Yesterday, Judge Posner handed down an opinion in Eagle Services Corp. v. H20 Industrial Services that is sure to cited by many future defendants who prevail and seek their attorney's fees. In a jury case, after Plaintiff rested, the district court granted defendant's motion for judgment as a matter of law, but denied a subsequent motion for attorney's fees. The district court found the suit not frivolous. The court of appeals found the suit to be frivolous. Plaintiff conceded it had suffered no actual damages and was not entitled to statutory damages. Instead, it sought defendant's indirect profits.
The suit involved an alleged claim of copyright infringement in a compilation of OSHA regulations. Employees of plaintiff left to start a new, competing firm. Plaintiff believing that defendants had taken its manual with them, and sent two people to defendant under the guise of being prospective customers. When they asked to see defendant's safety manual, they were shown plaintiff's. But defendants never sold copies of plaintiff's manual, and later developed their own manual that was, apparently, not infringing. In the litigation, plaintiff acted very aggressively, deposing all of H20's existing customers and a number of prospective ones as well. Judge Posner wrote, "the defendants claim without contradiction that as a result H20 lost many customers."
Plaintiff argued for a bizarre form of damages: "all the profits that H20 made in its business before it created is own manual." There was no ground for thinking there were any profits attributable to the infringement. Because the court of appeals found the suit to be frivolous and against a newer, smaller, and weaker competitor, as a matter of general law, the court of appeals thought that an award to defendant was required. If that is all the opinion said, I wouldn't be writing this blog. The court of appeals went on, saying that the case for fees to defendant is "even stronger in a copyright case." The backdrop to this is the continued refusal of some courts to adopt the even handed approach to awarding fees mandated by the Supreme Court's opinion in Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994). Before Fogerty many courts had a double standard in which prevailing plaintiffs got attorney's fees as a matter of course, but prevailing defendants had to prove plaintiff was something like a ax murderer.
Judge Posner set out to rectify the continued refusal of some court to comply with Fogerty:
If it is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and this gives it an incentive to spend heavily in litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on the defense is reduced and he may be forced into an unfavorable settlement.
...
In the typical copyright case a victory for the defendant enlarges the public domain by denying the plaintiff's right to prevent the defendant -- or anyone else -- from using the intellectual property alleged to infringe the plaintiff's copyright.
There is also this passage in the opinion:
When a plaintiff is suing just for money and he has no ground at all for obtaining a money judgment, the fact that his rights may have been violated does not save his suit from being adjudged frivolous. (page 5)
While this is dictum since Plaintiff's rights had not been found to be violated, it should be an important warning signs for copyright owners who have not suffered any financial harm, and are bringing suits, like Eagle did, for non-competitive reasons.
H.T. to C.E. Petit who I believe will disagree with this post.
Thursday, July 10, 2008
Wednesday, July 09, 2008
A 1909 Act work for hire puzzle
Olen York sent me this question awhile back. I would be interested in what people think. It involves the interplay between the 1909 Act and Section 303 of the 1976 Act. Here it is, slightly revised:
A mural is created in 1940 under a work for hire, but the work is not published. The author of the mural dies in 1950. What is the term of protection?
The term can't be life of the author plus 70 years since it is work for hire.
A mural is created in 1940 under a work for hire, but the work is not published. The author of the mural dies in 1950. What is the term of protection?
The term can't be life of the author plus 70 years since it is work for hire.
Tuesday, July 08, 2008
Patrick Ross and Fair Use
The Yiddish/Aramaic word “chutzpah” is well known, and has been defined variously as gall, audacity, insolence, and impertinence. Patrick Ross, head of the cartoonish Copyright Alliance, seems to have chutzpah in abundance, as seen on a blog post yesterday criticizing The Center for Social Media at American University, for its release of a “Code of Best Practices in Fair Use for Online Video.” The best practices are a “Future of Public Media Project,” funded by the Ford Foundation, a fact Mr. Ross omits.
Mr. Ross is not a lawyer, but formerly was with the right wing Progress and Freedom Foundation, which usually acts as a mouthpiece for corporate copyright owners. I have no idea whether or where Mr. Ross attempts to learn about copyright law, much less fair use. For my part, I have been a practicing copyright lawyer for 25 years, and have been studying fair use even longer, beginning in law school. In 1985, I wrote my first book on copyright, which was also the first book devoted just to fair use. The treatise’s first citation was by the Supreme Court in the Harper & Row case, issued shortly after the treatise came out. Subsequently, that treatise has been cited many more times by other courts. I have testified before a joint session of the IP subcommittees of Congress on fair use, worked on amendments to Section 107 as a Congressional staffer, argued fair use cases in the courts of appeals and district courts, written an article about fair use with Judge Posner, advised many clients about it, and discussed the issue with the European Commission, and many representatives of foreign governments. I am unaware of any qualifications Mr. Ross has to talk about fair use.
Nor is Mr. Ross an educator. Yet, regarding both fair use and education, in his criticism of the Center’s Best Practices, he speaks as if he knows more than those who are copyright lawyers and educators (and some who are both), beginning with a pompous, purported correction about the nature of fair use, scolding the Center for daring to utter the term “right” in the same sentence as fair use. I describe fair use as a privilege because in a court case entitlement to it has to be proved, and in this sense it is also an affirmative defense. But the status of fair use as an affirmative defense can be overstated. Technically, it means only that an initial burden of producing evidence lies with defendant. The ultimate burden of going forward always lies with plaintiff copyright owner. Even the weight of the burden of proof can vary depending on what the particular affirmative defense is. In the case of fair use, the principle is an extremely important one, essential to the constitutional goal of copyright, and without which copyright would probably be unconstitutional. The best expression of this is in Judge Leval’s seminal article, “Toward a Fair Use Standard,” 103 Harv. L. Rev. 1105, 1110 (1990): “Fair use should not be considered a bizarre, occasionally tolerated departure from the grand conception of the copyright design.”
To me that is the key: fair use is a part of the design of copyright, it is not an exception to it, and it is not to be applied begrudgingly or narrowly, but liberally. Yes, there is an initial obligation of defendant’s part to show that application of the defense in the particular case is not b.s., but once you do that, the playing field is not only level, but both sides of the equation have very important constitutional heft to them. Viewed this way, the question of whether fair use is a right or not is a waste of time. But lacking any understanding of law (does he also think he knows more about fair use than Judge Leval?), Mr. Ross chose to lead off his blog with precisely such a waste of time, delivered in a schoolmarmish manner, an odd conceit since he is not an educator but is criticizing educators.
Mr. Ross was just warming up to his main them, namely that the Center is engaging in “dangerous” activities, whereas the Copyright Alliance is engaging in the copyright equivalent of safe sex. Here is what the Center says about its “Best Practices”:
This document is a code of best practices that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances.
This is a guide to current acceptable practices, drawing on the actual activities of creators, as discussed among other places in the study Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video and backed by the judgment of a national panel of experts. It also draws, by way of analogy, upon the professional judgment and experience of documentary filmmakers, whose own code of best practices has been recognized throughout the film and television businesses.
WHAT THIS ISN’T
This code of best practices does not tell you the limits of fair use rights.
The Center’s Best Practices are not, therefore, legal advice, but instead an attempt to list some of the actual practices of those in the field, including, and I quote because Mr. Ross omits this, “the actual activities of creators ,” that is, those whose Mr. Ross’s organization purports to speak for but doesn't. Here is what Mr. Ross said on the Copyright Alliance’s blog yesterday about the Best Practices:
They have published a Best Practices Guide for fair use in online video. This is a dangerous effort. We at the Copyright Alliance support education on fair use and have information on our site. But our information is intentionally broad; we do not want to be in the position of giving legal advice to specific end-users of copyrighted works.
But that is precisely what the best practices guide writers run the risk of doing, although some review of the site suggests that there isn’t much “there” there. What is implied suggests a significant expansion of the current established thinking of fair use, going far beyond legal precedent. Lord help the individual who follows their guidance and finds out that just because AU says it’s fair use doesn’t mean it’s fair use.
Let’s see what this means: a guy who isn’t a lawyer, much less a copyright lawyer, thinks it is a dangerous effort for copyright lawyers, educators, and those who deal with real world fair use problems on a daily basis to address some of the common problems presented, not as legal advice, but as “best practices.” The safe sex approach, according to Mr. Ross is the type of education that Mr. Patrick’s group – a front for large corporate copyright owners – gives, namely always ask permission. I have previously blogged about the Copyright Alliances wildly one-sided view of copyright, so I won’t repeat it here. I don’t know what kind of a review Mr. Patrick Ross gave to the Center’s best practices, but I doubt it was either extensive or meaningful given the lack of a single example from the best practices themselves. He admits he only gave the Best Practices “some review,” but since he only refers to a video montage and not the practices themselves, he may have engaged in the equivalent of only reading the cover of a book.
I can say, based on my over 25 years of experience with fair use, over 25 years more than Mr. Ross has, that the site doesn’t “imply” “a significant expansion of the current established thinking of fair use, going far beyond legal precedent,” as he states. Mr. Ross’s purpose is not to engage in a constructive debate about specific examples and whether those examples are appropriately a fair use, something reasonable minds might disagree on. Rather, his purpose is to silence those who try to provide responsible, thoughtful guidance to those on the ground, and ultimately to silence those who dare to suggest there can be fair use at all.
Mr. Ross is not a lawyer, but formerly was with the right wing Progress and Freedom Foundation, which usually acts as a mouthpiece for corporate copyright owners. I have no idea whether or where Mr. Ross attempts to learn about copyright law, much less fair use. For my part, I have been a practicing copyright lawyer for 25 years, and have been studying fair use even longer, beginning in law school. In 1985, I wrote my first book on copyright, which was also the first book devoted just to fair use. The treatise’s first citation was by the Supreme Court in the Harper & Row case, issued shortly after the treatise came out. Subsequently, that treatise has been cited many more times by other courts. I have testified before a joint session of the IP subcommittees of Congress on fair use, worked on amendments to Section 107 as a Congressional staffer, argued fair use cases in the courts of appeals and district courts, written an article about fair use with Judge Posner, advised many clients about it, and discussed the issue with the European Commission, and many representatives of foreign governments. I am unaware of any qualifications Mr. Ross has to talk about fair use.
Nor is Mr. Ross an educator. Yet, regarding both fair use and education, in his criticism of the Center’s Best Practices, he speaks as if he knows more than those who are copyright lawyers and educators (and some who are both), beginning with a pompous, purported correction about the nature of fair use, scolding the Center for daring to utter the term “right” in the same sentence as fair use. I describe fair use as a privilege because in a court case entitlement to it has to be proved, and in this sense it is also an affirmative defense. But the status of fair use as an affirmative defense can be overstated. Technically, it means only that an initial burden of producing evidence lies with defendant. The ultimate burden of going forward always lies with plaintiff copyright owner. Even the weight of the burden of proof can vary depending on what the particular affirmative defense is. In the case of fair use, the principle is an extremely important one, essential to the constitutional goal of copyright, and without which copyright would probably be unconstitutional. The best expression of this is in Judge Leval’s seminal article, “Toward a Fair Use Standard,” 103 Harv. L. Rev. 1105, 1110 (1990): “Fair use should not be considered a bizarre, occasionally tolerated departure from the grand conception of the copyright design.”
To me that is the key: fair use is a part of the design of copyright, it is not an exception to it, and it is not to be applied begrudgingly or narrowly, but liberally. Yes, there is an initial obligation of defendant’s part to show that application of the defense in the particular case is not b.s., but once you do that, the playing field is not only level, but both sides of the equation have very important constitutional heft to them. Viewed this way, the question of whether fair use is a right or not is a waste of time. But lacking any understanding of law (does he also think he knows more about fair use than Judge Leval?), Mr. Ross chose to lead off his blog with precisely such a waste of time, delivered in a schoolmarmish manner, an odd conceit since he is not an educator but is criticizing educators.
Mr. Ross was just warming up to his main them, namely that the Center is engaging in “dangerous” activities, whereas the Copyright Alliance is engaging in the copyright equivalent of safe sex. Here is what the Center says about its “Best Practices”:
This document is a code of best practices that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances.
This is a guide to current acceptable practices, drawing on the actual activities of creators, as discussed among other places in the study Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video and backed by the judgment of a national panel of experts. It also draws, by way of analogy, upon the professional judgment and experience of documentary filmmakers, whose own code of best practices has been recognized throughout the film and television businesses.
WHAT THIS ISN’T
This code of best practices does not tell you the limits of fair use rights.
The Center’s Best Practices are not, therefore, legal advice, but instead an attempt to list some of the actual practices of those in the field, including, and I quote because Mr. Ross omits this, “the actual activities of creators ,” that is, those whose Mr. Ross’s organization purports to speak for but doesn't. Here is what Mr. Ross said on the Copyright Alliance’s blog yesterday about the Best Practices:
They have published a Best Practices Guide for fair use in online video. This is a dangerous effort. We at the Copyright Alliance support education on fair use and have information on our site. But our information is intentionally broad; we do not want to be in the position of giving legal advice to specific end-users of copyrighted works.
But that is precisely what the best practices guide writers run the risk of doing, although some review of the site suggests that there isn’t much “there” there. What is implied suggests a significant expansion of the current established thinking of fair use, going far beyond legal precedent. Lord help the individual who follows their guidance and finds out that just because AU says it’s fair use doesn’t mean it’s fair use.
Let’s see what this means: a guy who isn’t a lawyer, much less a copyright lawyer, thinks it is a dangerous effort for copyright lawyers, educators, and those who deal with real world fair use problems on a daily basis to address some of the common problems presented, not as legal advice, but as “best practices.” The safe sex approach, according to Mr. Ross is the type of education that Mr. Patrick’s group – a front for large corporate copyright owners – gives, namely always ask permission. I have previously blogged about the Copyright Alliances wildly one-sided view of copyright, so I won’t repeat it here. I don’t know what kind of a review Mr. Patrick Ross gave to the Center’s best practices, but I doubt it was either extensive or meaningful given the lack of a single example from the best practices themselves. He admits he only gave the Best Practices “some review,” but since he only refers to a video montage and not the practices themselves, he may have engaged in the equivalent of only reading the cover of a book.
I can say, based on my over 25 years of experience with fair use, over 25 years more than Mr. Ross has, that the site doesn’t “imply” “a significant expansion of the current established thinking of fair use, going far beyond legal precedent,” as he states. Mr. Ross’s purpose is not to engage in a constructive debate about specific examples and whether those examples are appropriately a fair use, something reasonable minds might disagree on. Rather, his purpose is to silence those who try to provide responsible, thoughtful guidance to those on the ground, and ultimately to silence those who dare to suggest there can be fair use at all.
Wednesday, July 02, 2008
Orit Fischman Afori
I just returned from a trip to Israel, where I had the pleasure of finally meeting in person the great Israeli IP scholar and law professor Orit Fischman Afori of the College of Management Academic Studies Law School. Professor Afori is a prolific and probing writer and thinker. I don't know how she finds the time to write so much. She has a very heavy teaching load, two young children, and a very demanding husband (just kidding! Her husband Tamir is a good friend too, and is equally charming. Those who came to the last Fordham International IP conference may have heard him speak about the new Israeli fair use provision, which he was intimately involved in sheparding through the Knesset as an attorney in the Ministry of Justice).
Most of her works are in Hebrew, and I am fortunate indeed to have some of them. But we are all fortunate that she has begun publishing in English. All Israeli copyright scholars I know are fluent in English, and at the most abstract, technical levels of proficiency. Their knowledge of international and U.S. law is vast and current. Others, such as Oren Bracha and Dotan Oliar are experts on very early English and U.S. copyright law. Their scholarship and research is impeccable.
To give readers a flavor of Professor Afori's work, I will focus on three recent publications, copies of which I have provided with links. The first article is called, "Reconceptualizing Property in Designs." It is published in volume 25 of the Cardozo Arts and Entertainment Law Journal, and is available here. The article notes the ill-fit of design protection in the US, and proposes a sui generis law. She discussed other troublesome questions such as the "derivative applied art market, such as copyrighted figures from movies later on merchandized by varied industrialized products."
The second article is called"Copyright Infringement without Copying - Reflections on the Thèberge Case," and is published in Volume 39 of the Ottawa Law Review, available here. The Thèberge case is an important Canadian Supreme Court opinion involving a defendant who purchased a lawful copy of a work, modified it, and then resold it. Her article is an explication of the boundaries between the reproduction and derivative rights.
The third article is "Human Rights and Copyright: The Introduction of Natural Law Considerations into American Copyright Law," published in Volume 14 of the Fordham Intellectul Property, Media & Entertainment Law Journal, and available here. The article explores the relationship between U.S. law and the moral and economic interests of authors as possible universal human rights, principally through an analysis of Article 27 of the 1948 Universal Declaration of Human Rights; that is, "the general right to participate in cultural life; and the material and moral rights of authors with respect to their works." As she notes: "Cultural rights, like human rights in general, are based mainly on natural law philosophy, enhancing the individual rights that every person deserves wherever they are." For better or worse, and I think for the much much better, the U.S. is not a natural law country. I side with Jeremy Bentham, who said, "there is no such thing as natural property; it is entirely as creature of the law. ... Property and law were born together, and would die together. Before the laws property did not exist; take away the laws, and property will be no more." In any event, although I may not see eye to eye with her on this one, the article, as with everything she does, the article is thoughtful and well worth reading.
Most of her works are in Hebrew, and I am fortunate indeed to have some of them. But we are all fortunate that she has begun publishing in English. All Israeli copyright scholars I know are fluent in English, and at the most abstract, technical levels of proficiency. Their knowledge of international and U.S. law is vast and current. Others, such as Oren Bracha and Dotan Oliar are experts on very early English and U.S. copyright law. Their scholarship and research is impeccable.
To give readers a flavor of Professor Afori's work, I will focus on three recent publications, copies of which I have provided with links. The first article is called, "Reconceptualizing Property in Designs." It is published in volume 25 of the Cardozo Arts and Entertainment Law Journal, and is available here. The article notes the ill-fit of design protection in the US, and proposes a sui generis law. She discussed other troublesome questions such as the "derivative applied art market, such as copyrighted figures from movies later on merchandized by varied industrialized products."
The second article is called"Copyright Infringement without Copying - Reflections on the Thèberge Case," and is published in Volume 39 of the Ottawa Law Review, available here. The Thèberge case is an important Canadian Supreme Court opinion involving a defendant who purchased a lawful copy of a work, modified it, and then resold it. Her article is an explication of the boundaries between the reproduction and derivative rights.
The third article is "Human Rights and Copyright: The Introduction of Natural Law Considerations into American Copyright Law," published in Volume 14 of the Fordham Intellectul Property, Media & Entertainment Law Journal, and available here. The article explores the relationship between U.S. law and the moral and economic interests of authors as possible universal human rights, principally through an analysis of Article 27 of the 1948 Universal Declaration of Human Rights; that is, "the general right to participate in cultural life; and the material and moral rights of authors with respect to their works." As she notes: "Cultural rights, like human rights in general, are based mainly on natural law philosophy, enhancing the individual rights that every person deserves wherever they are." For better or worse, and I think for the much much better, the U.S. is not a natural law country. I side with Jeremy Bentham, who said, "there is no such thing as natural property; it is entirely as creature of the law. ... Property and law were born together, and would die together. Before the laws property did not exist; take away the laws, and property will be no more." In any event, although I may not see eye to eye with her on this one, the article, as with everything she does, the article is thoughtful and well worth reading.
RIAA Ups the ACTA Ante
I have heard that USTR denies that ACTA will any require substantive changes in US law. For this reason, no need to get Congress involved or to have public hearings; no need, in other words to worry. RIAA has just submitted its suggestions to USTR for what should be in the agreement. Here is a link to the full document, courtesy of Knowledge Ecology International.
There are a number of provisions that are intended to shift the financial burden of enforcing rights on to taxpayers back. There are also many that should give a great deal of pause and which would require extensive amendments to US law. Here are a few (keeping the original numbering)
Enforcement Best Practices
A.Legal Obligations
Parties shall:
…
2. Provide criminal sanctions for any act of copyright infringement that takes place on a commercial scale, including in the online environment, regardless of whether such acts are undertaken with a financial incentive.
3. Make it a criminal offense to import or export, manufacture, sell or otherwise distribute a device or system, or a component of a device or a system, knowing or having reason to know that the device or system is primarily used or designed to circumvent technological protection measures used in conjunction with materials protected by intellectual property rights.
…
5. Provide for the availability of civil and injunctive relief against landlords that fail to reasonably exercise their ability to control the infringing conduct of their tenants.
6. In territories with high rates of production of pirated optical discs, provide for a system of licensing prior to the manufacture or export of optical discs, as well as the import or export of manufacturing equipment, and manufacturing materials, including optical grade polycarbonate, "stampers" and "masters."
B. Investigatory Provisions
Parties shall:
…
5. Provide that orders by judicial authorities need not individually identify the items subject to seizure, so long as they fall within general categories specified in the order.
J. Online Infringing Activities
Parties shall:
1. Provide exclusive rights under copyright to unambiguously cover Internet use.
2. Establish appropriate rules regarding liability of service/content providers:
(a) Establishing primary liability where a party is involved in direct infringement; and ensure the application of principles of secondary liability, including contributory liability and vicarious civil liability, as well as criminal liability and abetting if appropriate.
(b) Establishing liability for actions which, taken as a whole, encourage infringement by third parties, in particular with respect to products, components and/or services whose predominant application is the facilitation of infringement.
3. Provide remedies and injunctive relief against any entity that:
(a) Creates or otherwise maintains directories of infringing materials;
(b) Provides "deeplinks" to infringing files;
(c) Commits any act, practice or service that has little or no purpose or effect other than to facilitate infringement, or that intentionally induces others to infringe (specifically allowing proof of "intent" by reference to objective standards--i.e. a reasonable person would surmise such an intent);
4. Require internet service providers and other intermediaries to employ readily available measures to inhibit infringement in instances where both legitimate and illegitimate uses were facilitated by their services, including filtering out infringing materials, provided that such measures are not unduly burdensome and do not materially affect the cost or efficiency of delivering legitimate services;
5. Require Internet service providers or other intermediaries to restrict or terminate access to their systems with respect to repeat infringers.
6. Establish liability against internet service providers who, upon receiving notices of infringement from content provides via e–mail, or by telephone in cases of pre-release materials or in other exigent circumstances, fail to remove the infringing content, or access to such content, in an expeditious manner, and in no case more than 24 hours;
or
Provide that, in the absence of proof to the contrary, an internet service provider shall be considered as knowing that the content it stores is infringing or illegal, and thus subject to liability for copyright infringement, after receiving notification from the right holder or its representative, normally in writing, including by email or by telephone in the case of pre-release materials or in other exigent circumstances.
…
8. Provide injunctive relief against intermediaries whose services are used for infringing activities regardless of whether damages are available.
10. Consideration to be given to the following: possible rules on data retention, the right to information giving right holders access to data held by ISPs in the preparation and course of proceedings including in civil proceedings, and availability of complete and accurate WHOIS data.
There are a number of provisions that are intended to shift the financial burden of enforcing rights on to taxpayers back. There are also many that should give a great deal of pause and which would require extensive amendments to US law. Here are a few (keeping the original numbering)
Enforcement Best Practices
A.Legal Obligations
Parties shall:
…
2. Provide criminal sanctions for any act of copyright infringement that takes place on a commercial scale, including in the online environment, regardless of whether such acts are undertaken with a financial incentive.
3. Make it a criminal offense to import or export, manufacture, sell or otherwise distribute a device or system, or a component of a device or a system, knowing or having reason to know that the device or system is primarily used or designed to circumvent technological protection measures used in conjunction with materials protected by intellectual property rights.
…
5. Provide for the availability of civil and injunctive relief against landlords that fail to reasonably exercise their ability to control the infringing conduct of their tenants.
6. In territories with high rates of production of pirated optical discs, provide for a system of licensing prior to the manufacture or export of optical discs, as well as the import or export of manufacturing equipment, and manufacturing materials, including optical grade polycarbonate, "stampers" and "masters."
B. Investigatory Provisions
Parties shall:
…
5. Provide that orders by judicial authorities need not individually identify the items subject to seizure, so long as they fall within general categories specified in the order.
J. Online Infringing Activities
Parties shall:
1. Provide exclusive rights under copyright to unambiguously cover Internet use.
2. Establish appropriate rules regarding liability of service/content providers:
(a) Establishing primary liability where a party is involved in direct infringement; and ensure the application of principles of secondary liability, including contributory liability and vicarious civil liability, as well as criminal liability and abetting if appropriate.
(b) Establishing liability for actions which, taken as a whole, encourage infringement by third parties, in particular with respect to products, components and/or services whose predominant application is the facilitation of infringement.
3. Provide remedies and injunctive relief against any entity that:
(a) Creates or otherwise maintains directories of infringing materials;
(b) Provides "deeplinks" to infringing files;
(c) Commits any act, practice or service that has little or no purpose or effect other than to facilitate infringement, or that intentionally induces others to infringe (specifically allowing proof of "intent" by reference to objective standards--i.e. a reasonable person would surmise such an intent);
4. Require internet service providers and other intermediaries to employ readily available measures to inhibit infringement in instances where both legitimate and illegitimate uses were facilitated by their services, including filtering out infringing materials, provided that such measures are not unduly burdensome and do not materially affect the cost or efficiency of delivering legitimate services;
5. Require Internet service providers or other intermediaries to restrict or terminate access to their systems with respect to repeat infringers.
6. Establish liability against internet service providers who, upon receiving notices of infringement from content provides via e–mail, or by telephone in cases of pre-release materials or in other exigent circumstances, fail to remove the infringing content, or access to such content, in an expeditious manner, and in no case more than 24 hours;
or
Provide that, in the absence of proof to the contrary, an internet service provider shall be considered as knowing that the content it stores is infringing or illegal, and thus subject to liability for copyright infringement, after receiving notification from the right holder or its representative, normally in writing, including by email or by telephone in the case of pre-release materials or in other exigent circumstances.
…
8. Provide injunctive relief against intermediaries whose services are used for infringing activities regardless of whether damages are available.
10. Consideration to be given to the following: possible rules on data retention, the right to information giving right holders access to data held by ISPs in the preparation and course of proceedings including in civil proceedings, and availability of complete and accurate WHOIS data.
Tuesday, July 01, 2008
I'm Barking for Judge Barkett
Yesterday, the 11th Circuit handed down its eagerly awaited en banc opinion in Greenberg v. National Geographic Society. By a 7-5 vote, the court of appeals did the right thing: affirm the earlier opinion in "Greenberg II," 488 F.3d 1331 (11th Cir. 2007), which had vacated "Greenberg I," 244 F.3d 1267 (11th Cir. 2001). I earlier did a post on the issues raised in the en banc appeal, so I shan't repeat them here. The majority opinion was by Judge Barkett. There was a dissent by Judge Birch, for himself and Judge Wilson, in which Chief Judge Edmonson and Judge Anderson joined only Part A. Judge Anderson also had a dissent in which Chief Judge Edmonson and Judges Tjoflat, Birch, and Wilson joined. (Figuring out the various votes would be a blog in itself). Judge Barkett's opinion is 24 pages. Judge Birch's dissent is almost twice as long, 47 pages (half of which is devoted to issues not before the court, which is why Chief Judge Anderson and Judge Wilson only joined in Part A of that opinion. Judge Tjoflat joined in Judge Anderson's dissent, but not Judge Birch's). Judge Anderson's dissent is a slim 8 pages.
Despite the fact that the court of appeals was very divided, I seriously doubt the Supreme Court will grant certiorari if petitioned: there is no split in the circuits, and the issues are very close to those decided in the Tasini case. Both Tasini and Greenberg deal with 17 USC 201(c), the scope of the presumptive privilege granted to publishers of collective works to re-use freelancers' works in republishing "that collective work" and in a revision thereof. The majority held that the NGS's CD-ROM, "The Complete National Geographic" (CNG) was a permissible revision. I would have said it was not a revision at all, but still "that collective work." The emphasis on whether a revision occurred is, for me, a holdover from Tasini's uber-complicated approach. In finding a permissible revision -- as compared to there being a "new" collective work outside the privilege, Judge Barkett rightly focused on NGS's contextual nature: the
CNG used the identical selection, coordination, and arrangement of the freelancer's contributions as found in the hard copy magazines, and was an image-based reproduction just like microfilm, even down to reproducing the magazine fold in the middle of the page and the exact same page numbers as placed originally.
What is most thrilling about the opinion is its giving meaning to Tasini's media neutral interpretation of Section 201(c), by authorizing the use of an underling computer program to search and index articles, as well as zoom and print functions, all of which had analogs in microfiche. Particularly noteworthy (see footnote 10) is the majority's rejection of ways users might hack into the NGS' contextual presentation to extract individual article.
Bravo!
Despite the fact that the court of appeals was very divided, I seriously doubt the Supreme Court will grant certiorari if petitioned: there is no split in the circuits, and the issues are very close to those decided in the Tasini case. Both Tasini and Greenberg deal with 17 USC 201(c), the scope of the presumptive privilege granted to publishers of collective works to re-use freelancers' works in republishing "that collective work" and in a revision thereof. The majority held that the NGS's CD-ROM, "The Complete National Geographic" (CNG) was a permissible revision. I would have said it was not a revision at all, but still "that collective work." The emphasis on whether a revision occurred is, for me, a holdover from Tasini's uber-complicated approach. In finding a permissible revision -- as compared to there being a "new" collective work outside the privilege, Judge Barkett rightly focused on NGS's contextual nature: the
CNG used the identical selection, coordination, and arrangement of the freelancer's contributions as found in the hard copy magazines, and was an image-based reproduction just like microfilm, even down to reproducing the magazine fold in the middle of the page and the exact same page numbers as placed originally.
What is most thrilling about the opinion is its giving meaning to Tasini's media neutral interpretation of Section 201(c), by authorizing the use of an underling computer program to search and index articles, as well as zoom and print functions, all of which had analogs in microfiche. Particularly noteworthy (see footnote 10) is the majority's rejection of ways users might hack into the NGS' contextual presentation to extract individual article.
Bravo!
Friday, June 27, 2008
Guns and Copyright
Within the 157 pages of opinions in yesterday’s Supreme Court District of Columbia v. Heller opinion, upholding, as expected Judge Silberman’s opinion for the DC Circuit invalidating the DC total ban in handguns, is the issue of how we interpret constitutional clauses. Because I regard the majority opinion as 64 pages of after-the-fact rationalizing by judicial activists bent on overturning as many precedents as possible, the short answer is we should simply ignore the Court’s opinions as guides to the future, since they are all ad hoc; good, like Bush v. Gore, only for that case. But for those who disagree with this, there is exegesis that parses the Second Amendment into what is called a prefactory clause and an operative clause. The prefatory clause is merely pretty words, “Because a well regulated Militia is necessary to the security of a free State.” The real language is “the right of the people to keep and bear Arms shall not be infringed.”
Heller is of a piece with Eldred v. Ashcroft, where the Constitutional clause in Article I, section 8, clause 8 was also dissed, in that case by Justice Ginsburg’s majority opinion. The Court’s cavalier treatment of the Constitutional language as so much flotsam and jetsam transcends the Justice’s sharp political persusasions.
The Second Amendment is written quite differently than Article I, section, clause 8, because the latter actually begins with grant of the power, the power “to promote the progress of science.” No matter, though, whatever result the Court wants to reach, the troubling language will be regard as a preface or preamble, even to itself.
Article I, Section 8 is a list of 18 clauses containing enumerated powers. Each of the clauses has the same grammatical structure, in which the infinitive “to” prefaces the power granted: for example, the power to lay and collect taxes; to borrow money; to promote the progress of Science, to declare war. Most of these grants are unlimited, for example, “to establish post offices and post roads,” “to constitute tribunals inferior to the Supreme Court.” Only two clauses contain both a grant of power and a limitation thereon, clauses 8 and 15. Clause 8 is the copyright and patent provision. Clause 15 gives power to Congress “to provide for calling forth the Militia, to execute the laws of the Union, suppress insurrections and repel invasions.” The power is to call forth the militia. The limitation on that power is that the militia may be called forth only to execute the laws of the union, suppress insurrections, and repel invasions. If Congress enacted legislation authorizing the militia to be called for other reasons, like to provide members of the President's cabinet with personal bodyguards, that legislation would be an unconstitutional exercise of power under clause 15. Clause 8 works the same way: The power granted Congress is to pass legislation to promote the progress of Science. The limitation on that power is that the legislation may be for limited times, for authors, and only in writings.
The structure of Article I, Section 8 is thus clear, as is that of clause 8: a grant of power (to promote the progress of science) followed by limitations on that power (limited times, authors, writings). No one doubts that the words following “to promote the progress of science” are words of limitation. For example, the Supreme Court held in no uncertain terms in Feist that “author” and “writings” require the presence of originality as a constitutional requirement (limitation). And while there is a vigorous debate about when a term of protection is so long as to be deemed “unlimited,” all agree Congress can only enact a term of protection for “limited Times.” At least some words in clause 8, therefore, act as a substantive limitation on Congress's power. The question is whether “to promote the progress of science” also performs a limiting function, and if so, what kind of limitation.
On what basis would the limited times and originality parts of the clause act as substantive limitations but the “promoting the progress of science” not? One way is to characterize the “promoting the progress of science” language as a “preamble.” That approach absurdly separates one part of the clause from the rest: How can a single sentence of 27 words have, as a preamble to itself, its own first nine words? The purpose in calling the “promote the progress of science” language a preamble is clear enough, though: to render it meaningless, the equivalent of mottos on license plates; that is contrary to the general theory of interpretation that insists on giving every word meaning.
For the structural and grammatical reasons detailed previously, far from being a preamble, “to promote the progress science” is the grant of power itself, like clause 2, “to borrow money on the credit of the United States.” If that clause instead read “to borrow money on the credit of the United States to reduce the national debt,” it could not seriously be questioned that “to borrow money on the credit of the United States” was still the preamble and that “to reduce the national debt” was the limitation. Conversely, if clause 8 read simply “to promote the progress of science,” it could not seriously be doubted that this was a grant of power. Status as a grant of power is not altered by a limitation, in our case “by securing, for limited Times, to Authors the exclusive right to their Writings.” This final language confines Congress's power; it is not the grant of the power itself. The power is to “promote the progress of Science.” Calling that language a preamble is to ignore the entire structure and grammar of Article I, Section 8.
A preamble would be something like “whereas the promotion of the progress of science advances the general welfare, the Congress shall have power to secure to authors the exclusive right to their writings for limited times.” Note that the “whereas” would be a factual conclusion only (the progress of science advances the general welfare) and that the actual power is directly joined to “securing to authors” exclusive rights. Clause 8, however, actually reads very differently: The power is directly joined to “promote progress of science” and there are no factual statements. No clause in Article I, Section 8 has a preamble. See Walterscheid, The Preambular Argument: The Dubious Premise of Eldred v. Ashcroft, 44 Idea 331, 334–337 (2004).
Heller is of a piece with Eldred v. Ashcroft, where the Constitutional clause in Article I, section 8, clause 8 was also dissed, in that case by Justice Ginsburg’s majority opinion. The Court’s cavalier treatment of the Constitutional language as so much flotsam and jetsam transcends the Justice’s sharp political persusasions.
The Second Amendment is written quite differently than Article I, section, clause 8, because the latter actually begins with grant of the power, the power “to promote the progress of science.” No matter, though, whatever result the Court wants to reach, the troubling language will be regard as a preface or preamble, even to itself.
Article I, Section 8 is a list of 18 clauses containing enumerated powers. Each of the clauses has the same grammatical structure, in which the infinitive “to” prefaces the power granted: for example, the power to lay and collect taxes; to borrow money; to promote the progress of Science, to declare war. Most of these grants are unlimited, for example, “to establish post offices and post roads,” “to constitute tribunals inferior to the Supreme Court.” Only two clauses contain both a grant of power and a limitation thereon, clauses 8 and 15. Clause 8 is the copyright and patent provision. Clause 15 gives power to Congress “to provide for calling forth the Militia, to execute the laws of the Union, suppress insurrections and repel invasions.” The power is to call forth the militia. The limitation on that power is that the militia may be called forth only to execute the laws of the union, suppress insurrections, and repel invasions. If Congress enacted legislation authorizing the militia to be called for other reasons, like to provide members of the President's cabinet with personal bodyguards, that legislation would be an unconstitutional exercise of power under clause 15. Clause 8 works the same way: The power granted Congress is to pass legislation to promote the progress of Science. The limitation on that power is that the legislation may be for limited times, for authors, and only in writings.
The structure of Article I, Section 8 is thus clear, as is that of clause 8: a grant of power (to promote the progress of science) followed by limitations on that power (limited times, authors, writings). No one doubts that the words following “to promote the progress of science” are words of limitation. For example, the Supreme Court held in no uncertain terms in Feist that “author” and “writings” require the presence of originality as a constitutional requirement (limitation). And while there is a vigorous debate about when a term of protection is so long as to be deemed “unlimited,” all agree Congress can only enact a term of protection for “limited Times.” At least some words in clause 8, therefore, act as a substantive limitation on Congress's power. The question is whether “to promote the progress of science” also performs a limiting function, and if so, what kind of limitation.
On what basis would the limited times and originality parts of the clause act as substantive limitations but the “promoting the progress of science” not? One way is to characterize the “promoting the progress of science” language as a “preamble.” That approach absurdly separates one part of the clause from the rest: How can a single sentence of 27 words have, as a preamble to itself, its own first nine words? The purpose in calling the “promote the progress of science” language a preamble is clear enough, though: to render it meaningless, the equivalent of mottos on license plates; that is contrary to the general theory of interpretation that insists on giving every word meaning.
For the structural and grammatical reasons detailed previously, far from being a preamble, “to promote the progress science” is the grant of power itself, like clause 2, “to borrow money on the credit of the United States.” If that clause instead read “to borrow money on the credit of the United States to reduce the national debt,” it could not seriously be questioned that “to borrow money on the credit of the United States” was still the preamble and that “to reduce the national debt” was the limitation. Conversely, if clause 8 read simply “to promote the progress of science,” it could not seriously be doubted that this was a grant of power. Status as a grant of power is not altered by a limitation, in our case “by securing, for limited Times, to Authors the exclusive right to their Writings.” This final language confines Congress's power; it is not the grant of the power itself. The power is to “promote the progress of Science.” Calling that language a preamble is to ignore the entire structure and grammar of Article I, Section 8.
A preamble would be something like “whereas the promotion of the progress of science advances the general welfare, the Congress shall have power to secure to authors the exclusive right to their writings for limited times.” Note that the “whereas” would be a factual conclusion only (the progress of science advances the general welfare) and that the actual power is directly joined to “securing to authors” exclusive rights. Clause 8, however, actually reads very differently: The power is directly joined to “promote progress of science” and there are no factual statements. No clause in Article I, Section 8 has a preamble. See Walterscheid, The Preambular Argument: The Dubious Premise of Eldred v. Ashcroft, 44 Idea 331, 334–337 (2004).
Wednesday, June 25, 2008
Phoenixes and Quondam Clients in the First Circuit
The redoubtable Judge Selya of the First Circuit has provided us with more of his literary smorgasbord in his latest copyright opinion. This opinion begins:
These appeals rise, like the mythical Phoenix, out of the ashes of a failed business relationship between an architectural firm and its quondam client. They present interesting questions concerning the application of … the discovery rule … in copyright infringement cases.
The OED gives this definition of “quondam”:
C. adj. Somewhat arch.
1. Of persons: former, one-time.
The case is Warren Freedenfeld Associates, Inc. v. Michael McTigue, 2008 WL 2469190 (1st Cir. June 20, 2008), and presents a rare reversal in a statute of limitations case. The defendant is a veterinarian who hired plaintiff to build a facility for him. After the usual falling out, there was the usual hiring of another architectural firm, which was alleged to have infringed the first architect’s work The veterinary hospital opened for business on about June 9, 2000. Four years later plaintiff, apparently an avid reader of the magazine “Veterinary Economics,” came across an article about the completed facility. The article “featured a drawing of the floor plan of the Gardner Animal Hospital and reported that the design had won a merit award.” Plaintiff obtained a copy of the building plans from the city, and sued. The defendants moved to dismiss, alleging the copyright claim was barred by the three-year statute of limitations in 17 USC 507 since the hospital has been opened for more than five years prior to the suit being filed. The court relied on plaintiff’s knowledge that defendant intended to complete the project and
that the plans for the construction were on file with the municipality and had become public records as early as the fall of 1999; that construction had proceeded using the same facade and on the same site as originally contemplated; and that after the veterinary hospital opened, it was at all times available for viewing by anyone who might be curious about its design.
The court of appeals discussion of the nature of accrual is noteworthy:
Th[e] date of accrual is not always determined mechanically; in certain circumstances, accrual contemplates application of the so-called discovery rule. Under the aegis of this rule, a claim accrues only when a plaintiff knows or has sufficient reason to know of the conduct upon which the claim is grounded. … The easy cases are those involving actual knowledge of an act of infringement. There, accrual begins with the acquisition of that knowledge; thus, computing the limitations period is simply a matter of checking the passage of time.
In the absence of actual knowledge-and there is no allegation of such knowledge in the complaint-the question becomes when a reasonably prudent person in the plaintiff's shoes would have discovered (that is, would have acquired an awareness of) the putative infringement. …
It stands to reason that determining when a reasonable person would have become aware of a copyright infringement is a fact-sensitive enterprise. Common sense suggests, therefore, that an inquiring court must explore the idiosyncratic circumstances of each individual case. One thing is clear, however: the reasonable person standard incorporates a duty of diligence. It is not a barrier to accrual that a plaintiff has failed to discover a cause of action if a reasonably diligent person, similarly situated, would have made such a discovery. In other words, a plaintiff can be charged with inquiry notice, sufficient to start the limitations clock, once he possesses information fairly suggesting some reason to investigate whether he may have suffered an injury at the hands of a putative infringer.
But the duty to investigate is not always in the wind. Typically, inquiry notice must be triggered by some event or series of events that comes to the attention of the aggrieved party. The familiar aphorism teaches that where there is smoke there is fire; but smoke, or something tantamount to it, is necessary to put a person on inquiry notice that a fire has started.
It is interesting that while the court noted (in footnote 3) the controversy about whether the discovery rule is still valid, it felt it didn’t have to address it. Why not?
In reversing the trial court, Judge Selya found that there was “no triggering event-some sign of storm clouds gathering on the horizon … .” This is surprising in light of the “frayed relationship” between the parties and defendant’s letter stating that he intended to complete the building. A counter, noted by Judge Selya, is that an intention to proceed did not mean an intention to proceed in an infringing way. Judge Selya also noted defendant has claimed that plaintiff’s plans the plans and drawings were “useless” and had been “discarded”- and that he would have to spend “tens of thousands of dollars” for a new architect.
Plaintiff could have easily discovered the infringement if it had reviewed the filed plans or viewed the completed structure, both of which would have represented the reasonable exercise of diligence. The case may have been close on the facts, but merely from reading the court of appeals’ opinion, I lean toward the district court’s view.
These appeals rise, like the mythical Phoenix, out of the ashes of a failed business relationship between an architectural firm and its quondam client. They present interesting questions concerning the application of … the discovery rule … in copyright infringement cases.
The OED gives this definition of “quondam”:
C. adj. Somewhat arch.
1. Of persons: former, one-time.
The case is Warren Freedenfeld Associates, Inc. v. Michael McTigue, 2008 WL 2469190 (1st Cir. June 20, 2008), and presents a rare reversal in a statute of limitations case. The defendant is a veterinarian who hired plaintiff to build a facility for him. After the usual falling out, there was the usual hiring of another architectural firm, which was alleged to have infringed the first architect’s work The veterinary hospital opened for business on about June 9, 2000. Four years later plaintiff, apparently an avid reader of the magazine “Veterinary Economics,” came across an article about the completed facility. The article “featured a drawing of the floor plan of the Gardner Animal Hospital and reported that the design had won a merit award.” Plaintiff obtained a copy of the building plans from the city, and sued. The defendants moved to dismiss, alleging the copyright claim was barred by the three-year statute of limitations in 17 USC 507 since the hospital has been opened for more than five years prior to the suit being filed. The court relied on plaintiff’s knowledge that defendant intended to complete the project and
that the plans for the construction were on file with the municipality and had become public records as early as the fall of 1999; that construction had proceeded using the same facade and on the same site as originally contemplated; and that after the veterinary hospital opened, it was at all times available for viewing by anyone who might be curious about its design.
The court of appeals discussion of the nature of accrual is noteworthy:
Th[e] date of accrual is not always determined mechanically; in certain circumstances, accrual contemplates application of the so-called discovery rule. Under the aegis of this rule, a claim accrues only when a plaintiff knows or has sufficient reason to know of the conduct upon which the claim is grounded. … The easy cases are those involving actual knowledge of an act of infringement. There, accrual begins with the acquisition of that knowledge; thus, computing the limitations period is simply a matter of checking the passage of time.
In the absence of actual knowledge-and there is no allegation of such knowledge in the complaint-the question becomes when a reasonably prudent person in the plaintiff's shoes would have discovered (that is, would have acquired an awareness of) the putative infringement. …
It stands to reason that determining when a reasonable person would have become aware of a copyright infringement is a fact-sensitive enterprise. Common sense suggests, therefore, that an inquiring court must explore the idiosyncratic circumstances of each individual case. One thing is clear, however: the reasonable person standard incorporates a duty of diligence. It is not a barrier to accrual that a plaintiff has failed to discover a cause of action if a reasonably diligent person, similarly situated, would have made such a discovery. In other words, a plaintiff can be charged with inquiry notice, sufficient to start the limitations clock, once he possesses information fairly suggesting some reason to investigate whether he may have suffered an injury at the hands of a putative infringer.
But the duty to investigate is not always in the wind. Typically, inquiry notice must be triggered by some event or series of events that comes to the attention of the aggrieved party. The familiar aphorism teaches that where there is smoke there is fire; but smoke, or something tantamount to it, is necessary to put a person on inquiry notice that a fire has started.
It is interesting that while the court noted (in footnote 3) the controversy about whether the discovery rule is still valid, it felt it didn’t have to address it. Why not?
In reversing the trial court, Judge Selya found that there was “no triggering event-some sign of storm clouds gathering on the horizon … .” This is surprising in light of the “frayed relationship” between the parties and defendant’s letter stating that he intended to complete the building. A counter, noted by Judge Selya, is that an intention to proceed did not mean an intention to proceed in an infringing way. Judge Selya also noted defendant has claimed that plaintiff’s plans the plans and drawings were “useless” and had been “discarded”- and that he would have to spend “tens of thousands of dollars” for a new architect.
Plaintiff could have easily discovered the infringement if it had reviewed the filed plans or viewed the completed structure, both of which would have represented the reasonable exercise of diligence. The case may have been close on the facts, but merely from reading the court of appeals’ opinion, I lean toward the district court’s view.
Tuesday, June 24, 2008
Progress and Freedom Foundation Jammie Thomas Brief
There are other amicus briefs in the Thomas case besides the MPAA’s that take utterly baffling positions. One was filed by the Progress and Freedom Foundation. (As wikipedia notes, in admirable transparency PFF posts on its website the names of its corporate sponsors). Mr. Thomas Syndor of the PFF posted the group’s brief on their website he also has a column about further research he did. Here is the relevant quote from his column:
Before filing a proposed amicus brief in Thomas, l analyzed whether the Thomas Court was bound by National Car Rental to reject its own jury instruction and grant a new trial. My analysis indicated that the Court was not bound by National Car Rental.
But further research now suggests that I underestimated the implications of this analysis. As applied to the case cited by Thomas, this analysis shows only that National Car Rental is not a binding precedent. But when applied generally, it seems to show that a different judicial decision is a binding precedent--and one that would require all federal district and circuit courts to hold that the Copyright Act grants copyright owners a making-available right. Consequently, courts may be struggling needlessly with questions about whether the Copyright Act grants a making-available right. This paper seeks to explain why.
Analysis Indicates that National Car Rental Is Not Binding Precedent in Thomas: National Car Rental involved a claim that the Copyright Act preempted any state-law claim asserting that National had breeched a software-licensing agreement that prohibited use of the licensed software to process data for third parties. 991 F.2d at 427-28, 431. National argued that because this prohibition barred it from "distributing" the "functionality" of the licensed software to others, it was "equivalent" to the distribution right. Id. at 434. The Eight Circuit rejected this argument for three reasons:
First, National cites no authority in support of this proposition. Second, even with respect to computer software, the distribution right is only the right to distribute copies of the work. As Professor Nimmer has stated, "infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords." 2 Nimmer on Copyright § 8.11[A] at 8-124.1. Finally, courts have specifically held that copyright protection does not extend to the software's function. Thus, even if CA could be said to have alleged that National "distributed the functionality" of its program, such a claim would not protect a right equivalent to one of the exclusive rights in copyright.
The language that might bind the court in Thomas is the Nimmer quotation in the third sentence: If an infringement of the distribution right requires "actual dissemination," then unauthorized sharing or posting of a file on the Internet or a file-sharing network could not--in itself--infringe the distribution right. Were that the law, then the jury instruction in Thomas might be erroneous. The critical question is thus whether the Nimmer quote acts a precedent that binds lower courts. It might lack precedential value for either of two reasons.
I am utterly baffled by Mr. Thomas’s remarks for a number of reasons. Here are two: the National Car Rental court’s decision was based on the plain language of the statute, which limits the distribution right to distribution of copies, as the court noted. I had thought that conservatives and libertarians were supposed to be strict constructionists, folks who disliked “activist” (read liberal) judges. Courts are supposed to take the law as Congress wrote it and not “make law” by substituting Congress’s judgment for their own. The plain meaning rule is the check by which this occurs. Well, the plain meaning of the statute requires the distribution of copies, and copies are defined as physical objects. The statute could not possibly be clearer. That’s one reason the RIAA should lose: it has no proof there was ever a distribution of a physical object, a copy. Forget policy arguments; that’s what the statute says. Everything else (including many of the amicus briefs) are irrelevant.
The other baffling thing is the idea that anything Nimmer (or any treatise writer including myself ) could say be binding on a court. To try and gut an actual holding by a court that cites to and construes the precise words of the statute by claiming that the holding is a quote from a treatise writer is laughable. I should be so lucky!
But there is more. The PFF argues that it is the Supreme Court’s opinion in Tasini, not National Car Rental that governs because, it says, Tasini found (for some of the conduct) violation of the reproduction right and the distribution right. OK, but there was no question in Tasini that actual physical copies of the articles were distributed. Tasini has no relevance whatsoever to the issues in Thomas.
Before filing a proposed amicus brief in Thomas, l analyzed whether the Thomas Court was bound by National Car Rental to reject its own jury instruction and grant a new trial. My analysis indicated that the Court was not bound by National Car Rental.
But further research now suggests that I underestimated the implications of this analysis. As applied to the case cited by Thomas, this analysis shows only that National Car Rental is not a binding precedent. But when applied generally, it seems to show that a different judicial decision is a binding precedent--and one that would require all federal district and circuit courts to hold that the Copyright Act grants copyright owners a making-available right. Consequently, courts may be struggling needlessly with questions about whether the Copyright Act grants a making-available right. This paper seeks to explain why.
Analysis Indicates that National Car Rental Is Not Binding Precedent in Thomas: National Car Rental involved a claim that the Copyright Act preempted any state-law claim asserting that National had breeched a software-licensing agreement that prohibited use of the licensed software to process data for third parties. 991 F.2d at 427-28, 431. National argued that because this prohibition barred it from "distributing" the "functionality" of the licensed software to others, it was "equivalent" to the distribution right. Id. at 434. The Eight Circuit rejected this argument for three reasons:
First, National cites no authority in support of this proposition. Second, even with respect to computer software, the distribution right is only the right to distribute copies of the work. As Professor Nimmer has stated, "infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords." 2 Nimmer on Copyright § 8.11[A] at 8-124.1. Finally, courts have specifically held that copyright protection does not extend to the software's function. Thus, even if CA could be said to have alleged that National "distributed the functionality" of its program, such a claim would not protect a right equivalent to one of the exclusive rights in copyright.
The language that might bind the court in Thomas is the Nimmer quotation in the third sentence: If an infringement of the distribution right requires "actual dissemination," then unauthorized sharing or posting of a file on the Internet or a file-sharing network could not--in itself--infringe the distribution right. Were that the law, then the jury instruction in Thomas might be erroneous. The critical question is thus whether the Nimmer quote acts a precedent that binds lower courts. It might lack precedential value for either of two reasons.
I am utterly baffled by Mr. Thomas’s remarks for a number of reasons. Here are two: the National Car Rental court’s decision was based on the plain language of the statute, which limits the distribution right to distribution of copies, as the court noted. I had thought that conservatives and libertarians were supposed to be strict constructionists, folks who disliked “activist” (read liberal) judges. Courts are supposed to take the law as Congress wrote it and not “make law” by substituting Congress’s judgment for their own. The plain meaning rule is the check by which this occurs. Well, the plain meaning of the statute requires the distribution of copies, and copies are defined as physical objects. The statute could not possibly be clearer. That’s one reason the RIAA should lose: it has no proof there was ever a distribution of a physical object, a copy. Forget policy arguments; that’s what the statute says. Everything else (including many of the amicus briefs) are irrelevant.
The other baffling thing is the idea that anything Nimmer (or any treatise writer including myself ) could say be binding on a court. To try and gut an actual holding by a court that cites to and construes the precise words of the statute by claiming that the holding is a quote from a treatise writer is laughable. I should be so lucky!
But there is more. The PFF argues that it is the Supreme Court’s opinion in Tasini, not National Car Rental that governs because, it says, Tasini found (for some of the conduct) violation of the reproduction right and the distribution right. OK, but there was no question in Tasini that actual physical copies of the articles were distributed. Tasini has no relevance whatsoever to the issues in Thomas.
MPAA’s Brief and the Charming Betsy
The MPAA’s amicus brief in the Thomas P2P case in Minnesota has received a lot of publicity. What does the MPAA brief say? There are two parts to the brief. First, the MPAA takes the position that existing, domestic U.S. copyright law already incorporates the MPAA position. Second, and as an alternative, MPAA argues that domestic U.S. law should be construed to adopt its position because a failure to do so will place the U.S. in conflict with its supposed international obligations. All parts of the MPAA’s arguments are wrong: existing U.S. law rejects the MPAA position, international agreements do not adopt the MPAA position, and even if they did, U.S. law cannot be changed by the courts to make it fit such international obligations.
It is telling that the MPAA leads with its international arguments. One usually leads with what you believe to be your strongest argument. The converse of this is that you downplay your weakest argument. In this case, the MPAA must regard its construction of domestic law as its weakest, and is therefore asking the court to effectively enact its view of what the law should be, but isn’t. Separation of powers appears to be as outmoded as the threshold requirement that copyright owners prove infringement.
The MPAA’s international argument is based on two poles: first, the 1996 WIPO treaties, which do mandate a making available right, also mandate the MPAA’s interpretation of that right. No evidence of this is presented. Where in the treaties does it mandate that countries dispense with the requirement – which has existed from the beginning of copyright in the U.S. – that the copyright owner prove one of its rights has been violated? The MPAA declares that “A violation of the making available right does not require that copies were actually transferred to particular individuals,” Brief page 7, but supplies no support for this. There is simply no support for the position that countries, in implementing a making available right, must dispense with any evidence that copies were obtained by others. Countries are free to require such proof.
It is the nature of international agreements that they set forth broad concepts, leaving it up to national legislatures to fill in the details consistent with their local laws. U.S. law has long required actual distribution to violate the distribution right. If such a radical change was to be made, it could only have been made by Congress. The U.S. Congress was assured that no changes were necessary to adhere; in none of those assurances was Congress told that the treaties would dispense with the requirement of proving an actual distribution occurred in order to violate the making available right. MPAA’s position, in short, is that the making available right is synonymous with no proof of an actual distribution, but it comes up short in proving that was the case. Indeed, the Hotaling case, much relied on by the industry, has been roundly criticized by copyright scholars and by courts. If the MPAA’s view of U.S. law were accurate, Hotaling would have been non-controversial.
Because countries are free to require such proof, the MPAA’s argument that U.S. law must be construed (read: rewritten) to dispense with such proof also fails. But even here, the MPAA brief overstates its only authority, Murray v. The Schooner Charming Betsy, 6 U.S. 64, 2 L. Ed. 208, 1804 WL 1103 (1804). In The Charming Betsy, the Supreme Court, per Chief Justice John Marshall, held that “a statute ought never to be construed to violate the law of nations, if any other possible constriction remains.” The opinion only applies when a statute is ambiguous. It has no application when a statute is clear but conflicts with international norms. The Charming Betsy is merely a canon of construction; it is not a substantive legal doctrine. This all the more so because the WIPO treaties are not self-executing.
The MPPA and RIAA approach is to try and get through the courts what they would be unable to get through Congress because of the backlash and opposition. Let’s hope the courts resist the temptation to be legislators.
It is telling that the MPAA leads with its international arguments. One usually leads with what you believe to be your strongest argument. The converse of this is that you downplay your weakest argument. In this case, the MPAA must regard its construction of domestic law as its weakest, and is therefore asking the court to effectively enact its view of what the law should be, but isn’t. Separation of powers appears to be as outmoded as the threshold requirement that copyright owners prove infringement.
The MPAA’s international argument is based on two poles: first, the 1996 WIPO treaties, which do mandate a making available right, also mandate the MPAA’s interpretation of that right. No evidence of this is presented. Where in the treaties does it mandate that countries dispense with the requirement – which has existed from the beginning of copyright in the U.S. – that the copyright owner prove one of its rights has been violated? The MPAA declares that “A violation of the making available right does not require that copies were actually transferred to particular individuals,” Brief page 7, but supplies no support for this. There is simply no support for the position that countries, in implementing a making available right, must dispense with any evidence that copies were obtained by others. Countries are free to require such proof.
It is the nature of international agreements that they set forth broad concepts, leaving it up to national legislatures to fill in the details consistent with their local laws. U.S. law has long required actual distribution to violate the distribution right. If such a radical change was to be made, it could only have been made by Congress. The U.S. Congress was assured that no changes were necessary to adhere; in none of those assurances was Congress told that the treaties would dispense with the requirement of proving an actual distribution occurred in order to violate the making available right. MPAA’s position, in short, is that the making available right is synonymous with no proof of an actual distribution, but it comes up short in proving that was the case. Indeed, the Hotaling case, much relied on by the industry, has been roundly criticized by copyright scholars and by courts. If the MPAA’s view of U.S. law were accurate, Hotaling would have been non-controversial.
Because countries are free to require such proof, the MPAA’s argument that U.S. law must be construed (read: rewritten) to dispense with such proof also fails. But even here, the MPAA brief overstates its only authority, Murray v. The Schooner Charming Betsy, 6 U.S. 64, 2 L. Ed. 208, 1804 WL 1103 (1804). In The Charming Betsy, the Supreme Court, per Chief Justice John Marshall, held that “a statute ought never to be construed to violate the law of nations, if any other possible constriction remains.” The opinion only applies when a statute is ambiguous. It has no application when a statute is clear but conflicts with international norms. The Charming Betsy is merely a canon of construction; it is not a substantive legal doctrine. This all the more so because the WIPO treaties are not self-executing.
The MPPA and RIAA approach is to try and get through the courts what they would be unable to get through Congress because of the backlash and opposition. Let’s hope the courts resist the temptation to be legislators.
Monday, June 23, 2008
Pink Panther: Oregon No Longer Wacka Wacka Huna Kuna
The Pink Panther
On Thursday, the Ninth Circuit issued its opinion in a dispute over rights to a 1962 story treatment for the movie “The Pink Panther.” Co-author Maurice Richlin had transferred his rights to the Mirisch Corporation, which made The Pink Panther. (The other co-author was Blake Edwards). Richlin’s heirs asserted he was a co-author of the film (through two routes). The district court rejected the heirs claims and the court of appeals, per Judge Wardlaw affirmed.
One can appreciate the heirs' view that they might have some rights. Richlin and Edwards first wrote a treatment. Then they entered into a work for hire agreement with Mirisch for the screenplay. Ten days they later executed a broad assignment that included the treatment. The treatment was never registered. The movie came out in 1963 and bore a notice with that year date, but the certificate of registration gave 1964 as the publication date. Richlin died in 1990; the film was renewed in 1991. Richlin heirs did not assert a renewal right at that time.
The court rejected the claim that co-authorship in the treatment vested Richlin (and his heirs) with a co-ownership claim in the movie, noting among other facts, that Richlin (unlike Edwards) did not exercise control over the creation of the movie. This seems correct to me.
The opinion also revisits ground thoroughly plowed in Batjac Productions Inc. v. Goodtimes Home Video Corp., 160 F.3d 1223 (9th Cir. 1998), regarding the status of an unpublished screenplay and its publication in the movie based on it. The court of appeals recited that Richlin's heirs abandoned an argument that publication of the movie and renew of it also renewed their interest in the treatment, since the treatment was not renewed and therefore would have fallen into the public domain (to the extent contained in the movie). But the nature of the heirs legal claims -- common law or statutory -- can't alter the legal fact that the treatment was published when it was included in the motion picture with permission, to the extent the movie incorporated those elements, and there was no allegation that the elements of the treatment outside of those contained in the movie were otherwise copied.
I may once again (this is a revised post in light of a helpful Anonymous comment) be missing something, but I still don't see why the Richlin case breaks any new ground
Oregon
Meanwhile in another state within the Ninth Circuit, Oregon, the Legislative Counsel Committee voted unanimously not to assert their alleged copyright claims. Kudos to Carl Malamud and many others who participated in the hearings and in raising the issues. Carl has posted videos of the hearings here, itself a wonderful example of open government.
On Thursday, the Ninth Circuit issued its opinion in a dispute over rights to a 1962 story treatment for the movie “The Pink Panther.” Co-author Maurice Richlin had transferred his rights to the Mirisch Corporation, which made The Pink Panther. (The other co-author was Blake Edwards). Richlin’s heirs asserted he was a co-author of the film (through two routes). The district court rejected the heirs claims and the court of appeals, per Judge Wardlaw affirmed.
One can appreciate the heirs' view that they might have some rights. Richlin and Edwards first wrote a treatment. Then they entered into a work for hire agreement with Mirisch for the screenplay. Ten days they later executed a broad assignment that included the treatment. The treatment was never registered. The movie came out in 1963 and bore a notice with that year date, but the certificate of registration gave 1964 as the publication date. Richlin died in 1990; the film was renewed in 1991. Richlin heirs did not assert a renewal right at that time.
The court rejected the claim that co-authorship in the treatment vested Richlin (and his heirs) with a co-ownership claim in the movie, noting among other facts, that Richlin (unlike Edwards) did not exercise control over the creation of the movie. This seems correct to me.
The opinion also revisits ground thoroughly plowed in Batjac Productions Inc. v. Goodtimes Home Video Corp., 160 F.3d 1223 (9th Cir. 1998), regarding the status of an unpublished screenplay and its publication in the movie based on it. The court of appeals recited that Richlin's heirs abandoned an argument that publication of the movie and renew of it also renewed their interest in the treatment, since the treatment was not renewed and therefore would have fallen into the public domain (to the extent contained in the movie). But the nature of the heirs legal claims -- common law or statutory -- can't alter the legal fact that the treatment was published when it was included in the motion picture with permission, to the extent the movie incorporated those elements, and there was no allegation that the elements of the treatment outside of those contained in the movie were otherwise copied.
I may once again (this is a revised post in light of a helpful Anonymous comment) be missing something, but I still don't see why the Richlin case breaks any new ground
Oregon
Meanwhile in another state within the Ninth Circuit, Oregon, the Legislative Counsel Committee voted unanimously not to assert their alleged copyright claims. Kudos to Carl Malamud and many others who participated in the hearings and in raising the issues. Carl has posted videos of the hearings here, itself a wonderful example of open government.
Friday, June 20, 2008
Gender and Copyright
A powerful metaphor employed to argue that authors should have extensive control over the works they create is the metaphor evoking the relationship between an author and the author’s works as that of a parent-child, called the creation-as-birth metaphor. The metaphor is used in many areas besides copyright. Here are some examples:
Our nation was born out of a desire for freedom
Her experiment spawned a host of new theories
Your actions will only breed violence
He hatched a clever scheme
And most on point:
Her writings are products of her fertile imagination
The creation-as-birth metaphor posits an intimate connection between what an author creates and his or her work. It would therefore be a violation of the author’s very person to use his to her work without permission. Feminist legal writers have explored the personhood metaphor as it is used in copyright. Professors Ann Bartow and Rebecca Tushnet have done excellent work in the areas, as have others, see e.g., Symposium on Feminism and Dualism in Intellectual Property, 15 American University Journal Gender Social Policy & Law (2007); Malla Pollack, Towards a Feminist Theory of the Public Domain, or Rejecting the Gendered Scope of United States Copyrightable and Patentable Subject Matter, 2 William & Mary Journal of Women & The Law 603 (2006). See also Christine Battersby, Gender and Genius: Toward a Feminist Aesthetic (1989), and Richard Swartz, “Patrimony and the Figuration of Authorship in the Eighteenth-Century Literary Property Debates,” 7 Works and Days 2 (1989) for a discussion of the gendering of authors as males.
In asserting the birthing metaphor as a justification for a strong copyright regime, proponents of the metaphor hearken back to pre-copyright days, since for any metaphor to work in a new context, it has to be based on pre-existing associations. The birthing metaphor is quite ancient. In his “Symposium,” Plato had Diotima describe poems created by Homer and Hesiod as their intellectual children, even greater than actual children.
Daniel Defoe spoke of his book as the “Brat of His Brain. For Defoe, the brain was regarded as the womb of thought, See Walter Pagel, “Medieval and Renaissance Contributions to Knowledge of the Brain and Its Functions,” reprinted in The History and Philosophy of the Brain and its Function 95 (Poynter ed. 1958), thereby metaphorically overcoming the obvious biological objection to Defoe metaphorically birthing anything, but raising other issues, which Mark Rose has explored in his fascinating article, Mothers and Authors: Johnson v. Calvert and the New Children of Our Imagination, 22 Critical Inquiry 613, 622 (1996).
Is there a gender difference in how we react to copyright proposals? The recently introduced and highly controversial Canadian copyright reform bill, C-61, provides a surprising look at this, thanks to a survey done by AngusReid Strategies (see here). The survey shows significant regional, age, and educational differences:
Canadians are clearly divided on the proposed changes, with 45 per cent of respondents supporting the amendments, and another 45 per cent rejecting them. One-in-ten (10%) are undecided.
Regionally, British Columbia (52%) and Alberta (48%) show the most resistance to amending the Copyright Act , while Quebec (53%) and the Atlantic Provinces (50%) are the most encouraging of tougher copyright infringement laws. In turn, Manitoba and Saskatchewan (21%) house the most respondents who are unsure on the issue.
The large disparity among respondents in each of the different age and education groups is particularly interesting. The survey reveals that a majority of Canadians over the age of 55 and those with a high school diploma or less are clearly in favour of the amendments to the Copyright Act. Sixty-one per cent of older Canadians support the new changes, while only 23 per cent of those aged 18 to 34 and 47 per cent of those aged 35 to 54 feel the same way.
Canadians with a high school diploma or less are also very supportive of the stricter laws—55 per cent say they support the anticipated changes, compared to 40 per cent of those with a college or technical school diploma and 40 per cent of those with at least one university degree.
Michael Geist points out another result in his blog: “Men oppose the legislation 49 to 33 percent, while women are split 31 - 29 in favour with the largest number (40 percent)
Our nation was born out of a desire for freedom
Her experiment spawned a host of new theories
Your actions will only breed violence
He hatched a clever scheme
And most on point:
Her writings are products of her fertile imagination
The creation-as-birth metaphor posits an intimate connection between what an author creates and his or her work. It would therefore be a violation of the author’s very person to use his to her work without permission. Feminist legal writers have explored the personhood metaphor as it is used in copyright. Professors Ann Bartow and Rebecca Tushnet have done excellent work in the areas, as have others, see e.g., Symposium on Feminism and Dualism in Intellectual Property, 15 American University Journal Gender Social Policy & Law (2007); Malla Pollack, Towards a Feminist Theory of the Public Domain, or Rejecting the Gendered Scope of United States Copyrightable and Patentable Subject Matter, 2 William & Mary Journal of Women & The Law 603 (2006). See also Christine Battersby, Gender and Genius: Toward a Feminist Aesthetic (1989), and Richard Swartz, “Patrimony and the Figuration of Authorship in the Eighteenth-Century Literary Property Debates,” 7 Works and Days 2 (1989) for a discussion of the gendering of authors as males.
In asserting the birthing metaphor as a justification for a strong copyright regime, proponents of the metaphor hearken back to pre-copyright days, since for any metaphor to work in a new context, it has to be based on pre-existing associations. The birthing metaphor is quite ancient. In his “Symposium,” Plato had Diotima describe poems created by Homer and Hesiod as their intellectual children, even greater than actual children.
Daniel Defoe spoke of his book as the “Brat of His Brain. For Defoe, the brain was regarded as the womb of thought, See Walter Pagel, “Medieval and Renaissance Contributions to Knowledge of the Brain and Its Functions,” reprinted in The History and Philosophy of the Brain and its Function 95 (Poynter ed. 1958), thereby metaphorically overcoming the obvious biological objection to Defoe metaphorically birthing anything, but raising other issues, which Mark Rose has explored in his fascinating article, Mothers and Authors: Johnson v. Calvert and the New Children of Our Imagination, 22 Critical Inquiry 613, 622 (1996).
Is there a gender difference in how we react to copyright proposals? The recently introduced and highly controversial Canadian copyright reform bill, C-61, provides a surprising look at this, thanks to a survey done by AngusReid Strategies (see here). The survey shows significant regional, age, and educational differences:
Canadians are clearly divided on the proposed changes, with 45 per cent of respondents supporting the amendments, and another 45 per cent rejecting them. One-in-ten (10%) are undecided.
Regionally, British Columbia (52%) and Alberta (48%) show the most resistance to amending the Copyright Act , while Quebec (53%) and the Atlantic Provinces (50%) are the most encouraging of tougher copyright infringement laws. In turn, Manitoba and Saskatchewan (21%) house the most respondents who are unsure on the issue.
The large disparity among respondents in each of the different age and education groups is particularly interesting. The survey reveals that a majority of Canadians over the age of 55 and those with a high school diploma or less are clearly in favour of the amendments to the Copyright Act. Sixty-one per cent of older Canadians support the new changes, while only 23 per cent of those aged 18 to 34 and 47 per cent of those aged 35 to 54 feel the same way.
Canadians with a high school diploma or less are also very supportive of the stricter laws—55 per cent say they support the anticipated changes, compared to 40 per cent of those with a college or technical school diploma and 40 per cent of those with at least one university degree.
Michael Geist points out another result in his blog: “Men oppose the legislation 49 to 33 percent, while women are split 31 - 29 in favour with the largest number (40 percent)
Wednesday, June 18, 2008
A Model Opinion Affirmed
On October 4, 2006, I did a blog on a district court opinion in Utah holding, on summary judgment, that computer modeling of Toyota cars did not meet the requisite standard of originality. I was surprised by the opinion. The Tenth Circuit unanimously affirmed yesterday in a well-written and persuasive opinion by Judge Gorsuch, Meshwerks, Inc. v. Toyota Motor Sales, U.S.A., Inc., (Docket No. 06-4222). The opinion contains appendices with pictures that are helpful. I still have doubts about the result, but now believe it a closer question than I previously thought.
The relevant facts are these: for the introduction of its 2004 Toyota hired the advertising company of Saatchi and Saatchi; both companies agreed the campaign would involve digital models that could be used on Toyota’s website and in other media. Toyota and Saatchi hired Grace & Wild to supply the digital models. G&W in turn subcontracted with plaintiff Meshwerks to do some, but not all of the work, in producing the final digital models: Meshwerks would do the digitization and basic modeling; G&W would then take Meshwerk’s work and add details, as well as color, texture, lighting, and animation. The suit arose over a dispute about the scope of the license granted by Meshwerks.
To perform its part of the ultimate product, Meshwerk employees began with the actual cars. The employees put tape on the cars in a grid pattern. Each point of an intersection of the grid was marked by a mechanical arm, to which a computer was attached, resulting in a file of data points. Using off-the-shelf software, those points could be opened up, and once opened up an image of the car would appear. It is undisputed that it took Meshwerks 80 to 100 hours to produce a model for each care; it is also undisputed that Meshwerks altered over 90% of the data points collected during the original digitization process, in order to get a model that looked as much as possible like the actual car. Some elements of the car had to be created from scratch.
If one were to apply a labor theory of originality, there is no doubt Meshwerks would meet that standard. But the labor theory was rightly rejected by the Supreme Court in its 1991 Feist opinion. Two factors were of critical importance to the Tenth Circuit in affirming the district court’s grant of summary judgment to defendants (1) G&W, not Meshwerks made all the decisions regarding “lighting, shading, the background in front of which the vehicle would be posed, the angle at which to pose it, or the like; (2) Meshwerks’ purpose was to “depict nothing more than unadorned Toyota vehicles, the car as car.”
On this last point, the pictures in the appendices help. I agree that if the final result is not copyrightable, it doesn’t matter how much labor or skill went into production of the models. The use of off-the-shelf software to produce the data points did not result in a copyrightable work; instead, the originality, if any, must be found in what Meshwerks did after the original digitization and before G&W took over and added more traditional creative elements. The court of appeals seemed to think that Meshwerks’ contributions were taken the unprotectible data points and then tweaking them so that they looked as close at possible to the real car, an effort in found to be unoriginal under Feist, regardless of how many hours it took.
I am more sympathetic to this view than I was before, but I am still bothered by the premise that efforts to realistically depict an actual object are unoriginal. Superrealist oil paintings are an obvious example. I have a few posters of them, and if you don’t look closely you think it was a photograph. Photographs are of course protectible, usually, due to the lighting, shading, angle and other choices. But in Meshwerks those choices were made by G&W, and this is what seemed to persuade the court of appeals Meshwerk’s contributions were unoriginal.
If I was still writing casebooks for law school classes, Meshwerks would be a must for inclusion in the next edition.
The relevant facts are these: for the introduction of its 2004 Toyota hired the advertising company of Saatchi and Saatchi; both companies agreed the campaign would involve digital models that could be used on Toyota’s website and in other media. Toyota and Saatchi hired Grace & Wild to supply the digital models. G&W in turn subcontracted with plaintiff Meshwerks to do some, but not all of the work, in producing the final digital models: Meshwerks would do the digitization and basic modeling; G&W would then take Meshwerk’s work and add details, as well as color, texture, lighting, and animation. The suit arose over a dispute about the scope of the license granted by Meshwerks.
To perform its part of the ultimate product, Meshwerk employees began with the actual cars. The employees put tape on the cars in a grid pattern. Each point of an intersection of the grid was marked by a mechanical arm, to which a computer was attached, resulting in a file of data points. Using off-the-shelf software, those points could be opened up, and once opened up an image of the car would appear. It is undisputed that it took Meshwerks 80 to 100 hours to produce a model for each care; it is also undisputed that Meshwerks altered over 90% of the data points collected during the original digitization process, in order to get a model that looked as much as possible like the actual car. Some elements of the car had to be created from scratch.
If one were to apply a labor theory of originality, there is no doubt Meshwerks would meet that standard. But the labor theory was rightly rejected by the Supreme Court in its 1991 Feist opinion. Two factors were of critical importance to the Tenth Circuit in affirming the district court’s grant of summary judgment to defendants (1) G&W, not Meshwerks made all the decisions regarding “lighting, shading, the background in front of which the vehicle would be posed, the angle at which to pose it, or the like; (2) Meshwerks’ purpose was to “depict nothing more than unadorned Toyota vehicles, the car as car.”
On this last point, the pictures in the appendices help. I agree that if the final result is not copyrightable, it doesn’t matter how much labor or skill went into production of the models. The use of off-the-shelf software to produce the data points did not result in a copyrightable work; instead, the originality, if any, must be found in what Meshwerks did after the original digitization and before G&W took over and added more traditional creative elements. The court of appeals seemed to think that Meshwerks’ contributions were taken the unprotectible data points and then tweaking them so that they looked as close at possible to the real car, an effort in found to be unoriginal under Feist, regardless of how many hours it took.
I am more sympathetic to this view than I was before, but I am still bothered by the premise that efforts to realistically depict an actual object are unoriginal. Superrealist oil paintings are an obvious example. I have a few posters of them, and if you don’t look closely you think it was a photograph. Photographs are of course protectible, usually, due to the lighting, shading, angle and other choices. But in Meshwerks those choices were made by G&W, and this is what seemed to persuade the court of appeals Meshwerk’s contributions were unoriginal.
If I was still writing casebooks for law school classes, Meshwerks would be a must for inclusion in the next edition.
Tuesday, June 17, 2008
The Fifth Circuit: Section 411(a) Revisited
Alone among the circuits, the Fifth Circuit has chosen to follow Nimmer’s anti-statutory view that actual receipt of a certificate of registration – as opposed to merely sending in an application – complies with the requirement in subject matter jurisdictional requirement of Section 411(a). There are limits, though, even in the Fifth Circuit. For example, you do have to apply before trial. It now appears you have to do more than that. A recent opinion indicates that the requirements may be not as loose as I had previously thought.
In Trill Entertaiment, LLC v. B CD Music Group, 2008 WL 2354424 (M.D.La. June 9, 2008) (Civil Action No. 07-559-JJB-SCR), plaintiff sued over a number of works with descriptive titles such as “Bas Azz Mixtape,” “Streetz is Mine,” and “Gangsta Grillz.” Plaintiff had received certificates for some, but not others, and had amended its complaint indicating receipt of the certificate as to some but not at to others.
In reviewing the state of the case law on section 411(a) in the Fifth Circuit, the court held:
In limited circumstances, the Fifth Circuit has allowed a plaintiff to cure the jurisdictional defect of failing to register a copyright before commencing an action by subsequently amending or supplementing its complaint after registration is completed. Positive Black Talk, Inc. v. Cash Money Recordings, Inc., 394 F.3d 357, 365 (5th Cir.2004) (allowing a plaintiff who filed a copyright action four days before registering with the U.S. Copyright Office to cure the defect). Although the Fifth Circuit made an exception to the statutory filing requirements in Positive Black Talk, this case “is not a blank permission slip for district courts to disregard pleading failures in copyright claims.” The Levingston Corp. v. DeWalyes Ltd. Int., 2008 U.S. Dist. LEXIS 12327, *5 (E.D.La.2008). This jurisdictional defect can only be cured by registering the copyright and amending the complaint. Id . In other words, “Evidence that the Copyright Office has received the application-no matter how reliable-does not substitute or obviate the plaintiff's obligation to amend the pleadings.” Id. Therefore, contrary to the plaintiff's assertion that all that is necessary for the suit to proceed is evidence that the “application, deposit and fee payment have been received by the Copyright Office,” courts in the Fifth Circuit have required the plaintiff to cure this jurisdictional defect by subsequently amending the complaint to reflect registration with the U.S. Copyright Office.
As such, Trill's recent registration of “Streetz is Mine” and “Bad Ass Mixtape” on June 3, 2008, is clearly at odds with the jurisdictional requirements of § 411 and Fifth Circuit jurisprudence on this issue. These recordings should have been registered with the U.S. Copyright Office prior to commencing the instant action, or in the alternative, these jurisdictional defects should have been cured by registration and subsequently amending the complaint. Trill has not amended its complaint to indicate the date of registration, and it has only sent off its registration one week before the scheduled bench trial on June 11, 2008. With respect to recordings “Bad Ass Mixtape” and “Streetz is Mine,” Trill has failed to demonstrate that it has satisfied the jurisdictional requirements necessary to bring an infringement action, and summary judgment in favor of B C D Music Group will be granted for these recordings.
In Trill Entertaiment, LLC v. B CD Music Group, 2008 WL 2354424 (M.D.La. June 9, 2008) (Civil Action No. 07-559-JJB-SCR), plaintiff sued over a number of works with descriptive titles such as “Bas Azz Mixtape,” “Streetz is Mine,” and “Gangsta Grillz.” Plaintiff had received certificates for some, but not others, and had amended its complaint indicating receipt of the certificate as to some but not at to others.
In reviewing the state of the case law on section 411(a) in the Fifth Circuit, the court held:
In limited circumstances, the Fifth Circuit has allowed a plaintiff to cure the jurisdictional defect of failing to register a copyright before commencing an action by subsequently amending or supplementing its complaint after registration is completed. Positive Black Talk, Inc. v. Cash Money Recordings, Inc., 394 F.3d 357, 365 (5th Cir.2004) (allowing a plaintiff who filed a copyright action four days before registering with the U.S. Copyright Office to cure the defect). Although the Fifth Circuit made an exception to the statutory filing requirements in Positive Black Talk, this case “is not a blank permission slip for district courts to disregard pleading failures in copyright claims.” The Levingston Corp. v. DeWalyes Ltd. Int., 2008 U.S. Dist. LEXIS 12327, *5 (E.D.La.2008). This jurisdictional defect can only be cured by registering the copyright and amending the complaint. Id . In other words, “Evidence that the Copyright Office has received the application-no matter how reliable-does not substitute or obviate the plaintiff's obligation to amend the pleadings.” Id. Therefore, contrary to the plaintiff's assertion that all that is necessary for the suit to proceed is evidence that the “application, deposit and fee payment have been received by the Copyright Office,” courts in the Fifth Circuit have required the plaintiff to cure this jurisdictional defect by subsequently amending the complaint to reflect registration with the U.S. Copyright Office.
As such, Trill's recent registration of “Streetz is Mine” and “Bad Ass Mixtape” on June 3, 2008, is clearly at odds with the jurisdictional requirements of § 411 and Fifth Circuit jurisprudence on this issue. These recordings should have been registered with the U.S. Copyright Office prior to commencing the instant action, or in the alternative, these jurisdictional defects should have been cured by registration and subsequently amending the complaint. Trill has not amended its complaint to indicate the date of registration, and it has only sent off its registration one week before the scheduled bench trial on June 11, 2008. With respect to recordings “Bad Ass Mixtape” and “Streetz is Mine,” Trill has failed to demonstrate that it has satisfied the jurisdictional requirements necessary to bring an infringement action, and summary judgment in favor of B C D Music Group will be granted for these recordings.
Monday, June 16, 2008
Post-Registration Statutory Damage Awards
Section 412 of the Copyright Act acts as a brake on statutory damages awarded under Section 504(c). Section 412(2) bars an award of infringement for
any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.
For United States works, since registration is a prerequisite to protection, it happens on occasion that acts of infringement occur both before and after registration. Section 412, however, is unrelenting: if the copyright owner doesn’t register before any act of infringement occurs, no statutory damages may be awarded, period. Since its inception, plaintiffs who have run afoul of Section 412 have attempted to get around it without success. The Ninth Circuit had not addressed the provision in the context of post-registration infringement until this month, in Derek Andrew, Inc. v. Poof Apparel Corporation, 2008 WL 2357378 (9th Cir. May June11, 2008)(No. 07-35048).
The suit involved a backdoor effort to stop defendant from selling lower-priced versions of plaintiff’s (uncopyrightable) clothes though infringement of a hang-tag affixed to that clothing. As described by the court, “Poof’s hang-tags nearly are identical to Andrew's ‘Twisted Heart’ hang-tags, the only difference being the word ‘Poof!’ in place of the words ‘Twisted Heart.’” After a cease-and-desist letter was sent, Poof is reported to have comply with plaintiff’s demands, but “failed to remove the garments bearing the infringing hang-tag from stores.” Plaintiff sued, defendant defaulted on liability, and a bench trial on damages took place. The trail judge awarded plaintiff $15,000 in statutory damages because Poof distributed clothing bearing the infringing hang-tag after the effective date of the registration. Poof appealed.
In reversing, the court of appeals looked to other court opinions and what it perceived to be the purposes of the statute: (1) “to provide copyright owners with an incentive to register their copyrights promptly; (2) to “encourage[] potential infringers to check the Copyright Office's database. The first stated purpose is dead-on; the second seems questionable. What would one be encouraging potential defendants to check the Office’s records for? In Poof’s case, there was no doubt who owned the work. In most cases there isn’t. The record checking rationale would only apply in those few cases where infringement turns on an ownership dispute, but even in those cases, since the Copyright Office is an office of record only, the presence of another claim of ownership does not mean the claim is ultimately valid.
In any event, the court held, correctly
[W]e join those circuits that addressed the issue before us and hold that the first act of infringement in a series of ongoing infringements of the same kind marks the commencement of one continuing infringement under § 412. This interpretation, we believe, furthers Congress' intent to promote the early registration of copyrights.
This conclusion rightly led to vacation of the award. Savvy readers might say, but didn’t it cost more than $15,000 to prosecute the appeal? Indeed, but defendant also got the attorney’s award vacated, and award that was much higher than the statutory damages award.
any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.
For United States works, since registration is a prerequisite to protection, it happens on occasion that acts of infringement occur both before and after registration. Section 412, however, is unrelenting: if the copyright owner doesn’t register before any act of infringement occurs, no statutory damages may be awarded, period. Since its inception, plaintiffs who have run afoul of Section 412 have attempted to get around it without success. The Ninth Circuit had not addressed the provision in the context of post-registration infringement until this month, in Derek Andrew, Inc. v. Poof Apparel Corporation, 2008 WL 2357378 (9th Cir. May June11, 2008)(No. 07-35048).
The suit involved a backdoor effort to stop defendant from selling lower-priced versions of plaintiff’s (uncopyrightable) clothes though infringement of a hang-tag affixed to that clothing. As described by the court, “Poof’s hang-tags nearly are identical to Andrew's ‘Twisted Heart’ hang-tags, the only difference being the word ‘Poof!’ in place of the words ‘Twisted Heart.’” After a cease-and-desist letter was sent, Poof is reported to have comply with plaintiff’s demands, but “failed to remove the garments bearing the infringing hang-tag from stores.” Plaintiff sued, defendant defaulted on liability, and a bench trial on damages took place. The trail judge awarded plaintiff $15,000 in statutory damages because Poof distributed clothing bearing the infringing hang-tag after the effective date of the registration. Poof appealed.
In reversing, the court of appeals looked to other court opinions and what it perceived to be the purposes of the statute: (1) “to provide copyright owners with an incentive to register their copyrights promptly; (2) to “encourage[] potential infringers to check the Copyright Office's database. The first stated purpose is dead-on; the second seems questionable. What would one be encouraging potential defendants to check the Office’s records for? In Poof’s case, there was no doubt who owned the work. In most cases there isn’t. The record checking rationale would only apply in those few cases where infringement turns on an ownership dispute, but even in those cases, since the Copyright Office is an office of record only, the presence of another claim of ownership does not mean the claim is ultimately valid.
In any event, the court held, correctly
[W]e join those circuits that addressed the issue before us and hold that the first act of infringement in a series of ongoing infringements of the same kind marks the commencement of one continuing infringement under § 412. This interpretation, we believe, furthers Congress' intent to promote the early registration of copyrights.
This conclusion rightly led to vacation of the award. Savvy readers might say, but didn’t it cost more than $15,000 to prosecute the appeal? Indeed, but defendant also got the attorney’s award vacated, and award that was much higher than the statutory damages award.
Friday, June 13, 2008
Guest Blog: Josh Wattles and Compulsory Licensing
Back in April, I did a post on a new reverse value theory. Josh Wattles, a friend and lawyer in Los Angeles with long, vast experience in the copyright and entertainment fields, made some comments. Offline, we talked about him writing a longer piece, and maybe doing a guest blog. He has now done so, and here it is:
Josh Wattles
The process of fixing prices and terms under compulsory licenses in the Copyright Act needs change. Streamlining is not a meaningful option but better participation by the government to represent the public interest might go a long way in producing useful results.
Compulsory licenses are born in politics. They are compromises.
Every compulsory license is also an admission of failure - - a confirmation that neither the market nor the rights of copyright owners are flexible or efficient enough to permit a common place licensing structure or to avoid the compulsory approach.
On principle a compulsory license should occur only at last resort and from absolute necessity after a proof of market failure and a need for the statute to intercede. Most, however, have nothing to do with lofty aspirations of balance or with enabling an otherwise impossible market or even with a measured response to benefit a clamoring public. Instead, they have everything to do with power players reaching for commercial advantages within a niche market. A compulsory license can even be a feint at its obvious purpose, price setting: neither the commercial user group nor the copyright owner group wants to actually rely on the license or its price because they just want to set a ceiling or set a default to stage private side arrangements.
Compulsory licenses aren’t conceptually challenging, like fair use is, and they are never intellectually amusing once drafted. They are brutishly commercial in purpose and in application - - and painful to read. The compulsory licenses from the recent past were drafted by skilled lobbyists and lawyers and the result suffers from a lack of simplicity and economy. Finding out what the license covers or how it can be triggered is like tracing a tan-colored line through the Pismo dunes. Try §119, the compulsory and statutory licenses for cable and satellite retransmissions.
Compulsory licenses are apparently haphazard: there is a compulsory license you can use to carry some broadcast signals on cable, but not all; or there is a compulsory license to use the underlying music in a recording but not to use another recording; or there is a statutory license for non-interactive webcasting if the service doesn’t repeat songs too often or play albums in sequence; and so forth. This happens because compulsory licenses are designed not as market solutions but as small nips and tucks that ease other commercial uses of copyrighted content without anyone losing out on important parallel interests.
Because a compulsory license comes out of a political process you would think ultimately a deal was made at some level. But as it turns out, increasingly the “license” is just a set of rules for a follow-on process - - a rate setting proceeding before a Copyright Royalty Board itself generating reams of spinfastic briefings, dueling economists and industry experts, with live testimony and written submissions. In a proceeding designed to set a “market rate” equivalency which would ultimately be openly published, the CRB procedures nonetheless permit liberal, secret submissions of the parties’ pricing activities on the ground of commercial sensitivity. All struggle in the CRB forum to apply various standards of review left intentionally vague in the statute as a result of prior failures to arrive at compromises on clear guidelines. A CRB decision is inevitably appealed by disgruntled parties - - which can mean everyone who was there. The whole process is petty and overdrawn favoring in outcome those most capable of withstanding the tedium and boredom.
There is no mystery in how the process became so over-wrought. It is a result of serial manipulations by well funded commercial interests seeking wholly appropriate advantages over competitors, suppliers or customers. Sometimes they trip over each other and themselves. AOL argued the user side and Warner Music Group argued the copyright owner side of a webcasting proceeding back when they were both owned by Time Warner. Those subsidiaries also lobbied on opposite sides to produce the statute giving rise to that compulsory license.
A Congressional committee is currently sponsoring private negotiations towards a revision of the compulsory that sets the price for the use of a musical work in a recording or in a download. There, the four largest music publishers are up against the four largest record companies - - well, not really, because each of these is a perfect pair. The four largest record companies also own and control the four largest music publishers. All eight enjoy a combined market share of around 70% to 80% of all music. As close as they are as family, the record companies and their music publishers have managed to tied up the committee and the Copyright Office for years trying to broker terms for their latest “compulsory” license.
There is no shame certainly among the participants about any of this gaming for advantage. In fact, it seems certain that more compulsory and statutory licenses with the same structural defects will be used with still more twists and tweaks hoping to tip the outcome. Almost every discussion of licensing Internet-based distribution ends up with a compulsory or statutory license proposal.
Most proposals for compulsory licenses argue the commercial case - - why that particular market segment needs unitary licenses or set prices- - and they might argue the social utility of the license - - providing full access or some other benefits for end-users. But inevitably when it comes to process there is less focus. The CRB has gone through a variety of iterations. Still procedural issues come up by and large as efforts to tip the scales more than to protect the scales from tampering.
So, if gaming is inevitable across the board, why not let us all in to play?
Here is the opening salvo for reform.
First, if you are going to throw in the towel on making an open, free market deal and use the government to impose one, then the government should be a continuing party in interest and not just a rental hall where the negotiation takes place. The DOJ should be in every compulsory license proceeding with the brief to protect the commercial fairness of the outcome. Second, the people should be openly invited too. Of course, it’s so crushingly boring the public would never come, so the FTC should be in every proceeding as well with the brief of representing the interests of end-use consumers.
Some reasons for the DOJ to be in the room: (1) Every compulsory license is by definition anti-competitive in origin. It exists because there was no competitive milieu in which an adequate license could be fashioned. (2) Ultimately, every compulsory license results in an aggregation of commercial users, an aggregation of owners or both to argue the rate and to distribute the proceeds of the license. These are powerful collectives inherently capable of mischief. (Some like ASCAP and BMI are already under court supervision as an antitrust matter; but other more ad hoc collectives are not, such as SoundExchange.) (3) These collectives carry even greater market power because they enjoy broad statutory anti-trust exemptions in order to participate in the rate setting process. (4) Finally, all compulsory licenses impact businesses well beyond the scope of the license itself. Someone needs to take a long view inside the rate proceedings to argue the impact of price and terms on competitiveness and on adjacent open markets. That isn’t happening now.
Protecting end-users would seem to be an even more self-evident requirement in setting rates and terms under compulsory licenses. The whole purpose and logic of permitting a compulsory license has to do with creating efficiencies so that the general public benefits through access and, one would hope, fair pricing. The compulsory license should meet this goal by creating order where otherwise there would be a distribution bottleneck. But the statute sets up a false bargaining process in which owners and users debate the appropriate terms and rates before a tribunal that has only loose instruction (and at times none) on protecting the public interest on price and terms. The process assumes the commercial parties act as surrogates for the end-user consumers and assumes that the general public itself is unaffected.
For example, a statutory standard to be followed in a couple of the compulsories is establishing “rates and terms that most clearly represent the rates and terms that would have been negotiated in the marketplace between a willing buyer and a willing seller.” §114(f)(2)(B) and §112(e)(4). Leaving to one side that, by definition, a compulsory license would not and cannot be negotiated in the marketplace at all precisely because the market doesn’t impose any price or term by compulsion, the standards of review in §114 have no care as to whether the public is served by the resulting rates and terms.
The CRB is not generally charged, as it should be, to arrive at a price and at terms that the public itself might want and might accept or that might spur further entries into the market in order to benefit public choice. In some instances, the distributors and the copyright owners have no obligation to show the CRB that the resulting compulsory pricing would actually fly with any end-user consumer. But just stating these as factors that the CRB should consider without providing advocates leaves open the question of how the judges would go about gathering appropriate evidence, surveys and expert opinions. If there were organized consumer groups we could give them standing to argue their interests. But it is too much to ask, particularly in emerging markets, that consumers either organize or loose at the table. The FTC should do it for them and provide the analytical expertise to learn the market and raise adverse impacts.
The basic premise of a real marketplace is that either side can just walk away. A compulsory license changes that critical dynamic. Once gone, the parties can’t battle things out by themselves in front of an arbitrator to produce even a mock negotiation. Instead, licensing authority needs to be exercised by the CRB on a fully informed, not just partisan, basis.
Josh Wattles
The process of fixing prices and terms under compulsory licenses in the Copyright Act needs change. Streamlining is not a meaningful option but better participation by the government to represent the public interest might go a long way in producing useful results.
Compulsory licenses are born in politics. They are compromises.
Every compulsory license is also an admission of failure - - a confirmation that neither the market nor the rights of copyright owners are flexible or efficient enough to permit a common place licensing structure or to avoid the compulsory approach.
On principle a compulsory license should occur only at last resort and from absolute necessity after a proof of market failure and a need for the statute to intercede. Most, however, have nothing to do with lofty aspirations of balance or with enabling an otherwise impossible market or even with a measured response to benefit a clamoring public. Instead, they have everything to do with power players reaching for commercial advantages within a niche market. A compulsory license can even be a feint at its obvious purpose, price setting: neither the commercial user group nor the copyright owner group wants to actually rely on the license or its price because they just want to set a ceiling or set a default to stage private side arrangements.
Compulsory licenses aren’t conceptually challenging, like fair use is, and they are never intellectually amusing once drafted. They are brutishly commercial in purpose and in application - - and painful to read. The compulsory licenses from the recent past were drafted by skilled lobbyists and lawyers and the result suffers from a lack of simplicity and economy. Finding out what the license covers or how it can be triggered is like tracing a tan-colored line through the Pismo dunes. Try §119, the compulsory and statutory licenses for cable and satellite retransmissions.
Compulsory licenses are apparently haphazard: there is a compulsory license you can use to carry some broadcast signals on cable, but not all; or there is a compulsory license to use the underlying music in a recording but not to use another recording; or there is a statutory license for non-interactive webcasting if the service doesn’t repeat songs too often or play albums in sequence; and so forth. This happens because compulsory licenses are designed not as market solutions but as small nips and tucks that ease other commercial uses of copyrighted content without anyone losing out on important parallel interests.
Because a compulsory license comes out of a political process you would think ultimately a deal was made at some level. But as it turns out, increasingly the “license” is just a set of rules for a follow-on process - - a rate setting proceeding before a Copyright Royalty Board itself generating reams of spinfastic briefings, dueling economists and industry experts, with live testimony and written submissions. In a proceeding designed to set a “market rate” equivalency which would ultimately be openly published, the CRB procedures nonetheless permit liberal, secret submissions of the parties’ pricing activities on the ground of commercial sensitivity. All struggle in the CRB forum to apply various standards of review left intentionally vague in the statute as a result of prior failures to arrive at compromises on clear guidelines. A CRB decision is inevitably appealed by disgruntled parties - - which can mean everyone who was there. The whole process is petty and overdrawn favoring in outcome those most capable of withstanding the tedium and boredom.
There is no mystery in how the process became so over-wrought. It is a result of serial manipulations by well funded commercial interests seeking wholly appropriate advantages over competitors, suppliers or customers. Sometimes they trip over each other and themselves. AOL argued the user side and Warner Music Group argued the copyright owner side of a webcasting proceeding back when they were both owned by Time Warner. Those subsidiaries also lobbied on opposite sides to produce the statute giving rise to that compulsory license.
A Congressional committee is currently sponsoring private negotiations towards a revision of the compulsory that sets the price for the use of a musical work in a recording or in a download. There, the four largest music publishers are up against the four largest record companies - - well, not really, because each of these is a perfect pair. The four largest record companies also own and control the four largest music publishers. All eight enjoy a combined market share of around 70% to 80% of all music. As close as they are as family, the record companies and their music publishers have managed to tied up the committee and the Copyright Office for years trying to broker terms for their latest “compulsory” license.
There is no shame certainly among the participants about any of this gaming for advantage. In fact, it seems certain that more compulsory and statutory licenses with the same structural defects will be used with still more twists and tweaks hoping to tip the outcome. Almost every discussion of licensing Internet-based distribution ends up with a compulsory or statutory license proposal.
Most proposals for compulsory licenses argue the commercial case - - why that particular market segment needs unitary licenses or set prices- - and they might argue the social utility of the license - - providing full access or some other benefits for end-users. But inevitably when it comes to process there is less focus. The CRB has gone through a variety of iterations. Still procedural issues come up by and large as efforts to tip the scales more than to protect the scales from tampering.
So, if gaming is inevitable across the board, why not let us all in to play?
Here is the opening salvo for reform.
First, if you are going to throw in the towel on making an open, free market deal and use the government to impose one, then the government should be a continuing party in interest and not just a rental hall where the negotiation takes place. The DOJ should be in every compulsory license proceeding with the brief to protect the commercial fairness of the outcome. Second, the people should be openly invited too. Of course, it’s so crushingly boring the public would never come, so the FTC should be in every proceeding as well with the brief of representing the interests of end-use consumers.
Some reasons for the DOJ to be in the room: (1) Every compulsory license is by definition anti-competitive in origin. It exists because there was no competitive milieu in which an adequate license could be fashioned. (2) Ultimately, every compulsory license results in an aggregation of commercial users, an aggregation of owners or both to argue the rate and to distribute the proceeds of the license. These are powerful collectives inherently capable of mischief. (Some like ASCAP and BMI are already under court supervision as an antitrust matter; but other more ad hoc collectives are not, such as SoundExchange.) (3) These collectives carry even greater market power because they enjoy broad statutory anti-trust exemptions in order to participate in the rate setting process. (4) Finally, all compulsory licenses impact businesses well beyond the scope of the license itself. Someone needs to take a long view inside the rate proceedings to argue the impact of price and terms on competitiveness and on adjacent open markets. That isn’t happening now.
Protecting end-users would seem to be an even more self-evident requirement in setting rates and terms under compulsory licenses. The whole purpose and logic of permitting a compulsory license has to do with creating efficiencies so that the general public benefits through access and, one would hope, fair pricing. The compulsory license should meet this goal by creating order where otherwise there would be a distribution bottleneck. But the statute sets up a false bargaining process in which owners and users debate the appropriate terms and rates before a tribunal that has only loose instruction (and at times none) on protecting the public interest on price and terms. The process assumes the commercial parties act as surrogates for the end-user consumers and assumes that the general public itself is unaffected.
For example, a statutory standard to be followed in a couple of the compulsories is establishing “rates and terms that most clearly represent the rates and terms that would have been negotiated in the marketplace between a willing buyer and a willing seller.” §114(f)(2)(B) and §112(e)(4). Leaving to one side that, by definition, a compulsory license would not and cannot be negotiated in the marketplace at all precisely because the market doesn’t impose any price or term by compulsion, the standards of review in §114 have no care as to whether the public is served by the resulting rates and terms.
The CRB is not generally charged, as it should be, to arrive at a price and at terms that the public itself might want and might accept or that might spur further entries into the market in order to benefit public choice. In some instances, the distributors and the copyright owners have no obligation to show the CRB that the resulting compulsory pricing would actually fly with any end-user consumer. But just stating these as factors that the CRB should consider without providing advocates leaves open the question of how the judges would go about gathering appropriate evidence, surveys and expert opinions. If there were organized consumer groups we could give them standing to argue their interests. But it is too much to ask, particularly in emerging markets, that consumers either organize or loose at the table. The FTC should do it for them and provide the analytical expertise to learn the market and raise adverse impacts.
The basic premise of a real marketplace is that either side can just walk away. A compulsory license changes that critical dynamic. Once gone, the parties can’t battle things out by themselves in front of an arbitrator to produce even a mock negotiation. Instead, licensing authority needs to be exercised by the CRB on a fully informed, not just partisan, basis.
Thursday, June 12, 2008
Gordon Duggan's Great Comic
The Canadian government has announced it will introduce (as we Yanks say) its long-anticipated copyright reform bill this morning sometime before 11 a.m. To wile away the time before then, I strongly suggest reading the most amazing piece of public policy advocacy I have ever seen. Mixing Thomas Nast with superheros comics, Gordan Duggan, a Canadian artist who works with the Appropriation Art collective, has just "published" a pdf comic called 51st State. The comic book details the fight for Canadian sovereignty in the face of overwhelming American interests and pressure. He describes it as "a bit ironic."
The comic book is entirely constructed of found quotes and images, making it a fantastic blend of original art work and appropriation of others' materials. If this is all the comic book was, it would be enough, but its not: there are 193 links to blogs, articles, video, etc.; every balloon and caption has at least one link that is activated by clicking on the balloon. The work is an extremely clever use of traditional comic book art and Internet technology. One of the links I found interesting is to an interview in CBC Arts with Steven Page, lead singer for the group Barenaked Ladies. In the interview, Mr. Page states: "For a very long time, we – as artists – have allowed industry groups to speak on our behalf. We want that time to stop." Take that flatulent Copyright Alliance! Songwriter Andrew Cash is quoted as saying: "The music business has spent so much creative energy and money fighting instead of taking a look at what fans are really doing and trying to find a way to swim with it." Canadian artists are said to be seeking a cooperative approach that incorporates emerging technologies, rather than a combative plan of attack. Mr. Page added, "We cannot afford to have an adversarial relationship with our fans. New technology affords fans new ways to listen to music. We as artists... must adapt to that. "To say, 'See you in court,' and then, 'See you at Massey Hall,' isn't going to work."
Another link is to an article by Mr. Duggan, in which he comments:
For many creators more restrictive copyright is neither desirable nor beneficial. For many artists freedom of expression includes freedom to access preexisting culture. One could argue that freedom in Canada is rooted in the notion of freedom through access: access to education, access to health care, access to government. In the United States freedom appears to be freedom through domination: domination through litigation, domination through military, domination through rhetoric. Disentangling Canadian law from American rhetoric is essential in understanding what rights we have as Canadian artists, how these rights affect our work and what changes are needed. Copyright legislation in Canada has largely been artist-driven. In the U.S. copyright has been driven by corporate interests.
These remarks explain why the fight over Canadian legislation has generated so much grassroots support, but it also says a great deal about how we in the U.S. suffer from the way trade associations have been successful in positioning themselves as the representatives of authors, musicians, and artists, and it explains why I repeatedly point out the callow nature of the so-called Copyright Alliance: the statement that that organization speaks for 11 million of the real creators and that it speaks for them with one voice, is obscene, and is intended to keep creators barefoot, pregnant and in the kitchen. All of us, in every country, have a stake in Canadian authors, artists, and musicians succeeding. They are fighting the good fight that seems lost in the U.S.
The comic is available here. It works best you download the pdf to your harddrive. Mr. Duggan's work is an amazing accomplishment.
The comic book is entirely constructed of found quotes and images, making it a fantastic blend of original art work and appropriation of others' materials. If this is all the comic book was, it would be enough, but its not: there are 193 links to blogs, articles, video, etc.; every balloon and caption has at least one link that is activated by clicking on the balloon. The work is an extremely clever use of traditional comic book art and Internet technology. One of the links I found interesting is to an interview in CBC Arts with Steven Page, lead singer for the group Barenaked Ladies. In the interview, Mr. Page states: "For a very long time, we – as artists – have allowed industry groups to speak on our behalf. We want that time to stop." Take that flatulent Copyright Alliance! Songwriter Andrew Cash is quoted as saying: "The music business has spent so much creative energy and money fighting instead of taking a look at what fans are really doing and trying to find a way to swim with it." Canadian artists are said to be seeking a cooperative approach that incorporates emerging technologies, rather than a combative plan of attack. Mr. Page added, "We cannot afford to have an adversarial relationship with our fans. New technology affords fans new ways to listen to music. We as artists... must adapt to that. "To say, 'See you in court,' and then, 'See you at Massey Hall,' isn't going to work."
Another link is to an article by Mr. Duggan, in which he comments:
For many creators more restrictive copyright is neither desirable nor beneficial. For many artists freedom of expression includes freedom to access preexisting culture. One could argue that freedom in Canada is rooted in the notion of freedom through access: access to education, access to health care, access to government. In the United States freedom appears to be freedom through domination: domination through litigation, domination through military, domination through rhetoric. Disentangling Canadian law from American rhetoric is essential in understanding what rights we have as Canadian artists, how these rights affect our work and what changes are needed. Copyright legislation in Canada has largely been artist-driven. In the U.S. copyright has been driven by corporate interests.
These remarks explain why the fight over Canadian legislation has generated so much grassroots support, but it also says a great deal about how we in the U.S. suffer from the way trade associations have been successful in positioning themselves as the representatives of authors, musicians, and artists, and it explains why I repeatedly point out the callow nature of the so-called Copyright Alliance: the statement that that organization speaks for 11 million of the real creators and that it speaks for them with one voice, is obscene, and is intended to keep creators barefoot, pregnant and in the kitchen. All of us, in every country, have a stake in Canadian authors, artists, and musicians succeeding. They are fighting the good fight that seems lost in the U.S.
The comic is available here. It works best you download the pdf to your harddrive. Mr. Duggan's work is an amazing accomplishment.
Wednesday, June 11, 2008
First Sale Victories: Quanta v. LG, UMG v. Augusto
The last two days have delivered significant victories for the first sale doctrine. On June 9th, a unanimous Supreme Court, per Justice Thomas, decided Quanta Computer, Inc. v. LG Electronics, Inc., No. 06-937. The case has no direct application to copyright, and turned on two issues: does first sale apply to method patents, and did the license in question prohibit the combination of a licensed patent with non-licensed material? Reversing the Federal Circuit (yet again), the Court answered these questions, respectively, yes, and no. The significance of the opinion to copyright lays in the philosophy expressed in the opening of the final paragraph of the opinion:
The authorized sale of an article that substantially embodies a patent exhausts the patent holder's rights and prevents the patent holder from invoking patent law to control postsale use of the article.
Yesterday, Judge Otero of the Central District of California granted summary judgment in the a promo CD case, UMG Recordings, Inc. v. Troy Augusto, No. CV 07-03106. (SJO). Bravo to EFF and HT to Fred von Lohmann. Mr. Augusto acquired promo copies of CDs that Universal had given to "music insiders." The promos had this language on them:
This CD is the property of the record company and is licensed to the intended receipient for personal use only. Acceptance of this CD shall constitute an agreement to comply with the terms of the license. Resale or transfer of possession is not allowed and may be punishable under federal and state laws.
Mr. Augusto put his copies up for sale on eBay. UMG complained through eBay's Verified Rights Program and had Augusto's auctions suspended, although they were later reinstated. Augusto asserted that his sale was privileged under the first sale doctrine, were a gift under 39 USC 3009, and that UMG had abandoned its rights. The court ruled for Augusto on the first two arguments.
On the first sale point, Judge Otero, following Microsoft Corp. v. DAK Industries, 66 F.3d 1091, 1095 (9th Cir. 1995), analyzed whether a sale or a license occurred by examining the economic realities of the transaction and not whether it was labeled a license. Under those realities, it was significant that UMG gave away the promos without any expectation that they would be returned and with no effort to have them returned. Nor did UMG receive any recurring benefit after it had mailed the promos. The only possible benefit was a prohibited one, an attempt to restrain transfer of the object, something the court noted "had been rejected 100 years ago by the Supreme Court." Accordingly, the transaction was deemed to be a sale not a license, UMG was deemed to have transferred title to the copy, and first sale applied.
The first sale ruling is correct all on fronts. The only question is why are such suits brought? With the record industry's relationship with consumers in tatters, and the economic value of stopping the sale of promos infinitesimal, why further alienate consumers, play into people's worst depictions of the industry, and waste so much money on attorney's fees and costs of monitoring eBay? Why not spend that money developing new acts?
The authorized sale of an article that substantially embodies a patent exhausts the patent holder's rights and prevents the patent holder from invoking patent law to control postsale use of the article.
Yesterday, Judge Otero of the Central District of California granted summary judgment in the a promo CD case, UMG Recordings, Inc. v. Troy Augusto, No. CV 07-03106. (SJO). Bravo to EFF and HT to Fred von Lohmann. Mr. Augusto acquired promo copies of CDs that Universal had given to "music insiders." The promos had this language on them:
This CD is the property of the record company and is licensed to the intended receipient for personal use only. Acceptance of this CD shall constitute an agreement to comply with the terms of the license. Resale or transfer of possession is not allowed and may be punishable under federal and state laws.
Mr. Augusto put his copies up for sale on eBay. UMG complained through eBay's Verified Rights Program and had Augusto's auctions suspended, although they were later reinstated. Augusto asserted that his sale was privileged under the first sale doctrine, were a gift under 39 USC 3009, and that UMG had abandoned its rights. The court ruled for Augusto on the first two arguments.
On the first sale point, Judge Otero, following Microsoft Corp. v. DAK Industries, 66 F.3d 1091, 1095 (9th Cir. 1995), analyzed whether a sale or a license occurred by examining the economic realities of the transaction and not whether it was labeled a license. Under those realities, it was significant that UMG gave away the promos without any expectation that they would be returned and with no effort to have them returned. Nor did UMG receive any recurring benefit after it had mailed the promos. The only possible benefit was a prohibited one, an attempt to restrain transfer of the object, something the court noted "had been rejected 100 years ago by the Supreme Court." Accordingly, the transaction was deemed to be a sale not a license, UMG was deemed to have transferred title to the copy, and first sale applied.
The first sale ruling is correct all on fronts. The only question is why are such suits brought? With the record industry's relationship with consumers in tatters, and the economic value of stopping the sale of promos infinitesimal, why further alienate consumers, play into people's worst depictions of the industry, and waste so much money on attorney's fees and costs of monitoring eBay? Why not spend that money developing new acts?
Tuesday, June 10, 2008
The Copyright Alliance Thinks It's Bob Marley
Bob Marley’s classic song “One Love” begins:
One love, one heart
Let's get together and feel all right
Hear the children crying (One love)
Hear the children crying (One heart)
Sayin', "Give thanks and praise to the Lord and I will feel all right."
Sayin', "Let's get together and feel all right."
The Copyright Alliance apparently thinks it is channeling Marley’s spirit with its just announced “one voi©e” program to mark the first anniversary of its buffoonish existence. I have previously commented about the clown-like efforts of this group to spread the gospel of ever stronger rights under the guise of "education." But rather than quietly slink away into the shadows from whence it came, the Alliance has attempted to prove it really really is doing something, this time by celebrating its own anniversary. The alliance’s website proudly pronounced yesterday:
“The Copyright Alliance was formed with the singular purpose of serving as a collective voice and advocate on behalf of the 11 million Americans whose livelihoods depend on the principle of copyright,” said Executive Director Patrick Ross. “I can think of no better way to mark this milestone than to launch an effort to bring more individual voices to the discussion.” The Alliance is launching the “one voi©e ” outreach campaign that encourages creators to join the Alliance and “Create your work. Define yourself. Protect your copyrights.” The campaign will include both targeted online outreach and a new presence at key trade shows, festivals and other annual events throughout the year. Individuals who join the effort will have access to a network of other creators concerned about copyright via an interactive members-only web site. The site will also provide helpful resources and information about copyright to creators with questions. … The first stops for the “one voi©e” campaign will include the National Music Publishers’ Association Annual Meeting in New York City in June. Also on the agenda is the Annual Americana Music Association Conference in Nashville in September. Other dates and locations will be added.
One wonders whether the Alliance is contemplating something like the “Straight Talk Express,” and is launching a tour that will meander its way across this great country, charming hard-bitten, cynical authors with its mission of truth, education, and values, Good American values like protecting copyright for large corporations. Perhaps, evangelical-like, Mr. Ross will leap out into the crowds that are sure to form around the bus wherever it appears, invite everyone to form a circle, join hands, and then lead authors in the Alliance mantra: "Create your work. Define yourself. Protect your copyrights,” followed by a (licensed) performance of Marley's "One Love Song." Overcome with emotions, authors will start to talk in tongues, and of course sign up to become members of this new church.
Leaving aside the painfully juvenile use of © in voi©e, the math used by the Alliance challenges even the math used by the IIPA in its annual country “piracy” reports. Did 11 million artists really sign up to be members of the Alliance? Clearly not. Instead the Alliance counts all those who joined other groups that then joined the Alliance, like ASCAP and BMI where composers have to join to receive performance royalties. This is like saying every employee of News Corporation is a Republican because Rupert Murdoch is. How about Madonna, who left her label to sign with a concert promoter? How about Paul McCartney who signed with Starbucks? How about all of the performers who protested in 1999 and 2000 about the RIAA’s sneaking in a change to the work for hire provisions so that artists could then be denied their termination of transfer right, or the artists who also protested RIAA’s efforts to stop them from filing for bankruptcy? How about the television writers who went on strike last winter? The list could go on a very long time. One voice indeed.
One could take the position that if all the member organizations of the Alliance want waste money on such an absurd entity, who cares? But there is one group that might care: all those 11 million individual creators who are paying for it.
One love, one heart
Let's get together and feel all right
Hear the children crying (One love)
Hear the children crying (One heart)
Sayin', "Give thanks and praise to the Lord and I will feel all right."
Sayin', "Let's get together and feel all right."
The Copyright Alliance apparently thinks it is channeling Marley’s spirit with its just announced “one voi©e” program to mark the first anniversary of its buffoonish existence. I have previously commented about the clown-like efforts of this group to spread the gospel of ever stronger rights under the guise of "education." But rather than quietly slink away into the shadows from whence it came, the Alliance has attempted to prove it really really is doing something, this time by celebrating its own anniversary. The alliance’s website proudly pronounced yesterday:
“The Copyright Alliance was formed with the singular purpose of serving as a collective voice and advocate on behalf of the 11 million Americans whose livelihoods depend on the principle of copyright,” said Executive Director Patrick Ross. “I can think of no better way to mark this milestone than to launch an effort to bring more individual voices to the discussion.” The Alliance is launching the “one voi©e ” outreach campaign that encourages creators to join the Alliance and “Create your work. Define yourself. Protect your copyrights.” The campaign will include both targeted online outreach and a new presence at key trade shows, festivals and other annual events throughout the year. Individuals who join the effort will have access to a network of other creators concerned about copyright via an interactive members-only web site. The site will also provide helpful resources and information about copyright to creators with questions. … The first stops for the “one voi©e” campaign will include the National Music Publishers’ Association Annual Meeting in New York City in June. Also on the agenda is the Annual Americana Music Association Conference in Nashville in September. Other dates and locations will be added.
One wonders whether the Alliance is contemplating something like the “Straight Talk Express,” and is launching a tour that will meander its way across this great country, charming hard-bitten, cynical authors with its mission of truth, education, and values, Good American values like protecting copyright for large corporations. Perhaps, evangelical-like, Mr. Ross will leap out into the crowds that are sure to form around the bus wherever it appears, invite everyone to form a circle, join hands, and then lead authors in the Alliance mantra: "Create your work. Define yourself. Protect your copyrights,” followed by a (licensed) performance of Marley's "One Love Song." Overcome with emotions, authors will start to talk in tongues, and of course sign up to become members of this new church.
Leaving aside the painfully juvenile use of © in voi©e, the math used by the Alliance challenges even the math used by the IIPA in its annual country “piracy” reports. Did 11 million artists really sign up to be members of the Alliance? Clearly not. Instead the Alliance counts all those who joined other groups that then joined the Alliance, like ASCAP and BMI where composers have to join to receive performance royalties. This is like saying every employee of News Corporation is a Republican because Rupert Murdoch is. How about Madonna, who left her label to sign with a concert promoter? How about Paul McCartney who signed with Starbucks? How about all of the performers who protested in 1999 and 2000 about the RIAA’s sneaking in a change to the work for hire provisions so that artists could then be denied their termination of transfer right, or the artists who also protested RIAA’s efforts to stop them from filing for bankruptcy? How about the television writers who went on strike last winter? The list could go on a very long time. One voice indeed.
One could take the position that if all the member organizations of the Alliance want waste money on such an absurd entity, who cares? But there is one group that might care: all those 11 million individual creators who are paying for it.
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