Viacom v. YouTube: A disappointing decision, but how important?

I've now had a chance to re-read and digest last week's summary judgment ruling in Viacom v. YouTube. A few thoughts:

1) A disappointing opinion
Put aside, for a moment, whatever you may think of Judge Stanton's ultimate holding absolving YouTube of copyright infringement. Purely as a matter of judicial crafting and analysis, I found the court's order to be extremely cursory. While I certainly don't equate quality with quantity, this opinion was just too damn short to do justice to the complex, heavily-litigated issues in the case. It was nominally 30 pages, but about 11 of those were just long block quotes from Section 512 of the DMCA and its legislative history. Both parties amassed, and cited, thousands of pieces of evidence. The court was of course under no obligation to discuss them all individually. But it barely mentioned them at all! What about all the evidence of specific -- not just general -- knowledge on YouTube's part of infringing Viacom works on its system? See Viacom Motion at 25 n. 15 (citing Statement of Undisputed Facts Paras. 32, 59, 69, 105, 110, 116-17, 122, 130, 132, 165) (e.g., March 2006 memo from YouTube co-founder Jawed Karim: "As of today episodes and clips of the following well-known shows can still be found: Family Guy, South Park, MTV Cribs, Daily Show, Reno 911, Dave Chapelle. This content is an easy target for critics who claim that copyrighted content is entirely responsible for YouTube's popularity."). Judges have almost complete freedom to craft their opinions as they see fit, but I think the court fell short here by failing to engage the evidence, especially the evidence garnered by the party against whom it granted summary judgment. Judge Stanton issued his opinion barely a month after briefing was completed -- a very quick result. I don't think I've ever said this about a judge before, but I wish he had taken a lot longer.

2) What in the world is "red flag" infringement?
As I noted last September when a court in the Central District of California granted summary judgment to Veoh in the copyright suit brought by UMG, Section 512(c) of the DMCA 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)). 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. The Ninth Circuit gutted the red flag doctrine in Perfect 10 v. CC Bill, specifically in this thoroughly unconvincing paragraph:

Perfect 10 alleges that CCBill and CWIE were aware of a number of "red flags" that signaled apparent infringement. Because CWIE and CCBill provided services to "illegal.net" and "stolencelebritypics.com," Perfect 10 argues that they must have been aware of apparent infringing activity. We disagree. When a website traffics in pictures that are titillating by nature, describing photographs as "illegal" or "stolen" may be an attempt to increase their salacious appeal, rather than an admission that the photographs are actually illegal or stolen. We do not place the burden of determining whether photographs are actually illegal on a service provider.

In other words, under Ninth Circuit precedent..., having material identified by its poster as "illegal" and "stolen" is not a red flag that infringing activity is taking place. One is left to wonder whether the panel would have ruled the same way had actual red flags been waved in the defendants' faces.

Judge Stanton, incorrectly in my view, adopted CCBill's holding without much analysis, further rendering red flag infringement a dead letter. The statute (and legistlative history) clearly indicate that some form of knowledge beyond that imparted via DMCA notices qualifies as knowledge of "facts or circumstances from which infringing activity is apparent," thus triggering a site's takedown obligation (on pain of losing the safe harbor). But after reading Judge Stanton's opinion several times, I simply have no idea what would actually constitute such "red flag" knowledge. And, again, his opinion does not even scratch the surface of the evidence presented by Viacom on this issue, see, e.g, Viacom Br. at 5-24, 50-56, and explain why none of it would raise a red flag for a reasonable service provider in YouTube's position.

3) The interplay between the DMCA safe harbor and inducement
Can a site induce infringement by third parties, and yet still claim safe harbor under Section 512? At least two courts have said no. See Columbia v. Fung at 43 ("inducement liability and the Digital Millennium Copyright Act safe harbors are inherently contradictory. Inducement liability is based on active bad faith conduct aimed at promoting infringement; the statutory safe harbors are based on passive good faith conduct aimed at operating a legitimate internet business."); Arista v. Usenet at 17 ("if Defendants...encouraged or fostered such infringement, they would be ineligible for the DMCA’s safe harbor provisions."). But Judge Stanton appears to have rejected the holding of Fung (from the CD of Cal.) and Usenet (from his court in the SDNY). At page 23 of his order, Judge Stanton appears to be saying that a site that takes down infringing material upon receipt of DMCA notices qualifies for the safe harbor, even if it is inducing that very infringement. For immediately following his discussion of Grokster and inducement, Judge Stanton concludes, "To such a provider [i.e., one that complies with DMCA notices], the DMCA gives a safe harbor, even if otherwise he would be held as a contributory infringer under the general law." (my emphasis).

But that can't be true, at least as so broadly stated. Can a site really run banners saying, "Upload the top 20 movies, TV shows, and songs here! And everyone else: watch and listen!" And then walk away from a copyright suit as long as it complies with DMCA notices regarding those very works whose infringement it induced? Judge Stanton's words certainly suggest so. But I think that's contrary to the statute (Section 512(c) only applies to material on a system "by reason of the storage at the direction of a user," which is not the case when the site induces the infringement), as well as the legislative history and common sense. Perhaps there was sufficiently conflicting evidence on the issue of inducement that Judge Stanton could not make a finding that YouTube induced infringement (as he suggests on page 22), but I don't think it was correct as a matter of law for him to conclude that YouTube was not liable even if it induced infringement. I expect this to be a major issue on appeal.

4) How important is this decision?
No doubt, it puts an end (for now) to a massive potential liability hanging over YouTube's head. And that's important in and of itself. But this decision is probably not as important as everyone appears to have concluded in the initial analysis last week. First, Viacom has already said it's appealing, and I think it's likely that the Second Circuit will at least modify parts of Judge Stanton's rather thin opinion. Second, keep in mind something I wrote just after the first round of briefing in March: Viacom effectively dropped 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. In other words, Viacom is (relatively) OK with the way YouTube operates now; the worst of the conduct, which provided much of the most damning evidence against YouTube, occurred well before that. As long as YouTube continues to operate its content ID system -- and I have no reason to believe that it won't -- even Viacom has effectively conceded that it's not worth suing over YouTube's current practices (though the Premier League plaintiffs appear to disagree).

And keep in mind that of the six major film/TV studios, and the four major record labels -- none of whom are exactly shy about litigating to protect their copyrights -- Viacom is the only one that actually pulled the litigation trigger against YouTube. The others, due to a combination of private enforcement, business deals, technology, and ownership of their own UGC sites, appear to have reached a form of détente with YouTube. They may not like YouTube, and the fact that it profits from infringement of their works. But for a variety of reasons, each decided not to sue. And I suspect even a victory by Viacom in this case would not have caused them to do so.


Disclosure: As I've previously noted, I work at NBC Universal, which signed on to an amicus brief in this case, though I did not work on it. As always, the views expressed here are my own.

YouTube wins Viacom copyright suit

Wow -- that was quick. Today Judge Louis Stanton granted summary judgment to YouTube and Google, holding that its activities in hosting and disseminating user-uploaded videos was protected by the safe harbor found at Section 512(c) of the DMCA. More later...

Espinel releases Joint Strategic Plan on IP Enforcement

White House IP Czar Victoria Espinel has released the 2010 Joint Strategic Plan on Intellectual Property Enforcement, as mandated by Section 301 of the 2008 PRO-IP Act. Here is Espinel's blog post summarizing the Plan. An excerpt:

Now, more than ever, we need to protect the ideas, artistry, and our reputation for quality, provide our businesses with the incentives to make each new product better, reduce crimes related to intellectual property infringement and keep dangerous counterfeits out of our supply chain to protect our citizens. Strong intellectual property enforcement will help us to accomplish that. The Obama Administration has always embraced the free flow of information, online collaboration, and fair use by average citizens, which are also helping to advance our society and economy every day -- this strategy does not target legitimate and legal activity. The Administration is technology-neutral, using both proprietary and open source platforms on the web and all content on WhiteHouse.gov is public domain, making it an active participant in the online communities of the 21st Century.

I'll have more to say once I get the chance to read the Plan.

10th Cir.: Restoring copyright protection to public domain works does not violate First Amendment

The Tenth Circuit today ruled that Congress did not violate the First Amendment by restoring copyright protection for certain works that had fallen into the public domain, reversing a district court's ruling that Section 412 of the Uruguay Round Agreements Act of 1994 was unconstitutional. Wrote Chief Judge Mary Beck Briscoe for the unanimous three-judge panel in Golan v. Holder:

The government argues on appeal that Section 514 is narrowly tailored to advancing three important governmental interests: (1) attaining indisputable compliance with international treaties and multilateral agreements, (2) obtaining legal protections for American copyright holders’ interests abroad, and (3) remedying past inequities of foreign authors who lost or never obtained copyrights in the United States. We hold that the government has demonstrated a substantial interest in protecting American copyright holders’ interests abroad, and Section 514 is narrowly tailored to advance that interest. Consequently, the district court erred in concluding that Section 514 violates plaintiffs’ First Amendment rights.

(footnote omitted). The government had defended the statute at issue largely on the ground that it was necessary in order to comply with TRIPS and the Berne Convention, under which signatories "must provide copyright protection to preexisting foreign works even when those works were previously in the public domain in that country."

This is a big win for the government, and for the large group of copyright owners who filed amicus briefs urging reversal. The plaintiffs can seek rehearing en banc, and may petition for cert., but I think any First Amendment challenge to a copyright statute is a real longshot in light of Eldred v. Ashcroft.

Politico: IP Czar's report due this week

Reports Politico:

Industry sources tell POLITICO they expect White House Intellectual Property czar Victoria Espinel to drop her much-anticipated IP report this week. Her recommendations could reach the vice president’s office Tuesday and go public Wednesday, just in time for the Senate Judiciary Committee’s scheduled IP oversight hearing.

I believe the report in question is the "Joint Strategic Plan," mandated by Section 301 of the 2008 PRO-IP Act, and whose contents are described at Section 303. Earlier this year, Espinel's office sought public comments in anticipation of releasing the report.

Here's a link to the notice of the Senate Judiciary Committee's June 23 oversight hearing, which will feature testimony from Espinel, Warner Bros. CEO Barry Meyer; Paul E. Almeida, President, Department for Professional Employees at the AFL-CIO; David Hirschmann, President and CEO of the US Chamber of Commerce's Global Intellectual Property Center; and Caroline Bienstock, President and CEO of independent music publisher Carlin America.

Student survey seeks opinions on file-sharing

An undergraduate at Kenyon College named Gavin McGimpsey contacted me and asked me to help publicize a survey he is conducting called "Filesharing, Status, and Sociolegal Attitudes." I don't know McGimpsey's take on these issues, and I have no idea how his survey will turn out, but I'm happy to provide the link for those who would like to participate. And here is a bit of additional information about McGimpsey and his project.

Belinda Carlisle's full-service law firm

From page 104 of Belinda Carlisle's excellent new autobiography Lips Unsealed:

Shortly after we [Carlisle and her then-boyfriend, Dodger outfielder Mike Marshall] settled into the Marina del Rey apartment, I was at my lawyer's office and asked one of his assistants if they knew of a coke dealer in the Marina. I needed a connection closer than Hollywood. My lawyer's assistant made a call and gave me a slip of paper with a number on it and said it was okay for me to call.

I went home and it turned out that the dealer lived on the floor directly below mine. I couldn't believe my good fortune...

Anyone know who was Carlisle's lawyer circa 1982-83?

BTW, the book is great -- kind of like The Dirt, only with much cuter band members...

Court appoints mediator to facilitate settlement in Jammie Thomas-Rasset case

In the Jammie Thomas-Rasset case, Judge Michael Davis has appointed a special master to help facilitate settlement. The special master is Jonathan Lebedoff, who stepped down as Chief Magistrate Judge of the District of Minnesota in 2005. It's unclear from the order whether Judge Davis took this step sua sponte or at the urging of the parties; I have inquiries in to the attorneys and will update if I hear back.
Order appointing special master in Capitol v. Thomas-Rasset

As of now, a third trial, which will consider only the issue of damages, is set for October 4. At the second trial, held last summer, the jury awarded the record labels $80,000 per work infringed, but the court later remitted the award down to $2,250 per work. 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."

Update: I've learned that the court appointed the special master on its own, not at the request of the parties. Also, Thomas-Rasset appears to have backed down from her position that she "would...rule out any settlement asking her to pay damages." Thomas-Rasset attorney Joe Sibley told Wired that his client "might agree to settle for the statutory minimum $750 a track," which would work out to a total of $18,000 for the 24 songs at issue. But he was considerably less confident of a settlement when he spoke with CNET:

"I'm not optimistic," Sibley told CNET. "I think that the case has been analyzed enough by the record industry and they know what they will accept. If they didn't want to accept the judgment on [the reduced damages award], I don't think there is anything we would have to offer them that they would accept now."

Lebedoff certainly has his work cut out for him.

It's official: Don Henley wins summary judgment over Chuck DeVore on copyright claims

It's been a very bad month for Chuck DeVore. On June 8, the Republican Assemblyman from Orange County finished third in the GOP primary for the right to take on Sen. Barbara Boxer (D). And then, just a few days later, federal Judge James Selna issued his formal ruling on Henley's copyright and Lanham Act claims regarding DeVore's videos that used Henley's songs to mock Boxer and President Obama, soundly rejecting DeVore's fair use defense. While I haven't done a line-by-line comparison of the tentative and final rulings, it appears that the one substantive change favored DeVore and his co-defendants. In the tentative ruling, Selna determined that the defendants had committed willful copyright infringement, but in the actual order, he declined to grant summary judgment in favor of either party on that issue.

I assume there will be a jury trial on the issue of willfulness and damages, unless the parties are able to reach a resolution.
Order on Motion for Summary Judgment in Henley v. DeVore

Gawker Media settles Alabama libel case

Back in March, I blogged about a decision by a federal court in Birmingham Alabama that kept alive a libel suit by Confederate Motors, Inc. against Gawker Media and its auto blog Jalopnik.com. I'm way late to this, but less than two weeks after the court's decision, the parties informed the court that they had settled the case, and it was dismissed on June 7.

Shockingly, according to PACER, that leaves only one live case pending against Gawker in federal court: the "McSteamy" naked threesome copyright battle in the Central District of California.

Update: On June 11, Jalopnik published a correction of the original post, which reads in part, "[W]e do not have any proof that Confederate is 'unable to do business' in New York, as stated in the post, and regret any confusion the article may have caused." (h/t MediaPost).

'We Con the World' video kerfuffle: When Middle East politics meets the parody/satire divide

What do you get when you mix Middle East politics with ignorance of copyright law? Utter nonsense claiming that YouTube and Warner/Chappell Music have "censored" a pro-Israel music video -- a video that is very likely infringing.

The kerfuffle involves a video called "We Con the World" produced for Latma, a "media satire website" edited by journalist Caroline Glick. The video uses the tune from "We are the World" but substitutes a new set of lyrics mocking the supposedly "humanitarian" mission of the Gaza flotilla. Music publisher Warner/Chappell apparently sent DMCA takedown notices to YouTube, which removed some (though not all) copies of the video.

Now the pro-Israel and conservative blogosphere is up in arms, claiming that this incident is an example of "Israel's enemies ... trying to silence us," and "YouTube ...com[ing] down against the Israeli side in its editorial decisions," and even "a blatant act of Jew-hatred." Utter and complete nonsense. First of all, YouTube -- with extremely rare exceptions -- simply removes videos upon receipt of facially valid DMCA notices, no questions asked, and no legal analysis performed. YouTube -- which receives a very large volume of DMCA notices -- doesn't evaluate the political content of videos when acting on infringement notices; it simply removes the videos. And do these people attacking YouTube seriously believe that a company whose parent was founded by Sergey Brin and Larry Page (both Jewish), and a music publishing company whose parent is run by Edgar Bronfman, Jr. (son of a former president of the World Jewish Congress), were motivated by anti-Israel bias or "Jew Hatred"? Seriously?

Moreover, defenders of the video are wrong on the law. Glick insists that the video is a "parody" and says:

Copyright experts we advised with before posting the song told us in no uncertain terms that we were within our rights to use the song because we did so in accordance with the Fair Use Doctrine. The Fair Use Doctrine, copied and pasted below from the US Copyright Office stipulates that it is legal and permissible to use copyrighted material under the fair use doctrine for purposes of parody.

Glick doesn't identify the "copyright experts" with whom she consulted, but I'd be surprised if anyone truly expert in US copyright law and fair use would advise, as Glick says, that Latma's use was "clearly lawful." She and others can call "We Con the World" a "parody" until they are blue in the face, but under the Supreme Court's opinion in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), it almost certainly isn't. Campbell distinguished between "parody" and "satire" as follows:

For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works. See, e. g., Fisher v. Dees, supra, at 437; MCA, Inc. v. Wilson, 677 F. 2d 180, 185 (CA2 1981). If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.

(Footnotes omitted.) Or, put simply: a parody comments on the work itself; a satire uses the work to comment on something else. I think a court would most likely find that , under Campbell, the "We Con the World" video is a satire -- not a parody. It uses the "We are the World" composition to comment on the Gaza flotilla, "to get attention or to avoid the drudgery in working up something fresh"; any claim that it's actually commenting on the original song is weak at best. (It's not as if Israelis can't come up with catchy yet bellicose songs on their own; this ditty has been stuck in my mind since the 2006 Lebanon War.) The recent (still tentative) ruling in the Don Henley v. Chuck DeVore copyright suit is closely on point. There, Senate candidate DeVore (R-CA) took Henley's songs, and subbed in his own lyrics, which attacked Sen. Barbara Boxer (D) and President Obama (D). The court (again, tentatively), rejected DeVore's argument that the use of Henley's songs constituted parody, and concluded that the use of the entire compositions was not fair. (Campbell doesn't exactly say, "If it's a parody, it's fair use; if it's a satire, it isn't." But that's how such cases usually play out.)

Glick and others are right on one thing, however: it's hard for any copyright owner to effectively scrub the Web of all copies of an allegedly infringing work. Others have re-posted the Latma video, and it's going to be tough for Warner/Chappell to chase down every last copy.

Intra-libertarian IP war: Rush v. Rand Paul

As first reported in the Louisville Courier-Journal, the libertarian-minded Canadian band Rush is battling the libertarian-minded Kentucky Republican Senate candidate Rand Paul over the latter's use of Rush songs in his campaign. Rush's attorney Robert Farmer has provided me the cease-and-desist letter he sent to the campaign May 25, demanding that Paul "immediately stop all use of Rush’s music and remove all references to Rush and their music in all campaign materials." Farmer's letter makes claims regarding three separate uses of Rush's songs by the campaign, each of which needs to be analyzed separately, and which I'll address in turn:

1) Use of songs in videos/ads. I haven't seen the videos (the one YouTube video referenced in the letter has been removed), so I'm reluctant to say for sure whether the uses at issue are infringing. But the general rule is that to incorporate music into an advertisement, one needs a license from the owner of both the sound recording (the record label), and the musical composition (the music publisher) -- which Farmer's letter certainly suggests the campaign lacked. If the campaign simply used Rush songs as the soundtrack for its videos/ads, it's unlikely it would have a successful fair use defense. Rush's claim here is likely valid.

2) Quoting from a song in a speech. Farmer's letter demands that Paul stop quoting lines from Rush songs in his campaign speeches. I don't know how extensive such quotations were. But let's assume they were just a few lines. If that is the case, it's hard to imagine any court would consider the use of such brief quotations in a non-commercial context anything other than fair uses. This would likely be a very weak claim.

3) Playing of songs at campaign events. This to me is the most interesting of Rush's claims. Normally, to play a song at an event, a campaign either needs to ensure that the venue has a public performance license, typically obtained from ASCAP, BMI, and SESAC, or it can obtain one itself. (When I worked on the McCain presidential campaign, we had ASCAP and BMI licenses.) Such licenses give the licensee permission to play any of the millions of songs in the PROs' catalogs.

"The Spirit of Radio," the song referenced in Farmer's letter, is licensed for public performance through SESAC. But what's interesting is Farmer's contention in his letter that "The public performance of Rush’s music is not licensed for political purposes: any public venue which allows such use is in breach of its public performance license and also liable for copyright infringement." I've looked at SESAC's licenses, and there's simply no exclusion for political uses (nor is there in ASCAP or BMI's). When I asked Farmer via email to explain his position, he was reluctant to go into much detail, but did tell me this:

Keep in mind that there is a chain of rights issue with the licenses issued by performing rights societies – they can only issue licenses for the rights they have obtained from the writer/publisher and subject to any limitations or exclusions.

In other words, Farmer is suggesting that the license that the writers/composers of Rush's songs issued to SESAC specifically excluded political uses. I haven't seen the agreement between those writers/composers and SESAC, so I can't say that he's wrong. But I can say that I've never heard of any contract with a PRO containing such an exclusion, and neither had several other copyright attorneys I asked.

But let's assume the songwriters/composers of Rush's songs actually did have such an exclusion in their contracts with SESAC. Farmer is correct: SESAC can't grant rights it doesn't have. So if SESAC couldn't grant rights (either to the venue or the campaign) for political uses, then those uses would indeed be infringing (though the venue or campaign might then have a claim against SESAC for misrepresenting that it had sufficient rights to allow them to publicly perform the songs). Of course, if neither the venue nor the campaign had a SESAC license, then the campaign is simply outta luck.

So what does the Paul campaign have to say about all this? Not much. The campaign has not responded to an email I sent this morning seeking comment. Farmer told me yesterday that the campaign had not responded to his letter. And Paul's campaign manager would only tell the Courier-Journal this:

The background music Dr. Paul has played at events is a non-issue. The issues that matter in this campaign are cutting out-of-control deficits, repealing Obama Care and opposing cap and trade.

Well, I'm sure the campaign would rather focus on subjects other than music licensing. But if it continues its current practices, especially with regard to ads and videos, it may not have much choice in the matter.

Ninth Circuit: Listen to us debate the first sale doctrine (and an obscure postal statute)

The Ninth Circuit has posted to its web site an audio recording of Monday's oral arguments in UMG Recordings, Inc. v. Augusto, an important case about the scope of the first sale doctrine.

The facts are this: UMG (like other record labels) sends out promotional CDs to radio stations, music reviewers, and other industry insiders. The CDs contain labels that say the following (or something very close):

This CD is the property of the record company and is licensed to the intended recipient for personal use only. Acceptance of this CD shall constitute an agreement to comply with the terms of the license. Resale or transfer of possession is not allowed and may be punishable under federal and state laws.

Of course, some recipients don't follow these instructions, and sell these promo CDs. Troy Augusto made a business of buying them at record stores or online, and re-selling them. UMG sued Augusto for copyright infringement, alleging a violation of its exclusive right to distribute its works under 17 USC § 106(3). Augusto defended by claiming that under the first sale doctrine, he's perfectly free to re-sell the CDs he bought, the "promotional use only" labels notwithstanding.

The district court sided with Augusto, ruling that UMG transferred title in the physical CDs to the initial recipients, and did not, as it argued, merely license them for a limited purpose to a limited group. The court relied in part on an obscure postal statute, 39 USC § 3009, which characterizes un­ordered merchandise" as a "gift." (The purpose of the statute is evidently to protect consumers from scammers who mail goods to consumers even when they don't request it, and then demand payment.)

When I listened to UMG attorney Russ Frackman face the panel, I was skeptical of the label's chances. The court practically begged him to give them a way not to follow the postal statute; he had to fall back on arguments based on the purpose of the law, the legislative history, and an insistence that words such as "recipient" and "merchandise" had some special meaning in this context other than their dictionary definitions. But I thought the panel was even tougher on Augusto's attorney Joseph Gratz. The court seemed a bit surprised by Gratz's concession that Augusto has the burden of proof on the first sale issue (at least one panel member had previously stated that it may be an open question), and it expressed considerable sympathy for the argument that UMG's relationship with the recipients of the promo CDs was indeed that of licensor/licensee -- or at least that Augusto may not have met his burden of proving otherwise.

In sum, I thought UMG came out of the argument with a slight edge, but predicting the result of the opinion would be a bit of a fool's errand. Listen for yourself and give your prediction in the comments. EFF collects the relevant documents here.

TPM blows facts, law in piece on campaign music

Talking Points Memo has yet another piece about campaigns' use of music, and the legal troubles that sometimes follow. It's an interesting topic (one with which I admit I'm a bit obsessed), and there are plenty of interesting things to be said. Unfortunately, TPM apparently thought it would be more fun to engage in a partisan rant than to do the hard work necessary to get the facts and the law right. And so it didn't.

The law of music copyright is complicated, and the legality of different types of uses depends on the facts. So I'm not going to comment on whether all of the incidents TPM mentions actually qualify as infringements. But I'm intimately familiar with the McCain campaign's experience with music, and thus I have no trouble saying that TPM got virtually everything wrong when it turned to that topic. Wrote TPM:

[The] McCain campaign ... was practically a walking Limewire setup. Jackson Browne also sued it for using his song "Running On Empty" in an ad, for which the two sides later reached an out-of-court settlement. Van Halen objected to McCain's use of their song "Right Now" at a rally. The Wilson sisters from Heart strenuously objected to his campaign's use of "Barracuda" to promote Sarah Palin. And finally, the McCain campaign used "Pink Houses" and "Our Country" by John Mellencamp, who sent a letter demanding that they stop.

Practically like LimeWire, the p2p network that was recently held liable for inducing infringement on a massive scale? Cheap, and totally inaccurate, shot. First, Jackson Browne did not sue the McCain campaign. Rather, he sued John McCain in his personal capacity. Second, the McCain campaign did not "us[e]" Running on Empty in an "ad." What actually happened, as detailed in this sworn declaration, is that a staffer at the Ohio Republican Party made a video that used the song, and posted that to YouTube.

TPM's reference to the complaints from John Hall, Van Halen, Heart, and Mellencamp is even farther off the mark. Had TPM taken a few minutes to do some reporting (like, say, Politico did back in 2008), it would have been forced to point out that the campaign's uses of these songs at rallies was perfectly legal. As Politico accurately reported:

What do all the cease-and-desist letters and testy calls [regarding performances of songs at rallies] amount to legally, though? Not much, if the songwriters licensed the public performance rights to their music to the American Society of Composers, Authors and Publishers or Broadcast Music Inc. And the vast majority of artists, including Heart, have done that. Buying an ASCAP or BMI license allows a venue (or a campaign, if it purchases a traveling blanket license) to play any of about 8 million songs during their events. Though it might be a nice courtesy, the licensees are not obligated to call the artist to discuss.

The McCain-Palin campaign told Politico that in 2007 it purchased both ASCAP and BMI licenses that cover the use of tunes for all public events. Campaign spokesman Ben Porritt said, "Our campaign respects copyrights and obtains licenses whenever the law requires, and any suggestion otherwise is flat wrong."

In other words, the McCain campaign paid good money for licenses that gave it the right to play songs written or recorded by artists including Hall, Van Halen, Heart, and Mellencamp (and millions of others). And it explains why, for all the noise they made in the press, these artists never made actual legal claims: they had no valid ones.

Also, it's worth casting a skeptical eye on the TPM piece's implication that Republican campaigns are somehow less respectful of copyright than Democratic ones. I don't think anyone ever has done a rigorous study of this topic, so I can't say for sure, but I strongly suspect the apparent imbalance of complaints against GOP campaigns stems from a simple fact: the vast majority of recording artists are liberals and Democrats. (But see John Rich -- and Daddy Yankee! Dame más gasolina!) And they understandably don't like Republicans using "their" songs (even as they happily cash their ASCAP and BMI checks, derived in part from Republican campaigns' license fees). If a Republican uses their songs, they run to the press. But if a Democrat does the same, even without permission, they are likely to look the other way.

Lastly, is a publication that routinely records and posts to YouTube lengthy excerpts from TV broadcasts, while slapping its own logo on others' copyrighted works, really criticizing others' copyright practices? Really??

Tentative ruling favors Henley over DeVore on copyright claims, rejecting 'parody' argument

According to a report on KTTV's web site, federal judge James Selna has tentatively ruled for Don Henley over Senate candidate Chuck DeVore (R) on his copyright claims, rejecting DeVore's arguments that his 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 were fair use "parodies." Update: Here's the tentative ruling. According to the Fox station's report:

Selna [tentatively] ruled that DeVore's case for fair use is stronger for "The Hope of November" because he uses Henley's song to parody what he contends is Henley's support for liberal causes, but it fails because it primarily focuses on criticizing Obama.

The judge said DeVore's case is much weaker for "All She Wants to Do Is Tax," because the lyrics have nothing to do with Henley. Selna said it more closely resembles satire, as opposed to parody, and the standard for using such material without paying for it is higher for satire than it is for parody.

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DeVore attorney Chris Arledge argued that the judge's ruling, if it stands, would send a chilling effect on free speech by politicians because it would make all political speech "commercial speech."

While the tentative went for Henley on his copyright claim, KTTV's report says Selna sided with DeVore on Henley's Lanham Act claim, which was premised on the allegation that the use of his songs falsely implied that the liberal singer had endorsed the conservative Republican's campaign. (Didn't someone predict exactly this result?)

Again, keep in mind that Judge Selna's ruling is tentative, and he is free to change his mind before issuing a final ruling.
Tentative Summary Judgment Ruling in Henley v. DeVore