Labels file First Circuit brief in Joel Tenenbaum case; ex-SG Paul Clement joins team

The record label plaintiffs filed their appellate brief in the First Circuit this week, seeking to reinstate the $675,000 copyright infringement award against Joel Tenenbaum that the district court held was unconstitutionally excessive and reduced to $67,500.

Readers of this blog are likely already familiar with the arguments over whether awards of copyright statutory damages are subject to review under the Supreme Court's punitive damages cases, including BMW v. Gore. I thought this brief did a particularly effective job at explaining why Gore and its progeny are inapplicable to statutory damages awards, where Congress has clearly established the permissible damages range, and thus the jury is not left without the "guideposts" that the court set forth in Gore, where no statute cabined the jury's discretion. And the brief highlights the flaws in the district court's own damages analysis, including its failure to take into account the evidence that Tenenbaum distributed (uploaded) songs to countless others in addition to downloading them. Of note, the labels' appellate team now includes former US Solicitor General Paul Clement, now a partner at King & Spalding.

Tenenbaum's defense team has also indicated that it will appeal, arguing that even the reduced award is unconstitutionally excessive.
Record Labels' appellate brief in Sony v. Tenenbaum

Nesson seeks to join Thomas-Rasset trial fray

The third trial of Jammie Thomas-Rasset may have just gotten a lot more interesting:
Nesson motion for pro hac vice

Trial is set to begin Tuesday, Nov. 2, and will concern only damages.

(Headline changed. Nesson sought to represent Harvard's Berkman Center, not to formally join Thomas-Rasset's defense.)

St. John's Law School synmposium explores music downloading cases

Those readers in the New York area may be interested in attending a symposium this Friday, Oct. 29 at St. John's University School of Law in Queens about the record labels' litigation against individual peer-to-peer infringers. The panel looks a bit heavy on the "anti" side, but it should be an interesting event nonetheless:

Reaching Acc[h]ord: Resolving Disputes Over Music Downloading

October 29, 2010 9:00 AM - 2:00 PM

Law School | Belson Moot Court Room | 2nd Floor

The Hugh L. Carey Center for Dispute Resolution, together with the Law School's Dispute Resolution Societyand Entertainment, Arts and Sports Law Society, presents:

Reaching Acc[h]ord: Resolving Disputes Over Music Downloading

• Charles S. Nesson | Harvard Law School professor and counsel to Joel Tenenbaum
• Joel Tennenbaum | Boston University student initially found liable for over $600,000 in damages for unauthorized music downloading
• Ray Beckerman | Respected entertainment attorney and blogger on the topic of music downloading
• Jake Walden | Independent recording artist.
• Cathy Constantino | Conflict Management System Design Expert

Click to view larger image

Date
Friday, October 29, 2010

Time
9 a.m. - 2 p.m.

Location
School of Law | Belson Moot Court Room | Second Floor

Fee
$25 entry fee
Free admission for law students with valid Law School ID

Registration
Please register at specialevents@stjohns.edu by Wednesday, October 27, 2010

More Information
Maureen Mulligan
Associate Director of Special Events
(718) 990-1950
mulligam@stjohns.edu

Third Jammie Thomas-Rasset trial: Game on

The third trial of Jammie Thomas-Rasset for downloading and "sharing" songs over the Internet without permission from copyright holders will proceed as scheduled Nov. 2. Today Judge Michael Davis denied the defendant's motion for reconsideration of the court's earlier order reducing the verdict in the second trial on common-law remittitur grounds. Thomas-Rasset had sought to have the court void or reduce the $1.92 million jury award in the second trial on constitutional grounds, which would have permitted an immediate appeal to the Eighth Circuit. But in his brief order today, he concluded that his remittitur order "contain[]ed no manifest errors of law or fact." The third trial will focus only on damages; Thomas-Rasset's liability for willfully infringing 24 songs has already been established.
Order denying motion for reconsideration

Labels, government oppose Thomas-Rasset's attempt to avoid third trial

The record label plaintiffs case have filed their brief opposing Jammie Thomas-Rasset 's last-minute attempt to avoid a third trial in the peer-to-peer copyright case. The labels argue that such a late motion for reconsideration -- the trial, which will involve damages only, is scheduled to start Nov. 2 -- is procedurally improper, and that there is no compelling reason to disturb the court's previous ruling reducing the previous jury's $1.92 million award on common-law remittitur (i.e., non-constitutional) grounds.

The Justice Department, which has intervened in the case in defense of the constitutionality of the statutory damages provision of the Copyright Act, also filed a brief opposing reconsideration, citing the long-standing doctrine that courts should avoid ruling on constitutional issues where possible.

With trial set to begin in less than two weeks, I expect a fairly quick ruling from Judge Michael Davis of the District of Minnesota. I'm told that at a hearing last week Judge Davis expressed serious interest in such a motion for reconsideration, but it's far from certain that he will grant it.

Labels oppose cert. in 'innocent infringer' case

The major record labels have filed their opposition to the defendant's cert. petition in Maverick Recordings v. Harper, arguing that the admitted peer-to-peer user is absolutely barred from asserting an "innocent infringer" defense under 17 U.S.C. § 504(c)(2) because they had properly affixed copyright notices to CDs containing the songs she infringed. See 17 U.S.C. § 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.").

Here's the intro to the labels' brief:

This case involves a straightforward application of 17 U.S.C. § 402(d). Petitioner has never disputed that Respondents placed proper copyright notices on the published sound recordings at issue and that Petitioner had access to these published works. Therefore, as the Fifth Circuit correctly determined, section 402(d) bars Petitioner from asserting a so-called “innocent infringement” defense as a matter of law.

Petitioner’s primary argument for certiorari rests on the false premise that the circuit courts are divided on the legal standard for applying section 402(d). There is, however, no circuit split. The Second Circuit authority upon which Petitioner relies never even considered the application of section 402(d). In addition to the absence of any circuit split, this case provides an ill-suited vehicle for considering the legal standard for applying section 402(d). Petitioner’s argument that a lack of copyright notice on the specific digital recordings she infringed should defeat application of section 402(d) does not square with the plain language of the statute, ignores Petitioner’s admission that she had access to Respondents’ published works carrying the proper copyright notices, and was never raised in the lower courts. For all of these reasons, the Court should deny the Petition.

The Fifth Circuit here and the Seventh Circuit in BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005) came to the the same conclusion on this very point in very similar cases. And the label's brief explains why D.C. Comics, Inc. v. Mini Gift Shop, 912 F.2d 29 (2d Cir. 1990) -- which did not involve sound recordings, the Internet, or indeed 17 U.S.C. Sec. 402(d) -- is not in conflict with Harper and Gonzalez, the defendant's arguments to the contrary notwithstanding.

See my previous posts on this case here and here.
Plaintiffs' Opposition to petition for certiorari in Maverick Recordings v. Whitney Harper

Judge in Thomas-Rasset case may scuttle third trial

The judge in the Jammie Thomas-Rasset case is considering canceling the third trial in this long-running litigation brought by the major record labels against an individual peer-to-peer user.

The parties are preparing for a new trial starting Nov. 2, to focus only on damages, following the court's remittitur of the $1.92 million verdict handed down by a Minneapolis jury in 2009. But Judge Michael Davis indicated at a pre-trial hearing on Tuesday that he will give serious consideration to a defense request to modify his order so that it would instead rest on constitutional grounds. That would bring a degree of finality to the case, at least in the district court, and allow for an immediate appeal by one or both sides. I'm told that at the hearing, Judge Davis actually alluded several times to the movie Groundhog Day, referencing the scenario where he would repeatedly remit jury awards, only to have that remittitur refused by the plaintiffs, necessitating yet another trial, and ad infinitum.

Today the defense filed its brief seeking such reconsideration. It cites to the order issued by Judge Nancy Gertner in the Joel Tenenbaum case, which reduced the jury's award from $675,000 to $67,500 on constitutional grounds. In his original order, Judge Davis declined to reach the constitutional issues, citing United States v. Allen, 406 F.3d 940, 946 (8th Cir. 2005) (“When we are confronted with several possible grounds for deciding a case, any of which would lead to the same result, we choose the narrowest ground in order to avoid unnecessary adjudication of constitutional issues.).” In her order in the Tenenbaum case, Judge Gertner concluded that avoiding the constitutional issues was impossible essentially because of the Groundhog Day problem.

I'm told that the labels' plan to oppose Thomas-Rasset's motion for reconsideration; their response is due Wednesday, Oct. 20.

Defendant's Motion for Reconsideration

Grayson campaign ad apes 'Sopranos' opening; Henley v. DeVore redux?

The campaign of Rep. Alan Grayson (D-FL) has released a clever new ad -- one that closely mimics the opening of The Sopranos, only with Orlando rather than Northern New Jersey as the setting:



I don't think there's much of a copyright issue with the visuals in the Grayson spot; as far as I can tell, there's no copying of actual HBO footage, and I doubt HBO has a copyright in the idea of a montage of urban scenes from a driver's perspective. The much tougher issue for the Grayson campaign is the music, which appears to be a re-recording of the Sopranos theme (a song called "Woke Up This Morning" by British band Alabama 3 (aka A3)), with new lyrics that mock Grayson's opponent Daniel Webster (R). As to the music, the facts appear to be very similar to those in the Henley v. DeVore case, where the defendant also took a well known song and re-recorded it, substituting new lyrics attacking his political opponents. The court in the DeVore case soundly rejected the defendants' fair use argument, largely on the grounds that the campaign's use was satirical (using the work to poke fun at something else) rather than parodic (poking fun at the work itself). See Campbell v. Acuff-Rose Music, Inc., 510 US 569 (1994) (explaining parody/satire distinction).

Here's some background from the Orlando Sentinel.

Copyright battle in Ohio Gov. race over use of clip to expose 'steelworker' as actor

Here's a very interesting copyright battle going on in the Ohio governor's race. As described by EFF's Kurt Opsahl:

A couple of days ago, Congressman John Kasich put out a commercial that featured a man dressed as a steelworker discussing Governor Ted Strickland’s record. It turns out that the steelworker depicted in the commercial wasn't an actual steelworker, but paid actor Chip Redden.

In response, the Ohio Democratic Party promptly published a YouTube video capitalizing on this, illustrating its point with short clips from Redden's acting career. One of the clips came from a film by Arginate Studios, LLC, which then used the DMCA (Digital Millennium Copyright Act) to send a take down demand to YouTube. YouTube removed the video. Under the DMCA, the political video would be unavailable on YouTube for at least 10 days (a significant portion of the time remaining before the election), though the video remains available on Vimeo.

Given the facts as I know them, I'm with EFF on this one. The Ohio Democratic Party's use of clip was strictly non-commercial: to make a political point about Kasich's ad. And the clips they used were very short -- just long enough to demonstrate that the "steelworker" really wasn't. Arginate's action will have the unfortunate effect of keeping the video off YouTube at the height of the campaign. YouTube can re-post the video at any time; yes, it would lose the DMCA safe harbor as to this video, but it doesn't need any safe harbor given that the Ohio Democratic Party's inclusion of the clip is almost certainly a non-infringing fair use. YouTube has taken such a step before; it should do so again.

Update: as of the morning of October 8, the video has been restored to YouTube. I'll tryto find out whether Arginate withdrew its notice, or whether YouTube re-posted it on its own.

Further update: Google Senior Copyright Counsel Fred von Lohmann confirmed to me that YouTube did re-post the video on its own.

CDT releases report on campaign uses of copyrighted material

The Center for Democracy and Technology has released a new report documenting political campaigns' uses of third-party materials, and the copyright battles that sometimes ensue. Readers of this blog will be familiar with many of the incidents described in the report, but the author, CDT Policy Analyst Andrew McDiarmid, also unearths a few I was not aware of. While I might quibble a bit with the emphasis the report places on the notice-and-takedown provisions of the DMCA, I agree with its overall conclusion that too often content owners, particularly news organizations, have sought to enforce their copyrights out of concern for their reputational interests -- a form of damage that is really not cognizable in copyright law. Definitely read the whole thing.

NFL demands Feingold campaign remove clips from ad; Senator quickly complies

The National Football league today demanded that the campaign of Sen. Russ Feingold (D-WI) remove clips of actual NFL footage from a campaign ad. The Feingold campaign quickly complied.

Here's the original ad:


And the edited version: