Court narrowly construes damages provision of DMCA Section 512(f); litigation fees not recoverable

A federal court this week narrowly construed the damages and attorneys' fees provisions of the DMCA section that provides a cause of action for sending knowingly false takedown notices. The court held that a plaintiff in a case under 17 USC § 512(f) may only recover damages "proximately caused by the misrepresentation to the service provider and the service provider’s reliance on the misrepresentation" and may only recover attorneys' fees under Section 512(f) for pre-litigation activity -- "i.e., in drafting and issuing the counter notice" -- but not for litigating the case itself.
Order on damages and attorneys fees

The ruling came in the Lenz v. Universal case, in which UMG, acting on behalf of Prince, issued a takedown notice to YouTube over a 29-second video that features a baby dancing to "Let's Go Crazy." According to the complaint, Stephanie Lenz uploaded the video to YouTube Feb. 8, 2007; UMG sent a takedown notice June 4; YouTube removed the video shortly thereafter; and Lenz filed a DMCA counternotice June 27. UMG never sued for copyright infringement, and so YouTube restored the video in mid-July. On July 24, 2007, represented by the EFF, Lenz sued under Section 512(f), which provides a cause of action against "Any person who knowingly materially misrepresents under this section...that material or activity is infringing." As of today, the video, which Lenz says she posted "for her family and friends to enjoy," has been viewed 954,167 times.

So, assuming that Lenz can indeed show that UMG "knowingly materially misrepresent[ed]" that the video was infringing, what damages can she recover? The statute says she can get:

any damages, including costs and attorneys’ fees, incurred by [her]...[if she is] injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing...

Judge Jeremy Fogel's decision concludes Lenz can recover even if she did not suffer economic losses. But I don't see how Lenz suffered more than nominal losses here; she was simply annoyed that her video (hosted for free by YouTube) was temporarily removed, and she found some lawyers/activists who jumped at the chance to make a federal case out of it. Under the court's decision, Lenz may recover for attorneys' "fees incurred both prior to litigation–i.e., in drafting and issuing the counter notice." But such fees must be minimal here. The EFF attorneys spent 30 seconds watching the video, and I'm sure it took them only about 5 more to reach their conclusion that this was a fair use. Drafting and sending a counternotice should have taken them only about 15 minutes. Realistically, the fees unrelated to the actual litigation (which the court held are recoverable even though EFF works pro bono) are probably well under $1,000. The court's interpretation of Section 512(f) as excluding from recoverable fees the fees incurred in the litigation itself makes sense; a plaintiff who suffered little or no actual damages should not be able to effectively manufacture massive damages in the form of attorneys' fees by engaging in years of litigation over an issue that was effectively remedied through the counternotice process. As Judge Fogel notes (citing, ironically, an article critical of copyright owners' takedown practices), the whole point of the DMCA's notice-and-takedown (and counternotice) procedure is to resolve these matters outside of the courthouse.

All is not lost for Lenz, however. Though, if Lenz prevails, she (or, more precisely, EFF) won't be able to recover litigation fees under Section 512(f), she may be able to do so under 17 USC § 505, which provides that in copyright cases, "the court in its discretion may allow the recovery of full costs ... [and] a reasonable attorney's fee to the prevailing party." Litigation-related attorneys' fees in this case, which has now dragged on for 2 1/2 years, could reach well into the six figures for each side. The Supreme Court has opined that factors the court may consider in exercising its discretion to award attorneys' fees to a prevailing party include "frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence." Fogerty v. Fantasy, Inc., 510 US 517, n.19 (1994).

Lastly, keep in mind that all this talk about damages and attorneys' fees is relevant only if Lenz ends up prevailing on her substantive Section 512(f) claim. While I've yet to meet anyone who thinks it was actually a good idea for UMG to send a notice on this particular video, it's far from clear that Lenz will be able to prevail under the Ninth Circuit's standard set forth in Rossi v. MPAA, which requires a showing of subjective bad faith on the part of the copyright owner (i.e., the plaintiff must show that the copyright owner actually believed it was sending a takedown notice on non-infringing material); a showing that a reasonable copyright owner would not have sent the notice is insufficient to sustain a cause of action. Indeed, in an earlier ruling in this case, Judge Fogel said he "has considerable doubt that Lenz will be able to prove that Universal acted with the subjective bad faith required by Rossi, and following discovery her claims well may be appropriate for summary judgment." I expect those summary judgment proceedings to occur over the next few months.

(h/t Prof. Eric Goldman)

What really happened with the 'RickRoll' video: likely NOT the subject of a DMCA notice

The Web is erupting in predictable conniptions over news that the original "RickRoll" video has been removed from YouTube. And running through a lot of the commentary is the assumption that the video was removed because one of the owners of the copyright in the song (either the music publisher or record label) sent a DMCA notice to YouTube, claiming that the video is infringing. But while I don't know exactly what happened, I'm almost certain that the removal of the video was not because of a DMCA notice on this particular video.

Note that the message that appears in place of the RickRoll video is "This video has been removed due to a terms of use violation":

By contrast, when a copyright owner sends a DMCA notice on a particular video, YouTube displays a message that says, "This video is no longer available because of a copyright claim by [the copyright owner]." Here's an example:

The removal of a video due to a terms of use violation can result from a variety of issues: pornography, excessive violence, drug use, etc. I doubt those account for what happened here. Rather, YouTube also uses the "This video has been removed due to a terms of use violation" when it terminates a user's account, a step that results in removal of all of the user's videos, including those that have never themselves been the subject of a complaint. A common reason for suspension of a user's account is having been the subject of three DMCA notices that were not successfully contested. See YouTube Terms of Service Paragraph 7; see also pages 17-18 of this brief (quoting a declaration from YouTube GC Zahava Levine stating "[i]f YouTube receives more than two takedown notices for content uploaded by a particular user, or the user has her content removed from the service more than two times, then YouTube will terminate the user's account."); 17 USC § 512(i) (hosts must "terminat[e] in appropriate circumstances...repeat infringers" in order to benefit from the safe harbor from copyright claims). So if the user who posted the RickRoll video got three DMCA notices on other videos (i.e., not the RickRoll video), his or her RickRoll video would be removed to due a terms of use violation -- even if the copyright owners were perfectly happy to have it on YouTube.

Again, I can't say for sure whether that's what happened here -- it's impossible to see who the account holder actually is, or what other videos he or she had posted to this account. But I'm pretty confident that this incident was not the result of someone at Rick Astley's label or the song's publisher suddenly deciding to rid the world of the RickRoll.

Update: YouTube says it was all a mistake. From a statement it gave to Mashable:

With 20 hours of video uploaded every minute to YouTube, we count on our community members to know our Community Guidelines and to flag content they believe violates them. We review all flagged content quickly, and if we find that a video does violate the guidelines, we remove it, on average in under an hour. We also have a team that is dedicated to identifying and removing spam from YouTube. Occasionally, an account flagged by users or identified by our spam team is mistakenly taken down. When this is brought to our attention, we move quickly to take appropriate action, including restoring videos that had been mistakenly removed and channels that have been mistakenly suspended.

IP Czar to public: Give me your ideas for IP enforcement

Victoria Espinel, the newly-confirmed White House Intellectual Property Enforcement Coordinator -- aka "IP Czar" -- is asking the public for input on the costs of infringement, and how best to combat it. In a notice published today in the Federal Register, Espinel, whose position was created by the 2008 PRO-IP Act, seeks written submissions on two topics: 1) "the costs to the U.S. economy resulting from intellectual property violations, and the threats to public health and safety created by infringement"; and 2) "recommendations from the public regarding the objectives and content of the Joint Strategic Plan and other specific recommendations for improving the Government’s intellectual property enforcement efforts." The "Joint Strategic Plan" is itself mandated by Section 303 of the PRO-IP Act, which passed the House 410-11 and by unanimous consent in the Senate, and was signed into law by then-President Bush on October 13, 2008. Submissions are due March 24, and should be sent to intellectualproperty@omb.eop.gov.

Today on the White House blog, Espinel introduced herself and the goals she has for her office:

Intellectual Property and Risks to the Public

Posted by Victoria Espinel on February 23, 2010 at 02:22 PM EST

Hi, I am Victoria Espinel, the U.S. Intellectual Property Enforcement Coordinator. I am honored to have been appointed by President Barack Obama and confirmed by the U.S. Senate to serve in this new position created by Congress in the Prioritizing Resources and Organization for Intellectual Property Act of 2008. Given the unique nature of this job, I’d like to describe what I’m doing in my office and how we want to engage the public to get input on what we, as a government, should be doing.

While talking about our global competitive advantage at a recent town hall meeting in Ohio, the President said, “One of the problems that we have had is insufficient protection for intellectual property rights”–and it is important that our ideas are protected. In December 2009, the Vice President, joined by Cabinet members and other senior government officials, held a roundtable discussion to emphasize the Administration’s commitment to enforcing laws against intellectual property theft.

Intellectual property are the ideas behind inventions, the artistry that goes into books and music, and the logos of companies whose brands we have come to trust. My job is to help protect the ideas and creativity of the American public. One of the reasons that I care about this is because I believe it is enormously important that the United States remain a global leader in these forms of innovation – and part of how we do that is by appropriately protecting our intellectual property. Our intellectual property represents the hard work, creativity, resourcefulness, investment and ingenuity of the American public. Infringement of intellectual property can hurt our economy and can undermine U.S. jobs. Infringement also reduces our markets overseas and hurts our ability to export our products. Counterfeit products can pose a significant threat to the health and safety of us all. Imagine learning that the toothpaste you and your family have used for years contains a dangerous chemical. U.S. Customs officials have seized several shipments of counterfeit toothpaste containing a dangerous amount of diethylene glycol, a chemical used in brake fluid, and that in sufficient doses is believed to cause kidney failure. All of these are reasons why your government has renewed its efforts to challenge this illegal activity.

My job is to help coordinate the work of the federal agencies that are involved with stopping this illegal behavior. We are going to work together to develop a strategy to reduce those risks to the public, the costs to our economy and to help protect the ingenuity and creativity of Americans. We want to be able to reduce the number of infringing goods in the United States and abroad. The examples are almost endless: counterfeit car parts, illegal software, pirated video games, knockoff consumer goods, dangerous counterfeit medicines, and many other types of products – including very sophisticated technology. Our goal is to better use taxpayer dollars and other government resources to be more effective in reducing any threat to our economy and our safety.

To further these goals, we are working to find ways of measuring these threats and their impact on us. How many jobs depend on the existence of intellectual property? What are the greatest risks to health and safety? We need better data on these questions and it is part of my job to figure out what the answers are. We cannot do that without your help. So, my office is asking the public to give us information about the costs and the risks – and then give us suggestions for what we could be doing better as a government. As a first step, we are issuing a notice to the public asking for your input. Here’s a link to this request (pdf). You can send your comments to intellectualproperty@omb.eop.gov. We look forward to hearing from you.

Boston Globe: Gertner 'openly sympathetic' to Tenenbaum at hearing on challenge to damages

This afternoon Judge Nancy Gertner held oral argument on Joel Tenenbaum's motion to reduce the jury's award of $675,000 for downloading and distributing 30 songs over the KaZaA peer-to-peer network. And, according to this report in the Boston Globe, it seems likely that Judge Gertner will indeed cut the award, which represented $22,500 per work in statutory damages:

Judge Nancy Gertner took the matter under advisement but was openly sympathetic to Tenenbaum, a 26-year-old doctoral student in physics, who sat with his legal team in the courtroom.

"I'm not saying it was wrong to bring the case ... or to hold people's feet to the fire" for copyright infringement, Gertner told [plaintiffs' attorney Tim] Reynolds. But she asked, "Is there another case in the galaxy that's held up damages to that degree?"

I was able to speak with a member of the plaintiffs' team, who agreed with the Globe's characterization of Judge Gertner's statements at the hearing. And my source provided me with perhaps the most shocking scoop of the proceedings: Tenenbaum's counsel Charles Nesson, who wore a Steve Jobs-esque black turtleneck every day of the trial last summer, today donned a tie.

Update: I also recommend this report from the National Law Journal.

Janice Hahn: Don't know much about copyright?

The campaign of LA City Councilwoman Janice Hahn (D), who is running for lieutenant governor, has run into some copyright trouble. Today the campaign released a video mocking San Francisco Mayor and potential LG candidate Gavin Newsom, who recently said he doesn't know what the lieutenant governor actually does:



Throughout the video, the Sam Cooke classic "Wonderful World" plays prominently. And, according to the owner of the composition, without a license from the copyright owner. The use of the song was "unauthorized," Valerie Collin, spokeswoman for publisher Abkco Music & Records, Inc., confirmed to me in an email. And, she added, the company is "dealing with [it] accordingly," without elaborating. (I believe Abkco also owns the master in the Sam Cooke recording but have not yet confirmed that.) I called and emailed the Hahn campaign for comment this morning but have not yet received a response.

So is it fair use? Under current law, I doubt it. The use is much more prominent and longer than the Ohio Republican Party's 2008 video that incorporated part of Jackson Browne's song "Running on Empty" to mock Barack Obama's energy policy. And it's much less transformative than California Senate Candidate Chuck DeVore's videos that took two Don Henley songs and swapped the lyrics with new ones mocking his opponent Barbara Boxer.

I don't expect this video to stay up on YouTube long. And Hahn's campaign could well be facing a pretty strong copyright suit. A license for the song, which has been featured prominently in movies including Animal House and Witness, can't come cheap.

Update Feb. 23: the Hahn campaign has removed its original video and replaced it with one that does not include "Wonderful World."

Leaked ACTA draft: How exactly would this change US law?

Via Canadian law professor Michael Geist comes word that a draft of the ACTA Internet chapter has now leaked. Once again, this document (which, it bears emphasizing, is only a draft) only confirms what I (and, much more importantly, USTR) have been saying for months now: Nothing in ACTA would impose a "three strikes" requirement or otherwise alter US law. Indeed, what's most striking about the leaked document (whose provenance I haven't independently verified) is how closely it resembles the DMCA -- which of course is existing US law.
Acta Digital Chapter Draft

The meat of this draft is in Paragraphs 2, 3, and 4. Paragraph 2 says that signatory nations must insure that "civil remedies, as well as limitations, exceptions, or defenses with respect to the application of such remedies, are available in its legal system in cases of third party liability for copyright and related rights infringement." Third-party liability (such as contributory and vicarious infringement, as well as inducement liability) has long been part of US intellectual property law. See, e.g., Kalem Co. v. Harper Brothers, 222 U.S. 55 (1911) and cases collected in MGM v. Grokster, 545 U.S. 913 (2005). A vague requirement that the US recognize third-party liability in copyright ("and related rights") wouldn't change existing law one iota.

Paragraph 3 provides for limitations on liability against "online service provider[s]" for infringements by their users. To benefit from such limitations, service providers (including ISPs and hosts) must "adopt[] and reasonably implement[] a policy to address the unauthorized storage or transmission of materials protected by copyright or related rights" by, for example, "providing for the termination in appropriate circumstances of subscriptions and accounts in the service provider's system or network of repeat infringers." In addition, to obtain the limitation on liability, service providers must "expeditiously remov[e] or disabl[e] access to material or activity, upon receipt of legally sufficient notice of alleged infringement, and in the absence of a legally sufficient response from the relevant subscriber of the online service provider indicating that the notice was the result of a mistake or misidentification." Sound familiar? It should; this language is taken almost verbatim from Section 512 of the DMCA, which, of course, provides safe harbors from liability for service providers that have a notice-and-takedown (and counter-notice) procedure and terminate repeat infringers.

And Paragraph 4 of the ACTA draft would require signatories to prohibit "the unauthorized circumvention of an effective technological measure that controls access to a protected work, performance, or phonogram," as well as "the manufacture, importation, or circulation of a technology, service, device, product, component, or part thereof, that is: marketed or primarily designed or produced for the purpose of circumventing an effective technological measure; or that has only a limited commercially significant purpose or use other than circumventing an effective technological measure." Again, this language should be familiar to anyone who has ever read Section 1201 of the DMCA, which similarly bans circumvention of DRM, as well as trafficking in devices that do just that.

ACTA opponent Prof. Geist allows that the draft "may not specifically require three-strikes," but says that it "clearly encourages it as the model to qualify as a safe harbour from liability." He goes on to say that "This leaks [sic] shows how deceptive the USTR has been on this issue - on the one hand seeking to assure the public that there is no three-strikes and on the other specifically citing three strikes as its proposed policy model." Huh? How is USTR deceiving anyone? Nowhere does this draft "specifically cit[e] three strikes as [USTR's] proposed policy model." Rather, it merely says that one "example" of a "policy to address the unauthorized storage or transmission of materials protected by copyright or related rights" would be "providing for the termination in appropriate circumstances of subscriptions and accounts in the service provider's system or network of repeat infringers." And again, a requirement to terminate repeat infringers in appropriate circumstances as a condition for a limitation on liability is already in US law. See 17 USC § 512(i)(1)(A). If such a provision counts as "three strikes" provision, well, then the US already has a "three strikes" law.

I realize there are people out there who don't like copyright enforcement; they don't like secondary liability, or Sections 512 and 1201 of the DMCA. So it makes sense that these people won't like an international agreement that mirrors these pre-existing laws. And they're obviously entitled to their views. But if they're going to argue that ACTA would change existing US law, they're not going to find evidence of that in this leaked draft -- or, as far as I can tell, anywhere else.

Update: Read Nate Anderson's piece in Ars Technica, which similarly concludes that the draft "simply reflects existing US law."

Tenenbaum files reply in support of motion to reduce award; claims he caused at most $21 in damages

Joel Tenenbaum today filed a reply brief in support of his motion to reduce the jury's verdict of $675,000 for downloading and distributing 30 songs over the KaZaA peer-to-peer network.
Defendant's Reply Re New Trial Motion

While this brief is better argued, better written, and better supported than any other papers I've seen from Team Tenenbaum, the very first sentence contains a blatant falsehood that no court should tolerate. The brief states that the plaintiffs' opposition to Tenenbaum's motion contains the "assertion that Joel Tenenbaum caused them 'billions of dollars' of damages in lost revenue, Pl. Opp. at 28, with respect to the thirty songs which are the subject of this action." That is an egregious mischaracterization of what the plaintiffs' brief actually says. The plaintiffs' brief does not say that Tenenbaum caused billions of dollars in damages. Rather, it refers to "the billions of dollars of lost revenues and the mass layoffs in the record industry as a result of file-sharing," clearly referring to the overall phenomenon, rather than that perpetrated by Tenenbaum himself. (My emphasis.) Indeed, plaintiffs' expert economist Stanley Liebowitz testified that it was impossible to calculate how much damage Tenenbaum himself caused.

Elsewhere in the brief, Tenenbaum maintains that the actual damages he caused are at most $21, calculated by multiplying 30 songs by the 70 cents the labels would have received from Apple for an authorized iTunes download. But Judge Michael Davis' recent order in the Jammie Thomas-Rasset case (which Tenenbaum relies on as authority for other points) explicitly rejected such a calculation as "inadequate" while reducing the jury's award in that case from $80,000 to $2,250 per work. See order at 21-22.

Tenenbaum does claim to have found a single case where a court has "reduced a statutory damage award that was within the statutory maximum." Br. at 7 (citing Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344 (7th Cir. 1995)). But the damages at issue in Hennessy were punitive damages -- not statutory damages. It is true that 42 U.S.C. § 1981a(b)(3) caps such awards, in this case at $100,000. But I don't believe that punitive damages become statutory damages just because a statute imposes a cap on those punitive damages -- and Tenenbaum's brief does not cite any cases saying that they do.

A hearing on Tenenbaum's motion is set for February 23 before Judge Nancy Gertner.

Labels withdraw sanctions motion vs. Nesson over recordings; will Gertner let him off the hook?

The record label plaintiffs have withdrawn their motion for sanctions against Harvard Law School professor Charles Nesson over his practice of making audio recordings of conversations with the opposing counsel and the court and then posting the results to the Internet. The move, just days before a scheduled February 23 hearing on the motion, came after Nesson, counsel to peer-to-peer poster-boy Joel Tenenbaum, reversed course and "confirmed that he has destroyed all copies of these recordings, including any copies that may have been held by his student lawyers, client, and other colleagues, and that he has removed links to these copies from the Internet." Nesson had previously stated that he would not do so, both in open court after the jury's verdict was announced, and again in an August 13, 2009 letter to Judge Nancy Gertner. But despite Nesson's apparent assurances to the contrary, it's clear that as of today, he has still not destroyed all copies. See here, here, here, here, here, here, and here.

While the plaintiffs' motion is now withdrawn, it is far from clear that Judge Gertner herself will view the matter as resolved. Last July 7, she issued an order to show cause in which she said she was "deeply concerned that the Defendant has violated" a court order that the parties not post recordings of depositions to the Internet. And several times, Judge Gertner has made clear her belief that Nesson's recording practices are 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, or to "disclose" such recordings. While I have not researched this point in the First Circuit, I believe that the court has the inherent authority to sanction an attorney for litigation misconduct, even in the absence of a pending motion by the opposing party. Here is the "declaration" Nesson filed in response to the OSC, in which he claimed that he had never been "surreptitious" in his recording.

Why musicians need good lawyers

To fight for top billing with the Dalai Lama. Sheryl Crow playing second fiddle to His Holiness? I heard his last album wasn't even that good...

Buy your tickets here...

(h/t D.M.)

Straight outta Berkeley: Joel Tenenbaum is no Rosa Parks!

Prof. Peter Menell of Berkeley Law School has a short but excellent article up on the web site of The Media Institute, making a point that it's bit ridiculous even needs to be made: Joel Tenenbaum is no Rosa Parks! Menell, author of one of the leading IP case books, flays Tenenbaum's defense of his decade-long peer-to-peer use, which Menell concludes "sought to disguise selfish motivation and self-righteous indignation at paying a penalty for violating copyright liability as a cynical and disingenuous social movement":

This was not a case involving political speech or transformative user-generated creativity. This was not a case of mistaken identity. Nor was it a case where the recording industry sought maximum damages; recall that the plaintiffs offered to settle up-front for $3,500 – reflective of the costs of investigation and enforcement, with some deterrent bite.

This was a case about not paying for sound recordings, not paying a justifiable penalty for not paying for sound recordings, and running up the costs of litigation though dishonesty and vexatious litigation. In the short run, this social movement promises that many music fans will have more money in their pockets and more sound recordings on their computers and portable devices; and that record labels, music publishers, recording artists, and composers will have less to show for their efforts and talents.

But in the longer run, Joel’s logic erodes the economic infrastructure of creators and the dynamic capacity of market institutions to build productive and reinforcing relationships between creators (not just composers and recording artists, but also authors and filmmakers) and fans. That is the purpose of copyright and it has provided critical support for composers and recording artists for a century; and authors for even longer.

It's kind of sad that this even needs to be said, but I'm glad Menell said it. Go read the whole thing.

(h/t Patrick Ross.)

Revealed: Details of Shepard Fairey criminal investigation

Recently unsealed legal briefs filed by Shepard Fairey reveal that the Los Angeles artist is the "subject" of a federal criminal investigation for "potential violations" of laws prohibiting evidence tampering and perjury. According to a motion filed by Fairey seeking to postpone his deposition in the civil copyright dispute with the Associated Press over the "Obama Hope" poster, a federal grand jury is investigating whether Fairey violated 18 U.S.C. §§ 1512(c) and 1621. Section 1512 makes it a crime to "corruptly...alter[], destroy[], mutilate[], or conceal[] a record, document, or other object, or attempt[] to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or...otherwise obstruct[], influence[], or impede[] any official proceeding, or attempts to do so." Violations carry a prison sentence of up to 20 years, though sentencing guidelines usually call for considerably less than the maximum. Section 1621 is the federal perjury statute, which provides for a maximum sentence of five years.
Fairey Motion to Postpone Depo

Fairey admitted last October that he had "submitted false images" to the AP during the civil discovery process "and deleted other images" in an effort to mislead the AP as to which photo he used as the basis for the iconic poster, which became ubiquitous during the 2008 campaign. It was revealed in a court hearing January 26 that Fairey faced a criminal investigation over his actions, but the specifics were not known until his briefs in support of his motion to postpone his deposition were unsealed. On January 27, Judge Alvin Hellerstein denied Fairey's motion to postpone or limit the deposition until the earlier of the conclusion of the investigation or six months.

Fairey indicated that he has been advised by his criminal counsel to invoke his Fifth Amendment right against self-incrimination during the deposition and refuse to answer questions about the submission of false evidence and destruction of relevant material. "If Mr. Fairey is compelled to testify and exercises his Fifth Amendment rights per his criminal counsel’s advice, the consequences of invoking those rights would severely impair his ability to defend this case on the merits — and this Court’s ability to resolve it on the merits," states the brief. Fairey acknowledges that if he does invoke his right to refuse to answer questions, the jury in the copyright case "will be free to draw adverse inferences against him on issues crucial in this litigation, in which he faces counterclaims for bankrupting damages." Again in his reply brief, Fairey warns that his refusal to answer questions at his depo "could lead to crippling liability against him based on adverse inferences rather than the facts."

And in a rather extraordinary passage, Fairey concedes that he likely faces sanctions in the civil case for his admitted wrongdoing and may face indictment:

Mr. Fairey has already admitted engaging in misconduct and accepts that he will face sanctions by the Court at a later stage of this case. But his error, however serious, should not force him to choose between abandoning his Fifth Amendment rights and forfeiting his right to testify in this civil action and to defend the action on the merits. Of course, the Court can impose sanctions upon Mr. Fairey if it deems them appropriate, and the U.S. Attorney can choose to file criminal charges against him.

"But," he argues, "the triple punishment of potentially crippling civil liability — based not on the merits, but on his inability to testify during this particular brief period — would be unjust."

Fairey's brief also reveals that last Nov. 9, federal prosecutors in New York served subpoenas on Fairey, his wife Amanda, and several of Fairey's businesses. The brief also accuses the AP of "play[ing] an ongoing role in encouraging charges against Mr. Fairey, through continuing communications with the U.S. Attorney’s Office that go beyond merely responding to a grand jury subpoena." (The AP's brief, whose arguments prevailed, has also been unsealed but is not available on PACER.)

Update: I now have the AP's opposition brief (whose arguments carried the day) and the supporting documents. The AP's basic argument is that Fairey's troubles are entirely of his own making, and that "[f]or Mr. Fairey now to point to the government's investigation of his own misconduct as grounds for a discovery extension...is truly the definition of chutzpah." A few interesting tidbits from the documents:

• The AP says that "Neither the AP nor its counsel played any role in initiating [the] criminal investigation.... The AP did not become aware of the investigation until after it had commenced."
• The AP itself received a document subpoena in the criminal investigation last November.
  
• The AP's brief quotes from a declaration from Fairey's counsel (which I have not seen) stating that "[a] resolution with the government is expected to take between three and six months." A "resolution" typically refers to a plea bargain. Of course, there's no certainty that the two sides will reach an agreement.
• A transcript of a Nov. 10, 2009 hearing in the case sheds light on how Judge Hellerstein plans to deal with Fairey's transgressions. It's clear that Hellerstein views Fairey's misdeeds as "serious," and that he will impose sanctions of some kind. But it seems doubtful that the sanctions will include issue, evidentiary, or terminating sanctions, which would actually affect the outcome of the case: "I want this case to be concluded on the merits and then we'll get into this," i.e., sanctions for Fairey's wrongdoing. And Hellerstein made clear that he plans to sanction Fairey even if the case settles: "[I]f the case is settled in some fashion, I don't want this issue to be settled." Of course, the AP still argues that Fairey's lies and evidence creation and attempted destruction are relevant to the fair use analysis because they demonstrate his bad faith. See Harper & Row v. Nation (fair use "presupposes good faith and fair dealing") and cases cited at p. 24 of the AP's brief.
• Judge Hellerstein is funny. Explaining his practice of issuing quick discovery rulings (rather than referring such matters to a magistrate judge): "I'd rather be prompt than correct." (Tr. at 18:21.) Who does he think he is, some blogger?
  

Fortune: 'Obama & Google (a love story)'

Imagine, for a minute, an alternate universe. This is not the real world, in which a handful of attorneys at big law firms who happened to represent major record labels in copyright litigation (among other clients) moved into jobs at the Department of Justice, where there is no evidence they have any responsibility for copyright matters -- a situation which still sent copyright critics into inaccurate and hysterical conniptions.

No, imagine a different, fantasy world. In this world, one record label dominates the market. And President Obama visits the headquarters of that label during his campaign, heaping lavish praise on the company and their "shared...belief in changing the world from the bottom up, not from the top down." That label's "managers and employees were some of the strongest supporters of candidate Obama, donating around $803,000 to his presidential campaign." The label's CEO "actively stumped for the candidate and served as an informal economic adviser during the campaign, and after Obama was elected," the CEO and other label "executives forked over $25,000 apiece to help pay for the inaugural celebration."

And then, once Obama assumed office, "[b]ecause the company and administration are so like-minded, it should come as no surprise that [label] executives soon found themselves assuming roles in the Obama administration." The CEO "sits on Obama's Council of Science and Technology Advisers." And label "employees acted as advisers to the Obama transition team -- in one case" a label exec "actually led a meeting, to the surprise of at least one attendee -- and a handful of ex-[label employees] have joined the administration in various roles." Among those ex-employees is the label's former head of global public policy, now the Administration's deputy chief technology officer. "[I]n his previous role [the deputy CTO] championed [the label's] policy goals. Now he'll be in a position to shape policy that affects [the label's] rivals."

Imagine the outrage from the usual suspects if this scenario were reality. Well, it is reality -- only it's not a dominant record label with whom "Obama appears to have found a corporate kindred spirit." Rather, as laid out in this article in Fortune, it's Google -- whose position on copyright and related issues often stands in stark contrast to those of copyright owners. As Bob Dole might ask, "Where's the outrage?"

Another Obama right-of-publicity violation; NY Times gets results!

Looks like President Obama doesn't need the White House Counsel's Office to take action against commercial enterprises that use his likeness to sell products. He's got the NY Times!

According to the Times, an online education site called Classesandcareers.com, to "reinforce the idea that a federal windfall might be a click away, ...featured three people in mortarboards flanked by a photograph of President Obama" in online ads.

But when a Times reporter called to ask whether the site had Obama's permission, the site quickly folded:

"We had initially believed we were authorized to use that picture," Andrew Jensen, the marketing director of One on One [the site's parent company], said in an e-mail message. "After researching it further, we have found we were not, and are in the process of taking it off the landing page you saw. This is something that slipped through the cracks."

If only all IP enforcement were this easy...

Who killed Veoh?

UMG fingered as suspect: "Veoh Closing Down, UMG Lawsuit Blamed"

Or maybe not: "Universal Music Group Didn’t Help Veoh, But it Didn’t Kill It"

While Io Group is sipping margaritas on a Mexican beach, watching all the fun...

USTR: No mandatory 'three strikes' or filtering in ACTA

Via Public Knowledge comes further confirmation of what I've been saying for months: the hysterical claims by opponents of the Anti-Counterfeiting Trade Agreement ("ACTA") that the still-under-negotiation pact would impose a mandatory, French-style "three strikes" policy on ISPs are simply false. Public Knowledge's Sherwin Siy asked Stanford McCoy, Assistant U.S. Trade Representative for Intellectual Property and Innovation, "whether or not ACTA would require mandatory filtering or cutting off Internet connections." Siy quotes McCoy's clear and unambiguous response:

Mandatory filtering by ISPs would go beyond existing U.S. law, as would a mandatory "three strikes" approach to termination of repeat infringers. The U.S. Government is not seeking these or any other obligations that would go beyond U.S. law in the ACTA.

Siy laments "that the lack of transparency in the ACTA process is allowing rumor and speculation to rule the debate, rather than an intelligently informed discussion of the issues." I have much sympathy for that view, and would only hope that ACTA's opponents would absorb the facts he has presented, rather than engaging in the wild and inaccurate speculation that has so far dominated the debate. It would have been helpful for USTR to have put out such a clear statement months ago, but I guess better late than never.

My Slate piece: 'Born To Sue: Bruce Springsteen's lame effort to back out of a copyright lawsuit'

You may have read about Bruce Springsteen's lawsuit against a bar in New York that allegedly refused to pay its ASCAP fees -- and his subsequent running for the hills. Slate just posted this piece I wrote, which urges The Boss to stay and fight:

It was a classic piece of music industry journalism: Rapacious Big Music beats up on hapless Little Guy, with The Artist, who just wants to make ars gratia artis, caught in the middle.

This time, Big Music was ASCAP, the American Society of Composers, Authors, and Publishers, which collects licensing royalties for songwriters, composers, and music publishers. The Little Guy was a humble Irish bar called Connolly's Pub & Restaurant. And The Artist was none other than New Jersey's own "rock & roll working-class hero," Bruce Springsteen.

As first reported by the New York Daily News, The Boss sued Connolly's last week for copyright infringement after the bar allegedly failed to obtain a license from ASCAP to publicly perform his songs, including "Growin' Up" and "Because the Night." But shortly after the story about the lawsuit broke, Springsteen's flacks claimed it was all a big misunderstanding, blamed ASCAP, and said he was ditching the suit.

"ASCAP was solely responsible for naming Bruce Springsteen as a plaintiff in the lawsuit," said a Feb. 4 statement from his PR reps at Shore Fire Media. "Bruce Springsteen had no knowledge of this lawsuit, was not asked if he would participate as a named plaintiff, and would not have agreed to do so if he had been asked. Upon learning of this lawsuit this morning, Bruce Springsteen's representatives demanded the immediate removal of his name from the lawsuit."

Sorry, Boss, but if you say you really believe all that, then it won't be you that's on fire—it will be your pants. And since small-time songwriters rely on big-timers like you to enforce these copyright protections, you shouldn't try to back out of this lawsuit anyway. (As of this writing, Springsteen still hadn't withdrawn.)

Please go read the whole thing.

Update: Bruce really did bail. Plaintiffs filed a First Amended Complaint Feb. 5, which was just made available on PACER today. The complaint is now completely Springsteen-rein. Isn't that unusual? My recollection is that the caption (which originally included Springsteen) stays the same even after amendment, unless a change is ordered by the court. Am I wrong?

And another civ. pro. conundrum: the sole remaining plaintiff is now Clinton C. Ballard, Jr. D/B/A Beardog Pub. Co. But Ballard apparently died in 2008. Can he still be a plaintiff?Ballard v. 121 W. 45th St. Restaurant

Labels oppose reduction in Tenenbaum award; defendant 'is the poster child for willful copyright infringement'

Joel Tenebaum is a "long-term, hardcore, and willful copyright infringer whose misconduct caused Plaintiffs to suffer incalculable harm," the record labels argued today in their brief opposing his motion to reduce the jury's award of $675,000 for downloading and "sharing" 30 songs over the KaZaA peer-to-peer network. The labels' brief shows no mercy toward the Boston University physics grad student, repeating that "Time after time, Tenenbaum falsely denied responsibility for the infringement, blamed his friends and family for his own illicit activities, and lied under oath":

Tenenbaum complains that “Plaintiffs did their best throughout the trial to make him appear to the jury to be a liar, a perjurer, and a person dodging responsibility for his actions and blaming others under oath for his conduct.” (Motion at 8.) Of course, Tenenbaum ignores the fact that he is all of those things — and he has no one to blame but himself. Tenenbaum has shown nothing but disdain for the copyright laws, the rules of this Court, and Plaintiffs. Tenenbaum is the poster child for willful copyright infringement, and now he asks the Court to autograph that poster. The Court should do no such thing.

Plaintiffs' Opposition to Tenenbaum's Motion for New Trial or Remittitur

The labels spend considerable effort fighting on fair use, an issue that the court has already decided in their favor, but whose ruling contains dicta that could be very dangerous down the road: the court's musing that it might be fair use for a defendant to download and share files during the "interregnum" between which file-"sharing" became technically possible and the time at which copyright owners made their works available in the format preferred by infringers like Tenenbaum. "[T]his fair use interregnum...is obviously antithetical to fundamental tenets of copyright law," the plaintiffs contend.

On Tenenbaum's argument that the jury's award of $22,500 per song violated the constitution, they plow over now-familiar ground, pointing out that "Plaintiffs have not located a single case, in the nine decades since Williams was decided, in which a court relied on Williams to reduce or eliminate an award of statutory damages because of a due process violation.... Nor has Tenenbaum cited to one."

And, in the wake of the court in the Jammie Thomas-Rasset case reducing the award there on common-law remittitur grounds, the labels argue strenuously that the court does not have the authority to reduce a jury's award that falls within the range set by Congress: "a district judge that superimposes his or her own subjective view of the 'right' amount of statutory damages usurps the role of the jury in direct violation of the Seventh Amendment and the Supreme Court’s decision in Feltner, and also improperly invades Congress’ authority in setting copyright policy."

A hearing on Tenenbaum's motion is now set for Feb. 23.

New copyright blog: 'Shades of Gray'

Just a quick plug for Shades of Gray, an excellent new copyright blog from Naomi Jane Gray, a partner at Harvey Siskind LLP in San Francisco. So far, Naomi has posts on the Copyright Office's new deposit exemption for online works, the decision in the IsoHunt case, and Judge Gertner's order rejecting fair use in the Joel Tenenbaum case. I look forward to reading more.

Labels reject remittitur, opt for third trial on damages in Jammie Thomas-Rasset case

The record label plaintiffs have opted for a third trial against Jammie Thomas-Rasset rather than accept the court's decision to reduce the jury's award from $1.92 million to $54,000. In a six-page notice filed late today, the labels said they "find it impossible to accept a remittitur that could be read to set a new standard for statutory damages – essentially capping those damages at three times the minimum statutory amount of $750 (or $2,250) for any 'noncommercial individuals who illegally download and upload music.' (Id. at 2, 25.) This far-reaching determination is contrary to the law and creates a statutory scheme that Congress did not intend or enact."
Plaintiffs' Notice of Decision re remittitur in Capitol v. Thomas-Rasset

Given the labels' decision -- presented to them in the court's January 22 order cutting the Minneapolis jury's award by 97 percent, from $80,000 to $2,250 per song -- there will be a third trial, though this one will concern only damages. The jury in the first trial in 2007 awarded $9,250, totaling $222,000 for 24 songs, but that verdict was thrown out after Judge Michael Davis determined that one of his jury instructions was improper.

It remains unclear exactly what a third trial will look like. As I've noted:

[T]he court, in its Jan. 22 order, has already determined that $2,250 per work "constitutes the maximum amount a jury could reasonably award to both compensate Plaintiffs and address the deterrence aspect of the Copyright Act." Order at 25-26. So what happens if there's a new trial and the jury again comes back with an award greater than $2,250 per song?... Can this go on ad infinitum?

Also unclear is how the court will instruct the jury. Will he tell them that $2,250 per work is the maximum, or will they once again be permitted to return with a verdict of up to $150,000 for each infringed song? If, as seems likely, the jury once again returns with a verdict of over $2,250 -- which the court would presumably remit again -- it appears only the Eighth Circuit can save us all from a real-life Groundhog Day.

Update: here's the RIAA's statement about the current state of affairs:

We have done everything within our power to resolve this case on fair terms. The defendant is someone who knowingly distributed hundreds upon hundreds of unauthorized songs without any regard for those who created them, likely bent on the brazen assumption that she’d never get caught. During both trials she lied about her actions while under oath. Ironically, Ms. Thomas-Rasset claimed during the trials what an ordeal this has been. Meanwhile, every move she and her counsel have made has been with the intent to prolong this case while refusing every reasonable settlement offer. Unfortunately, despite two jury decisions against her and a federal court’s affirmation of her liability and irresponsible behavior, Ms. Thomas-Rasset even refused a settlement offer that was less than half of the judge's remitted amount and that would have been donated to a charity for struggling musicians. In fact, Ms. Thomas-Rasset has asserted that she never intends to pay a penny to settle the case. With the benefit of free counsel, she now seeks to gut the laws that she has repeatedly and blatantly violated.

American taxpayers should not have to bankroll a publicity campaign that the defendant and her counsel apparently seek. But if another trial is what is needed to close the book on this case once and for all, then we are left with no choice but to reject the Court's remittitur and proceed to a new trial on damages.

What's the point of copyright?

The debate over copyright's ultimate purpose -- "to protect the intellectual property created by artists" vs. "to benefit consumers, not producers" -- leaked into the mainstream political blogosphere this week, as Andrew Sullivan highlighted an exchange between Sonny Bunch and Matt Yglesias:

Sonny Bunch whacks Yglesias:

The purpose of intellectual property law has very little to do with Matt Yglesias being able to enjoy a wide variety of new music. The purpose of intellectual property law is to protect the intellectual property created by artists so they are rewarded for their efforts. The purpose of intellectual property law is to punish people who steal that which isn’t theirs.

Yglesias responds:

The point of intellectual property law is to benefit consumers, not producers. I don’t really want to turn this into an ideological food fight, so I’m eager to note that libertarians like Julian Sanchez and Tim Lee have the right take on this. I note that this issue is specifically addressed in the Constitution, which says that patents and copyrights should be granted “for limited times”—i.e., not as a transcendent moral right—in order “to promote the progress of science and the useful arts,” again, not as a matter of transcendent moral right.

Who's right? I'm not trying to duck by saying both are, and that these two passages are not necessarily in conflict. What I mean is that the purpose of copyright is (as Yglesias says) to encourage creation of works -- by (as Bunch says) "protect[ing] the intellectual property created by artists so they are rewarded for their efforts." But what's important isn't what I think; what really matters is what Justice Ginsburg, joined by six other members of the Supreme Court, said in footnote 18 of Eldred v. Ashcroft, 537 U.S. 186 (2003) about this very subject:

Justice Stevens’ characterization of reward to the author as “a secondary consideration” of copyright law, post, at 6, n. 4 (internal quotation marks omitted), understates the relationship between such rewards and the “Progress of Science.” As we have explained, “[t]he economic philosophy behind the [Copyright] [C]lause … is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.” Mazer v. Stein, 347 U.S. 201, 219 (1954). Accordingly, “copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge…. The profit motive is the engine that ensures the progress of science.” American Geophysical Union v. Texaco Inc., 802 F. Supp. 1, 27 (SDNY 1992), aff’d, 60 F.3d 913 (CA2 1994). Rewarding authors for their creative labor and “promot[ing] … Progress” are thus complementary; as James Madison observed, in copyright “[t]he public good fully coincides … with the claims of individuals.” The Federalist No. 43, p. 272 (C. Rossiter ed. 1961). Justice Breyer’s assertion that “copyright statutes must serve public, not private, ends” post, at 6, similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.

Miami official threatens blogger over comment; what about Section 230?

It's amazing to me that some lawyers -- and elected officials who happen to be lawyers -- making legal threats against bloggers seem to be completely unfamiliar with Section 230 of the Communications Decency Act, a statute that represents a major shift from traditional libel law.

Today's example comes from a Miami blog called Coconut Grove Grapevine. On Jan. 28, the Grapevine published a post about a Miami City Commission hearing on bar closing times. Someone subsequently submitted a comment, purportedly from Commission Chairman Marc Sarnoff, expressing "support" for "drinking and driving after 3am even if it claims the lives of others," and signed "XOXO Marc Sarnoff." Unsurprisngly, the comment wasn't actually from Sarnoff, and his attorney fired off a letter to Tom Falco, Grapevine's editor, demanding removal of the comment.

I don't fault Sarnoff for being annoyed at the comment. (Though I do question whether it was truly defamatory; would a reasonable person really believe that Sarnoff expressed "support" for drunk driving in a blog's comment section?) But I do fault his attorney (and Sarnoff, who is also a lawyer), for the letter, which makes completely unfounded legal threats and ignores the relevant law.
Sarnoff Letter
The letter states:

Please be advised that you have a duty as the owner, editor, and publisher of the website, to police what is being posted on your website. See § 836.03, Fla. Stat.; see also Becker v. Hooshmand, 841 So. 2d 561 (Fla. 4th DCA 2003). As such, since the post is the direct and proximate cause of injury to Commissioner Sarnoff, it is actionable against you and your web site.

That's just flat wrong. Under Section 230, an "owner, editor, and publisher" of a web site emphatically does not "have a duty...to police what is being posted on [his] website" by third parties. As Section 230(c)(1) says, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." If defamatory material is posted to a site by a third party, that third party may well be liable, but Section 230 provides virtually airtight immunity for the site itself. And the letter's citations to state law are beside the point; Section 230 preempts state law. See id. § 230(e)(3) ("No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section."). (The Becker case is inapposite; it merely held that a Florida court had personal jurisdiction over a Pennsylvania defendant who allegedly defamed a Florida resident. It did not even discuss Section 230.) Simply put, unless Falco himself wrote the offending comment (and there is no indication that he did), then he is not legally responsible for that fact that it appears on his blog.

Next come the threats:

On behalf of Commissioner Sarnoff, I demand that you remove and formally retract the defamatory and libelous statements immediately. If you fail to remove and retract said statements, Commissioner Sarnoff will be left with no alternative other than to pursue all possible legal recourse against you and your website. This includes, but is not limited to, financial compensation for damages you have caused to Commissioner Sarnoff's reputation via the defamatory statements. In addition, Commissioner Sarnoff will seek attorneys' fees and costs for pursuing said action.

These threats are empty. Under Section 230 there is no "possible legal recourse against [Falco] and [his] website." He is simply not liable for defamatory statements "provided by another information content provider," even after notification of the statements' allegedly defamatory nature. See, e.g., Zeran v. America Online, Inc., 129 F.3d 327, 328 (4th Cir. 1997).

But Falco says that he "do[es] moderate comments and do[es] not allow any malicious ones to pass," though "this one got by." Does his screening of comments remove his Section 230 immunity? No. As the Citizen Media Law Project's Section 230 page says, "Screening objectionable content prior to publication [] is the quintessential activity that Section 230 was meant to immunize, and courts have consistently held that screening content prior to publication does not make an interactive computer service liable for defamatory material it does publish on its site."

Lastly, though Falco appears to have been fully protected by Section 230, and could have left up the comment without risking liability, I think he did the right thing by removing it. Just because web site operators don't incur liability by leaving up defamatory material posted by others doesn't mean they should. The best way for Section 230 to retain its vitality is for operators of web sites to act responsibly, as Falco appears to have done here.

Wherein I respond (calmly!) to Copycense's charge of 'impetuous[ness]'

Copycense has posted a response to my post about Ed Felten and Sauhard Sahi's post about their "census" of infringing files available on BitTorrent. The main thrust of Copycense's post is that, before drawing any definitive conclusions, we should inquire further into Felten and Sahi's methodology and underlying data. I completely agree, and look forward to reading the final paper once it is published.

But Copycense's response to my own post is really off-base. First, Copycense calls my post "reflexive and impetuous." I don't know about "reflexive"; I saw Felten's post, thought it interesting and newsworthy (as did many others), and did a very short post summarizing his findings and alluding to its relevance to public policy debates. But "impetuous"? "[M]arked by impulsive vehemence or passion"? Read my post; sorry to disappoint those who prefer their meat raw, but you'll search in vain for anything remotely "impulsive," "vehemen[t]", or "passion[ate]."

Copycense then writes:

In this quote and subsequent responses to reader comments, Sheffner suggested that Internet service providers have a duty [sic] restrict infringing traffic on their network, and that this duty should manifest itself in a three-strikes/graduated response policy that has been adopted nationwide in France and is beginning to be adopted in other European Union countries.

I'll address the latter part of the sentence first. Copycense's allegation that I have advocated "a three-strikes/graduated response policy that has been adopted nationwide in France and is beginning to be adopted in other European Union countries" is simply false. I have said repeatedly that I am skeptical of a government-run program like Hadopi. If graduated response/three strikes for ISPs is to come to pass in the US, it will most likely be through voluntary agreements between ISPs and copyright owners (which I do support if appropriate safeguards are in place). As for my "suggest[ion] that Internet service providers have a duty [sic] restrict infringing traffic on their network," Copycense does not deign to state what, if anything, it finds incorrect in what I actually wrote. The "response[] to reader comments" I believe it's referring to merely quoted the DMCA verbatim. That statute unquestionably states that, in order for an ISP to benefit from the Section 512(a) safe harbor for "Transitory Digital Network Communications," it must "adopt[] and reasonably implement[], and inform[] subscribers and account holders ... of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers." 17 U.S.C. § 512(i). There's room for debate about what those words mean, but, given the language of the DMCA, does Copycense (or anyone else) dispute that existing US law imposes some enforcement obligations on ISPs?

Lastly, I want to address Copycense's suggestion that there is something wrong with my statement that the Felten/Sahi conclusions about the level of infringement on BitTorrent is "[v]aluable information to keep in mind while debating net neutrality rules and ISPs’ right to manage their networks and fight piracy." I stand by that statement, which shouldn't be remotely controversial. Of course in evaluating any sort of copyright enforcement regime against an intermediary like an ISP or peer-to-peer network, the percentage of infringing works on that system is highly relevant. An overwhelming use for infringement will justify a harsher enforcement regime. But when use for infringement is lower, enforcement must be calibrated so as to avoid targeting innocent activity. Courts routinely cite the percentage of infringing works on a system in deciding whether to impose liability. See, e.g., Grokster ("nearly 90% of the files available for download on the FastTrack system were copyrighted works"); Napster ("as much as eighty-seven percent of the files available on Napster may be copyrighted and more than seventy percent may be owned or administered by plaintiffs."); IsoHunt ("According to Plaintiffs’ expert Richard Waterman, approximately 95% of downloads occurring through Defendants’ sites are downloads of copyright-infringing content"); Usenet.com ("Plaintiffs’ expert has testified that, based on a statistical analysis, over 94% of all content files offered in music-related binary newsgroups previously carried by Defendant UCI were found to be infringing or highly likely to be infringing."). And those numbers all come from copyright owners' paid experts; it's particularly noteworthy that even higher numbers come from Felten, a noted critic of the entertainment industry's enforcement tactics. (The law of course recognizes that "statements against interest" have inherent credibility. See Fed. R. Evid. 804(b)(3).)

By all means, let's have a look at the methodology and data underlying the Felten/Sahi "census." But pending that, surely there's nothing wrong with noting the findings and commenting on their relevance to the debate about the proper way to combat piracy.

Update: Please read Tom Sydnor's take on this kerfuffle. If only I had thought up the phrase "ineptly affected data-prudery" myself...