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."
Sunday, November 1, 2009
I am pleased that today President Obama announced that he intends to nominate Victoria to this important position. Intellectual property is among our most valuable, and most vulnerable, assets. I believe Espinel’s experience will prove valuable in this inter-agency, and I look forward to working with her and the administration strengthen and enforce the laws protecting our intellectual property.Leahy, a longtime champion of copyright owners, was a co-sponsor of the PRO-IP Act, which established the IP Czar position in the Executive Office of the President. The PRO-IP Act passed the House 410-11 and by unanimous consent in the Senate, and was signed into law by then-President Bush on October 13, 2008.