Tag Archives: infringement

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!

DIRECT REPORTING: Tenenbaum oral argument

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A few hours ago, I attended oral arguments here in Boston before the First Circuit Court of Appeals in Sony BMG Music Entertainment v. Tenenbaum (Wikipedia backgrounder, appellate briefs here).  To summarize, several record labels sued Joel Tenenbaum for sharing music files on a peer-to-peer service, and Tenenbaum lost at trial.  However, trial court Judge Nancy Gertner reduced the jury verdict of $675,000 against Mr. Tenenbaum down to $67,500.

Both sides appealed.  The labels framed the sole issue on appeal as:

Whether the district court erred by holding that the jury’s award of $22,500 per work for willful infringement of 30 copyrighted works violated the Due Process Clause, even though that award is well within the range of statutorily prescribed damages awards for willful copyright infringement and even within the statutory range for non-willful infringement.

In contrast, defendant Tenenbaum framed the issues as:

1. Is the award of damages against the defendant unconstitutionally excessive?

2. Was the jury properly guided by the trial judge’s instructions?

3. Does the statute under which the defendant was prosecuted apply to individual noncommercial consumers?

4. Does 17 U.S.C. § 504(c) remain operative in the wake of Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998)?

Today’s hearing took place before a three-judge panel consisting of Chief Judge Sandra L. Lynch, Judge Juan R. Torruella, and Judge O. Rogeriee Thompson.  In addition to the plaintiffs and defendants, the United States (as intervenor) and the Electronic Frontier Foundation (as amicus curiae) presented oral arguments.

Based on the judges’ questions and demeanor at oral argument, my impression is that Joel Tenenbaum faces an uphill battle and is likely to lose his appeal.  I don’t have a transcript of the proceedings, but the following stands out from my notes and memory.

Chief Judge Lynch clearly had no tolerance for the defense’s contention that “no one thought” the statutory penalties for copyright infringement would ever apply to “consumers”.  She pointed out that the statute appeared to apply to consumers, eliciting a concession from Tenenbaum’s counsel that statutory copyright penalties were not facial unconstitutional.  This left the defense with little more than a half-hearted argument that the jury verdict was improper here because the copyright statute originally contemplated damage calculations by judges.

Judges Torruella and Thompson seemed somewhat more suspicious of the record labels’ arguments, but it was unclear whether these suspicions would help Tenenbaum win his case.  Judge Torruella asked the labels’ lawyer whether “lost sales” would provide a useful measure of damages, to which he replied that damages should be commensurate with the “lost of value of the copyright”.  He argued that file-sharing in the aggregate caused enormous economic losses to the labels because it essentially put the music “in the public domain.”  (Why Joel Tenenbaum should be personally responsible for the actions of thousands or millions of other file-sharers remained the obvious question he never managed to answer.)

For her part, Judge Thompson questioned whether appellate courts could ever find that a jury for statutory damages in a copyright infringement action to be excessive if it fell within the statutory range ($750 to $150,000 per work infringed).  The labels’ counsel did concede copyright damage awards were “not immune from Williams [Philip Morris USA v. Williams, 549 U.S. 346 (2007)] review” but maintained that such a problem would be “rare” and that this was not that case.

We likely won’t have the First Circuit’s decision for several months, so there’s still plenty of time to speculate about what the outcome will be.  I’ll continue posting as I have additional thoughts.

Update 4/5/2011:

IP enforcement, spying, and reasonableness

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Today’s posts have touched on who should enforce IP rights and what that that enforcement should look like.  Recent comments by Ed Black, President & CEO of the Computer & Communication Industry Association (CCIA — Wikipedia backgrounder), address both of these issues in the context of the White House’s Intellectual Property Enforcement Coordinator’s recent white paper:

The government has shown how its zeal leads to carelessness [previously covered here] in its unprecedented efforts to widely seize domain names for IP enforcement, which ICE undertook this year. Sites were wrongfully shut down based on allegations the user was engaged in criminal conduct deemed lawful by their courts. We are concerned the same low threshold will be used in making decisions to spy on U.S. citizens.

Some in Congress and the White House have apparently decided that no price is too high to pay to kowtow to Big Content’s every desire, including curtailing civil liberties by expanding wiretapping of electronic communications. Even the controversial USA PATRIOT Act exists because of extraordinary national security circumstances involving an attack on our country.  Does Hollywood deserve its own PATRIOT Act?

This new punitive IP agenda follows just weeks after dictators spying on citizens online was the lead story in every major newspaper.  Perhaps the obvious hypocrisy caused someone to decide to wait to announce the U.S. goal of expanding our government’s powers to spy online.   A screenwriter could almost market this plot as a comedy – if it weren’t so serious.

Maybe we should be grateful our government only wants to make streaming a song or movie a felony with potential prison time as punishment.  What’s next corporal punishment?

This is the latest indication of the extent to which the content industry has infiltrated this administration and managed to turn the Administration’s IP agenda into a policy which protects old business models at the expense of consumers, citizens’ rights and our most innovative job creating industries.

To be sure, Mr. Black speaks as the head of a trade group, advocating for his clients’ interests.  Nonetheless, we’ve covered advocates for the content industry and the broadband industry before.  I think it is important to remember (1) that both sides of the IP debate can make sweeping — sometime unprovable — assertions and (2) there are usually two sides to every story.

Broadly speaking, I have to agree with Mr. Black’s concern with the disconnect between official condemnations of “dictators spying on citizens online” and “the U.S. goal of expanding our government’s powers to spy online.”  As illustrated only a few months ago, the line between vigorous copyright enforcement and totalitarianism can be a thin one indeed.  As Harold Feld of Public Knowledge put it recently over on the LA Times:

In the virtual world, the real but mundane problem of shoplifting undergoes a Hollywood-esque transformation into “piracy,” causing the entertainment industry and folks in Washington to lose all perspective. Consider that Rep. Howard Berman (D-Valley Village) proposed a bill in 2002 to allow record companies to hack into your computer to search for illegal downloads. And how did Berman justify the equivalent of an electronic strip search? “There is no difference between pocketing a CD in a Tower Records and downloading copyrighted songs from Morpheus,” Berman told the crowd of aghast tech executives. “Theft is theft.” True, theft is theft. But I suspect Berman would have objected to an amendment allowing Tower Records to break into your home to recover a stolen CD.

Whatever you think of Mr. Black’s rhetoric — even hyperbole — I think most people would agree that truly draconian IP enforcement is not worth the terrible price it exacts.  Now we just need to reach a consensus on exactly how much is too much…

LA piracy debate

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The LATimes just posted the second round of its “piracy Dust-Up” (you can read the first round here), and I thought I’d pull two quotes.

The first is from Harold Feld, the “legal director of Public Knowledge, a Washington-based digital rights advocacy group”, who points to the hidden costs of copyright enforcement:

It’s easy to understand 9 million illegal downloads of “The Social Network,” and hard to understand how the new regulations Sony wants will raise the price of your broadband subscription and your iPod while keeping you from doing cool things on your iPhone.  As the crowning insult, there is no evidence that these new rules would actually make a dent in the illegal downloading problem, or that marginally reducing illegal downloads would translate into an increase in legal sales.

The second is from Andrew Keen, “the author of the upcoming Digital Vertigo: An Anti-Social Manifesto...[and] an advisor to Arts and Labs, a coalition of entertainment and technology companies”:

Rather than worrying about doing “cool things on our iPod,” shouldn’t we instead be trying to craft legislation guaranteeing that 21st century artists have the opportunity to make a living selling their books, their recorded music and their movies?

Here’s the thing that I don’t understand:  in 2006, Keen accused Larry Lessig of being “an intellectual property communist”.  Yet if I understand this debate correctly, it is Keen who wants to focus on ways of “guaranteeing that 21st century artists have the opportunity to make a living” and who is unconcerned whether or not people can do “cool things on [their] iPod[s]”.

Last time I checked, “guaranteeing” certain people paychecks is strongly associated with communism.  It is innovation of the sort that allows people to “do cool things on [their] iPod[s]” that smacks of the capitalism Keen so implicitly embraces.

Keen will no doubt object that I mis-characterize his view insofar as he “only” seeks opportunity, not outcome.  This objection is fair enough — so far as it goes.  But it’s a tricky objection to maintain credibly when it is your opponent (here, Feld) who is calling for balance and proportionality in infringement penalties and you (Keen) who is engaging in the take-no-prisoners logic that “we surrender to the online thieves by treating piracy as a ‘cost of doing business'”.

Mr. Keen, accepting business loses due to shoplifting (in the physical realm) or piracy (in the digital realm) is not “surrender”; it is a fundamental recognition of reality.  Failure to recognize this reality seriously undermines your argument — as does your claim that you only seek “opportunity” when you so clearly will be satisfied only by enactment of one particular outcome.

Who will enforce IP laws?

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Ars Technica and TorrentFreak are reporting that Australian ISP iiNet (Wikipedia backgrounder) recently released a policy report calling for changes in the way that IP laws are enforced:

The ‘Hollywood solution’ (in very simple terms) involves the employment of private detectives, hired by content owners, to trawl the public internet and gather information. The content owner uses this information to generate notices which are sent to internet service providers. The notices demand that the ISP should terminate the service of a customer subsequently determined by the ISP (not the content owner).

Naturally, ISPs find this approach unattractive and unsatisfactory, to say the least.

Rather than merely passively complaining about Hollywood’s solution, however:

iiNet has developed a model which it believes addresses ISP concerns and is likely to be far more effective. We believe it to be attractive to all participants and one which offers a sustainable strategy that includes an impartial referee, for resolution of disputes between the parties and the issue of penalties to offenders.

Here is iiNet’s proposal:

1.    A content owner will carry out their own detective work and identify an offending computer making unauthorised copies of their content available for sharing via (typically) bit-torrent software. This will provide them with an ‘IP Address’ that can be traced by the issuing ISP to a specific internet service.

2.    The independent body will determine whether the evidence meets a test of ‘cogent and unequivocal evidence’.

3.    IP addresses can be provided to an independent body who is able to identify the issuing ISP and ask that ISP for contact details for the service account holder. The ISP provides those matching contact details to the independent body.

4.    Using those contact details the independent body can issue notices to the account holder informing them that they had been detected making unauthorised copies available, provide educative information, advise the consequences that may follow continued behaviour and ask the account holder to ensure that the behaviour stops.

5.    The independent body keeps records of the notices and may modify the notice for a repeat infringer, or seek further sanctions. Some of those sanctions may include fines, court charges or changes to the internet service.

6.    Consumers who believe the allegations are incorrect will be able to appeal the notice to the independent body. These appeals and/or complaints would be dealt with by the independent body.

7.    Consumers who believe an insecure wireless access (or other technical issue) may be involved, will be referred, by the independent body, to their ISP for technical assistance.

As I read the proposal, it seems like iiNet is primarily trying to do two things:

  1. Remove itself as arbiter of IP-related disputes; and
  2. Lower the transaction costs involved in full-blown litigation by setting up a quicker (and cheaper?) arbiter of disputes.  (Perhaps they have something in mind like the Uniform Domain-Name Dispute-Resolution Policy, which administratively resolves certain types of domain name disputes without having to go to court.)

With respect to #1, I agree with iiNet.  ISPs are ill-positioned to adjudicate IP disputes, especially since the cheapest solution (and thus a compelling business model) is simply to comply with any content owner’s request, no matter how tenuous the underlying legal cases.

With respect to #2, however, I have serious doubts.  iiNet’s proposal could be read as an ISP’s attempt to shift online infringement clearly from a malum in se crime (crimes that are inherently wrong, like murder) to a malum prohibitum crime (crimes that are wrong by statute, like minor speeding violations).  Acts that are malum prohibitum generally require less evidence for conviction (e.g., strict liability), but this is supposedly outweighed by lesser penalties and less social censure (e.g., fines for speeding are relatively small and do not carry the social opprobrium of murder).

Here’s the problem:  current copyright statutes don’t have the malum prohibitum “balance” built in.  While there may be lesser social censure for copyright infringement than for other crimes, it is hard to think of many non-violent crimes with higher penalties.  U.S. law assesses damages as high as $150,000 per infringing act, and there are never-ending proposals to increase penalties.  Even if such penalties seem grossly disproportionate to the underlying crimes and raise serious constitutional concerns regarding due process and punitive damages, they nonetheless are “the law” as it exists on the books.

Given the reality of enormous statutory penalties for infringement, streamlining copyright enforcement procedures could lead to disaster.  As a policy matter, it’s one thing to argue for streamlined procedures (i.e., fewer due process protections) in exchange for lower penalties.  Under certain circumstances, that can be a reasonable policy tradeoff.  But it’s a dangerous thing to argue that every content owner in the world should have a fast, easy way to sue individuals up for $150,000.  Copyright trolls like Righthaven exist even in a world with the due process protections of courts; it’s truly frightening to imagine how many new trolls will arise if the potential payoffs remain the (astronomical) same but the bar for suit is set even lower.

To be fair, iiNet appears to recognize this danger and suggests:

Infringements can be ranked as minor (say, single instances), major (say multiple instances of different files) or serious (at a commercial level). Each level having prescribed penalties….A scale of fines can be established, relative to the economic loss represented, and demerit points could also be awarded in line with the severity of the infringements.

Nonetheless, I fear that their report does not highlight just how pivotal such gradation and balancing would be to any implementation.

40,000 ways to file a lawsuit

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How do you file lawsuits against 40,000 people you think are infringing your copyrights?  Sounds like the answer is “one at a time”:

Thousands of unnamed “John Does” in P2P file sharing lawsuits filed in California, Washington DC, Texas, and West Virginia have been severed, effectively dismissing over 40,000 defendants. The plaintiffs in these cases must now re-file against almost all of the Does individually rather than suing them en mass.

Let’s unpack this.  Copyright owners often don’t know the names of people they suspect of using the Internet to infringe their works — they only know that such-and-such an Internet protocol address allegedly accessed a pirated file of their content.  In order to match that address with a particular person, they often have go to court to compel an Internet service provider to tell them what account/person is associated with that address.  They can only sue individuals once they have actual names.

Copyright owners have been in the habit of suing thousands of “John Doe” IP addresses in one lawsuit and then using those names to settle quickly:

These rulings may have a significant impact on the copyright trolls’ business model, which relies on being able to sue thousands of Does at once with a minimum of administrative expense. The cost of filing suit against each Doe may prove prohibitively expensive to plaintiffs’ attorneys who are primarily interested in extracting quick, low-hassle settlements.

In my view, courts’ rejection of this tactic brings some procedural balance back to copyright infringement lawsuits.  Copyright owners often sue alleged infringers in courts that are convenient for the owner, and this can effect a substantial injustice.

Perhaps a concrete example is in order.  Let’s assume an individual defendant that (1) is unquestionably innocent and (2) lives in Iowa.  Let’s further assume the plaintiff copyright owner is a movie studio based in California who wants to sue her in Los Angeles.  As a practical matter, this defendant has a difficult choice.  Litigation is always inconvenient and expensive, but hiring a California-based attorney from Iowa and flying out to Los Angeles is probably more than a typical defendant can afford.  Under these circumstances, she may pay the studio a $2,000 settlement even though she’s innocent just to make the matter go away.  After all, it’s pretty easy to burn through $2,000 with a lawyer and travel expenses.

Given this procedural tilt favoring copyright owners, it seems only fair that they be required to file their suits one at a time.  If a copyright owner doesn’t think her claim is even worth a filing fee, she probably shouldn’t be filing that lawsuit in the first place.  Copyright was, after all, designed “To promote the Progress of Science and useful Arts”, not to provide extra-judicial windfall profits to content owners.

Thanks to Matt Berntsen for the original link to the EFF write-up.

“Singing”

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Is there something in the hyperspace? William Shatner, best known for his portrayal of Captain Kirk on Star Trek, is rather infamous for his spoken-song style. Now TechDirt draws our attention to James Earl Jones, who gave voice to Darth Vader in Star Wars, who is apparently jumping in on the act:

the great actor James Earl Jones recites some Justin Bieber lyrics while a guest on the Gayle King Show.

Here’s a direct link to the YouTube video.

As TechDirt’s Mike Masnick asks,

So here’s a simple question: is this copyright infringement? Did the Gayle King Show properly license the lyrics from the copyright holder? Perhaps it did, but we’ve seen music publishers get pretty worked up about various websites posting lyrics online and have heard stories about books not being able to be published because they quoted snippets of lyrics without a license.

Assuming fair use is off the table, I don’t think JEJ’s recitation qualifies for the compulsory license provisions of U.S. copyright law because he was performing on TV — he would have needed a synchronization license.  Moreover, according to 17 U.S.C. section 115(a)(2):

A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner. [emphasis added]

I think we can all agree that JEJ changed the basic melody of this work.

Of course, there is no doubt a simpler explanation for all this.  Bieber’s song “Baby” is repped by ASCAP, and ASCAP offers blanket licenses that allow for TV broadcasts of their works.  I’m guessing the Gayle King Show (or, more likely, the Oprah Winfrey Network) simply paid the requisite fees.

They do hold it against you

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Britney Spears may not want anyone to “Hold It Against Me” according to her latest single, but the U.K.’s Daily Mail is reporting that Bellamy Brothers [Wikipedia backgrounder] are considering a lawsuit against the pop star:

Britney is accused of ‘ripping off’ the rock ballad If I Said You Had A Beautiful Body Would You Hold It Against Me by the Bellamy Brothers.

The American singers claim Britney’s song is too close to their own 1979 hit which topped the charts in six countries, and David and Howard Bellamy are set to met with lawyers, according to reports.

The Daily Mail has embedded two YouTube videos at the bottom of their article if you want to compare the two songs directly for yourself.

My personal opinion is that the songs have little in common besides two scène à faire concepts endemic to popular love songs:  (1) “I want you badly/physically.”  (2) “Please don’t hate me for (1), aforementioned.”  Is the mere fact that both are invoked in rapid succession really enough to establish copyright infringement?  To be sure, Britney uses the the same “hold it against me” phrase that the Bellamy Brothers use, but does that extremely short phrase even have enough originality to establish copyrightability?

Notwithstanding all this, my guess is that the (albeit small) legal risk of losing may be more than the label wants to deal with.  After all, American courts have found that even subconscious copying is enough to infringe (and against a former Beatle, no less!).  More to the point, there would be substantial legal defense costs for Britney’s label, win or lose.  Rational decision:  give the Brothers a quiet, out-of-court settlement just to make them go away.

Update 2/21/2011: In the comments, Jennifer points out that the chorus in Survivor’s “I Can’t Hold Back” is also incredibly similar to Spears’ single (YouTube link). I agree — frankly, it seems a lot closer to me than to the Bellamy Brothers song.

However, my response to this line of argument is, “so what?” As several comedians have pointed out, pop songs are notoriously one-dimensional, consisting of endless iterations of Pachabel’s Canon in D and/or four chords. When it comes right down to it, drawing lines between where one song starts and another stops is nearly impossible, which is why academic musicologists often end up as expert witnesses at music infringement trials (billing several hundreds of dollars per hour — a pretty good gig).

This is a fundamental problem with a legal system that considers copyrights “property” in the same sense that, say, land is “property”. For the most part, land’s boundaries are clear/definable, and one can know if one has trespassed. But how can one know (with anything approaching certainty) that one has trespassed/infringed a copyright? The lines are inherently abstract, vague, and therefore subject to debate.

Upshot: a zealous (and deep pocketed) copyright owner ends up owning more. An overzealous landowner may sue anyone and everyone who so much as puts a toe over her property line, but her vigorous defense of her property boundaries does not change where those lines actually are. But this is arguably not the case with the overzealous copyright owner. With copyright, defense becomes offense and the copyright’s limits actually expand as the public starts giving copyright owners a wider and wider berth. There are all-too-many examples of this documented over at Chilling Effects.

Update 2/22/2011:  According to a post over at the ABA Journal, here comes the aforementioned expert, right on cue:

A “renowned musicologist” is evaluating the two songs, [Bellamy Brothers laywer Christopher] Schmidt says….

China and default

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No, I’m not talking about the U.S. defaulting on the enormous amount of debt it owes to China.  I’m talking about the relatively small matter of $2.3 billion that a California district judge levied against China as a sovereign government for copyright infringement. As part of a default judgment, no less:

About a year after Cybersitter sued the Chinese government and several Asian OEMs for allegedly copying its code to create the “Green Dam” software, a U.S. federal judge has allowed the $2.3 billion suit to proceed.

Judge Josephine Staton Tucker, a California district judge, entered a judgement of default against the People’s Republic of China on Wednesday, after PRC officials failed to respond to the ruling. Although the PRC’s embassy sent a letter to the U.S. State Department protesting Cybersitter’s suit, such a letter did not qualify as a formal response.

The National Law Journal has additional coverage here.

My guess is that this suit is going to generate a lot of headlines and go absolutely nowhere (at least against China — the co-defendants may not be so lucky).  As a matter of law, China has a powerful argument for sovereign immunity, no matter what District Judge Josephine Tucker’s interpretation of the U.S.’ own Foreign Sovereign Immunities Act (FSIA) is.  And practically speaking, there’s pretty much no way that Cybersitter is going to be able to collect on this default judgment.  No doubt it will be tossed back and forth in official diplomatic communications for a while, but it’s quite doubtful that any money will ever change hands.  Unless, of course, one speaks of the money China will continue to pay the U.S. for Treasuries.

Oh wait…

CBS infringes…itself

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From the left-hand-doesn’t-know-what-the-right-hand-is-doing department, CBS appears to have infringed its own copyrighted works:

A CBS reporter embedded a video of one of their own pieces of content onto a CBS-owned web property. Only to have it soon yanked down by lawyers (or lawyer-bots – AKA auto-DMCA patrol).

Click on over to the original piece on The Future Buzz to see the screenshot, which is pretty hysterical.