Court: AP 'is going to win' Shepard Fairey case

The judge presiding over the copyright dispute between the Associated Press and Shepard Fairey regarding the "Obama Hope" poster today indicated that the AP "is going to win" the case, and urged the parties to settle. According to the AP's report:

Federal Judge Alvin Hellerstein said Friday at a hearing in New York that he has a feeling that "whether it's sooner or later, The Associated Press is going to win" the case.

He suggested that artist Shepard Fairey and the news organization move on to settlement talks and consider dropping penalties. Neither side seemed ready to do so.

AP lawyer Dale Cendali says the news organization wants to make it clear that the AP owns the copyright to the photograph that Fairey used to create the "HOPE" poster and that he violated the copyright.

As far as I'm aware (unless it was changed at today's status conference), the parties' summary judgment motions on liability are still due July 26.

Update: A later report by the AP includes the following:

U.S. District Judge Alvin Hellerstein made the suggestion at a hearing in which he ordered Fairey's lawyers to turn over records of communications Fairey had with his lawyers before he sued the AP in February 2009. He also said AP lawyers can depose Fairey a second time.

While it's hard to say for sure what happened without seeing a transcript (which I haven't), it appears the AP's attorneys successfully invoked the crime-fraud exception to the attorney-client privilege to get at the the communications between Fairey and his lawyers. As background, Fairey is under federal criminal investigation for perjury and evidence tampering, based on his admitted falsehoods regarding which photograph he used as a basis for the "Obama Hope" poster.

Adventures in settlement confidentiality

Kudos to Eriq Gardner of THR, Esq. for his coverage of the series of suits against individuals accused of downloading and "sharing" independent films via BitTorrent. Gardner links to the settlement page for those seeking to settle their claims regarding the film Far Cry. The page, set up by Dunlap, Grubb & Weaver, the Leesburg, VA law firm representing the plaintiffs, includes a link to the settlement agreement itself. In sum, the potential defendant agrees to pay $1,500 and cease infringing, in exchange for a promise by the copyright owner not to sue.

The agreement also includes a typical confidentiality clause, whereby the settling party acknowledges that "the terms of this Agreement" are "STRICTLY CONFIDENTIAL" and "MAY NOT be disclosed to any other party except legal counsel, including but not limited to internet or on-line forums." And there's a $15,000 liquidated damages provision in the event of breach. Fair enough. But doesn't the fact that the law firm that drafted the settlement agreement posted it to the &#@*&!*% Internet tend to undermine, just a wee bit, its demand that the terms be kept "STRICTLY CONFIDENTIAL"?

Peer-to-Peer defendant seeks Supreme Court review of 'innocent infringer' ruling

A defendant in one of the record labels' suits against individual peer-to-peer infringers is asking the Supreme Court to review a ruling that precluded her from asserting the "innocent infringer" defense under 17 U.S.C. § 504(c)(2). The case involves Whitney Harper, who was 16 back in 2004, when labels' investigators detected her "sharing" 544 files. As the Fifth Circuit later described:

During discovery, Plaintiffs examined Harper’s computer. The examination showed that its operating system had been reinstalled in 2005. As a result, most of the files present on the computer in 2004, when MediaSentry performed its investigation, had been overwritten. The forensic examination did show that three file-sharing programs had been installed and used on the computer, including a program known as LimeWire, which had been used after the operating system was reinstalled. It also revealed a new cache of approximately 700 recordings downloaded since the reinstallation. Fifteen of the copyrights that Plaintiffs’ second amended complaint alleged that Harper infringed came from this newly discovered cache.

The plaintiffs moved for summary judgment, and minimum statutory damages of $750 per work. The district court granted the motion as to liability and enjoined her from future infringement. But the court held that there were disputed issues of fact as to whether Harper qualified as an innocent infringer, and thus gave the labels the option of settling for the $200 per work allowed if the Section 504(c)(2) defense applies. Specifically, the court rejected (and see here) the labels' argument that the defense was inapplicable here under 17 USC § 402(d) ("If a notice of copyright in the form and position specified by this section appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504 (c)(2).") because they had properly placed notices on CDs that contain the songs at issue

But the Fifth Circuit reversed, rejecting Harper's argument that her lack of legal sophistication was relevant to the applicability of the innocent infringer defense, given the presence of proper notices on CDs to which she had access:

Harper's reliance on her own understanding of copyright law—or lack thereof—is irrelevant in the context of § 402(d). The plain language of the statute shows that the infringer's knowledge or intent does not affect its application.[2] Lack of legal sophistication cannot overcome a properly asserted § 402(d) limitation to the innocent infringer defense.

This understanding is supported by the historical structure of the copyright law. What is now § 402(d) was amended as part of the Berne Convention Implementation Act ("BCIA"), Pub. L. No. 100-568, 102 Stat. 2853 (1988). Before the Berne Convention was adopted, publishers ran the risk of placing their work into the public domain by failing to include a notice of copyright. "Under the BCIA," however, "notice is no longer required at publication." 2-7 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 7.02(C)(3) (2009). But the BCIA, in part through § 402(d), "preserves an incentive for use of the same type of copyright notice." Id. That incentive is the bar to the innocent infringer defense. Under this scheme, it would make no sense for a copyright defendant's subjective intent to erode the working of § 402(d), which gives publishers the option to trade the extra burden of providing copyright notice for absolute protection against the innocent infringer defense. Harper cannot rely on her purported legal naivety to defeat the § 402(d) bar to her innocent infringer defense.

Harper's cert. petition argues that the presence of a notice on a physical copy (e.g., a CD) should not automatically bar the innocent infringer defense where the copy was made from a digital file (which doesn't contain a notice). It frames the issue like this:

There are two potential readings of § 402(d). Under the first, § 402(d) eliminates innocent infringement whenever the copyright holder’s published copies of its sound recording bear the § 402 notice. Under the second, § 402(d) eliminates innocent infringement only when the copy that the infringer used to infringe bears the § 402 notice. As between these two readings, the second is preferable because only notice on the copy that the infringer used to infringe tends to disprove the infringer’s innocence. Congress should not be presumed to have required courts to conclude otherwise — in this case, to conclude that notice on a CD in the record store tends to disprove the innocence of an infringer who infringed using only music files on the Internet — in § 402(d) when an alternative reading is equally consistent with the text.

But this implies that the Section 402(d) limitation on the innocent infringer defense could never apply in the P2P context -- where a digital file can't contain a notice -- a step it seems to me courts would be unwilling to take.

The petition argues that there is a circuit split on this issue. The Fifth Circuit in this case and the Seventh Circuit in BMG Music v. Gonzalez, 430 F. 3d 888 (7th Cir. 1005) rejected the limits on the defense that Harper urges. But, says the petition, DC Comics, Inc. v. Mini Gift Shop, 912 F.2d 29 (2d Cir. 1990), is to the contrary. In that case, the Second Circuit upheld the district court's finding of innocent infringement, based on the defendants' lack of sophistication and the fact that the infringing goods they sold in their stores lacked notices.

Harper is represented by Kiwi Camara, who represented accused peer-to-peer defendant Jammie Thomas-Rasset in her second trial. The jury awarded the labels $1.92 million, but the court later remitted the award down to $54,000. A third trial is currently set for October 4, 2010, in Minneapolis.

David Byrne sues Charlie Crist over use of 'Road to Nowhere' in campaign video

Here we go again. David Byrne has sued Florida Senate candidate Charlie Crist for using the 1985 Talking Heads hit "Road to Nowhere" in a YouTube video that promotes his campaign. Reports Billboard:

Byrne is seeking $1 million in damages from Gov. Charlie Crist, who's also Florida's former Attorney General, and his senatorial campaign for use of the song earlier this year in a website and YouTube ad attacking his then-Republican primary opponent, Marco Rubio. Crist has since changed his campaign and is running as an independent candidate.

***

Byrne tells Billboard.com that he became aware of the Crist ad from a friend in New York, where the Talking Heads co-founder resides. "I was pretty upset by that," says Byrne, who had Warner Bros. Records contact the Crist campaign, which subsequently stopped using the ad. But, Byrne contends, "in my opinion the damage had already been done by it being out there. People that I knew had seen (the ad), so it had gotten around. The suit, he adds, "is not about politics...It's about copyright and about the fact that it does imply that I would have licensed it and endorsed him and whatever he stands for."

I'll post the complaint when I get my hands on it. Of note, Byrne's attorney is Larry Iser, who represented Jackson Browne in a similar suit against John McCain, the RNC, and the Ohio Republican Party based on a 2008 ORP web video that incorporated part of Browne's song "Running on Empty."

It won't surprise me if we see a dozen more lawsuits exactly like this one before November.

Update: Here's the complaint, which includes claims for direct and vicarious copyright infringement and a claim under Section 43(a) of the Lanham Act, based on the theory that Crist's video falsely implied that Byrne endorsed Crist's Senate campaign.
David Byrne v. Charlie Crist Complaint

Court permanently enjoins IsoHunt, Fung

A federal court in Los Angeles yesterday permanently enjoined IsoHunt and its principal Gary Fung from assisting users in illegally downloading movies owned by the major studios. The injunction follows Judge Steven Wilson's grant of summary judgment to the studios last November, in which he found that Fung and IsoHunt had induced copyright infringement on a massive scale and was not eligible for the DMCA's safe harbors.
Isohunt Permanent Injunction

h/t Barry Sookman

Kagan's RIAA brief revealed: 'As Nasty As They Wanna Be' fails to 'physically excite,' 'arouse'

The truth can finally be known: Elena Kagan is not "turn[ed] on" by 2 Live Crew. Not even by the Crew's 1989 masterwork As Nasty as They Wanna Be, which included such classics as "The Fuck Shop" ("There's only one place where we can go/Where the price is right just to fuck a ho."); "Dick Almighty" ("It's 15 inches long, eight inches thick/Last name almighty first name is dick."); and "If You Believe in Having Sex" (just click the damn link yourself; this is a family blog). For, as Kagan boldly proclaimed in a 1990 amicus brief she drafted for the RIAA, arguing that the album was not obscene under the three-prong Miller test:

Nasty does not physically excite anyone who hears it, much less arouse a shameful and morbid sexual response.

"Anyone"? Really??? (Not even her kinky BFF?)

Kagan (who presumably falls within the category of "anyone") may not be "excite[d]" or "arouse[d]" by the Crew's oeuvre, but she does, with a straight face, argue that it contains "serious artistic value." Oddly, though, she apparently couldn't find any examples of such in the album itself; she cites none. Rather, her brief, written while she was an associate at Williams & Connolly, relies on Leonard Bernstein for the proposition that all music has "inherent value" (with props to Justice Scalia for noting that "ratiocination has little to do with esthetics"). (All music has value; Nasty is music; therefore Nasty has value. Q.E.D.!) She also notes that at least one song has political value; apparently "Dick Almighty" ("They took a dick from California, transplanted that mutha fucka to Washington DC and it fucked the nation") was a reference to none other than our 37th president, Richard Milhous Nixon. Who knew??

Whatever one may think of Kagan's characterization of Nasty, one can't argue with success; the 11th Circuit bought her arguments. See Luke Records, Inc. v. Navarro, 960 F.2d 134 (11th Cir. 1992) (reversing district court's ruling that the album was obscene, see Skyywalker Records, Inc. v. Navarro, 739 F. Supp. 578 (S.D. Fla. 1990)).
RIAA amicus brief in Luke Records, Inc. v. Navarro

Kagan confirms: I represented the RIAA

It's been reported before, but in her just-released Senate Judiciary Committee questionnaire (p. 193), Supreme Court nominee Elena Kagan confirms that she once represented the RIAA while in private practice. The case was Luke Records, Inc. v. Navarro, 960 F.2d 134 (11th Cir. 1992), an appeal of a district court's ruling that The Two Live Crew's album As Nasty As They Wanna Be was obscene. As McClatchy reported:

Before Harvard, there was 2 Live Crew.

The hip-hop group hit the spotlight in 1989 with its album "As Nasty As They Wanna Be," which included the single "Me So Horny." Nick Navarro, the sheriff of Florida's Broward County, thought it went too far.

"I'm a freak in heat, a dog without warning," the rappers sang. "My appetite is sex, 'cause me so horny."

U.S. District Judge Jose Gonzalez agreed with Navarro that the song was obscene, and 2 Live Crew appealed.

The group's attorney, Bruce Rogow, said in an interview that he encouraged the Recording Industry Association of America to file a friend-of-the-court brief. The association hired Williams & Connolly, and Kagan drafted the brief, later explaining that she "stressed the difficulty of finding music obscene under prevailing constitutional law."

In 1992, a three-judge panel of the 11th U.S. Circuit Court of Appeals unanimously threw out the trial judge's decision.

"It was nicely done, and it was certainly helpful," Rogow, who's a professor at Nova Southeastern University's law school, said of Kagan's brief. "But I think the outcome would have been the same regardless."

How long before the usual suspects' heads start exploding?

Henley, DeVore file reply briefs in 'parody' battle

Don Henley and Chuck DeVore have filed their respective summary judgment reply briefs in the copyright and Lanham Act suit over DeVore's campaign videos that took Henley's "The Boys of Summer" and "All She Wants to do is Dance" and substituted new lyrics attacking Sen. Barbara Boxer (D-CA) and President Obama. Here's Henley's brief and DeVore's. Again, the focus in the briefs is whether, under Campbell v. Acuff-Rose, the videos are fair use parodies that target the songs themselves, or infringing satires that merely use the works to comment on something else. As I've said before, I think DeVore faces a steep uphill battle to prevail on this point, given the facts and the existing law, but he has a much stronger argument on Henley's Lanham Act claim.

Kudos to both sides for what I thought were very well-argued briefs. The hearing on the cross motions for summary judgment is set before Judge James Selna in Santa Ana June 1 in this case that will help set the rules of the road for campaign uses of third-party material.

Labels win big in LimeWire case

A federal judge in New York yesterday handed the major record labels a huge win yesterday, granting summary judgment in their favor against the purveyors of the LimeWire peer-to-peer software. Judge Kimba Wood found that LimeWire's operators had induced infringement by its users, evidence of which came in five forms:

(1) LW’s awareness of substantial infringement by users; (2) LW’s efforts to attract infringing users; (3) LW’s efforts to enable and assist users to commit infringement; (4) LW’s dependence on infringing use for the success of its business; and (5) LW’s failure to mitigate infringing activities.

I don't have time to go into any detail right now; here are a few sources of reactions from the usual suspects: CNET; Ars Technica; Progress & Freedom Foundation's Tom Sydor; Barry Sookman; and Public Knowledge.
Arista Records Summary Judgment Opinion

Viacom's friends lend support in YouTube case

Two groups supporting major copyright owners have filed amicus briefs in support of Viacom in its copyright suit against Google and YouTube:

The first, filed on behalf of a coalition including ASCAP, BMI, SESAC, Disney, NBC Universal, Warner Bros., and others, makes three main points:

1. Congress enacted the DMCA to combat -- not protect -- copyright infringement;
2. The DMCA Section 512(c) safe harbor does not provide a defense to inducement liability; and
3. Section 512(c)(1)(B)'s language denying the safe harbor where a site derives "a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity," should be interpreted consistent with the "right and ability to control" standard from common law vicarious liability.

The second, from the free market-oriented Washington Legal Foundation, focuses on the legislative history and purpose of the DMCA's safe harbors, arguing that the law mandates a "shared responsibility" among copyright owners and online service providers in addressing infringement, and does not relieve sites like YouTube of all obligations to fight illegal use of others' works, especially while profiting from it.

Disclosure: I work at NBCU and have written an article for WLF, though I was not involved in filing either of these briefs.

No class certification in Scott v. Scribd case

The copyright suit filed by a Texas author against document-storage site Scribd.com will not proceed as a class action. In its order denying Scribd's motion to strike the class allegations, the court gave plaintiff Elaine Scott until May 1 to file her motion for class certification. That deadline has passed without Scott filing such a motion. And her attorney Kiwi Camara confirmed to me that he decided not to pursue a class action in this case. "We're pursuing certification in a different case in a different circuit," Camara told me via email. No word yet on what that "different case" will be.

Meanwhile, in the similar Williams v. Scribd case pending in San Diego, the court has yet to rule on Scribd's motion to dismiss based on, inter alia, the DMCA Section 512(c) safe harbor. The complaint in the Williams case does not include class allegations.

Amici urge Ninth Circuit to reverse in UMG v. Veoh case; RIAA, NBCU, PROs, and WLF weigh in

Three sets of amici have filed briefs in support of Universal Music Group's appeal of the district court's grant of summary judgment in favor of Veoh, the now-bankrupt user-generated content web video site that successfully sought safe harbor in Section 512(c) of the DMCA.

• RIAA, NMPA, NBC Universal, and American Federation of Musicians. The RIAA brief argues that Veoh does not qualify for the DMCA Section 512(c) safe harbor because the infringing activity targeted by UMG was not "by reason of storage at the direction of a user." Id.§512(c)(1). While users upload the videos, Veoh copies and streams them to users -- activities that the brief argues are not protected by the safe harbor. The brief also argues that the district court mangled the analysis of the "right and ability to control" language in Section 512(c)(1)(B), reading it in a manner inconsistent with cases including Napster and Perfect 10 v. CC Bill. Even Prof. Eric Goldman, who hailed Veoh's "terrific win" in the district court, acknowledged that the lower court's "dichotomous language parsing seems particularly unstable."

• ASCAP and BMI. The PROs' brief focuses on the district court's cramped reading of the "red flag" infringement doctrine. 17 USC § 512(c)(1)(A)(ii). As I noted at the time, "Courts, including this one, simply read [the doctrine] so narrowly that, for all intents and purposes, it might as well not even exist." (Though that was before the Columbia v. Fung decision.) And the brief takes issue with the district court's treatment of the DMCA provision that triggers knowledge on the part of the host based on a "representative list" of infringed works. Id. § 512(c)(3)(A)(ii).

• Washington Legal Foundation. The free market legal organization's brief includes a lengthy discussion of the DMCA's legislative history, highlighting lawmakers' statements that the statute was intended to combat widespread Internet infringement -- not protect those who profit from it. It then goes on to attack the district court's rulings on actual and red flag knowledge, and right and ability to control.

I expect there will be amici weighing in on behalf of Veoh; I will post those once they are filed.

Disclosure: I work at NBCU and have written an article for WLF, though I was not involved in filing either of these briefs.

DeVore, Henley file oppositions to summary judgment motions; Henley shocker: I'm no 'liberal'

Don Henley and Chuck DeVore have each filed their oppositions to the other side's summary judgment motions in their battle over DeVore's campaign videos that took "The Boys of Summer" and "All She Wants to do is Dance" and substituted new lyrics attacking Sen. Barbara Boxer (D-CA) and President Obama. Here's DeVore's brief, and Henley's. And here's DeVore's motion, and Henley's.

The briefs again focus on DeVore's fair use defense, and specifically whether the videos are protected "parodies" or infringing "satires." For reasons I've previously stated, I believe these videos fall on the "satire" side of the divide, and that the court is unlikely to find DeVore's uses fair. And nothing in this new round of briefing alters my prediction on that point. A few highlights from the briefs:

• DeVore does a good job of minimizing (if not eliminating) the importance of Henley's "parody" expert, Mark Rose, an English professor at UCSB. I agree with DeVore that Rose's opinion that the videos are not parodies really isn't relevant here. Campbell v. Acuff-Rose Music and its progeny define "parody" for legal purposes, and the law is clear that the determination of parody vel non is a legal question for the judge. See, e.g., Mattel v. Walking Mountain Productions, 353 F.3d 792 (2003) ("every court to address the issue whether a defendant's work qualifies as a parody has treated this question as one of law to be decided by the court"). I just don't think an expert was necessary on this point.

• DeVore argues that the fourth factor (market harm) favors him. Because Henley has chosen not to license his songs for any purpose, so the argument goes, there is no market to be harmed. I'm actually not sure which way Henley's decision not to license his songs at all cuts. The "no actual market, so no harm" argument has appeal. But it was pretty soundly rejected by the Second Circuit in Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987) ("the need to assess the effect on the market for Salinger's letters is not lessened by the fact that their author has disavowed any intention to publish them during his life-time.... He is entitled to protect his opportunity to sell his letters, an opportunity estimated by his literary agent to have a current value in excess of $500,000."). (I acknowledge that, unlike this case, Salinger involved unpublished works, which weighs strongly against fair use.)

• On Henley's Lanham Act claim, I thought DeVore's brief was very persuasive both legally, and factually, in picking apart Henley's expert's survey purporting to show a large number of people confused into thinking that Henley supports DeVore's Senate campaign.

• One of DeVore's arguments has been that he chose to "parody" Henley's songs because of the performer's well-known association with liberal and Democratic causes, and that this choice weighs in favor of fair use. I thought Henley's brief persuasively rebutted this point. Notably, just last week the Second Circuit in Salinger v. Colting upheld the district court's conclusion that "Campbell and its progeny define the limits of parody to include only those elements which criticize or comment upon the source author's works, rather than the author himself." I just don't find it plausible that DeVore's videos comment on the works themselves (as opposed to commenting on Boxer and Obama). (Henley also says that he does not consider himself a "liberal" and in fact has publicly voiced support for Sen. John McCain (R). Br. at 9. Who knew?)

Just a last point on the Lanham Act arguments, which I've given somewhat short shrift. I predict DeVore will prevail on this claim, and I think he should. And I think copyright owners should in fact be rooting for DeVore here. For if Henley prevails, it will in fact harm copyright owners' ability to license their works. Here's a hypo: say a music publisher owns rights to a song, and licenses it (via ASCAP or BMI) for public performances in tens of thousands of venues. The owner of a bar or restaurant or dance hall should be confident that he now has the right to play the song, free of claims. He should not have to worry that one of the performers (who likely doesn't even own the copyright) can come along and say, "Hey -- I'm strongly identified with my song. And I strongly dislike your restaurant, and don't want to be 'associated' with it. You're violating my rights under the Lanham Act, and my right of publicity as well. Pay up." That's not materially different from what Henley is claiming here, and, if he's successful with his argument, it could really gum up the works in licensing. And that's about the last thing the already overly complicated world of music licensing needs right now. Dastar warned against "a species of mutant copyright law that limits the public's federal right to copy and to use expired copyrights" (internal quotation marks omitted); I think that admonition applies with equal force to uses of copyrights that are either licensed or fair.

Reply briefs are due May 17, and a hearing is set before Judge James Selna in Santa Ana June 1.

The Impact of eBay on Injunctive Relief in Copyright Cases

I wanted to pass along an article written by my friend Eleanor Lackman of Hogan Lovells about the applicability to copyright cases of the Supreme Court's 2006 opinion in eBay v. MercExchange, which held that an injunction should not automatically issue upon a finding of patent liability; rather, traditional equitable principles for granting injunctions "apply with equal force" in the patent context. Eleanor's article is particularly timely in light of the Second Circuit's decision last week in Salinger v. Colting, which, reversing the district court on this point, held that eBay does apply in copyright cases.