Ninth Circuit nominee Goodwin Liu's secret copyright-litigating past relvealed

There's been a lot written, pro and con, about the nomination of Berkeley Law School professor Goodwin Liu to the Ninth Circuit. But I've seen nothing about Liu's work on the truly important issue of our times, on which he was aligned unambiguously with the forces of truth and light:
Time Warner v. ReplayTV Complaint

For the record, I worked on the ReplayTV case while an associate at O'Melveny & Myers, but never actually met Liu, who was 3,000 miles away in the Washington office. Interestingly, Ron Klain, also listed on the caption of the ReplayTV complaint, is now Vice President Biden's chief of staff.

Google/YouTube: We're not 'targeting a journalist'

Business Insider picked up my post about Google and YouTube lawyer Andrew Schapiro's statement last week at a hearing in the Viacom/Premier League copyright suit that he "would certainly be interested...about hearing from" CNET News reporter Greg Sandoval in the event the court holds a trial over the issue of who leaked the reporter information, including deposition testimony from Google CEO Eric Schmidt, in the fall of 2009. Business Insider's post originally ran under the headline, "Google Threatens to Subpoena CNET Journalist To Find Out Who Ratted On Eric Schmidt," and it still features a picture of a Chinese anti-government activist throwing a rock at a line of riot police, with the caption, "Google's attorneys are coming..." In response, Google issued a statement to the site:

This headline is completely inappropriate, and the image caption is in shockingly poor taste. The judge ordered that this investigation take place, so this is in no way Google targeting a journalist. Keep in mind that all the documents in the case were under seal, and it was illegal to leak them. Comparing this to China is beyond absurd, and the story needs to be changed immediately, esp since our attorney never mentioned anything about a subpoena.

Putting aside the propriety of the China photo and caption, Google's complaints are far off the mark. To say that "[t]he judge ordered that this investigation take place, so this is in no way Google targeting a journalist," ignores the fact that: 1) the jury trial that may take place would be a trial on Google's motion for terminating sanctions against suspected leaker Robert Tur; and 2) it was Google's lawyer who told the judge, "I would certainly be interested, although we get into other complications, about hearing from Mr. Sandoval if there were going to be a trial." Google has every right to pursue sanctions against Tur if it believes he violated the protective order. But once it does so, its flack can't then blame it all on the judge. Moreoever, the judge did not force Schapiro to express "interest[]" in "hearing from Mr. Sandoval" at the trial. When the judge raised the issue of asking Sandoval who was his source, Schapiro could have said, "Your Honor, we're Google. We're strong supporters of the First Amendment. We respect the right of journalists to report the news. We don't drag them into court proceedings, and we certainly don't ask them to reveal their confidential sources." Instead, he expressed "interest[]" in "hearing from" Sandoval -- clearly an indication that he may seek his testimony.

To the extent that Google is objecting to Business Insider's (and impliedly, my) use of the word "subpoena," its complaint is silly. True, Schapiro did not use the word "subpoena." But he didn't need to; I'm sure everyone in the courtroom knew he was referring to the possibility of subpoenaing Sandoval. Schapiro stated in open court that he "would certainly be interested...about hearing from Mr. Sandoval if there were going to be a trial." How else but through a subpoena would he "hear[] from" a reporter? At a trial, the way to summon non-parties (including journalists) to the witness stand is via subpoena. The notion that a reporter would voluntarily waltz up to the witness stand and reveal his sources without need for a subpoena -- which I'm sure would be vigorously contested by CNET and its parent CBS, and probably a bevy of press amici -- is fantasy. Moreover, Schapiro's acknowledgment that seeking to "hear" from Sandoval at trial would result in "other complications" is a recognition of the fight that would ensue if Google actually did follow through and seek to force Sandoval to testify.

Lastly, perhaps what's most telling about Google's statement to Business Insider is what's missing: A denial that it will seek Sandoval's testimony. Google could quickly clear this all up by definitively stating that it will not call him, and will not ask him to reveal his sources -- through a subpoena or otherwise. Should Google say that, I will be glad to print it. Until then, the most definitive statement we have is from its lawyer, who told a federal judge that he would "certainly be interested ... about hearing from Mr. Sandoval if there were going to be a trial." Sounds a lot like "targeting a journalist" to me.

Motorcycle maker's libel suit vs. Jalopnik and Gawker Media survives motion to dismiss

A federal court in Alabama has refused to dismiss a motorcycle maker's libel suit against Jalopnik.com, the auto blog owned by Gawker Media. The suit, filed by Birmingham-based Confederate Motors, Inc. ("CMI") against Jalopnik and Gawker Media, also names as defendants Wes Siler, the author of the allegedly libelous post, and Grant Ray, a former employee of CMI whom the complaint says is employed by one of the defendants. (Defendants say "Ray is not, and has never been, employed or affiliated in any way with Gawker." Motion to Dismiss at 2 n.3. Ray has not been served.)

The offending April 9, 2009 post on Jalopnik describes CMI's high-end motorcycles -- Tom Cruise and Brad Pitt are apparently fans -- as "so unreliable that you'll probably have to push them." But CMI's complaint actually focuses not on that statement, but on Jalopnik's claim that "last we heard the Alabama-based company was being sued so heavily in state courts by disgruntled owners that they were unable to do business here," i.e., in New York. CMI's complaint charges that Jalopnik's post carries the "misleading implication is that CMI has been repeatedly sued in many state courts by disgruntled owners," and includes causes of action for libel per se, tortious interference with business relations, gross negligence, and libel per quod. (Oversimplifying a bit, libel per se refers to a statement that is defamatory on its face; libel per quod covers statements that are defamatory only in context, and requires proof of actual monetary damages.)

On March 24, Magistrate Judge John Ott granted the defendants' motion to dismiss the libel per se and gross negligence claims, but denied it as to libel per quod and tortious interference with business relations. The court agreed that the language about the alleged unreliability of CMI's motorcycles was opinion, incapable of defamatory meaning. Order at 12 & n. 5. But it concluded that the post's statement about the lawsuits allegedly filed in state courts against CMI "is more akin to a statement of fact than an opinion" and thus "is reasonably capable of a defamatory meaning sufficient to survive the motion to dismiss." Id. at 12. Here's CMI's opposition, and the defendants' reply.

CMI remains far from victory; its libel and tortious interference claims seem rather thin to me (its argument is based at least in part on the distinction between "Confederate Motors, Inc." and its predecessor "Confederate Motor Company, Inc."), and it will still have to survive a summary judgment motion and a trial. But ask yourself: If you were a New York-based auto blog and snark-based media company, would you really want to face a jury in defendant's hometown, where the company's arrival was celebrated by the motorcycle-riding governor? And I don't expect CMI to give up easily; its founder and CEO Matt Chambers happens to be a former plaintiffs' attorney.

Cabell v. Zimmerman: The case of the phantom Section 512(f) claim

I hadn't intended to blog about this decision because it's so bizarre. But it's gotten some mainstream attention, and I wanted to point out what makes it so bizarre, and to correct the record.

Plaintiff Robert Cabell allegedly owns the copyright in a video called "Pretty Faces." Defendant is the former president of Actors Equity Association, the labor union for stage actors. AEA apparently enforces copyrights on behalf of its members, and in that capacity sent a DMCA takedown notice to YouTube regarding Cabell's "Pretty Faces" video. But it turns out AEA made a mistake; it admitted this and apologized in an email to Cabell. Cabell, upset about the improper takedown, sued, first in state court (unsuccessfully) and then in federal court.

On March 12, SDNY Judge Colleen McMahon granted Defendant's motion to dismiss. The decision features two holdings: 1) it is not copyright infringement to interfere with a third party's exploitation of the plaintiff's work; and 2) a claim under DMCA Section 512(f) over an improper takedown notice requires "actual knowledge" of the notice's lack of merit; mere negligence is insufficient to sustain a cause of action. Both of those holdings are well supported by the statute and case law.

But here's the bizarre part: I'm 99% sure that Cabell's complaint did not even include a Section 512(f) claim. I say only "99% sure" because I have not seen the complaint itself; for some reason it's not on PACER. But I went and read the motion to dismiss, opposition, and reply, all of which include extensive discussion of Cabell's apparently six causes of action. Those include copyright infringement, and a variety of New York state-law torts, including libel, "lost business opportunity," "unlawful seizure of property," and intentional interference with contract. But nowhere in any of the three briefs is there any mention of 17 U.S.C. § 512(f), and in fact Judge McMahon's listing of the causes of action on page 3 of her order does not mention that section.

What Judge McMahon appears to have done in her order is say, in essence: "The gravamen of Cabell's complaint is that AEA sent an improper takedown notice. The statute that addresses such a cause of action is Section 512(f) of the DMCA. But, even assuming that Cabell had brought a claim under Section 512(f), he would still lose because he alleged only negligence on AEA's part, not intentional misrepresentation."

Lastly, a brief note about improper takedown notices. Given the fallibility of human beings, and the vast amounts of infringement on the web, they are bound to occur. Nobody is perfect. (Though AEA's claim of one known mistake among "100,000's" of takedowns, if true, ain't shabby.) But there are quick, constructive ways to deal with the problem, and slow, ineffective, and expensive ways. Cabell chose the latter. As the email from AEA cited at page 8 of the order demonstrates, the organization quickly admitted its mistake and apologized. (Though it's unclear whether it actually retracted its takedown notice, which it could have and should have done.) In a rational, reasonable world, that would have been the end of the matter. Instead, Cabell brought not one, but two separate lawsuits, under deeply flawed legal theories. Wouldn't it have made sense just to accept AEA's apology and move on?

Google may subpoena CNET reporter in copyright case leak probe; hearing reveals massive hunt for source of Schmidt depo

An attorney for Google and YouTube indicated today that the Web giants may call a prominent tech reporter to the witness stand in an effort to reveal who leaked the journalist confidential documents from the ongoing Viacom and Premier League copyright cases.

Speaking today at a hearing before federal judge Louis Stanton in Manhattan, Google/YouTube lead trial counsel Andrew Schapiro of Mayer Brown LLP said he "would certainly be interested...about hearing from" CNET News reporter Greg Sandoval in the event the court holds a trial over the issue of who leaked the reporter information, including deposition testimony from Google CEO Eric Schmidt, in the fall of 2009.

Today's hearing focused on allegations that the leaker was Robert Tur, a Los Angeles television journalist who is one of the named plaintiffs in the Premier League putative class action. Schapiro, citing "overwhelming" circumstantial evidence collected during the course of discovery, charged that Tur violated the court's protective order governing confidential information, and said that his clients are seeking to have Tur's copyright claims dismissed as a sanction. Tur's attorney Seymour Fagan adamantly denied that his client leaked: "[T]here should be no sanctions against Mr. Tur for any acts on his part because he did not participate in the leak to Mr. Sandoval."

In order to determine whether Tur leaked to Sandoval, Judge Stanton indicated that he may take the extraordinary step of holding a separate jury trial on just that issue:

The jury would determine the matters of fact, I would rule on the remedy, and if it reaches that point, there will be a short jury trial, like a separate trial on the issue of statute of limitations. The main question being, was there a breach of my order by Tur or [Tur's ex-wife].

Today's hearing revealed for the first time that an extensive investigation of who leaked to Sandoval has been occurring out of public view over the past several months. Schapiro said that "we" -- it wasn't clear whether he was referring to his law firm or to his client -- "gathered over 70 affidavits and declarations," apparently in an effort to prove that the leak did not come from Google/YouTube or its lawyers. Schapiro even told the court that "all phone records and e-mails have been searched" at Mayer Brown, but "nothing was found."

Judge Stanton asked Schapiro whether anyone had asked Sandoval directly who had leaked to him; Schapiro indicated that Sandoval had declined to reveal his source's identity during a conversation with a Google PR representative. It was then that Schapiro indicated his interest in putting Sandoval on the stand:

I would certainly be interested, although we get into other complications, about hearing from Mr. Sandoval if there were going to be a trial.

The "other complications" Schapiro was referring to is the likely ferocious fight CNET and its parent CBS would wage to keep its reporter from having to reveal his source, or sources. (In one of the articles at issue, Sandoval cited "three sources with knowledge of the case.") The Second Circuit does recognize a qualified reporter's privilege in civil cases, requiring disclosure of a confidential source "only upon a clear and specific showing that the information is: highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources." In re Petroleum Products Antitrust Litig., 680 F.2d 5, 7-8 (2d Cir. 1982).

At the close of today's hearing, Judge Stanton gave permission for Google/YouTube to file its motion for terminating sanctions against Tur, and again indicated that he believes "a short, simple jury [] trial ...which will determine the rights and wrongs of the situation" is "the proper way to dispose of this." And he added, "[T]his is an important question, not a trivial one. It has got to be dealt with seriously and proper." Stanton also ordered the unsealing of several documents in the case related to the Tur matter, though they have not yet been posted to PACER. Those documents will likely reveal additional detail about the extent of Google's hunt for the source of the leaks.

It is unclear what effect, if any, Tur's potential dismissal from the case would have (other than the obvious effect on Tur himself). Viacom would remain as a plaintiff, as would the Premier soccer league, numerous music publishers, and a putative class that includes virtually every copyright owner whose works have allegedly been infringed via YouTube since April 15, 2005.

Court orders Tenenbaum and Nesson to pay $2,249 over discovery fight

Judge Nancy Gertner has accepted the plaintiffs' calculation of their expenses incurred in litigating a motion to compel Joel Tenenbaum to produce evidence regarding his defense team's posting of seven of the songs at issue in his copyright case to a publicly available web site -- expenses that she already ruled Tenenbaum and his counsel Charles Nesson must pay. Judge Gertner ordered Tenenbaum and Nesson to pay exactly what the plaintiffs demanded: $2,249, representing 8.6 hours of work by two associates and a paralegal. Pursuant to the court's order, Tenenbaum and Nesson (who is representing his client pro bono) are jointly and severally liable for the whole amount. Here's the text of the order:

Judge Nancy Gertner: ORDER entered. The Court hereby ORDERS the defendant, Joel Tenenbaum, and his attorney, Charles Nesson, to pay plaintiffs Two Thousand Two Hundred Forty-Nine And 00/100 Dollars ($2,249.00) as reasonable expenses incurred in making the plaintiffs motion to compel. Both the defendant and his attorney shall be jointly and severally liable for making this payment to the plaintiffs.(GAM)

Leak investigation in Viacom v. YouTube case?

So says CNET:

Parties in the Viacom-Google copyright court case plan to meet Friday to discuss an investigation into leaked materials at the heart of two CNET stories from last fall, according to multiple sources.

Judge Louis Stanton is expected to discuss the progress of an investigation into who leaked court documents related to the depositions of Google CEO Eric Schmidt and YouTube managers, revealing that Google knew it was overpaying for the video upload site in 2005 and that YouTube managers were likewise aware that copyright material was being uploaded to the site, according to the sources. It's not clear whether a person or persons involved in the leak will be identified, but the parties--including representatives for a class of plaintiffs suing Google--will meet in the U.S District Court for the Southern District of New York to discuss the matter.

CNET's story suggests that the investigation may relate to articles it published last October (see here and here), which cited deposition testimony and documents that were apparently covered by a protective order. And keep in mind that Viacom and YouTube are not the only parties to this matter, which also includes the plaintiffs in the Premier League putative class action.

(Updated to reflect that the matter also includes the Premier League case.)

Entertainment unions, trade associations thank Obama for support of copyright enforcement, ACTA

A group of entertainment industry unions and trade associations ranging from the American Federation of Musicians and the American Federation of Television and Radio Artists to the MPAA and RIAA sent a letter Monday to President Obama, thanking him for his support of copyright enforcement and the Anti-Counterfeiting Trade Agreement. The letter comes after Obama gave a March 11 speech to the Export-Import Bank, in which he voiced strong support for ACTA, an executive agreement still under discussion by potential signatories.
Union and Trade Association letter to Obama

Don't forget the Premier League v. YouTube case

Lost in all the attention paid to the briefs filed last week by Viacom and YouTube is the fact that there is a separate, though similar, copyright case pending against YouTube in the same court, filed by the English Premier soccer league and a number of other sports leagues and music publishers. Those plaintiffs -- who are also seeking class action status -- filed their own brief, asking the court to rule that Section 512 of the DMCA does not provide a safe harbor to YouTube. While the Premier League's brief is similar to Viacom's, there are differences, including the fact that these plaintiffs -- unlike Viacom -- are alleging infringement post-May 2008. See Br. at 3 n.1. Also keep in mind that YouTube's much-discussed evidence that Viacom itself uploaded videos to YouTube does not affect these other plaintiffs, at least not directly. (YouTube filed the same summary judgment motion against both Viacom and the Premier League plaintiffs.)

Separately, the Premier League plaintiffs' motion for class certification is due March 26, YouTube's opposition May 7, and plaintiffs' reply June 11. Those papers should be unsealed about 10 days after each filing.

Here's what I believe is a full list of the plaintiffs in this case:

• The Music Force LLC
• Cal IV Entertainment, LLC
• Cherry Lane Music Publishing Company, Inc.
• The Football Association Premier League Limited
• Robert Tur
• National Music Publishers' Association
• The Rodgers & Hammerstein Organization
• Edward B. Marks Music Company
• Freddy Bienstock Music Company
• Alley Music Corporation
• X-Ray Dog Music, Inc.
• Federation Francaise De Tennis
• The Scottish Premier League Limited
• The Music Force Media Group LLC
• Sin-Drome Records, Ltd.
• Murbo Music Publishing, Inc.
• Bourne Co.

The Viacom v. YouTube briefs: after the dust has settled

I've been swamped and haven't been able to give the summary judgment briefs in the Viacom v. YouTube case the attention they deserve. I just wanted to make a few points that I think have gotten lost among all of the attention (justifiably) paid to the loads of interesting factual revelations gathered in the course of three years of intense discovery. (For good examples of those, see here, here, here, here, here, here, and here.)

Remember the procedural posture
The parties have filed separate cross-motions for summary judgment. They will each get the chance to file briefs in opposition to the other side's opening brief, and then reply briefs in support of their motions. In other words, though it's tempting to view the two briefs unsealed last week as arguments against each other, they really aren't. In fact, they were filed simultaneously, so they couldn't respond to each other. Both sides made lots of factual accusations and legal arguments. But we have not yet seen direct responses from the other side to any of them. For that, we will need to wait until about May 10, when opposition briefs will be unsealed. Just remember: arguments usually sound their best before the other side has had the chance to tear into them.

It all comes down to specificity
If there's one legal issue that I believe will determine the outcome of the case, it's this: How specific must YouTube's knowledge of infringement be in order for it to fall outside the safe harbor provided by Section 512(c) of the DMCA? In its motion, Viacom provided overwhelming evidence that YouTube knew about infringing videos on its site. Some of this knowledge was general. As YouTube co-founder Steve Chen said in a now-infamous 2005 email to a VC at Sequoia Capital, "you can find truckloads of ... copyrighted content" on YouTube. Viacom Motion at 7. Or, as Chad Hurley emailed, "aaahhh, the site is starting to get out of control with copyrighted material." Id. at 8. But Viacom has evidence of YouTube's knowledge of specific infringements as well. See id. at 25 n. 15 (citing Statement of Undisputed Facts Paras. 32, 59, 69, 105, 110, 116-17, 122, 130, 132, 165). After all, where does one get knowledge of "truckloads" of infringements if not from knowledge of (lots of) specific infringing videos? (YouTube flatly denies that it had knowledge of specific infringing videos. See YouTube Motion at 32.)

So what's the law on specificity of knowledge? Start with the statute. I think there's a common misconception that the DMCA is only about takedown notices, and the knowledge of infringement they impart to the host. That's wrong. Section 512(c) of the DMCA actually identifies two triggers for the obligation of the host to remove the subject material (if it wants to maintain the safe harbor). First is actual knowledge of infringement (which can be obtained through receipt of a facially valid takedown notice pursuant to Section 512(c)(3)). Id. § 512(c)(1)(A)(i). Second is where the host becomes "aware of facts or circumstances from which infringing activity is apparent." Id. § 512(c)(1)(A)(ii). This latter situation is known as "red flag" infringement; the idea is that the host can't claim the safe harbor if red flags are being waved in its face, suggesting the obvious presence of infringing activity. Viacom argues that YouTube had red flag infringement -- in spades:

As the undisputed facts set out above make clear, to say there were red flags everywhere on YouTube is a gross understatement. Defendants were not merely aware of red flags signaling rampant infringement; they rallied around them. Their own documents are contemporaneous admissions that they knew infringing videos generated 54 to 80 percent of the traffic on YouTube that YouTube's business plan intentionally rested on such infringement-driven traffic. This is exactly the kind of intentional guilt the Supreme Court condemned in Grokster. And Grokster liability inherently defeats the DMCA:

inducement liability [under Grokster] and the Digital Millennium Copyright Act safe harbors are inherently contradictory. Inducement liability is based on active bad faith conduct aimed at promoting inhngement; 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 [under Grokster]. There is no safe harbor for such conduct.

Fung, slip op. at 43; accord Usenet, 633 F. Supp. 2d at 142 ("if Defendants . . . encouraged or fostered . . . infringement, they would be ineligible for the DMCA's safe harbor provisions").

Viacom Motion at 50-51.

YouTube's argument to the contrary is at 32-38 of its brief. And it bolsters its case with its contention that Viacom's "widespread use use YouTube to market and promote [its] content...defeats any notion that the presence of their material on YouTube creates a fact or circumstance from which infringing activity is apparent." YouTube Motion at 39. Very few cases have probed the boundaries of red flag knowledge of infringement; as far as I'm aware, Columbia v. Fung is the only case where a court has actually found that red flag knowledge existed. On this point, YouTube relies heavily on UMG v. Veoh. Both cases are from the Central District of California; neither is binding on Judge Stanton. Viacom also bolsters its case with reference to Grokster, which it cites for the proposition that the Ninth Circuit's requirement of "specific knowledge of infringement" for inducement liability to attach was "error." Viacom motion at 24-25.

The concession that might win the case for Viacom
For some time, I've been telling anyone who asked me about this case that the biggest obstacle for Viacom isn't the statute or the caselaw. Rather, it's the fact that YouTube has become so wildly popular, and such an established part of the entertainment, social, and political landscape. And relatedly, there are no doubt millions of perfectly non-infringing videos on the site. Given those facts on the ground, it's difficult to imagine any federal district judge saying, in essence, "YouTube is illegal. And I hereby order you to shut it down."

But Viacom gave Judge Stanton an easy out in footnote 1 of its brief. In that footnote, Viacom says it is not pursuing any claim based on YouTube's activities after May 2008, when, according to Viacom, YouTube began filtering for Viacom content without requiring Viacom to license its videos. While Viacom is careful not to formally concede that YouTube's post-May 2008 activities are not infringing, it's effectively letting YouTube off the hook as of that date. I think this was a very smart move on Viacom's part. Given Viacom's concession/limitation of claims, Judge Stanton can now write an opinion that says something like this:

YouTube was once a very bad actor. It had 'truckloads' -- YouTube's word -- of infringing videos on its site. And those trucks flew red flags as they drove right by YouTube's top execs. YouTube knew that its users came to the site largely to view infringing videos. And Google bought YouTube knowing full well about all the infringement, and in fact hoped to profit from it. Therefore, YouTube cannot find safe harbor in Section 512(c) of the DMCA, and must now pay Viacom $734,916,732.18 (which I'm sure Sergey and Larry can find hiding between the cushions of their respective couches).

However, Viacom effectively concedes in footnote 1 of its motion that YouTube cleaned up its act by May 2008, and has indeed taken affirmative steps to cleanse itself of infringements. Therefore, I decline to impose damages for any infringements that occurred after that date, and decline to issue any injunction against YouTube.

That way Judge Stanton could make clear that YouTube may not profit by tolerating infringement, without killing a hugely popular site that has plenty of legitimate uses.

N.D. Cal.: BMW v. Gore does not apply to awards of statutory damages in copyright and trademark cases

A federal court in the Northern District of California has squarely rejected the argument that awards of copyright statutory damages are subject to the constitutional limits on punitive damages set forth in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). Ruling on the defedant's post-trial motions following the jury verdict in Luis Vuitton v. Akanoc, Judge James Ware explicitly held that the Gore analysis of the ratio between actual damages and punitive damages is inapplicable in the context of copyright (and trademark) statutory damages. See order at 22-25 & n.25. The ruling could help the record label plaintiffs in the Jammie Thomas-Rasset and Joel Tenenbaum cases, should the courts ever reach the constitutional challenges to the jury verdicts. In the Thomas-Rasset case, the court remitted the jury's award of $1.92 million on common-law (not constitutional) grounds, and a similar challenge to the $675,000 verdict in the Tenenbaum case is pending.
Akanoc Order re Injunction and New Trial

This case involved Akanoc, a US web host that provided services to Chinese web stores, some of whom sold counterfeit LV products. Last September, a jury awarded LV $32.4 million for contributory trademark and copyright infringement, finding that Akanoc did not qualify for the DMCA safe harbor because it often ignored LV's takedown notice, and did not even register a DMCA agent until well after this case was filed.

(h/t Eric Goldman)

Parties file summary judgment papers in Viacom v. YouTube case

Viacom has posted its Motion for Summary Judgment and Statement of Undisputed Facts on the inapplicability of the DMCA safe harbor defense in its copyright case against YouTube.

And here's YouTube's brief.

I'll post other papers, including supporting documents, as soon as I can get them. And analysis later.

(Updated.)

Ari Emanuel lobbying Obama for US 'Three Strikes' law?

So says Deadline Hollywood:

News Corp's James Murdoch and WME's Ari Emanuel both talked tough at the recent Abu Dhabi Media Summit about the illegal downloading of movies and TV shows.... Emanuel said he’s been speaking to President Obama about the U.S. adopting France’s 3-strikes-and-you’re-out stance. (Last year, France introduced a rule allowing legal action once Internet users had been caught illegally downloading 3 times.) The agent, whose brother Rahm is White House chief of staff, told delegates he expects there will be a “fight with ISPs” over the showbiz industry lobbying.

This doesn't surprise me; last October I attended a conference where Emanuel strongly endorsed the French model, calling piracy the biggest danger facing the entertainment industry, and fighting it "the most important thing for our business."

Interestingly, Emanuel, whose talent agency business is affected only indirectly by piracy, takes a more aggressive stance than the RIAA, whose members have been devastated by illegal downloading. In an official blog post last month, the record industry's trade association reiterated that "the RIAA has not called for a 'three strikes and you’re out' approach." Instead, it said, the RIAA supports "graduated response policies that call generally for escalating sanctions against offenders caught repeatedly engaging in illegal file sharing, an approach already contemplated by existing law (DMCA) and the ISP terms of services already agreed to by the user."

Update: Josh Gerstein at Politico tracked down what Emanuel actually said in Abu Dhabi. It turns out Emanuel didn't actually say he had lobbied Obama; rather, he spoke about Vice President Biden's anti-piracy efforts. Here are Emanuel's actual words:

In France, they are implementing a three-strike rule. We’re in the midst in the United States of moving forward with the Vice President and some attorney generals of trying to implement the three-strike rule...

It’s graduated response, so if people steal content there’s more penalties…eventually they stop them from doing it…..if we do not get a hold of this with the expansion of distribution, and I think there's a big fight coming with the ISPs and people that create content, all this is going to be for naught.

Obama lauds ACTA; vows to 'aggressively protect ' IP; will 'crack down on practices that blatantly harm our businesses'

President Obama today spoke to the Export-Import Bank's annual conference and in the process lauded the Anti-Counterfeiting Trade Agreement, and gave a strong endorsement to aggressive IP enforcement.

What’s more, we’re going to aggressively protect our intellectual property. Our single greatest asset is the innovation and the ingenuity and creativity of the American people. It is essential to our prosperity and it will only become more so in this century. But it’s only a competitive advantage if our companies know that someone else can’t just steal that idea and duplicate it with cheaper inputs and labor. There’s nothing wrong with other people using our technologies, we welcome it –- we just want to make sure that it’s licensed, and that American businesses are getting paid appropriately. That’s why USTR is using the full arsenal of tools available to crack down on practices that blatantly harm our businesses, and that includes negotiating proper protections and enforcing our existing agreements, and moving forward on new agreements, including the proposed Anti-Counterfeiting Trade Agreement.

This may be the strongest pro-IP statement I've seen from Obama himself. But it should come as little surprise; here's what the Obama campaign said about the candidate's views on international IP enforcement:

Protect American Intellectual Property Abroad: The Motion Picture Association of America estimates that in 2005, more than nine of every 10 DVDs sold in China were illegal copies. The U.S. Trade Representative said 80 percent of all counterfeit products seized at U.S. borders still come from China. Barack Obama and Joe Biden will work to ensure intellectual property is protected in foreign markets, and promote greater cooperation on international standards that allow our technologies to compete everywhere.

So far, at least, all signs are that Obama is seeking to fulfill his campaign pledge.

(h/t Tech Daily Dose)

Court dismisses ACORN suit vs. 'pimp,' 'hooker,' Breitbart.com; plaintiffs missed service deadline

A state court in Baltimore has dismissed ACORN's lawsuit against James O'Keefe, Hannah Giles, and Breitbart.com LLC after the plaintiffs failed to serve the complaint on the defendants within Maryland's 120-day limit.
ACORN v. O'Keefe Docket

It was with great fanfare that ACORN, along with two recently-fired employees of its Baltimore office, sued last September over the surreptitious taping of the employees advising O'Keefe and Giles on running a prostitution business out of a house. ACORN's general counsel, Arthur Schwartz, told the Washington Post at the time that the defendants, young filmmakers O'Keefe and Giles, plus Andrew Breitbart's Breitbart.com LLC, which disseminated the videos, had committed "clear violations of Maryland law" against audio recording without consent from all parties. But ACORN appears to have lost interest in the case since filing it, confirming my suspicion that it was little more than a press release on pleading paper.

Under Maryland Rule 2-507(b), "An action against any defendant who has not been served or over whom the court has not otherwise acquired jurisdiction is subject to dismissal as to that defendant at the expiration of 120 days from the issuance of original process directed to that defendant." That's exactly what the court did March 4, with no apparent notice from the media that covered the filing of the lawsuit. The court's dismissal was without prejudice, meaning that the plaintiffs could theoretically re-file. But, as I argued shortly after it was filed, the lawsuit has substantive flaws that go well beyond the plaintiffs' apparent lack of interest in pursuing it.

Court orders (relatively) quick unsealing of summary judgment papers in Viacom v. YouTube suit

Judge Louis Stanton has ruled that summary judgment briefs in the Viacom v. YouTube copyright suit must be unsealed within a few weeks of filing, rejecting a proposal by YouTube that would have kept all of the papers out of public view until at least mid-June. Peter Kafka of All Things Digital has the scoop, including the court's order. Here's some background on the unsealing issue.

Labels: Nesson and Tenenbaum owe $2,249

The record label plaintiffs have detailed their expenses incurred in litigating a motion to compel Joel Tenenbaum to produce evidence regarding his defense team's posting of seven of the songs at issue in his copyright case to a publicly available web site -- expenses that Judge Nancy Gertner has ruled Tenenbaum and his counsel Charles Nesson must pay. The total: $2,250, representing 8.6 hours of work by two associates and a paralegal.

Declaration of Expenses re Motion to Compel

Having litigated similar motions, I think it's fair to say that Tenenbaum and Nesson are getting off pretty easy.

Court refuses to strike class allegations and affirmative defenses in Scott v. Scribd case

In the purported class action copyright lawsuit filed against document-storage site Scribd.com, the court has denied Scribd's motion to strike the class allegations. Judge Melinda Harmon of the Southern District of Texas ruled that the plaintiff, author Elaine Scott, is entitled to take discovery on issues related to Rule 23, and that "a decision should not be made on class certification prior to Plaintiff moving for such."
Order on Motion to Strike Class Allegations

In addition, Judge Harmon denied the plaintiff's motion to strike Scribd's affirmative defenses, ruling that "each asserted defense is stated in sufficiently clear terms to give Scott fair notice" under Rule 8. Bottom line: discovery proceeds.

In Williams v. Scribd, a similar case pending in San Diego, the court has taken under submission Scribd's motion to dismiss based on, inter alia, the DMCA Section 512(c) safe harbor. It seems unlikely to me that the motion to dismiss will succeed, given the highly fact-specific nature of the inquiry into whether a defendant has taken the steps necessary to stay within the safe harbor.

YouTube: Keep summary judgment papers sealed for months; Viacom: 'the time has come for transparency and public access'

YouTube and Google -- whose self-proclaimed mission is "to organize the world's information and make it universally accessible and useful" -- have asked a federal court to keep all summary judgment briefs and supporting documents in the Viacom copyright suit sealed until at least June. Viacom wants the papers unsealed within two weeks of filing.

In dueling letters to Judge Louis Stanton, both sides agree that the briefs, the first round of which were filed today -- under seal -- should eventually be unsealed, except for highly sensitive material such as trade secrets. But they dispute the procedure and timing for doing so. Viacom says that summary judgment documents may be filed under seal, with the parties having 14 days to object to unsealing of specific material. At the end of the 14-day period, however, the documents would be unsealed, "with redactions only of specific material for which a party (or third party) has moved for continued sealing." There would be separate 14-day periods for each of the opening, opposition, and reply briefs.

YouTube calls the Viacom proposal a "logistical nightmare" and instead proposes to keep all of the documents completely out of public view until briefing is fully complete, which under the current schedule won't be until June 4, with unsealing (following appropriate redactions) coming 14 days after that. "That will allow the parties to devote their attention to the merits of this case during the briefing period, rather than to a protracted series of disputes over confidentiality," YouTube's letter says.

YouTube is probably right that its proposed procedure would be more efficient for the parties and the court. But so what? The common law and First Amendment right of access to court documents exists for the public -- not the parties or the court. And the law in the Second Circuit could not be clearer: The public has an "immediate" right of access to papers filed in connection with a motion for summary judgment:

We hold that documents submitted to a court in support of or in opposition to a motion for summary judgment are judicial documents to which a presumption of immediate public access attaches under both the common law and the First Amendment. Because the First Amendment presumption gives rise to a higher burden on the party seeking to prevent disclosure than does the common law presumption, the presumption of access here can be overcome only by specific, on-the-record findings that higher values necessitate a narrowly tailored sealing.

Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006) (emphasis added). Two weeks of wholesale sealing of summary judgment papers stretches the limits of "immediate"; more than three months mocks it. See Nebraska Press Ass'n v. Stuart, 423 U.S. 1327, 1329 ("[E]ach passing day may constitute a separate and cognizable infringement of the First Amendment.") (Blackmun, Circuit Justice 1975).

Viacom's letter properly acknowledges the public interest in quickly unsealing the documents:

Due to the long discovery period during which the record has remained under seal, the public domain has been filled with speculation and false information regarding the facts and issues of this case. Within the entertainment, technology and academic worlds, there understandably exists a pent-up interest in leading the actual facts regarding YouTube's copyright policies and practices and the appropriate legal rules regarding that conduct. Lugosch makes clear that the public has that right.

Whatever one's views on the merits of the parties' substantive copyright positions, I think we should all agree that one of the most important copyright cases of the Internet age should be waged in public -- and that inconvenience to the parties, and even the court, is not a valid reason to keep the entirety of the summary judgment record bottled up for months.

Update: YouTube's notice of motion is available here; Viacom's here.

Get ready for the Viacom v. YouTube summary judgment briefs

After nearly three years of discovery, the parties in the massive Viacom v. YouTube copyright suit will finally lay out their arguments on paper Friday, when opening briefs in support of summary judgment motions are due. Interested observers will finally get to see whether Viacom -- as well as the plaintiffs in the similar class action suit brought by the English Premier Soccer League, Bourne Music Publishers, and others -- has the goods on YouTube, or whether the video-hosting site will stay safely within the DMCA's Section 512(c) safe harbor. Did YouTube employees themselves upload infringing videos? What did they know about infringement on the site? How quickly do they respond to takedown notices? Did Viacom upload its own videos to YouTube, thus bolstering YouTube's arguments that it can't tell which videos are infringing, and so can't be expected to take them down without specific notice from copyright owners? Will Google have to dig into the reported $200 million it set aside to cover copyright liability when it bought YouTube in 2006? Tomorrow, we will likely get a little closer to the answers to these questions, and a lot more.

In the both the Viacom and Premier League cases, opening summary judgment briefs are due March 5, oppositions April 30, and replies June 4. In the Premier League case, the plaintiffs' motion for class certification is due March 26, YouTube's opposition May 7, and plaintiffs' reply June 11.

Ron to Ron: ACTA won't alter US law

US Trade Representative Ron Kirk has responded to a letter from Sen. Ron Wyden (D-OR) regarding the still-under-negotiation Anti-Counterfeiting Trade Agreement, once again affirming that the proposed executive agreement will not alter existing US law.
Ron Kirk Letter to Ron Wyden re ACTA

Kirk's letter also reiterates that the draft Internet Chapter closely resembles the DMCA, and is intended to "provide appropriate flexibility" so that Congress may still alter existing law should it choose.

Real throws in towel in RealDVD case

RealNetworks has folded in its dispute with the major movie studios over RealDVD, ending its appeal of the injunction against distribution of the DVD copying software and agreeing to pay $4.5 million of the studios' litigation fees. The move comes after Judge Marilyn Hall Patel last August granted the studios' motion for a preliminary injunction under the anti-circumvention provisions of the DMCA, and then dismissed Real's antitrust claims early this year. The settlement agreement will be enforced through this stipulated consent judgment and permanent injunction.

The MPAA hailed the settlement:

"We are gratified by the successful conclusion of this important matter," said Daniel Mandil, General Counsel & Chief Content Protection Officer for the MPAA. "Judge Patel’s rulings and this settlement affirm what we have said from the very start of this litigation: It is illegal to bypass the copyright protections built into DVDs designed to protect movies against theft. We will continue to vigorously pursue companies that attempt to bring these illegal circumvention products and devices to market."

And Real said it just wanted to move on:

"We are pleased to put this litigation behind us," said Bob Kimball, president and acting CEO for Real. "This is another step toward fulfilling our commitment to simplify our company and focus on our core businesses. Until this dispute, Real had always enjoyed a productive working relationship with Hollywood. With this litigation resolved, I hope that in the future we can find mutually beneficial ways to use Real technology to bring Hollywood's great work to consumers."

Tenenbaum and Nesson ordered to pay labels' fees over discovery dispute; court finds 'no extenuating circumstances'

It's still unclear how much of the jury's award of $675,000 in statutory damages Joel Tenenbaum will have to pay for his admitted copyright infringement. But now it's near certain that Tenenbaum and his counsel, Harvard Law School Professor Charles Nesson, will have to fork over a few thousand dollars to the record labels for their shenanigans during the discovery process. That's the result of an order Judge Nancy Gertner issued today, requiring Tenenbaum, a Boston University physics grad student, and Nesson, who is working pro bono, to reimburse the labels for the expenses they incurred in filing a motion to compel the defense team to produce evidence regarding its posting of seven of the songs at issue in this case to a publicly available web site -- a motion that was granted by Judge Gertner last June in an order that slammed the defense and announced that "[t]he court's indulgence is at an end." Here is the motion for costs and fees filed by the plaintiffs pursuant to FRCP 37(a)(5) -- a motion to which the defense never filed an opposition.

Today's order does not specify how much Tenenbaum and Nesson will have to pay; the order gives the plaintiffs until March 8 to file an affidavit setting out the fees incurred in preparing the motion to compel.

Here's the full text of today's order (which I've broken into paragraphs to make a bit more readable):

Judge Nancy Gertner: Electronic ORDER entered granting [851] Motion for Costs and Fees Under Rule 37(a)(5). Plaintiffs request that the Court order the defense to pay the reasonable expenses they incurred in filing a motion to compel (document #842) that the Court granted on June 16, 2009. Federal Rule of Civil Procedure 37(a)(5)(A) provides that if a court grants a motion to compel a response to a discovery request, "the court must... require the party... whose conduct necessitated the motion, the... attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees." An award of costs and fees to the prevailing party is mandatory unless the court finds that (1) "the movant filed the motion before attempting in good faith to obtain the... discovery without court action"; (2) "the opposing party's nondisclosure... was substantially justified"; or (3) "other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(a)(5)(A); see also Midland-Ross Corp. v. Ztel, Inc., 113 F.R.D. 664, 666 (D. Mass. 1987) (quoting M&D Builders, Inc. v. Peck, 109 F.R.D. 410, 411-12 (D. Mass. 1986)).

The defendant has not filed an opposition to plaintiffs' motion for costs and fees, and the Court concludes that the plaintiffs' motion should be granted. As indicated in their motion to compel, the plaintiffs attempted to resolve their discovery dispute with the defendant, but the defense refused to disclose the requested information. The defense also has made little effort to show that its nondisclosure was "substantially justified." Defense counsel's terse response to plaintiffs' motion to compel merely stated that, in his personal opinion, the plaintiffs' requests were not relevant to this litigation. As indicated in this Court's June 16, 2009, order, plaintiffs' request for information relating to the defense's unauthorized distribution of the very copyrighted works on which plaintiffs' claims were based was clearly relevant to such issues as the willfulness of the defendant's conduct and the amount of damages to be awarded by the jury. Finally, the Court concludes that there are no extenuating circumstances in this case that would make the award of attorneys' fees and other costs unjust.

Accordingly, the Court will hold both the defendant, Joel Tenenbaum, and his attorney, Charles Nesson, jointly and severally liable for the reasonable expenses that plaintiffs incurred in filing their motion to compel. See 8A Charles Alan Wright, Arthur Miller & Richard Marcus Federal Practice and Procedure § 2288, at 662 (2d ed. 1994) (noting that an award of reasonable expenses under Rule 37(a) may be made against both the losing party and his attorney and citing cases in which an attorney has been ordered to pay an award). The plaintiffs are ordered to file an affidavit containing an itemized statement of the expenses they incurred in filing the motion to compel by March 8, 2010. (Hourihan, Lisa).

Third Jammie Thomas-Rasset trial set for Oct. 4

The third trial of Jammie Thomas-Rasset, whom two separate juries have found liable for using the KazAa peer-to-peer network to download and "share" music, has been set for October 4, 2010, in Minneapolis. Per Judge Michael Davis' January 22 order, the third trial will concern only damages; the fact of Thomas-Rasset's willful infringement of 24 of the major labels' songs has already been established.
Jammie Thomas-Rasset Trial Notice

As I've pointed out, there remain many questions about just what the third trial will look like, including whether the parties will be able to add additional witnesses on damages, and whether the court will instruct the jury that the maximum allowable award in the case is $2,250 per work, which Judge Davis found "constitutes the maximum amount a jury could reasonably award to both compensate Plaintiffs and address the deterrence aspect of the Copyright Act." Judge Davis reduced the second jury's award of $80,000 per work -- a total of $1.92 million -- under the common law doctrine of remittitur, finding that the verdict was "monstrous and shocking." The first jury awarded $9,250 per work, totaling $222,000, but that verdict was thrown out on grounds unrelated to the size of the award.

In January of this year, the labels offered to settle the case for $25,000, to be donated to a music charity, but Thomas-Rasset declined the offer; her attorney said, "Jammie will not accept anything offer that requires her to pay money to or on behalf of the Plaintiffs."