SDNY Tilts in Favor of De Minimis Defense in Pinball Copyright Case

The New York Law Journal reports on an interesting and eminently reasonable decision by Federal District Judge Denny Chin of the Southern District of New York, tossing a silly lawsuit by a pinball machine distributor whose machine appeared briefly in the background of a scene in the 2000 Mel Gibson/Helen Hunt romcom "What Women Want." The Dec. 29 decision in Gottlieb Development LLC v. Paramount Pictures Corp. is good news for studio and network production lawyers, who can now be a bit more confident that allowing brief, trivial appearances of copyrighted images or products in movies and TV shows will not result in liability.

As the opinion explains, Gottlieb's "Silver Slugger" machine appears in the background of one 3 1/2 minute scene. It's just a piece of furniture in the background, partially obscured; it's not part of the plot, and no character refers to it. Judge Chin did exactly the right thing: dismissed the case on a 12(b)(6) motion. On the copyright claim, Chin correctly concludes that, though there was technically "copying," it was de minimis and thus not actionable. (For the non-Latin speakers out there: "de minimis" is the court's polite way of saying, "I have 300 cases on my docket, and you're wasting my time with this crap? Take it up with Judge Judy.") Chin distinguished Ringgold v. Black Entertainment T.V. Inc., 126 F.3d 70 (2d Cir. 1997), which rejected a de minimis defense in the case of a poster that appeared in the background of a TV show, on the ground that in Ringgold, the poster at issue appeared for a longer time and actually related to the show's plot.

The court also dismissed Gottlieb's trademark claim, which was based on the theory that -- and I kid you not -- "its business reputation will be injured by any association of its products with the actor Mel Gibson and his purported anti-Semitic beliefs." Judge Chin generously labeled this argument "absurd." (I'd love to see the results of the trademark survey that asked "What Women Want" viewers what they thought of the pinball machine that barely appeared 37 minutes into the film. Frankly, I doubt that "Oh, that proved Gottlieb is a bunch of Jew-haters" was a common response.)

Two more points:

1) It's "de minimis" -- ("is" at the end) -- not "de minimus." This mistake is common (it shows up even in the NY Law Journal article linked to above), but it still drives me insane. So stop it.

2) This case disproves once again the copyleft fallacy that studios and record companies unthinkingly and in all cases favor an expansive scope of copyright protection. The fact is that they are extremely frequent copyright defendants, and thus have a very strong interest in making sure that there are reasonable defenses (de minimis, fair use, scenes a faire, etc.) that help them avoid liability.

Why the Software Industry's Anti-Piracy Fight Flies Under the Radar, and the Entertainment Industry Gets No Love

This post from National Journal's tech blog on prison sentences meted out to Chinese software pirates reminds me of something I've always considered curious: why does the software industry receive so little grief for its anti-piracy efforts, as compared to the vitriol regularly heaped on the music and film industries for their attempts to stamp out infringement of their works?

It's not as if the BSA, the industry's trade association, is a bunch of softies; its web site regularly touts its victories in civil litigation as well as its successes in getting law enforcement to target software pirates. It even offers rewards to encourage people to turn in suspected pirates.

I suspect the main reason is cultural. Many among the copyleft/"free culture" movement are techies. They either make money by writing software themselves, or hang out with people who do. They know that it's hard work, and they wouldn't want people to steal the fruits of their labor. So they understand, and tolerate, the BSA's efforts to fight infringement. Or they blind themselves to it, and don't ask too many questions. (Think they'll be protesting the Chinese legal system's lack of due process in response to the prison sentences mentioned above?) To the copyleft, however, "Hollywood" is a foreign culture, that they suspect is made up of fabulously wealthy stars and execs who don't really deserve their rewards. How dare those pampered fat cats persecute poor "fans" who just want to "share" culture?

I'm sure there are other reasons as well. Ideas?

Studios Lose a Round on Selectable Output Control; So Do Consumers

From the LA Times' Tech Blog comes word (via Broadcasting and Cable) that FCC Chairman Kevin Martin does not support the MPAA's petition to allow "Selectable Output Control" ("SOC"), an anti-piracy technique whereby content owners could selectively block use of unprotected analog outputs from home entertainment devices, such as cable boxes. According to the Times, this "means the studios will have to try again with Martin's replacement."

Here's the background: the studios want to introduce a new video-on-demand service where they would stream hi-def movies to consumers' homes, even before the DVD release. Of course, they're concerned that these movies not be pirated, thus eating into both VOD and DVD sales -- perhaps even theatrical. With SOC (banned by the FCC since 2003), the studios offering these movies could signal via technical means that a consumer could not zap the movie out of his cable box's analog outputs, to, say record it on a DVD or hard drive (this is a bit beyond my technical knowledge, but it's my understanding that the digital outputs that would be used to transmit the movie to a TV are generally already protected). In their petition, the studios signal that they won't offer such hi-def early-window VOD services without SOC.

So why does Martin oppose SOC? B&C reports that his opposition "stemmed from consumer groups' concerns that the waiver could undermine efforts to open cable platforms to competitive set-top devices, something Martin has pushed for." I don't get that; why would SOC necessarily get in the way of allowing consumers to choose different STBs? And it's not really the argument that the "consumer groups" (read "copyleft") make. Rather, they simply oppose giving "control" to their opponents in the entertainment industry. As the EFF explained in announcing its opposition to the MPAA petition:

The MPAA's goal here seems clear: Increase its members' control over how you choose to watch their material. As the opposition we joined puts it, "Granting the waiver would put MPAA member companies on the path to controlling what types of connections will be used by all U.S. consumers, and to profiting from that control."

But the copyleft/consumer groups' position on SOC actually harms consumers rather than helps them. Today the studios don't offer pre-DVD hi-def VOD. If SOC comes to be, they will, and consumers will have an additional choice in home-movie viewing. If the copyleft succeeds in continuing to block SOC, they won't. And how exactly are consumers better off when the government takes steps that result in the studios offering them fewer choices?

YouTube Removing Israeli Military Videos?

Commentary reports that YouTube has removed certain videos posted by the Israel Defense Forces to the channel the IDF set up to get its message out during the Gaza war:

The site hosted about a dozen videos showing things like Israeli humanitarian aid deliveries to Gaza and airstrikes that prevented terrorists from firing rockets at Israeli civilians.

This was apparently too much for YouTube, which moments ago removed several videos from the IDF’s channel, including the most-watched video, which showed a group of Hamas goons being blown up in an air strike as they loaded Katyusha missiles onto a truck. The point of such footage, as if it needed to be said, is not to revel in violence — it is to show the legitimacy of Israeli self-defense.

I can't see the removed videos, so I don't know what led to their removal. One likely explanation is that YouTube felt they violated its "Community Guidelines," which provide:

Graphic or gratuitous violence is not allowed. If your video shows someone being physically hurt, attacked, or humiliated, don't post it.

Commentary suggests that YouTube is applying a "double-standard" against Israel; I'm reluctant to credit any such charge without a lot more evidence. But whatever the reason for the videos' removal, this episode highlights the power that YouTube has to control worldwide political debate, as this very interesting article in the New York Times Magazine explained:

With control of 63 percent of the world’s Internet searches, as well as ownership of YouTube, Google has enormous influence over who can find an audience on the Web around the world. As an acknowledgment of its power, Google has given [Deputy General Counsel] Nicole Wong a central role in the company’s decision-making process about what controversial user-generated content goes down or stays up on YouTube and other applications owned by Google, including Blogger, the blog site; Picasa, the photo-sharing site; and Orkut, the social networking site. Wong and her colleagues also oversee Google’s search engine: they decide what controversial material does and doesn’t appear on the local search engines that Google maintains in many countries in the world, as well as on Google.com. As a result, Wong and her colleagues arguably have more influence over the contours of online expression than anyone else on the planet.

As I learned while working as an attorney on the McCain campaign, the best way to get a video you don't like removed from YouTube is to claim that it infringes on your copyright -- even if it doesn't. Even if the claim is totally bogus, YouTube will remove the video almost immediately. And even if the person who posted the video submits a counternotice under the DMCA, the video will stay down 10-14 business days. After having several of the campaign's YouTube videos (see here and here and here) removed due to copyright claims we believed were meritless, we wrote YouTube asking them to review campaign videos prior to removal, and refuse to remove the non-infringing ones. YouTube, though sympathetic with our arguments on fair use, politely declined.

So if Hamas really wanted to mess with the IDF's PR efforts, why doesn't it just submit a bunch of DMCA takedown notices on the IDF's YouTube videos? Somehow I doubt that people willing to blow up both themselves and innocents in buses and restaurants will be deterred by the threat of lawsuits under 17 USC sec. 512(f).

UPDATE: according to AFP, the removed videos have been restored:

The IDF spokesman's office said that some of the videos it had posted to the channel had been removed by YouTube but were later reinstated.

"We were saddened earlier today that YouTube took down some of our exclusive footage showing the IDF's operational success in operation Cast Lead against Hamas extremists in the Gaza Strip," the IDF spokesman's office said.

"Fortunately, due to blogger and viewer support, YouTube has returned some of the footage they removed," it added.

YouTube, as a matter of policy, does not comment on individual videos.

Floating More IP Czars

P2P Net, an infringement-friendly news site, joins the growing chorus of copyleft activists hoping to forestall President-Elect Obama from appointing a pro-industry IP Czar. P2P Net suggests Nashville music attorney Fred Wilhelms, who specializes in representing artists seeking allegedly unpaid royalties from record labels and publishers. (Why can't I find him on Tennessee's official attorney directory? Hope he's OK!)

The comments below the P2P Net article include some entertaining suggestions, including singer/songwriter Janis Ian, Bono, Kris Kristofferson (a Rhodes scholar!) and "NINE INCH NAILS BAND LEADER." Apparently unacceptable are "Lars [I killed Napster] Ulrich and Orrin [blow up their computers] Hatch."

CNET News Fails Civil Procedure

As an attorney and former reporter, I am constantly driven nuts by news stories that get the law wrong. Law uses its own language and can be perplexing to lawyers, let alone normal people. But that just means reporters (and editors) need to be extra careful; it's not an excuse to screw things up.

Today's example of botched legal reporting comes from CNET News, which published a story headlined "RIAA loses mistrial appeal." First, a little background about the case, called Capitol Records, Inc. et al. v. Thomas. Thomas is one of thousands of copyright infringement suits filed by US record labels against individuals for allegedly uploading and/or offering for upload music files over peer-to-peer networks; this is the only one of the cases to go to trial (virtually all settled). Plaintiffs won at trial, and Thomas was ordered to pay them $222,000. After trial, the judge issued an order stating that he believed he may have misstated the law in one of his jury instructions (regarding the so-called "making available" right), and invited briefing on the issue. After briefing and argument, the court said that he had indeed erred in his making-available instruction, and ordered a new trial. (Disclosure: while an attorney at Fox, I played a minor role in the submission of this amicus brief by the MPAA arguing that the original making-available jury instruction was correct. This post is based solely on publicly available information.)

As the case proceeded toward a new trial (where a different jury instruction would be used), the plaintiffs sought to appeal, i.e., to get the US Court of Appeals for the 8th Circuit to rule immediately that the jury instruction was correct, and that therefore no new trial was necessary. The problem is that the basic rule in federal court (with some fairly narrow exceptions) is that a party may not appeal until the case is completely finished in the District Court (which Thomas wasn't, because the second trial hadn't yet occurred). One way for a party to appeal before normally allowed is to ask the District Court for permission in a process called "certification" (under 28 USC sec. 1292(b), for those who care). Plaintiffs asked the court for such permission, but the court on Dec. 23 said no. That Dec. 23 order is the subject of the CNET article. So what did CNET get wrong? Let us count the ways:

1) CNET's headline "RIAA loses mistrial appeal" is wrong. The body of the article then makes the same mistake in stating that "the RIAA appealed the judge's decision to declare a mistrial...." These statements lead the reader to believe that the "RIAA" (more on that below) actually lost an appeal. But it didn't. It never appealed. As explained above, all that happened is that the District Court (not the court of appeals) denied plaintiff's motion seeking permission for an immediate appeal. There was no appeal; therefore the "RIAA" couldn't have lost one. And there may well still be opportunity for an appeal later.

2) The article also errs in stating that "the RIAA" "loses mistrial appeal," and "the RIAA appealed..." (my emphases). But the RIAA is not a party to this suit and thus did not "lose," "appeal," or anything else. The actual parties to the lawsuit are: Capitol Records Inc.; Sony BMG Music Entertainment; Arista Records LLC; Interscope Records, Warner Bros. Records Inc.; and UMG Recordings, Inc. The RIAA is a trade association of which the plaintiffs are members (and which coordinates these lawsuits), but it is the actual copyright owners -- not the RIAA -- that are parties to the lawsuits and that ultimately decide whether to file and how to litigate them. (The copyleft prefers this "RIAA" formulation because they like perpetuating the false notion that it's some nefarious organization, rather than actual copyright owners, that is bringing these suits.)

3) The article calls the Thomas case "the RIAA's latest attempt to gain a conviction for copyright infringement." But the term "conviction" only applies where someone has been found guilty of a crime. This case is purely civil. Thomas may (yet again) be found liable for copyright infringement, but she hasn't been charged by the government with criminal copyright infringement, and thus can't be convicted of anything.

4) The article states that plaintiffs' effort to win this suit "has been thwarted." Wrong. The Dec. 23 ruling simply means that there will soon be another trial, without an intervening trip to the Eighth Circuit. Plaintiffs still have an excellent chance of winning, as the court has held that they can prove the necessary "actual distribution" of plaintiffs' songs by showing that its investigators downloaded the files from Thomas. See this order at pages 9-12. Plaintiffs' victory may have been delayed, but it hasn't been "thwarted" -- at least not yet.

It's a hassle, but non-lawyers reporting on obscure legal maneuverings should really check the accuracy of their stories with attorneys before filing them. Or cut out the middleman and go to law school...

UPDATE: Wired's Threat Level blog makes the same "RIAA" error. Getting this right shouldn't be too hard; the front page of the complaint lists all the parties. No RIAA.

IP Czar: The Copyleft's Own Short List

No doubt alarmed by the copyright-industry-heavy list of names floated as potential nominees as the first-ever US IP Czar, the copyleft is coming up with its own wish-list. Or at least the Georgetown University Students for Free Culture group is. And they've started a FaceBook cause called "Towards a Comprehensive, Balanced U.S. Patent and Copyright Policy" with the goal of "Encourag[ing] President-Elect Obama to Choose the Best IP Enforcement Coordinator Possible":

If you believe that the new administration needs to take a new look at patent, trademark, and copyright law so that the US can take full advantage of the power of the Internet and other new technologies, sign up and help ensure the first White House patent and copyright czar does something more than just try to think up new ways to harass teenagers who download music.

The cause page then asks members to vote on six suggested czars:

• Larry Lessig
  
• Mary Bono Mack -- Congresswoman from CA
  
• Hal Varian -- Google Chief Economist and Berkeley economics professor (currently on leave)
  
• Gigi Sohn -- President of Public Knowledge, a relatively moderate copyleft group
  
• Pam Samuelson -- Berkeley law professor and longtime nemesis of copyright owners
  
• James Boyle -- Duke law professor and Co-Director of Duke's "Center for the Study of the Public Domain"

Appointment of any of these people would thrill the copyleft and send the entertainment industry into fits of panic and rage -- with the exception of Mary Bono Mack. As to Bono Mack: what in the world were they thinking?

The Looming Apocalypse

The motion picture and television industries have -- so far -- avoided the devastation that piracy has wrought on the music industry. The reasons are largely technical. First, song files are much smaller than movie or TV files, and thus can be downloaded much quicker. Many people are willing to wait a minute or two for a song, but not hours, or even days, for a movie. The time for downloading TV shows and movies will decrease as broadband speeds increase, but the fact remains that, for now, downloading audio-visual content is a lengthy process.

Second, unlike with music, the user experience for enjoying pirated TV shows and movies is considerably worse than with the legal version. A song downloaded illegally using Limewire can be enjoyed just as easily on one's iPod as the legal 99-cent version bought on iTunes (and some prefer the Limewire version, given the absence of Apple FairPlay DRM). With movies and TV shows, however, the experience of watching legal content (say, from a DVD) is vastly better than that obtained by downloading illegally. Buy a DVD, and you can watch it without hassle on your 46-inch LCD from the comfort of your couch. Download last week's Hollywood release from BitTorrent, and -- unless you're pretty damn tech-savvy -- you're probably going to have to watch it while sitting at your desk staring at a computer screen, or maybe on your laptop. Tolerable for a 22-minute TV episode; really unpleasant for a 2-hour movie.

The TV and film industry's piracy problem is going to increase by orders of magnitude once it's fairly easy to watch on a normal TV content downloaded onto a computer. That day isn't quite here, and now comes news that it's a little farther away than we thought. Comes news from Wired that a device called Myka, apparently designed to make it as easy as possible to watch on your TV content illegally downloaded using BitTorrent, is -- for the moment -- still "vaporware":

A set-top box with a built-in BitTorrent client, the Myka had the Pirate Bay crowd salivating when it was first announced in March. And rightly so when you consider a tiny box with HDMI connections, H.264 and Blu-ray support, embedded Linux, a 160GB hard drive and the ability to suck all of Hollywood's top hits directly from the file-sharing networks, no purchase required.

But the pirate's dream appliance remains a pipe dream, and it looks likely to stay that way. As reader Chris Lindley points out, Myka's website is still taking pre-orders, even though the user forums are overrun with spam and requests for refunds.

The Wired story goes on to point out that there are other ways to get illegally downloaded content from computer to TV, but those strike me as far from user-friendly for the average non-techie.

Once it truly does become as easy to watch an illegally downloaded movie on your TV as it is to listen to an illegally downloaded song on your iPod -- and I suspect that's going to happen within the next 2-4 years -- piracy risks becoming a reasonable substitute for legitimate DVD purchases by mainstream consumers, threatening one of the industry's (stagnant or declining) profit centers. The fight against piracy isn't going to get any easier.

NY Times: Online Piracy Menaces Pro Sports

Monday's NY Times has an interesting article on sports leagues' efforts to combat real-time piracy of live broadcasts of their games:

After years of focusing on the pirating of highlight clips and photos on the Web, the major professional sports leagues are finding that pirated feeds of live games are now common and becoming a menace to their businesses, especially at a time when leagues are trying to build their own businesses offering live games on the Internet for a subscription fee.

“We never felt that the jewel in our crown, the live games, would be vulnerable,” said Ayala Deutsch, senior vice president and chief intellectual property counsel at the National Basketball Association.

According to the article, live broadcasts are recorded by US residents on PC tuner cards, and are then sent to Chinese sites like TVants.com (which I can't seem to access now), from which they can be viewed worldwide -- without paying league subscription fees. David Price of the anti-piracy consulting firm Envisional makes the smart point that the danger to the leagues is particularly acute, since live-broadcast rights represent a large percentage of revenues, which can't be made up in later windows or ancillary markets:

I think it’s different than looking at movies or music. You might not go to the cinema, but you’ll buy the DVD. With sports, they very much have this one shot to get you to watch the game. If suddenly there is a way to get that live transmission for free, then there is a real threat to their business.

The article claims that the NFL has "disabled several hundred sites" broadcasting pirated live streams. I have a very hard time believing that. As I learned in my years as an antipiracy attorney, it is exceedingly difficult, time-consuming, and expensive to "disable" a single site, even a blatanly infringing one, let alone several hundred. And China, where many of these sports-piracy sites apparently operate, barely lifts a finger to combat infringement -- particularly where the complaining copyright owner isn't Chinese.

The article quotes an MLB exec's claiming that game piracy is "embryonic, [and] it’s not widespread." Maybe, but I suspect this problem is going to get a whole lot worse.

Who Will Be The New IP Czar?

Now that President-Elect Obama has finished selecting his cabinet, he can turn to the only decision any self-respecting copyright attorney cares about: who will be the new IP Czar?

As background, earlier this year the Congress passed, and on Oct. 13 President Bush signed into law, the "PRO-IP Act." The new statute includes a grab-bag of provisions to enhance federal enforcement of copyright and related laws. Among the most discussed is the creation in Section 301 of a new position in the White House known as the "Intellectual Property Enforcement Coordinator" -- the "IP Czar." The Czar's duties include coordinating IP enforcement policy among various agencies (Department of Justice, Commerce, State, US Trade Representative, etc.), though the statute is explicit that he/she "may not control or direct any law enforcement agency, including the Department of Justice, in the exercise of its investigative or prosecutorial authority." (A similar position already exists in the Department of Commerce; presumably moving it to the White House will give it more prominence and authority.)

So who's it going to be? Speculation is ... not exactly running wild. But there is some. Here's the long list, pieced together from this article originally published in Billboard, and this one from National Journal:

• Hal Ponder, a lobbyist for the American Federation of Musicians
• Michelle Ballantyne, a lobbyist for the RIAA who previously worked for Tom Daschle on the Hill and in the Clinton White House
• Victoria Espinel, policy advisor at USTR
• Bill Ivey, who now heads the Curb Center for Art, Enterprise, and Public Policy at Vanderbilt University and who previously worked in the country music industry
  
• Neil MacBride, Vice President, Anti-Piracy and General Counsel at the Business Software Alliance and a former staffer to Sen. Joe Biden (who has a very pro-IP record)
  
• Jennifer Duck, a staffer for Sen. Dianne Feinstein who serves as Chief Counsel and Staff Director for the Senate Judiciary Subcommittee on Terrorism, Technology, and Homeland Security
  
• Alec French, a lobbyist for NBC Universal and former Hill staffer on IP issues
• Shira Perlmutter, currently head of Global Legal Policy for The International Federation for the Phonographic Industry ("IFPI"), the international version of the RIAA
• Jayme Roth, a staffer for Sen. Evan Bayh
• Shanna Winters, a staffer to Rep. Howard Berman, where she serves as chief counsel to the House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property.

A couple points:

1) While I'm not familiar with all of these people's records, at first glance this list seems to be extremely favorable to copyright owners. Extremely. Virtually all have either worked for media companies, their trade associations, or for members of Congress who favor strong copyright protection. Not a copyleftist among them. I'm somewhat surprised, given that uber-copyleftist Larry Lessig, copyright owners' chief academic antagonist, played a role in crafting the Obama's campaign technology policy, which itself contained some code words ("we need to update and reform our copyright and patent systems to promote civic discourse, innovation and investment") that made copyright owners a bit nervous. In announcing his support for Obama and discussing tech policy, Lessig wrote:

After the debacle that is the last 7 years, the duty is upon the Democrats to be something different. I've been wildly critical of their sameness (remember "Dems to the Net: Go to hell" which earned me lots of friends in the Democratic party). I would give my left arm to be able to celebrate their difference. This man, Mr. Obama, would be that difference.

Curious how Lessig feels when he sees this list of potential IP Czar nominees. Maybe like the Iraq War opponents, gay-rights supporters, and mass-transit advocates grumbling that this is not quite the change they believed in.

2) Lots of lobbyists! Wait a sec -- weren't things supposed to be different? Not so much. According to the Exclusive Rights blog, which has done yeoman's work on this topic, Ballantyne, French, MacBride, Perlmutter, and Ponder are all registered lobbyists. Exclusive Rights thinks there is "more than enough wiggle room for Mr. Obama to claim compliance with his campaign promise while still selecting an RIAA affiliated appointee." Maybe. But are his supporters among the copyleft and the good government groups really such cheap dates?

Other names? Anyone moving up or down the list? Let me know in the comments or at copyrightsandcampaigns@gmail.com.

Welcome to Copyrights & Campaigns

Welcome to Copyrights & Campaigns. My plan for this blog is to provide a forum for analysis of copyright, First Amendment, and related issues from a reasonable pro-copyright-owner perspective, with emphasis on the interaction of these issues with campaigns and the political process.

One of my motivations for starting this blog is the shocking lack of balance in discussion of copyright and related issues on the Internet. Want a blog arguing that copyright law is far too strong, that content owners routinely abuse the law, that DRM is evil, and that the real problem isn’t piracy, but instead copyright owners’ efforts to fight it? Those are a dime a dozen. But just try to find blogs taking the side of copyright owners, championing the value of copyright, arguing why infringement is wrong, or that DRM is a useful tool. There are a few, but best stick to reading copyright owners' legal briefs -- not the blogs. Copyright owners actually have a pretty good story to tell; they just haven't chosen to tell it in the blogosphere. The goal here is to play a part in changing that.