Monday, December 28, 2009
Mitchell Silberberg & Knupp is a prominent Los Angeles law firm that has represented the major record labels in many of the most important anti-piracy cases of the past decade: Napster, Aimster, Grokster, and the lawsuits against individual peer-to-peer users, among others.
So whom did Boing Boing turn to when it recently received a demand letter from Demi Moore's lawyer over a Boing Boing post discussing allegations that W magazine had photoshopped Moore's hip? You guessed it.
Wednesday, December 23, 2009
Court grants summary judgment for studios in Gary Fung/IsoHunt case; no DMCA safe harbor for inducement
Columbia v. Fung Summary Judgment Order
The court found Fung and his company liable under the inducement standard articulated by the Supreme Court in MGM v. Grokster (also presided over by Judge Wilson), finding that "evidence of Defendants' intent to induce infringement is overwhelming and beyond reasonable dispute." Such evidence included a "Box Office Movies" feature of the site; Fung's provision of "a link to a torrent file for the recent film Lord of the Rings: Return of the King on the Isohunt site" along with the statement "if you are curious, download this"; use of the word "warez" as a metatag; and pro-piracy statements such as "they accuse us for [sic] thieves, and they r [sic] right. Only we r [sic] ‘stealing’ from the lechers (them) and not the originators (artists)" and "Morally, I’m a Christian. 'Thou shalt not steal.' But to me, even copyright infringement when it occurs may not necessarily be stealing." Such statements, said the court, "provide probative evidence regarding Fung’s intent in creating the Defendant websites to aid others infringement." The court also cataloged extensive evidence that the site and its admins assisted users in copyright infringement, and implemented technical features that promote infringement. Lastly, the court noted that about 95% of works "shared" using Fung's sites were infringing, and that the defendants' "ostrich-like refusal to discover the extent to which its system was being used to infringe copyright is merely another piece of evidence” of Defendants’ purposeful, culpable conduct in inducing third party infringement. See In re Aimster Copyright Litig., 334 F.3d 643, 655 (7th Cir. 2003)."
Judge Wilson also soundly rejected Fung's DMCA safe harbor defense, and in the course broke some new ground. As far as I am aware, this is the first case to find that a DMCA safe harbor was unavailable because the defendants had "red flag" knowledge of its users' infringement. See 17 U.S.C. § 512(d)(1)(B) (no safe harbor where defendant is "aware of facts or circumstances from which infringing activity is apparent."). Explained the court:
There is a variety of other evidence of Defendants’ willful ignorance to ongoing infringement. Defendants designed their website to include lists such as "Top Searches," "Top 20 Movies," "Top 20 TV Shows," and "Box Office Movies," and Defendants designed these lists to automatically update to reflect user activities. These lists included numerous copyrighted works. (SUF ¶¶ 8-12, 47-55.) See Grokster V, 454 F. Supp. 2d at 992 ("it is common knowledge that most popular music and movies are copyrighted"). Thus, unless Defendants somehow refused to look at their own webpages, they invariably would have been known that (1) infringing material was likely to be available and (2) most of Defendants’ users were searching for and downloading infringing material.But perhaps the most significant ruling in the opinion was the court's holding that the DMCA's safe harbors are simply not available where inducement has been established:
[I]nducement liability and the Digital Millennium Copyright Act safe harbors are inherently contradictory. Inducement liability is based on active bad faith conduct aimed at promoting infringement; the statutory safe harbors are based on passive good faith conduct aimed at operating a legitimate internet business. Here, as discussed supra, Defendants are liable for inducement. There is no safe harbor for such conduct.As far as I'm aware, this is the first time a court has squarely ruled that there is no DMCA safe harbor from an inducement claim; as I noted, the court in the UMG v. Veoh case skirted this issue.
Next up: the remedy phase, where the court will consider damages and an injunction.
Lead attorney for the plaintiffs is Steve Fabrizio of Jenner & Block, who also won the TorrentSpy and Usenet.com cases. Ira Rothken, who came out on the losing end of the similar TorrentSpy case, represents Fung and Isohunt Web Technologies, Inc.
Disclosure: I worked on this case for plaintiff Twentieth Century Fox Film Corp. while previously employed there. My current employer, NBC Universal, Inc., is the parent of plaintiff Universal City Studios LLLP, though I have not worked on the case while at NBCU.
Tuesday, December 22, 2009
[I]t is a general and indisputable rule that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded.Or, as Chief Justice Marshall similarly put it in Marbury v. Madison:
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury.Clearly, neither Blackstone nor Marshall had ever encountered Section 230 of the Communications Decency Act. For, as a federal court in Chicago held yesterday, the statute that shields web sites from liability for defamatory posts by their users can indeed result in situations where there is no remedy for speech adjudged to be defamatory, and thus outside the protections of the First Amendment. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974) ("there is no constitutional value in false statements of fact").
Here's the case, Blockowicz v. Williams, in a nutshell:
1) Defendants posted allegedly defamatory statements about plaintiffs on several sites, including Facebook, MySpace, and a site called Ripoff Report, which bills itself as follows:
Ripoff Report® is a worldwide consumer reporting Web site and publication, by consumers, for consumers, to file and document complaints about companies or individuals. While we encourage and even require authors to only file truthful reports, Ripoff Report does not guarantee that all reports are authentic or accurate.2) Plaintiffs sued the individuals who posted the statements for defamation. (A suit against the sites would have been DOA under Section 230.)
3) Defendants failed to defend themselves in court, so the court issued a default judgment in plaintiffs' favor, as well as an injunction ordering defendants to remove the postings from the sites at issue. Plaintiffs couldn't contact defendants to enforce the injunction. So they instead approached the sites and said essentially: "A federal court has adjudicated the statements about us on your site as defamatory. Please remove them." All obliged -- except for Ripoff Report.
4) Plaintiffs filed a motion to enforce the injunction against Ripoff Report, on the theory that the site, though not itself a defendant, had acted "in concert" with the defendants and thus, under FRCP 65(d)(2)(C), was equally bound by it.
5) The court rejected the "in concert" theory and, apologetically, refused to enjoin Ripoff Report:
The court is sympathetic to the Blockowiczs’ plight; they find themselves the subject of defamatory attacks on the internet yet seemingly have no recourse to have those statements removed from the public view. Nevertheless, Congress has narrowly defined the boundaries for courts to enjoin third parties, and the court does not find that [Ripoff Report] falls within those limited conscriptions based on the facts presented here.So the bottom line is that the court was utterly powerless to grant the plaintiffs an effective remedy against harmful speech that has no First Amendment value. That's probably the correct result under the statute and the case law explicating it. But I can't imagine Congress would have enacted Section 230 back in 1996 if it knew this would be the result. Or did they disagree with Chief Justice Marshall when he wrote, "The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right."?
(H/T to Prof. Eric Goldman. Goldman usually argues for a very expansive reading of Section 230, but the Blockowicz opinion troubles even him; he writes that the "normative issues are still gnawing at me" and concedes that, "In some circumstances, continued publication may not be the right result.")
UPDATE: I've had a very interesting email exchange with David Gingras, general counsel of Xcentric Ventures, LLC, which operates Ripoff Report. I've invited him to do a full guest post to give his perspective on the issues raised by this case. In the meantime, he graciously provided me with the papers relevant to the order I discuss above; these flesh out the issues and go into greater detail about the parties' respective arguments.
1) Letter From Plaintiffs' Counsel to Ripoff Report and Complaint
2) Motion for Third Party Enforcement
3) Ripoff Report Response
4) Declaration of Ed Magedson, Ripoff Report founder and editor
5) Plaintiffs' Reply
6) Ripoff Report's Sur-Reply
7) Plaintiffs' Sur-Reply
UPDATE II: Techdirt argues that this case demonstrates a "problem ... with the default judgment process" but not Section 230. That's wrong. While it's true that default can sometimes result in anomalies, the problem with Section 230 that this case highlights has nothing to do with default. To illustrate, imagine a different case: Defendant posts allegedly defamatory material on site. Plaintiff sues defendant. Defendant shows up to defend himself (i.e., there's no default). After a full trial on the merits, the court (either judge or jury) determines that defendant defamed plaintiff. The court then orders Defendant to remove the post (which it may do consistent with the First Amendment). But when defendant asks the site to take down the post, the site refuses, saying its policy is never to take anything down. (Or, say, the site is based in Mongolia, has no US presence, and couldn't give a whit about a US court case.) In such a case, again, there's no way to force removal of the defamatory material, because of Section 230. I highly doubt that's an outcome Congress anticipated when it enacted the CDA, or would embrace today.
Monday, December 21, 2009
Let us be clear: Piracy is unacceptable."Landlords' pullback puts L.A. Toy District at risk," Michael Hiltzik, December 21, 2009:
From a sidewalk vendor I picked up an "unofficial" DVD copy, so to speak, of the movie "District 9," which isn't in retail release yet was perfectly playable on my home machine.The necessity of buying an obviously pirated DVD and watching it at home, while reporting a column about the economics of a particular LA neighborhood, eludes me.
Friday, December 18, 2009
The five legal cases that defined the year in music
NEW YORK (Billboard) - Almost a decade after the major labels launched their legal assault on Napster, courts are still writing the rules of the road for the music business's digital future.
Companies can't set out to build a business based on their users' infringement of copyright, courts had already ruled. But the precise meaning of that dictate remains in doubt. What steps must sites take to combat infringement? What are the proper penalties for those who infringe? This year, courts inched toward resolution of these questions, giving labels, publishers and artists a bit more certainty as they decide whom to work with and whom to sue.
And what are the five? Read the whole thing...
Tuesday, December 15, 2009
Over to you, New Line...
Monday, December 7, 2009
Today's example of what happens when this rule is ignored comes from UPI, which reported that actor Ron Livingston "is suing Wikipedia, saying the online encyclopedia's page about him incorrectly identifies him as gay." Techdirt dutifully followed the UPI report without any checking, declaring the suit "obviously dead-in-the-water" due to Section 230 of the Communications Decency Act.
One problem: Livingston didn't sue Wikipedia. As THR, Esq. -- an excellent publication that almost always does link to the legal documents it discusses -- accurately reported today, Livingston (technically his loan-out company) sued an unknown individual who allegedly impersonated Livingston online and posted accusations that he is gay on Wikipedia and Facebook. The complaint includes claims for libel, false light, and violations of Livingston's statutory and common-law right of publicity, and seeks actual and punitive damages. Presumably Livingston will seek discovery (IP and email addresses and other identifying information) from Wikipedia and Facebook, which he hopes will identify the poster. Livingston can then name the individual in the complaint, and proceed against him. Section 230 won't protect the individual; it only shields the service (i.e., Wikipedia or Facebook) that hosted the material.
Complaint in Coupleguys, Inc. v. John Doe
There are a few interesting issues buried in this lawsuit. First, is it defamatory to falsely label someone as gay? It's a very interesting issue; obviously many people don't like being falsely called gay, but some gay rights activists argue that to permit a defamation action for a false accusation of homosexuality perpetuates the harmful notion that there is something wrong, or shameful, about being gay. Indeed, a New York federal court recently ruled that a false accusation of homosexuality is not defamatory per se. (I haven't researched this question under California law, which I assume will apply here; feel free to weigh in in the comments with relevant citations.)
Second, is what alleged here really a right of publicity violation? I'm skeptical. There are no allegations that the poster had any commercial purpose; the complaint seems to alleged that he was simply engaged in some sort of malicious prank. While the cases in this area aren't terribly consistent, I tend not to think that right of publicity is the correct claim here.
Third, this case once again demonstrates the awesome power of Section 230. Livingston didn't sue Wikipedia or Facebook because Section 230 clearly protects them here, at least on the libel and false light claims. (Whether the right of publicity claim is a "law pertaining to intellectual property" and thus outside the scope of Section 230's protections, see 47 U.S.C. 230(e)(2), is a tougher question. Compare Perfect 10, Inc. v. CC Bill LLC, 488 F.3d 1102 (9th Cir. 2007) (state IP claims not immunized under Section 230), with Doe v. Friendfinder Network, Inc., 540 F.Supp.2d 288 (D.N.H. 2008) (state IP claims immunized under Section 230).) But let's assume Livingston wins; the court agrees that the statements are defamatory and infringe his right of publicity, and awards him money. That doesn't solve the problem that's really bugging him: that people are saying false things about him on the web. Under Section 230, the court cannot order a site to remove defamatory content it didn't create, even after it's been determined definitively that the content infringes the plaintiff's rights. The court could, presumably, order the defendant to remove the content he has posted (though the complaint does not specifically request this remedy). But what if the site won't permit that? Or what if another bozo re-posts the same material? Or what if, despite the best efforts of Livingston's attorneys, they can't find whoever posted the offending content? Or what if he's dead? Section 230 means he has no effective recourse, and the false information may remain there forever.
Maybe that's an acceptable result, necessary to preserve free speech on the Internet. But whatever the case, I doubt it's a result Congress intended when it passed the CDA back in 1996.
Update: make sure to read Sam Bayard's analysis of the issue whether it's defamatory to falsely call someone gay. "[T]he courts appear to be split, but it is hard to say for sure because of the evolving nature of the inquiry," he concludes in his post at the Citizen Media Law Center site.
Also, still no correction at Techdirt's post, which continues to claim, falsely, that Livingston sued Wikipedia. The post's subhed mocks Livingston's attorneys for supposedly failing to do "research,-research,-research." That, in a post that failed to do even one "research," and that continues to report false information, even after acknowledging in an "update" that a commenter alerted the author to the error. "Updates" are to report new developments; errors demand plain, old-fashioned "corrections."
Some additional thoughts on the Tenenbaum fair use opinion: mainly right on fair use, but why all the dicta?
Fair Use Memorandum and Order in Sony v. Tenenbaum
Judge Gertner's order is one of the harshest assessments of an attorney's performance in a civil case that I've ever seen. She leaves absolutely no doubt that she believes Tenenbaum's counsel, Harvard Law School Professor Charles Nesson, did a terrible job. She calls the defense "truly chaotic." Order at 2. She says that Nesson "repeatedly missed deadlines" and "ignored rules." Id. at n.3. She says that Nesson's practice of making unauthorized audio recordings of opposing counsel and the court and posting them to the Web is "plainly illegal" under Massachusetts criminal law. Id. (The plaintiffs' sanctions motion regarding the recordings remains pending.)
More substantively, Judge Gertner makes clear that Nesson's poor litigating harmed Tenenbaum's fair use defense. She notes that he first promised the court that he would not seek to amend his pleadings (which was necessary to add the affirmative defense of fair use), but then reversed himself. Order at 1. And Nesson's papers opposing the labels' summary judgment motion on fair use "can only be described as perfunctory." Id. at 3. His arguments, said Judge Gertner, were not properly crafted for this case. "Rather than tailoring his fair use defense to suggest a modest exception to copyright protections, Tenenbaum mounted a broadside attack that would excuse all file sharing for private enjoyment," she wrote. Id. at 4. And Nesson's summary judgment opposition "did not come close" to doing what such papers must: identify disputed issues of material fact. "He offered few disputed facts and little, if any, legal authority for his position. His opposition briefs were not accompanied by any affidavits, expert reports, deposition testimony, or other evidence of the kind required by Federal Rule of Civil Procedure 56(e)(2)." Id. at 5. His showing on market harm was "extraordinarily meager." Id. at 7.
What makes Judge Gertner's rebuke all the more stinging is that she personally recruited him to take on Tenenbaum's case. Who better to mount a defense than a Harvard Law School professor, the founder of the Berkman Center for Internet & Society, and a long-time acquaintance of Judge Gertner who had even successfully represented her in a case back in the 1980s? And Judge Gertner makes no secret of the fact that her sympathies lie with Tenenbaum, and not the labels. See Order at 2 (the court is "deeply concerned by the rash of file-sharing lawsuits"), 3 ("the Court was prepared to consider a more expansive fair use argument than other courts have credited"), 34 ("As this Court has previously noted, it is very, very concerned that there is a deep potential for injustice in the Copyright Act as it is currently written.").
In sum, it's fair to conclude from Judge Gertner's order that she believes a competent attorney could have drafted a brief opposing summary judgment that would have raised sufficient disputed material facts to send the issue to the jury. Would a jury would have ultimately bought the defense? I have grave doubts; they quite obviously believed that what Tenenbaum did was wrong (and my conversation with one of the jurors confirmed that).
Finally, what must the Harvard administration think? Do they approve of Nesson's behavior? Do they care?
A solid win for the plaintiffs on fair use
On the substantive legal points that she needed to decide, Judge Gertner got the fair use analysis right. She understands that fair use is not a free-floating referendum on "fairness," where the defendant gets to argue pretty much whatever he wants to the jury. See Order at 5 ("The doctrine of fair use is not infinitely malleable, requiring a jury determination every time it is intoned, no matter what the facts."). She gets that copyright infringement is harmful to the legitimate market. See id. at 7 ("There can be no question that on this record continuous, high-volume file-sharing -- offering exact copies to millions of peer-to-peer users for free -- would negatively affect the market for these copyrighted works."). She correctly rejected Nesson's assertion that "non-commercial" uses are presumptively fair. See id. at 14-15.
On the four statutory factors, I have some quibbles, but Judge Gertner correctly concluded that they all favored the plaintiffs. She disagreed with the Ninth Circuit in Napster in declining to find that Tenenbaum's activities were "commercial," instead finding that they were "somewhere in the middle" between commercial and non-commercial. See Order at 17. But she still found that the first factor cuts against fair use, as Tenenbaum's use of p2p "was not accompanied by any public benefit or transformative purpose." The second factor favored the labels because the recordings are creative works, see Order at 18-19, and on the third, she correctly treated the song, not the album, as the relevant metric for determining how much of the work Tenenbaum used, see id. at 19-21. And the analysis on the fourth factor, concerning the effect on the market, is solid. Judge Gertner properly identified the inquiry as "whether unrestricted and widespread conduct of the sort engaged in by the defendant...would result in a substantially adverse impact on the potential market for the original," and concluded that, here, it would: "The Copyright Act grants the plaintiffs an exclusive right to distribute these works; file-sharing effectively displaces that right, and the market it represents, by offering the same works for free." Id. at 24. And lastly, Judge Gertner properly rejected Tenenbaum's extra-statutory factors, including assumption of risk, the plaintiffs' marketing activities, and failure to use DRM. See id. at 25-30.
An overabundance of dicta
It's toward the end where I believe Judge Gertner's opinion fails to hew closely to the case law and facts. She is way too indulgent of Tenenbaum's argument that his use of KaZaA to get songs for free should be excused because there were supposedly insufficient legal alternatives. This argument fails, both legally and factually. The labels were under no obligation to offer to Tenenbaum (or anyone else) their songs in precisely the format he preferred, and their alleged failure to do so does not result in the loss of their exclusive rights under the Copyright Act. (The Beatles don't offer their songs on the Web. So can BlueBeat.com sell them for 25 cents a piece and call it fair use?) Moreover, as a factual matter, it's simply false to say that there were no legal alternatives to p2p while Tenenbaum was downloading hundreds of songs without paying for them; Judge Gertner's only rejoinder to the plaintiffs' evidence on this front is a quote from a 2003 USA Today article saying that iTunes is "the first legitimate Net service to hit all the high notes." Order at 31 n.15. Even if all of the pre-iTunes services were pitiful compared to iTunes, that hardly means that copyright law stops protecting the labels' works. Furthermore, as Judge Gertner acknowledges, see id. at 32, there were plenty of legitimate services by August of 2004, when Tenenbaum's infringement was detected, which renders much of this discussion dicta -- musings unnecessary to resolution of this case, but likely to cause mischief down the road. And Judge Gertner's listing in the Conclusion, see Order at 35-37, of various p2p scenarios she can "envision" as fair use, is dicta of the purest sort, disquisition on issues that were simply not before the court.
Finally, Judge Gertner states that she is "very, very concerned that there is a deep potential for injustice in the Copyright Act as it is currently written" and "urges -- no implores -- Congress to amend the statute to reflect the realities of file-sharing." Order at 34. I believe this passage, which again is completely unnecessary dicta, is inappropriate. A federal judge's role is to state what the law is, and apply it faithfully. (I believe Judge Gertner did that.) But I believe it undermines public confidence in the neutrality and impartiality of the judiciary when a judge steps outside her role in deciding cases, and expresses her personal opinion about what the law should be. It's a point Tom Sydnor made after Judge Michael Davis made similar comments critical of the first Jammie Thomas-Rasset verdict, and his words apply with equal force here:
When judges develop opinions on questions of law or policy, they usually communicate them through extrajudicial means like speeches or articles. Judges rarely use THE FEDERAL SUPPLEMENT to advise Congress that it enacted unwise laws. But even if the urge to condemn Congress becomes irresistible, judges almost never support their advisory opinions by characterizing issues in a pending case.Perhaps the saving grace for the plaintiffs, as they defend the their verdict against constitutional attack, is that Judge Gertner's words signal a recognition that the law, as currently written , favors their position, however distateful she may find that prospect.
Court enters judgment vs. Tenenbaum and enjoins him from further infringement; explains fair use decision while slamming defense as 'truly chaotic'
Judgment and Injunction in Sony v. Tenenbaum
The court's injunction is a bit narrower than that requested by the plaintiffs; it omits, on First Amendment grounds, the labels' entreaty that Tenenbaum be enjoined from "promot[ing] ... using the Internet or any online media distribution system to infringe copyright." Here's the court's order explaining the scope of the injunction.
The court also issued a 38-page order elaborating on and confirming its decision, issued on the eve of trial, rejecting Tenenbaum's proposed fair use defense. I'll have much more analysis of the order later, but here are some of the highlights. The court:
- Blasted the defense, led by Harvard Law School Professor Charles Nesson, for running a "truly chaotic defense" that raised fair use late and failed to cite relevant case law and evidence;
- Criticized the defense for "mounting a broadside attack that would excuse all file sharing for private enjoyment" rather than making a narrow, fact-specific argument that took into account the facts of this case;
- Cited Nesson's own amicus brief in a related case where he called the fair use arguments regarding uploading files "very weak";
- Rejected nearly all of the defense's substantive arguments related to fair use, including the additional, extra-statutory factors it suggested, such as "assumption of risk" and the plaintiffs' marketing tactics that allegedly encouraged infringement.
- Suggested, in dicta, that it may have been fair use to use peer-to-peer to obtain songs before they were made available legally through iTunes or similar legal services;
- "[U]rge[d] -- no implore[d] -- Congress to amend the [copyright] statute to reflect the realities of file sharing" because of the "astronomical penalties for an activity whose implications [teenagers and students] may not have fully understood."
Friday, December 4, 2009
The PRO-IP Act, which created the position to which Espinel was named, also requires that the Justice Department make annual reports on federal IP enforcement. Here's the first such report, released in October:
2008-2009 Pro-IP Act Annual Report
Monday, November 30, 2009
Posting has been woefully infrequent in recent weeks because of my current day job, but I'm still plugging away at the blog, and writing a regular legal column for Billboard. Stay tuned, and please keep reading.
And if you're so inclined, you can vote for C&C as the top blog in the "practice specific" category here.
Friday, November 20, 2009
ACTA Joint Letter
The letter, whose signatories include, among others, five of the six major movie studios, the MPAA, RIAA, ASCAP, BMI, AFTRA, DGA, IATSE, and the Software & Information Industry Association, follows a similar letter sent yesterday by the MPAA. To be clear, ACTA, which is an executive agreement as opposed to a treaty, does not require ratification by the Senate. Negotiations among the parties are expected to continue through 2010.
Thursday, November 19, 2009
MPAA letter re ACTA
Glickman also addresses the issue of transparency, acknowledging that the process, which has been opened to select participants from industry and interest groups but not the general public, has "foster[ed] apprehension over the Agreement’s substance" and created a "distraction." Glickman calls for the Administration and Congress "to provide for continued transparency as the negotiation moves forward." I'd go a bit further and suggest that, from now forward, USTR and other participants should do whatever is permissible under the law to explain exactly what ACTA is and would do; secrecy (though sometimes necessary) has the unfortunate effect of allowing the falsehoods and conspiracy theories to spread unchallenged.
Also today on Capitol Hill, the Senate Judiciary Committee today unanimously approved the nomination of Victoria Espinel to be the first White House Intellectual Enforcement Coordinator, better known as the "IP Czar." Here are the Judiciary Committee materials on Espinel, including her responses to the committee's questionnaire.
Update: Here's Public Knowledge's response to the MPAA letter. And make sure to read Nate Anderson's take on the MPAA letter in Ars Technica.
Wednesday, November 18, 2009
Nothing in the EU memo or in KORUS suggests anything that would require Canada to implement a three strikes regime in which a family’s internet would be cut off based on three unproven allegations of copyright infringement. Nothing suggests a mandatory 12 month disconnection. Nothing suggests that ISPs can share information between them to ensure that when an Internet connection is cut off a family cannot obtain a connection for a 12 month period from another ISP. Nothing suggests any “incredibly disproportionate” action. In fact, the wording in KORUS and in comparable legislation around the world is to reasonably implement a policy “that provides for termination in appropriate circumstances”. These provisions, which have been part of US law for over a decade, have not created any sort of three strikes regime among the major US ISPs.Adds Sookman:
The recent attacks on ACTA are very disturbing. It is not merely that the contentions about loss of sovereignty and lack of transparency are unfounded. What is truly troubling are the scaremongering tactics used to smear ACTA.Hopefully the word is beginning to get out that ACTA will not, contrary to allegations tossed about in the more reckless and inaccurate corners of the blogosphere, eliminate "DMCA-style safe harbors" or make it "impossible to run a service like Flickr or YouTube or Blogger."
Court again rejects BlueBeat's 'psycho-acoustic simulation' defense; issues preliminary injunction against sale and streaming of EMI songs
In this round, the court was presented with a fuller explanation of the "psycho-acoustic simulation" defense, through a declaration from BlueBeat CEO Hank Risan. Explained Risan, a mathematician and biologist by training:
Every musical sound in a sound recording has a point of origin, called a source point, as well as a capture point, where the sound is affixed. To create “pure sound” simulations, I purchased CD’s of sound recordings over the counter. I made one ephemeral copy of each recording, as authorized by section 112, destroying same shortly after the simulations were created. The original sounds were partitioned into segments for observation. These segments were analyzed by artistic operators who, employing principles of psychoacoustics and advanced harmonic analysis, synthesized an independent parametric model of the sounds. A firewall was utilized to preserve independence between the sounds of the model and those of the original recording. . . . Positing assumptions as to the location of the microphone and special relationship to the voice and instruments involved in a given recorded performance, the artistic operator then generated and fixed new sounds by selecting new capture points and new source points in a new virtual three dimensional computer-staged environment. The simulation, thus created, contained new and original spherical source point waves.Judge Walter wasn't impressed:
The Court finds that the Mr. Risan’s Declaration provides little, if any, evidentiary support for Defendants’ position, and, aside from the passage quoted above, is largely irrelevant. Specifically, Mr. Risan fails to provide any details or evidence about the “technological process” that Defendants contend was used to create the “new” recordings, or adequately explain how the “new” recordings differ in any meaningful way from Plaintiffs’ Recordings.Here are the record labels' reply papers in support of the preliminary injunction, which include the expert declarations referenced by the court. And here is Bluebeat's opposition to the preliminary injunction motion.
However, Mr. Risan is very clear on one critical fact: In order to create the recordings on the BlueBeat Website, he admits that he had to create and use a digital copy of Plaintiffs’ Recordings.4 Given this admission, the Court concludes that it is virtually impossible that the recordings on the BlueBeat Website consist “entirely of an independent fixation of other sounds” pursuant to 17 U.S.C. § 114(b). Indeed, although Mr. Risan claims that “artistic operators” made changes to parameters such as pitch, loudness, rhythm, timbre, and space, Defendants’ conduct appears to be substantively no different than the defendants in United States v. Taxe, 540 F.2d 961 (9th Cir. 1976). There, the defendants used “specially adapted electronic tape equipment” to re-record sound recordings, and change them by increasing or decreasing the recording speed, introducing reverberation or echo, eliminating or reducing portions of the musical sounds, and producing additional sounds by synthesizers. Taxe, 540 F.2d at 964. The district court rejected any claim that this re-recording constituted an “independent fixation,” and the Ninth Circuit agreed, stating: “The copyright owner’s right to reproduce the sound recording is limited to recapture of the original sounds, but that right can be infringed by an unauthorized re-recording which, despite any changes in the sounds duplicated, results in a work of ‘substantial similarity.’” Id. at n. 2.
Moreover, Plaintiffs have presented very compelling and largely unrefuted evidence, including the Declarations of Thomas Schlum, Pietro Perona, Ph.D, and James D. Berkley, from which the Court finds that the recordings on the BlueBeat Website were not “independent fixation[s] of other sounds” but were indeed copies that directly or indirectly recaptured the actual sounds fixed in Plaintiffs’ Recordings.
BlueBeat.com remains inaccessible. This latest ruling doesn't make its return any more likely.
Saturday, November 14, 2009
ACTA, critics say, is being negotiated under unduly strict conditions, and threatens radical changes in US law. Canadian activist Cory Doctorow makes the stunning claim that if ACTA is enacted, "it will be impossible to run a service like Flickr or YouTube or Blogger." Techdirt, never one to let facts get in the way of an opportunity to bash copyright owners, says that "claims by US trade reps that ACTA did not represent any kind of major change in copyright law, and thus didn't require public scrutiny, are nothing more than a myth" and asserts (without citation) that ACTA "wouldn't include current DMCA-style safe harbors."
Much of the recent attention has been the result of a leaked September 30 EU memo that is, as aptly described by Ars Technica's Nate Anderson, "a written account of an oral report on a draft document that was itself still being altered." As Anderson points out, the actual language of the EU memo bears virtually no resemblance to the hysterical claims by ACTA critics. Nowhere does the memo say that ACTA will impose a French-style three-strikes law on signatory nations. It merely says that "ACTA members have to provide for third-party liability" and must provide "Safe-harbours for liability regarding ISPs, based on Section 512 of the Digital Millennium Copyright Act (DMCA)." Third-party liability (e.g., contributory and vicarious infringement) and the DMCA Section 512 safe harbors are of course existing features of US copyright law, and nothing I've seen indicates that ACTA would change US law in the slightest. (Techdirt's claim that ACTA (or at least the draft described in the EU memo) "wouldn't include current DMCA-style safe harbors" is thus flatly contradicted by the memo.) It's also worth noting that Section 512(i)(1)(A) of the DMCA already provides that, to stay within any of the four safe harbors from infringement claims, ISPs or UGC sites (e.g., YouTube) must "terminat[e] repeat infringers" in "appropriate circumstances."
Moreover, the EU memo says that the Internet provisions are "inspired" by TRIPS and existing US agreements with South Korea and Jordan. In other words, ACTA will likely closely resemble agreements to which the US is already a party -- again, no change from the current state of affairs. And furthermore, ACTA is an "executive agreement" as opposed to a treaty, and thus does not require Senate approval. I'm not an expert in this area, but it's my understanding that an executive agreement cannot by itself alter existing US law. So the notion that ACTA will impose a mandatory three-strikes requirement or repeal the DMCA safe harbors isn't just false; it's a legal impossibility.
Lastly, to the "secrecy" issue. It's true that ACTA negotiations don't take place in public. But from what I've learned in talking to international trade experts, this is how all similar negotiations take place; ACTA is no different. As USTR chief Ron Kirk has explained:
As is customary during negotiations among representatives of sovereign states, the negotiators agreed that they would not disclose proposals or negotiating texts to the public at large, particularly at earlier stages of the negotiation. This is done to allow participants to exchange views in confidence, facilitating the negotiation and compromise that are necessary to reach agreement on complex issues.And (subject to NDAs), USTR has made information about ACTA available to a number of outsiders, including representatives from such IP-enforcement skeptics as Google, eBay, Public Knowledge, the Consumer Electronics Association, and the Center for Democracy and Technology. I understand the arguments of those who would prefer complete transparency, but, again, it's my understanding that the level of confidentiality here is par for the course in international trade negotiations.
One thing bears repeating: there is no agreement yet; negotiations over ACTA may well last another year or more, and each round will likely produce more drafts, more revisions, and more leaks. And one thing is clear: whatever emerges from the negotiation process will not represent the radical change in US law that the more irresponsible among the ACTA critics are claiming will result.
(Corrected to indicate that the lecture occurred at Yale College, not the law school.)
Saturday, November 7, 2009
OK, so let’s go through this again. You take the original recording…
Make a single copy. Analyze it. Destroy it. Create a new simulation based on parametrics of sound. You’ll be shocked at how the brain, in terms of its perceptual coding in the central nervous system, turns these sounds into electrical impulses, which then affect your mood, your cognizance, etc. Pyschoacoustic simulation exploits aspects of perception that are not present in the original work.
It’s an art. The first simulations we did were awful. It’s an art. It’s not a copying at all.
Perhaps most telling, when reporter Todd Martens asked Risan about the fact that the BlueBeat site bills the recordings as actual Beatles recordings, Risan -- who is a defendant in the labels' lawsuit -- had no answer:
But I’m looking at our screenshots. It says, ‘Let It Be … Naked’ Capitol Records, 2003. I would think I’m buying the Capitol Records album that was remastered and released in 2003.
I don’t know what to say about that.
The "pyscho-acoustic simulation" does not improve with age, or further explication.
Scribd moves to strike class allegations from copyright suit; warns of potential for 'horrendous, possibly annihilating punishment'
Motion to Strike Class Allegations in Scott v. Scribd
Scribd's papers make clear that its primary defense will be the safe harbor found at Section 512(c) of the DMCA. It opposes class certification on various grounds, primarily that individual issues of knowledge, copyright registration, and infringement would predominate over questions common to all members of the purported class of copyright owners whose rights are alleged to have been violated by Scribd. Scribd also argues that certification of a class of plaintiffs seeking statutory damages would violate its due process rights, resulting in a "horrendous, possibly annihilating punishment" that could "bankrupt" Scribd for the "inconsequential infringement of one out-of-print book." Interestingly, plaintiff Elaine Scott's counsel Kiwi Camara has made similar arguments in defense of his client Jammie Thomas-Rasset, where a constitutional challenge to the jury's award of $1.92 million for Thomas-Rasset's infringement of 24 songs is fully briefed and awaits a decision by Judge Michael Davis in Minneapolis.
Scribd is represented by Barry Flynn of Gordon & Rees' Houston office.
Thursday, November 5, 2009
Indeed, since the en banc decision was handed down, it seems that every conference and informal gathering in the field eventually morphs into trying to figure out what the majorityHere's the
was smokingopinion means, how judges should comply with it, how law enforcement should respond to it, and whether and how long it will be until it is overturned.
Order granting TRO in Capitol v. Bluebeat
The court also ordered further briefing and set a hearing for November 20 on whether to convert the TRO into a preliminary injunction. Under FRCP 65, the TRO itself lasts just 10 days. BlueBeat, based in Santa Cruz, CA, started selling and streaming Beatles tunes on October 30, without any licenses from the copyright owners.
Wednesday, November 4, 2009
And so yesterday the legal hammer predictably came down on the Santa Cruz, CA-based BlueBeat. Capitol and several other record labels sued BlueBeat for copyright infringement, alleging in a Nov. 3 complaint filed in federal court in Los Angeles that the site is "engaged in music piracy of the most blatant and harmful kind." The labels also moved for a temporary restraining order enjoining BlueBeat's allegedly infringing conduct, which includes offering songs by The Beatles and many other artists.
What's really fascinating is BlueBeat's response. BlueBeat claims that "Plaintiffs are not likely to succeed on the merits because Defendants' website markets and sells an entirely different sound recording than that copyrighted by Plaintiffs." BlueBeat says it "independently developed [its] own original sounds" that consist of "entirely different sound recording[s]" through a technical process it calls "psycho-acoustic simulation." BlueBeat even says it obtained copyright registrations on such "new" recordings (which, as the plaintiffs point out, are exactly the same as the original recordings).
BlueBeat claims its scheme is protected by 17 U.S.C. § 114(b), which provides:
The exclusive right of the owner of copyright in a sound recording under clause (1) of section 106 is limited to the right to duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording. The exclusive right of the owner of copyright in a sound recording under clause (2) of section 106 is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality. The exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.But, as the labels point out in their reply brief, Section 114 simply permits a band that records a cover version of a song to attempt to imitate the original recording, without fear of a copyright lawsuit by the original recording artist. It does not permit a company to re-record a recording by some new technical means -- even a "psycho-acoustic simulation" device -- and then sell the "new" recordings. BlueBeat also claims, "Defendants do not transmit digital audio performances; instead, Defendants deliver audio visual performance with related sounds pursuant to their copyrights." This is absurd. One cannot copy a sound recording and then avoid an infringement claim by adding pictures.
Unless BlueBeat can come up with some better arguments than this (and if it had better arguments, I'm sure it would have already made them), it is not long for this world. And we can all go back to speculating when The Beatles will be available on iTunes.
Update: the court granted the plaintiffs' motion for a TRO. I suspect this is the last we will see of the "psycho-acoustic simulation" defense.
Jones v. Minkin Dismissal
As Above the Law notes, "Pursuant to Rule 41(a)(1)(A)(i)(B), the dismissal is without prejudice. But if Professor Jones were to attempt to refile at this point in time, he would encounter a statute of limitations problem." The move will allow Jones to escape paying sanctions or attorneys' fees for filing a complaint that was shredded across the legal blogosphere. The defendants' counsel Marc Randazza issued the following statement to Above the Law:
I’m relieved that Mr. Jones came to his senses. We were prepared to file a motion to dismiss and a motion for sanctions, and we were confident that both would have been successful. I am consistently unimpressed by academics and anti-speech parties who think that the courts are there for the redress of foolishness, not the legitimate redress of valid legal grievances.I think Jones' dismissal is a tribute to the power of the blogosphere to, at least every once in a while, shame bad actors into doing the right thing.
Tuesday, November 3, 2009
Sydnor on IP Czar nomiee Espinel: 'widely respected...hard-working, substantive, pragmatic and sensible'
Personally, I conclude that President Obama selected an excellent nominee. Indeed, I can't think of anyone better endowed with the experience, expertise, and judgment needed to be a successful Coordinator.***[A]n ideal nominee for the role of IP Coordinator would possess (1) deep familiarity with the various agencies and personnel now involved in aspects of intellectual property law and policy; (2) proven and widely respected expertise and judgment, and (3) close connections to USTR.
From personal experience, I can report that President Obama's nominee for IP Coordinator, Victoria Espinel, satisfies all three criteria. During the last Administration, I served as an advisor on copyright law and policy in USPTO's Office of International Relations. Because much of my work involved either our always colorful IP relations with China or the U.S.-Korea Free Trade Agreement, I often worked closely with the excellent IPR team at USTR.
The leader of USTR's IP-related efforts was the Assistant United States Trade Representative for Intellectual Property and Innovation, Victoria Espinel. She was very widely respected because she was hard-working, substantive, pragmatic and sensible--she could analyze details with the best of the experts and then explain their implications in plain terms to politicians and foreign officials.
Espinel's confirmation hearing before the Senate Judiciary Committee is set for 2:00 p.m. EST tomorrow; the committee's web site indicates that the hearing will be webcast.
Monday, November 2, 2009
Here's the story: D. Marvin Jones is a professor at the University of Miami Law School, where he teaches constitutional law, criminal procedure, and employment discrimination. In September 2007, Prof. Jones was arrested and charged with solicitation of prostitution, after Miami police said that he offered $20 in exchange for sex to a woman who turned out to be an undercover cop. Of course, the story was irresistible to Above the Law, which delights in highlighting lawyers' most unlawyerly behavior. And so the blog ran numerous posts on Jones, dubbing him "The Nutty Professor" and posting the "incident report" on his arrest, on which it commented, "Note the tension between (1) Professor Jones’s pimpin’ ride, a Mercedes SL500, and (2) his alleged offer of a mere $20 to the 'undercover officer possing [sic] as a prostitute.'" It also ran a photocollage forwarded by a reader, which depicted Jones' face on a $20 bill and imagined him conversing with prostitutes. The charges were later dropped, and his record "expunged," reports the National Law Journal, and Jones remains on the Miami faculty.
But, of course, that is not the end of the story. Last week Jones, acting pro se, filed a complaint in federal court in Miami against ATL Founding Editor David Lat, as well as ATL's parent company and David Minkin, the parent's co-founder and publisher. The complaint includes three causes of action based on ATL's alleged insinuation that Jones had committed a crime, and on its posting of the photocollage: 1) false light; 2) invasion of privacy; 3) and copyright infringement, based on ATL's display of a photo of Jones.
Jones v. Minkin Complaint
On what grounds may Jones' lawsuit be dismissed? Let us count the ways (and, please, feel free to suggest more in the comments):
1) The false light claim is DOA. How do we know? Because the Florida Supreme Court told us in October 2008, in no uncertain terms, that false light simply doesn't exist as a cause of action in Florida:
Because we conclude that false light is largely duplicative of existing torts, but without the attendant protections of the First Amendment, we decline to recognize the tort....Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098 (Fla. 2008). How a Florida law professor could file a lawsuit grounded in a tort that, only a year before, had been rejected by the Supreme Court of his state, is beyond me.
2) Jones' complaint makes much of the photocollage, which it calls a "racist cartoon." (Jones is African-American.) But any (non-IP) claim based on ATL's printing of it is clearly barred by Section 230 of the Communications Decency Act, which provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." On page 2 of the complaint, Jones concedes that the photocollage was "forwarded" to ATL by a third party. In other words, it was "provided by another information content provider." Section 230 should bar any Jones' claims insofar as they are based on the photocollage. Update: for those questioning whether Section 230 would apply here, please read such cases as Batzel v. Smith, Barrett v. Rosenthal, and Blumenthal v. Drudge. Yes, courts have interpreted the reach of the statute as extraordinarily broad -- likely much broader than Congress ever intended.
3) Jones' claim for invasion of privacy is premised on the allegation that ATL "ma[de] private records public." Huh? ATL posted a police "incident report" about Jones' arrest -- clearly a public record. See Fla. Stat. § 119.105 ("Police reports are public records except as otherwise made exempt or confidential."). (The Miami Herald also reported on the incident report. See "UM law professor charged with solicitation," Miami Herald, Oct. 26, 2007.) Jones emphasizes that his arrest was "expunged," but ATL still has the First Amendment right to report on it. Jones simply hasn't identified any private information allegedly revealed by ATL.
4) Lastly, Jones' copyright claim is almost certainly doomed as well. A copyright plaintiff must allege and prove ownership and registration of the copyrighted work. See 17 U.S.C. § 411; Montgomery v. Noga, 168 F.3d 1282, 1289 (11th Cir. 1999). Jones has done neither. In fact, his complaint says that the photo was "stolen from the UM website without permission," strongly suggesting that the university -- not Jones -- is the actual copyright owner. And in the unlikely event that Jones is able to prove that he is the copyright owner, ATL has a good chance of prevailing on a fair use defense. See Sedgwick Claims Management Services, Inc. v. Delsman, 2009 WL 2157573 (N.D. Cal., July 17, 2009) (granting motion to dismiss copyright claim on grounds of fair use where blogger had posted photos of business executives he criticized on blog).
Jones has asked for a total of $44 million, as well as an injunction ordering ATL to remove the offending content. He'll be lucky if he escapes without an award of sanctions and attorneys' fees. (Florida has two narrow anti-SLAPP statutes, but they don't appear to apply here.)
Both Jones and Lat declined to comment to the National Law Journal. I've emailed them both, to give them the chance to comment here if they choose.
Update: Prof. Volokh agrees with my take, calling the lawsuit "a loser. In part, it’s even downright frivolous."