Thursday, August 30, 2007

Community Property Joint Tortfeasors?

Wired had an article yesterday (with useful links), to an opinion in a case brought by the RIAA (Atlantic Recording Corp. v. Pamela and Jeffrey Howell, wife and huisband), on the right to make available via file sharing (link here). I discussed the issue in an earlier post, so I won't repeat that discusion here. One part of the case was most unusual: the court's discussion of whether one spouse could be liable for the actions of another under an alleged theory of community property liability.


Having grown up in a community property state (California), I was interested in the intersection of community property laws and copyright as a law student. The first article I ever wrote on copyright was as a third year, on that precise question. It was published in what was then called the Bulletin of the Copyright Society, 28 Bull. Copr. Soc'y 237 (1981). For court decisions, see Compare Rodrigue v. Rodrigue, 218 F.3d 432 (5th Cir. 2000) with In re Marriage of Worth, 195 Cal. App. 3d 768, 241 Cal. Rptr. 135 (1st Dist. 1987); Jackson v. Kitsap County Court, 211 F.3d 1273 (9th Cir. 2000) (noting, but not deciding issue); Stein v. Soyer, 1997 WL 104967 (S.D. N.Y. 1997); Sheshtawy v. Sheshtawy, 150 S.W.3d 772 (Tex. App. San Antonio 2004) (patents); Miner v. Miner, 2002 WL 33955151 (Tex. App. Corpus Christi 2002) (derivative software copyrights); Alsenz v. Alsenz, 101 S.W.3d 648 (Tex. App. Houston 1st Dist. 2003); Teller v. Teller, 99 Haw. 101, 53 P.3d 240 (2002); Hass v. Hass, 2000 WL 1474881 (Conn. Super. Ct. 2000); (ordering transfer of 25% copyright interest as part of marital distribution); Boutz v. Donaldson, 128 N.M. 232, 1999, 1999-NMCA-131, 991 P.2d 517 (Ct. App. 1999) (child support).


The RIAA case, though, liability was sought by plaintiff against the community. This was a federal copyright claim, so it is a mystery to me why state law grounds were even discussed. In any event, the court noted that under state law there is no presumption of community liability, and that "there was no showing or even argument ... that Pamela Howell consented to Jeffrey Howell's distribtution of the sound recordings or that the distribution was committed with the intent to benefit the community."

1 comment:

tekel said...

While your discussion is even-handed, I would respectfully suggest that the RIAA's intent in suing husband AND wife is probably not.

I freely confess that this is the first error of /. (posting a comment without reading the case), but could they not prove who did the uploading? Or has the couple recently divorced? Are all of the assets in her name, even though it's a community state?

I can think of several reasons to name both husband and wife as defendants that have nothing to do with federal copyright law and much more to do with *ahem* persuading the alleged infringers to settle.