Saturday, August 29, 2009

Article criticizes deciding fair use on summary judgment; Gertner exhibited 'class favoritism' toward 'large corporations' in fair use ruling?

Professor Ned Snow of the University of Arkansas law school has a provocative new article about courts' frequent use of summary judgment to adjudicate fair use defenses in copyright cases. As the abstract demonstrates, Snow opposes the use of summary judgment to decide fair use (except, perhaps, where the defendant is the movant), and instead believes juries should routinely determine fair use vel non:
Summary judgment has become commonplace to decide issues of fair use in copyright cases. But it was not always so. For well over a century, juries routinely decided issues of fair use. Courts recognized that the subjective nature of inferences in the fair use analysis made those inferences factual, precluding a summary disposition. They understood that the Seventh Amendment right to a jury and the First Amendment right of free speech demanded juries in fair use cases. Today, however, all this has been forgotten. Courts of today characterize the inferences in the fair use analysis as entirely legal so that summary judgment is appropriate. This Article examines the question of whether these inferences constitute matters of fact or matters of law. It further examines the reasons for which courts changed their characterization of these inferences, along with the constitutional tensions that have arisen as a result of this changed characterization.
Whatever the merits of this proposal (and I have grave doubts), there's no doubt that it would work a fairly radical shift in copyright litigation, where jury trials over fair use are rare (though not nonexistent). And, if adopted, Snow's proposal would seem to put an end to appellate development of fair use doctrine, at least in cases where the jury decided in favor of fair use. Assume that in Snow's proposed world, a jury returned a defense verdict on fair use in a case where, today, most courts would have granted summary judgment for the plaintiff on the issue, removing it from the jury's consideration. On what basis could the court of appeals review the verdict? Other than in extreme cases, wouldn't the appellate court have to say, "Sorry, but the jury has spoken. Even though we would weigh the statutory factors differently, and under our precedent, such use would not be considered fair, you're outta luck."? Would there even be a need to march through the four factors, or refer to existing fair use precedent?

Snow focuses on Judge Nancy Gertner's grant of summary judgment against Joel Tenenbaum's fair use defense as an example of improper judicial usurpation of the jury's role:
A finding of fairness in this situation would have offended Judge Gertner because such a finding—in her view—would have been standardless, or in other words, it would have been for a reason that the law of fair use does not contemplate. And if not based on the standards of fair use set forth in the law, what reason did Judge Gertner fear that ordinary citizens might apply in this case, where large corporations were suing college students? It seems possible, if not probable, that she feared jurors would determine the issue of fairness out of disdain for the large corporation—the sophisticated, wealthy corporation that was spending an abundance pursuing the seemingly poor, harmless college student. The quoted statement of Judge Gertner suggests that she did not trust the jurors to find against the corporate plaintiffs because they were large corporations, thereby suggesting her view that the large corporations needed protection from the twelve ordinary citizens. At a minimum, the statement demonstrates that Judge Gertner feared that the jury would rule differently than she would. By ruling herself rather than submitting the issue to a jury, Judge Gertner introduced the possibility that class favoritism influenced her ruling. It thereby appears that fair use is subject to the influences that the Seventh Amendment was intended to protect against.
Article at 55-56 (footnotes omitted). Frankly, the suggestion that Judge Gertner's fair use decision was motivated by "class favoritism" in favor of "large corporations," and against a "seemingly poor, harmless college student," is ridiculous. Judge Gertner is known as one of the most liberal members of the entire federal judiciary, an "outspoken product[] of the '60s and '70s counterculture movement." If anything, she expressed antipathy toward "large corporations," criticizing the "huge imbalance in these cases" and telling the plaintiffs' counsel, "the formalities of this are basically bankrupting people, and it's terribly critical that you stop it." And her personal connections to the defense were well-known; she personally recruited Harvard professor Charles Nesson (who had once represented Gertner herself) to take Tenenbaum's case. And (though I know it's impolitic to point out) Judge Gertner's husband John Reinstein, legal director of the Massachusetts ACLU, works for an organization that has opposed the labels' suits against individuals like Tenenbaum. For the record, when it came time to make substantive rulings in the case, and to conduct the trial, I thought Judge Gertner faithfully applied the law, and did not exhibit bias toward either side. And I thought her fair use opinion was consistent with precedent (if a bit too indulgent of some of Tenenbaum's arguments for my taste), and I expect it to be upheld on appeal.

(h/t Copyright Law)

Parties file post-trial reply briefs in Thomas-Rasset case

The parties in the record labels' case against Jammie Thomas-Rasset each filed their reply briefs in support of their post-trial motions on Friday.

Here's Thomas-Rasset's Reply in support of her Motion for a New Trial, Remittitur, and to Alter and Amend the Judgment. As Thomas-Rasset notes at the outset, there is little new in this brief, which seeks a reduction in the jury's award of $1.92 million for downloading and "sharing" 24 songs. Thomas-Rasset once again asks the court to apply the BMW v. Gore line of cases about punitive damages to reduce an award of copyright statutory damages -- an apparently unprecedented step . Here's the plaintiffs' opposition, and the government's brief in defense of the award.

And the record labels filed their Reply in support of their motion for a permanent injunction. The labels' brief focuses on rebutting Thomas-Rasset's argument that they are not entitled to an injunction under the standards announced by the Supreme Court in eBay v. MercExchange. "Contrary to Defendant’s contention, eBay did not even address much less alter the established law with respect to the presumption of irreparable harm in cases of proven copyright infringement," argue the plaintiffs, emphasizing that eBay was a patent case.

Judge Michael Davis has not announced when, or whether, he will hold oral argument on the post-trial motions, which are now fully briefed.

Monday, August 24, 2009

'Skank' blogger to sue Google? Good luck.

Rosemary Port, revealed to be the authoress of the "Skanks in NYC" blog that allegedly defamed model Liskula Cohen, now plans to bring a "$15 million federal lawsuit against" Google for revealing Port's identity, the Daily News reports.

To which I say: good luck.

Here's the legal background. Cohen sought to sue the blogger behind "Skanks in NYC" for defamation. But she didn't know who the blogger was. So she initiated proceedings in New York state court for pre-action discovery under CPLR § 3102(c), asking a judge to order Google, which hosted the blog through its Blogger service, to produce identifying information (e.g., email and IP address) to Cohen. Port (while remaining anonymous), hired attorneys to resist Cohen's demand for information. She argued that the words in the blog were not capable of defamatory meaning, and that the revelation of her identity would violate her constitutional right to speak anonymously.

Google, for its part, sat on the sidelines, submitting " substantive opposition" (p. 1) to Cohen's application under section 3102(c). Port told the Daily News, "When I was being defended by attorneys for Google, I thought my right to privacy was being protected." But I think she is seriously mistaken if she thought she "was being defended by attorneys for Google." Again, Google did not resist Cohen's discovery action, and Google's attorneys owe their loyalty to Google, not Port. Google wouldn't turn over the information voluntarily, but as soon as Cohen obtained her court order, Google complied, producing an email address associated with the Blogger account, from which Cohen was quickly able to identify Port.

But now, according to the Daily News, Port will "charge Google 'breached its fiduciary duty to protect her expectation of anonymity,' said her high-powered attorney Salvatore Strazzullo." (Please do make sure to check out the web site of said "high-powered attorney," wherein he boasts that he has been "glorified as an outspoken attorney BY THE INSIDER television show and called 'a cross between a bulldog and Chihuahua' BY NY POST WRITER ANDREA PEYSER.")

No matter how "high-powered" her attorneys, I'm at a loss to see how Port has any sort of claim against Google here. Port's attorneys argued in court to protect her anonymity -- and lost. Is she saying that if Google's attorneys had actively opposed the discovery action, the result would have been different? That seems highly doubtful; the judge fully considered the relevant arguments and precedent, and made a decision that First Amendment expert Sam Bayard of the Citizen Media Law Project concluded is "probably the right call at this stage of the lawsuit." Moreover, Port knew exactly what she was getting into when she signed up for Blogger. Google's privacy policy states that it will reveal information in response to "legal process or enforceable governmental request," which is exactly what happened here. Once the court granted the discovery order, Google had no choice but to comply. Is Port's attorney really going to argue that Google had a "fiduciary duty" to refuse?

Port's attorney Strazzullo says he is "
ready to take this all the way to the Supreme Court." I doubt he will find much sympathy there.

UPDATE: Once again demonstrating its inability to get basic legal facts right, Techdirt claims that "Liskula Cohen bizarrely sued Google and an anonymous blogger for putting up a blog...." False, as I first explained last January. Cohen sought pre-action discovery under CPLR § 3102(c), seeking information from Google, but has not sued Google, Port, or anyone else. UPDATE II: Now the author of the Techdirt post says I'm "being nitpicky" because I've "got some weird obsession with trying to make us look bad..." Actually, Techdirt does quite an excellent job at making itself "look bad" when it comes to reporting on legal matters. The lede of the post on Cohen contained two errors: 1) that Cohen "sued Google"; and 2) that Cohen " anonymous blogger." And rather than correct its errors, it attacks me personally. And its effort to defend itself contains further errors. Techdirt says "for all intents and purposes, [Google] was" sued. Wrong. Google was merely the subject of third-party discovery; it was not remotely "sued." And Techdirt writes, "Cohen went to court, forced Google into court, forced Google to defend itself and a judge ruled against Google and in favor of Cohen." False. As I explained, Google did not "defend itself"; it submitted " substantive opposition" (p. 1) to Cohen's application. And the judge did not "rule[] against Google"; it ruled against Port. Why anyone would rely on Techdirt for accurate reporting on legal issues is beyond me. UPDATE III: Goaded by its own commenters, Techdirt finally corrected its error. But it still insists, "In common parlance, the company was sued, which is why pretty much every reporter wrote it up that way." Actually, the real reason some (but certainly not all) reporters made that error is because they're sloppy and don't take the time to make sure they get basic legal concepts right. UPDATE IV: It only gets better. Techdirt is now back to insisting, "She sued." Then why did it correct its post? And citing erroneous newspaper reports for that falsehood does not exactly help its cause.

Sunday, August 23, 2009

My 'copyright as property' debate with Bill Patry, cont...

Bill attacks with Alan Greenspan, "bankers, hedge fund owners, AIG, and the real estate industry." I counter with Ruth Bader Ginsburg.

Friday, August 21, 2009

More property talk with Bill Patry and me

See here and here.

PFF flays Techdirt post on DoJ statutory damages brief in Thomas-Rasset case

Earlier this week, I corrected the record on Techdirt's falsehoods about various Department of Justice attorneys who had once represented recording industry clients while in private practice. Today at the Progress & Freedom Foundation's blog, Tom Sydnor takes on Techdirt's numerous misstatements and mischaracterizations of the law regarding statutory damages, as well as the facts of the Jammie Thomas-Rasset case. The post by Sydnor, a former Counsel for Intellectual Property and Technology on the Senate Judiciary Committee, is lengthy, but highly substantive, and well worth reading.

Nesson to court: I won't remove recordings from web; sanctions issue remains alive

In a letter dated August 13 but made available only this week, Harvard Law School professor Charles Nesson has told the judge in the Joel Tenenbaum case that he will continue to post to the web unauthorized audio recordings he made of the judge and opposing counsel and will use them for "teaching the lessons to be learned from the litigation."
Nesson Letter To Gertner Re Recordings 8.13.09

Nesson's recording practices, which Judge Nancy Gertner has termed a "violation of the law" (a reference to Massachusetts General Law, Chapter 272, Section 99, which makes it a felony, punishable by up to five years in state prison, to record conversations without the consent of all parties), remain the subject of a pending sanctions motion filed by the record label plaintiffs July 6. On July 7, Judge Gertner issued an Order to Show Cause regarding Nesson's recording, requiring him to explain why he "should not be sanctioned for what appears to be blatant disregard of a court order on an issue that the Court has addressed repeatedly in this case." Here's the "declaration" that Nesson filed in response to the OSC.

In a July 31 colloquy immediately after the jury in the case handed down a $675,000 verdict in favor of the plaintiffs, they indicated that they were willing to withdraw their sanctions motion if Nesson would destroy all copies of the unauthorized recordings. But Nesson has refused, and his August 13 letter indicates that he intends to continue to use them for his purposes.

Judge Gertner could rule on the sanctions motion at any time.

Thursday, August 20, 2009

Email subscriptions now available

Upon popular request, I have added a widget to the right-hand column that allows readers to subscribe to Copyrights & Campaigns via email. If you enter your email address, it should automatically send you a daily compilation of new posts.

Wednesday, August 19, 2009

Patry vs. Sheffner on copyright as property

Bill's post, taking on the concept of copyright as property, and my response, defending it.

Tech Daily Dose: 'Obama Official Blogs For Google'

Reports National Journal's Tech Daily Dose:
Carole Jett, deputy chief of staff for the Department of Agriculture, on Wednesday became the first current Obama administration official to guest post on one of Google's corporate blogs. Jett's memo, which was featured on Google's enterprise blog and was cross-posted to its public policy blog, highlighted her department's use of an interactive Google map that provides detailed state-by-state information about economic stimulus package spending. The map makes it easy for people to find information about stimulus projects in their part of the country by department, program, or dollar amount.
Before you decide what you think about this, ask yourself: How would you feel about an Obama administration official blogging for, say, an official Universal Music Group blog, about how listening to UMG's music improves employee morale at her department? Or a Bush administration official blogging for Exxon, about how much his agency appreciates the steady and reliable supply of gasoline provided by the oil company?

Tuesday, August 18, 2009

Some additional personal disclosure

In the interest of full disclosure, I wanted to let readers know that I recently accepted a temporary position at NBC Universal, where I worked 2005-06. From September through early next year, I will be working as a production attorney in the NBC Universal Television Group. (This position does not involve anti-piracy work, which has been the main focus of this blog.)

The disclaimer I've had in the right-hand column since the beginning still applies: "This is [my] personal blog and does not necessarily represent the views of any past, present, or future clients or employers."

Monday, August 17, 2009

Once again: Copyright misuse is not a cause of action

Today a federal judge in Delaware ruled on Universal Studios Home Entertainment's motion to dismiss Redbox's suit against it. Here's the Wall Street Journal's story on the ruling. The court permitted Redbox's antitrust claims to proceed, while dismissing its claim for tortious interference with Redbox's contracts with USHE's distributors.

I want to highlight the court's other ruling, dismissing Redbox's affirmative claim for copyright misuse. The court's ruling was consistent with ample precedent (see pages 7-9 of this brief), and correct. So for the umpteenth time: There is no such thing as an affirmative claim for copyright misuse. Copyright misuse is an affirmative defense to a claim of copyright infringement. When a defendant is sued for copyright infringement, it may assert a defense of copyright misuse, arguing that the plaintiff has improperly sought to extend the scope of its copyright, usually through overly restrictive licensing practices or similar anti-competitive behavior. If successful, the defense, which is derived from the equitable doctrine of unclean hands, bars the enforcement of the copyright until the abusive practice is purged. See, e.g., Video Pipeline v. Buena Vista Home Entertainment, 342 F.3d 191 (3d Cir. 2003).

Copyright misuse is a real doctrine, but it simply is not an affirmative cause of action. At some point, plaintiffs will stop pleading it as such. But it's taking a while.

A tale of two briefs: What do DoJ's comments on same-sex marriage tell us about the Obama Administration's policy views on copyright?

When the Department of Justice last week filed its brief in defense of the constitutionality of the $1.92 million Jammie Thomas-Rasset verdict, it included the following paean to copyright, and statutory damages:
Copyrights are of great value, not just to their owners, but to the American public as well. Congress has recognized this value from the first days of the Republic. The federal copyright statute...has consistently authorized the awarding of statutory damages to ensure significant monetary awards in copyright infringement lawsuits that will make copyright owners whole and deter further infringement. This historical approach is followed in the current version of the Copyright Act's statutory damages provision; it provides compensation to copyright owners who have to invest resources into protecting property that is often unquantifiable in value and deters those infringing parties who think they will go undetected in committing this serious public wrong. Congress' expressed desire to increase deterrence, accompanied by Congressional findings, demonstrates that Congress gave due regard to the public harm, opportunities to commit multiple violations, and need to ensure compliance in establishing its statutory range. The Court should defer to Congress' reasoned judgment. The proper place for any policy debate of what should be the level of deterrence resides in the halls of Congress.
What are we to make of this passage? Was it an expression of the Obama Administration's firmly held views on copyright as a policy matter? Or just fluffy lawyer argument, the routine legal defense of a federal statute of the sort that all administrations engage in, a practice which current Solicitor General Elena Kagan has wholeheartedly endorsed?

I was leaning toward the latter explanation. But then today I read this brief from DoJ, defending the constitutionality of the Defense of Marriage Act. In its DOMA brief, DoJ goes out of its way to distance itself from the law, which bars federal recognition of same-sex marriage, and provides that states need not recognize same-sex marriages from other states:
With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here. [Footnote: This longstanding and bipartisan tradition accords the respect appropriately due to a coequal branch of government and ensures that subsequent administrations will faithfully defend laws with which they may disagree on policy grounds.]
The difference between the copyright brief and the DOMA brief is striking. Is it fair to conclude that, where the Administration has a policy view on a statute it is defending, it will so state? And just as its views on DOMA as a policy matter are surely genuinely held, can't we conclude the same as to its statements on copyright? Does the absence from the Thomas-Rasset brief of a condemnation of the $1.92 million verdict on policy grounds signal approval, as a policy matter, of the size of the award? Or is it just that the issue of same-sex marriage is so politically sensitive (especially given the outcry from Obama allies over a previous DOMA brief) that the Administration felt compelled to highlight its distaste for the policy underlying the statute? Interesting questions, to which I don't have the answers.

Informed speculation about what this all means is welcomed in the comments.

Court to Google: Unmask 'Skanks in NYC' bloggers

The anonymous bloggers behind the "Skanks in NYC" blog may soon be anonymous no more.

As first reported by MediaPost's Online Media Daily, a judge in Manhattan has ordered Google (which hosted the blog through its Blogger service) to reveal the identity of the person or persons behind the
now-defunct blog, whom model Liskula Cohen has accused of defaming her by calling her a "skank," "ho," "Skankiest in NYC," a "psychotic, lying, whoring ... skank," and posting sexually provocative pictures of her (or someone else, whom the blog claimed to be Cohen).
Liskula Cohen Opinion

The "Skanks in NYC" bloggers fought hard to remain anonymous, hiring a lawyer to oppose Cohen's motion for an "order for pre-action disclosure" under CPLR § 3102(c). (Google did not oppose the motion.) The bloggers argued that the comments about Cohen were "non-actionable opinion and/or hyperbole" and "have become a popular form of 'trash talk' ubiquitous across the Internet and network television and should be treated no differently than 'jerk' or any other form of loose and vague insults that the Constitution protects." And they asserted that the forum of a blog "negates any impression that a verifiable factual assertion was intended" since "blogs have evolved as a modern-day soapbox for one's personal opinions" by "providing an excessively popular medium not only for conveying ideas, but also for mere venting purposes, affording the less outspoken, a protected forum for venting gripes, leveling invective, and ranting about anything at all."

But Supreme Court Judge Joan Madden didn't buy it, ruling that blogs are not a free-fire zone for defamatory speech:
The court also rejects the Anonymous Bloggers's argument that this court should find as a matter of law that Internet blogs serve as a modern day forum for conveying personal opinions, including invective and ranting, and that the statements in this action when considered in that context, cannot be reasonably understood as factual assertions. To the contrary, as one court in Virginia has articulated: "In that the Internet provides a virtually unlimited, inexpensive, and almost immediate means of communication with tens, of not hundreds of millions of people, the dangers of its misuse cannot be ignored.... Those who suffer damages as a result of tortious or other actionable communications on the Internet should be able to seek appropriate redress by preventing the wrongdoers from hiding behind an illusory shield of purported First Amendment rights. In re Subpoena Duces Tecum to America Online, Inc., 2000 WL 1210372 (Va. Cir. Ct.), rev'd on other grounds, 261 Va. 350 (Va. Sup. Ct. 2001).
Breaking with the California Court of Appeal, which infamously held that "skank" was not capable of defamatory meaning, Judge Madden wrote, "the explicit use of the words 'skank,' 'skanky,' 'ho,' and 'whoring' are reasonably susceptible to a defamatory connotation, since 'a communication that states or implies that a person is promiscuous is defamatory.... Reading those alleged defamatory words against the background of their issuance, the thrust of the Blog is that petitioner is a sexually promiscuous woman." (For further background on New York's law of skank, read Sam Bayard's seminal post.) Given this sharp divergence between the New York and California courts, the U.S. Supreme Court may well have to step in to resolve this stark split over skank.

And here, because this really can't be watched too many times, is The Onion's report examining the pressing question: "Are reality shows setting unrealistic expectations for skanks?"

Continuing my dialogue with Bill Patry: Is the customer always right?

Bill Patry and I are continuing our debate on his new blog. We tackle such issues as whether the customer is always right (I take the ever-popular "no" side), and whether there is an appropriate place for DRM. Please go to Bill's blog to read the whole thing.

Sunday, August 16, 2009

Techdirt, and the anatomy of a smear

Journalism -- whether the traditional kind or on the Web -- requires a commitment to getting the facts right: checking them, and double-checking them, and where necessary triple-checking them, before presenting them to the public. This is especially so when the reporting consists of accusations of wrongdoing. Friday's Techdirt post on the Department of Justice's brief in the Jammie Thomas-Rasset case falls far, far short of any standard of accuracy and fairness. It's false, and it's false in a way that impugns the ethics and integrity of several high-ranking government attorneys -- all without a shred of evidence.

Here's the background: Several attorneys who practiced in the Washington office of Jenner & Block have been appointed to prominent positions in the Obama Justice Department:
While at Jenner, these attorneys' clients included, among others, companies in the recording industry. As members of the bar, these attorneys are required, on pain of disciplinary action, to follow rules related to conflicts of interest. They must also follow the Obama Administration's own ethics policy, which was promulgated by executive order on January 21, 2009. That executive order provides that all appointees must undertake the following pledge upon entering government service:
I will not for a period of 2 years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.
This two-year recusal mandate is longer than the one-year period mandated in 5 CFR § 2635.502, which pre-dates the Obama Administration. (Techdirt previously misreported that the one-year period applies. Main Justice corrected the record, and I followed. Techdirt has never corrected its false report.)

Friday's Techdirt report on the government's Thomas-Rasset brief asserts that unnamed DoJ attorneys are violating their ethical obligations to avoid work that involves their former clients. Techdirt asserts that the brief, which defends the Thomas-Rasset verdict from constitutional attack, "isn't a huge surprise, given the fact that the Justice Department is stocked with former lawyers for the entertainment industry..." (emphasis added). Techdirt concedes that "none of the former RIAA lawyers are signatories to the brief," but says "you have to imagine their 'expertise' was consulted." Then, in the last paragraph, it says:
It's a neat, but immensely troubling, trick by the entertainment industry. Sneak through bizarre and totally unsupported legislation through a Congress that's never met a stronger copyright law it didn't love, using your high paid lobbyists. Then, get those same lobbyists appointed to the Justice Department to defend it against Constitutional challenges.
Again, implicit in these statements is the accusation that the "former RIAA lawyers" have violated the Obama Administration's executive order on ethics, the Code of Federal Regulations, and bar ethics rules. And what is Techdirt's evidence of such wrongdoing? There is none. Absolutely none. Zero. Instead, Techdirt asks that the reader "imagine their 'expertise' was consulted" (emphasis added).

Techdirt's assertion that the "entertainment industry"'s "high [sic] paid lobbyists" were the "same lobbyists" who allegedly caused the "Justice Department to defend [copyright law] against Constitutional challenges," is easily checked, and easily debunked. I ran each of the five Jenner attorneys listed above through the Senate-maintained Lobbying Disclosure Act Database. Of the five, the only one who the database lists as a registered lobbyist is Perrelli. And his lobbying, in the early 2000s, was on behalf of "American survivors of the August 7, 1998 bombings of U.S. Embassies in Kenya and Tanzania" -- obviously far afield from the "entertainment industry" or copyright. In other words, Techdirt's allegation that the "entertainment industry"'s "high [sic] paid lobbyists" are inhabiting the DoJ -- let alone had anything to do with the Thomas-Rasset brief -- appears to be totally unfounded. (The fact (acknowledged by Techdirt) that the Bush Administration took the exact same position on the statutory damages issue in the Thomas-Rasset case further undermines the theory that the attorneys listed above improperly influenced the decision to file this brief. I'm not aware of any attorneys in the the Bush DoJ who represented the recording industry.)

When DoJ defends the constitutionality of a federal statute, the division that handles the task is the Federal Programs Branch. That division is headed by Gershengorn, one of the former Jenner attorneys who represented music industry clients. The attorneys listed on the Thomas-Rasset brief include Civil Division chief Tony West (the Federal Programs Branch is part of the Civil Division), an AUSA named B. Todd Jones, John R. Griffiths, Assistant Branch Director, Civil Division, and Adam D. Kirschner, a trial attorney in the Federal Programs Branch. Note: Gershengorn's name is not listed. On Friday, I submitted an inquiry to the DoJ press office regarding recusals in this case, but have not yet received a response; I will post an update when and if I do. (West recused himself from the Cablevision case, in which DoJ opposed cert., because Morrison & Foerster, the law firm he recently left, filed an amicus brief on behalf of music publishers in that case. But there is no indication that West himself ever represented entertainment industry clients.)

If Techdirt actually had evidence that the former Jenner attorneys were violating their ethical obligations by manipulating Administration policy to favor their recent former clients, that would be a great story, and I'd be annoyed that I didn't break it myself. But Techdirt has no such evidence -- at least none that it deigned to include in its post. If you're going to accuse high-ranking Department of Justice attorneys of violating their ethical obligations, shouldn't you have more evidence than ... none? Or am I just clinging to an dying, archaic, outmoded business model?

Can you sue in state small claims court over copyright infringement? Sorry, but no.

The West Seattle Blog has an interesting post about a case of copyright infringement of a photo. Here's the story in a nutshell: a photojournalist named Christopher Boffoli took a photo of a restaurant called Beato, which ran in the WSB last November. The building that housed Beato was subsequently put on the market, and the online real estate listing contained Boffoli's photo. This, despite that the real estate firm had not obtained permission. And, "This situation was made more odious by the fact that, when I discovered my image online, it was being used with a Commercial Broker’s Association (CBA) copyright flag on it," Boffoli told the WSB.

Sounds like a slam-dunk case of copyright infringement. Not the worst case in the world, one that would involve huge damages, but certainly Boffoli deserves redress. He tried to get some from the listing agent, who he says ignored his demands. And so Boffoli filed suit in small claims court in King County, Washington. And he won: the judge awarded him $1,000 in damages (the amount he demanded), plus court costs.

I'm glad Boffoli got his redress, and the infringer her comeuppance. And I hate to rain on the parade. But the fact is that the small claims judge had no authority to hear this case, and the defendant has a solid argument on appeal (assuming it wasn't waived) that the case should be dismissed. Federal law is clear: only federal courts may hear copyright infringement cases:
The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks. Such jurisdiction shall be exclusive of the courts of the states in patent, plant variety protection and copyright cases.
28 U.S.C.
§ 1338(a) (emphasis mine). One commenter to the WSB post addresses the jurisdictional issue by arguing:

For those arguing the jurisdiction of [small claims court], you need to separate the claims correctly. Chris was making a claim about the unlawful use of his property, not the copyright. The fact that it was copyrighted in this case is just support for his ownership claims.... The claim against theft is completely independent of a copyright claim in that it can (and did) stand alone.

Nice try, but that argument doesn't work. You can call the defendant's actions "theft," unfair competition, fraud, or whatever label you can come up with, but the bottom line is that Boffoli is complaining about the fact that the defendant copied and displayed his photograph. Thus any equivalent state claims are preempted by the federal Copyright Act. See 17 U.S.C. § 301. (This is an oversimplification of the very messy preemption doctrine, but I think this is a pretty clear case.)

So that's what the law actually is. But should it be so? While I haven't fully thought through the implications, I can certainly see an argument that state courts, including small claims courts, should be permitted to adjudicate small-dollar copyright cases. If the photographer says he just wants to recover his normal license fee of a few hundred or a few thousand dollars, why not? A federal case is a pretty blunt (and expensive) instrument for minor disputes, and I think it's certainly worth exploring alternatives to full-blown federal lawsuits for incidents like the one in which Boffoli found himself embroiled. Cf. Mark Lemley & R. Anthony Reese, Reducing Digital Copyright Infringement Without Restricting Innovation, 56 Stanford L. Rev. 1345 (2004) ("An alternative proposal to reduce the cost of enforcement is to create some sort of quick, cheap arbitration system that enables copyright owners to get some limited relief against abusers of p2p systems.").

Saturday, August 15, 2009

Thomas-Rasset opposes request for injunction

After the jury returned a verdict finding that Jammie Thomas-Rasset had willfully infringed 30 songs, the record label plaintiffs requested that the court permanently enjoin her from further infringement. Yesterday Thomas-Rasset opposed the plaintiffs' motion, largely on the grounds that irreparable harm is no longer presumed, following the Supreme Court's decision in eBay, Inc. v. MercExhchange LLC, 547 U.S. 388 (2006).

This seems an odd issue to be contesting so vigorously (and in a very well-done brief). Why is Thomas-Rasset this concerned about an injunction prohibiting activity (i.e., using KaZaA to download and "share" song files) that she maintains she never engaged in, and which I can only assume she does not now?

Thomas-Rasset Opposition to Motion for Permanent Injunction

Friday, August 14, 2009

Labels defend $1.92 million Thomas-Rasset verdict; will consider remittitur to avoid third trial

The record label plaintiffs have filed their brief in defense of the $1.92 million award against Jammie Thomas-Rasset for downloading and "sharing" 24 songs, asserting they were unable to locate a single case where a court has ever reduced a jury's award of copyright statutory damages on either constitutional or common-law grounds. "[T]he jury’s damage award is proper and in no way excessive," argues the brief.
Plaintiffs' Opposition to New Trial and Remittitur Motion

As did the Obama Administration in its brief filed earlier today, the plaintiffs argue that the BMW v. Gore line of cases limiting punitive damages does not apply to statutory damages. And, also echoing the Administration's brief, the labels say that the award, which represents $80,000 for each of the 24 works on which the labels sought damages (among about 1,700 in Thomas-Rasset's KaZaA shared folder), survives the more deferential standard set forth in St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63 (1919), under which an award must be upheld unless it is "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable." The labels emphasize that Congress
has carefully adjusted this legislatively enacted range [of statutory damages] in response to external developments on a number of occasions, the most recent adjustment taking place in 1999 in response to increased copyright infringement via the Internet. H.R. Rep. No. 106-216 (1999).
(emphasis in original).

The labels similarly reject Thomas-Rasset's argument that Judge Michael Davis has the authority to, and should, reduce the award under the common-law doctrine of remittitur. "Yet," say the plaintiffs, they "also recognize the substantial practical interest in ending this longrunning litigation, and especially in avoiding a third trial of this case" and thus "might accept a remittitur under certain circumstances." However, the labels say they will only do so if the reduced award adequately reflects the "infringement of a significant number of Plaintiffs’ copyrighted sound recordings ... as well as the substantial damage caused to Plaintiffs and their businesses by Defendant’s actions." And they will not accept a remittitur based on a reduction in the award on constitutional grounds.

Thomas-Rasset's opening brief is here; her reply is due Friday, August 21.

Obama Justice: $1.92 million Thomas-Rasset verdict is constitutional; cites need for deterrence

The $1.92 million jury award against Jammie-Thomas Rasset passes constitutional muster, the Department of Justice stated in a brief filed today.
DOJ Brief in defense of Thomas-Rasset Award

In June, a Minneapolis federal jury found that Thomas-Rasset had used KaZaA to download and "share" 24 songs without permission, and awarded the record label plaintiffs $80,000 per work. Thomas-Rasset has challenged the award on both common law and constitutional grounds, but today's brief from the government comes down squarely against her on the constitutional issues. In a strong endorsement the Copyright Act's statutory damages provisions, DoJ argued that Congress specifically authorized awards of up to $150,000 per work to deter infringement, including infringement via peer-to-peer networks:
Copyrights are of great value, not just to their owners, but to the American public as well. Congress has recognize this value from the first days of the Republic. The federal copyright statute...has consistently authorized the awarding of statutory damages to ensure significant monetary awards in copyright infringement lawsuits that will make copyright owners whole and deter further infringement. This historical approach is followed in the current version of the Copyright Act's statutory damages provision; it provides compensation to copyright owners who have to invest resources into protecting property that is often unquantifiable in value and deters those infringing parties who think they will go undetected in committing this serious public wrong. Congress' expressed desire to increase deterrence, accompanied by Congressional findings, demonstrates that Congress gave due regard to the public harm, opportunities to commit multiple violations, and need to ensure compliance in establishing its statutory range. The Court should defer to Congress' reasoned judgment. The proper place for any policy debate of what should be the level of deterrence resides in the halls of Congress.
The DoJ brief -- which reflects positions it has taken previously in this and the Joel Tenenbaum cases -- takes no position on Thomas' non-constitutional challenges to the verdict, whose size stunned even the plaintiffs themselves.

But, argues DoJ, if the court reaches the constitutional challenge, it should reject Thomas-Rasset's insistence that the verdict be evaluated under the Supreme Court's BMW v. Gore line of cases, which established limits on juries' award of punitive damages, largely on the grounds that -- unlike with statutory damages -- there are no explicit limits on juries' discretion. Instead, says the brief, the court should apply "extremely deferential" standard established in St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63 (1919), which upheld a statutory damages scheme involving railroad passenger fares. Under Williams, an award of statutory damages survives constitutional challenge unless it is "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable" -- which DoJ says the $1.92 million Thomas-Rasset award is not.

After the first Thomas-Rasset trial in 2007, in which the jury awarded $222,000, Judge Michael Davis criticized the amount as "wholly disproportionate to the damages suffered by Plaintiffs" and urged Congress to lower the range of statutory damages for unlawful p2p use. However, he did not address Thomas-Rasset's constitutional argument, having granted a new trial on unrelated grounds. The second trial featured a less plaintiff-friendly set of jury instructions, but resulted in a jury verdict almost nine times as large. (As Jon Healy of the LA Times put it so well, "Maybe [she]should have quit while she was behind.")

The plaintiffs are expected to file their own brief in defense of the Thomas-Rasset award later today.

Joel Tenenbaum, Pirate Bay poster boy

Tenenbaum's defense team finds this development "interesting." I can think of a few other words.

More back and forth will Bill Patry

My dialogue with Bill Patry continues on his new blog. Here's the full set of posts so far:
Post 1 (Bill)

Post 2 (Ben)

Post 3 (Bill)

Post 4 (Ben)

Post 5 (Bill)
To be continued...

Wednesday, August 12, 2009

California Court of Appeal reverses Kaleidescape decision; another blow to DVD copying

This has been a bad, bad week for those who want to copy DVDs. Yesterday, a federal judge in San Francisco enjoined RealNetworks from distributing its RealDVD software.

And today, a California appellate court reversed a decision by a Santa Clara County Superior Court judge, who had ruled that Kaleidescape, Inc. was not bound by language in a document called the "General Specifications" that prohibited making permanent copies of DVDs. The trial court's ruling had effectively legalized the selling of Kaleidescape's high-end "DVD jukeboxes." Today's ruling by the Court of Appeal held that the "General Specifications" were indeed part of the DVD CCA's CSS license entered into by Kaleidescape, and remanded to the Superior Court for further proceedings to determine whether Kaleidescape is actually in breach.

It's important to remember that this case involved only a purely state-law contract issue; there were no DMCA or traditional copyright claims in the Kaleidescape case.

Kaleidescape Decision

Tuesday, August 11, 2009

Court issues preliminary injunction in RealDVD case; solid victory for studios and DVD CCA

The major movie studios and the body that licenses the main DRM technology on DVDs have won another major legal victory in their fight against DVD ripping. In a 58-page opinion, Judge Marilyn Hall Patel -- famous for shutting down Napster a decade ago -- issued a preliminary injunction that keeps in place her temporary ban on RealNetworks' $29.99 RealDVD program, which enables consumers to copy DVDs. Judge Patel concluded that RealDVD violates the provisions of the DMCA that prohibit trafficking in software that circumvents DRM, as well as the license agreement it had obtained from the DVD CCA. Among the significant rulings in her opinion was her conclusion that there is no fair use exception to the DMCA's prohibition on trafficking in anti-circumvention devices -- a position that Real itself had embraced, and on which it had prevailed, in an earlier suit.
RealDVD Preliminary Injunction Order

Judge Patel's opinion appears, at least on the surface, to conflict with a 2007 decision from a California state court on the issue whether the CSS license issued by the DVD CCA permits the licensee to facilitate making permanent copies of DVDs. In a case brought by the DVD CCA against Kaleidescape, the maker of a high-end DVD server, a Santa Clara County Superior Court judge held that a document called the "General Specifications," which include a requirement that the DVD be present in the device during playback, is not part of the CSS license. (That decision is now on appeal.) But Judge Patel ruled that the General Specifications are part of the CSS license (see p. 44). Her opinion says that she "does not deem this finding in conflict with the
Kaleidescape holding, which involved different facts and a different party." Perhaps I'm missing something, but I simply don't see how the two decisions are reconcilable on this point.

While today's decision involved only the issuance of a preliminary injunction, and theoretically Real could achieve a different result at trial, Judge Patel's opinions were definitive and strongly-stated, and it seems unlikely that new evidence or arguments would emerge that could persuade her to change her mind. Real has asserted affirmative antitrust claims, which remain pending.

The MPAA issued a statement through its Chairman and CEO Dan Glickman praising today's decision:
We are very pleased with the court’s decision. This is a victory for the creators and producers of motion pictures and television shows and for the rule of law in our digital economy. Judge Patel’s ruling affirms what we have known all along: RealNetworks took a license to build a DVD-player and instead made an illegal DVD-copier. Throughout the development of RealDVD, RealNetworks demonstrated that it was willing to break the law at the expense of those who create entertainment content.

The creative community has been teaming for years with an array of technology partners to expand consumer choices for enjoying movies, TV shows and other content in diverse ways. This includes free streaming, on demand rentals, purchased downloads, as well as DVD bonus digital copies of entire TV shows, series and feature films. We are committed to advancing the consumer experience through technology while sustaining the creative community that makes the movies and TV shows we love. This will continue to be our member companies’ focus, and we look forward to continuing to make constructive progress in those areas.
Predictably, Real was not pleased:
We are disappointed that a preliminary injunction has been placed on the sale of RealDVD. We have just received the Judge’s detailed ruling and are reviewing it. After we have done so fully, we’ll determine our course of action and will have more to say at that time.
Here's an op-ed piece I wrote back in April for the San Jose Mercury News, explaining why this case is important to the studios. And here's my previous coverage, which includes links to many of the briefs.

Back and forth with Bill Patry

Bill Patry asked me to participate in a friendly debate on his new blog. Here's his kick-off post, and my initial response. The Joel Tenenbaum case serves as the jumping-off point for our discussion, but soon goes farther afield. Please go to his blog (which focuses on his new book, Moral Panics and the Copyright Wars) to join the debate.

With Nesson, la plus ça change...

Fascinating nugget from Orin Kerr at the Volokh Conspiracy:
Reading over the trial reports, I'm struck by how similar Nesson's approach was to how he taught "Introduction to Lawyering" (ITL) in the fall of 1994, in my 1L year at Harvard. The ITL class was supposed to be about introductory legal writing and research. Nesson instead focused on how he thought the Internet would change everything; whether cameras should be allowed in courtrooms for high-profile cases; and his fascination with the neckercube. I very much liked Nesson as a person. He was passionate and unfailingly kind, something that couldn't be said for many other Harvard professors. But most of the students became pretty frustrated, as Nesson's lectures didn't have much to do with legal research and writing.
Sound familiar?

Monday, August 10, 2009

NY Times: 'eccentric scholar’s devotion to a soaring vision blinded him to legal realities'

The Times weighs in. And puts Tenenbaum and Nesson front and center:

I'd say we're about :13:27 in to this story's life. And when the clock strikes :15:00, Nesson goes back to his tenured position at Harvard Law School, his students can continue to talk about what "fun" it was to "to test the limits of legal norms," and Tenenbaum will remain 25 years old, and $675,000 in debt.

TorrentFreak's Tenenbaum trial falsehood

TorrentFreak today had a post stating that the court "rejected" Dutch computer scientist Dr. Johan Pouwelse as a defense expert in the Joel Tenenbaum case, and implying that the court's actions resulted in an unfair trial. But the factual premise of TorrentFreak's post is false. Pouwelse was not "rejected" or otherwise excluded as a witness. Rather, upon the plaintiffs' motion (to which Tenenbaum never bothered to file an opposition), Judge Gertner limited Pouwelse's testimony to the subject of his actual expertise: peer-to-peer technology. Indeed, the plaintiffs never challenged his expertise on that issue. The only thing the court "rejected" was Pouwelse's proposed testimony on business and economic issues, subjects on which he admitted he lacks expertise.

It was entirely the choice of the defense team not to call Pouwelse to the witness stand. And calling him would have been a complete waste of time. The thrust of Pouwelse's expert testimony was criticism of MediaSentry and plaintiffs' expert Dr. Douglas Jacobson's conclusion that Tenenbaum had used KaZaA and other p2p applications to download and "share" music. But on the witness stand, Tenenbaum admitted to the activity of which he was accused, and in fact wholeheartedly endorsed Jacobson's opinions, calling him a "competent professional." And he acknowledged that MediaSentry had correctly identified him. Given Tenenbaum's admissions, it's hardly a surprise the defense chose not to call Pouwelse.

My Billboard column on statutory damages: the looming constitutional battle

Here's my Billboard column on the looming battle over the constitutionality of large statutory damages awards in the wake of the Thomas-Rasset and Tenenbaum verdicts:
It's been a good summer for the major labels' litigators in their battle against individuals charged with copyright infringement.

In June, a Minnesota jury awarded the four majors $1.9 million in damages, finding that single mom Jammie Thomas-Rasset had used the peer-to-peer file-sharing network Kazaa to illegally download and share 24 songs.

And at the end of July, a federal jury in Boston ordered college student Joel Tenenbaum to pay the majors $675,000 for sharing 30 songs, after hearing evidence that he used at least six different P2P networks for nearly a decade, continuing to infringe even after receiving multiple warnings.

But with the defendants challenging the damage awards and likely appealing the verdicts, these cases are far from over. And the courts will now have to confront a difficult and unresolved question in copyright law: Can awards in cases like this be so big that they violate the U.S. Constitution's guarantee of due process?

Please read the whole thing.

Friday, August 7, 2009

DeVore 'parody' of 'All she wants to do is Dance' re-posted to YouTube following DMCA counternotice

From Big Hollywood comes word of an interesting development in the case of the "parody" videos created by the campaign of state Assemblyman and US Senate candidate Chuck DeVore (R-CA). YouTube has re-posted the DeVore video based on the Don Henley hit "All she wants to do is Dance," transformed by DeVore into an attack on his opponent, Sen. Barbara Boxer (D-CA), called "All she wants to do is tax":

Henley himself owns no copyright in "Dance," and thus has no ability under the DMCA to demand the video's takedown. (The DMCA applies only to copyright claims.) The composition in "Dance" is administered by publisher Warner-Chappell, which sent a takedown notice to YouTube on the video. DeVore's campaign sent a counter-notice under the DMCA; Warner-Chappell did not sue, so YouTube re-posted the video.

Henley's lawsuit against DeVore proceeds. He has copyright claims based on DeVore's "parody" of "The Boys of Summer" (whose composition Henley does own), and Lanham Act/17200 claims based on "Dance," which recently survived a motion to dismiss.

Thursday, August 6, 2009

Tenenbaum gets existential: File-sharing isn't 'wrong' or 'right'; it just 'is'

Tenenbaum tells The New Yorker:
I’m not saying file-sharing is wrong. I’m not saying file-sharing is right. I’m saying that file-sharing is.
Tenenbaum just got ordered to pay $675,000 for his file-sharing. Judge Gertner has said there will be a post-trial proceeding to determine whether she will reduce the award as unconstitutional or otherwise excessive. Does Tenenbaum truly think his refusal to acknowledge that his actions were "wrong" will help his cause? It's almost as if he's telling the court: "$675,000 isn't enough to deter me. Can I have some more?"

New William Patry book arrives -- with a new blog!

Moral Panics and the Copyright Wars, the long-anticipated book by famed copyright scholar and practitioner William Patry, is now available for purchase at Amazon and Barnes & Noble. From the description:
In Moral Panics and the Copyright Wars, William Patry lays bare how we got to where we are: a bloated, punitive legal regime that has strayed far from its modest, but important roots. Patry demonstrates how copyright is a utilitarian government program--not a property or moral right. As a government program, copyright must be regulated and held accountable to ensure it is serving its public purpose. Just as Wall Street must serve Main Street, neither can copyright be left to a Reaganite "magic of the market."
I'm sure I will find plenty to disagree with in Patry's book. (For one, the notion of copyright as a form of property has deep historical and theoretical roots.) But there is no denying that the man knows his copyright law: Patry helped draft sections of it while counsel to the House Judiciary Committee; served as a Policy Planning Advisor to the Register of Copyrights, as a law professor, and as a partner at a major law firm; and is the author of a major copyright treatise. Patry now serves as Chief Copyright Counsel at Google, though he has made clear that Moral Panics is a personal project.

And, much to the delight of those of us who lamented the passing of Patry's previous blog, with the launch of the book comes a brand new blog.

I look forward to reading the book, and the blog, and will report back once I've finished.

Ex-BSA anti-piracy topper Neil MacBride will be chosen for US Attorney post in E.D.Va.

It's (almost) official: Neil MacBride, former Vice President for Anti-Piracy and General Counsel of the Business Software Alliance, is about to be nominated by President Obama to be US Attorney for the Eastern District of Virginia, the AP and Washington Post report. MacBride would move across the Potomac from Main Justice, where he has served since early this year as Associate Deputy Attorney General. Prior to his stint at BSA, MacBride worked as chief counsel to then-Sen. Joe Biden, as an AUSA, and as a lawyer/lobbyist at Verner, Liipfert (since swallowed by the firm now known as DLA Piper. Earlier concerns about MacBride's lobbying background appear to have been overcome.

The Register: 'Kick me again, RIAA. Please! Nesson: the biggest legal fail in history?'

I don't agree with everything Andrew Orlowski writes. But he never bores me:

Nesson has achieved something I thought was completely impossible in 2009, and that's to allow the US recording industry's lobby group to paint itself in a sympathetic light. No longer must the RIAA explain why their biggest members are not using technology to make money for the people they represent. The Boston case allowed the four major labels to justify an enforcement policy against opponents who appeared compulsively dishonest, irrational, paranoid, and with an abnormal sense of entitlement.

Nice work, Charlie.


Nesson's case was a misanthropic bundle of intellectual prejudices, a worker's paradise in which everyone has rights, except creative people. In his Kumbaya world, we'd all be better off, except the people who actually do the art. But once the jury had heard from Tenenbaum - a deeply unpleasant defendant - the die was cast.


Why was anyone there? Well, just as a power station has an endless need for fuel, the anti-copyright gaggle has an insatiable need for victims. Injustice burns deep, and is triggered by the merest hint that "The Man" might be tampering with one's "bits".

Definitely read the whole thing.

Houston Chronicle: 'Obese Houston inmate found with gun after 5 searches'

Why, you may reasonably ask, would a copyright blog pass along such a story? Read on:

An obese Harris County jail inmate turned over a pistol that had been hidden in the folds of his skin after he went through at least five searches upon his arrest and was booked into two different local lockups, authorities said.

George Vera, 25, is charged with possession of a firearm in a correctional facility. He also is charged with possessing or selling unlabeled recordings, the original reason for his arrest.

Authorities said he was caught with 439 compact disc recordings which did not have labels noting manufacturers or distributors.

(emphasis mine. And likely unnecessary.) Read the whole thing to get all the details, including the rather disturbing mug-shot.

(Thanks to reader CDT (no, not this CDT) for the tip.)

Labels 'remain willing to settle' Tenenbaum case

From the RIAA's "Music Notes" blog:
FACT: We remain willing to settle this case, but Tenenbaum is so far insisting on filing more motions and appeals in order to continue to pursue his misguided mission to get music for free.

Nobody can argue that people don’t deserve to be paid for their hard work. But through all his illegal actions, Tenenbaum has argued exactly that. Despite all this, we remain open to settling, as we always are and have been.

The Scholarly Kitchen: '$80,000 per Song, and Perceptions of Copyright'

On the Internet, (almost) everyone hates copyright. In fact that's one of the reasons I started this blog. Every day, for years, I would read about how copyright is stupid, outmoded, destructive, and downright evil. But I knew that the "law" I would read about bore scant resemblance to the actual law, and the way that businesses that earn revenue from production and exploitation of copyrighted works actually function. And I knew that not everyone harbored such vitriol and venom for the copyright owners, who routinely win major victories in the courts and the political arena.

The Jammie Thomas-Rasset and Joel Tenenbaum verdicts have highlighted this chasm between the "Internet" view of copyright, and what average citizens think of the topic. Now three juries, made up of 34 ordinary people from the Minneapolis and Boston areas, none of whom had any connection to the entertainment industry, have passed judgment upon use of p2p networks to obtain music without paying for it -- an activity that is excused, or even celebrated, in many quarters of the web. And all three of those juries demonstrated through the very large damages awards they imposed that they view illegal downloading and "sharing" as wrong, and deserving of harsh sanction.

Biologist David Crotty, writing at The Scholarly Kitchen, makes a similar point, which serves as valuable reminder to us all that we need to get out of our respective bubbles and "echo chambers," and at least attempt to understand in good faith the arguments and motivations of those with whom we disagree:

[W]hat’s really interesting to me is that the jurors chose such high figures in the first place. I spend a lot of time keeping an eye on copyright issues, particularly the way new technologies are having an effect on copyright holders and users of copyrighted material. The general consensus online is that our copyright system is broken, that it is being abused by copyright holders, that the RIAA is the root of all evil, and that consumers have lost all respect for copyright, evidenced by the widespread swapping of music files online. The verdicts awarded are making me realize that perhaps I’ve spent too much time inside the internet echo chamber.

The juries in both cases chose figures that were much higher than the minimum allowed by law. Clearly they took the infringement seriously and placed a much higher value on the rights granted the copyright holder than the defendants, their legal teams, and various online pundits expected (note how often you see the phrase “jaw-dropping” in the coverage of each case). If there was great sympathy for filesharers, and if, as alleged, “everybody does it,” wouldn’t the juries have gone for a lower amount? If even $750 per song is excessive, why did the respective juries opt instead for $22,500 and $80,000?


While I don’t agree with the RIAA’s strategy of suing their own customers (it’s ineffective and bad for business), it is heartening to see that people still do place a value on creative efforts and that they are willing to send a strong message in hopes of deterring future copyright infringement.

The development of new technologies has led to a rapidly changing landscape, and copyright laws could certainly do with revision and updating to address these effects. But if there is no respect for the law, and no respect for copyright, then trying to work out fair and forward-looking adjustments is pointless.

The juries’ actions here at least show us that there’s still strong support for promoting “Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

I recommend reading Crotty's entire, very thoughtful, post.