Techdirt: up is down; black is white; speaking out is shutting others up

The low quality of "reporting" by the copyleft will never cease to amaze.

Here's the latest example. On Jan. 22, Digital Media News ran a short item reporting that ASCAP would host a lunch meeting "to discuss a number of top issues." Those issues include:

licensing and rate proceedings in the digital area, the new Congress, and working together to counter the growing prevalence of the "copy left/free culture" pontificators in the public discourse about creators rights.

Sounds exactly like what a group like ASCAP is supposed to do: advocate on behalf of its members. So how does Techdirt -- a copyleft-friendly group blog -- interpret this routine meeting? "ASCAP Working To Shut Up Free Culture Supporters." You got that right: "working together to counter" its ideological adversaries on copyright issues actually constitutes "working to shut [them] up." Of course, nothing in the original DMN story, in my follow-up, or in the lunch invitation itself (which I have read) contains the slightest hint that ASCAP is seeking to shut anyone up. Of course, ASCAP is simply saying that it wants its own voice to be heard in a world where the copyleft dominates the discourse in academia, "public interest" groups, and the blogosphere.

ASCAP deserves kudos for doing more to speak out on copyright issues from copyright owners' and creators' perspective. If the other side "pontificates," they should pontificate right back. (I'm a blogger, and therefore a big fan of pontification from all sides.) And Techdirt should correct their absurdly wrong headline.

One final point: Techdirt's story paints ASCAP -- which represents songwriters, composers, and music publishers -- as a "confused" group of music business neanderthals, fighting off all promising "new business models." Funny, when reputable journalists examine the music publishing business, they come to a quite different conclusion.

UPDATE: lively discussion here, featuring Techdirt's continued insistence that "counter" means "shut up."

Warner Music takes down video on own band's web site; did it have a point?

Mashable carries an amusing little item of the sort that will surely set the copyleft to crowing. Seems that Warner Music Group sent a DMCA takedown notice to YouTube, demanding removal of a Death Cab for Cutie. Only problem was, Death Cab had embedded the video on its own official site:
So WMG looks stupid, doesn't understand the Internet, hates its fans, treats its bands like crap, is trying to kill its own business, yada, yada, yada. Hold on. Before condemning WMG, keep a few things in mind:

1) As I've previously noted, when copyright owners find out that their works are posted on YouTube without authorization, they have no idea where those videos are embedded (other than on the basic YouTube watch page). So when WMG (or its agent) sent a takedown notice, it had no way of knowing that the video was embedded on its own band's site.

2) Though it might seem nuts at first glance that Death Cab can't use "its own" music, it's really not so strange at all. Keep in mind that most songwriters, composers, and recording artists part with "their" works, assigning them to music publishers and record labels, usually in exchange for an advance and a share of future royalties. After such assignment, the song and recording are no longer "theirs." (I don't know Death Cab's particular situation; I'm just describing how things are generally done.) So, its even possible that a band can get sued for infringing "its own" song. (That's what happened to John Fogerty, who sold his song "Run Through the Jungle" to a music publisher -- whose successor later sued Fogerty, claiming that his later song "The Old Man Down the Road" was a rip-off of "Jungle." A jury disagreed with the publisher on the issue of infringement, but legal theory on which the suit was grounded was sound.)

Still sound weird? Think of it this way: say you build a house, live in it for a while, and then sell it. You can't then continue to hang out in the living room; try that, and the new owners will call 911 and sue you for trespass. They will win.

Bottom line: we don't yet know the whole story, and it may well turn out that WMG made a mistake or did something dumb. But before we start heaping invective on the label, keep in mind that Death Cab may not have had the "right" to have the video on its site in the first place.

BREAKING: Twitter might actually be useful

I've for some time been a Twitter-skeptic. The "microblogging" service seemed to embody the worst aspects of "Web 2.0": self-indulgence, narcissism, superficiality, celebration of writing before thinking, and utter lack of a business model. Well, I'm still pretty skeptical (case in point), but I must admit that I've recently found an actual use that goes beyond a way to inform the world that "Ben is moving to a different section of his couch." Namely, I can heartily recommend the "CopyrightLaw" feed compiled (Twitted? Tweeted?) by Professor Michael Scott of Southwestern Law School. Just a few words and a link to an interesting blog post or news article -- no nonsense, and no fluff. Scott has similar feeds for privacy law, Internet law, and issues of interest to law professors. So sign up and enjoy, before everyone figures out you can't run a business without making any money.

Murdoch's next big test: new book by WSJ editor Julia Angwin airs MySpace dirt

When Rupert Murdoch's News Corp. acquired the Wall Street Journal in 2007, journalism goo-goos fretted that the takeover would mean the end of independence for the previously family-owned paper. In response, Murdoch agreed to set up an "autonomous editorial board" to mollify critics -- who proceeded not to be mollified. Some say he's already broken his "independence pact."

Well, looks like Murdoch's promises of independence are about to get another big test. WSJ technology editor and writer Julia Angwin's juicy new book on News Corp.-owned MySpace is about to hit the streets. And, according to Michael Arrington at Tech Crunch, who got his hands on a draft, it does not paint a pretty picture of what goes on behind the scenes at the social-networking giant. The book --Stealing MySpace: The Battle to Control the Most Popular Website in America -- delves deep into what Arrington terms the "shady practices" of MySpace founders Chris DeWolfe and Tom Anderson, everything from allegations of hacking and spamming to age-fibbing and involvement in an "Asian-focused porn site." (UPDATE: Murdoch obviously has no problem with a British-focused porn site, mind you.) As if there were any doubt, Arrington tells us:

It’s clear from the tone of the book that Angwin’s sources are primarily or solely people who’ve left the company, many of whom have a bone to pick with MySpace or parent company News Corp.

Interestingly, Stealing MySpace, set for release March 17, is being published by Bertelsmann's Random House -- not News Corp.'s own HarperCollins.

So, will Murdoch cheer on the success of his WSJ employee as she publicly drags the President and CEO of her corporate cousins at MySpace through the mud? I have no idea. It's a big test.

(Disclosure: I previously worked at News Corp., where I can assure you that Mr. Murdoch neither interfered with my work nor had the slightest clue that I existed.)

View of the world from Massachusetts Avenue

A loyal reader passes along an article from the Harvard Law Record discussing Professor Larry Lessig's move from Stanford to Harvard, and his shift in academic focus from intellectual property to campaign finance. The Record breathlessly announces:

With the reacquisition of Lessig, the hiring spree begun by Dean Elena Kagan '86 has now succeeded in bringing nearly all the United States' foremost experts on internet law to HLS...

"Nearly all"? Really? I suspect there are quite a few reading that sentence in places like Berkeley and Palo Alto and Santa Clara and Los Angeles and New York -- and plenty of other places whose zip code is not 02138 -- who would humbly beg to differ.

Interestingly, the 2008 US News rankings of best law school IP programs (not exactly the same as "internet law," but a reasonable proxy) don't include Harvard at all. According to US News, the top 10 are: Berkeley, Stanford, GW, Columbia, Franklin Pierce, Duke, University of Houston, Santa Clara, BU, and Chicago-Kent.

It's ridiculous that it needs to be said, but sometimes it does need to be said: there are signs of intelligent life beyond Harvard Square. Believe me.

(Headline updated. Props to Saul Steinberg.)

Nina Paley pimps herself out to pay the publishers

Well, I gotta hand it to Nina Paley, the filmmaker whose animated Sita Sings the Blues is sitting in "copyright jail," unable to find distribution, because Paley can't afford to license some music she considers crucial to the film. I've been critical of Paley's views of (actually, contempt for) copyright, and for the way she made her film first, and only then turned to clearing the music. But I must admit her latest scheme to raise money to pay for the necessary synch licenses is pretty ingenious. Paley is selling herself on eBay. Technically, she's only selling a chance to sit next to her at the Feb. 21 Film Independent Spirit Awards in Santa Monica. Bids (none as of yet) start at $1,000; Paley explains the details:

The lucky winner will get to prance down the Red Carpet with me (photographers! paparazzi! none of whom will know who the hell we are because they all want photos of movie stars), eat whatever they serve for lunch, drink the booze that inevitably flows freely and at film events (I personally don't drink, so if you're sober at least you'll have me to talk to), clap politely, and listen to me yak on and on about copyright reform and freedom of speech. Optional: pick me up from my friends' house in Glendale (because I don't drive - I'm a New Yorker!) and enjoy VIP valet parking!

I doubt Paley will raise the $50,000 she says the publishers are demanding for use of their songs. But at least she now seems to recognize that if she wants to use others' music in her film, she has to earn an honest buck, and take out her checkbook. Good for her, and good luck.

(h/t Wired)

Ty, Inc. releases 'Marvelous Malia' and 'Sweet Sasha' dolls; will the First Daughters become First Plaintiffs?

Ty, Inc., maker of the popular Beanie Babies dolls, has come out with a new pair of "TyGirlz" dolls: little black girls named "Marvelous Malia" and "Sweet Sasha." Any resemblance to the new First Daughters is entirely coincidental, insists Ty spokeswoman Tania Lundeen, who is now and will forever be known as the Baghdad Bobbie of plush-toy-manufacturer flacks. Reports the AP:

The Oak Brook-based company chose the dolls' names because "they are beautiful names," not because of any resemblance to President Obama's daughters, said spokeswoman Tania Lundeen.

"There's nothing on the dolls that refers to the Obama girls," Lundeen said. "It would not be fair to say they are exact replications of these girls. They are not."

I suppose they are not "exact replications," of Malia and Sasha Obama, but "nothing on the dolls that refers to the Obama girls"? How about their names?


So could Malia and Sasha sue for violations of their rights of publicity? Well, they wouldn't be the first political figures to run to court over a doll. California Gov. Arnold Schwarzenegger sued the maker of Arnold "bobblehead" dolls, though the case settled before producing any actual politician doll precedent. In contexts outside pure advertising, right of publicity defendants have an array of defenses available to them, including that the allegedly infringing use is "transformative"; where the plaintiff is a political figure, the First Amendment provides additional defenses. For a real-world example of those defenses in action, read the arguments starting at page 27 of this .pdf.

Will Malia and Sasha really sue? I highly doubt it. But it sure would be interesting to watch Ty -- a famously aggressive protector of its own IP -- defending itself against perhaps the two most sympathetic right of publicity plaintiffs on earth.

ASCAP: time to counter 'copy left/free culture pontificators'

ASCAP, the performance rights organization that collects royalties for songwriters, composers, and music publishers, has had it with the "growing prevalence of the 'copy left/free culture' pontificators in the public discourse about creators rights." (So have I! Why do you think I started this blog?) Digital Media News reports that ASCAP President and Chairwoman Marilyn Bergman and CEO John LoFrumento will lunch with a "select group of ASCAP members" on Feb. 3 in Los Angeles to discuss "various advocacy efforts," including plans to counter the copyleft.

Kudos to ASCAP for recognizing the importance of fighting back. For too long, copyright owners have ceded the public debate to their ideological opponents, allowing the copyleftists in academia, interest groups, and the blogosphere to dominate discourse on copyright issues. Copyright owners still enjoy widespread support in Congress, but that won't last as a new cohort of lawyers, judges, legislators, journalists, and voters, heavily influenced by the copyleft, move into positions of power. Efforts like ASCAP's are an important part of ensuring this doesn't happen.

Jackson Browne v. John McCain et al.: fully briefed

The hottest battle today in the world of copyrights and campaigns is the lawsuit brought by singer/songwriter Jackson Browne over the inclusion of a portion of his song "Running on Empty" in a YouTube video produced last summer by the Ohio Republican Party. Browne sued John McCain, the ORP, and the Republican National Committee, alleging copyright infringement, and as well as violations of Browne's rights under the Lanham Act and California's common law right of publicity.

McCain and the other defendants have filed motions to dismiss the copyright and Lanham Act claims, and anti-SLAPP motions to strike the right of publicity claim. Those motions are now fully briefed. McCain's opening papers are available here; Browne's opposition here; and McCain's reply papers here. Oral argument is set for Feb. 2 before Federal District Judge R. Gary Klausner in Los Angeles. UPDATE: no oral argument.

(Disclosure: I have worked on Senator McCain's defense of this case.)

LA Times examines Google lobbying agenda: what about copyright?

The "Oh my God! Google has Washington lobbyists!" story is a staple of modern political journalism. Today the LA Times weighs in with its own contribution to the genre, telling us that in the age of Obama:

At the top of the company's policy priorities are two that consumer advocates largely champion. First, it wants to expand high-speed Internet access so people can use its Web services more often. It also is pushing for so-called network neutrality: prohibitions on telecommunications companies charging websites for faster delivery of their content.

The Times also correctly points out that Google will have to fight legislative and regulatory battles over data privacy and antitrust concerns sparked by its large share of the online advertising market.

What's interesting to me is what's missing from the list of Google's priority list (at least at relayed by the Times): no mention at all of copyright or other forms of IP. It's not as if IP issues aren't hugely important to Google. Many of its most fundamental practices -- everything from indexing and caching web pages, to hosting and streaming YouTube videos, to displaying headlines and ledes of stories on Google News, to selling ads triggered by searches for trademarked "keywords" -- could be deemed illegal in a flash under adverse interpretations of copyright or trademark laws. True, most of the action on these issues is in the federal courts (where Google has been largely successful in fighting off challenges to its IP practices), not Congress or the agencies. But copyright and trademark are also creatures of statute, and Congress can change those statutes as it chooses.

To vastly oversimplify, Google thinks it should be allowed to copy whatever it wants on the web and sell ads against it; copyright owners say, "Over our dead bodies." That disconnect is going to spark a lot of major IP battles over the next decades. Google is smart to hire a lot of lobbyists -- in addition to lawyers -- if it wants its business model to survive.

HBO backs off YouTube takedowns of inaugural concert footage

HBO has apparently reversed course and will no longer send DMCA takedown notices to YouTube concerning clips of inaugural concert footage over which HBO claimed rights. Reports Broadcasting & Cable:

HBO says that it has stopped asking YouTube to remove the clips, citing the event’s historic nature.

“HBO diligently protects its programming and we are not abandoning our rights to the "We Are One" concert,” said a network statement. “However, we do recognize the historical significance of the event, which is why we attempted to make it available to all by opening the HBO signal and continue to stream the entire concert on hbo.com. In that spirit, we understand why people would want to share their favorite moments of the concert and are not objecting to them doing so.”

According to B&C, "Not only were clips from the HBO [concert] telecast removed, but video clips shot by those in the crowd as well." HBO's actions came under scathing criticism from the Computer & Communications Industry Association, an industry group that includes Google, Microsoft, and Sun, and which often makes common cause with the copyleft. Said CCIA President & CEO Ed Black in a statement:

This is a public event held on public grounds, open to all citizens without restriction. Those sharing their memories on YouTube or other formats should be covered under Fair Use laws. It’s yet another example of the outrageous, excessive attitude of certain big content companies. If we continue to give ground to overreaching requests from the greediest part of the content industry ‘this land’ will belong to them – not you and me.

I suspect that HBO, by issuing the takedowns, was losing more in public goodwill than it was saving in revenue. I can't say I'm surprised that they will now let minor acts of infringement slide.

DOJ appointments irk Obama supporters; Techdirt joints ranks of disappointed copyleftists

The copyleft continues to open its eyes to the drubbing it's taken in the Obama Administration's appointments process, what with the Department of Justice about to play home to a raft of new copyright-friendly attorneys. This time it's group blog Techdirt playing the role of the spurned (ex?) lover:

Among the tech community, there was some belief that the Obama administration understood some of the key issues, such as the damage done by draconian copyright laws -- and they had shown that with the way they went about running their campaign. However, there's an increasing realization that the techies on the campaign are entirely separate from the policy people now involved in the administration. First there was the appointment of one of the RIAA's top lawyers as associate attorney general, and now comes news that Neil MacBride, the BSA's antipiracy enforcer, has also been appointed to a high level role in the Justice Department.

Techdirt finds it "worrisome" that MacBride once had the temerity to "insist[] that piracy represents a real loss, not a business model issue, and even suggest[] that it's all a generational thing." The horror! And it concludes with the following lament:

That two such individuals [MacBride and Tom Perrelli] are now in high level positions in the Justice Department does not bode well at all for the idea that we may have more reasonable copyright policy and enforcement coming out of the Justice Department any time soon.

Well, there is a world of difference between Techdirt's and C&C's view of what constitutes "reasonable copyright policy." But Techdirt is no doubt correct that Obama's appointments "do[] not bode well" for the copyleft. That's change I can believe in!

(Headline updated.)

Will tough Obama ethics rules trip up IP Czar candidates?

Will the Obama Administration's tough new ethics rules present an obstacle to the nomination of one of the entertainment-industry lobbyists reportedly under consideration to be the first White House IP Czar? Shourin Sen of the excellent Exclusive Rights blog thinks so. Writes Sen:

President Obama issued an executive order yesterday outlining his administration’s ethics policy. It’s quite a bit more stringent than what he campaigned on during the election season. To compare, this is what Obama listed on his website during the primary and general:

• No political appointees in an Obama-Biden administration will be permitted to work on regulations or contracts directly and substantially related to their prior employer for two years.

And this is the relevant provision from the new executive order:

• “All [a]ppointees [e]ntering Government . . . will not for a period of 2 years from the date of [their] appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.

The simple flipping of “work on regulations or contracts” to “including regulations and contracts” makes all the difference in regards to the IP-Czar. Since the position involves interdepartmental coordination of IP issues and reporting to congress, and not regulations and contracts, it’s covered under the new ethics policy, whereas is wasn’t under the old. I’ve already made my thoughts on this topic known, but it’s somewhat funny that the executive order eliminates half of the candidates Senator Leahy leaked for the position.

I'm not as sure as Sen that the new rules will present much of an obstacle. The rules bar work on "any particular matter involving specific parties." So that would not seem to apply to general policy issues -- only to specific issues involving identifiable parties. Thus, an IP Czar who previously lobbied for Entertainment Company X, urging the USTR to adopt a tougher trade stance with China on IP issues, would be permitted as Czar to participate in discussions on the US negotiating stance on IP rights with China. He just couldn't urge (for 2 years) action on a specific matter involving Company X. At least that's how I read the rules.

And, after all, if those pesky ethics rules get in the way, he can always just waive them "in the public interest."

CNET agrees with C&C: Obama pokes copyleft in the eye

You read about it first here at C&C, but now CNET makes it official: President Obama's packing of the Department of Justice (and the Vice-Presidency!) with anti-piracy attorneys and their champions is a big blow to his (former?) allies on the copyleft. Writes CNET's Declan MacCullagh:

[T]he elevation of RIAA and BSA lawyers must feel like a poke in the eye to the copyleft and progressive crowd, who spent over a year showering Obama with praise. Public Knowledge called Obama's election an "important" victory, while Free Press lauded it as "a sea change in leadership that allows us to go from playing defense to offense." Stanford professor Larry Lessig--probably the best known "free culture" proponent--went so far as to plead for all of his friends to "do something this time" by voting for Obama over his Republican rival.

MacCullagh also provides a few additional nuggets about the Business Software Alliance, whose vice president of antipiracy and general counsel, Neil MacBride, will be Obama's associate deputy attorney general, and whose duties will include (among many other things) advising on IP policy:

BSA has opposed changes to the Digital Millennium Copyright Act's anti-circumvention section, once saying that legislation to allow backup copies of DVDs or video games would provide a "safe harbor for pirates who could easily claim that the 'intent' of their actions were legal." Early in the campaign, Obama told CNET News that he would support such a law, but hedged it by saying his support was "in concept" only. (He also claimed at the time to oppose retroactive immunity for telcos that illegally opened their networks to the National Security Agency, and we know how that turned out.)

All eyes now turn to Obama's selection of the first White House IP Czar. This is no time to go wobbly.

The Global Village

Today someone from South Africa searched on Google for "irishsex." And ended up on my blog. Words fail me...

Labels to Nesson: 'Go retake Civ. Pro. Read the Local Rules. And give us money.'

The record labels have filed their opposition to Joel Tenenbaum's legal team's “Conditional Motion to Compel Deposition of Matthew Oppenheim.” And, as previously reported (second-hand, via Twitter -- can you get any more Web. 2.0?), they are asking for sanctions in the form of attorneys' fees for having to fight off Tenenbaum's efforts to conduct a circus, rather than a valid legal defense.

As I've explained, Tenenbaum wants to depose Oppenheim, who has represented record labels and the RIAA in numerous litigations over the past decade. And they want to do it in a big auditorium at Harvard Law School. So why do the labels think the deposition shouldn't happen? In layman's terms: because Tenenbaum's team has broken just about every relevant rule in the book.

In lawyers' terms, here's what the labels' attorneys say:

First, Defendant failed to confer with Plaintiffs regarding the Motion as required by Rule 37 and by the Local Rules of the District of Massachusetts. This alone requires that the Motion be denied. Fed. R. Civ. P. 37(a)(2)(B).

Second, Defendant has not noticed any deposition for January 22 and has failed to issue a valid subpoena for any deposition. Since Defendant has neither noticed a deposition for January 22 nor subpoenaed anyone for that date, there is nothing to compel.

Third, under the Local Rules of the Court, Defendant is prohibited from initiating any discovery in this case until he provides his initial Rule 26(a)(1) disclosures, which Defendant was ordered to produce long ago and which Plaintiffs have asked for repeatedly.

Plaintiffs further request entry of an order requiring Defendant’s counsel, Charles Nesson, to pay Plaintiffs’ costs, including reasonable attorney fees, incurred in opposing Defendant’s Motion.

Nesson is a distinguished professor and an interesting guy. But as his deposition defense of his client and now this Oppenheim episode demonstrate, modern federal litigation practice is not his forté. The labels' opposition to the "Conditional Motion to Compel," and their request for sanctions, are well-taken. I wonder if Tenenbaum is beginning to wish he were still pro se.

(h/t Recording Industry vs. The People)

The RIAA's 'big enchilada' for 2009: not what you'd think

A reader of copyright blogs could be forgiven for thinking the only thing the Recording Industry Association of America concerns itself with is litigating to the death against college students and, for sport, torturing puppies.

So it may come as a surprise to many to learn that when asked in a recent Variety interview about the trade group's 2009 priorities, RIAA Chairman and CEO Mitch Bainwol barely mentioned Internet piracy, or the best method for sticking burning bamboo slivers under baby beagles' toenails. Rather, said Bainwol:

The big enchilada, the No. 1 cause of the year, is the performance rights bill. It will receive a substantial focus. It remains an uphill battle but we have been working together with MusicFirst, NARAS, RAC and (other groups) to make inroads on the Hill.

So what's the "performance rights bill," and how big an enchilada is it? First a little background: under US copyright law, there are 2 separate copyrights in music: 1) the "musical composition" (the underlying notes and lyrics), which is generally owned by a music publisher; and 2) the "sound recording," (the actual noise a listener hears), which is generally owned by a record label (i.e., an RIAA member). The owners of copyrights in musical compositions enjoy, under current copyright law, the exclusive right to publicly perform their works. The owners of sound recordings, however, do not. So, when a radio station plays (publicly performs) a song, it must pay a royalty to the publisher, but not the record label. (There are complicated historical reasons for all this that are beyond the scope of this post, and my brain.)

As you can imagine, the RIAA is not thrilled about this state of affairs. Its members, often described as "circling the drain," want more royalties. (And they are deeply jealous of their cousins in the music publishing world. Forbes does not write articles titled "The One Bright Spot In The Music Business" about the record labels.) The labels have been trying "for decades" to get Congress to grant them a public performance right, at least for broadcasts -- to no avail. And they're trying again, with the help of music-industry-friendly Members of Congress like Reps. John Conyers (D-MI), Howard Berman (D-CA), Darrell Issa (R-CA), and Marsha Blackburn (R-TN).

Their opponents, of course, are the radio broadcasters, who have little interest in paying a new set of royalties, or, as they call them, a "tax" or, more politely, "a government-imposed bailout of foreign record labels estimated to cost up to $7 billion [that] would ... cause serious economic harm to U.S. radio stations." (Even today, $7 billion buys a lot of enchiladas.) The radio stations' own trade association, the National Association of Broadcasters, doesn't just oppose the new public performance right for sound recordings (sorry, the "music tax"); it issues calls for a "probe." Scary!

So will the labels finally get their wish this year? Just ask yourself how many Congressional Districts are home to record labels. Next, ask yourself how many have radio stations. I think you know the answer to my original question.

Photo credit.

BREAKING via Twitter: Nesson threatened with sanctions for Oppenheim deposition stunt

Via Harvard Law Professor Charles Nesson's Twitter account comes word that the plaintiffs' attorneys in Sony v. Tenenbaum have sent him a letter (or is it a "letter"?) threatening him with sanctions for his actions in noticing the deposition of recording industry attorney Matthew Oppenheim:

I won't comment on the merits of the sanctions threat until I see the letter (which I'll try to obtain (UPDATE: done), but my previous characterization of Tenenbaum's legal team's actions with regard to this deposition as "low-life litigating" and an "underhanded tactic" stand.

Viacom v. YouTube: Viacom's anti-piracy agent BayTSP must produce boatloads of documents

The massive and massively important Viacom v. YouTube copyright case doesn't get much attention these days, but rest assured that armies of lawyers are plugging away, fighting over every scrap of information -- largely in electronic form -- that will help them prove their case (not to mention doing things like writing scintillating missives to the judge "Requesting that the Court reconsider its order granting Defendants leave to file a surreply in opposition to Plaintiffs' motion to compel." Denied!).

In that vein, there was an interesting recent opinion on a discovery issue that ensures those armies will have plenty to do for the foreseeable future. Here's what it's all about: to aid in its Internet anti-piracy efforts, Viacom has hired a Silicon Valley firm called BayTSP to locate unauthorized copies of its works on YouTube and handle the mechanics of demanding their removal. (See this very interesting Wall Street Journal article to get a good sense of what BayTSP does. Try searching here if you're stuck behind the WSJ pay-wall.) Not surprisingly, YouTube would like to get its hands on a lot of information in BayTSP's possession. Specifically, YouTube served a third-party subpoena on BayTSP, seeking (as summarized by Loeb & Loeb's excellent weekly case updates):

(1) All documents and communications concerning YouTube, including those reflecting use of YouTube by BayTSP and its clients, monitoring of YouTube by BayTSP and its clients, and comparisons of the responsiveness of YouTube to other online services;

(2) All documents and communications regarding BayTSP’s relationship with Viacom, including documents regarding copyrights Viacom claims to own and the litigations in New York;

(3) All documents and communications regarding the nature of BayTSP’s monitoring and identification processes, its training of monitors, and its effectiveness or lack thereof with respect to identification of allegedly infringing materials online.

Also unsurprisngly, BayTSP didn't want to part with this information or deal with the hassle and expense of compiling it, so there ensued a discovery fight in federal court in San Jose, near BayTSP's home (the main case is pending in New York).

On Jan. 14, a magistrate judge issued an order that appears to grant YouTube almost everything it wanted. As Loeb explains, the court found that the requested documents were relevant because they may:

(1) refute plaintiffs’ assertions that their burden for policing the website is too high; (2) [] show that BayTSP made errors when issuing DMCA takedown notices which undercuts plaintiffs’ argument that YouTube had constructive knowledge of ongoing infringement; and (3) [] refute plaintiffs’ claims that YouTube hinders content owners’ efforts to comply with the DMCA.

Interestingly, the court ordered BayTSP to produce not only documents related to Viacom and its affiliates, but also documents generated by BayTSP's work for other clients (identified as "HBO, Universal, Fox, and other entities") who are not parties to this litigation and I suspect are not thrilled about the prospect of documents they consider confidential being exposed to outsiders (despite the presence of a protective order).

While it's unclear exactly how many documents BayTSP will actually have to produce (and that the parties' lawyers themselves will have to review), it appears the total will run to several million pages.

As best I can tell from the scheduling order, no trial date has yet been set in this case. It's going to be a while.

More MacBride: BSA anti-piracy attorney will have DOJ IP duties

National Journal's Tech Daily Dose has more on the appointment of Business Software Alliance anti-piracy attorney Neil Mac Bride as Associate Deputy Attorney General and his new responsibilities:

In his new position, MacBride -- who has been BSA's vice president of anti-piracy and general counsel -- will serve on the senior leadership team of Attorney General-designee Eric Holder and will help manage the agency's 115,000 employees and $22 billion budget.

MacBride will also manage the criminal components of the Justice Department, including the 93 United States Attorneys Offices, the Criminal Division, FBI, Drug Enforcement Administration, and Bureau of Alcohol Tobacco and Firearms and other entities. MacBride will advise the attorney general on criminal justice, law enforcement, and intellectual property issues and oversee the policy and legislative offices in DOJ. Members of BSA include Adobe, Apple, Cisco Systems, Dell, HP, IBM, Intel, Microsoft, and Quest. According to the Center for Responsive Politics, he has lobbied for BSA in the past.

(my emphasis). So there will be a high-ranking Justice Department official advising the AG on IP issues who has deep experience as an anti-piracy attorney. And keep in mind that, in addition to MacBride, Justice will include:

• Tom Perrelli, a top music-industry litigator
• 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

Is this the most pro-copyright/anti-piracy DOJ in history? Have I died and gone to heaven?

(Note: the Dose says MacBride will be "Associate Deputy Attorney General"; Above the Law counters with "Assistant Deputy Attorney General." C&C has no clue which job is cooler, but promises to clear up the raging controversy before it threatens to end our new Era of Good Feelings. UPDATE: A reader who knows whereof he speaks points C&C to the Plum Book, which indicates that the position is, as the Dose reported, "Associate Deputy Attorney General.")