Supreme Court requests response on 'innocent infringer' cert. petition

Good news for Whitney Harper and other opponents of the record labels' suits against individual peer-to-peer users: the Supreme Court has asked the record label plaintiffs to file a response to Harper's cert. petition that sought review of the Fifth Circuit's decision that precluded her from asserting the "innocent infringer" defense under 17 U.S.C. § 504(c)(2). While the Court's request is far from a guarantee that it will take the case, it only takes such action in a small percentage of cases, and it is an indication that the justices are at least intrigued by the issues presented and are seriously considering granting cert. As the Blog of Legal Times, which first reported the decision, stated:

The Court's unusual action is a sign of the Court's interest in the case. A recent study indicated that the Court's request for a response significantly increases the chances the Court will ultimately grant review -- which could turn into a major contest for the music industry.

My previous coverage is here.

New paper examines distribution and 'making available'

Professor Peter Menell of Berkeley Law has published a new paper examining copyright's right of distribution, and the related debate about whether it encompasses a "making available" right. The debate is important in litigation against peer-to-peer users and facilitators; a conclusion that "making available" is not a violation of the distribution right torpedoed the verdict in the first Jammie Thomas-Rasset trial. Prof. Menell definitively concludes that the evidence, including the legislative history of the 1976 Copyright Act, "shows unequivocally that Congress intended to encompass broadly the 1909 Act rights to 'publish' and 'vend' within the right to distribute, and rejects the position that Congress required proof of 'actual distribution' to prove violation of the distribution right."

Here's the entire abstract:

In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age

Peter S. Menell
University of California, Berkeley - School of Law


September 19, 2010


Abstract:
Prior to the emergence of peer-to-peer technology, the Copyright Act’s distribution right was largely dormant. Most enforcement actions were premised upon violations of the reproduction right. The relatively few cases invoking the distribution right involved arcane scenarios. During the past several years, direct enforcement of the Copyright Act against file sharers has brought the scope of the distribution right to center stage. Whereas the 1909 Act expressly protected the rights to “publish” and “vend,” the 1976 Act speaks of a right to “distribute.” Interpreting “distribute” narrowly, some courts have held that copyright owners must prove that a sound recording placed in a peer-to-peer share folder was actually downloaded to establish violation of the distribution right. Other courts hold that merely making a sound recording available violates the distribution right. The ramifications for copyright enforcement in the Internet age are substantial. Under the narrow interpretation, the relative anonymity of peer-to-peer transmissions in combination with privacy concerns make enforcement costly and difficult. A broad interpretation exposes millions of peer-to-peer users to potentially crushing statutory damages.

Drawing upon the historical development of copyright law and the legislative history of the Copyright Act of 1976, this article explains why Congress selected the term “distribute” in its last omnibus revision of copyright law, shows unequivocally that Congress intended to encompass broadly the 1909 Act rights to “publish” and “vend” within the right to distribute, and rejects the position that Congress required proof of “actual distribution” to prove violation of the distribution right. This critical legislative history has been notably absent from treatise accounts and briefing on the liability standard in the file sharing cases, leaving courts without a compass to navigate this statutory terrain. This article traces the origins of the key legislative terms to elucidate the scope of the distribution right in the Internet age.

Fox news and correspondent sue Senate candidate over use of news footage in ad

Fox News and its correspondent Chris Wallace have sued the campaign of Senate Candidate Robin Carnahan (D-MO) over her campaign's use of Fox footage in a TV ad attacking her opponent, Roy Blunt (R). As first reported by THR, Esq., the complaint, filed in the Western District of Missouri on Wednesday, alleges copyright infringement and two forms of violation of Wallace's right of publicity under Missouri law.

The campaign ad has been removed from Carnahan's web site and YouTube, so unfortunately I can't independently evaluate it. (Update: here it is, at least for now.) But the complaint alleges that it was a "smear ad" that falsely implies that Fox and Wallace endorsed Carnahan's campaign. The complaint says that the 32-second ad uses "an essentially verbatim copy of a 30-second clip of both video footage and voice-over commentary appropriated from" an interview Wallace conducted with Blunt in 2006. The complaint also seems to say that the Fox footage included in the Carnahan ad included only Wallace's questions -- but not Blunt's answers:

The defendant’s conduct in stealing only certain footage from the [Fox] Interview is also false and misleading: Wallace’s tough questions were included, but Blunt’s answers and explanations were not.

The Kansas City Star described the ad as follows:

“You have to show you’re the party of reform,” Wallace says to Blunt in the clip, as it’s replayed on the Carnahan ad. “But some question whether you are the man to do that.”

The screen than flashes examples from Blunt’s political and congressional career, including his insertion of legislation in a Homeland Security bill that would have helped tobacco maker Philip Morris.

Without having seen the ad myself, I'm not going to offer an opinion on the ultimate merits of the suit. But I do have a bit of skepticism about the copyright claim, for at least two reasons. First, the complaint repeatedly emphasizes the alleged reputational damage to Fox for use of the footage. Even assuming that the ad does falsely imply that Fox and/or Wallace are endorsing Democrat Carnahan (a dubious proposition, it seems to me), reputational damage is just not a cognizable copyright interest. And second, the complaint asserts that the campaign's use of the Fox footage "allows Defendant to profit commercially without paying the traditional price." But that statement appears to contradict the thrust of the complaint, which is that Fox would never license such footage to a campaign, because it would damage its reputation. In other words, there is no "price" here, "traditional" or otherwise. Moreover, courts have rejected the argument that campaign uses of third-party material are "commercial" simply because they are used to solicit contributions. See American Family Life Insurance Co. v. Hagan, 266 F. Supp. 2d 682, 697 (N.D. Ohio 2002) (use of trademark in a political campaign ad was “properly classified not as a commercial transaction at all, but completely noncommercial, political speech”); MasterCard International Inc. v. Nader 2000 Primary Committee, Inc., 2004 WL 434404 (S.D.N.Y. Mar. 8, 2004) (even if a candidate’s ad resulted in increased contributions, the ad would still not be “commercial;” “If so . . . all political campaign speech would also be ‘commercial speech’ since all political candidates collect contributions”).

As for the right of publicity claims, I am not familiar enough with the specifics of Missouri law to say anything too definite. I would just point out that courts are very protective of First Amendment interests in the political context, see, e.g., Meyer v. Grant, 486 US 414 (1988) (First Amendment interests are "at its zenith" in the political realm), and there are strong arguments for limiting right of publicity claims to truly commercial uses of an individual's name and likeness.

(Updated with additional detail about the ad.)

'Copyhype' joins the blogosphere

Just a quick plug for the new copyright blog "Copyhype," by recent law school graduate Terry Hart. Hart has a very smart post debunking the superficial and ultimately silly argument that copyright infringement must never be referred to as "theft" because the Supreme Court held in Dowling v. United States, 473 U.S. 207 (1985), that the National Stolen Property Act, 18 U. S. C. § 2314, does not apply to interstate transportation of bootleg records. And he does important work in demolishing much of the disinformation about ACTA by carefully comparing what the proposed agreement says to actual US law. A very welcome addition to the copyright blogosphere.