Tenenbaum counsel asks for comment on draft brief on Oppenheim deposition; the first-ever wikibrief?

The Joel Tenenbaum copyright infringement case is setting all sorts of interesting legal precedent -- just not in the area of copyright law. First there was the order granting permission for a live public webcast of a motion hearing -- apparently the first such webcast ever in federal court. And now we're seeing some precedent set in the brief-drafting process. Harvard Law School Professor Charles Nesson, who, along with a group of students, serves as Tenenbaum's counsel, has posted for public view and comment a draft of a brief regarding Nesson's efforts to depose Matthew Oppenheim, a longtime recording industry litigator. I've never heard of any attorney publicly releasing a draft of a brief before filing it. Such a public editing process (a wikibrief? or "collaborative lawyering"?) raises all sorts of interesting legal ethics issues regarding, at least, confidentiality and potential obligations of (and even liability for) the editors. But I'll leave those fascinating questions to the legal ethics experts and will instead focus on the substance of the draft brief.

First, some background. On Jan. 20, Tenenbaum filed a "Conditional Motion to Compel Deposition of Matthew Oppenheim," seeking to force Oppenheim to sit for a deposition on Jan. 22 -- in the Ames Courtroom at Harvard. Plaintiffs (the major US record labels) filed an opposition to the motion to compel, which included a request for sanctions against "defendant's counsel" (unclear to me whether that includes just Nesson, or his team of law students as well) for what they termed Tenenbaum's "blatant disregard for fundamental court procedure."

Tenenbaum's draft brief is labeled "Reply to Plaintiffs' Motion for Sanctions"; it's more accurately a Reply in Support of Defendant's Conditional Motion to Compel Deposition of Matthew Oppenheim. Like Tenenbaum's appellate brief on the webcast issue, this draft brief is...extremely brief. Less than one page long, in fact. I'm all in favor of brevity, but this draft brief is wholly lacking in substance, in citation to legal authority, and in responses to the arguments made by the labels in their opposition brief. See for yourself:

Publish at Scribd or explore others:

Here is a list of arguments made by the labels in their opposition that Tenenbaum's draft brief completely ignores:

• Defendant failed to follow the Federal Rule of Civil Procedure and District of Massachusetts Local Rule mandating a conference between attorneys before filing a motion.
• There was no subpoena to Oppenheim for a Jan. 22 deposition.
• A subpoena to Oppenheim for a Jan. 20 deposition was invalid under FRCP 45 because: 1) it was not personally served; 2) it lacked witness and mileage fees; 3) the specified deposition location in Massachusetts was improper for a deposition of Oppenheim, a Maryland resident.
• Defendant is not entitled to take discovery because he has not yet filed his disclosures under FRCP 26.
• FRCP 37 requires an award of sanctions in discovery disputes unless the Court finds that Tenenbaum was “substantially justified” in bringing his initial motion.

Maybe Tenenbaum has good answers to these arguments (though I seriously doubt it). But if he does, he omits them from this draft. Instead, he spends 2 of his 4 paragraphs (yes, the entire draft consists of only 4 short paragraphs) responding to an argument that the labels' brief did not even make regarding the potentially privileged nature of Oppenheim's testimony. The labels did not argue that Oppenheim's deposition should not go forward because he has only privileged information to offer; rather, they said, "A conference among the parties is...required to determine whether there exist any non-privileged areas of testimony from Mr. Oppenheim that may be discoverable in this case."

One other thing: I have never litigated in the District of Massachusetts, and don't claim to be familiar with all its practices. That said, I'm not sure Tenenbaum's reply brief is even permitted by its Local Rules. Local Rule 37.1, which governs discovery disputes, speaks of a motion and an opposition -- but no reply. And the general rule on motions, Local Rule 7.1, provides that a reply brief "may be submitted only with leave of court" -- which Tenenbaum does not appear to have sought. (I think the court should permit a reply brief, at least to give Nesson a chance to respond to the request for sanctions.)

I really can't figure out what Nesson is up to here. He, and possibly his student helpers, are facing the very real possibility of being sanctioned for having filed what appears to be a baseless motion to compel Oppenheim's deposition. Yet their draft reply in support of their motion to compel (and opposition to the request for sanctions) makes no relevant legal arguments, cites no cases, and doesn't even begin to explain to the court its version of events. I've seen many pro se briefs that are much, much better than this. But Tenenbaum isn't pro se; he has a Harvard Law School professor representing him! Nesson and his student team are obviously passionate about copyright law and their defense of their client. But they still have to play by the same rules of civil litigation as everyone else. They're smart enough to learn the rules, and they have access to all the research materials they'll ever need. Time to set aside the wikibrief and get old-fashioned: crack open Moore's, log on to Westlaw, and get to drafting.

(Given that we're in uncharted -- and deeply strange -- waters here, I feel compelled to reiterate that I am commenting here simply as a blogger. I have no attorney-client relationship with Tenenbaum or his counsel, and I am not providing them with legal advice. Prof. Nesson acknowledges this here.)

Tenenbaum counsel requests assistance on response to sanctions motion from blogger who blogged that he deserves to be sanctioned

I received the following comment to my post "Tenenbaum legal team: good on Twitter; lacking in legal tactics":

charlie nesson said...

my students and i are at work on a response to the riaa's request for sanctions against me. perhaps we could share the draft with you and get your assessment and suggestions for improvement. we won't be filing it until the first circuit matter resolves, or unless sooner requested by the trial judge.

I responded:

Ben Sheffner said...

If you'd like, you are free to send me a draft, and I will comment on it -- publicly, as a blogger. But to be clear: I will not provide legal advice to Mr. Tenenbaum or form an attorney-client relationship with him.

We are in a whole new world...

Shepard Fairey poster case gets a whole lot more interesting

The Boston Globe reports:

Controversial street artist Shepard Fairey, who has a major exhibition under way at Boston's Institute of Contemporary Art, was arrested by Boston police Friday night on graffiti charges.

Fairey, 38, was arrested at about 9:15 p.m. on his way to guest deejay an event attended by hundreds kicking off his exhibition.

Fairey, who attracted the spotlight during the presidential campaign with his iconic red, white, and blue posters of Barack Obama, was arrested on warrants issued for him on Jan. 24 for damage to property due to graffiti, police said.

Police allege that he tagged locations in the Massachusetts Avenue and Newbury Street area and the railroad trestle by the BU Bridge, said department spokesman Officer James Kenneally.

And no, fair use is not a defense to vandalism.

Selectable Output Control: Yes, it's still good for consumers

Ars Technica reports that the motion picture industry continues to press its arguments to the FCC on the issue of "selectable output control," a form of technical protection for digital transmission of movies whereby content owners could selectively block use of unprotected analog outputs from home entertainment devices, such as cable boxes. The studios want SOC in place before they implement plans to introduce a new feature: HD movies piped into the home, before DVD release, and possibly even when films are still in the theater.

Last year the studios filed a petition with the FCC to lift its current ban on SOC, but, so far at least, the FCC has not yet granted it. Ars points to a letter confirming that execs and lobbyists from Sony Pictures earlier this week met with Acting FCC Chairman Michael Copps and his staff "to talk up (PDF) 'the advantages of expanded consumer choices in the marketplace' which would supposedly come with a waiver on the agency's ban on" SOC.

Techdirt is outraged by this, particularly by the studios' argument that SOC will result in more consumer choice. Let's examine Techdirt's argument (while doing our best to ignore its liberal use of tendentious language ("break your DVR," "totally ridiculous," "jedi mind trick," "politicians are a bit slow," " The MPAA is simply trying to confuse politicians," "yammering on and on").

Techdirt implies that the studios claim they can't (i.e., are physically unable to) implement the new early home HD window without SOC, because there's something "stopping" them from doing so. But that's not what the studios actually said; if you read their petition in context, you will see that they simply said that they won't implement the new services unless they have SOC in place to allay their piracy and business concerns. So when Techdirt says, "There's absolutely nothing stopping the MPAA from offering this "consumer choice" right now," it's correct -- but the studios never claimed anything different. The studios' position in a nutshell is: Sure, as a purely technical matter, we could give everyone early-window HD VOD now. But we think that would be a bad business decision, because of our piracy and other copying concerns. But rather than paraphrasing, let's look at what the MPAA actually said in its petition:

Specifically, the Petitioners are interested in exploring opportunities to provide consumers with the ability to order recently released theatrical, high definition movies directly through their MVPD [multi-channel video programming distributors] (the "Services"). These new Services are exactly the type of ''new business models" that the Commission contemplated when it adopted the encoding rules. While each studio would have its own independent business model developed through private negotiations with existing and potentially new partners, the purpose of this Petition is to remove a general regulatory impediment that prevents implementation of content protection required in the specific case of the Services.

In order to make this extremely high value content available for general in-home viewing at such an early release window, protections are necessary to ensure it is not exposed to unauthorized copying or redistribution. Enabling SOC in this instance will provide the Petitioners with vital protections by allowing their high value content to flow only over secure and protected digital outputs. Absent sufficient protections, the Petitioners' theatrical movies are simply too valuable in this early distribution window to expose them to uninhibited copying or redistribution. Expedited consideration of this waiver request is necessary in order for the Petitioners to move forward with their independent discussions with MVPDs regarding introduction ofthe Services.

When the petition uses language like "prevents" and "necessary," it is simply saying that, it the studios' judgment, their concerns about "unauthorized copying or redistribution" have led them to determine that they will not begin the new services without SOC -- not that anything actually physically prevents them from doing so. It's clear what the MPAA is saying: its members want to implement the new services, but, after evaluating the piracy and business issues involved, have decided that they aren't willing to do so unless they have SOC. No "jedi mind tricks" here.

Techdirt mocks the MPAA's argument that SOC would result in additional consumer choice. But the studios' argument is perfectly reasonable. As I previously explained:

Today the studios don't offer pre-DVD hi-def VOD. If SOC comes to be, they will, and consumers will have an additional choice in home-movie viewing. If the copyleft succeeds in continuing to block SOC, they won't. And how exactly are consumers better off when the government takes steps that result in the studios offering them fewer choices?

Whether SOC opponents like it or not, the studios have made clear that they won't implement the new services without SOC. Thus the way to bring more choice to consumers is to allow the studios to use SOC, and experiment with the new early-window HD VOD service. Maybe SOC and the proposed services will be a complete flop. But we'll never know unless the FCC allows the SOC experiment, which the studios say will give them the confidence to proceed.

One more thing: Techdirt writes:

[SOC is] about giving the MPAA another way to block legitimate watchers from doing perfectly legal time shifting of the content on their TV.

Techdirt cites no law for the proposition that it's "perfectly legal" to time-shift paid VOD content; that that's not surprising, for the simple reason that there are no cases so holding. The Supreme Court's Sony-Betamax decision is often mis-cited as an all-purpose free pass for time-shifting. But it isn't. In fact, the Court was explicit that it was not ruling on the ability to time-shift content that the user specifically pays for (which is what the VOD service at issue in the SOC proceedings would be):

This case involves only the home recording for home use of television programs broadcast free over the airwaves. No issue is raised concerning cable or pay television...

The Sony-Betamax Court also was careful to define "time-shifting" quite narrowly:

the practice of recording a program to view it once at a later time, and thereafter erasing it.

Thus the ability to record high-value paid content on a DVR, watch it multiple times, and retain it indefinitely, is well beyond the scope of existing law on time-shifting. I see no indications that courts today would expand Sony-Betamax to encompass such activities. And there is nothing wrong with copyright owners taking reasonable steps, such as pressing for permission to implement SOC, to inhibit unlicensed copying and further distribution of their most valuable products. Why should the FCC prevent them from even trying?

UPDATE: Paul Sweeting of Content Agenda has an interesting take on the issue, suggesting that falling DVD sales may prod the studios to put in place the early HD VOD service even without SOC:

Given than more than half of studios' profits from movies come from DVD, the rapid erosion of that revenue stream is potentially catastrophic. Disney and Fox-parent News Corp. this week each reported huge earnings hits in their filmed entertainment divisions due to plunging DVD sales. Time Warner saw an increase in film earnings but still experienced a decline in DVD revenue.

Would an early, premium priced, high-def VOD window get people watching movies at home again and replace some of those DVD losses? Hard to say. But it's also hard to point to any other existing or potential distribution channel where they're likely to replace those dollars in the near term.

The question for the studios is whether the need to create a new revenue stream will be keen enough to risk doing it without the protection of SOC.

The curious case of the 44-minute 'clip'

Techdirt reports on a new copyright kerfuffle in England, where a blog called "Bad Science" (it's pro-good-science) apparently received a letter from a radio station called LBC ("London's Biggest Conversation"), demanding that the blog remove a 44-minute portion of the station's broadcast that it had posted. The original Bad Science post contained a small bit of commentary and apparently the entirety of a 44-minute LBC discussion of the alleged dangers of certain childhood vaccinations. ("Bad Science" believes that the vaccine critics are promoting...bad science, and from what I know, I agree.)

I am no expert on British "fair dealing" (that's their version of fair use) doctrine, and so I won't hazard a guess as to whether Bad Science violated LBC's rights under applicable law; it's possible Bad Science's actions were entirely permissible (Bad Science says it posted the whole thing to avoid accusations that it was "quoting [the LBC host] out of context, cherrypicking only the ridiculous moments from an otherwise sensible, proportionate and responsible piece of public rhetoric," which may or may not be a winning argument under British law). And I have serious doubts whether LBC's tactics here were smart, or will be effective (Bad Science removed its own posting of the audio after getting LBC's lawyer letter, but others reposted the same).

But let's get one thing straight: 44 minutes is not -- as both Bad Science and Techdirt describe it -- a "clip." A few seconds, maybe a few minutes: that's a "clip." To use the word "clip" here seriously distorts what happened, implying that this a classic, indisputable case of fair use, such as the quoting of a short passage from a book in a review. Again, I don't claim to know British law, but at least in the US, posting an entire piece of journalism -- even when the purpose is to spark discussion -- is usually not a smart legal move. Just ask Free Republic.

Panel Discussion on IP issues in the presidential campaign -- Feb. 19 at 6pm in Los Angeles

Those in the LA area may be interested in attending this panel discussion on IP issues in the 2008 presidential campaign, sponsored by the Los Angeles County Bar Association's Intellectual Property and Entertainment Law Section. (I was an attorney on Sen. McCain's campaign and am one of the panelists.) You may register by following the link below.


http://onlinestore.lacba.org/calendar/index.cfm?fuseaction=ViewCalendarEvent&CalendarEventID=2554

Intellectual Property & The Campaign: A View From The Trenches

02/19/2009

Presented by: Intellectual Property & Entertainment Law Section (IPEL)

Program Information:

Reception and Panel Discussion

(cocktails & hors d'oeuvres precedes program)

This program will feature the role of attorneys in vetting copyright and other intellectual property matters that arise on the campaign trail.

THE ESTEEMED PANEL WILL DISCUSS:

• The role of campaign attorneys in vetting intellectual property issues.

• The use of copyrighted material in campaign ads and videos, and the fair use issues it raises.

• The use (and abuse) of the DMCA takedown process, and the McCain campaign's response to improper takedowns.

• Analysis of complaints by musicians about their songs being used at McCain rallies. Is getting an ASCAP/BMI license enough? Do musicians have a right of publicity or Lanham Act claim if a song they perform is used without their permission?

• Right of publicity issues. Could Paris Hilton and Britney Spears have sued John McCain for putting them in ads? What about the McCain-Obama Dance Off video?

• The Jackson Browne v. McCain lawsuit arising from the use of "Running On Empty" in a video by the Ohio Republican Party, which involves anti-SLAPP and 12(b)(6) fair use motions that Lincoln recently filed.

Speaker Panel:

Lincoln Bandlow, a partner with Lathrop & Gage LLP in Century City, California, where he practices sophisticated business litigation and specializes in litigating Media, First Amendment, Intellectual Property and other entertainment-related matters. He has represented clients in the motion picture, television, publishing, broadcasting and advertising fields, as well as several of the principal underwriters for the entertainment industry. Lincoln has litigated and tried cases in both state and federal court in matters involving claims for copyright infringement, defamation, right of publicity, right of privacy, trademark infringement and related claims for clients such as CBS, NBC, Fox, A&E Networks, Steven Bochco, EMI, Virgin Records, Hawaiian Airlines and Hallmark Cards.

Elena Muravina, the CEO of Mini Movie Channel (MMC), a media company that webcasts on a broadband channel at minimovie.com. MMC specializes in short film content. It offers a forum for films produced by independent filmmakers, and also produces original content, including political satire. Elena also continues to provide legal services to clients, primarily in the entertainment and intellectual property areas, through her affiliation with the entertainment law firm of Rosenfeld, Meyer & Susman, LLP where she serves Of Counsel.

Ben Sheffner, a copyright/First Amendment/media/entertainment attorney and former journalist. Ben has worked as Senior Counsel, Content Protection Litigation at Twentieth Century Fox, as Litigation Counsel in the NBC Universal Television Group, and as an associate in the Century City office of O'Melveny & Myers LLP. From July-November 2008, Ben served as Special Counsel on Senator John McCain's presidential campaign where, among other responsibilities, he handled the campaign's copyright, trademark, and other intellectual property issues. From 2006-2008, Ben served as Co-Chair of the Media Law Resource Center's California Chapter. He now blogs at http://copyrightsandcampaigns.blogspot.com/.

Program Chairs:

Allison Roher, White O'Connor Fink & Brenner LLP

Shahrokh Sheik, Independent Film & Television Alliance

Location:
Luxe Hotel Bel Air, 11461 Sunset Blvd., Los Angeles

Parking:
Valet Parking only $8

Times:
Registration: 6:00 PM
Meal/Reception: 6:00 PM
Program: 7:00 PM - 8:30 PM

Portfolio on Obama DOJ picks and 'fundamental attribution error'

Julian Sanchez has a piece at Portfolio on the Obama DOJ picks, which largely tracks my thoughts on the relative insignificance of the IP backgrounds of appointees like Tom Perrelli, Don Verrilli, and Neil MacBride to what they will actually do at the Department. Writes Sanchez:

So how much cause for genuine concern [by copyleft activists] is there? Worries about Ogden and Kris, at the very least, border on the ludicrous. Though all of the appointees would be expected to recuse themselves from involvement in cases or decisions implicating former clients, Kris is an expert on surveillance and intelligence law who would rarely have occasion to influence IP issues in any event. Ogden, meanwhile, would simply have been tasked with defending the government's position in whatever cases he was assigned....

For the same reason—and because it's psychologically difficult to consistently defend the same position without at least somewhat internalizing it—concerns about Verrilli, MacBride, and Perrelli may be marginally more justifiable. Still, the obligation of recusal makes them unlikely to have a prominent role in such IP litigation as the Justice Department sees fit to intervene in. Moreover, the Justice Department already successfully fought off an attempt to deputize government lawyers as copyright cops. If there's a genuine worry about someone like Perrelli, it's not that he'd turn the power of the state on Kazaa users, but that he might not be inclined to complain as loudly the next time such a proposal is mooted.

I agree with that. Sanchez, however, loses me in the final paragraph of his piece:

[T]he angst over the recent picks seems, above all, like an instance of what social psychologists call the "fundamental attribution error": The tendency to weight intrinsic character or disposition too heavily, and social circumstances too lightly, when explaining observed behavior. We know, for instance, that when test subjects are asked to guess the opinion of an essay's author, they will assume that the author agrees with his essay even if they are told the author was instructed to defend that position. Perhaps these appointees took the cases they did because of a deep commitment to an expansive view of copyright. But isn't it more parsimonious to observe that the RIAA pays well?

Sanchez may be right that the appointees at issue didn't start out as anti-piracy crusaders or possessing "a deep commitment to an expansive view of copyright." But I've worked with probably well over 100 copyright litigators at law firms and in-house at entertainment companies, and I've never met a one who didn't believe that he or she was doing the right thing. Hard as it may be for those on the copyleft to accept, entertainment industry attorneys believe deeply in what they do.

And the notion that attorneys do anti-piracy work because it "pays well" will surely raise a chuckle at studios, networks, record labels, and their law firms. While I'm not saying it pays badly, let's just say that there are a lot more attorneys willing to do this kind of work at a discount than there are entertainment companies willing to pay a premium. Attorneys work on entertainment industry copyright cases for lots of reasons: it's interesting, fun, cutting-edge, high-profile, and because they believe fighting piracy is important from an economic, legal, cultural, artistic, and, yes, moral point of view. "Pays well" is way, way, way, down the list. If an attorney is simply after the most lucrative type of work, there are much, much better options.

Shepard Fairey Obama poster: lots of questions, few easy answers

I have avoided blogging about the Shepard Fairey poster controversy for several reasons, chief among them that the facts about who owns what copyrights have been so unclear. Well, they're still unclear, but at least now we know what the various parties say about who owns what. Here's a recap of what we know:

A professional photographer named Mannie Garcia shot a photo of candidate Obama. Garcia says he thus owns the copyright in the photo. The AP disagrees; it says:

Mannie Garcia was clearly employed by AP when he took the photograph, and the photograph is clearly the property of The Associated Press.

If the AP is correct about Garcia's employment status (and I have no idea if it's right or wrong), then AP is indeed the copyright owner, under the work for hire doctrine.

Then, artist Fairey took the Garcia photo and made it into the now famous poster.

One question is whether the photo itself is protected by copyright. I think the answer is clearly "yes"; photographs have copyrightable since President Abraham Lincoln signed a law so providing. See Act of March 3, 1865, 13 Stat. 540; see also Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884); Ets-Hokin v. SKYY Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000).

Next, a tougher question: did Fairey copy the protectible elements of the photograph, or merely the unprotectible underlying facts/reality (i.e., the fact that Obama was sitting at a certain place with his head cocked at a certain angle at the moment Garcia pushed the button on his camera)? I think this is a very hard issue, and I'm not prepared to hazard an opinion yet. A follow-on opinion to the Ets-Hokin decision noted above suggests that in such cases, the copyright in the photograph may be "thin," and that anything other than "virtually identical copying" (which is not what Fairey did) is permitted.

Finally, let's assume that Fairey did copy (i.e., make a derivative work of protectable elements). The question will then become whether he has a valid fair use defense. To run through the most relevant factors: I think Fairey's work is transformative, which helps him. But at least in certain respects it's very, very commercial (posters for $45! t-shirts $25! stickers 50 cents! signed prints $500!), to which a court could very well say, "Mr. Fairey, please take out your checkbook." Fairey appears to have used a large portion of the photo, and this appears to be a use that the AP (assuming it is the copyright owner) would normally charge for, and thus the use would deprive the AP of a license fee that it is entitled to -- which undermines a fair use defense. Carolyn Wright's excellent Photo Attorney blog weighs the factors and concludes that Fairey's use was probably not fair. Predictions in this area are tough, but I tend to agree with Wright. How much would I bet on the ultimate outcome? About the price of a Fairey Obama sticker.

Fairey is represented by Anthony Falzone of Stanford's Fair Use Project, who says that he's been in talks with the AP to resolve the matter. Falzone is a passionate fair use advocate and, from what I know, a skilled attorney, but that doesn't necessarily mean he always prevails; he came out the losing side of the Harry Potter Lexicon decision (on the winning side was my former employer).

Who owns the copyright in the photo is crucial here. If it's Garcia, Fairey probably doesn't have much to worry about, as he says he doesn't mind the poster; if it's the AP, litigation may ensue. This is a fascinating case, and I have no confidence at all in predicting how it will come out. I'll be watching.

(Informative interview with Garcia here. And lots of very interesting coverage and commentary from the Boston Globe's Dan Wasserman here and here.)

A little perspective on Obama's Department of Justice appointments

I've had a lot of fun hyping the fact that President Obama's Department of Justice will include such a large contingent of attorneys who have litigated anti-piracy and other copyright cases for the entertainment industry. Much my delight flows from the irony that Prof. Larry Lessig, king of the copyleft and an articulate opponent of the entertainment industry's copyright policies, was an early and vocal supporter of candidate Obama; the Obama campaign even featured Lessig's words of praise when it announced its technology platform. And Lessig said he backed Obama over Hillary Clinton in the primary precisely because (among other reasons) he didn't like her views on copyright:

You can almost see the kind of tiny speak that was battered around inside [Clinton campaign] HQ. "Calling for free debates might be seen as opposing copyright." "It might weaken our support among IP lawyers and Hollywood." "What would Disney think?" Better to say nothing about the issue. Better to let it simply go away.

(I actually agree with Lessig on the debates issue he's referring to, but that's another story.) So I think there was at least some reason to believe that Obama would align himself with the copyleft once he entered office.

But with all that said, let's keep this all in perspective.

First, there is no indication whatsoever that Tom Perrelli, Don Verrilli, Neil MacBride or the others were selected because of their views or experience on copyright issues. Rather, they were selected because they are smart, effective, experienced attorneys with the right political ties. They all have extensive experience in areas other than copyright, and those non-copyright experiences, I suspect, had a lot more to do with their appointments than their anti-piracy work.

Second, the Department of Justice has virtually nothing to do with civil copyright litigation, which is almost almost always fought between private parties, with the DOJ paying no attention at all. On very rare occasion, DOJ will weigh in with an amicus brief or a recommendation on a cert petition on a copyright issue, but I'm confident that the appointees I've been discussing will spend a minuscule portion of their time on such issues (if at all), and will be mindful of the ethics rules that govern DOJ employees with regard to their previous work in private practice. Thus, CNET's concerns about conflict issues are probably overblown. A Washington attorney familiar with how the DOJ operates emailed C&C to elaborate:

Verilli is essentially going to be a high-ranking aide to the Deputy Attorney General. I expect that the DOJ can get along just fine without him on [pending copyright cases involving his former clients]. Although CNET thinks that these cases are the most important thing in the world, DOJ has other fish to fry -- like, say, Guantanamo. Copyright issues can and will be handled by career line attorneys; the Deputy Assistant Attorney General who runs the relevant section; and the Assistant Attorney General in charge of the Civil Division, among other people. If it's a really big deal, senior management will get involved as necessary. But the idea that the top leadership of the department is sitting around worrying about every little piece of litigation is just silly. And even sillier is the idea that the DAG's office, even if they were to get involved in this, would be unable to function without one person.

It is true that DOJ prosecutes criminal copyright infringement cases. But ask yourself when the last truly controversial criminal infringement case occurred. The fact is, criminal copyright cases are virtually all about blatant cases of commercial infringement (e.g., a factory stamping out pirated DVDs and selling them), not about interesting and controversial issues involving secondary liability or fair use. (See the US Attorneys' Manual for how DOJ thinks about criminal copyright infringement.) As the above emailer adds:

If the conflict concern is criminal enforcement, then these guys have even less to do with it. Perrelli oversees the civil components (which is where Hauck will be), and Verrilli is going to be handling civil issues for the DAG. That cuts out all of these folks other than Ogden and MacBride.

Don't get me wrong; I'm thrilled to have first-rate copyright lawyers in the top ranks of Justice. But I am under no illusion that they will be spending much of their time on copyright issues, or that the Obama Admistration's IP policies will differ from the Bush Administration's IP policies in any major way. The fact is that administrations of both parties have been admirably supportive of copyright owners and their legitimate efforts to enforce their rights.

Dick Armey lobbies for RIAA's 'big enchilada' (or 'music tax,' if you prefer)

National Journal's Tech Daily Dose reports that former House Majority Leader Dick Armey has signed on to lobby for an RIAA-backed effort to extend copyright's public performance right to sound recordings broadcast on terrestrial radio stations -- an effort that the labels' trade association has termed its "big enchilada" for 2009. Armey -- now a "Senior Policy Advisor" (i.e., big-time lobbyist) with DLA Piper -- is technically working on behalf of the Music FIRST Coalition, which includes the RIAA and other interested recording industry groups.

Performance rights legislation has already been introduced this year in the House and Senate, with bipartisan sponsors including Sens. Patrick Leahy (D-VT), Orrin Hatch (R-UT), Dianne Feinstein (D-CA), Bob Corker (R-TN), Barbara Boxer (D-CA) and Reps. John Conyers (D-MI), Darrell Issa (R-CA), Howard Berman (D-CA), Marsha Blackburn (R-TN), and John Shaddegg (R-AZ). (Leahy press release and legislative analysis here.)

Of course, the radio stations that would have to pay a new set of royalties (they already pay one to music publishers) will not go down without a fierce fight. Their own trade association -- the National Association of Broadcasters -- has released a statement and a letter to House Speaker Nancy Pelosi (D-CA) attacking the performance rights bill as a "recording industry bailout" and a "music tax."

Dick Armey shilling for rock stars and lobbying for a new "tax"? I thought I'd never live to see the day...

(UPDATE: I should say that, whatever one thinks of the merits of the performance rights legislation, I don't think it's fair to call it a "tax," which is money paid to the government. The bill would simply expand the scope of copyright owners' exclusive rights, enabling them to demand a license fee for certain uses that, as of today, require no license. But no money would be paid to the government.)

CNET: 'Obama DOJ pick: RIAA lawyer who killed Grokster'

CNET's Declan McCullagh has a good piece on the appointment of Jenner & Block partner Don Verrilli as Associate Deputy Attorney General, focusing on Verrilli's representation of record labels in copyright suits, including the Grokster litigation. (McCullagh apparently did not get the message that Verrilli failed to "win.") McCullagh highlights that Verrilli may have a few conflict issues to navigate:

One reason why [the Jammie Thomas] case is especially relevant to Verrilli's new job is that the Justice Department intervened in the Thomas case on behalf of the RIAA.

That has already caused some tech lobbyists to wonder privately about whether or not Verrilli will recuse himself from matters that affect their former clients. Another example of a relevant case involves the Supreme Court asking the Justice Department for input on a case involving Cablevision--another lawsuit that Verrilli was part of on behalf of copyright holders.

McCullagh also refects on what this appointment (and those of other anti-piracy attorneys) says about President Obama:

During the campaign, when CNET News asked Obama for his views on copyright, he replied: "As policymakers, we are in a constant process of examining our laws to ensure that the protections we place on intellectual property are sufficient to encourage invention without hindering innovation that builds on previous work or unfairly limiting consumers from using the goods they purchase in a way that is fair to creators."

That was, unfortunately, rather vague. Now it's a bit more clear where he stands.

But remember: there's still one more big test.

NY Times: 'Digital Pirates Winning Battle With Studios'

The NY Times has a rather depressing report on film and TV piracy, focusing on the rise of rogue YouTube wannabes like SuperNova Tube ("We work WITH uploaders, not against them.") and the "link farms" (aka "leeching" or "linking" sites) that provide easy access to the content stored there. Nothing much new here for those who have toiled in the anti-piracy fields for the last few years, but the article is interesting and informative, and has some good color.

The article also provides some much-needed perspective to the web-video debate, where nearly all the attention (yes, including some from me) seems to be focused on the relatively small number of questionable or downright bogus DMCA notices that copyright owners issue from time to time. Don't get me wrong: the problem of bad takedowns is real (I've been on the receiving end myself), and I'm all in favor of exploring ways to avoid them. But I still believe that the problem of web video piracy dwarfs the problems related to overzealous efforts to fight web video piracy. Any "solution" to the bogus takedown problem must acknowledge the vast infringement problem, and not unduly interfere with copyright owners' efforts to combat it.

BREAKING: Plaintiffs didn't 'win' Grokster Supreme Court case

Reacting to the news of Jenner & Block partner Don Verrilli's move to DOJ, the Excess Copyright blog described the appellate specialist as follows:

Donald Verrilli, of Jenner and Block, who fought and won the Grokster case for the music industry in the US Supreme Court along with many other important caess, has been named as associate deputy attorney general.

Accurate and unobjectionable, no? Well, not to Ray Beckerman at Recording Industry vs. The People! Writes Beckerman, an attorney and vehement industry critic:

I take exception to the statement that Verrilli "won" the Supreme Court Grokster case; the Grokster decision (a) set the bar very high for secondary copyright infringement, and (b) merely denied summary judgment to the defendant, but did not award victory to the plaintiffs. Thereafter Grokster settled, and Streamcast lost in the lower court.

You read that correctly: Verrilli didn't actually "win" in the Supreme Court. Hmm. I remember things a bit differently. Let's go to the .pdfs:

A large group of copyright owners sued Grokster and a company called StreamCast Networks.

The District Court granted summary judgment to defendants.

The Ninth Circuit affirmed the grant of summary judgment to defendants.

Defendants hailed their "landmark win." Plaintiffs were sullen.

The Supreme Court took the case, reversed the grant of summary judgment 9-0, and articulated a new standard for secondary copyright liability based on inducement of infringement -- a standard very favorable to copyright owners.

Plaintiffs were over the moon. Defendants weren't.

Grokster settled with plaintiffs, reportedly agreeing to pay $50 million and shut down its service.

The District Court issued an injunction in favor of plaintiffs and against StreamCast.

So who "won" in the Supreme Court? Are we seriously even having this discussion?

(Disclosure: I represented several of the plaintiffs in the Grokster litigation while an associate at O'Melveny & Myers.)

While we await the NY Supreme Court's 'skank' decision...

In The Know: Are Reality Shows Setting Unrealistic Standards For Skanks?

h/t "John Dwyer's Credibility"

Three more Jenner copyright litigators to DOJ; who will be left to litigate for the labels?

Wow -- a whole troika of top entertainment industry copyright litigators from Jenner & Block is headed to the Obama Justice Department.

Don Verrilli -- who most famously argued and won (9-0) the Grokster case for the music and movie industry plaintiffs -- will be Associate Deputy Attorney General, the Blog of Legal Times reports. Last August, Verrilli -- Co-Chair of Jenner's Appellate and Supreme Court Practice -- argued on behalf of the record label plaintiffs to a Federal District Court in Minnesota that the $222,000 verdict against accused p2p infringer Jammie Thomas should be upheld. The court, however, rejected Verrilli's arguments, ruling that Eighth Circuit precedent barred the "making available" theory on which it had instructed the jury.

Also headed to DOJ is Jenner partner Brian Hauck, who will be Counsel to the Associate Attorney General. Hauck worked alongside Verrilli on the Grokster appeal. And Jenner associate Ginger Anders will be an assistant to the Solicitor General. Anders has also represented entertainment companies and other major copyright owners in copyright litigation; she worked on an amicus brief in the Cablevision case for a coalition that included the RIAA.

So let's recount: the Obama DOJ will include, in addition to Perrelli, Hauck, and Anders:

• Tom Perrelli, a top music-industry litigator, also from Jenner
  
• David Ogden, whose previous Justice Department experience included defending the constitutionality of the Sonny Bono Copyright Term Extension Act
• David Kris, a high-ranking Time-Warner attorney
• Neil MacBride, a top Business Software Alliance anti-piracy attorney
  

Long ago, I asked when Obama's appointment of copyright-friendly attorneys to his administration would make the copyleft's collective head explode. The time may be drawing near...

Scalia's weak argument against cameras in the courtroom

The excellent Blog of Legal Times has a funny post about a Florida student who dared challenge Supreme Court Justice Antonin Scalia at a public event about his opposition to cameras in the Court chamber:

So what did Sarah Jeck ask that caused the volatile justice to erupt? According to her own notes and this account in today's Sun-Sentinel, Jeck asked whether the rationale for Scalia's well-known opposition to cameras in the Supreme Court was "vitiated" by the facts that the Court allows public visitors to view arguments and releases full argument transcripts to the public, and that justices go out on book tours.

According to the BLT, Scalia first responded, "That's a nasty, impolite question," and refused to answer. But he later relented, sort of:

After Scalia made his comment to Jeck, he took several written questions and then circled back to Jeck's query, according to this story in the Palm Beach Post. Scalia said he originally supported the idea of camera access in the courts, but came to oppose it because the inevitable "30-second takeouts" would not give a true picture of what is going on. "Why should I be a party to the miseducation of the American people?"

Scalia is a very smart man, but I find this particular anti-camera argument to be exceedingly weak, whether made by a Supreme Court justice or recording industry attorneys. If it's so dangerous to allow "30-second takeouts" to be shown, why allow newspaper reporters in the courtroom? After all, they don't reprint entire oral arguments verbatim; rather, they pick and choose snippets for their articles that we call "quotations" -- which are the print version of "takeouts." Many of them can even be read aloud in under 30 seconds.

No doubt quotations or "takeouts" can "miseducate." But, as one of Scalia's predecessors once observed: "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence." Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).

Latest sign of the e-discovery apocalypse

We're all used to sports stars endorsing soft drinks, cars, or breakfast cereals. But I just saw what I suspect is a first: a sports star flacking for an e-discovery vendor. For the uninitiated, e-discovery is the process whereby parties retrieve and exchange electronically-stored information ("ESI" to pros) in litigation. Given the huge volume of email and other electronically stored documents that corporations generate today, e-discovery can be an enormously complex and expensive process. And a scary one, too: every attorney who defends big corporations lives in mortal fear that his or her case will be sunk by revelations that his client erased -- even unintentionally -- ESI that the law requires to be saved and produced to the other side. (Yes, the law has protections for those who make innocent mistakes, but the fear remains.)A huge industry of consultants and other vendors has arisen in recent years to handle massive e-discovery jobs, and I guess we shouldn't be too surprised that they are acting just like every other industry, seeking out popular sports figures to make their case. Thus I just saw an ad on CNBC for major e-discovery vendor FTI Consulting, Inc., featuring Irish golf champ Pádraig Harrington hawking e-discovery services, comparing his 2008 British Open win to...well, e-discovery, through some vague metaphor about "game-changing." (Sorry, I couldn't find the video online.) A banner at the bottom helpfully directs readers to BeReadyBeRight.com. I guess Michael Phelps must have been unavailable...

Tenenbaum legal team: good on Twitter; lacking in legal tactics

Ars Technica has an interesting article about the Harvard Law students helping to defend accused p2p infringer Joel Tenenbaum. The article includes a lengthy discussion of the team's PR efforts, led by student Debbie Rosenbaum -- who previously worked as communications consultant -- and concludes that "she's doing a shockingly effective job." Whether that's true is hard to judge. I'm admittedly not the best person to ask, but I doubt the team's Twitter feed or even its spiffy web site (which is actually lacking many crucial litigation documents, despite its claim to be a "repository of all of the court filings associated with the...case" (my emphasis)) will really convince many who aren't already true believers.

But I think the focus on the PR campaign -- rather than about how the team, and its leader, Prof. Charles Nesson, are actually litigating the case -- is telling. Rosenbaum is quoted making an obligatory nod to substance:

Public relations won't make the legal arguments any sharper, and Rosenbaum knows that the group can't afford to get caught up in a media circus and neglect the case at hand. "Defending Joel in court is paramount," she says. "We never lose sight of that."

But I'm afraid that the facts don't bear out Rosenbaum's claim. Put aside for a moment the merits of the team's counterclaims, which the article briefly mentions. (For the record, I think that the arguments about excessive statutory damages are wrong under current law, and the claim that "these are essentially criminal cases and Congress has unconstitutionally delegated prosecutorial power to a 'private police force' (the music business)" is patently frivolous.) Rather, let's focus on how Nesson and his team have actually litigated the case. In the 4 1/2 months since Nesson took over, the following has occurred:

1) The plaintiffs took Tenenbaum's deposition, during which Nesson made completely meritless privilege objections and Tenenbaum himself put in such a poor performance that even one of his defenders called it "painful."

2) Nesson noticed the deposition of recording industry litigation attorney Matt Oppenheim, setting the location as a law school auditorium -- a sleazy stunt that no real litigator would pull. And he appears to have completely flubbed the deposition notice procedures, setting himself up as a legitimate target for a sanctions motion.

3) Tenenbaum's team filed an appellate brief on the webcast issue that is, to be blunt, worthless. It contains only about a page and a half of actual argument, and it doesn't cite a single case. I don't know if Harvard gives grades for moot court; I do know that if they do, and students turned in a brief like the one they wrote for the First Circuit, they would fail. That they actually filed it in the First Circuit is shocking; I suspect that the judges will not be amused.

Law professors and their students can be great litigators; if they're great enough, Hollywood can even come calling. But a cool Twitter feed and a nice web site can't compensate for lousy litigation tactics of the type Tenenbaum's team has displayed.

CLARIFICATION: an earlier version of this post said that the Ars Techica article "focuses on the team's PR efforts." While the article does include extensive discussion of this topic, my characterization was based on my following a link only to page 3 of the article; I didn't realize there was a page 1 and 2 that focused on other aspects of the case. I've fixed this in the text and the link to the article. My apologies to Ars.

EFF looking for victims of 'YouTube's January Fair Use Massacre'; seeks plaintiffs for web video fight

EFF Senior Staff Attorney Fred von Lohmann had a very interesting post today on what he calls "YouTube's January Fair Use Massacre" -- and what others might call copyright owners' efforts to enforce their rights on the web. According to von Lohmann, things have gotten "much worse" for YouTube posters over the past few weeks, for 2 reasons:

First, it appears that more and more copyright owners are using YouTube's automated copyright filtering system (known as the Content ID system), which tests all videos looking for a "match" with "fingerprints" provided by copyright owners.

Second, thanks to a recent spat between YouTube and Warner Music Group, YouTube's Content ID tool is now being used to censor lots and lots of videos (previously, Warner just silently shared in the advertising revenue for the videos that included a "match" to its music).

While I reserve the word "censor" for instances where the government does the silencing, I think von Lohmann otherwise accurately describes what's happening. So what does he propose to do about it?

First, YouTube should fix the Content ID system. Now. The system should not remove videos unless there is a match between the video and audio tracks of a submitted fingerprint. When we made this suggestion in October 2007, YouTube assured us that they were working on improving the tool. Well, it's been more than a year. If YouTube is serious about protecting its users, the time has come to implement this fix. (Some will point out that this implies that record labels and music publishers can never use the Content ID tool to remove videos solely based on what's in the audio track. That's right. I think that adding a soundtrack to your home skateboarding movie is a fair use. If copyright owners feel differently, they can send a formal DMCA takedown notice, and with any luck, we'll see each other in court.)

A few things. What if the music copyright owner submitted only a music fingerprint (i.e., not a whole music video)? Would it not be able to use the audio-based filter to block videos, since there is not "a match between the video and audio tracks of a submitted fingerprint"? Seems to me it should be able to use the filter, especially because of the rising popularity of "music videos" that are nothing more than a static image with the music playing (example here). As I understand von Lohmann's proposed "fix," music copyright owners would not be able to use an automated system to ID and block such "videos," which I think is unwarranted.

As to whether "adding a soundtrack to your home skateboarding movie is a fair use," I tend to disagree with von Lohmann, but I'll be the first to admit that there is no clear precedent covering this precise issue. Moreover, von Lohmann doesn't address the common scenario of homemade YouTube videos that include a scene (or scenes) from a movie or TV show, synched with some other piece of music (which video would likely include 3 separate copyrights: video, sound recording, and musical composition). Does von Lohmann believe those videos are all fair uses? Is it OK to use either automatic audio or video ID systems to block those?

Next, the fun part. EFF to the rescue:

Second, YouTubers, EFF wants to help. If Warner Music Group took down your video, ask yourself if your video is (1) noncommercial (i.e., no commercial advertisements or YouTube Partner videos) and (2) includes substantial original material contributed by you (i.e., no verbatim copies of Warner music videos). If so, and you'd like to counternotice but are afraid of getting sued, we'd like to hear from you. We can't promise to take every case, but neither will we stand by and watch semi-automated takedowns trample fair use.

While he doesn't say it explicitly, it sounds a lot like von Lohmann wants a court test of his "home skateboarding movie" scenario. I can see it happening like this: 1) kid uploads movie of himself skateboarding, synched with professional music; 2) video blocked by content ID system, which catches music; 3) kid disputes block (with EFF's help, though all it takes is filling out a very simple online form); 4) record label files DMCA notice; 5) kid/EFF submits DMCA counternotice; 6) record label refuses to roll over and sues kid, and/or kid/EFF sues under 17 U.S.C. § 512(f), alleging a bogus, bad-faith takedown. And then they duke it out in federal court.

Which would not be the worst thing in the world (easy for a bystander like me to say, I realize). One of the reasons that there is so much uncertainty over fair use on YouTube videos is that litigation over them is so rare. I am not aware of a single lawsuit brought by a copyright owner following submission of a DMCA counternotice on a YouTube video (I will happily amend this post if anyone can identify such a suit). Believe it or not, but copyright owners simply have much bigger fish to fry than kids who put homemade skateboarding videos on YouTube. So no fair use precedent gets made -- and instead we all go to conferences and participate in lively, albeit academic, debates about whether videos like this one qualify as fair uses). A bit of fair use clarity as to YouTube videos would, I believe, be welcomed not just by EFF, but by many copyright owners as well.

Malia and Sasha dolls 'retired'

Ty, Inc. has officially "retired" its "Marvelous Malia" and "Sweet Sasha" dolls after only a few weeks on the job -- and some words of disapproval from the real Malia and Sasha's mom (and advertising law expert). As the Chicago Sun-Times reports:

A Ty spokeswoman declined to comment, but the company's Web site featured pictures of the dolls marked with the word "retired.''

The dolls, which debuted in January, were criticized by Michelle Obama and others for using the names of the two Obama children, Sasha, 7, and Malia, 10.

A company representative first told reporters that the dolls were inspired by the Obama girls after company founder H. Ty Warner saw the daughters and thought they were "cute.'' The company later backed off that storyline, saying that the monikers of the African-American dolls -- Sweet Sasha and Marvelous Malia -- were chosen because they "are beautiful names.''

Well, one down; many more to go.

More to drive the copyleft crazy

National Journal's Tech Daily Dose reports that current FTC Commissioner Jon Leibowitz is a "leading contender" for the chairman's job. Immediately before being appointed to the FTC in 2004 by then-President Bush, Leibowitz served as Vice President for Congressional Affairs (i.e., a lobbyist) at the Motion Picture Association of America. Leibowitz was previously Democratic Counsel for the Senate Judiciary Committee's Antitrust Subcommittee and Staff Director for the Subcommittee on Terrorism and Technology, as well as Chief Counsel to Sens. Herb Kohl (D-WI) and Paul Simon (D-IL).

Words of wisdom from Joel Tenenbaum's counsel

Much more here.

Techdirt misstates RIAA position on lawsuits; shifts on Pariser testimony

Techdirt, the copyleft group blog, seems unwilling to let the facts get in the way of an opportunity to bash the RIAA. Today's example comes in a post on the appointment of Jennifer Pariser as the trade group's new top litigator. Techdirt writes that the news:

is at first interesting given that the RIAA claimed it was giving up on litigation.

But that is false, a classic straw-man. The RIAA never claimed that it was "giving up on litigation" (and Techdirt cites no evidence of such a claim). Rather, as the WSJ article that broke the story made clear, the RIAA simply announced that the record labels were winding down their "mass suits" (it's right in the headline) against individual p2p infringers. The article also specified that the labels were not even completely stopping all such lawsuits; they were "reserving the right to sue people who are particularly heavy file sharers," and said that the RIAA expected the lawsuits not to completely stop, but merely "to decline to a trickle."

Also, the WSJ article said nothing about the record labels' other litigation, i.e., suits where the defendants are not individual accused p2p users. There are several major such suits pending, including litigation against Usenet.com and Limewire, LLC (summary judgment briefs here). The labels have made no announcement that they will stop suing such infringement facilitators and inducers. Which again disproves Techdirt's false statement that "the RIAA claimed it was giving up on litigation."

Techdirt also cites Pariser's testimony at the 2007 Jammie Thomas trial in Minnesota and claims that "she was caught outright lying on the stand" because she was "claiming that making a single copy of a song from a CD for personal use is 'stealing.'"(Techdirt's words). (See page 130 of this transcript for the context of Pariser's testimony.) After Pariser's testimony, RIAA President Cary Sherman said,

It turns out that she had misheard the question. She thought that this was a question about illegal downloading when it was actually a question about ripping CDs. That is not the position of Sony BMG. That is not the position of that spokesperson. That is not the position of the industry.

And Techdirt accepted (at least "somewhat") that explanation, saying:

This actually is somewhat believable, as the industry does believe that downloading a single copy is the equivalent of "stealing just one copy," (even if that's questionable in itself).

But now Techdirt says that Pariser was "outright lying" -- which is a far cry from giving a question based on a "misheard" question. Techdirt leaves its abrupt shift unexplained. (And Techdirt falsely states Pariser testified as an "expert" witness at the Thomas trial; actually, she was testifying as a percipient witness, not an expert.)

As long as we're discussing who "lied" at the Thomas trial, let's keep in mind what the jurors themselves thought. From a Wired post-trial story:

During a 45-minute telephone interview, [juror Michael] Hegg said jurors found that Thomas' defense -- that she was the victim of a spoof -- was unbelievable.

"She should have settled out of court for a few thousand dollars," Hegg said. "Spoofing? We're thinking, 'Oh my God, you got to be kidding.' "

"She's a liar," added Hegg, who just returned home following his 14-hour night shift [as a steelworker].

No "mishearing" there.

Captain of sinking ship offers boatbuilding advice

The Boston Globe has a thinly reasoned editorial attacking the recording industry's litigation strategy, and calling for "the industry to shut down its punitive campaign entirely." The digital music strategists on the Globe editorial board seem to think the industry's troubles would never have occurred if only they had bought -- rather than sued -- Napster:

The industry missed an opportunity to turn informal file-sharing into a profit center when it failed to buy Napster, the first of the popular downloading services, when it had a chance in 2000.

No word from the Globe how "the industry" would have been able to generate revenue from this purchase, or how they would have cleared all the rights to the millions of songs available through Napster -- many of which they didn't own or control. (Shawn Fanning never bothered with such trifles.) Nor does the Globe tell us how the labels and publishers were to have navigated the major antitrust obstacles to having "the industry" collectively buy what was then the dominant means of Internet distribution. And what was "the industry" supposed to do if Napster users migrated to some cool new p2p service that had no subscription fees or advertising, or faster transfers, or just featured really bitchin' graphics on its home page? Should "the industry" have bought them too, or would a lawsuit have been OK?

Before the Globe starts dispensing its wisdom on Internet business models to the music industry, I can think of some other problems that need solving, much closer to home.

RIAA hires Pariser as new in-house litigation chief

The RIAA has a new top in-house litigator. The major record labels' trade association today announced that it hired Jennifer Pariser as Senior Vice President of Litigation and Legal Affairs, replacing Ken Doroshow, who left last fall to become General Counsel of the Entertainment Software Association.

Pariser joins the RIAA from Sony BMG, where she served as Senior Vice President & Associate General Counsel, Litigation and Anti-Piracy; before that she was an associate at Patterson, Belknap, Webb & Tyler and Debevoise & Plimpton and clerked for the Hon. Charles Tenney in the United States District Court for the Southern District of New York. Pariser has a B.S. from the Georgetown School of Foreign Service, and a J.D. from NYU.

"I look forward to continuing the excellent work of the RIAA in protecting the rights of its member companies from all forms of piracy," said Pariser in a statement released by the RIAA. “While challenging, this work is essential to the economic viability of the music industry."

While certain aspects of the labels' litigation efforts are winding down, rest assured that there is plenty left to do. Congrats to Ms. Pariser, and good luck.

Record labels file reply in support of anti-webcasting petition in First Circuit

The record label plaintiffs have filed their reply brief in support of their petition for writ of mandamus or prohibition seeking to block the webcast of an upcoming motion hearing in their copyright suit against accused peer-to-peer infringer Joel Tenenbaum. Much of the brief focuses on the District of Massachusetts Local Rule governing electronic media in courtrooms. And the labels seem to have backed off some of their more aggressive (and weakest) claims about the harm that would supposedly befall them if the Feb. 24 motion hearing is webcast; there's no mention of the widely-mocked fear that the "broadcast will be readily subject to editing and manipulation by any reasonably tech-savvy individual."

Publish at Scribd or explore others:

I should add that I am sympathetic with the labels' concern that Tenenbaum's counsel is trying to turn this case into a circus. I just think that the ringmaster's antics -- as well as the substantive copyright issues raised in the case -- should be widely available for public view and comment.

Megan McArdle: 'The madness of crowds'

Wise words from Megan McArdle:

I have a general rule for debates: he who loses his temper, loses. His supporters see him as righteously inflamed by the moronic arguments of the other side. But the rest of the audience sees him as bully with a case too weak to be made without screaming.

I've been pondering recently how this applies to blog discussions. Just as with live debates, losing your temper and fulminating about the many character deficits, general stupidity, and probable misbehavior of the target is perceived by people who already agree with you as the natural reaction to an opponent so morally bankrupt and thoroughly stupid that there is no point in wasting further time actually arguing with them. But how does it play to the rest of the audience?

Remind you of anything?

If Pepsi REALLY had no shame...

Via Marc Ambinder, imagine if Pepsi took its Obama-esqe ad campaign one step further:



(No, this is not an actual Pepsi ad.)

End of the record labels' p2p lawsuits: time to reconsider?

The University of Michigan's student newspaper asked some Wolverines for their reaction to the record labels' recent announcement that they were winding down their litigation campaign against individual peer-to-peer users. The good news is that the litigation did appear to have its intended effect of deterring infringement. The bad news is that at least some are taking the announcement of the end of the lawsuits as an invitation to return to their old, infringing ways:

LSA [College of Literature, Science, and the Arts] sophomore Erin Breisacher said she stopped downloading music illegally after hearing about the possibility of receiving a lawsuit, but now that the RIAA has stopped pursuing lawsuits she “might start downloading again.”

“I think it is going to be a big deal,” LSA junior Amber Clark said. “A lot of people are going to download more, especially college students.”

LSA senior Chad Nihranz, said he thinks more peer-to-peer downloading sites will come out as a result of the dropped lawsuits.

“I figure, if there aren’t as many lawsuits they will come out with more software to allow students to download more,” he said.

People, keep in mind: the litigation spigot can be turned back on as fast as it was shut off.

Note to University of Tampa: copyright law does not require you to saw your students in fifths

A bizarre story from the University of Tampa is making the rounds; apparently some RAs are telling their students that they may only have "3.4" people in a room watching the Super Bowl, lest they run afoul of the Copyright Act's prohibition on unlicensed public performances:

During recent floor meetings, some RAs have been telling their residents that they will not allow more than 3.4 people in a room watching the Super Bowl.

Krystal Schofield, Director of Residence Life, says the topic of copyright law first came up in RA training. RAs were being further educated on copyright laws and how it applied to their jobs, not specifically for the Super Bowl.

"Some RAs were looking for hard facts on how many people could view an event in a room and it still be considered a private showing," she said.

The concern with the NFL's copyright cops descending on a dorm room where 4 people are watching the Super Bowl is absurd on multiple levels. First, as attorney Marc John Randazza of the Legal Satyricon correctly points out, copyright law does not prohibit private performances, and there is no magic number that transforms a private performance into a public one.

In addition, even if some University of Tampa Super Bowl party were to be deemed "public," something called the "homestyle exemption," found at 17 U.S.C. § 110(5)(A), provides additional protection from a copyright suit. The homestyle exemption basically says that it's not copyright infringement for a business to stick a normal TV (the kind you might put in your own home) on the wall, as long as the business doesn't charge a specific fee to watch. Slate had a pretty good "Explainer" on this last Super Bowl; here's another example of the homestyle exemption in practice (actually, an example where a court found that the exemption did not apply).

So, University of Tampa students, put away those chainsaws; no need to cut out .6 of your fourth roommate.