Recently, the Motion Picture Association of America began sending thousands of letters to colleges and universities across the country, reminding them of their obligation to set up a "written plan to effectively combat the unauthorized distribution of copyright material by users of the institution's network" under the Higher Education Opportunity Act of 2008. Because we believe that intellectual property rights are important and the unauthorized downloading of copyrighted music, movies, and television programs is wrong, we applaud this move and hope that universities abide by the guidelines set down in the HEOA.Read the whole, excellent, thing.
Our support for the MPAA’s actions is based on our belief that the unauthorized downloading of music, movies, and television programs, although easy, is questionable at the most basic level. In our postindustrial economy, the protection of intellectual property rights is important for several reasons. First, these rights must be safeguarded in order to provide an incentive for innovation. Without any guarantee of legitimacy, entrepreneurs will have no motivation to create new intellectual property, as it could be stolen at any time. Second, at a broader level, intellectual property rights are important because each person has a fundamental right to enjoy the fruits of his or her mental labor. Intellectual entrepreneurship requires a broad societal commitment to the rule of law and the importance of private enterprise.
Tuesday, December 14, 2010
It has been a busy month for the Supreme Court not tackling copyright issues. On November 29, 2010, the Court denied certiorari in two copyright cases, Harper v. Maverick Recording Co., No. 10-94, and Bryant v. Media Right Productions, No. 10-415. Then, on December 13, it announced that no decision would be issued in Costco Wholesale Corp. v. Omega, S.A., No. 08-1423, due to a 4-4 split (Justice Kagan was recused). Along with the Court’s decision back in March to avoid the Section 411 registration/application issue in Reed Elsevier, Inc. v. Muchnick, 2010 will end with the Supreme Court having missed some opportunities to clarify parts of the Copyright Act that have real-world ramifications for copyright owners, users, and legal practitioners.Definitely read the whole thing.
Wednesday, December 8, 2010
As Chairman of the Committee, I will focus on efforts to strengthen national security, protect intellectual property, prevent frivolous lawsuits and keep children safe from Internet sex predators. The Judiciary Committee will support industries that employ millions of Americans by protecting their patents and copyrights.(h/t TechDailyDose)
Tuesday, December 7, 2010
- Thomas-Rasset is seeking to have the award reduced to zero, on constitutional grounds. She is explicitly forgoing an argument based on common-law remittitur, the means by which the court reduced the second jury's award of $1.92 million down to $54,000. The court's decision on this motion -- which I expect him to grant, at least in part -- will allow one or both sides to appeal immediately to the Eighth Circuit, mercifully sparing all parties a fourth trial.
- The labels are seeking an injunction against further infringement by Thomas-Rasset via peer-to-peer or other means.
- The court told Harvard Law Professor Charles Nesson "thanks, but no thanks," rejecting his proposed amicus brief attacking the jury's award. "The proposed brief would not be of assistance to the Court," ruled Chief Judge Michael Davis of the District of Minnesota. " "Not so much as a thank you for the effort," lamented Nesson, adding, ":<("
Tuesday, November 30, 2010
If you're so inclined, you can vote for C&C as the top blog in the IP category here.
Monday, November 29, 2010
Justice Samuel Alito filed a dissent to the denial of cert., questioning whether Section 402(d) was meant to apply to a digital file, as opposed to a copy made directly from a physical object like a CD. See Order at 26.
Wednesday, November 10, 2010
Wednesday, November 3, 2010
The jury in the third copyright trial of the Brainerd, Minnesota woman has just returned a verdict of $1.5 million in statutory damages, or $62,500 for each of the 24 songs that she downloaded and "shared" over the KaZaA peer-to-peer network.
The award is significantly higher than the $222,000 award in her first trial (which was thrown out when the judge determined the jury instructions to be flawed), and a bit lower than the $1.92 million award in the second, which was reduced by the judge to $54,000 under the common-law doctrine of remittitur. After the second trial, Thomas-Rasset -- who denied downloading any music over peer-to-peer networks -- rejected a settlement offer of $25,000 from the record label plaintiffs, who said they would donate the amount to a music-related charity.
The RIAA said in a statement after the verdict:
We are again thankful to the jury for its service in this matter and that they recognized the severity of the defendant's misconduct. Now with three jury decisions behind us along with a clear affirmation of Ms. Thomas-Rasset’s willful liability, it is our hope that she finally accepts responsibility for her actions.This is far from the end of the road in this case. Thomas-Rasset is expected to challenge the size of the award again, and the judge has already determined that $54,000 is the maximum acceptable size for an award given the evidence in the case.
I'll update as more information becomes available.
Jammie Thomas-Rasset Verdict
Friday, October 29, 2010
Readers of this blog are likely already familiar with the arguments over whether awards of copyright statutory damages are subject to review under the Supreme Court's punitive damages cases, including BMW v. Gore. I thought this brief did a particularly effective job at explaining why Gore and its progeny are inapplicable to statutory damages awards, where Congress has clearly established the permissible damages range, and thus the jury is not left without the "guideposts" that the court set forth in Gore, where no statute cabined the jury's discretion. And the brief highlights the flaws in the district court's own damages analysis, including its failure to take into account the evidence that Tenenbaum distributed (uploaded) songs to countless others in addition to downloading them. Of note, the labels' appellate team now includes former US Solicitor General Paul Clement, now a partner at King & Spalding.
Tenenbaum's defense team has also indicated that it will appeal, arguing that even the reduced award is unconstitutionally excessive.
Record Labels' appellate brief in Sony v. Tenenbaum
Nesson motion for pro hac vice
Trial is set to begin Tuesday, Nov. 2, and will concern only damages.
Wednesday, October 27, 2010
Friday, October 22, 2010
Order denying motion for reconsideration
Wednesday, October 20, 2010
The Justice Department, which has intervened in the case in defense of the constitutionality of the statutory damages provision of the Copyright Act, also filed a brief opposing reconsideration, citing the long-standing doctrine that courts should avoid ruling on constitutional issues where possible.
With trial set to begin in less than two weeks, I expect a fairly quick ruling from Judge Michael Davis of the District of Minnesota. I'm told that at a hearing last week Judge Davis expressed serious interest in such a motion for reconsideration, but it's far from certain that he will grant it.
Friday, October 15, 2010
Here's the intro to the labels' brief:
This case involves a straightforward application of 17 U.S.C. § 402(d). Petitioner has never disputed that Respondents placed proper copyright notices on the published sound recordings at issue and that Petitioner had access to these published works. Therefore, as the Fifth Circuit correctly determined, section 402(d) bars Petitioner from asserting a so-called “innocent infringement” defense as a matter of law.The Fifth Circuit here and the Seventh Circuit in BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005) came to the the same conclusion on this very point in very similar cases. And the label's brief explains why D.C. Comics, Inc. v. Mini Gift Shop, 912 F.2d 29 (2d Cir. 1990) -- which did not involve sound recordings, the Internet, or indeed 17 U.S.C. Sec. 402(d) -- is not in conflict with Harper and Gonzalez, the defendant's arguments to the contrary notwithstanding.
Petitioner’s primary argument for certiorari rests on the false premise that the circuit courts are divided on the legal standard for applying section 402(d). There is, however, no circuit split. The Second Circuit authority upon which Petitioner relies never even considered the application of section 402(d). In addition to the absence of any circuit split, this case provides an ill-suited vehicle for considering the legal standard for applying section 402(d). Petitioner’s argument that a lack of copyright notice on the specific digital recordings she infringed should defeat application of section 402(d) does not square with the plain language of the statute, ignores Petitioner’s admission that she had access to Respondents’ published works carrying the proper copyright notices, and was never raised in the lower courts. For all of these reasons, the Court should deny the Petition.
See my previous posts on this case here and here.
Plaintiffs' Opposition to petition for certiorari in Maverick Recordings v. Whitney Harper
The parties are preparing for a new trial starting Nov. 2, to focus only on damages, following the court's remittitur of the $1.92 million verdict handed down by a Minneapolis jury in 2009. But Judge Michael Davis indicated at a pre-trial hearing on Tuesday that he will give serious consideration to a defense request to modify his order so that it would instead rest on constitutional grounds. That would bring a degree of finality to the case, at least in the district court, and allow for an immediate appeal by one or both sides. I'm told that at the hearing, Judge Davis actually alluded several times to the movie Groundhog Day, referencing the scenario where he would repeatedly remit jury awards, only to have that remittitur refused by the plaintiffs, necessitating yet another trial, and ad infinitum.
Today the defense filed its brief seeking such reconsideration. It cites to the order issued by Judge Nancy Gertner in the Joel Tenenbaum case, which reduced the jury's award from $675,000 to $67,500 on constitutional grounds. In his original order, Judge Davis declined to reach the constitutional issues, citing United States v. Allen, 406 F.3d 940, 946 (8th Cir. 2005) (“When we are confronted with several possible grounds for deciding a case, any of which would lead to the same result, we choose the narrowest ground in order to avoid unnecessary adjudication of constitutional issues.).” In her order in the Tenenbaum case, Judge Gertner concluded that avoiding the constitutional issues was impossible essentially because of the Groundhog Day problem.
I'm told that the labels' plan to oppose Thomas-Rasset's motion for reconsideration; their response is due Wednesday, Oct. 20.
Defendant's Motion for Reconsideration
Wednesday, October 13, 2010
I don't think there's much of a copyright issue with the visuals in the Grayson spot; as far as I can tell, there's no copying of actual HBO footage, and I doubt HBO has a copyright in the idea of a montage of urban scenes from a driver's perspective. The much tougher issue for the Grayson campaign is the music, which appears to be a re-recording of the Sopranos theme (a song called "Woke Up This Morning" by British band Alabama 3 (aka A3)), with new lyrics that mock Grayson's opponent Daniel Webster (R). As to the music, the facts appear to be very similar to those in the Henley v. DeVore case, where the defendant also took a well known song and re-recorded it, substituting new lyrics attacking his political opponents. The court in the DeVore case soundly rejected the defendants' fair use argument, largely on the grounds that the campaign's use was satirical (using the work to poke fun at something else) rather than parodic (poking fun at the work itself). See Campbell v. Acuff-Rose Music, Inc., 510 US 569 (1994) (explaining parody/satire distinction).
Here's some background from the Orlando Sentinel.
Thursday, October 7, 2010
Wednesday, October 6, 2010
Tuesday, October 5, 2010
Here's the original ad:
And the edited version:
Tuesday, September 21, 2010
The Court's unusual action is a sign of the Court's interest in the case. A recent study indicated that the Court's request for a response significantly increases the chances the Court will ultimately grant review -- which could turn into a major contest for the music industry.
Monday, September 20, 2010
Thursday, September 16, 2010
The campaign ad has been removed from Carnahan's web site and YouTube, so unfortunately I can't independently evaluate it. (Update: here it is, at least for now.) But the complaint alleges that it was a "smear ad" that falsely implies that Fox and Wallace endorsed Carnahan's campaign. The complaint says that the 32-second ad uses "an essentially verbatim copy of a 30-second clip of both video footage and voice-over commentary appropriated from" an interview Wallace conducted with Blunt in 2006. The complaint also seems to say that the Fox footage included in the Carnahan ad included only Wallace's questions -- but not Blunt's answers:
The defendant’s conduct in stealing only certain footage from the [Fox] Interview is also false and misleading: Wallace’s tough questions were included, but Blunt’s answers and explanations were not.
The Kansas City Star described the ad as follows:
As for the right of publicity claims, I am not familiar enough with the specifics of Missouri law to say anything too definite. I would just point out that courts are very protective of First Amendment interests in the political context, see, e.g., Meyer v. Grant, 486 US 414 (1988) (First Amendment interests are "at its zenith" in the political realm), and there are strong arguments for limiting right of publicity claims to truly commercial uses of an individual's name and likeness.
(Updated with additional detail about the ad.)
Wednesday, September 8, 2010
Monday, August 30, 2010
Go read the whole thing, including Locke's entreaty to "content owners and Internet service providers  to work collaboratively to combat intellectual property infringement online" and "[e]specially to combat repeat infringement."
Jimmy Asci, a spokesman for music publisher Sony/ATV, which owns the composition to the 1983 single, confirmed that the Mahoney campaign had used the song without obtaining a license, and that the video was removed before a cease-and-desist letter was even issued. "It wasn't licensed," he said. "This happens all the time. 99.9% of the time, they take it down" upon receipt of a notice, according to Asci. "We don't really go any further than that."
It's notable that of the three recent copyright lawsuits involving campaigns of which I'm aware -- Jackson Browne v. John McCain, Don Henley v. Chuck DeVore, and David Byrne v. Charlie Crist -- all involved individual songwriters as plaintiffs, not publishers or record labels. Corporations simply want campaigns to knock off their unlicensed uses. Individual artists -- who often have strong political views of their own, and strong feelings about unwanted uses of their material -- tend to demand a pound of flesh.
Thursday, August 26, 2010
and it was still a loser.
Monday, August 23, 2010
Also, last Friday the AP and Mannie Garcia, the photographer who took the photo that served as the basis for Fairey's poster, voluntarily dismissed their claims and counterclaims. The two sides disputed whether the AP or Garcia owned the copyright in the photo. A source tells me that there was no "settlement," which suggests that Garcia simply dropped his claim. I have an inquiry in to his attorney and will update this post if I get additional information.
Update: The AP has released the following statement:
The Associated Press is very pleased that Mannie Garcia has withdrawn from the case with prejudice, meaning that he cannot refile his claim against the AP. The AP has not wavered in its belief that Mr. Garcia was a staff photographer at the time he took the image of then-Sen. Barack Obama, that AP properly employed Mr. Garcia, and that AP is the rightful copyright owner of the photo in question. Further, the AP is pleased that Mr. Garcia voluntarily withdrew without any payment or consideration of any kind -- this was not a settlement.
In a Court hearing on Monday, Judge Alvin Hellerstein indicated that he would sign the stipulation and enter the order. Also in Monday’s hearing, the judge set both a summary judgment schedule and a trial schedule for the case involving Shepard Fairey. The AP is happy to have these dates set. The AP continues to be confident in its position that the use Mr. Fairey made of its photo is not fair use, but one that should have been licensed so as to help ensure the AP's photographers will be able to continue creating new works. The AP looks forward to resolution whether through summary judgment or trial on the merits.
Wednesday, August 18, 2010
Friday, August 13, 2010
I don't argue that Rondor (the publisher of the Beach Boys' song) has a particularly strong claim. But before dismissing it as frivolous, consider such cases as:
- Life Music, Inc. v. Wonderland Music Co., 241 F. Supp. 653 (S.D.N.Y. 1965) (copying of single word "supercalifragilisticexpialidocious" may constitute infringement)
- Heim v. Universal Pictures, 154 F.2d 480 (2d Cir. 1946) ("There may be wrongful copying, though small quantitatively; so if someone were to copy the words, "Euclid alone has looked on Beauty bare," or "Twas brillig and the slithy toves.")
- Bridgeport Music, Inc. v. Dimension Films, 410 F. 3d 792 (6th Cir. 2005) (refusing to recognize de minimis defense to copying 2 seconds of sound recording)
- Bridgeport Music, Inc. v. UMG Recordings, 585 F.3d 267 (6th Cir. 2009) (upholding jury's rejection of fair use defense in copying of phrase "Bow wow wow, yippie yo, yippie yea")
Monday, August 9, 2010
Thursday, August 5, 2010
Henley, DeVore settle lawsuit; Henley rails against remixes and mash-ups, YouTube, 'dark side' of Internet; songs are not 'toys or playthings'
“This is a moral victory, and a victory for every copyright holder in the United States,” said Henley in an exclusive interview with Copyrights and Campaigns yesterday. “We set a precedent that will likely discourage this kind of behavior,” he added, referring to unauthorized uses of copyrighted songs by political campaigns. "I think this is going to have a very positive effect on the creators of music."
DeVore and co-defendant Justin Hart, the campaign’s Internet director, said in a statement, “We apologize for using the musical works of Don Henley, Mike Campbell and Danny Kortchmar without respect for their rights under copyright law. The court’s ruling in this case confirms that political candidates, regardless of affiliation, should seek appropriate license authority before they use copyrighted works.”
The lawsuit, which Henley had largely won at the district court, involved two videos made by the DeVore campaign which took the lyrics from Henley’s songs “The Boys of Summer” and “All She wants to do is Dance” and substituted in new lyrics attacking president Obama and Sen. Barbara Boxer (D-CA). DeVore argued that the videos were fair use parodies of Henley’s songs, but the court held that the videos were satirical rather than parodic and rejected the fair use defense. Questions of willfulness and damages were still to be resolved. The court did rule for the defendants on the plaintiffs' Lanham Act claim, which alleged that DeVore's videos falsely associated Henley with the Republican's campaign. DeVore lost the June primary to former HP exec Carly Fiorina (R) for the chance to take on Boxer in November.
In his interview with C&C, Henley said that his motivation for the lawsuit was not financial or political, but “simply a matter of my copyrights being violated by music being used in a way it was never intended to be used.” Henley -- who has donated $9,000 to Boxer’s campaigns over the years but shuns the “liberal” label (“my political life is not that simple”) -- insisted that he did not target DeVore because of the state Assemblyman’s conservative views, and indeed objects to all political uses of his songs, regardless of the candidate or cause. Henley noted that he similarly complained after 2008 North Carolina Democratic gubernatorial candidate Richard Moore’s campaign used the song “Life in the Fast Lane” in a YouTube video without permission. The Moore matter was settled after the campaign voluntarily took down the video and admitted error, Henley said.
Asked what advice he has for other musicians and songwriters whose songs are used by campaigns without permission, he said, “When you think you’re right—when you know you’re right—when someone has stolen and misused your intellectual property, you have to do something about it.... I could have let this go, but I had to stand up and do something about it.”
Henley blasted all unauthorized uses of his music, whether by politicians or just amateurs making remixes, mash-ups, and similar unlicensed uses on sites like YouTube. “I don’t condone it,” he said of such practices. “I’m vehemently opposed to it. Not because I don’t like parodies or satires of my work. But it’s simply a violation of U.S. copyright law.” He added, “People in my age group generally don’t like it. Songs are difficult to write; some of them take years to write. To have them used as toys or playthings is frustrating.” Henley noted that he does not license his songs for commercials and only rarely does so for uses in films and television.
And Henley reserved particularly ire for YouTube, which he described as a “fence” for stolen intellectual property. “YouTube is one of the biggest violators or copyright laws in the world,” he said. “A tremendous amount of the content on YouTube is a copyright violation.... I’m not a fan of YouTube at all for their part in aiding and abetting copyright violations.” YouTube, which hosted the videos at issue in the DeVore case, took them down in response to DMCA notices, but DeVore filed counter-notices, and YouTube would have re-posted them but for the filing of the lawsuit. (YouTube, of course, recently won a major copyright decision in a case brought by Viacom and other copyright owners, including a putative class of music publishers, when a federal court ruled that the site was protected by the DMCA’s safe harbor for hosts of user-generated content.)
And Henley lamented what he views as the lack of response in Washington to rampant infringement on the Internet: “The politicians are not supporting creators on these issues, and it’s extremely disappointing.” He blamed what he views as the lack of action on the political power of Internet companies. “The people who create and run these sites like YouTube have a lot of clout,” he said.
“The Internet is slowly but surely killing the whole concept of copyright,” complained Henley. “I don’t like where it’s going.... The Internet is a wonderful thing but it also has a very dark side.”
I have an inquiry in to DeVore and will publish his thoughts should he wish to share them.