Boing Boing is a popular group blog that often rails against copyright owners, accusing them (and specifically the RIAA and its members) of alleged misdeeds including "extort[ion]," "declar[ing] war on blind and disabled people," and launching "anti-fan lawsuits."
Mitchell Silberberg & Knupp is a prominent Los Angeles law firm that has represented the major record labels in many of the most important anti-piracy cases of the past decade: Napster, Aimster, Grokster, and the lawsuits against individual peer-to-peer users, among others.
So whom did Boing Boing turn to when it recently received a demand letter from Demi Moore's lawyer over a Boing Boing post discussing allegations that W magazine had photoshopped Moore's hip? You guessed it.
Monday, December 28, 2009
Wednesday, December 23, 2009
Court grants summary judgment for studios in Gary Fung/IsoHunt case; no DMCA safe harbor for inducement
In a major legal victory for copyright owners, a federal judge in Los Angeles has granted summary judgment for the movie studios in their suit against Gary Fung, owner of IsoHunt and several other popular BitTorrent index sites. Judge Stephen Wilson cited extensive, unrebutted evidence that Fung, a resident of Canada, had knowledge of the rampant infringement facilitated by his sites, and in fact encouraged it.
Columbia v. Fung Summary Judgment Order
The court found Fung and his company liable under the inducement standard articulated by the Supreme Court in MGM v. Grokster (also presided over by Judge Wilson), finding that "evidence of Defendants' intent to induce infringement is overwhelming and beyond reasonable dispute." Such evidence included a "Box Office Movies" feature of the site; Fung's provision of "a link to a torrent file for the recent film Lord of the Rings: Return of the King on the Isohunt site" along with the statement "if you are curious, download this"; use of the word "warez" as a metatag; and pro-piracy statements such as "they accuse us for [sic] thieves, and they r [sic] right. Only we r [sic] ‘stealing’ from the lechers (them) and not the originators (artists)" and "Morally, I’m a Christian. 'Thou shalt not steal.' But to me, even copyright infringement when it occurs may not necessarily be stealing." Such statements, said the court, "provide probative evidence regarding Fung’s intent in creating the Defendant websites to aid others infringement." The court also cataloged extensive evidence that the site and its admins assisted users in copyright infringement, and implemented technical features that promote infringement. Lastly, the court noted that about 95% of works "shared" using Fung's sites were infringing, and that the defendants' "ostrich-like refusal to discover the extent to which its system was being used to infringe copyright is merely another piece of evidence” of Defendants’ purposeful, culpable conduct in inducing third party infringement. See In re Aimster Copyright Litig., 334 F.3d 643, 655 (7th Cir. 2003)."
Judge Wilson also soundly rejected Fung's DMCA safe harbor defense, and in the course broke some new ground. As far as I am aware, this is the first case to find that a DMCA safe harbor was unavailable because the defendants had "red flag" knowledge of its users' infringement. See 17 U.S.C. § 512(d)(1)(B) (no safe harbor where defendant is "aware of facts or circumstances from which infringing activity is apparent."). Explained the court:
Next up: the remedy phase, where the court will consider damages and an injunction.
Lead attorney for the plaintiffs is Steve Fabrizio of Jenner & Block, who also won the TorrentSpy and Usenet.com cases. Ira Rothken, who came out on the losing end of the similar TorrentSpy case, represents Fung and Isohunt Web Technologies, Inc.
Disclosure: I worked on this case for plaintiff Twentieth Century Fox Film Corp. while previously employed there. My current employer, NBC Universal, Inc., is the parent of plaintiff Universal City Studios LLLP, though I have not worked on the case while at NBCU.
Columbia v. Fung Summary Judgment Order
The court found Fung and his company liable under the inducement standard articulated by the Supreme Court in MGM v. Grokster (also presided over by Judge Wilson), finding that "evidence of Defendants' intent to induce infringement is overwhelming and beyond reasonable dispute." Such evidence included a "Box Office Movies" feature of the site; Fung's provision of "a link to a torrent file for the recent film Lord of the Rings: Return of the King on the Isohunt site" along with the statement "if you are curious, download this"; use of the word "warez" as a metatag; and pro-piracy statements such as "they accuse us for [sic] thieves, and they r [sic] right. Only we r [sic] ‘stealing’ from the lechers (them) and not the originators (artists)" and "Morally, I’m a Christian. 'Thou shalt not steal.' But to me, even copyright infringement when it occurs may not necessarily be stealing." Such statements, said the court, "provide probative evidence regarding Fung’s intent in creating the Defendant websites to aid others infringement." The court also cataloged extensive evidence that the site and its admins assisted users in copyright infringement, and implemented technical features that promote infringement. Lastly, the court noted that about 95% of works "shared" using Fung's sites were infringing, and that the defendants' "ostrich-like refusal to discover the extent to which its system was being used to infringe copyright is merely another piece of evidence” of Defendants’ purposeful, culpable conduct in inducing third party infringement. See In re Aimster Copyright Litig., 334 F.3d 643, 655 (7th Cir. 2003)."
Judge Wilson also soundly rejected Fung's DMCA safe harbor defense, and in the course broke some new ground. As far as I am aware, this is the first case to find that a DMCA safe harbor was unavailable because the defendants had "red flag" knowledge of its users' infringement. See 17 U.S.C. § 512(d)(1)(B) (no safe harbor where defendant is "aware of facts or circumstances from which infringing activity is apparent."). Explained the court:
There is a variety of other evidence of Defendants’ willful ignorance to ongoing infringement. Defendants designed their website to include lists such as "Top Searches," "Top 20 Movies," "Top 20 TV Shows," and "Box Office Movies," and Defendants designed these lists to automatically update to reflect user activities. These lists included numerous copyrighted works. (SUF ¶¶ 8-12, 47-55.) See Grokster V, 454 F. Supp. 2d at 992 ("it is common knowledge that most popular music and movies are copyrighted"). Thus, unless Defendants somehow refused to look at their own webpages, they invariably would have been known that (1) infringing material was likely to be available and (2) most of Defendants’ users were searching for and downloading infringing material.But perhaps the most significant ruling in the opinion was the court's holding that the DMCA's safe harbors are simply not available where inducement has been established:
[I]nducement liability and the Digital Millennium Copyright Act safe harbors are inherently contradictory. Inducement liability is based on active bad faith conduct aimed at promoting infringement; the statutory safe harbors are based on passive good faith conduct aimed at operating a legitimate internet business. Here, as discussed supra, Defendants are liable for inducement. There is no safe harbor for such conduct.As far as I'm aware, this is the first time a court has squarely ruled that there is no DMCA safe harbor from an inducement claim; as I noted, the court in the UMG v. Veoh case skirted this issue.
Next up: the remedy phase, where the court will consider damages and an injunction.
Lead attorney for the plaintiffs is Steve Fabrizio of Jenner & Block, who also won the TorrentSpy and Usenet.com cases. Ira Rothken, who came out on the losing end of the similar TorrentSpy case, represents Fung and Isohunt Web Technologies, Inc.
Disclosure: I worked on this case for plaintiff Twentieth Century Fox Film Corp. while previously employed there. My current employer, NBC Universal, Inc., is the parent of plaintiff Universal City Studios LLLP, though I have not worked on the case while at NBCU.
Tuesday, December 22, 2009
Court: 'no recourse' for victims of defamatory postings under Section 230
Sir William Blackstone, who knew a thing or two about the law, wrote in his Commentaries on the Laws of England:
Here's the case, Blockowicz v. Williams, in a nutshell:
1) Defendants posted allegedly defamatory statements about plaintiffs on several sites, including Facebook, MySpace, and a site called Ripoff Report, which bills itself as follows:
3) Defendants failed to defend themselves in court, so the court issued a default judgment in plaintiffs' favor, as well as an injunction ordering defendants to remove the postings from the sites at issue. Plaintiffs couldn't contact defendants to enforce the injunction. So they instead approached the sites and said essentially: "A federal court has adjudicated the statements about us on your site as defamatory. Please remove them." All obliged -- except for Ripoff Report.
4) Plaintiffs filed a motion to enforce the injunction against Ripoff Report, on the theory that the site, though not itself a defendant, had acted "in concert" with the defendants and thus, under FRCP 65(d)(2)(C), was equally bound by it.
5) The court rejected the "in concert" theory and, apologetically, refused to enjoin Ripoff Report:
(H/T to Prof. Eric Goldman. Goldman usually argues for a very expansive reading of Section 230, but the Blockowicz opinion troubles even him; he writes that the "normative issues are still gnawing at me" and concedes that, "In some circumstances, continued publication may not be the right result.")
UPDATE: I've had a very interesting email exchange with David Gingras, general counsel of Xcentric Ventures, LLC, which operates Ripoff Report. I've invited him to do a full guest post to give his perspective on the issues raised by this case. In the meantime, he graciously provided me with the papers relevant to the order I discuss above; these flesh out the issues and go into greater detail about the parties' respective arguments.
1) Letter From Plaintiffs' Counsel to Ripoff Report and Complaint
2) Motion for Third Party Enforcement
3) Ripoff Report Response
4) Declaration of Ed Magedson, Ripoff Report founder and editor
5) Plaintiffs' Reply
6) Ripoff Report's Sur-Reply
7) Plaintiffs' Sur-Reply
UPDATE II: Techdirt argues that this case demonstrates a "problem ... with the default judgment process" but not Section 230. That's wrong. While it's true that default can sometimes result in anomalies, the problem with Section 230 that this case highlights has nothing to do with default. To illustrate, imagine a different case: Defendant posts allegedly defamatory material on site. Plaintiff sues defendant. Defendant shows up to defend himself (i.e., there's no default). After a full trial on the merits, the court (either judge or jury) determines that defendant defamed plaintiff. The court then orders Defendant to remove the post (which it may do consistent with the First Amendment). But when defendant asks the site to take down the post, the site refuses, saying its policy is never to take anything down. (Or, say, the site is based in Mongolia, has no US presence, and couldn't give a whit about a US court case.) In such a case, again, there's no way to force removal of the defamatory material, because of Section 230. I highly doubt that's an outcome Congress anticipated when it enacted the CDA, or would embrace today.
[I]t is a general and indisputable rule that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded.Or, as Chief Justice Marshall similarly put it in Marbury v. Madison:
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury.Clearly, neither Blackstone nor Marshall had ever encountered Section 230 of the Communications Decency Act. For, as a federal court in Chicago held yesterday, the statute that shields web sites from liability for defamatory posts by their users can indeed result in situations where there is no remedy for speech adjudged to be defamatory, and thus outside the protections of the First Amendment. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974) ("there is no constitutional value in false statements of fact").
Here's the case, Blockowicz v. Williams, in a nutshell:
1) Defendants posted allegedly defamatory statements about plaintiffs on several sites, including Facebook, MySpace, and a site called Ripoff Report, which bills itself as follows:
Ripoff Report® is a worldwide consumer reporting Web site and publication, by consumers, for consumers, to file and document complaints about companies or individuals. While we encourage and even require authors to only file truthful reports, Ripoff Report does not guarantee that all reports are authentic or accurate.2) Plaintiffs sued the individuals who posted the statements for defamation. (A suit against the sites would have been DOA under Section 230.)
3) Defendants failed to defend themselves in court, so the court issued a default judgment in plaintiffs' favor, as well as an injunction ordering defendants to remove the postings from the sites at issue. Plaintiffs couldn't contact defendants to enforce the injunction. So they instead approached the sites and said essentially: "A federal court has adjudicated the statements about us on your site as defamatory. Please remove them." All obliged -- except for Ripoff Report.
4) Plaintiffs filed a motion to enforce the injunction against Ripoff Report, on the theory that the site, though not itself a defendant, had acted "in concert" with the defendants and thus, under FRCP 65(d)(2)(C), was equally bound by it.
5) The court rejected the "in concert" theory and, apologetically, refused to enjoin Ripoff Report:
The court is sympathetic to the Blockowiczs’ plight; they find themselves the subject of defamatory attacks on the internet yet seemingly have no recourse to have those statements removed from the public view. Nevertheless, Congress has narrowly defined the boundaries for courts to enjoin third parties, and the court does not find that [Ripoff Report] falls within those limited conscriptions based on the facts presented here.So the bottom line is that the court was utterly powerless to grant the plaintiffs an effective remedy against harmful speech that has no First Amendment value. That's probably the correct result under the statute and the case law explicating it. But I can't imagine Congress would have enacted Section 230 back in 1996 if it knew this would be the result. Or did they disagree with Chief Justice Marshall when he wrote, "The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right."?
(H/T to Prof. Eric Goldman. Goldman usually argues for a very expansive reading of Section 230, but the Blockowicz opinion troubles even him; he writes that the "normative issues are still gnawing at me" and concedes that, "In some circumstances, continued publication may not be the right result.")
UPDATE: I've had a very interesting email exchange with David Gingras, general counsel of Xcentric Ventures, LLC, which operates Ripoff Report. I've invited him to do a full guest post to give his perspective on the issues raised by this case. In the meantime, he graciously provided me with the papers relevant to the order I discuss above; these flesh out the issues and go into greater detail about the parties' respective arguments.
1) Letter From Plaintiffs' Counsel to Ripoff Report and Complaint
2) Motion for Third Party Enforcement
3) Ripoff Report Response
4) Declaration of Ed Magedson, Ripoff Report founder and editor
5) Plaintiffs' Reply
6) Ripoff Report's Sur-Reply
7) Plaintiffs' Sur-Reply
UPDATE II: Techdirt argues that this case demonstrates a "problem ... with the default judgment process" but not Section 230. That's wrong. While it's true that default can sometimes result in anomalies, the problem with Section 230 that this case highlights has nothing to do with default. To illustrate, imagine a different case: Defendant posts allegedly defamatory material on site. Plaintiff sues defendant. Defendant shows up to defend himself (i.e., there's no default). After a full trial on the merits, the court (either judge or jury) determines that defendant defamed plaintiff. The court then orders Defendant to remove the post (which it may do consistent with the First Amendment). But when defendant asks the site to take down the post, the site refuses, saying its policy is never to take anything down. (Or, say, the site is based in Mongolia, has no US presence, and couldn't give a whit about a US court case.) In such a case, again, there's no way to force removal of the defamatory material, because of Section 230. I highly doubt that's an outcome Congress anticipated when it enacted the CDA, or would embrace today.
Monday, December 21, 2009
LA Times: 'Piracy is unacceptable,' except when one of our columnists contributes to it
"Moving against movie piracy," Editorial, December 19, 2009:
Let us be clear: Piracy is unacceptable."Landlords' pullback puts L.A. Toy District at risk," Michael Hiltzik, December 21, 2009:
From a sidewalk vendor I picked up an "unofficial" DVD copy, so to speak, of the movie "District 9," which isn't in retail release yet was perfectly playable on my home machine.The necessity of buying an obviously pirated DVD and watching it at home, while reporting a column about the economics of a particular LA neighborhood, eludes me.
Friday, December 18, 2009
Billboard: 'The five legal cases that defined the year in music'
My year-end Billboard piece is available online. Here's the intro:
The five legal cases that defined the year in music
NEW YORK (Billboard) - Almost a decade after the major labels launched their legal assault on Napster, courts are still writing the rules of the road for the music business's digital future.
Companies can't set out to build a business based on their users' infringement of copyright, courts had already ruled. But the precise meaning of that dictate remains in doubt. What steps must sites take to combat infringement? What are the proper penalties for those who infringe? This year, courts inched toward resolution of these questions, giving labels, publishers and artists a bit more certainty as they decide whom to work with and whom to sue.
And what are the five? Read the whole thing...
Tuesday, December 15, 2009
Chuck DeVore again tests limits of fair use in campaign videos with 'Austin Powers' clip
Thought Don Henley's lawsuit against California state Assemblyman and U.S. Senate candidate Chuck DeVore (R) would deter him from continuing to incorporate third-party copyrighted content into his campaign material? Not so much. DeVore has released a new video mocking his opponent, Sen. Barbara Boxer (D). And the video includes a clip of about 8 seconds from "Austin Powers":
Over to you, New Line...
Over to you, New Line...
Monday, December 7, 2009
Why you can't trust legal analysis that doesn't link to legal documents, part 437
Among the starkest lessons I've learned since I started this blog is this: Never write about a legal issue without reviewing the underlying legal documents. Don't write about a new lawsuit until you've read the complaint. Don't write about a motion unless you've read the briefs.
Today's example of what happens when this rule is ignored comes from UPI, which reported that actor Ron Livingston "is suing Wikipedia, saying the online encyclopedia's page about him incorrectly identifies him as gay." Techdirt dutifully followed the UPI report without any checking, declaring the suit "obviously dead-in-the-water" due to Section 230 of the Communications Decency Act.
One problem: Livingston didn't sue Wikipedia. As THR, Esq. -- an excellent publication that almost always does link to the legal documents it discusses -- accurately reported today, Livingston (technically his loan-out company) sued an unknown individual who allegedly impersonated Livingston online and posted accusations that he is gay on Wikipedia and Facebook. The complaint includes claims for libel, false light, and violations of Livingston's statutory and common-law right of publicity, and seeks actual and punitive damages. Presumably Livingston will seek discovery (IP and email addresses and other identifying information) from Wikipedia and Facebook, which he hopes will identify the poster. Livingston can then name the individual in the complaint, and proceed against him. Section 230 won't protect the individual; it only shields the service (i.e., Wikipedia or Facebook) that hosted the material.
Complaint in Coupleguys, Inc. v. John Doe
There are a few interesting issues buried in this lawsuit. First, is it defamatory to falsely label someone as gay? It's a very interesting issue; obviously many people don't like being falsely called gay, but some gay rights activists argue that to permit a defamation action for a false accusation of homosexuality perpetuates the harmful notion that there is something wrong, or shameful, about being gay. Indeed, a New York federal court recently ruled that a false accusation of homosexuality is not defamatory per se. (I haven't researched this question under California law, which I assume will apply here; feel free to weigh in in the comments with relevant citations.)
Second, is what alleged here really a right of publicity violation? I'm skeptical. There are no allegations that the poster had any commercial purpose; the complaint seems to alleged that he was simply engaged in some sort of malicious prank. While the cases in this area aren't terribly consistent, I tend not to think that right of publicity is the correct claim here.
Third, this case once again demonstrates the awesome power of Section 230. Livingston didn't sue Wikipedia or Facebook because Section 230 clearly protects them here, at least on the libel and false light claims. (Whether the right of publicity claim is a "law pertaining to intellectual property" and thus outside the scope of Section 230's protections, see 47 U.S.C. 230(e)(2), is a tougher question. Compare Perfect 10, Inc. v. CC Bill LLC, 488 F.3d 1102 (9th Cir. 2007) (state IP claims not immunized under Section 230), with Doe v. Friendfinder Network, Inc., 540 F.Supp.2d 288 (D.N.H. 2008) (state IP claims immunized under Section 230).) But let's assume Livingston wins; the court agrees that the statements are defamatory and infringe his right of publicity, and awards him money. That doesn't solve the problem that's really bugging him: that people are saying false things about him on the web. Under Section 230, the court cannot order a site to remove defamatory content it didn't create, even after it's been determined definitively that the content infringes the plaintiff's rights. The court could, presumably, order the defendant to remove the content he has posted (though the complaint does not specifically request this remedy). But what if the site won't permit that? Or what if another bozo re-posts the same material? Or what if, despite the best efforts of Livingston's attorneys, they can't find whoever posted the offending content? Or what if he's dead? Section 230 means he has no effective recourse, and the false information may remain there forever.
Maybe that's an acceptable result, necessary to preserve free speech on the Internet. But whatever the case, I doubt it's a result Congress intended when it passed the CDA back in 1996.
Update: make sure to read Sam Bayard's analysis of the issue whether it's defamatory to falsely call someone gay. "[T]he courts appear to be split, but it is hard to say for sure because of the evolving nature of the inquiry," he concludes in his post at the Citizen Media Law Center site.
Also, still no correction at Techdirt's post, which continues to claim, falsely, that Livingston sued Wikipedia. The post's subhed mocks Livingston's attorneys for supposedly failing to do "research,-research,-research." That, in a post that failed to do even one "research," and that continues to report false information, even after acknowledging in an "update" that a commenter alerted the author to the error. "Updates" are to report new developments; errors demand plain, old-fashioned "corrections."
Today's example of what happens when this rule is ignored comes from UPI, which reported that actor Ron Livingston "is suing Wikipedia, saying the online encyclopedia's page about him incorrectly identifies him as gay." Techdirt dutifully followed the UPI report without any checking, declaring the suit "obviously dead-in-the-water" due to Section 230 of the Communications Decency Act.
One problem: Livingston didn't sue Wikipedia. As THR, Esq. -- an excellent publication that almost always does link to the legal documents it discusses -- accurately reported today, Livingston (technically his loan-out company) sued an unknown individual who allegedly impersonated Livingston online and posted accusations that he is gay on Wikipedia and Facebook. The complaint includes claims for libel, false light, and violations of Livingston's statutory and common-law right of publicity, and seeks actual and punitive damages. Presumably Livingston will seek discovery (IP and email addresses and other identifying information) from Wikipedia and Facebook, which he hopes will identify the poster. Livingston can then name the individual in the complaint, and proceed against him. Section 230 won't protect the individual; it only shields the service (i.e., Wikipedia or Facebook) that hosted the material.
Complaint in Coupleguys, Inc. v. John Doe
There are a few interesting issues buried in this lawsuit. First, is it defamatory to falsely label someone as gay? It's a very interesting issue; obviously many people don't like being falsely called gay, but some gay rights activists argue that to permit a defamation action for a false accusation of homosexuality perpetuates the harmful notion that there is something wrong, or shameful, about being gay. Indeed, a New York federal court recently ruled that a false accusation of homosexuality is not defamatory per se. (I haven't researched this question under California law, which I assume will apply here; feel free to weigh in in the comments with relevant citations.)
Second, is what alleged here really a right of publicity violation? I'm skeptical. There are no allegations that the poster had any commercial purpose; the complaint seems to alleged that he was simply engaged in some sort of malicious prank. While the cases in this area aren't terribly consistent, I tend not to think that right of publicity is the correct claim here.
Third, this case once again demonstrates the awesome power of Section 230. Livingston didn't sue Wikipedia or Facebook because Section 230 clearly protects them here, at least on the libel and false light claims. (Whether the right of publicity claim is a "law pertaining to intellectual property" and thus outside the scope of Section 230's protections, see 47 U.S.C. 230(e)(2), is a tougher question. Compare Perfect 10, Inc. v. CC Bill LLC, 488 F.3d 1102 (9th Cir. 2007) (state IP claims not immunized under Section 230), with Doe v. Friendfinder Network, Inc., 540 F.Supp.2d 288 (D.N.H. 2008) (state IP claims immunized under Section 230).) But let's assume Livingston wins; the court agrees that the statements are defamatory and infringe his right of publicity, and awards him money. That doesn't solve the problem that's really bugging him: that people are saying false things about him on the web. Under Section 230, the court cannot order a site to remove defamatory content it didn't create, even after it's been determined definitively that the content infringes the plaintiff's rights. The court could, presumably, order the defendant to remove the content he has posted (though the complaint does not specifically request this remedy). But what if the site won't permit that? Or what if another bozo re-posts the same material? Or what if, despite the best efforts of Livingston's attorneys, they can't find whoever posted the offending content? Or what if he's dead? Section 230 means he has no effective recourse, and the false information may remain there forever.
Maybe that's an acceptable result, necessary to preserve free speech on the Internet. But whatever the case, I doubt it's a result Congress intended when it passed the CDA back in 1996.
Update: make sure to read Sam Bayard's analysis of the issue whether it's defamatory to falsely call someone gay. "[T]he courts appear to be split, but it is hard to say for sure because of the evolving nature of the inquiry," he concludes in his post at the Citizen Media Law Center site.
Also, still no correction at Techdirt's post, which continues to claim, falsely, that Livingston sued Wikipedia. The post's subhed mocks Livingston's attorneys for supposedly failing to do "research,-research,-research." That, in a post that failed to do even one "research," and that continues to report false information, even after acknowledging in an "update" that a commenter alerted the author to the error. "Updates" are to report new developments; errors demand plain, old-fashioned "corrections."
Some additional thoughts on the Tenenbaum fair use opinion: mainly right on fair use, but why all the dicta?
Today's Memorandum and Order explaining the court's July 27 grant of summary judgment against Joel Tenenbaum's fair use defense was, in one respect, unnecessary. Judge Nancy Gertner had already made her decision (and explained it, albeit briefly), and what she said in elaboration won't change the jury's $675,000 verdict in favor of the record labels. But she did promise a full opinion, and she delivered. And her order is nonetheless important, and extraordinary, for several reasons.
Fair Use Memorandum and Order in Sony v. Tenenbaum
Blasting Nesson
Judge Gertner's order is one of the harshest assessments of an attorney's performance in a civil case that I've ever seen. She leaves absolutely no doubt that she believes Tenenbaum's counsel, Harvard Law School Professor Charles Nesson, did a terrible job. She calls the defense "truly chaotic." Order at 2. She says that Nesson "repeatedly missed deadlines" and "ignored rules." Id. at n.3. She says that Nesson's practice of making unauthorized audio recordings of opposing counsel and the court and posting them to the Web is "plainly illegal" under Massachusetts criminal law. Id. (The plaintiffs' sanctions motion regarding the recordings remains pending.)
More substantively, Judge Gertner makes clear that Nesson's poor litigating harmed Tenenbaum's fair use defense. She notes that he first promised the court that he would not seek to amend his pleadings (which was necessary to add the affirmative defense of fair use), but then reversed himself. Order at 1. And Nesson's papers opposing the labels' summary judgment motion on fair use "can only be described as perfunctory." Id. at 3. His arguments, said Judge Gertner, were not properly crafted for this case. "Rather than tailoring his fair use defense to suggest a modest exception to copyright protections, Tenenbaum mounted a broadside attack that would excuse all file sharing for private enjoyment," she wrote. Id. at 4. And Nesson's summary judgment opposition "did not come close" to doing what such papers must: identify disputed issues of material fact. "He offered few disputed facts and little, if any, legal authority for his position. His opposition briefs were not accompanied by any affidavits, expert reports, deposition testimony, or other evidence of the kind required by Federal Rule of Civil Procedure 56(e)(2)." Id. at 5. His showing on market harm was "extraordinarily meager." Id. at 7.
What makes Judge Gertner's rebuke all the more stinging is that she personally recruited him to take on Tenenbaum's case. Who better to mount a defense than a Harvard Law School professor, the founder of the Berkman Center for Internet & Society, and a long-time acquaintance of Judge Gertner who had even successfully represented her in a case back in the 1980s? And Judge Gertner makes no secret of the fact that her sympathies lie with Tenenbaum, and not the labels. See Order at 2 (the court is "deeply concerned by the rash of file-sharing lawsuits"), 3 ("the Court was prepared to consider a more expansive fair use argument than other courts have credited"), 34 ("As this Court has previously noted, it is very, very concerned that there is a deep potential for injustice in the Copyright Act as it is currently written.").
In sum, it's fair to conclude from Judge Gertner's order that she believes a competent attorney could have drafted a brief opposing summary judgment that would have raised sufficient disputed material facts to send the issue to the jury. Would a jury would have ultimately bought the defense? I have grave doubts; they quite obviously believed that what Tenenbaum did was wrong (and my conversation with one of the jurors confirmed that).
Finally, what must the Harvard administration think? Do they approve of Nesson's behavior? Do they care?
A solid win for the plaintiffs on fair use
On the substantive legal points that she needed to decide, Judge Gertner got the fair use analysis right. She understands that fair use is not a free-floating referendum on "fairness," where the defendant gets to argue pretty much whatever he wants to the jury. See Order at 5 ("The doctrine of fair use is not infinitely malleable, requiring a jury determination every time it is intoned, no matter what the facts."). She gets that copyright infringement is harmful to the legitimate market. See id. at 7 ("There can be no question that on this record continuous, high-volume file-sharing -- offering exact copies to millions of peer-to-peer users for free -- would negatively affect the market for these copyrighted works."). She correctly rejected Nesson's assertion that "non-commercial" uses are presumptively fair. See id. at 14-15.
On the four statutory factors, I have some quibbles, but Judge Gertner correctly concluded that they all favored the plaintiffs. She disagreed with the Ninth Circuit in Napster in declining to find that Tenenbaum's activities were "commercial," instead finding that they were "somewhere in the middle" between commercial and non-commercial. See Order at 17. But she still found that the first factor cuts against fair use, as Tenenbaum's use of p2p "was not accompanied by any public benefit or transformative purpose." The second factor favored the labels because the recordings are creative works, see Order at 18-19, and on the third, she correctly treated the song, not the album, as the relevant metric for determining how much of the work Tenenbaum used, see id. at 19-21. And the analysis on the fourth factor, concerning the effect on the market, is solid. Judge Gertner properly identified the inquiry as "whether unrestricted and widespread conduct of the sort engaged in by the defendant...would result in a substantially adverse impact on the potential market for the original," and concluded that, here, it would: "The Copyright Act grants the plaintiffs an exclusive right to distribute these works; file-sharing effectively displaces that right, and the market it represents, by offering the same works for free." Id. at 24. And lastly, Judge Gertner properly rejected Tenenbaum's extra-statutory factors, including assumption of risk, the plaintiffs' marketing activities, and failure to use DRM. See id. at 25-30.
An overabundance of dicta
It's toward the end where I believe Judge Gertner's opinion fails to hew closely to the case law and facts. She is way too indulgent of Tenenbaum's argument that his use of KaZaA to get songs for free should be excused because there were supposedly insufficient legal alternatives. This argument fails, both legally and factually. The labels were under no obligation to offer to Tenenbaum (or anyone else) their songs in precisely the format he preferred, and their alleged failure to do so does not result in the loss of their exclusive rights under the Copyright Act. (The Beatles don't offer their songs on the Web. So can BlueBeat.com sell them for 25 cents a piece and call it fair use?) Moreover, as a factual matter, it's simply false to say that there were no legal alternatives to p2p while Tenenbaum was downloading hundreds of songs without paying for them; Judge Gertner's only rejoinder to the plaintiffs' evidence on this front is a quote from a 2003 USA Today article saying that iTunes is "the first legitimate Net service to hit all the high notes." Order at 31 n.15. Even if all of the pre-iTunes services were pitiful compared to iTunes, that hardly means that copyright law stops protecting the labels' works. Furthermore, as Judge Gertner acknowledges, see id. at 32, there were plenty of legitimate services by August of 2004, when Tenenbaum's infringement was detected, which renders much of this discussion dicta -- musings unnecessary to resolution of this case, but likely to cause mischief down the road. And Judge Gertner's listing in the Conclusion, see Order at 35-37, of various p2p scenarios she can "envision" as fair use, is dicta of the purest sort, disquisition on issues that were simply not before the court.
Finally, Judge Gertner states that she is "very, very concerned that there is a deep potential for injustice in the Copyright Act as it is currently written" and "urges -- no implores -- Congress to amend the statute to reflect the realities of file-sharing." Order at 34. I believe this passage, which again is completely unnecessary dicta, is inappropriate. A federal judge's role is to state what the law is, and apply it faithfully. (I believe Judge Gertner did that.) But I believe it undermines public confidence in the neutrality and impartiality of the judiciary when a judge steps outside her role in deciding cases, and expresses her personal opinion about what the law should be. It's a point Tom Sydnor made after Judge Michael Davis made similar comments critical of the first Jammie Thomas-Rasset verdict, and his words apply with equal force here:
Fair Use Memorandum and Order in Sony v. Tenenbaum
Blasting Nesson
Judge Gertner's order is one of the harshest assessments of an attorney's performance in a civil case that I've ever seen. She leaves absolutely no doubt that she believes Tenenbaum's counsel, Harvard Law School Professor Charles Nesson, did a terrible job. She calls the defense "truly chaotic." Order at 2. She says that Nesson "repeatedly missed deadlines" and "ignored rules." Id. at n.3. She says that Nesson's practice of making unauthorized audio recordings of opposing counsel and the court and posting them to the Web is "plainly illegal" under Massachusetts criminal law. Id. (The plaintiffs' sanctions motion regarding the recordings remains pending.)
More substantively, Judge Gertner makes clear that Nesson's poor litigating harmed Tenenbaum's fair use defense. She notes that he first promised the court that he would not seek to amend his pleadings (which was necessary to add the affirmative defense of fair use), but then reversed himself. Order at 1. And Nesson's papers opposing the labels' summary judgment motion on fair use "can only be described as perfunctory." Id. at 3. His arguments, said Judge Gertner, were not properly crafted for this case. "Rather than tailoring his fair use defense to suggest a modest exception to copyright protections, Tenenbaum mounted a broadside attack that would excuse all file sharing for private enjoyment," she wrote. Id. at 4. And Nesson's summary judgment opposition "did not come close" to doing what such papers must: identify disputed issues of material fact. "He offered few disputed facts and little, if any, legal authority for his position. His opposition briefs were not accompanied by any affidavits, expert reports, deposition testimony, or other evidence of the kind required by Federal Rule of Civil Procedure 56(e)(2)." Id. at 5. His showing on market harm was "extraordinarily meager." Id. at 7.
What makes Judge Gertner's rebuke all the more stinging is that she personally recruited him to take on Tenenbaum's case. Who better to mount a defense than a Harvard Law School professor, the founder of the Berkman Center for Internet & Society, and a long-time acquaintance of Judge Gertner who had even successfully represented her in a case back in the 1980s? And Judge Gertner makes no secret of the fact that her sympathies lie with Tenenbaum, and not the labels. See Order at 2 (the court is "deeply concerned by the rash of file-sharing lawsuits"), 3 ("the Court was prepared to consider a more expansive fair use argument than other courts have credited"), 34 ("As this Court has previously noted, it is very, very concerned that there is a deep potential for injustice in the Copyright Act as it is currently written.").
In sum, it's fair to conclude from Judge Gertner's order that she believes a competent attorney could have drafted a brief opposing summary judgment that would have raised sufficient disputed material facts to send the issue to the jury. Would a jury would have ultimately bought the defense? I have grave doubts; they quite obviously believed that what Tenenbaum did was wrong (and my conversation with one of the jurors confirmed that).
Finally, what must the Harvard administration think? Do they approve of Nesson's behavior? Do they care?
A solid win for the plaintiffs on fair use
On the substantive legal points that she needed to decide, Judge Gertner got the fair use analysis right. She understands that fair use is not a free-floating referendum on "fairness," where the defendant gets to argue pretty much whatever he wants to the jury. See Order at 5 ("The doctrine of fair use is not infinitely malleable, requiring a jury determination every time it is intoned, no matter what the facts."). She gets that copyright infringement is harmful to the legitimate market. See id. at 7 ("There can be no question that on this record continuous, high-volume file-sharing -- offering exact copies to millions of peer-to-peer users for free -- would negatively affect the market for these copyrighted works."). She correctly rejected Nesson's assertion that "non-commercial" uses are presumptively fair. See id. at 14-15.
On the four statutory factors, I have some quibbles, but Judge Gertner correctly concluded that they all favored the plaintiffs. She disagreed with the Ninth Circuit in Napster in declining to find that Tenenbaum's activities were "commercial," instead finding that they were "somewhere in the middle" between commercial and non-commercial. See Order at 17. But she still found that the first factor cuts against fair use, as Tenenbaum's use of p2p "was not accompanied by any public benefit or transformative purpose." The second factor favored the labels because the recordings are creative works, see Order at 18-19, and on the third, she correctly treated the song, not the album, as the relevant metric for determining how much of the work Tenenbaum used, see id. at 19-21. And the analysis on the fourth factor, concerning the effect on the market, is solid. Judge Gertner properly identified the inquiry as "whether unrestricted and widespread conduct of the sort engaged in by the defendant...would result in a substantially adverse impact on the potential market for the original," and concluded that, here, it would: "The Copyright Act grants the plaintiffs an exclusive right to distribute these works; file-sharing effectively displaces that right, and the market it represents, by offering the same works for free." Id. at 24. And lastly, Judge Gertner properly rejected Tenenbaum's extra-statutory factors, including assumption of risk, the plaintiffs' marketing activities, and failure to use DRM. See id. at 25-30.
An overabundance of dicta
It's toward the end where I believe Judge Gertner's opinion fails to hew closely to the case law and facts. She is way too indulgent of Tenenbaum's argument that his use of KaZaA to get songs for free should be excused because there were supposedly insufficient legal alternatives. This argument fails, both legally and factually. The labels were under no obligation to offer to Tenenbaum (or anyone else) their songs in precisely the format he preferred, and their alleged failure to do so does not result in the loss of their exclusive rights under the Copyright Act. (The Beatles don't offer their songs on the Web. So can BlueBeat.com sell them for 25 cents a piece and call it fair use?) Moreover, as a factual matter, it's simply false to say that there were no legal alternatives to p2p while Tenenbaum was downloading hundreds of songs without paying for them; Judge Gertner's only rejoinder to the plaintiffs' evidence on this front is a quote from a 2003 USA Today article saying that iTunes is "the first legitimate Net service to hit all the high notes." Order at 31 n.15. Even if all of the pre-iTunes services were pitiful compared to iTunes, that hardly means that copyright law stops protecting the labels' works. Furthermore, as Judge Gertner acknowledges, see id. at 32, there were plenty of legitimate services by August of 2004, when Tenenbaum's infringement was detected, which renders much of this discussion dicta -- musings unnecessary to resolution of this case, but likely to cause mischief down the road. And Judge Gertner's listing in the Conclusion, see Order at 35-37, of various p2p scenarios she can "envision" as fair use, is dicta of the purest sort, disquisition on issues that were simply not before the court.
Finally, Judge Gertner states that she is "very, very concerned that there is a deep potential for injustice in the Copyright Act as it is currently written" and "urges -- no implores -- Congress to amend the statute to reflect the realities of file-sharing." Order at 34. I believe this passage, which again is completely unnecessary dicta, is inappropriate. A federal judge's role is to state what the law is, and apply it faithfully. (I believe Judge Gertner did that.) But I believe it undermines public confidence in the neutrality and impartiality of the judiciary when a judge steps outside her role in deciding cases, and expresses her personal opinion about what the law should be. It's a point Tom Sydnor made after Judge Michael Davis made similar comments critical of the first Jammie Thomas-Rasset verdict, and his words apply with equal force here:
When judges develop opinions on questions of law or policy, they usually communicate them through extrajudicial means like speeches or articles. Judges rarely use THE FEDERAL SUPPLEMENT to advise Congress that it enacted unwise laws. But even if the urge to condemn Congress becomes irresistible, judges almost never support their advisory opinions by characterizing issues in a pending case.Perhaps the saving grace for the plaintiffs, as they defend the their verdict against constitutional attack, is that Judge Gertner's words signal a recognition that the law, as currently written , favors their position, however distateful she may find that prospect.
Court enters judgment vs. Tenenbaum and enjoins him from further infringement; explains fair use decision while slamming defense as 'truly chaotic'
Over four months after a jury ordered Joel Tenenbaum to pay $675,000 for using peer-to-peer networks to illegally download and "share" 30 of the major record labels' songs, Judge Nancy Gertner today issued a judgment against him for that amount. The court also enjoined the Boston University physics grad student from further infringement, and ordered him to destroy all unauthorized copies of the plaintiffs' songs in his possession.
Judgment and Injunction in Sony v. Tenenbaum
The court's injunction is a bit narrower than that requested by the plaintiffs; it omits, on First Amendment grounds, the labels' entreaty that Tenenbaum be enjoined from "promot[ing] ... using the Internet or any online media distribution system to infringe copyright." Here's the court's order explaining the scope of the injunction.
The court also issued a 38-page order elaborating on and confirming its decision, issued on the eve of trial, rejecting Tenenbaum's proposed fair use defense. I'll have much more analysis of the order later, but here are some of the highlights. The court:
Judgment and Injunction in Sony v. Tenenbaum
The court's injunction is a bit narrower than that requested by the plaintiffs; it omits, on First Amendment grounds, the labels' entreaty that Tenenbaum be enjoined from "promot[ing] ... using the Internet or any online media distribution system to infringe copyright." Here's the court's order explaining the scope of the injunction.
The court also issued a 38-page order elaborating on and confirming its decision, issued on the eve of trial, rejecting Tenenbaum's proposed fair use defense. I'll have much more analysis of the order later, but here are some of the highlights. The court:
- Blasted the defense, led by Harvard Law School Professor Charles Nesson, for running a "truly chaotic defense" that raised fair use late and failed to cite relevant case law and evidence;
- Criticized the defense for "mounting a broadside attack that would excuse all file sharing for private enjoyment" rather than making a narrow, fact-specific argument that took into account the facts of this case;
- Cited Nesson's own amicus brief in a related case where he called the fair use arguments regarding uploading files "very weak";
- Rejected nearly all of the defense's substantive arguments related to fair use, including the additional, extra-statutory factors it suggested, such as "assumption of risk" and the plaintiffs' marketing tactics that allegedly encouraged infringement.
- Suggested, in dicta, that it may have been fair use to use peer-to-peer to obtain songs before they were made available legally through iTunes or similar legal services;
- "[U]rge[d] -- no implore[d] -- Congress to amend the [copyright] statute to reflect the realities of file sharing" because of the "astronomical penalties for an activity whose implications [teenagers and students] may not have fully understood."
Friday, December 4, 2009
Espinel Confirmed to 'IP Czar' post
It's now official: Victoria Espinel was confirmed by the Senate yesterday as the first White House Intellectual Property Enforcement Coordinator, better known as the "IP Czar."
The PRO-IP Act, which created the position to which Espinel was named, also requires that the Justice Department make annual reports on federal IP enforcement. Here's the first such report, released in October:
2008-2009 Pro-IP Act Annual Report
(h/t Wired)
The PRO-IP Act, which created the position to which Espinel was named, also requires that the Justice Department make annual reports on federal IP enforcement. Here's the first such report, released in October:
2008-2009 Pro-IP Act Annual Report
(h/t Wired)
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