Labels file notice of appeal in Tenenbaum case

The record label plaintiffs have filed their notice of appeal in the Joel Tenenbaum case, challenging Judge Nancy Gertner's ruling reducing the jury's award of $675,000 in statutory damages down to $67,500 on constitutional grounds. It will be interesting to see whether Tenenbaum also appeals on the grounds that the reduced award for the infringement of 30 songs is still unconstitutionally excessive. Update: Tenenbaum has indeed appealed.

Plaintiffs' Notice of Appeal

Court slashes Tenenbaum award by 90% on constitutional grounds

Judge Nancy Gertner has slashed the jury's award against admitted peer-to-peer user Joel Tenenbaum from $675,000 down to $67,500, taking the apparently unprecedented step of holding an award of copyright statutory damages unconstitutional. Wrote Judge Gertner in her 62-page order:

There is no question that this reduced award is still severe, even harsh. It not only adequately compensates the plaintiffs for the relatively minor harm that Tenenbaum caused them; it sends a strong message that those who exploit peer-to-peer networks to unlawfully download and distribute copyrighted works run the risk of incurring substantial damages awards. Tenenbaum’s behavior, after all, was hardly exemplary. The jury found that he not only violated the law, but did so willfully.

Reducing the jury’s $675,000 award, however, also sends another no less important message: The Due Process Clause does not merely protect large corporations, like BMW and State Farm, from grossly excessive punitive awards. It also protects ordinary people like Joel Tenenbaum.

Judge Gertner's opinion thus differs significantly from that of Judge Michael Davis in the Jammie Thomas-Rasset case, which reduced an award of copyright statutory damages on common law remittitur (i.e., non-constitutional) grounds.

Keep in mind that while the reduced award of $67,500 -- $2,250 multiplied by the 30 songs on which the record labels sought damages -- is certainly better from Tenenbaum's perspective than $675,000, he could have easily settled long ago for $4,000. And he has told the Boston Globe that the lower amount is still "unpayable to me."

I'll have additional analysis once I've had the chance to read the entire opinion.
Order on motion for new trial/remittitur in Joel Tenenbaum case

Kagan wins coveted Luther Campbell endorsement; rapper praises 'my homegirl' for obscenity stance

Well, this ought to put her over the top. Former 2 Live Crew Member Luther Campbell, who was saved from a possible obscenity prosecution in part with the help of a young Williams & Connolly associate named Elena Kagan, has repaid the favor, endorsing the Supreme Court nominee in a Miami New Times op-ed:

In 1989, Broward County Sheriff Nick Navarro banned the sale of our album, As Nasty as They Wanna Be, and a federal judge backed him. We appealed. The next year, Kagan, who was working at a Washington, D.C. law firm, wrote a brief that argued the album "does not physically excite anyone who hears it, much less arouse a shameful and morbid sexual response." In other words, my homegirl Kagan was saying people could not be aroused by the lyrics "'cause my dick's on bone" or "me so horny, me fuck you long time." She realized these words did not meet the standard of appealing to prurient interests. She did a great job fighting on 2 Live Crew's behalf, which lets you know that Kagan is not easily swayed by public opinion or by politicians with their own hidden agendas.

Campbell, of course, has an undefeated record at the Supreme Court. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

(h/t Above the Law)

Labels and Thomas-Rasset agree: We won't settle!

The major record labels and Jammie Thomas-Rasset don't agree on much, but they have come together in perfect harmony to tell the court: Hell no, we won't settle. Or can't. Or refuse to. Or, in the words of the joint motion they filed with the court today:

[T]he parties have concluded that a settlement of the present case is not possible. Any further settlement efforts would be futile, wasting the time and resources of the parties and the Special Master.

According to the motion, the parties tried to settle, both on their own and with the assistance of the special master the court appointed in June, to no avail. So it appears there really will be a third trial on October 4, this one addressing only the issue of damages. At last summer's second trial, the jury awarded the labels a total of $1.92 million for illegally downloading and "sharing" 24 songs, but the court later remitted the verdict down to $54,000. The labels opted for the new trial on damages rather than accepting the reduced award.
Joint motion re settlement

Problem with comments

Please be patient if you have submitted a comment that has not been posted yet. I keep getting error messages when I hit the "publish" link, and the comments do not actually appear on the comment moderation page. Hopefully this is just a temporary glitch with the Blogger software.

Nevada Senate candidate objects to opponent's posting of earlier version of web site

Talking Points Memo reports on a campaign IP kerfuffle in Nevada, where Senate Majority Leader Harry Reid (D) is fending off a challenge from Sharron Angle (R). The Reid campaign apparently posted a cached copy of an earlier version of Angle's web site, in an effort to show that she had "toned down her right-wing rhetoric" in the current version. A cease-and-desist letter from the Angle campaign's attorney followed.

The TPM story suggests that the Angle campaign was simply complaining about Reid's use of its copyrighted material. If that were so, I would think the copyright claim would be weak; the fair use and First Amendment arguments in favor of allowing a political candidate to post his opponents' campaign material in order to comment on it would be strong. See, e.g., Keep Thomson Governor Committee v. Citizens for Gallen Committee, 457 F. Supp. 957 (D.N.H. 1978) (rejecting copyright claim in campaign context; emphasizing that "The First Amendment affords the broadest protection to such political expression in order to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people.").

But it's clear from the C&D letter that the Angle campaign is not actually making a copyright claim. Rather, they are concerned that the Reid campaign, by posting the former Angle web site, which included a form for supporters to submit their names and email addresses, may have been harvesting those on their own, and misleading Angle supporters who genuinely wanted to submit their names to her campaign -- not Reid's. Indeed, the actual demand in the C&D letter is confined to this point:

[W]e demand that the Reid campaign immediately cease its nefarious actions of requesting and obtaining the names, email addresses, and zip codes under false pretenses from unsuspecting supporters of his opponent, Sharron Angle.

According to TPM, the Reid campaign acquiesced and took down the site. It's one thing to post an opponent's words to comment on or criticize them; I would support the Reid campaign's right to do just that. But it's quite another to trick supporters of one candidate into giving their contact info to the other, and it appears Angle had every right to complain about that aspect of Reid's tactics.

Update: Several people have pointed out to me that the C&D letter includes some broad language about the Reid campaign's use of copyrighted material. That's true, but I think that in context, what Angle is really complaining about is the use of that copyrighted material to mislead her supporters into submitting their contact info to the wrong site.

Court allows copyright suit vs. Scribd.com to proceed

In a little-noticed case in San Diego, a federal court has declined to dismiss a copyright suit against Scribd.com filed by a financial writer whose books were uploaded to the document-storage site without permission. Scribd had moved to dismiss Larry Williams' entire complaint under Rule 12(b)(6), relying chiefly on the DMCA Section 512(c) safe harbor for "storage at the direction of a user." But, as I predicted, the court held that a ruling on the applicability of the safe harbors was not appropriate at the motion-to-dismiss stage, given the inherently fact-specific nature of the inquiry. Indeed, the major rulings on the scope of the Section 512(c) safe harbor -- Io v. Veoh, UMG v. Veoh, and Viacom v. YouTube -- all came in the context of summary judgment, after extensive discovery regarding the defendants' copyright compliance practices.

The court also made significant rulings about the adequacy of the complaint's allegations regarding direct, contributory, and vicarious infringement claims. The court -- which repeatedly criticized the poor quality of the complaint -- held that Williams did not adequately plead direct infringement under CoStar v. LoopNet's requirement of "volitional conduct"; alleging that the uploader was "friends" with Scribd's CEO didn't cut it. The court did, however, hold that Williams' complaint contained sufficient allegations of contributory and vicarious infringement to survive the 12(b)(6) motion.

So now discovery proceeds, and I'm sure a summary judgment motion will follow. Judge Burns' order contains multiple indications that he is likely to grant it.
Order on Motion to Dismiss in Williams v Scribd

Billboard: Reading the Tea Leaves on Elena Kagan and the Music Industry

Here's my Billboard column on what Elena Kagan's record may -- or may not -- say about her views on issues important to the music business. A taste:

Supreme Court nominee Elena Kagan endured questioning at the end of June from the U.S. Senate Judiciary Committee about the weightiest legal issues of the day. Abortion. Separation of powers. The president's authority in wartime.

But even though committee chairman Patrick Leahy, D-Vt., is a champion of the recording industry and strong copyright protection for all creators, Kagan managed to avoid a grilling on her views about the proper scope of the Digital Millennium Copyright Act's safe harbors or whether sound recordings properly qualify as works made for hire.

To get a sense of how she would rule on issues of interest to the entertainment industry, we are instead left to scour her record for tea leaves. Let's take a look...

Please go to Billboard and read the whole thing...

Shades of Gray on Viacom v. YouTube opinion: 'Where's the beef?'

Apparently I'm not alone in my belief that the district court's summary judgment ruling in the Viacom v. YouTube case was "too damn short to do justice to the complex, heavily-litigated issues in the case." Blogs San Francisco copyright attorney Naomi Jane Gray at Shades of Gray:

In sharp contrast to the voluminous materials submitted by the parties in support of their cross-motions for summary judgment in the Viacom v. YouTube litigation, the court’s opinion granting judgment in favor of YouTube is surprisingly lean. Indeed, a third of the 30-page opinion is devoted to verbatim quotes of the statute and legislative history. The opinion represents a resounding victory for YouTube and, by extension, the rest of the user-generated content industry (for the time being, anyway – Viacom, not surprisingly, has indicated that it will appeal the decision). But – leaving the merits of the dispute aside for a moment – it also represents a lost opportunity for a thoughtful contribution to the jurisprudence in this developing area of law.

***

Given the size of the case (the complaint sought $1 billion in damages), the significance of the legal issues, and the need for a well-developed body of jurisprudence to guide the ongoing development of new business models and to create settled expectations among copyright owners and users of content, it would have been nice to see a little closer parsing of the language in the statute and legislative history. Clients, in my experience, are never thrilled to be advised on the tenor of the law – they want to know what the law is, so they can act accordingly.

Go read the whole thing.

Patty Murray campaign pulls video that used Billy Joel song

The campaign of Sen. Patty Murray (D-WA) has pulled a campaign video from YouTube due to copyright concerns over inclusion of a portion of the Billy Joel song "Only the Good Die Young." According to a report in the Spokane Spokesman-Review, the video was meant to jab Murray's GOP opponent Dino Rossi, who recently referred (in jest, it appears) to those who don't support his campaign as "sinners." The video included the portion of the song in which Joel sings, "I’d rather laugh with the sinners than cry with the saints/The sinners are much more fun." "It did seem to be the perfect song," Murray's spokeswoman told the paper. The campaign took down the video after being contacted by the Spokesman-Review; there's no indication that Joel or his record label complained.

It's impossible to say whether the video at issue was infringing without knowing more, including how much of the song was included. If it was just a few lines, the campaign might have a fairly decent fair use defense. But of course it's hard to blame them for taking the cautious route; their energy should be devoted to winning their race, not litigating interesting copyright issues.

Lastly, for the umpteenth time, is it really that hard for reporters to get the facts of Jackson Browne's 2008 copyright suit correct? The Spokesman-Review wrote, "John McCain’s 2008 presidential campaign was sued by Jackson Browne when it used 'Running on Empty'..." Wrong. The McCain campaign did not "use" the song. As this sworn declaration makes clear, the song was included in a video made by a staffer at the Ohio Republican Party -- not the McCain campaign. And Browne did not sue the McCain campaign -- he sued John McCain in his individual capacity.