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Analysis Indicates that National Car Rental Is Not Binding Precedent in Thomas: National Car Rental involved a claim that the Copyright Act preempted any state-law claim asserting that National had breeched a software-licensing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.


CEP said...

Not only was there "no question" in Tasini that copies were distributed, but:

(1) The defendants explicitly conceded so in the trial court, in their summary judgment papers, and

(2) The trial court and Supreme Court opinions both limit themselves to actual distribution. The Second Circuit's opinions seem to do so, but really are not that clear.

And, of course, Mr Thomas would have done better to quote the whole sentence from Nimmer — or, better yet, the whole paragraph: That would have made excrutiatingly clear that the section in question is referring to a specific right unique to phonorecordings, which cannot "bind" anything relating to audiovisual recordings... even leaving aside Professor Patry's well-taken point on the ability of a treatise to bind anyone.

Anonymous said...

National had breeched a software-licensing agreement

Really? A car rental company... breeched? I'm having a hard time picturing that- I have a mental image of Shamu painted black and yellow, but on second thought, I think that's actually Hertz.

William Patry said...

Steve, I just quoted what they said. Perhaps the PFF wears short pants.

Anonymous said...

When I compare the PFF's brief to the EFF's, I have to wonder: should the PFF have been required to disclose the fact that it's primarily funded by the plaintiffs? Sure, that's on their *website* but their briefs make no such disclosure unless I skimmed past it. The EFF, conversely, has an entire section explaining who they are and why they're filing an amicus brief.

It doesn't help that the PFF name is so confusingly similar to the EFF.

- C15

Anonymous said...

In response to the other Anonymous posting and the discussion of PFF funding -

If you and Patry are right that a group's funding taints its positions, then surely the identity of EFF's funding is essential to understanding EFF's biases. However, contrary to your assertion, I can't find a list of EFF funders in either its Thomas amicus brief or on its website. Is EFF embarrassed to reveal the actual identity of its funders? Could Google, CE companies, and other piracy profiteers be among its funders, and could their investments affect EFF's positions? I am sure that, being a fair-minded, intellectually honest individual, you will consider EFF's failure to identify its funders as of even greater concern that PFF's upfront disclosure.

William Patry said...

Last Anon, I don't think funding taints anyone. I think disclosing funding is important, and my complimenting PFF on this was a genuine compliment. I have no idea why anyone thought otherwise.

EFF is not a trade association, though. It was not set up to and does not operate for the benefit of specific companies. In line with this, I believe EFF generally receives general donations. Except at the Supreme Court level, on the Thomas case, it is typical for amicus who have received financial assistance to disclose that. I am unaware of anyone who provided EFF financial assistance on their brief. Anon, I think you are trying to make something out of a "failure" to disclose nothing.

Anonymous said...

Mr. Patry,

I apologize for attributing to you the view, expressed by the other Anonymous, that funding taints the views of an organization.

However, I think it is fair to say that you appear to view PFF as a corporate shill, while you view EFF as a public interest organization with purer motives.

I think EFF is no more pure than PFF in its policy positions, and since it doesn't disclose funding, it may be less pure.

PFF is no more a trade association than is EFF. PFF is a think tank/policy organization that gets funding from disclosed corporate interests. EFF is a policy/litigation organization that gets funding from undisclosed interests. PFF was not set up by corporate interests and doesn't operate for their benefit, but certainly the positions advocated by its scholars are strongly supported by certain segments of the business community (IP owners, media companies), and those business do provide funding to PFF. Similarly, EFF was not set up by corporate interests and doesn't operate for their benefit, but the positions it takes tend to reflect views that certain segments of the business community (Internet and CE companies) strongly support. However, since EFF doesn't disclose its funding sources, we can only speculate whether those technology/CE companies or their corporate officers provide funding to PFF. Perhaps you could let us know whether Google is an EFF funder.