without requiring Viacom to license its videos. In other words, Viacom is (relatively) OK with the way YouTube operates now; the worst of the conduct, which provided much of the most damning evidence against YouTube, occurred well before that. As long as YouTube continues to operate its content ID system -- and I have no reason to believe that it won't -- even Viacom has effectively conceded that it's not worth suing over YouTube's current practices (though the Premier League plaintiffs appear to disagree).

And keep in mind that of the six major film/TV studios, and the four major record labels -- none of whom are exactly shy about litigating to protect their copyrights -- Viacom is the only one that actually pulled the litigation trigger against YouTube. The others, due to a combination of private enforcement, business deals, technology, and ownership of their own UGC sites, appear to have reached a form of détente with YouTube. They may not like YouTube, and the fact that it profits from infringement of their works. But for a variety of reasons, each decided not to sue. And I suspect even a victory by Viacom in this case would not have caused them to do so.

Disclosure: As I've previously noted, I work at NBC Universal, which signed on to an amicus brief in this case, though I did not work on it. As always, the views expressed here are my own.

YouTube wins Viacom copyright suit

2010-06-23T13:48:00.000-07:00

Wow -- that was quick. Today Judge Louis Stanton granted summary judgment to YouTube and Google, holding that its activities in hosting and disseminating user-uploaded videos was protected by the safe harbor found at Section 512(c) of the DMCA. More later...

Espinel releases Joint Strategic Plan on IP Enforcement

2010-06-22T09:23:00.000-07:00

White House IP Czar Victoria Espinel has released the 2010 Joint Strategic Plan on Intellectual Property Enforcement, as mandated by Section 301 of the 2008 PRO-IP Act. Here is Espinel's blog post summarizing the Plan. An excerpt:

Now, more than ever, we need to protect the ideas, artistry, and our reputation for quality, provide our businesses with the incentives to make each new product better, reduce crimes related to intellectual property infringement and keep dangerous counterfeits out of our supply chain to protect our citizens. Strong intellectual property enforcement will help us to accomplish that. The Obama Administration has always embraced the free flow of information, online collaboration, and fair use by average citizens, which are also helping to advance our society and economy every day -- this strategy does not target legitimate and legal activity. The Administration is technology-neutral, using both proprietary and open source platforms on the web and all content on WhiteHouse.gov is public domain, making it an active participant in the online communities of the 21st Century.

I'll have more to say once I get the chance to read the Plan.

10th Cir.: Restoring copyright protection to public domain works does not violate First Amendment

2010-06-21T18:02:00.000-07:00

The Tenth Circuit today ruled that Congress did not violate the First Amendment by restoring copyright protection for certain works that had fallen into the public domain, reversing a district court's ruling that Section 412 of the Uruguay Round Agreements Act of 1994 was unconstitutional. Wrote Chief Judge Mary Beck Briscoe for the unanimous three-judge panel in Golan v. Holder:

The government argues on appeal that Section 514 is narrowly tailored to advancing three important governmental interests: (1) attaining indisputable compliance with international treaties and multilateral agreements, (2) obtaining legal protections for American copyright holders’ interests abroad, and (3) remedying past inequities of foreign authors who lost or never obtained copyrights in the United States. We hold that the government has demonstrated a substantial interest in protecting American copyright holders’ interests abroad, and Section 514 is narrowly tailored to advance that interest. Consequently, the district court erred in concluding that Section 514 violates plaintiffs’ First Amendment rights.

(footnote omitted). The government had defended the statute at issue largely on the ground that it was necessary in order to comply with TRIPS and the Berne Convention, under which signatories "must provide copyright protection to preexisting foreign works even when those works were previously in the public domain in that country."

This is a big win for the government, and for the large group of copyright owners who filed amicus briefs urging reversal. The plaintiffs can seek rehearing en banc, and may petition for cert., but I think any First Amendment challenge to a copyright statute is a real longshot in light of Eldred v. Ashcroft.

Politico: IP Czar's report due this week

2010-06-21T08:54:00.000-07:00

Reports Politico:

Industry sources tell POLITICO they expect White House Intellectual Property czar Victoria Espinel to drop her much-anticipated IP report this week. Her recommendations could reach the vice president’s office Tuesday and go public Wednesday, just in time for the Senate Judiciary Committee’s scheduled IP oversight hearing.

I believe the report in question is the "Joint Strategic Plan," mandated by Section 301 of the 2008 PRO-IP Act, and whose contents are described at Section 303. Earlier this year, Espinel's office sought public comments in anticipation of releasing the report.

Here's a link to the notice of the Senate Judiciary Committee's June 23 oversight hearing, which will feature testimony from Espinel, Warner Bros. CEO Barry Meyer; Paul E. Almeida, President, Department for Professional Employees at the AFL-CIO; David Hirschmann, President and CEO of the US Chamber of Commerce's Global Intellectual Property Center; and Caroline Bienstock, President and CEO of independent music publisher Carlin America.

Student survey seeks opinions on file-sharing

2010-06-20T20:47:00.000-07:00

An undergraduate at Kenyon College named Gavin McGimpsey contacted me and asked me to help publicize a survey he is conducting called "Filesharing, Status, and Sociolegal Attitudes." I don't know McGimpsey's take on these issues, and I have no idea how his survey will turn out, but I'm happy to provide the link for those who would like to participate. And here is a bit of additional information about McGimpsey and his project.

Belinda Carlisle's full-service law firm

2010-06-20T15:37:00.000-07:00

From page 104 of Belinda Carlisle's excellent new autobiography Lips Unsealed:

Shortly after we [Carlisle and her then-boyfriend, Dodger outfielder Mike Marshall] settled into the Marina del Rey apartment, I was at my lawyer's office and asked one of his assistants if they knew of a coke dealer in the Marina. I needed a connection closer than Hollywood. My lawyer's assistant made a call and gave me a slip of paper with a number on it and said it was okay for me to call.

I went home and it turned out that the dealer lived on the floor directly below mine. I couldn't believe my good fortune...

Anyone know who was Carlisle's lawyer circa 1982-83?

BTW, the book is great -- kind of like The Dirt, only with much cuter band members...

Court appoints mediator to facilitate settlement in Jammie Thomas-Rasset case

2010-06-18T11:50:00.001-07:00

In the Jammie Thomas-Rasset case, Judge Michael Davis has appointed a special master to help facilitate settlement. The special master is Jonathan Lebedoff, who stepped down as Chief Magistrate Judge of the District of Minnesota in 2005. It's unclear from the order whether Judge Davis took this step sua sponte or at the urging of the parties; I have inquiries in to the attorneys and will update if I hear back.
Order appointing special master in Capitol v. Thomas-Rasset

As of now, a third trial, which will consider only the issue of damages, is set for October 4. At the second trial, held last summer, the jury awarded the record labels $80,000 per work infringed, but the court later remitted the award down to $2,250 per work. In January of this year, the labels offered to settle the case for $25,000, to be donated to a music charity, but Thomas-Rasset declined the offer; her attorney said, "Jammie will not accept anything offer that requires her to pay money to or on behalf of the Plaintiffs."

Update: I've learned that the court appointed the special master on its own, not at the request of the parties. Also, Thomas-Rasset appears to have backed down from her position that she "would...rule out any settlement asking her to pay damages." Thomas-Rasset attorney Joe Sibley told Wired that his client "might agree to settle for the statutory minimum $750 a track," which would work out to a total of $18,000 for the 24 songs at issue. But he was considerably less confident of a settlement when he spoke with CNET:

"I'm not optimistic," Sibley told CNET. "I think that the case has been analyzed enough by the record industry and they know what they will accept. If they didn't want to accept the judgment on [the reduced damages award], I don't think there is anything we would have to offer them that they would accept now."

Lebedoff certainly has his work cut out for him.

It's official: Don Henley wins summary judgment over Chuck DeVore on copyright claims

2010-06-14T20:52:00.001-07:00

It's been a very bad month for Chuck DeVore. On June 8, the Republican Assemblyman from Orange County finished third in the GOP primary for the right to take on Sen. Barbara Boxer (D). And then, just a few days later, federal Judge James Selna issued his formal ruling on Henley's copyright and Lanham Act claims regarding DeVore's videos that used Henley's songs to mock Boxer and President Obama, soundly rejecting DeVore's fair use defense. While I haven't done a line-by-line comparison of the tentative and final rulings, it appears that the one substantive change favored DeVore and his co-defendants. In the tentative ruling, Selna determined that the defendants had committed willful copyright infringement, but in the actual order, he declined to grant summary judgment in favor of either party on that issue.

I assume there will be a jury trial on the issue of willfulness and damages, unless the parties are able to reach a resolution.
Order on Motion for Summary Judgment in Henley v. DeVore

Gawker Media settles Alabama libel case

2010-06-14T08:48:00.001-07:00

Back in March, I blogged about a decision by a federal court in Birmingham Alabama that kept alive a libel suit by Confederate Motors, Inc. against Gawker Media and its auto blog Jalopnik.com. I'm way late to this, but less than two weeks after the court's decision, the parties informed the court that they had settled the case, and it was dismissed on June 7.

Shockingly, according to PACER, that leaves only one live case pending against Gawker in federal court: the "McSteamy" naked threesome copyright battle in the Central District of California.

Update: On June 11, Jalopnik published a correction of the original post, which reads in part, "[W]e do not have any proof that Confederate is 'unable to do business' in New York, as stated in the post, and regret any confusion the article may have caused." (h/t MediaPost).

'We Con the World' video kerfuffle: When Middle East politics meets the parody/satire divide

2010-06-13T19:46:00.000-07:00

What do you get when you mix Middle East politics with ignorance of copyright law? Utter nonsense claiming that YouTube and Warner/Chappell Music have "censored" a pro-Israel music video -- a video that is very likely infringing.

The kerfuffle involves a video called "We Con the World" produced for Latma, a "media satire website" edited by journalist Caroline Glick. The video uses the tune from "We are the World" but substitutes a new set of lyrics mocking the supposedly "humanitarian" mission of the Gaza flotilla. Music publisher Warner/Chappell apparently sent DMCA takedown notices to YouTube, which removed some (though not all) copies of the video.

Now the pro-Israel and conservative blogosphere is up in arms, claiming that this incident is an example of "Israel's enemies ... trying to silence us," and "YouTube ...com[ing] down against the Israeli side in its editorial decisions," and even "a blatant act of Jew-hatred." Utter and complete nonsense. First of all, YouTube -- with extremely rare exceptions -- simply removes videos upon receipt of facially valid DMCA notices, no questions asked, and no legal analysis performed. YouTube -- which receives a very large volume of DMCA notices -- doesn't evaluate the political content of videos when acting on infringement notices; it simply removes the videos. And do these people attacking YouTube seriously believe that a company whose parent was founded by Sergey Brin and Larry Page (both Jewish), and a music publishing company whose parent is run by Edgar Bronfman, Jr. (son of a former president of the World Jewish Congress), were motivated by anti-Israel bias or "Jew Hatred"? Seriously?

Moreover, defenders of the video are wrong on the law. Glick insists that the video is a "parody" and says:

Copyright experts we advised with before posting the song told us in no uncertain terms that we were within our rights to use the song because we did so in accordance with the Fair Use Doctrine. The Fair Use Doctrine, copied and pasted below from the US Copyright Office stipulates that it is legal and permissible to use copyrighted material under the fair use doctrine for purposes of parody.

Glick doesn't identify the "copyright experts" with whom she consulted, but I'd be surprised if anyone truly expert in US copyright law and fair use would advise, as Glick says, that Latma's use was "clearly lawful." She and others can call "We Con the World" a "parody" until they are blue in the face, but under the Supreme Court's opinion in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), it almost certainly isn't. Campbell distinguished between "parody" and "satire" 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. I think a court would most likely find that , under Campbell, the "We Con the World" video is a satire -- not a parody. It uses the "We are the World" composition to comment on the Gaza flotilla, "to get attention or to avoid the drudgery in working up something fresh"; any claim that it's actually commenting on the original song is weak at best. (It's not as if Israelis can't come up with catchy yet bellicose songs on their own; this ditty has been stuck in my mind since the 2006 Lebanon War.) The recent (still tentative) ruling in the Don Henley v. Chuck DeVore copyright suit is closely on point. There, Senate candidate DeVore (R-CA) took Henley's songs, and subbed in his own lyrics, which attacked Sen. Barbara Boxer (D) and President Obama (D). The court (again, tentatively), rejected DeVore's argument that the use of Henley's songs constituted parody, and concluded that the use of the entire compositions was not fair. (Campbell doesn't exactly say, "If it's a parody, it's fair use; if it's a satire, it isn't." But that's how such cases usually play out.)

Glick and others are right on one thing, however: it's hard for any copyright owner to effectively scrub the Web of all copies of an allegedly infringing work. Others have re-posted the Latma video, and it's going to be tough for Warner/Chappell to chase down every last copy.

Intra-libertarian IP war: Rush v. Rand Paul

2010-06-10T20:08:00.000-07:00

As first reported in the Louisville Courier-Journal, the libertarian-minded Canadian band Rush is battling the libertarian-minded Kentucky Republican Senate candidate Rand Paul over the latter's use of Rush songs in his campaign. Rush's attorney Robert Farmer has provided me the cease-and-desist letter he sent to the campaign May 25, demanding that Paul "immediately stop all use of Rush’s music and remove all references to Rush and their music in all campaign materials." Farmer's letter makes claims regarding three separate uses of Rush's songs by the campaign, each of which needs to be analyzed separately, and which I'll address in turn:

1) Use of songs in videos/ads. I haven't seen the videos (the one YouTube video referenced in the letter has been removed), so I'm reluctant to say for sure whether the uses at issue are infringing. But the general rule is that to incorporate music into an advertisement, one needs a license from the owner of both the sound recording (the record label), and the musical composition (the music publisher) -- which Farmer's letter certainly suggests the campaign lacked. If the campaign simply used Rush songs as the soundtrack for its videos/ads, it's unlikely it would have a successful fair use defense. Rush's claim here is likely valid.

2) Quoting from a song in a speech. Farmer's letter demands that Paul stop quoting lines from Rush songs in his campaign speeches. I don't know how extensive such quotations were. But let's assume they were just a few lines. If that is the case, it's hard to imagine any court would consider the use of such brief quotations in a non-commercial context anything other than fair uses. This would likely be a very weak claim.

3) Playing of songs at campaign events. This to me is the most interesting of Rush's claims. Normally, to play a song at an event, a campaign either needs to ensure that the venue has a public performance license, typically obtained from ASCAP, BMI, and SESAC, or it can obtain one itself. (When I worked on the McCain presidential campaign, we had ASCAP and BMI licenses.) Such licenses give the licensee permission to play any of the millions of songs in the PROs' catalogs.

"The Spirit of Radio," the song referenced in Farmer's letter, is licensed for public performance through SESAC. But what's interesting is Farmer's contention in his letter that "The public performance of Rush’s music is not licensed for political purposes: any public venue which allows such use is in breach of its public performance license and also liable for copyright infringement." I've looked at SESAC's licenses, and there's simply no exclusion for political uses (nor is there in ASCAP or BMI's). When I asked Farmer via email to explain his position, he was reluctant to go into much detail, but did tell me this:

Keep in mind that there is a chain of rights issue with the licenses issued by performing rights societies – they can only issue licenses for the rights they have obtained from the writer/publisher and subject to any limitations or exclusions.

In other words, Farmer is suggesting that the license that the writers/composers of Rush's songs issued to SESAC specifically excluded political uses. I haven't seen the agreement between those writers/composers and SESAC, so I can't say that he's wrong. But I can say that I've never heard of any contract with a PRO containing such an exclusion, and neither had several other copyright attorneys I asked.

But let's assume the songwriters/composers of Rush's songs actually did have such an exclusion in their contracts with SESAC. Farmer is correct: SESAC can't grant rights it doesn't have. So if SESAC couldn't grant rights (either to the venue or the campaign) for political uses, then those uses would indeed be infringing (though the venue or campaign might then have a claim against SESAC for misrepresenting that it had sufficient rights to allow them to publicly perform the songs). Of course, if neither the venue nor the campaign had a SESAC license, then the campaign is simply outta luck.

So what does the Paul campaign have to say about all this? Not much. The campaign has not responded to an email I sent this morning seeking comment. Farmer told me yesterday that the campaign had not responded to his letter. And Paul's campaign manager would only tell the Courier-Journal this:

The background music Dr. Paul has played at events is a non-issue. The issues that matter in this campaign are cutting out-of-control deficits, repealing Obama Care and opposing cap and trade.

Well, I'm sure the campaign would rather focus on subjects other than music licensing. But if it continues its current practices, especially with regard to ads and videos, it may not have much choice in the matter.

Ninth Circuit: Listen to us debate the first sale doctrine (and an obscure postal statute)

2010-06-09T08:33:00.001-07:00

The Ninth Circuit has posted to its web site an audio recording of Monday's oral arguments in UMG Recordings, Inc. v. Augusto, an important case about the scope of the first sale doctrine.

The facts are this: UMG (like other record labels) sends out promotional CDs to radio stations, music reviewers, and other industry insiders. The CDs contain labels that say the following (or something very close):

This CD is the property of the record company and is licensed to the intended recipient for personal use only. Acceptance of this CD shall constitute an agreement to comply with the terms of the license. Resale or transfer of possession is not allowed and may be punishable under federal and state laws.

Of course, some recipients don't follow these instructions, and sell these promo CDs. Troy Augusto made a business of buying them at record stores or online, and re-selling them. UMG sued Augusto for copyright infringement, alleging a violation of its exclusive right to distribute its works under 17 USC § 106(3). Augusto defended by claiming that under the first sale doctrine, he's perfectly free to re-sell the CDs he bought, the "promotional use only" labels notwithstanding.

The district court sided with Augusto, ruling that UMG transferred title in the physical CDs to the initial recipients, and did not, as it argued, merely license them for a limited purpose to a limited group. The court relied in part on an obscure postal statute, 39 USC § 3009, which characterizes unordered merchandise" as a "gift." (The purpose of the statute is evidently to protect consumers from scammers who mail goods to consumers even when they don't request it, and then demand payment.)

When I listened to UMG attorney Russ Frackman face the panel, I was skeptical of the label's chances. The court practically begged him to give them a way not to follow the postal statute; he had to fall back on arguments based on the purpose of the law, the legislative history, and an insistence that words such as "recipient" and "merchandise" had some special meaning in this context other than their dictionary definitions. But I thought the panel was even tougher on Augusto's attorney Joseph Gratz. The court seemed a bit surprised by Gratz's concession that Augusto has the burden of proof on the first sale issue (at least one panel member had previously stated that it may be an open question), and it expressed considerable sympathy for the argument that UMG's relationship with the recipients of the promo CDs was indeed that of licensor/licensee -- or at least that Augusto may not have met his burden of proving otherwise.

In sum, I thought UMG came out of the argument with a slight edge, but predicting the result of the opinion would be a bit of a fool's errand. Listen for yourself and give your prediction in the comments. EFF collects the relevant documents here.

TPM blows facts, law in piece on campaign music

2010-06-07T20:10:00.000-07:00

Talking Points Memo has yet another piece about campaigns' use of music, and the legal troubles that sometimes follow. It's an interesting topic (one with which I admit I'm a bit obsessed), and there are plenty of interesting things to be said. Unfortunately, TPM apparently thought it would be more fun to engage in a partisan rant than to do the hard work necessary to get the facts and the law right. And so it didn't.

The law of music copyright is complicated, and the legality of different types of uses depends on the facts. So I'm not going to comment on whether all of the incidents TPM mentions actually qualify as infringements. But I'm intimately familiar with the McCain campaign's experience with music, and thus I have no trouble saying that TPM got virtually everything wrong when it turned to that topic. Wrote TPM:

[The] McCain campaign ... was practically a walking Limewire setup. Jackson Browne also sued it for using his song "Running On Empty" in an ad, for which the two sides later reached an out-of-court settlement. Van Halen objected to McCain's use of their song "Right Now" at a rally. The Wilson sisters from Heart strenuously objected to his campaign's use of "Barracuda" to promote Sarah Palin. And finally, the McCain campaign used "Pink Houses" and "Our Country" by John Mellencamp, who sent a letter demanding that they stop.

Practically like LimeWire, the p2p network that was recently held liable for inducing infringement on a massive scale? Cheap, and totally inaccurate, shot. First, Jackson Browne did not sue the McCain campaign. Rather, he sued John McCain in his personal capacity. Second, the McCain campaign did not "us[e]" Running on Empty in an "ad." What actually happened, as detailed in this sworn declaration, is that a staffer at the Ohio Republican Party made a video that used the song, and posted that to YouTube.

TPM's reference to the complaints from John Hall, Van Halen, Heart, and Mellencamp is even farther off the mark. Had TPM taken a few minutes to do some reporting (like, say, Politico did back in 2008), it would have been forced to point out that the campaign's uses of these songs at rallies was perfectly legal. As Politico accurately reported:

What do all the cease-and-desist letters and testy calls [regarding performances of songs at rallies] amount to legally, though? Not much, if the songwriters licensed the public performance rights to their music to the American Society of Composers, Authors and Publishers or Broadcast Music Inc. And the vast majority of artists, including Heart, have done that. Buying an ASCAP or BMI license allows a venue (or a campaign, if it purchases a traveling blanket license) to play any of about 8 million songs during their events. Though it might be a nice courtesy, the licensees are not obligated to call the artist to discuss.

The McCain-Palin campaign told Politico that in 2007 it purchased both ASCAP and BMI licenses that cover the use of tunes for all public events. Campaign spokesman Ben Porritt said, "Our campaign respects copyrights and obtains licenses whenever the law requires, and any suggestion otherwise is flat wrong."

In other words, the McCain campaign paid good money for licenses that gave it the right to play songs written or recorded by artists including Hall, Van Halen, Heart, and Mellencamp (and millions of others). And it explains why, for all the noise they made in the press, these artists never made actual legal claims: they had no valid ones.

Also, it's worth casting a skeptical eye on the TPM piece's implication that Republican campaigns are somehow less respectful of copyright than Democratic ones. I don't think anyone ever has done a rigorous study of this topic, so I can't say for sure, but I strongly suspect the apparent imbalance of complaints against GOP campaigns stems from a simple fact: the vast majority of recording artists are liberals and Democrats. (But see John Rich -- and Daddy Yankee! Dame más gasolina!) And they understandably don't like Republicans using "their" songs (even as they happily cash their ASCAP and BMI checks, derived in part from Republican campaigns' license fees). If a Republican uses their songs, they run to the press. But if a Democrat does the same, even without permission, they are likely to look the other way.

Lastly, is a publication that routinely records and posts to YouTube lengthy excerpts from TV broadcasts, while slapping its own logo on others' copyrighted works, really criticizing others' copyright practices? Really??

Tentative ruling favors Henley over DeVore on copyright claims, rejecting 'parody' argument

2010-06-01T16:50:00.001-07:00

According to a report on KTTV's web site, federal judge James Selna has tentatively ruled for Don Henley over Senate candidate Chuck DeVore (R) on his copyright claims, rejecting DeVore's arguments that his campaign videos that took Henley's "The Boys of Summer" and "All She Wants to do is Dance" and substituted new lyrics attacking Sen. Barbara Boxer (D-CA) and President Obama were fair use "parodies." Update: Here's the tentative ruling. According to the Fox station's report:

Selna [tentatively] ruled that DeVore's case for fair use is stronger for "The Hope of November" because he uses Henley's song to parody what he contends is Henley's support for liberal causes, but it fails because it primarily focuses on criticizing Obama.

The judge said DeVore's case is much weaker for "All She Wants to Do Is Tax," because the lyrics have nothing to do with Henley. Selna said it more closely resembles satire, as opposed to parody, and the standard for using such material without paying for it is higher for satire than it is for parody.
***
DeVore attorney Chris Arledge argued that the judge's ruling, if it stands, would send a chilling effect on free speech by politicians because it would make all political speech "commercial speech."

While the tentative went for Henley on his copyright claim, KTTV's report says Selna sided with DeVore on Henley's Lanham Act claim, which was premised on the allegation that the use of his songs falsely implied that the liberal singer had endorsed the conservative Republican's campaign. (Didn't someone predict exactly this result?)

Again, keep in mind that Judge Selna's ruling is tentative, and he is free to change his mind before issuing a final ruling.
Tentative Summary Judgment Ruling in Henley v. DeVore

Court: AP 'is going to win' Shepard Fairey case

2010-05-28T12:01:00.000-07:00

The judge presiding over the copyright dispute between the Associated Press and Shepard Fairey regarding the "Obama Hope" poster today indicated that the AP "is going to win" the case, and urged the parties to settle. According to the AP's repor t:

Federal Judge Alvin Hellerstein said Friday at a hearing in New York that he has a feeling that "whether it's sooner or later, The Associated Press is going to win" the case.
He suggested that artist Shepard Fairey and the news organization move on to settlement talks and consider dropping penalties. Neither side seemed ready to do so.
AP lawyer Dale Cendali says the news organization wants to make it clear that the AP owns the copyright to the photograph that Fairey used to create the "HOPE" poster and that he violated the copyright.

As far as I'm aware (unless it was changed at today's status conference), the parties' summary judgment motions on liability are still due July 26.

Update: A later report by the AP includes the following:

U.S. District Judge Alvin Hellerstein made the suggestion at a hearing in which he ordered Fairey's lawyers to turn over records of communications Fairey had with his lawyers before he sued the AP in February 2009. He also said AP lawyers can depose Fairey a second time.

While it's hard to say for sure what happened without seeing a transcript (which I haven't), it appears the AP's attorneys successfully invoked the crime-fraud exception to the attorney-client privilege to get at the the communications between Fairey and his lawyers. As background, Fairey is under federal criminal investigation for perjury and evidence tampering, based on his admitted falsehoods regarding which photograph he used as a basis for the "Obama Hope" poster.

Adventures in settlement confidentiality

2010-05-28T11:17:00.000-07:00

Kudos to Eriq Gardner of THR, Esq. for his coverage of the series of suits against individuals accused of downloading and "sharing" independent films via BitTorrent. Gardner links to the settlement page for those seeking to settle their claims regarding the film Far Cry. The page, set up by Dunlap, Grubb & Weaver, the Leesburg, VA law firm representing the plaintiffs, includes a link to the settlement agreement itself. In sum, the potential defendant agrees to pay $1,500 and cease infringing, in exchange for a promise by the copyright owner not to sue.

The agreement also includes a typical confidentiality clause, whereby the settling party acknowledges that "the terms of this Agreement" are "STRICTLY CONFIDENTIAL" and "MAY NOT be disclosed to any other party except legal counsel, including but not limited to internet or on-line forums." And there's a $15,000 liquidated damages provision in the event of breach. Fair enough. But doesn't the fact that the law firm that drafted the settlement agreement posted it to the &#@*&!*% Internet tend to undermine, just a wee bit, its demand that the terms be kept "STRICTLY CONFIDENTIAL"?

Peer-to-Peer defendant seeks Supreme Court review of 'innocent infringer' ruling

2010-05-27T08:43:00.000-07:00

A defendant in one of the record labels' suits against individual peer-to-peer infringers is asking the Supreme Court to review a ruling that precluded her from asserting the "innocent infringer" defense under 17 U.S.C. § 504(c)(2). The case involves Whitney Harper, who was 16 back in 2004, when labels' investigators detected her "sharing" 544 files. As the Fifth Circuit later described:

During discovery, Plaintiffs examined Harper’s computer. The examination showed that its operating system had been reinstalled in 2005. As a result, most of the files present on the computer in 2004, when MediaSentry performed its investigation, had been overwritten. The forensic examination did show that three file-sharing programs had been installed and used on the computer, including a program known as LimeWire, which had been used after the operating system was reinstalled. It also revealed a new cache of approximately 700 recordings downloaded since the reinstallation. Fifteen of the copyrights that Plaintiffs’ second amended complaint alleged that Harper infringed came from this newly discovered cache.

The plaintiffs moved for summary judgment, and minimum statutory damages of $750 per work. The district court granted the motion as to liability and enjoined her from future infringement. But the court held that there were disputed issues of fact as to whether Harper qualified as an innocent infringer, and thus gave the labels the option of settling for the $200 per work allowed if the Section 504(c)(2) defense applies. Specifically, the court rejected (and see here) the labels' argument that the defense was inapplicable here under 17 USC § 402(d) ("If a notice of copyright in the form and position specified by this section appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504 (c)(2).") because they had properly placed notices on CDs that contain the songs at issue

But the Fifth Circuit reversed, rejecting Harper's argument that her lack of legal sophistication was relevant to the applicability of the innocent infringer defense, given the presence of proper notices on CDs to which she had access:

Harper's reliance on her own understanding of copyright law—or lack thereof—is irrelevant in the context of § 402(d). The plain language of the statute shows that the infringer's knowledge or intent does not affect its application.[2] Lack of legal sophistication cannot overcome a properly asserted § 402(d) limitation to the innocent infringer defense.

This understanding is supported by the historical structure of the copyright law. What is now § 402(d) was amended as part of the Berne Convention Implementation Act ("BCIA"), Pub. L. No. 100-568, 102 Stat. 2853 (1988). Before the Berne Convention was adopted, publishers ran the risk of placing their work into the public domain by failing to include a notice of copyright. "Under the BCIA," however, "notice is no longer required at publication." 2-7 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 7.02(C)(3) (2009). But the BCIA, in part through § 402(d), "preserves an incentive for use of the same type of copyright notice." Id. That incentive is the bar to the innocent infringer defense. Under this scheme, it would make no sense for a copyright defendant's subjective intent to erode the working of § 402(d), which gives publishers the option to trade the extra burden of providing copyright notice for absolute protection against the innocent infringer defense. Harper cannot rely on her purported legal naivety to defeat the § 402(d) bar to her innocent infringer defense.

Harper's cert. petition argues that the presence of a notice on a physical copy (e.g., a CD) should not automatically bar the innocent infringer defense where the copy was made from a digital file (which doesn't contain a notice). It frames the issue like this:

There are two potential readings of § 402(d). Under the first, § 402(d) eliminates innocent infringement whenever the copyright holder’s published copies of its sound recording bear the § 402 notice. Under the second, § 402(d) eliminates innocent infringement only when the copy that the infringer used to infringe bears the § 402 notice. As between these two readings, the second is preferable because only notice on the copy that the infringer used to infringe tends to disprove the infringer’s innocence. Congress should not be presumed to have required courts to conclude otherwise — in this case, to conclude that notice on a CD in the record store tends to disprove the innocence of an infringer who infringed using only music files on the Internet — in § 402(d) when an alternative reading is equally consistent with the text.

But this implies that the Section 402(d) limitation on the innocent infringer defense could never apply in the P2P context -- where a digital file can't contain a notice -- a step it seems to me courts would be unwilling to take.

The petition argues that there is a circuit split on this issue. The Fifth Circuit in this case and the Seventh Circuit in BMG Music v. Gonzalez, 430 F. 3d 888 (7th Cir. 1005) rejected the limits on the defense that Harper urges. But, says the petition, DC Comics, Inc. v. Mini Gift Shop, 912 F.2d 29 (2d Cir. 1990), is to the contrary. In that case, the Second Circuit upheld the district court's finding of innocent infringement, based on the defendants' lack of sophistication and the fact that the infringing goods they sold in their stores lacked notices.

Harper is represented by Kiwi Camara, who represented accused peer-to-peer defendant Jammie Thomas-Rasset in her second trial. The jury awarded the labels $1.92 million, but the court later remitted the award down to $54,000. A third trial is currently set for October 4, 2010, in Minneapolis.

David Byrne sues Charlie Crist over use of 'Road to Nowhere' in campaign video

2010-05-24T14:01:00.000-07:00

Here we go again. David Byrne has sued Florida Senate candidate Charlie Crist for using the 1985 Talking Heads hit "Road to Nowhere" in a YouTube video that promotes his campaign. Reports Billboard:

Byrne is seeking $1 million in damages from Gov. Charlie Crist, who's also Florida's former Attorney General, and his senatorial campaign for use of the song earlier this year in a website and YouTube ad attacking his then-Republican primary opponent, Marco Rubio. Crist has since changed his campaign and is running as an independent candidate.
***
Byrne tells Billboard.com that he became aware of the Crist ad from a friend in New York, where the Talking Heads co-founder resides. "I was pretty upset by that," says Byrne, who had Warner Bros. Records contact the Crist campaign, which subsequently stopped using the ad. But, Byrne contends, "in my opinion the damage had already been done by it being out there. People that I knew had seen (the ad), so it had gotten around. The suit, he adds, "is not about politics...It's about copyright and about the fact that it does imply that I would have licensed it and endorsed him and whatever he stands for."

I'll post the complaint when I get my hands on it. Of note, Byrne's attorney is Larry Iser, who represented Jackson Browne in a similar suit against John McCain, the RNC, and the Ohio Republican Party based on a 2008 ORP web video that incorporated part of Browne's song "Running on Empty."

It won't surprise me if we see a dozen more lawsuits exactly like this one before November.

Update: Here's the complaint, which includes claims for direct and vicarious copyright infringement and a claim under Section 43(a) of the Lanham Act, based on the theory that Crist's video falsely implied that Byrne endorsed Crist's Senate campaign.
David Byrne v. Charlie Crist Complaint

Court permanently enjoins IsoHunt, Fung

2010-05-21T08:55:00.001-07:00

A federal court in Los Angeles yesterday permanently enjoined IsoHunt and its principal Gary Fung from assisting users in illegally downloading movies owned by the major studios. The injunction follows Judge Steven Wilson's grant of summary judgment to the studios last November, in which he found that Fung and IsoHunt had induced copyright infringement on a massive scale and was not eligible for the DMCA's safe harbors.
Isohunt Permanent Injunction

h/t Barry Sookman

Kagan's RIAA brief revealed: 'As Nasty As They Wanna Be' fails to 'physically excite,' 'arouse'

2010-05-20T11:48:00.000-07:00

The truth can finally be known: Elena Kagan is not "turn[ed] on" by 2 Live Crew. Not even by the Crew's 1989 masterwork As Nasty as They Wanna Be, which included such classics as "The Fuck Shop" ("There's only one place where we can go/Where the price is right just to fuck a ho."); "Dick Almighty" ("It's 15 inches long, eight inches thick/Last name almighty first name is dick."); and "If You Believe in Having Sex" (just click the damn link yourself; this is a family blog). For, as Kagan boldly proclaimed in a 1990 amicus brief she drafted for the RIAA, arguing that the album was not obscene under the three-prong Miller test:

Nasty does not physically excite anyone who hears it, much less arouse a shameful and morbid sexual response.

"Anyone"? Really??? (Not even her kinky BFF?)

Kagan (who presumably falls within the category of "anyone") may not be "excite[d]" or "arouse[d]" by the Crew's oeuvre, but she does, with a straight face, argue that it contains "serious artistic value." Oddly, though, she apparently couldn't find any examples of such in the album itself; she cites none. Rather, her brief, written while she was an associate at Williams & Connolly, relies on Leonard Bernstein for the proposition that all music has "inherent value" (with props to Justice Scalia for noting that "ratiocination has little to do with esthetics"). (All music has value; Nasty is music; therefore Nasty has value. Q.E.D.!) She also notes that at least one song has political value; apparently "Dick Almighty" ("They took a dick from California, transplanted that mutha fucka to Washington DC and it fucked the nation") was a reference to none other than our 37th president, Richard Milhous Nixon. Who knew??

Whatever one may think of Kagan's characterization of Nasty, one can't argue with success; the 11th Circuit bought her arguments. See Luke Records, Inc. v. Navarro, 960 F.2d 134 (11th Cir. 1992) (reversing district court's ruling that the album was obscene, see Skyywalker Records, Inc. v. Navarro, 739 F. Supp. 578 (S.D. Fla. 1990)).
RIAA amicus brief in Luke Records, Inc. v. Navarro

Kagan confirms: I represented the RIAA

2010-05-18T13:44:00.000-07:00

It's been reported before, but in her just-released Senate Judiciary Committee questionnaire (p. 193), Supreme Court nominee Elena Kagan confirms that she once represented the RIAA while in private practice. The case was Luke Records, Inc. v. Navarro, 960 F.2d 134 (11th Cir. 1992), an appeal of a district court's ruling that The Two Live Crew's album As Nasty As They Wanna Be was obscene. As McClatchy reported:

Before Harvard, there was 2 Live Crew.
The hip-hop group hit the spotlight in 1989 with its album "As Nasty As They Wanna Be," which included the single "Me So Horny." Nick Navarro, the sheriff of Florida's Broward County, thought it went too far.
"I'm a freak in heat, a dog without warning," the rappers sang. "My appetite is sex, 'cause me so horny."
U.S. District Judge Jose Gonzalez agreed with Navarro that the song was obscene, and 2 Live Crew appealed.
The group's attorney, Bruce Rogow, said in an interview that he encouraged the Recording Industry Association of America to file a friend-of-the-court brief. The association hired Williams & Connolly, and Kagan drafted the brief, later explaining that she "stressed the difficulty of finding music obscene under prevailing constitutional law."
In 1992, a three-judge panel of the 11th U.S. Circuit Court of Appeals unanimously threw out the trial judge's decision.
"It was nicely done, and it was certainly helpful," Rogow, who's a professor at Nova Southeastern University's law school, said of Kagan's brief. "But I think the outcome would have been the same regardless."

How long before the usual suspects' heads start exploding?

Henley, DeVore file reply briefs in 'parody' battle

2010-05-18T08:43:00.000-07:00

Don Henley and Chuck DeVore have filed their respective summary judgment reply briefs in the copyright and Lanham Act suit over DeVore's campaign videos that took Henley's "The Boys of Summer" and "All She Wants to do is Dance" and substituted new lyrics attacking Sen. Barbara Boxer (D-CA) and President Obama. Here's Henley's brief and DeVore's. Again, the focus in the briefs is whether, under Campbell v. Acuff-Rose, the videos are fair use parodies that target the songs themselves, or infringing satires that merely use the works to comment on something else. As I've said before, I think DeVore faces a steep uphill battle to prevail on this point, given the facts and the existing law, but he has a much stronger argument on Henley's Lanham Act claim.

Kudos to both sides for what I thought were very well-argued briefs. The hearing on the cross motions for summary judgment is set before Judge James Selna in Santa Ana June 1 in this case that will help set the rules of the road for campaign uses of third-party material.

Labels win big in LimeWire case

2010-05-13T08:05:00.000-07:00

A federal judge in New York yesterday handed the major record labels a huge win yesterday, granting summary judgment in their favor against the purveyors of the LimeWire peer-to-peer software. Judge Kimba Wood found that LimeWire's operators had induced infringement by its users, evidence of which came in five forms:

(1) LW’s awareness of substantial infringement by users; (2) LW’s efforts to attract infringing users; (3) LW’s efforts to enable and assist users to commit infringement; (4) LW’s dependence on infringing use for the success of its business; and (5) LW’s failure to mitigate infringing activities.

I don't have time to go into any detail right now; here are a few sources of reactions from the usual suspects: CNET; Ars Technica; Progress & Freedom Foundation's Tom Sydor; Barry Sookman; and Public Knowledge.
Arista Records Summary Judgment Opinion

Viacom's friends lend support in YouTube case

2010-05-10T08:38:00.000-07:00

Two groups supporting major copyright owners have filed amicus briefs in support of Viacom in its copyright suit against Google and YouTube:

The first, filed on behalf of a coalition including ASCAP, BMI, SESAC, Disney, NBC Universal, Warner Bros., and others, makes three main points:

Congress enacted the DMCA to combat -- not protect -- copyright infringement;
The DMCA Section 512(c) safe harbor does not provide a defense to inducement liability; and
Section 512(c)(1)(B)'s language denying the safe harbor where a site derives "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," should be interpreted consistent with the "right and ability to control" standard from common law vicarious liability.

The second, from the free market-oriented Washington Legal Foundation, focuses on the legislative history and purpose of the DMCA's safe harbors, arguing that the law mandates a "shared responsibility" among copyright owners and online service providers in addressing infringement, and does not relieve sites like YouTube of all obligations to fight illegal use of others' works, especially while profiting from it.

Disclosure: I work at NBCU and have written an article for WLF, though I was not involved in filing either of these briefs.

No class certification in Scott v. Scribd case

2010-05-10T08:12:00.000-07:00

The copyright suit filed by a Texas author against document-storage site Scribd.com will not proceed as a class action. In its order denying Scribd's motion to strike the class allegations, the court gave plaintiff Elaine Scott until May 1 to file her motion for class certification. That deadline has passed without Scott filing such a motion. And her attorney Kiwi Camara confirmed to me that he decided not to pursue a class action in this case. "We're pursuing certification in a different case in a different circuit," Camara told me via email. No word yet on what that "different case" will be.

Meanwhile, in the similar Williams v. Scribd case pending in San Diego, the court has yet to rule on Scribd's motion to dismiss based on, inter alia, the DMCA Section 512(c) safe harbor. The complaint in the Williams case does not include class allegations.

Amici urge Ninth Circuit to reverse in UMG v. Veoh case; RIAA, NBCU, PROs, and WLF weigh in

2010-05-04T20:32:00.000-07:00

Three sets of amici have filed briefs in support of Universal Music Group's appeal of the district court's grant of summary judgment in favor of Veoh, the now-bankrupt user-generated content web video site that successfully sought safe harbor in Section 512(c) of the DMCA.

RIAA, NMPA, NBC Universal, and American Federation of Musicians. The RIAA brief argues that Veoh does not qualify for the DMCA Section 512(c) safe harbor because the infringing activity targeted by UMG was not "by reason of storage at the direction of a user." Id.§512(c)(1). While users upload the videos, Veoh copies and streams them to users -- activities that the brief argues are not protected by the safe harbor. The brief also argues that the district court mangled the analysis of the "right and ability to control" language in Section 512(c)(1)(B), reading it in a manner inconsistent with cases including Napster and Perfect 10 v. CC Bill. Even Prof. Eric Goldman, who hailed Veoh's "terrific win" in the district court, acknowledged that the lower court's "dichotomous language parsing seems particularly unstable."

ASCAP and BMI. The PROs' brief focuses on the district court's cramped reading of the "red flag" infringement doctrine. 17 USC § 512(c)(1)(A)(ii). As I noted at the time, "Courts, including this one, simply read [the doctrine] so narrowly that, for all intents and purposes, it might as well not even exist." (Though that was before the Columbia v. Fung decision.) And the brief takes issue with the district court's treatment of the DMCA provision that triggers knowledge on the part of the host based on a "representative list" of infringed works. Id. § 512(c)(3)(A)(ii).

Washington Legal Foundation. The free market legal organization's brief includes a lengthy discussion of the DMCA's legislative history, highlighting lawmakers' statements that the statute was intended to combat widespread Internet infringement -- not protect those who profit from it. It then goes on to attack the district court's rulings on actual and red flag knowledge, and right and ability to control.

I expect there will be amici weighing in on behalf of Veoh; I will post those once they are filed.

Disclosure: I work at NBCU and have written an article for WLF, though I was not involved in filing either of these briefs.

DeVore, Henley file oppositions to summary judgment motions; Henley shocker: I'm no 'liberal'

2010-05-04T08:21:00.001-07:00

Don Henley and Chuck DeVore have each filed their oppositions to the other side's summary judgment motions in their battle over DeVore's campaign videos that took "The Boys of Summer" and "All She Wants to do is Dance" and substituted new lyrics attacking Sen. Barbara Boxer (D-CA) and President Obama. Here's DeVore's brief, and Henley's. And here's DeVore's motion, and Henley's.

The briefs again focus on DeVore's fair use defense, and specifically whether the videos are protected "parodies" or infringing "satires." For reasons I've previously stated, I believe these videos fall on the "satire" side of the divide, and that the court is unlikely to find DeVore's uses fair. And nothing in this new round of briefing alters my prediction on that point. A few highlights from the briefs:

DeVore does a good job of minimizing (if not eliminating) the importance of Henley's "parody" expert, Mark Rose, an English professor at UCSB. I agree with DeVore that Rose's opinion that the videos are not parodies really isn't relevant here. Campbell v. Acuff-Rose Music and its progeny define "parody" for legal purposes, and the law is clear that the determination of parody vel non is a legal question for the judge. See, e.g., Mattel v. Walking Mountain Productions, 353 F.3d 792 (2003) ("every court to address the issue whether a defendant's work qualifies as a parody has treated this question as one of law to be decided by the court"). I just don't think an expert was necessary on this point.

DeVore argues that the fourth factor (market harm) favors him. Because Henley has chosen not to license his songs for any purpose, so the argument goes, there is no market to be harmed. I'm actually not sure which way Henley's decision not to license his songs at all cuts. The "no actual market, so no harm" argument has appeal. But it was pretty soundly rejected by the Second Circuit in Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987) ("the need to assess the effect on the market for Salinger's letters is not lessened by the fact that their author has disavowed any intention to publish them during his life-time.... He is entitled to protect his opportunity to sell his letters, an opportunity estimated by his literary agent to have a current value in excess of $500,000."). (I acknowledge that, unlike this case, Salinger involved unpublished works, which weighs strongly against fair use.)

On Henley's Lanham Act claim, I thought DeVore's brief was very persuasive both legally, and factually, in picking apart Henley's expert's survey purporting to show a large number of people confused into thinking that Henley supports DeVore's Senate campaign.

One of DeVore's arguments has been that he chose to "parody" Henley's songs because of the performer's well-known association with liberal and Democratic causes, and that this choice weighs in favor of fair use. I thought Henley's brief persuasively rebutted this point. Notably, just last week the Second Circuit in Salinger v. Colting upheld the district court's conclusion that "Campbell and its progeny define the limits of parody to include only those elements which criticize or comment upon the source author's works, rather than the author himself." I just don't find it plausible that DeVore's videos comment on the works themselves (as opposed to commenting on Boxer and Obama). (Henley also says that he does not consider himself a "liberal" and in fact has publicly voiced support for Sen. John McCain (R). Br. at 9. Who knew?)

Just a last point on the Lanham Act arguments, which I've given somewhat short shrift. I predict DeVore will prevail on this claim, and I think he should. And I think copyright owners should in fact be rooting for DeVore here. For if Henley prevails, it will in fact harm copyright owners' ability to license their works. Here's a hypo: say a music publisher owns rights to a song, and licenses it (via ASCAP or BMI) for public performances in tens of thousands of venues. The owner of a bar or restaurant or dance hall should be confident that he now has the right to play the song, free of claims. He should not have to worry that one of the performers (who likely doesn't even own the copyright) can come along and say, "Hey -- I'm strongly identified with my song. And I strongly dislike your restaurant, and don't want to be 'associated' with it. You're violating my rights under the Lanham Act, and my right of publicity as well. Pay up." That's not materially different from what Henley is claiming here, and, if he's successful with his argument, it could really gum up the works in licensing. And that's about the last thing the already overly complicated world of music licensing needs right now. Dastar warned against "a species of mutant copyright law that limits the public's federal right to copy and to use expired copyrights" (internal quotation marks omitted); I think that admonition applies with equal force to uses of copyrights that are either licensed or fair.

Reply briefs are due May 17, and a hearing is set before Judge James Selna in Santa Ana June 1.

The Impact of eBay on Injunctive Relief in Copyright Cases

2010-05-04T08:03:00.000-07:00

I wanted to pass along an article written by my friend Eleanor Lackman of Hogan Lovells about the applicability to copyright cases of the Supreme Court's 2006 opinion in eBay v. MercExchange, which held that an injunction should not automatically issue upon a finding of patent liability; rather, traditional equitable principles for granting injunctions "apply with equal force" in the patent context. Eleanor's article is particularly timely in light of the Second Circuit's decision last week in Salinger v. Colting, which, reversing the district court on this point, held that eBay does apply in copyright cases.

Can a candidate post an entire news story to YouTube?

2010-04-30T13:02:00.000-07:00

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.

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

2010-04-29T20:06:00.000-07:00

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

2010-04-29T19:47:00.000-07:00

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.

IP Czar posts public comments; Public Knowledge inspires copycats

2010-04-28T20:03:00.000-07:00

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

2010-04-28T19:46:00.000-07:00

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

2010-04-28T08:01:00.000-07:00

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.

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

2010-04-27T21:29:00.000-07:00

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'

2010-04-27T10:18:00.000-07:00

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!

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

2010-04-24T07:59:00.000-07:00

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.

District of Massachusetts may amend local rule to permit courtroom broadcasts

2010-04-13T18:42:00.000-07:00

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.

Supreme Court Justice Sidney Thomas?

2010-04-12T12:40:00.000-07:00

Dear entertainment industry:

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

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

2010-04-09T15:52:00.000-07:00

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

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

2010-04-06T08:00:00.001-07:00

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.

Obama Administration backs Performance Rights Act

2010-04-01T14:37:00.000-07:00

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

Ninth Circuit nominee Goodwin Liu's secret copyright-litigating past relvealed

2010-03-30T21:20:00.001-07:00

There's been a lot written, pro and con, about the nomination of Berkeley Law School professor Goodwin Liu to the Ninth Circuit. But I've seen nothing about Liu's work on the truly important issue of our times, on which he was aligned unambiguously with the forces of truth and light:
Time Warner v. ReplayTV Complaint

For the record, I worked on the ReplayTV case while an associate at O'Melveny & Myers, but never actually met Liu, who was 3,000 miles away in the Washington office. Interestingly, Ron Klain, also listed on the caption of the ReplayTV complaint, is now Vice President Biden's chief of staff.

Google/YouTube: We're not 'targeting a journalist'

2010-03-29T20:48:00.000-07:00

Business Insider picked up my post about Google and YouTube lawyer Andrew Schapiro's statement last week at a hearing in the Viacom/Premier League copyright suit that he "would certainly be interested...about hearing from" CNET News reporter Greg Sandoval in the event the court holds a trial over the issue of who leaked the reporter information, including deposition testimony from Google CEO Eric Schmidt, in the fall of 2009. Business Insider's post originally ran under the headline, "Google Threatens to Subpoena CNET Journalist To Find Out Who Ratted On Eric Schmidt," and it still features a picture of a Chinese anti-government activist throwing a rock at a line of riot police, with the caption, "Google's attorneys are coming..." In response, Google issued a statement to the site:

This headline is completely inappropriate, and the image caption is in shockingly poor taste. The judge ordered that this investigation take place, so this is in no way Google targeting a journalist. Keep in mind that all the documents in the case were under seal, and it was illegal to leak them. Comparing this to China is beyond absurd, and the story needs to be changed immediately, esp since our attorney never mentioned anything about a subpoena.

Putting aside the propriety of the China photo and caption, Google's complaints are far off the mark. To say that "[t]he judge ordered that this investigation take place, so this is in no way Google targeting a journalist," ignores the fact that: 1) the jury trial that may take place would be a trial on Google's motion for terminating sanctions against suspected leaker Robert Tur; and 2) it was Google's lawyer who told the judge, "I would certainly be interested, although we get into other complications, about hearing from Mr. Sandoval if there were going to be a trial." Google has every right to pursue sanctions against Tur if it believes he violated the protective order. But once it does so, its flack can't then blame it all on the judge. Moreoever, the judge did not force Schapiro to express "interest[]" in "hearing from Mr. Sandoval" at the trial. When the judge raised the issue of asking Sandoval who was his source, Schapiro could have said, "Your Honor, we're Google. We're strong supporters of the First Amendment. We respect the right of journalists to report the news. We don't drag them into court proceedings, and we certainly don't ask them to reveal their confidential sources." Instead, he expressed "interest[]" in "hearing from" Sandoval -- clearly an indication that he may seek his testimony.

To the extent that Google is objecting to Business Insider's (and impliedly, my) use of the word "subpoena," its complaint is silly. True, Schapiro did not use the word "subpoena." But he didn't need to; I'm sure everyone in the courtroom knew he was referring to the possibility of subpoenaing Sandoval. Schapiro stated in open court that he "would certainly be interested...about hearing from Mr. Sandoval if there were going to be a trial." How else but through a subpoena would he "hear[] from" a reporter? At a trial, the way to summon non-parties (including journalists) to the witness stand is via subpoena. The notion that a reporter would voluntarily waltz up to the witness stand and reveal his sources without need for a subpoena -- which I'm sure would be vigorously contested by CNET and its parent CBS, and probably a bevy of press amici -- is fantasy. Moreover, Schapiro's acknowledgment that seeking to "hear" from Sandoval at trial would result in "other complications" is a recognition of the fight that would ensue if Google actually did follow through and seek to force Sandoval to testify.

Lastly, perhaps what's most telling about Google's statement to Business Insider is what's missing: A denial that it will seek Sandoval's testimony. Google could quickly clear this all up by definitively stating that it will not call him, and will not ask him to reveal his sources -- through a subpoena or otherwise. Should Google say that, I will be glad to print it. Until then, the most definitive statement we have is from its lawyer, who told a federal judge that he would "certainly be interested ... about hearing from Mr. Sandoval if there were going to be a trial." Sounds a lot like "targeting a journalist" to me.

Motorcycle maker's libel suit vs. Jalopnik and Gawker Media survives motion to dismiss

2010-03-28T18:38:00.000-07:00

A federal court in Alabama has refused to dismiss a motorcycle maker's libel suit against Jalopnik.com, the auto blog owned by Gawker Media. The suit, filed by Birmingham-based Confederate Motors, Inc. ("CMI") against Jalopnik and Gawker Media, also names as defendants Wes Siler, the author of the allegedly libelous post, and Grant Ray, a former employee of CMI whom the complaint says is employed by one of the defendants. (Defendants say "Ray is not, and has never been, employed or affiliated in any way with Gawker." Motion to Dismiss at 2 n.3. Ray has not been served.)

The offending April 9, 2009 post on Jalopnik describes CMI's high-end motorcycles -- Tom Cruise and Brad Pitt are apparently fans -- as "so unreliable that you'll probably have to push them." But CMI's complaint actually focuses not on that statement, but on Jalopnik's claim that "last we heard the Alabama-based company was being sued so heavily in state courts by disgruntled owners that they were unable to do business here," i.e., in New York. CMI's complaint charges that Jalopnik's post carries the "misleading implication is that CMI has been repeatedly sued in many state courts by disgruntled owners," and includes causes of action for libel per se, tortious interference with business relations, gross negligence, and libel per quod. (Oversimplifying a bit, libel per se refers to a statement that is defamatory on its face; libel per quod covers statements that are defamatory only in context, and requires proof of actual monetary damages.)

On March 24, Magistrate Judge John Ott granted the defendants' motion to dismiss the libel per se and gross negligence claims, but denied it as to libel per quod and tortious interference with business relations. The court agreed that the language about the alleged unreliability of CMI's motorcycles was opinion, incapable of defamatory meaning. Order at 12 & n. 5. But it concluded that the post's statement about the lawsuits allegedly filed in state courts against CMI "is more akin to a statement of fact than an opinion" and thus "is reasonably capable of a defamatory meaning sufficient to survive the motion to dismiss." Id. at 12. Here's CMI's opposition, and the defendants' reply.

CMI remains far from victory; its libel and tortious interference claims seem rather thin to me (its argument is based at least in part on the distinction between "Confederate Motors, Inc." and its predecessor "Confederate Motor Company, Inc."), and it will still have to survive a summary judgment motion and a trial. But ask yourself: If you were a New York-based auto blog and snark-based media company, would you really want to face a jury in defendant's hometown, where the company's arrival was celebrated by the motorcycle-riding governor? And I don't expect CMI to give up easily; its founder and CEO Matt Chambers happens to be a former plaintiffs' attorney.

Cabell v. Zimmerman: The case of the phantom Section 512(f) claim

2010-03-27T09:39:00.000-07:00

I hadn't intended to blog about this decision because it's so bizarre. But it's gotten some mainstream attention, and I wanted to point out what makes it so bizarre, and to correct the record.

Plaintiff Robert Cabell allegedly owns the copyright in a video called "Pretty Faces." Defendant is the former president of Actors Equity Association, the labor union for stage actors. AEA apparently enforces copyrights on behalf of its members, and in that capacity sent a DMCA takedown notice to YouTube regarding Cabell's "Pretty Faces" video. But it turns out AEA made a mistake; it admitted this and apologized in an email to Cabell. Cabell, upset about the improper takedown, sued, first in state court (unsuccessfully) and then in federal court.

On March 12, SDNY Judge Colleen McMahon granted Defendant's motion to dismiss. The decision features two holdings: 1) it is not copyright infringement to interfere with a third party's exploitation of the plaintiff's work; and 2) a claim under DMCA Section 512(f) over an improper takedown notice requires "actual knowledge" of the notice's lack of merit; mere negligence is insufficient to sustain a cause of action. Both of those holdings are well supported by the statute and case law.

But here's the bizarre part: I'm 99% sure that Cabell's complaint did not even include a Section 512(f) claim. I say only "99% sure" because I have not seen the complaint itself; for some reason it's not on PACER. But I went and read the motion to dismiss, opposition, and reply, all of which include extensive discussion of Cabell's apparently six causes of action. Those include copyright infringement, and a variety of New York state-law torts, including libel, "lost business opportunity," "unlawful seizure of property," and intentional interference with contract. But nowhere in any of the three briefs is there any mention of 17 U.S.C. § 512(f), and in fact Judge McMahon's listing of the causes of action on page 3 of her order does not mention that section.

What Judge McMahon appears to have done in her order is say, in essence: "The gravamen of Cabell's complaint is that AEA sent an improper takedown notice. The statute that addresses such a cause of action is Section 512(f) of the DMCA. But, even assuming that Cabell had brought a claim under Section 512(f), he would still lose because he alleged only negligence on AEA's part, not intentional misrepresentation."

Lastly, a brief note about improper takedown notices. Given the fallibility of human beings, and the vast amounts of infringement on the web, they are bound to occur. Nobody is perfect. (Though AEA's claim of one known mistake among "100,000's" of takedowns, if true, ain't shabby.) But there are quick, constructive ways to deal with the problem, and slow, ineffective, and expensive ways. Cabell chose the latter. As the email from AEA cited at page 8 of the order demonstrates, the organization quickly admitted its mistake and apologized. (Though it's unclear whether it actually retracted its takedown notice, which it could have and should have done.) In a rational, reasonable world, that would have been the end of the matter. Instead, Cabell brought not one, but two separate lawsuits, under deeply flawed legal theories. Wouldn't it have made sense just to accept AEA's apology and move on?

Google may subpoena CNET reporter in copyright case leak probe; hearing reveals massive hunt for source of Schmidt depo

2010-03-26T20:27:00.000-07:00

An attorney for Google and YouTube indicated today that the Web giants may call a prominent tech reporter to the witness stand in an effort to reveal who leaked the journalist confidential documents from the ongoing Viacom and Premier League copyright cases.

Speaking today at a hearing before federal judge Louis Stanton in Manhattan, Google/YouTube lead trial counsel Andrew Schapiro of Mayer Brown LLP said he "would certainly be interested...about hearing from" CNET News reporter Greg Sandoval in the event the court holds a trial over the issue of who leaked the reporter information, including deposition testimony from Google CEO Eric Schmidt, in the fall of 2009.

Today's hearing focused on allegations that the leaker was Robert Tur, a Los Angeles television journalist who is one of the named plaintiffs in the Premier League putative class action. Schapiro, citing "overwhelming" circumstantial evidence collected during the course of discovery, charged that Tur violated the court's protective order governing confidential information, and said that his clients are seeking to have Tur's copyright claims dismissed as a sanction. Tur's attorney Seymour Fagan adamantly denied that his client leaked: "[T]here should be no sanctions against Mr. Tur for any acts on his part because he did not participate in the leak to Mr. Sandoval."

In order to determine whether Tur leaked to Sandoval, Judge Stanton indicated that he may take the extraordinary step of holding a separate jury trial on just that issue:

The jury would determine the matters of fact, I would rule on the remedy, and if it reaches that point, there will be a short jury trial, like a separate trial on the issue of statute of limitations. The main question being, was there a breach of my order by Tur or [Tur's ex-wife].

Today's hearing revealed for the first time that an extensive investigation of who leaked to Sandoval has been occurring out of public view over the past several months. Schapiro said that "we" -- it wasn't clear whether he was referring to his law firm or to his client -- "gathered over 70 affidavits and declarations," apparently in an effort to prove that the leak did not come from Google/YouTube or its lawyers. Schapiro even told the court that "all phone records and e-mails have been searched" at Mayer Brown, but "nothing was found."

Judge Stanton asked Schapiro whether anyone had asked Sandoval directly who had leaked to him; Schapiro indicated that Sandoval had declined to reveal his source's identity during a conversation with a Google PR representative. It was then that Schapiro indicated his interest in putting Sandoval on the stand:

I would certainly be interested, although we get into other complications, about hearing from Mr. Sandoval if there were going to be a trial.

The "other complications" Schapiro was referring to is the likely ferocious fight CNET and its parent CBS would wage to keep its reporter from having to reveal his source, or sources. (In one of the articles at issue, Sandoval cited "three sources with knowledge of the case.") The Second Circuit does recognize a qualified reporter's privilege in civil cases, requiring disclosure of a confidential source "only upon a clear and specific showing that the information is: highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources." In re Petroleum Products Antitrust Litig., 680 F.2d 5, 7-8 (2d Cir. 1982).

At the close of today's hearing, Judge Stanton gave permission for Google/YouTube to file its motion for terminating sanctions against Tur, and again indicated that he believes "a short, simple jury [] trial ...which will determine the rights and wrongs of the situation" is "the proper way to dispose of this." And he added, "[T]his is an important question, not a trivial one. It has got to be dealt with seriously and proper." Stanton also ordered the unsealing of several documents in the case related to the Tur matter, though they have not yet been posted to PACER. Those documents will likely reveal additional detail about the extent of Google's hunt for the source of the leaks.

It is unclear what effect, if any, Tur's potential dismissal from the case would have (other than the obvious effect on Tur himself). Viacom would remain as a plaintiff, as would the Premier soccer league, numerous music publishers, and a putative class that includes virtually every copyright owner whose works have allegedly been infringed via YouTube since April 15, 2005.

Court orders Tenenbaum and Nesson to pay $2,249 over discovery fight

2010-03-26T14:07:00.000-07:00

Judge Nancy Gertner has accepted the plaintiffs' calculation of their expenses incurred in litigating a motion to compel Joel Tenenbaum to produce evidence regarding his defense team's posting of seven of the songs at issue in his copyright case to a publicly available web site -- expenses that she already ruled Tenenbaum and his counsel Charles Nesson must pay. Judge Gertner ordered Tenenbaum and Nesson to pay exactly what the plaintiffs demanded: $2,249, representing 8.6 hours of work by two associates and a paralegal. Pursuant to the court's order, Tenenbaum and Nesson (who is representing his client pro bono) are jointly and severally liable for the whole amount. Here's the text of the order:

Judge Nancy Gertner: ORDER entered. The Court hereby ORDERS the defendant, Joel Tenenbaum, and his attorney, Charles Nesson, to pay plaintiffs Two Thousand Two Hundred Forty-Nine And 00/100 Dollars ($2,249.00) as reasonable expenses incurred in making the plaintiffs motion to compel. Both the defendant and his attorney shall be jointly and severally liable for making this payment to the plaintiffs.(GAM)

Leak investigation in Viacom v. YouTube case?

2010-03-26T08:39:00.000-07:00

So says CNET:

Parties in the Viacom-Google copyright court case plan to meet Friday to discuss an investigation into leaked materials at the heart of two CNET stories from last fall, according to multiple sources.
Judge Louis Stanton is expected to discuss the progress of an investigation into who leaked court documents related to the depositions of Google CEO Eric Schmidt and YouTube managers, revealing that Google knew it was overpaying for the video upload site in 2005 and that YouTube managers were likewise aware that copyright material was being uploaded to the site, according to the sources. It's not clear whether a person or persons involved in the leak will be identified, but the parties--including representatives for a class of plaintiffs suing Google--will meet in the U.S District Court for the Southern District of New York to discuss the matter.

CNET's story suggests that the investigation may relate to articles it published last October (see here and here), which cited deposition testimony and documents that were apparently covered by a protective order. And keep in mind that Viacom and YouTube are not the only parties to this matter, which also includes the plaintiffs in the Premier League putative class action.

(Updated to reflect that the matter also includes the Premier League case.)

Entertainment unions, trade associations thank Obama for support of copyright enforcement, ACTA

2010-03-24T09:46:00.001-07:00

A group of entertainment industry unions and trade associations ranging from the American Federation of Musicians and the American Federation of Television and Radio Artists to the MPAA and RIAA sent a letter Monday to President Obama, thanking him for his support of copyright enforcement and the Anti-Counterfeiting Trade Agreement. The letter comes after Obama gave a March 11 speech to the Export-Import Bank, in which he voiced strong support for ACTA, an executive agreement still under discussion by potential signatories.
Union and Trade Association letter to Obama

Don't forget the Premier League v. YouTube case

2010-03-22T08:01:00.000-07:00

Lost in all the attention paid to the briefs filed last week by Viacom and YouTube is the fact that there is a separate, though similar, copyright case pending against YouTube in the same court, filed by the English Premier soccer league and a number of other sports leagues and music publishers. Those plaintiffs -- who are also seeking class action status -- filed their own brief, asking the court to rule that Section 512 of the DMCA does not provide a safe harbor to YouTube. While the Premier League's brief is similar to Viacom's, there are differences, including the fact that these plaintiffs -- unlike Viacom -- are alleging infringement post-May 2008. See Br. at 3 n.1. Also keep in mind that YouTube's much-discussed evidence that Viacom itself uploaded videos to YouTube does not affect these other plaintiffs, at least not directly. (YouTube filed the same summary judgment motion against both Viacom and the Premier League plaintiffs.)

Separately, the Premier League plaintiffs' motion for class certification is due March 26, YouTube's opposition May 7, and plaintiffs' reply June 11. Those papers should be unsealed about 10 days after each filing.

Here's what I believe is a full list of the plaintiffs in this case:

The Music Force LLC
Cal IV Entertainment, LLC
Cherry Lane Music Publishing Company, Inc.
The Football Association Premier League Limited
Robert Tur
National Music Publishers' Association
The Rodgers & Hammerstein Organization
Edward B. Marks Music Company
Freddy Bienstock Music Company
Alley Music Corporation
X-Ray Dog Music, Inc.
Federation Francaise De Tennis
The Scottish Premier League Limited
The Music Force Media Group LLC
Sin-Drome Records, Ltd.
Murbo Music Publishing, Inc.
Bourne Co.