Tag Archives: copyright

Righthaven’s contract unsealed; sanctions a real possibility

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Joe Mullin at paidContent has just posted a story about Righthaven’s previously sealed contract with Steves Media, parent company of the Las Vegas Review-Journal:

The contract reveals that the controversial copyright-enforcement company and the LV R-J are splitting their net earnings from suing hundreds of bloggers on a 50-50 basis. It also shows that the LV R-J is still largely in control of Righthaven’s litigation strategy—a fact that could end up being ruinous for Righthaven’s campaign of copyright lawsuits.

A link to the judge’s order and the contract is available here.  I’ll update this post when I’ve had time to read and analyze it thoroughly…

Update: After reading through the contract and order to unseal for myself, I think these are the most relevant sections:

Section 3.3

Stephens Media shall have the right to Notify Righthaven…that Righthaven should not take any Infringement Action with respect to a particular putative infringer.…Stephens Media shall only send any Declination Notice on a reasonable basis with the grounds of reasonability being that a particular putative infringer [1] is a charitable organization, [2] is likely without financial resources, [3] is affiliated with Stephens Media directly or indirectly, [4] is a present or likely future valued business relationship of Stephens Media or otherwise would be a Person that, if the subject of an Infringement Action, would result in an adverse result to Stephens Media.

I guess it’s safe to conclude that Stephens Media did not see fit to step in on behalf of the Center for Intercultural Organization (“a charitable organization”), Brian Hill (an autistic blogger who practically defines someone “likely without financial resources”), various newspaper sources (“affiliated with Stephens Media directly or indirectly”), or any of the hundreds of other bloggers (“likely future valued business relationship of Stephens Media”) Righthaven has sued.

Sections 7 and 8

Section 7.1:

Stephens Media shall effect the assignments to Righthaven of copyrights as required by this Agreement…by executing a particularized assignment with respect to each copyright and each consistent with (and in form and substance the same as) the scope of assignment….

Section 7.2:

Despite any such Copyright Assignment, Stephens Media shall retain (and is hereby granted by Righthaven) an exclusive license to Exploit the Stephens Media Assigned Copyrights for any lawful purpose whatsoever and Righthaven shall have no right or license to Exploit or participate in the receipt of royalties from the Exploitation of the Stephens Media Assigned Copyrights other than the right to proceeds in association with a Recovery.

Section 8:

Stephens Media shall have the right at any time to terminate, in good faith, any Copyright Assigmnent (the “Assignment Termination”) and enjoy a right of complete reversion to the ownership of any copyright that is the subject of a Copyright Assignment; provided, however, that if Righthaven shall have commenced an action to prosecute an infringer of the Stephens Media Assigned Copyrights, Stephens Media shall be exclusively responsible for effecting termination of such action including, without limitation, all Losses associated with any dismissal with prejudice.

Taken together, these three excerpts seem to affirm that Righthaven is essentially buying the right to bring lawsuits from Stephens Media, which is arguably impermissible under Silvers v. Sony Pictures Entertainment, Inc., 402 F. 3d 881 (9th Cir. 2005).

Section 11

Stephens Media understands and acknowledges that Stephens Media and Righthaven may be liable for an Infringer’s attorneys’ fees as required by Law in connection with an Infringement Action. Stephens Media further understands that a lawsuit brought solely to harass or to coerce a settlement may result in liability for malicious prosecution or abuse of process. If any Claim made by an Infringer in an Infringement Action results in Losses, other than Losses described in Section 8, Righthaven shall be solely liable for such Losses and shall indemnify Stephens Media from and against any such Losses but only if such Losses do not arise out of a misrepresentation by Stephens Media or other breach by Stephens Media of a provision of this Agreement.

I guess we now have incontrovertible evidence that both the newspaper and Righthaven knew “that a lawsuit brought solely to harass or to coerce a settlement may result in liability for malicious prosecution or abuse of process”!  I wouldn’t be surprised if this section gets referenced in a future sanctions order.

Conclusion:  what does Judge Hunt think?

It’s impossible to know, of course, what’s inside Judge Hunt’s mind.  However, his order to unseal the Righthaven contract strongly suggests that he is growing weary of Righthaven’s legal antics:

There is an old adage in the law that, if the facts are on your side, you pound on the facts. If the law is on your side, you pound on the law. If neither the facts nor the law is on your side, you pound on the table. It appears there is a lot of table pounding going on here.

There has been presented absolutely no basis to strike the Request to Unseal, and that motion will be denied. [emphasis added]

No doubt Righthaven is already sorry they filed this case.  The only remaining question is whether their sorrow will be measured in dollars.  And just how many.

YouTube’s copyright school

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In an apparent bid to prevent one-time copyright infringers from becoming two-timers (or more), YouTube has created a 4 minute and 39 second copyright school on its website, as explained on the official YouTube blog:

Because copyright law can be complicated, education is critical to ensure that our users understand the rules and continue to play by them. That’s why today we’re releasing a new tutorial on copyright and a redesigned copyright help center. We’re also making two changes to our copyright process to be sure that our users understand the rules, and that users who abide by those rules can remain active on the site.

If we receive a copyright notification for one of your videos, you’ll now be required to attend “YouTube Copyright School,” which involves watching a copyright tutorial and passing a quiz to show that you’ve paid attention and understood the content before uploading more content to YouTube.

Ray Dowd over at the Copyright Litigation Blog is not a fan, noting that Google:

  • fails to mention the existence of the public domain;
  • states that “[i]f you are uncertain as to whether a specific use qualifies as a fair use, you should consult a qualified copyright attorney”; and
  • fails to mention the Constitutional purpose of copyright law.

I have to agree with Ray.  The video’s section on fair use (direct link) is particularly egregious.  Unlike the rest of the video, this section adopts the sped-up vocal “style” often adopted at the end of radio commercials to breeze through legal disclaimers (e.g., “Sweepstakes only open to U.S. residents 18 or older…”)  How is this even attempting to educate and inform?

Far from providing a balanced view of copyright law, YouTube’s clear, bottom-line message is this:  Don’t remix or even approach the fair use line.  This is certainly one vision of copyright law, but there are others.  I am reminded of Christina Mulligan’s excellent blog post last June that looked at contemporary copyright law through the lens of Fox’s hit show Glee:

The absence of any mention of copyright law in Glee illustrates a painful tension in American culture. While copyright holders assert that copyright violators are “stealing” their “property,” people everywhere are remixing and recreating artistic works for the very same reasons the Glee kids do — to learn about themselves, to become better musicians, to build relationships with friends, and to pay homage to the artists who came before them. Glee’s protagonists — and the writers who created them — see so little wrong with this behavior that the word ‘copyright’ is never even uttered.

Lawrence Lessig makes the related point that such recreations benefit society, pointing to John Phillip Sousa’s early-twentieth-century fear that recorded music would eventually displace amateur performance entirely.

Google is taking a lot of heat from copyright owners these days, and it’s hard to blame them from trying to stave off any accusations of infringement that might eventually stick to Google itself.  Nevertheless, I don’t think their frenetic, one-sided “educational” video is the best solution.

Politicizing copyright use

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Various outlets are reporting that former Florida Governor Charlie Crist issued a YouTube apology to Talking Heads’ singer David Byrne for using the song “Road to Nowhere” without permission as part of Crist’s 2008 senatorial campaign.  Quoting from the ABA Journal:

In a written statement [dated 11 April 2011], Byrne said he had been surprised to learn that such unauthorized use of a song isn’t all that unusual, and said that he was "feeling very manly" about having protested rather than simply let the issue go.

"Other artists may actually have the anger but not want to take the time and risk the legal bills. I am lucky that I can do that," he stated. "Anyway, my hope is that by standing up to this practice maybe it can be made to be a less common option, or better yet an option that is never taken in the future." [emphasis added]

Such explicitly political use of artists’ music certainly has a long history.  Just a few weeks ago, the ABA Journal published an article by L.J. Jackson titled “Musicians Chafe at Politicians’ Misappropriations of Their Work” which demonstrates that

Crist’s legal problems are not unique.

In 1984, Bruce Springsteen made headlines when he objected to President Ronald Reagan’s use of his hit "Born in the U.S.A." as an anthem for his re-election campaign. The rock icon accused Reagan of subverting the true meaning of the song and playing it at rallies without his consent.

Those were the good old days, when an artist’s biggest campaign concern was a candidate using their tunes to pump up the crowd (permitted with a blanket performance license). But times, they are a-changing, and the proliferation of viral videos, YouTube, and Facebook has opened a Pandora’s box of copyright problems for politicians seeking pop-culture cred. [emphasis added]

Jackson doesn’t elaborate on the “blanket performance license” point, but it’s a major one that bears unpacking.  If a politician has the relevant blanket performance licenses from the relevant performance rights organizations (PROs), (s)he is allowed to play recording artists’ music at campaign rallies.  It doesn’t matter if the artist dislikes that particular politician any more than if (s)he dislikes a particular local radio DJ:  the politician (and the DJ) still have permission to play.

I think there are solid policy justifications for allowing such blanket licenses (and thus largely foreclosing artists’ ability to object to particular uses).  Aside from the enormous transaction costs that would be involved with case-by-case negotiation and approval, music clearly lies at the center of mainstream American culture.  Given music’s powerful emotional resonances which often extend well beyond the intent and control of the original artists, allowing artists to withhold public performance of their recorded music by particular non-profits, schools, businesses, or political campaigns seems perverse at best.  In extreme cases, such denials may even be tantamount to private censorship.

Whether you agree with my policy justifications or not, however, the fact remains that blanket performance licenses for live events already exist.  Thus, the question really is this:  why is the Internet any different?  What makes “viral videos, YouTube, and Facebook…a Pandora’s box of copyright problems” where none exist in the physical world of live campaign rallies, sporting events, or trade shows?

I submit that there really is no difference.  The same transaction cost and First Amendment justifications for blanket performance licenses apply with equal weight to Internet media.  To me, any policy difference appears to be simply a historical artifact.

A blogger at Clancco asks:

I wonder what the “free culture” lobbyists have to say about fair use, free culture, and the world is our public domain oyster when it comes to a Republican politician using an artist’s song without the artists permission? We certainly know what Byrne thinks…and it’s not good for Republicans.

I don’t know what “the ‘free culture’ lobbyists” would say, but my response is this:  the political affiliation of the music’s user should not matter one iota.  We can certainly have a policy debate, but that doesn’t mean the debate must (or should) be political.

Lessig keynote at ABA’s Techshow

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Yesterday, Larry Lessig gave the keynote at the American Bar Association’s Techshow 2011, available on YouTube here.  (ABA Journal write-up here.)

I’m watching it right now and will post additional thoughts when I’m done…

Update:  Much of Lessig’s presentation covers the same material he presented before WIPO last November.  However, the last part of his speech (direct link) talks a little bit about why Lessig thinks that IP policy in America is so wrong.  In brief, Lessig argues that special interest content providers have essentially “bought” Congress’ support of draconian enforcement.

Righthaven drops another case

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Righthaven comes up a lot here at Legally Sociable, and I’ve mentioned their suit against Brian Hill, a 20-year-old blogger with autism and severe diabetes, before.  In another victory for defendants in Righthaven lawsuits, Ars Technica reports that Righthaven is dropping its suit against Brian, after the judge noted that enabling a cheap, easy settlement “is not my primary concern”:

Though the case was moving forward, Righthaven made clear it wasn’t actually interested in litigating the suit; it wanted to settle. “Righthaven is no longer willing to engage in settlement discussions over trivial issues while the Defendant and his counsel seek to extend this action for publicity purposes,” said the company. With settlement not a possibility, the company now just wants the suit to go away. [emphasis added]

Indeed, Righthaven’s lawsuits are starting to drop like flies.  It was just two weeks ago that Righthaven dismissed a suit against the freelance author of another Ars Technica article that covered Righthaven’s litigation antics.  In dropping the suit against Ars’ reporter, Righthaven claimed it was all just a mistake:

“We took immediate corrective action” after learning that Righthaven had just sued a reporter, said [Righthaven lawyer Shawn] Mangano. He added that, since reporters make use of copyright and tend to know a good deal about fair use, “It’s somewhat counterintuitive to sue a reporter for copyright infringement!”

While I certainly applaud Righthaven’s decision to drop these two particularly suits, I have to wonder about the outcomes in the other 260+ lawsuits they have filed over the past year.

Dictionary.com defines “bully” as “a blustering, quarrelsome, overbearing person who habitually badgers and intimidates smaller or weaker people.”  This definition appears to describe Righthaven perfectly; indeed, it is only when a defendant proves not to be “smaller or weaker” that they tuck tail and run.  Clearly, Righthaven didn’t think it was worth fighting a reporter backed by one of the largest magazine publishers in the U.S. or a highly sympathetic blogger with a clearly competent lawyer (PDF).  However laudatory in result, its dismissals in these cases seem to confirm that Righthaven is not truly defending a principled (if overzealous) view of copyright law.  Instead, Righthaven appears to be a garden-variety bully out to shake down the small and weak for four-digit settlements.

Copyright reform, anyone?

Update 4/12/2011:  Joe Mullin at paidContent has additional information about the Hill dismissal:

In a 3-page motion, Righthaven tries to let Hill off the hook but maintains a complainy sort of tone….Judge Kane responded to that by taking another extraordinary action—he actually ordered Righthaven’s “warning” to be stricken from the record entirely, along with all the company’s complaints about Hill’s bad behavior. That part of the filing was “immaterial and impertinent,” Kane wrote. That’s a strong suggestion that Kane has become quite annoyed by Righthaven’s tone and actions in this case.

Wow.  I think I’d be quite worried about sanctions if I were representing Righthaven in this case.

Further reading (hat tip to paidContent):

  • Order Denying Righthaven Extension, April 7 [Scribd]
  • Righthaven Notice of Dismissal, April 10 [Scribd]
  • Order To Strike, April 11 [Scribd]

Documenting fair use

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Documentary.org has a wonderful write-up by Tamsin Rawady and Alex Buono about fair use in the documentary film setting.  As the writers/producers of Bigger Stronger Faster, a documentary about pop cultural influences driving performance-enhancing drug use, they grappled with how to tell their story legally:

The first problem we encountered is that it seemed like Fair Use was sort of an urban legend: Does it really exist? Can you really use archival clips without licensing them? And does anyone understand how this all works?

Fortunately, Rawady and Buono retained excellent legal counsel who were able to walk them through the issues and get them a highly defensible final cut, though even that wasn’t easy:

After the film has been released, expect to get calls from copyright holders upset about your use of their footage. Most copyright holders have never heard of Fair Use, and you should allow some money in your budget to have your attorney call and talk through the evidence you have. If you have been responsible in your Fair Use decisions, most complaints will only require one phone call from your attorney to make them go away. We encountered a handful of copyright holders from some very large corporations who were not pleased that their clips had been used in our film, but we were well prepared by our attorneys and had no problem avoiding any legal claims. [emphasis added]

I’m certainly happy that it worked out better for Bigger Faster Stronger than it did for Slaying the Dragon:  Reloaded.  Rawady and Buono’s story reminds us that, in law as in life, (1) an ounce of prevention is often worth a pound of cure and (2) the best (fair use) defense is a good (proactive) offense.

Further resources and reading:

A picture of civility

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Carolyn Wright over at Photo Attorney has some good reminders for copyright owners who are contemplating filing lawsuits against infringers:

While most photographers will contact an infringer either directly or through an attorney to attempt to resolve an infringement claim before filing suit, the law doesn’t require it. Instead, you may file your copyright infringement lawsuit immediately after finding the infringement without ever contacting the infringer.  But it’s usually best to first contact an infringer for a variety of reasons…. [emphasis added]

Carolyn cites the expense of litigation, needless escalation of conflict, alienation of a former/future client, and (potentially) mistaken accusation as reasons to talk to a suspected infringer before filing a lawsuit.

As in so many areas of life and law, just because you can do something doesn’t mean you should.  An overly litigious, scorched-earth approach to copyright enforcement rarely results in good outcomes, even (especially?) for copyright owners.

I applaud Carolyn’s civil approach to resolving copyright conflicts.  I can only wish that everyone took her talk-first, file-later approach.

It’s Friday, I’m in Love (With Copyright Law)

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You’re no doubt one of the multi-millions who’ve seen Rebecca Black’s viral video Friday.  Or the “Bob Dylan” cover.  Or the Colbert-Fallon cover.

Anyway, you’ve probably seen it in one form or another.

Writing for The Hollywood Reporter, Aaron Moss (partner at Greenberg Glusker) provides a thorough analysis of the copyright issues surrounding the song itself and a brewing legal dispute between Black’s family and Ark Music Factory.  Over the course of the article, Moss cites the following rights/licenses implicated by Black’s viral video and its subsequent marketing:

  • copyright in the sound recording
  • copyright in the composition
  • mechanical license
  • digital phonograph delivery license
  • synchronization license
  • master use license
  • public performance license (in the composition)
  • digital public performance license (in the sound recording)

Confused yet?  You’re probably supposed to be.  As Moss puts it in the section explaining that the copyright in the sound recording and the copyright in the composition are two completely separate rights:

This rather unintuitive concept, by itself, has been enough to pay countless lawyers’ salaries over the years.

Or as Moss notes as an aside when explaining the concept of digital performance licenses:

As a result of the way copyright law has developed — which is to say, ad hoc, aimlessly, in fits and starts, and with plenty of lobbyist influence…

I highly recommend reading Moss’ entire piece.  It’s a good reminder of just how convoluted contemporary copyright law is and just how many actors (artists, session musicians, engineers, label personnel, etc.) may have to agree in order to exploit an existing song in a new way.

The (statutory) damage is done

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I covered the Tenenbaum case earlier in a few posts here earlier this week, but I decided to step back and do a bit a broader analysis in a guest post over at the Citizen Media Law Project blog.  Check it out.

Tenenbaum oral arguments on YouTube

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Having attended the oral arguments before the 1st Circuit Court of Appeals in Sony BMG Music Entertainment et al v. Tenenbaum yesterday and analyzed my initial impression here, I was pleased to see that the court posted (MP3) the audio of the oral arguments on its website.

Unfortunately, it is often difficult to tell who is speaking given the bare audio.  Therefore, I have decided to post the audio on YouTube and annotate it so that listeners can know who is speaking when.  I hope many find this helpful.

Here are the links, in 5 parts:

The argument was before a panel of three First Circuit judges:

  • Sandra L. Lynch, Chief Appellate Judge
  • Juan R. Torruella, Appellate Judge
  • Rogeriee Thompson, Appellate Judge

For even more fun, you can download the briefs here to follow along with the audio.  Happy analysis!