Thursday, October 29, 2009

House Ethics Committee staffer used peer-to-peer software; 'shared' confidential document

The Washington Post just published a great scoop, getting its hands on a confidential internal memo compiled by the House Committee on Standards of Official Conduct (aka the Ethics Committee) that summarizes ongoing investigations into possible wrongdoing by 30 members and several staffers. And how did such a highly sensitive document become public? According to a statement released by the committee's chairwoman and ranking member:
Neither the Standards Committee's nor the House's information systems have been breached in any way. Our initial review suggests that this unlawful access to confidential information involved the use of peer-to-peer file sharing software on the personal computer of a junior staffer, who is no longer employed by the Committee, while working from home.
You heard that right: a staffer on the Ethics Committee was using "peer-to-peer file sharing software" at home. Of course, I'm sure this highly ethical staffer was simply "sharing" the King James Bible, the works of Shakespeare, and The Odyssey...

And can anyone explain why this staffer had placed the confidential work memo in his or her "shared" folder, where it was exposed to the world?

Update: Some background on inadvertent "sharing" via p2p from Tom Sydnor of the Progress & Freedom Foundation and Patrick Ross of the Copyright Alliance.

Monday, October 26, 2009

RIAA moves into fancy new Pennsylvania Ave. digs

At least according to a preview of a new documentary on the Joel Tenenbaum case by Bricks and Mortar Media:

On a more serious note, the title cards of the documentary contain several errors. The first card says:
Since 2003, the Recording Industry Association of America (RIAA) has filed over 35,000 lawsuits for copyright infringement.
First, the RIAA doesn't file the lawsuits against individuals; the record labels file the lawsuits, with the RIAA in a coordinating role. Second, the "35,000" figure is way off. Admittedly, the counting gets a bit tricky, because of overlapping lawsuits against unidentified "Does" and, in some cases, named individuals. But, as this declaration filed by record label attorney Matt Oppenheim in June 2009 makes clear, the number is nowhere near 35,000. According to Oppenheim's declaration, the labels "contacted" about 18,000 people regarding alleged infringement, and filed about 7,000 lawsuits against named individuals. Ars Technica has further details here.

Another card reads:
As it stands, Tenenbaum owes $675,000 ($22,500 per song). He and his lawyers are appealling [sic] the verdict.
But procedurally, this is jumping the gun. Judgment has not even been entered against Tenenbaum yet; as of today, he doesn't owe a dime. And, since there's no judgment, Tenenbaum has yet to file a notice of appeal.

I look forward to watching the rest of the documentary, but, so far, I'm less than impressed with its fact-checking.

Wednesday, October 21, 2009

NPR makes copyright claim over anti-same-sex-marriage ad; another political fair use fight

Another day, another news organization trying to suppress political speech it doesn't like through a suspect copyright claim.

This time the victim is Stand for Marriage Maine, a group that supports Question 1, a Nov. 3 ballot measure that would overturn the Maine legislature's legalization of same-sex marriage. And the culprit is National Public Radio, which has sent DMCA notices to YouTube and other sites, objecting to the inclusion of 20 seconds from a 2004 NPR story into a 30-second SFMM TV spot. The ad uses the NPR content in support of its argument that legalization of SSM would result in schoolchildren being taught about gay sex.

While the issue isn't quite as much of a slam dunk as Perez Hilton's copyright claims over the use of 3 seconds of his video blog in an anti-SSM ad by a different group, I think SFMM has a very strong fair use claim here. The use is non-commercial (it is purely political); NPR's work is factual, not fictional; the portion used is brief; and such a use will have no significant effect on the market for NPR's work. And, importantly, the First Amendment is at its apogee in the context of a political campaign. See Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971) (First Amendment "has its fullest and most urgent application precisely to the conduct of campaigns for political office"). Here's NPR's cease-and-desist letter; here's the letter from SFMM attorney Barry Bostrom rejecting NPR's copyright claims. (Sound familiar?)

NPR's attempted defense of its copyright claim only proves its lack of merit. Here's what Dana Davis Rehm, NPR's senior vice president of marketing, communications and external relations, told WMTW:
NPR very carefully analyzed the use that Stand for Marriage Maine and their public relations firm Schubert Flint has made of NPR's 2004 news story. We determined that it does not meet fair use standards and that it constitutes copyright infringement. They have exceeded fair use standards by co-opting NPR's content for virtually the entire length of their political ad. What we are seeking to do here is to protect NPR's valuable reputation as a trusted and unbiased source of news. We don't allow use of our content for advocacy or political purposes by any group or person.
Rehm is simply wrong on the law. First, she gets the fair use analysis completely backwards when she argues that SFMM's use of the NPR content comprising "virtually the entire length of their political ad" weighs against a finding of fair use. What matters is the percentage of the copyright owner's work that is taken, not the percentage of the use that is comprised of the copyright owner's work. See 17 U.S.C. § 107(3) (relevant measure is "the amount and substantiality of the portion used in relation to the copyrighted work as a whole") (my emphasis); Peter Letterese And Associates, Inc. v. World Institute Of Scientology Enterprises, 533 F.3d 1287, 1314-15 (11th Cir. 2008) ("[T]he amount and substantiality of the portion used is measured with respect to the 'copyrighted work as a whole,' not to the putatively infringing work.") (quotation marks omitted); NXIVM Corp. v. Ross Institute, 364 F.3d 471, 480 (2d Cir. 2004); Patry on Copyright § 10:141 ("The statutory language clearly directs courts to evaluate the substantially of the taking in relation to plaintiff's work, not defendant's."). The fact that the NPR content is heard through about 2/3 of the ad is irrelevant to the fair use analysis. What matters is that SFMM used only 20 seconds of an NPR report that was apparently several minutes long. Update: according to SFFM attorney Bostrom, "the ad used 20 seconds of a nearly 6:56 minute news piece, or 4.8%." NPR's letter contends it was 25 seconds; I don't think the difference is material.

And Rehm's argument that the aim of NPR's copyright claim was to "protect NPR's valuable reputation as a trusted and unbiased source of news" and statement that "We don't allow use of our content for advocacy or political purposes by any group or person" further aids SFMM's fair use case, and undermines NPR's argument. "Protecting [one's] reputation" is not a cognizable copyright interest, at least in the US, where we don't recognize moral rights. Copyright is about providing financial incentives for creators, not for providing a legal club for anyone -- even a purportedly "trusted and unbiased source[s] of news" -- to shut down uses of their works that they don't like. And the fact that NPR would refuse to allow any such use of its content in a political ad strengthens the case for fair use. See Campbell v. Acuff-Rose, 510 U.S. 549, 585 n.18 (1994) ("being denied permission to use a work does not weigh against a finding of fair use"); Liebovitz v. Paramount Pictures Corp., 137 F.3d 109, 114 n.3 (2d Cir. 1998). Rehm's words may come back to haunt NPR if this matter is ever litigated.

NPR's takedowns are especially harmful because even if SFMM sends DMCA counternotices, sites generally won't repost the videos until 10-14 business days have elapsed, in order to maintain their safe harbor from an infringement claim. See 17 U.S.C. sec. 512(g). Thus the videos won't reappear until well after the Nov. 3 election. So NPR's copyright claims, even if meritless, will achieve their intended, speech-silencing, effect. (We complained about this to YouTube while I was an attorney on the McCain campaign last year, to no avail.)

Lastly, kudos to the Queerty blog, which strongly supports SSM, but nonetheless opposes NPR's use of copyright law to squelch political speech:
As despicable as S4MM is, the group very likely did nothing illegal. They used a limited portion of NPR's news report that did not adversely affect NPR financially. Not only does S4MM not have to seek permission to use it, they should be able to do it again if they so please. It's the equivalent of a movie studio "borrowing" a few lines of copy from an Entertainment Weekly movie review to convince you to see their film. S4MM used a few lines (of audio) from NPR to try to bolster their case to voters.
It's easy to complain when your own side is being abused; it shows real intellectual honesty to stand up for your bitter opponent when they're in the right.

Here's the SFMM ad, which was apparently re-posted by someone unknown. If NPR takes this version down, it will be squelching legal analysis, in addition to core political speech. I wonder how Nina Totenberg would feel about that?

Tuesday, October 20, 2009

IP Colloquium: Can content survive online?

UCLA Law School professor Doug Lichtman has posted another edition of his IP Colloquium podcast, this one featuring a conversation among 3 in-house counsel at top technology and entertainment companies: Brad Smith of Microsoft, Scott Martin of Paramount Pictures, and Dan Cooper of MySpace. They touch on topics ranging from copyright enforcement on UGC sites, to the economics of online advertising, to the question whether new business models like Hulu's and Redbox's can support the creation of motion pictures. Definitely worth listening to, to get a sense of how these companies think about the legal, business, and technical issues being debated across the media world. CLE credit is available in CA, NH, TN, IL, NY, and WA.

Another SDNY court rules inducement is a mere subspecies of contributory infringement

Ever since the Supreme Court's 2005 Grokster decision, copyright lawyers have been debating whether the "inducement" theory of copyright infringement explicated in Judge Souter's opinion is a stand-alone claim, or merely a sub-species of contributory infringement. Most complaints I've seen that include claims of secondary liability allege inducement as a separate theory (on top of contributory and vicarious liability), perhaps out of an abundance of caution.

A new decision from Judge William Pauley in the Southern District of New York, however, suggests a consensus is developing that inducement of infringement is indeed merely a subspecies of contributory infringement, and need not be pled separately. In Capitol Records, Inc. v. MP3Tunes LLC, a case involving music "storage lockers," the plaintiffs (EMI-owned record labels and music publishers) alleged the full panoply of secondary liability theories, including contributory infringement and inducement. The defendants moved to dismiss, arguing that the inducement claim was duplicative of the contributory infringement claim. Judge Pauley granted the motion on that point, citing Grokster's holding that "[o]ne infringes contributorily by intentionally inducing or encouraging direct infringement." His holding follows a similar ruling earlier this year in KBL Corp. v. Arnouts, __ F. Supp. 2d __, 2009 WL 302060 (S.D.N.Y. Feb. 9, 2009). Of course, the concept of inducement was not birthed by the Supreme Court in 2005; it has long been the law that "[o]ne who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a 'contributory' infringer." Gershwin Publ'g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971). So, while Judge Pauley dismissed the plaintiffs' stand-alone inducement claim, that would seem to have no practical import here, as they may pursue the exact same claim within the confines of their (still-extant) contributory infringement cause of action.

Also in the order, Judge Pauley reversed his previous ruling that founder, CEO, shareholder, and lone director Michael Robertson, whom the plaintiffs sued personally, was not subject to personal jurisdiction in New York. [Corrected to note that Robertson is not the "sole" shareholder.] His order relied on testimony from Emily Richards, MP3Tunes' former president, who left the company in September 2008. In a post-employment deposition, Richards testified that Robertson was involved in day-to-day management decisions, an apparent reversal of her testimony at an April 2008 deposition, while she was still employed at the company. In his order, Judge Pauley stated flatly that "Richards was untruthful at one of her depositions," but he did not indicate which version of her testimony he believed, instead saying merely that he was required under the law to accept the plaintiffs' version of the jurisdictional facts at this stage of the litigation. Judge Pauley also ruled that the plaintiffs did not act improperly by contacting Richards after her employment with MP3Tunes ended, or by offering to pay up to $10,000 of her legal expenses incurred in connection with her second deposition.

(h/t CNET)

Friday, October 16, 2009

Labels to Tenenbaum: 'complain, lobby, or blog' all you want; just quit infringing our copyrights

The plaintiffs in the Joel Tenenbaum case have filed a reply in support of their motion for entry of judgment (including a request for an injunction prohibiting Tenenbaum from further infringement) following their July 31 trial victory over the admitted peer-to-peer infringer. The labels decline to address the various irrelevancies Tenenbaum argued in his opposition, and make crystal clear that -- contrary to the overheated rhetoric in Tenenbaum's brief -- they are not seeking to bar the Boston University grad student from expressing his views on copyright and his litigation opponents:
Contrary to Defendant’s contention, Plaintiffs are not seeking to limit or prevent Defendant or his counsel from discussing this case or the perceived policy issues implicated by this case in any forum they choose.... Plaintiffs...are not trying to stifle any debate Defendant wishes to engage in and the proposed injunction does not seek to limit his First Amendment right to complain, lobby, or blog about anything he likes.
Once Judge Gertner enters judgment, Tenenbaum is expected to file a motion to reduce the jury's $675,000 award on the grounds that it is constitutionally excessive. A ruling on a similar motion by Jammie Thomas-Rasset, who was ordered by a Minneapolis jury to pay the labels $1.92 million for similar infringement, could come any day.
Reply Re Motion for Entry of Judgment

Friday, October 9, 2009

My piece for Washington Legal Foundation: 'Sony v. Tenenbaum: There Are Limits To Fair Use Defense In Copyright Infringement Cases'

The Washington Legal Foundation asked me to write a short piece about fair use in the Joel Tenenbaum case. Here it is; and here's Judge Gertner's ruling granting summary judgment to the plaintiffs on Tenenbaum's fair use defense. (Her promised "full opinion to follow" has not yet been issued.) Here's the plaintiffs' motion, and Tenenbaum's opposition.

Roxanne Shanté issues classic non-apology apology for 'ruckus," 'angst'; not for false educational claims

Roxanne Shanté, the rapper whose false claims that Warner Music Group had paid for her to earn an undergraduate degree from Marymount Manhattan College and a Ph.D. in psychology from Cornell were debunked in this article I wrote for Slate, has issued a classic non-apology apology. Shanté tells the publication EurWeb that she "would like to apologize that this story regarding my post recording career has caused such a ruckus" and "apologize[s] to the people that truly care about me for any angst that this situation has caused." Notably, Shanté does not apologize for telling any falsehoods.

Shanté does promise that "the entire story will be revealed at a later time." And so we wait...

Thursday, October 8, 2009

My response to Professor Samuelson on Constitutional Limits to Statutory Damages

PENNumbra, the online supplement to the University of Pennsylvania Law Review, has now posted my response to Berkeley Law School Professor Pamela Samuelson in our continuing debate over possible constitutional limits to copyright statutory damages. I argue the position that last summer's awards against peer-to-peer infringers Jammie Thomas-Rasset and Joel Tenenbaum, though large, do not violate the Constitution, and should not be analyzed under the "guideposts" for evaluating punitive damages set forth in BMW v. Gore. Professor Samuelson and I will each get one more round to speak our respective minds.

Tuesday, October 6, 2009

CNET: 'Did Viacom find smoking gun in YouTube case?'

Greg Sandoval has the scoop:

Lawyers working on a $1 billion copyright lawsuit filed by Viacom against Google's YouTube may have uncovered evidence that employees of the video site were among those who uploaded unauthorized content to YouTube.

In addition, internal YouTube e-mails indicate that YouTube managers knew and discussed the existence of unauthorized content on the site with employees but chose not to remove the material, three sources with knowledge of the case told CNET.

The e-mails, according to the sources who asked for anonymity because of the ongoing litigation, surfaced during an exchange of information between the two sides of the legal dispute. They are one of the cornerstones of Viacom's case, as well as that of a separate class action lawsuit filed against Google and YouTube by a group of content owners, the sources said. The group includes a European soccer league and a music-publishing company.

CNET did not post the actual internal YouTube emails, so we don't know exactly what the employees knew. But this sounds like potentially powerful evidence for the plaintiffs in the copyright lawsuits brought by Viacom, the English Premier League, and Bourne Music Publishers against YouTube. YouTube claims that it is protected by the safe harbor found in 17 USC § 512(c), but the plaintiffs argue that YouTube falls outside the safe harbor because, among other things, it had either "actual" or "red flag" knowledge of infringing activity on its site. See id. § 512(c)(1)(A)(i),(ii). The battle will be over whether such evidence (and we only have a tiny sliver) shows YouTube's knowledge of specific infringements, or just more generally that it knew that there was infringing activity on its site, in which case it would be less likely to lose the safe harbor. Also, if YouTube employees themselves uploaded infringing videos while acting within the scope of their employment, such activity would not be covered by the safe harbor, which only applies to "infringement of copyright by reason of the storage at the direction of a user," id. § 512(c)(1), not by the service provider itself.

YouTube's response, according to CNET:
The characterizations of the supposed evidence, made in violation of a court order, are wrong, misleading, or lack important context and notably come on the heels of a series of significant setbacks for the plaintiffs.... The evidence will show that we go above and beyond our legal obligations to protect the rights of content owners.
Interestingly, CNET also obtained a portion of the deposition of Google CEO Eric Schmidt, who testified that he believed that YouTube was "worth $600 million to $700 million" at the time Google bought it for $1.65 billion in 2006. Schmidt said Google was willing to pay a $1 billion "premium for moving quickly and making sure that we could participate in the user success in YouTube."

Monday, October 5, 2009

Tenenbaum opposes entry of judgment and injunction; throws in kitchen sink

Back on September 1, the record label plaintiffs in the Joel Tenenbaum case filed a motion for entry of judgment pursuant to Rule 58(d). They asked that the judgment include an award of $675,000, as determined by the jury's verdict, as well as an injunction ordering the following:
Defendant shall be, and hereby is, enjoined from directly or indirectly infringing, or acting in concert with others in the infringement of, Plaintiffs’ rights under federal or state law in the Copyrighted Recordings and any sound recording, whether now in existence or later created, that is owned or controlled by Plaintiffs (or any parent, subsidiary, or affiliate record label of Plaintiffs) (“Plaintiffs’ Recordings”), including without limitation by using the Internet or any online media distribution system to reproduce (i.e., download) any of Plaintiffs’ Recordings, to distribute (i.e., upload) any of Plaintiffs’ Recordings, or to make any of Plaintiffs’ Recordings available for distribution to the public, or to promote or advertise using the Internet or any online media distribution system to infringe copyrights, except pursuant to a lawful license or with the express authority of Plaintiffs. Defendant also shall destroy all copies of Plaintiffs’ Recordings that Defendant has downloaded onto any computer hard drive or server without Plaintiffs’ authorization and shall destroy all copies of those downloaded recordings transferred onto any physical medium or device in Defendant’s possession, custody, or control.
Today Joel Tenenbaum filed his opposition to the plaintiffs' motion. Only a small portion of Tenenbaum's brief addresses the plaintiffs' request for the injunction. Rather, it rambles at length about the history of the music business over the past decade, and complains of various injustices allegedly done to Tenenbaum over the course of the trial, from granting summary judgment on fair use, to excluding his purported experts, to refusing to permit introduction of a settlement offer. And it mounts a constitutional attack on the jury's award of $22,500 per work in statutory damages. Whatever the merits of Tenenbaum's arguments (most of which have already been found by Judge Gertner to be meritless), I don't understand why Tenenbaum included them here. The only issue before the court is what form the entry of judgment will take (i.e., whether it will include the requested injunction). Once judgment is entered (and Judge Gertner has already stated that it "will" be entered), Tenenbaum will be free to file a motion for new trial under Rule 59, in which he can raise his substantive arguments, including those about the size of the monetary award; indeed Judge Gertner has stated that she will hold some sort of proceeding on that issue. His new trial motion will be due 10 days after the court enters judgment.

On the issue of the injunction itself, on which Tenenbaum spends only a page and a half of his 25-page brief, Tenenbaum makes no reference to the statute authorizing injunctions in copyright cases, or to the ample case law (much of which was cited by plaintiffs), specifying when an injunction is appropriate. Given Tenenbaum's admission of infringement of thousands of songs for over a decade, and even after he was sued, an injunction is more than appropriate here.

UPDATE: Make sure to read Peter Friedman's take at Here's a taste:
Now Nesson has proven he can’t write a brief. Yesterday on behalf of Tenenbaum he filed in the court that produced the $675,000 judgment against his client a document entitled Defendant’s Opposition to Entry of Judgment and Injunction (pdf)(the “Brief”). There are some non-frivolous arguments somewhere in that self-righteous screed, but they’re so buried in Nesson’s preference for rhetorical flourish over lawyerly detail that, as a responsibility to the students I am teaching to be lawyers, I have to call him out on his incompetence. A lawyer’s job is to win the judge to his client’s side through persuasive reason and argument; it is not to throw a mess at the judge that may or may not contain winning arguments and leave it to the judge to find those winning arguments.
Nesson has filed numerous briefs like this before, and they have resulted in nothing but disaster for his client. Didn't Albert Einstein have something to say about "doing the same thing over and over again and expecting different results"?

Harvard launches sports and entertainment law journal; issues call for papers

Congrats to Harvard 3L Ashwin Krishnan and his colleagues who have recently launched the Harvard Journal of Sports & Entertainment Law and issued a call for papers. I look forward to reading the first issue, which will be published in the spring of 2010.

Berkeley Law conference to explore legal aspects of social media

Just a quick plug for a conference set for Friday, October 23 at Berkeley Law School called "Social Networks: Friends or Foes? Confronting Online Legal and Ethical Issues in the Age of Social Networking." Or, as speaker Orin Kerr of GW Law School and the Volokh Conspiracy put it, "Conference Where We Get to Sit Around And Talk About Facebook." I'll be speaking on a panel about an issue that has become near and dear to my heart: "Can Lawyers 'Tweet' About Their Work? Confidentiality & Legal Professionalism in the Age of Social Media." Among my fellow panelists will be one of my blogging heroes, David Lat of Above the Law.

Here's the whole schedule:

9:00 - 9:15
Welcome to the Conference and Introductions

  • Jason Schultz, Co-Director of the Samuelson Clinic for Law Technology and Public Policy
  • Erin Murphy, Conference Chair and Assistant Professor of Law at UC Berkeley

8:30 - 9:00
Four Problems Unique to Social Networking and the Law

Four case studies will set the themes for the day. These case studies, collected from panelists and the news, will be shared at the beginning of the conference to provide a common groundwork of facts and circumstances that illustrate key legal and policy questions related to the use of social networking websites. They will focus on real stories, real conflicts, and the unique problems that social networks create for our legal system, both from the perspective of administering the law and the ethics of legal professionalism.

  • David Lee – Clinic Student, UC Berkeley Law
  • Shane Witnov – Clinic Student, UC Berkeley Law

9:40 - 10:40
Does Overt Access to Social Networking Data Constitute Spying or Searching?
Social networking websites are massive repositories of voluntarily disclosed information and frequent recipients of subpoenas, warrants, and requests for user information in criminal and civil investigations. Laws like the Electronic Communications Privacy Act limit what can be disclosed to different parties in different circumstances. Do these laws strike the right balance between privacy and justice? Is there fair access to this data between defense, prosecution and civil litigants?

  • James Aquilina – Executive Managing Director and Deputy General Counsel, Stroz Friedberg
  • Mark Howitson – Deputy General Counsel, Facebook
  • Jennifer Granick – Civil Liberties Director, Electronic Frontier Foundation
  • Deirdre Mulligan (moderator) – Assistant Professor, UC Berkeley iSchool; Director, BCLT

10:40 - 11:10

11:10 - 12:10
Are You Really My Friend? The Law and Ethics of Covert or Deceptive Data-Gathering

The quandary of whether or not to add someone to your social network perplexes many people, but most people do not realize that the “friend” could be an F.B.I. agent, a defense investigator, or an opposing attorney covertly seeking information. Where is the line between an honest investigation and an unethical deception? What are the consequences for crossing it? Are the rules the same, or should they be for different participants in the legal process such as law enforcement, defense investigators, and civil investigators?

  • Paul Ohm – Associate Professor of Law, University of Colorado Law School
  • Lauren Gelman – Former Executive Director, Stanford Law School's Center for Internet and Society
  • Shane Witnov (moderator) – Clinic Student, UC Berkeley Law

12:10 - 1:40
Keynote Address

  • John Carlin, Deputy Chief of Staff and Counselor to the Director of the F.B.I.

1:40 - 2:40
MyFace in Court: Admissibility and the Probative Value of Social Networking Evidence
Searches and attempts to obtain evidence from Social Networking Websites have increased, but is the evidence admissible and valuable? How do you authenticate the evidence? What do juries find convincing? Practitioners and judges discuss best practices.

  • Wes Hsu – Assistant U.S. Attorney, Chief Cyber and Intellectual Property Crimes Section,
    U.S. Attorney’s L.A. Office
  • Kurt Kumli – California Superior Court Judge, Santa Clara County
  • Bill Gallagher – Partner, Arenstein & Gallagher
  • Chuck Weisselberg (moderator) – Professor of Law, UC Berkeley Law

2:45 - 3:45
Regulating Crime in the Cloud: Policing Unlawful Behavior on Social Networks
Social networks are the new frontier for criminal activity. The networks are used to coordinate crimes such as sex trafficking, drug deals, and gang activity. Other crimes like cyberbullying take place on the social network itself. The panel will discuss how to regulate these new spaces. Are current computer laws adequate safeguards? What policies should companies develop in response?

  • Robert Morgester – Deputy Attorney General, Special Crimes Unit, Office of the California Attorney General
  • Orin Kerr – Professor of Law, George Washington University
  • Jim Dempsey – Vice President for Public Policy, Center for Democracy & Technology
  • John Carlin (moderator) – Chief of Staff and Senior Counselor to the Director of the F.B.I.

3:45 - 4:15

4:15 - 5:15
Can Lawyers “Tweet” About Their Work? Confidentiality & Legal Professionalism in the Age of Social Media
Lawyers’ uses of social media tools and networks raise distinct challenges to the legal profession and the duty to maintain confidentiality. How will lawyers operate in an age of unprecedented transparency and permanent online records of everyday transactions? Where is the line between appropriately guarded comments and breaching attorney-client privilege? Can use of social media or networking ever be in a client’s best interest?

  • John Steele – Attorney at Law; Adjunct Professor, Indiana University (Maurer School of Law).
  • David Lat – Managing Editor,
  • Ben Sheffner – Production Counsel, NBC Universal Television Group; Editor, Copyrights & Campaigns blog
  • Jason Schultz (moderator) – Director, Samuelson Law, Technology & Public Policy Clinic; Assistant Clinical Professor of Law, UC Berkeley

BREAKING: Supreme Court won't hear Joel Tenenbaum's webcast appeal

The Supreme Court today denied Joel Tenenbaum's cert. petition in which he sought review of the First Circuit's decision holding that federal court rules did not permit district judge Nancy Gertner to allow the live webcast of proceedings in Tenenbaum's copyright case. See page 70 of this order. The record label plaintiffs, who opposed the webcast, did not file an opposition to Tenenbaum's petition. As per its usual practice, the Court did not reveal its reasons for denial of the petition, but I can think of several: 1) there is no circuit split; 2) the issue is moot since Tenenbaum's trial finished in July; and 3) the Court is perfectly happy to keep cameras out of federal courtrooms.

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

Saturday, October 3, 2009

Samuelson v. Sheffner on constitutional limits to copyright statutory damages awards

Professor Pamela Samuelson of Berkeley Law School and I are participating in an online debate hosted by PENNubmra, the online supplement to the University of Pennsylvania Law Review. The topic: Does the Constitution impose limits on the size of statutory damage awards? The issue, of course, is of much interest to copyright litigators and others, following last summer's massive awards against peer-to-peer infringers Jammie Thomas-Rasset and Joel Tenenbaum. Here's the introduction, as framed by PENNumbra:

In successive months during the summer of 2009, the music labels won two monstrous jury verdicts for willful copyright infringement against two peer-to-peer file sharers. In June, a Minneapolis jury found single mother Jammie Thomas-Rasset liable for $1.92 million for downloading and sharing twenty-four songs on KaZaA’s file-sharing network. One month later, a Boston jury ordered college student Joel Tenenbaum to pay $675,000 for downloading and sharing thirty songs in the same manner. Neither jury made a finding about the damage caused to the music labels by the defendants’ activities. Rather, both awards were based on the Copyright Act’s range of statutory damages of $750 to $150,000 per work—available to those who register their works prior to infringement.

In this month’s debate, Professor Pamela Samuelson and Ben Sheffner discuss whether such “whopping” statutory damage awards are constitutional. In her Opening Statement, Samuelson argues that while not all statutory damage awards—or even all those extracted from peer-to-peer file sharers—are unconstitutional, it is “difficult to square [the verdicts from this summer] with Congressional intent or with the Supreme Court’s due process jurisprudence.” Relying on the “guideposts” established by the Court in BMW of N. Am., Inc. v. Gore to judge punitive damage awards, Samuelson lays out the case for reducing the “grossly excessive” jury verdicts.

Professor Samuelson's opening argument is already posted; my response will appear next week.

Friday, October 2, 2009

New case throws cold water on constitutional challenges to statutory damages awards

The record label plaintiffs in the Jammie Thomas-Rasset case have filed a notice of supplementary authority, identifying for the court a new case rejecting the defendant's argument that the Supreme Court's cases imposing constitutional limits on punitive damage awards apply to statutory damages.
Verizon v. OnlineNIC, Inc.
The new case, Verizon California Inc., v. OnlineNIC, No. C 08-2832 JF (RS), 2009 WL 2706393 (N.D. Cal. Aug. 25, 2009), is not a copyright case; instead it involved claims under the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d). Similar to the Copyright Act's statutory damages provisions, that statute provides for statutory damages ranging from $1,000 to $100,000 per violation. See 15 U.S.C. § 1117(d). After finding that the defendant had engaged in various willful misdeeds, the court awarded Verizon $50,000 per violation, totaling $33.15 million.

The defendant challenged the court's award on due process grounds, arguing that the court should void or reduce the amount under BMW v. Gore and its progeny. But the court soundly rejected the defendant's argument and refused to reduce the award:
Finally, and most importantly, it is highly doubtful whether Gore and Campbell apply to statutory damages awards at all. Like the Sixth Circuit, this Court “know[s] of no case invalidating . . . an award of statutory damages under Gore or Campbell.” Zomba Enterprises, Inc. v. Panorama Records, Inc., 491 F.3d 574, 587 (6th Cir. 2007). Under binding authority decided before Gore, “only where the [statutory] penalty prescribed is so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable” will it violate a defendant’s due process rights. United States v. Citrin, 972 F.2d 1044, 1051 (9th Cir. 1992) (quoting St. Louis, Iron Mt. & S. Ry. Co. v. Williams, 251 U.S. 63, 66-67 (1919)); see also Zomba Enterprises, Inc., 491 F.3d at 587 (“Regardless of the uncertainty regarding the application of Gore and Campbell to statutory-damage awards, we may review such awards under [Williams] to ensure they comport with due process.”); Arrez v. Kelly Services, Inc., 522 F. Supp. 2d 997, 1008 (N.D. Ill. 2007) (“In determining whether the penalty is grossly disproportionate, ‘the fine need only bear some relationship to the offense’s gravity; this is not a proportionality inquiry.’” (citation omitted)).
The court goes on to explain in detail why BMW v. Gore's three "guideposts" for evaluating awards of punitive damages simply do not fit in the context of statutory damages.

The jury's award of $80,000 per song, totaling $1.92 million, for Thomas-Rasset's willful infringement of 24 songs is currently the subject of a new trial/remitittur motion, which Judge Michael Davis could rule on at any time. (The labels' opposition is here.) Joel Tenenbaum is expected to file a similar motion soon.

Of course, the Verizon case from the Northern District of California is not binding on Judge Davis, or on Judge Nancy Gertner in Tenenbaum's case, and they are free to ignore it. But the more cases piling up that reject the application of BMW to statutory damages, the harder it becomes for the defendants to convince the courts that existing law supports their position.

(h/t to Shourin Sen of Exclusive Rights, who first reported on the Verizon case September 10.)