The Next Great Copyright Office — Josh Simmons (Kirkland & Ellis) looks at the current copyright review process, how it compares to the 1976 revision process, and pays particular attention to the issue of Copyright Office modernization.

Creators, Innovators, and Appropriation Mechanisms — “O’Connor explains that tech innovators can ‘freely advocate for copyright reform that would weaken copyright enforcement for content owners without much risk that any changes would hurt their own appropriation mechanisms.’ Even if their efforts successfully weaken some of their own IP rights, such as copyright protections for their source codes, they have a panoply of other appropriation mechanisms that they can rely on instead, such as patents, trade secrets, contracts, and the like. Importantly, the same does not hold true for the many content creators that have only their copyrights to protect them.”

Police anti-piracy operation cuts advertising on illegal sites by 70% — A measure of success in the UK: “The Police Intellectual Property Crime Unit said there has been a 73% decrease in advertising from the UK’s top spending companies appearing on illegal websites since it launched a crackdown in 2013. For the last two years, the PIPCU has been running Operation Creative, with the backing of the ad industry and trade bodies representing the film, music, TV and publishing industry, to try to stop the flow of ad funds which are one of the main generators of profits for illegal sites.”

ICANN Should Curb Anonymous Domain Name Abuses — Daniel Castro: “One requirement for registering any website domain name is that the domain owner must provide its contact information. This information is placed into WHOIS, a public, online database. Some website owners choose to use a privacy and proxy service, which submits contact information for the service provider and is then responsible for relaying any inquiries to the actual registrant. Unfortunately, not all privacy and proxy services fulfill their duties, creating a serious problem for law enforcement agencies. For example, FTC Commissioner Julie Brill has noted ‘…even ICANN recognizes that the system is flawed, often allowing bad actors to hide behind incomplete, inaccurate, or proxy information.'”

If Your Instagram #Selfies Aren’t Private, This Site Might Sell Them To Total Strangers — With no pretense of any “transformative purpose.” The article quotes an Instagram rep firmly taking no position, saying, “you can draw your own conclusions about whether this violates our policies.”

Attention recent law school grads interested in copyright: be sure to check out the following opportunities: the Copyright Alliance is looking for a legal fellow, the Center for Protection of IP at George Mason Law is looking for an IP research fellow, and the Copyright Office is seeking candidates for its Barbara Ringer Honors Fellowship.

Music Artists Take on the Business, Calling for Change — “Public relations missteps in the early 2000s kept many musicians from speaking out about economic issues, artists and executives said. Those include the music industry’s lawsuits against thousands of fans for online file-sharing, and the pillorying that the band Metallica received after it sued Napster for copyright infringement. But the shift toward streaming in recent years has prompted many musicians to investigate the changes in the business and comment online. Among them are independents like David Lowery of the band Cracker; Zoë Keating, a cellist who has documented her online royalties; and Blake Morgan, a singer-songwriter who owns a small record company and started an online campaign, #IRespectMusic, to draw attention to the issue.”

WATCH: A Passionate, Well-Reasoned Defense Of CGI — A great video that looks at the craft of computer-generated effects in filmmaking, and why they are not necessarily inferior to practical effects.

If You’re Reading This, the Internet Ain’t Broke — Creative Future’s Ruth Vitale addresses EFF’s bizarre defense of pirate site MovieTube. “Many of us in the creative community wonder why the Electronic Frontier Foundation goes to such great lengths over and over again to defend the actions of criminals who make it even harder to make a living doing what we love – telling stories and creating new worlds that audiences love. I have a number of friends and colleagues who work in entertainment and they are supportive of other EFF initiatives that are aimed at real harms, but they scratch their heads at its defend-piracy-at-all-costs posture.”

The Knights Who Say SOPA — Also check out David Newhoff’s take on the same. “For all the attorneys on staff at the EFF, they rarely seem to produce an even-toned, nuanced analysis for public consumption regarding cases of this nature. I guess it’s just easier to be The Knights Who Say SOPA. Maybe if somebody brings them a nice shrubbery, they’ll knock it off.”

Making Copyright Work for Creative Upstarts — “Creative Upstarts is a fascinating look into the world of creative upstarts. With their interests and the interests of the larger copyright ecosystem in mind, Pager skillfully traverses our complicated copyright regime and identifies ample opportunities to improve copyright protections for creative upstarts. The twenty-first century is a digital age, and creators and innovators have the technological ability to produce creative works right on their laptops. Pager’s hope is the Copyright Act will be updated to address the realities of this modern world for creative upstarts.”

The problem of online piracy remains acute, and enforcement is particularly challenging against for-profit operations which often operate anonymously and off-shore. 1See generally, Good Money Gone Bad, Digital Citizens Alliance (Feb. 2014). Even if a particular site can be successfully shut down, a new version can appear in a different location, sometimes within hours.

MovieTube is a particularly brazen example of such an operation. The MovieTube sites openly admit that “many movies we linked are pirated movies” but “Luckily we are not a US company so we do not need to respect US laws.” The operators exert full control over the sites—the complaint alleges, “All content streamed from the MovieTube Websites is selected, aggregated, organized, streamed and made available for viewing by the MovieTube Websites’ operators—Defendants—only.” Defendants market their sites heavily and profit off them through online advertising.

The major motion picture studios sued the MovieTube websites—consisting of a network of at least 29 different sites—on July 24, 2015 for direct and secondary copyright infringement, federal trademark infringement, and unfair competition and false designation of origin. The studios sought, among other remedies, injunctive relief against the MovieTube websites, as well as an order that “(i) registries and registrars disable the domains to the MovieTube Websites and (ii) third-party service providers cease providing services to the MovieTube Websites and Defendants in relation to the Infringing Copies.” Injunctive relief against third-party services that facilitate the operation of infringing sites gives effect to the legal judgment of the court while minimizing the “whac-a-mole” problem discussed above.

While this approach is relatively new in the context of online piracy, it is based on established and long-standing legal provisions and principles.

Active Concert or Participation

The Copyright Act provides copyright owners with a number of remedies they can seek against infringers, including common remedies such as damages and injunctions. Specifically, 17 USC § 502(a) provides that a court may “grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.”

Temporary injunctions—which includes both temporary restraining orders and preliminary injunctions in federal courts—are granted before judgment on the merits of a case, and their purpose is to preserve the status quo during litigation and prevent irreparable harm to a party’s rights before final judgment. 2Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F. 2d 1415, 1422 (9th Cir. 1984).

A court will grant a preliminary injunction if a plaintiff has demonstrated a likelihood of success on the merits, irreparable harm in the absence of an injunction, a balance of equities in her favor, and consistency with the public interest. 3Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 374 (2008). Courts also require plaintiffs to post a bond when seeking a preliminary injunction. 4FRCP 65(c). The bond ensures that defendants are covered for any harm incurred in the event that an injunction is erroneously granted. 5Thomas Patterson, Litigation: The bond requirement for preliminary injunctions, Inside Counsel, September 5, 2013.

Under the Federal Rules of Civil Procedure, an injunction binds “(A) the parties; (B) the parties’ officers, agents, servants, employees, and attorneys; and (C) other persons who are in active concert or participation with anyone described in … [](A) or (B).” The Supreme Court has explained that this rule (present in substantially the same form since the Rules were first promulgated in 1938) “is derived from the common-law doctrine that a decree of injunction not only binds the parties defendant but also those identified with them in interest, in ‘privity’ with them, represented by them or subject to their control. In essence it is that defendants may not nullify a decree by carrying out prohibited acts through aiders and abettors, although they were not parties to the original proceeding.” 6Regal Knitwear Co. v. NLRB, 324 US 9, 14 (1945).

In recent years, a number of companies have relied on serving injunctions on aiders and abettors of infringing sites given the difficulty of hailing the operators of such sites into court and the ease with which they can evade judgment. The practice has become routine for sites involving counterfeit goods and trademark infringement. 7See, e.g., Belstaff Group SA v. Doe, Temporary Restraining Order No. 15-cv-2242 (S.D.N.Y. Apr. 8, 2015); Richemont Int’l SA v. Xiao, Temporary Restraining Order, No. 13-cv-9071 (S.D.N.Y. Dec. 23, 2013); Tory Burch LLC v. Doe, No. 12 C 7163 (N.D. Ill. Oct. 2, 2012); Richemont Int’l SA v. Chen, Temporary Restraining Order, No. 12-cv-6689 (S.D.N.Y. Sept. 4, 2012); Burberry v. Doe, No. 12 Civ. 0479 (TPG) (S.D.N.Y. May 15, 2012); Hermès v. Doe, No. 12 Civ. 1623 (DLC) (S.D.N.Y. Apr. 30, 2012); The North Face Apparel Corp. v. Fujian Sharing Imp. & Exp. Ltd. Co., No. 10 Civ. 1640 (AKH) (SDNY June 24, 2011); The Nat’l Football League v. Chen, Temporary Restraining Order, No. 11-Civ-0344 (WHP) (S.D.N.Y. Jan. 19, 2011). More recently, courts have granted similar injunctions in cases involving copyright infringement. For example, in May, ABS-CBN, a media and entertainment company in the Philippines, sued a network of pirate sites that were alleged to provide unauthorized, on-demand streaming of its television shows and films. The court granted an injunction against the sites, and ordered domain name registrars used by the sites to transfer registration to ABS-CBN and privacy protection services used by the sites to disclose the identity of the defendants. Similar injunctions have been granted on a number of other occasions. 8Arista Records, LLC v. Tkach, Memorandum & Order, 15-CV-3701 (SDNY June 3, 2015); Showtime Networks, Inc. v. Doe 1, Temporary Restraining Order and Order to Show Cause, No. 15-CV-3147 (CD Cal. April 30, 2015); Warner Bros. Ent., Inc., v. Doe, Preliminary Injunction Order, No. 14-CV-3492 (SDNY May 29, 2014); AACS-LA v. Shen, Order, No. 14-CV-1112 (SDNY Mar. 4, 2014).

Active concert or participation is a fact-specific inquiry. “In order to show that a non-party ‘aided and abetted’ a party subject to the decree,” say courts, “the plaintiff must show that the non-party had actual knowledge of the judicial decree and violated it, and that the challenged action was taken for the benefit of, or to assist, a party subject to the decree.” 9Adcor Indus., Inc. v. BEVCORP, LLC, 411 F. Supp. 2d 778, 796 (ND Ohio 2005).

Upon notice of an injunction, a non-party can challenge the order in court. A non-party who does not comply with an injunction after having been served notice can be the subject of a contempt proceeding. Here, the non-party can also raise the argument that it is not in active concert or participation with the defendant.

CloudFlare and Grooveshark

One can see this process in action in recent litigation involving Grooveshark and CloudFlare. 10Arista Records, LLC v Vita Tkach, Memorandum & Order, 15-CV-3701 (SDNY June 3, 2015).

Following a finding that music streaming site Grooveshark was liable for copyright infringement, and a permanent injunction against the site’s operators, a “copycat” version of Grooveshark appeared online. The plaintiff record labels immediately sought a temporary restraining order against the operators of the copycat and “any persons acting in concert or participation with them or third parties providing services used in connection with Defendants’ operations.” The plaintiffs served notice of the TRO on Namecheap, a domain name registrar that defendants registered their domains with. Namecheap complied with the order, and defendants subsequently registered new domain names through a new registrar, Dynadot. Dynadot complied with the order after it was served notice. Defendants then registered another domain name with a registrar in Switzerland. Plaintiffs consequently turned their attention to CloudFlare, “an internet service provider that provides authoritative domain name system servers for its customers as a means of providing content delivery network and reverse-proxy services.” CloudFlare’s services had been used by each of the copycat domain names discussed above.

Plaintiffs then requested a court order requiring CloudFlare to comply with the TRO. Cloudflare argued that it is not in active concert or participation with the defendants and “should not be bound by the injunction because its service is ‘passive’ and not necessary for the operation of the Grooveshark sites.” The court rejected both of CloudFlare’s arguments. Cloudflare had knowledge of the TRO and subsequently permitted its services to be used for one of the copycat domain names. This conduct, said the court, “benefits Defendants and quite fundamentally assists them in violating the injunction because, without it, users would not be able to connect to Defendants’ site unless they knew the specific IP address for the site.” The court also said that it is not required to show that CloudFlare is necessary for the operation of Defendants’ site, only that it is in active concert or participation with Defendants.

Due Process

Civil litigation, of course, accords full due process to parties. But it’s important to note that binding nonparties to injunctions, as described above, is also fully consonant with due process. As the First Circuit has explained:

[T]he adjudicative framework surrounding contempt proceedings fully protects nonparties’ constitutional rights. If contempt proceedings are in fact undertaken, the forum court will resolve the fact-specific question of whether the cited nonparty was in active concert or participation with the named defendant. If so, the named defendant will be deemed the nonparty’s agent, and the nonparty’s right to due process will have been satisfied vicariously. If, however, the party prosecuting the contempt proceeding fails to show active concert or participation, a finding of contempt will not lie.

We explain briefly why, in either of these events, due process is not at risk. Contempt proceedings operate to ensure that nonparties have had their day in court. In order to hold a nonparty in contempt, a court first must determine that she was in active concert or participation with the party specifically enjoined (typically, the named defendant). This means, of course, that the nonparty must be legally identified with that defendant, or, at least, deemed to have aided and abetted that defendant in the enjoined conduct. The existence of such a linkage makes it fair to bind the nonparty, even if she has not had a separate opportunity to contest the original injunction, because her close alliance with the enjoined defendant adequately assures that her interests were sufficiently represented.

The coin, however, has a flip side. A nonparty who has acted independently of the enjoined defendant will not be bound by the injunction, and, if she has had no opportunity to contest its validity, cannot be found in contempt without a separate adjudication. This tried and true dichotomy safeguards the rights of those who truly are strangers to an injunctive decree. It does not offend due process. 11Microsystems Software v. Scandinavia Online AB, 226 F. 3d 35, 42-43 (1st Cir. 2000).

In short, the process involves a court determining that the defendant in question is likely infringing copyright after hearing from both parties. If so, it may grant a preliminary injunction. The plaintiff serves notice of the injunction on a service provider, which requires them to stop facilitating the conduct of a party that a court has determined breaks the law (and in most instances violates the service provider’s own terms of service). A service provider who receives notice can challenge the order in court.

The court has ordered defendants here to show cause why a preliminary injunction should not issue by tomorrow, August 7.

References   [ + ]

1. See generally, Good Money Gone Bad, Digital Citizens Alliance (Feb. 2014).
2. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F. 2d 1415, 1422 (9th Cir. 1984).
3. Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 374 (2008).
4. FRCP 65(c).
5. Thomas Patterson, Litigation: The bond requirement for preliminary injunctions, Inside Counsel, September 5, 2013.
6. Regal Knitwear Co. v. NLRB, 324 US 9, 14 (1945).
7. See, e.g., Belstaff Group SA v. Doe, Temporary Restraining Order No. 15-cv-2242 (S.D.N.Y. Apr. 8, 2015); Richemont Int’l SA v. Xiao, Temporary Restraining Order, No. 13-cv-9071 (S.D.N.Y. Dec. 23, 2013); Tory Burch LLC v. Doe, No. 12 C 7163 (N.D. Ill. Oct. 2, 2012); Richemont Int’l SA v. Chen, Temporary Restraining Order, No. 12-cv-6689 (S.D.N.Y. Sept. 4, 2012); Burberry v. Doe, No. 12 Civ. 0479 (TPG) (S.D.N.Y. May 15, 2012); Hermès v. Doe, No. 12 Civ. 1623 (DLC) (S.D.N.Y. Apr. 30, 2012); The North Face Apparel Corp. v. Fujian Sharing Imp. & Exp. Ltd. Co., No. 10 Civ. 1640 (AKH) (SDNY June 24, 2011); The Nat’l Football League v. Chen, Temporary Restraining Order, No. 11-Civ-0344 (WHP) (S.D.N.Y. Jan. 19, 2011).
8. Arista Records, LLC v. Tkach, Memorandum & Order, 15-CV-3701 (SDNY June 3, 2015); Showtime Networks, Inc. v. Doe 1, Temporary Restraining Order and Order to Show Cause, No. 15-CV-3147 (CD Cal. April 30, 2015); Warner Bros. Ent., Inc., v. Doe, Preliminary Injunction Order, No. 14-CV-3492 (SDNY May 29, 2014); AACS-LA v. Shen, Order, No. 14-CV-1112 (SDNY Mar. 4, 2014).
9. Adcor Indus., Inc. v. BEVCORP, LLC, 411 F. Supp. 2d 778, 796 (ND Ohio 2005).
10. Arista Records, LLC v Vita Tkach, Memorandum & Order, 15-CV-3701 (SDNY June 3, 2015).
11. Microsystems Software v. Scandinavia Online AB, 226 F. 3d 35, 42-43 (1st Cir. 2000).

Open Source Copyright Hub unveiled with ’90+ projects’ in the pipeline — The UK’s long-anticipated Copyright Hub officially launched this week. Andrew Orlowski explains, “The Hub aims to build rights-aware layers on top of the internet, so that people can track how what they make public is used, much as DNS added ease of use to naming protocols and VPNs added privacy standards to the basic bare-bones internet.” Last March, the US’s Internet Policy Task Force held a public meeting that considered whether the US should have something similar.

TVEyes Cannot Stand in the Shoes of its Users — “[I]t is one thing for a media critic to reproduce a segment of a news broadcast for the specific purpose of analyzing or commenting on that broadcast. But it is another thing entirely for a company to continuously and endlessly copy the content of thousands of television networks and offer that content to subscribers who may then make a fair use of the content.”

Annotated state laws of Georgia on my Mind — In a bit of sleight of hand, Carl Malamud proclaims that a recent lawsuit by the State of Georgia against his organization for reproducing in whole the Official Code of Georgia Annotated amounts to an attempt to copyright the law. However, the actual lawsuit alleges copyright infringement of the Code’s annotations, which includes notes and summaries of judicial decisions that have interpreted provisions of the Code. In 1709 Blog’s view, “the State of Georgia’s case has some merit.”

The Anti-Commons Revisited — A common claim among IP academics is that IP rights like copyright suffer from anti-commons effects, where numerous and overlapping rights prevent transactions and innovation. Jonathan Barnett examines the claim and finds evidence for it scarce, while finding evidence that markets and private actors correct for anti-commons effects is abundant.

House Judiciary Committee Announces Next Step in Copyright Review — “The Committee has issued joint invitations to all prior witnesses of the Committee’s copyright review hearings to meet with Committee staff and provide additional input on copyright policy issues… The Committee is also openly inviting any interested party to come and discuss their interests in copyright law during this process as well.

Visual Artists: Recent Orphan Works Rumors Are Not True — A look at recent erroneous claims of new copyright legislation that hijacked an unrelated Copyright Office public comment proceeding.

Oracle and Google both propose Android-Java trial dates in the spring of 2016 — FOSS Patents has the latest on the litigation between Oracle and Google involving the Java API. The case has returned to the District Court following last month’s denial of a cert petition by the Supreme Court involving the 2014 Federal Circuit decision that held the Java API is copyrightable.

Coalition Asks WIPO To Follow Proposed Guidelines To Better Defend IP Rights — 85 organizations in 51 different countries published a letter this week affirming the importance of IP rights, including copyright. According to the letter, “Advanced societies have long understood that by protecting the proprietary rights of artists, authors, entrepreneurs, innovators, and inventors, they were promoting the greater public welfare. The continued protection of these fundamental rights is essential to global innovation, creativity and competitiveness.”

Sound is the forgotten flavor sense — “Manipulating sound can transform our experience of food and drink, making stale potato chips taste fresh, adding the sensation of cream to black coffee, or boosting the savory, peaty notes in whiskey.”

Now Hiring: Screenwriters — “When a writer types THE END, it is the beginning of a process that involves hundreds of jobs and services before the script even reaches the actual production stage. Staff at the Producer’s office, Studio execs and Story execs and their staff who are employed to read, develop, finance and produce your script get to keep their jobs because of writers. Agents, Managers, Lawyers who negotiate the writer deals, all have jobs in part because of writers. Once the script goes into the production stage, the amount of jobs required to produce a film grows exponentially; crews of 100-400 and more become necessary; local vendors and merchants in the location where my script is being filmed benefit and are able to boost employment. Hotels, car rental agencies, airlines, local restaurants, stores, shops, all benefit enormously by my typing THE END.”

Do weaker copyrights really increase economic growth? — No, says Tom Sydnor. Following an analysis of a recent Lisbon Council report that found it contained serious methodological blunders to reach its conclusion that weaker copyright protection increases economic growth, Sydnor looks at several of the “serious errors of law” the report also made.

‘Don’t Be Mad’: Scott Borchetta Talks Apple Negotiations, How Taylor Swift Told Him About Her Letter — “What really went down leading up to Taylor Swift’s show-stopping Father’s Day letter to Apple regarding streaming payments during Apple Music’s free trial?”

Modernizing the Copyright Office — “The key question is: Are at least some of the complaints about the copyright system more matters of the limitations of the Copyright Office than they are limitations of copyright law? The answer seems to be yes, and with more autonomy and better infrastructure, a 21st Century Copyright Office should be able to solve some of the logistical problems consumers face when trying to use creative works.”

Guild to Congress: Close Internet Piracy Loopholes, Implement “Notice and Stay-Down” — “Court decisions have construed the Digital Millennium Copyright Act’s Notice and Takedown provisions to mean that a copyright owner is required to send a notice for each separate instance (i.e., copy) of infringement, specifying the URL. But as soon as a pirated copy is taken down, it is usually put right back up. Needless to say, copyright owners cannot keep up with this senseless game, and individual authors do not begin to have the resources to send a new notice every time a pirated copy is posted or reposted. We are asking for a ‘Notice and Stay-Down’ regime: once a webhost knows a work is being infringed, it should not continue to receive “safe harbor” immunity from claims of infringement unless it takes reasonable measures to remove all infringing copies of the same work.”

After a brief hiatus due to vacation and holidays, we’re back!

Copyright And The Public Interest: Not Necessarily Competing Forces —  “It does not serve the aspirations of developing societies to return to a system in which the voices of the people serve the whims of the private elite, or worse, to allow governments to be the sole determining body in the matter of cultural works. By permitting creative genius to be fueled by market forces, we unleash the cultural power and potential of the diversity of individuals, freeing creative impulses from the tyranny of centralized controls and making creative works accessible to the public at large. While copyright may be inadequate on its own in creating fair market conditions, it remains by far the most powerful tool for fostering creativity and democratizing culture itself.”

IPA: ‘Freedom of expression linked to copyright’ — A new report from the International Publishers Association looks at the connection between weak freedom of expression protections in developing countries and weak copyright protections.

The Lisbon Council’s 2015 Intellectual Property and Economic Growth Index: A Showcase of Methodological Blunder (PDF) — According to a Phoenix Center analysis, a recent report purporting to show that so-called flexible copyright limitations and exceptions have a positive economic effect “is junk science and should be ignored.” The analysis details some of the report’s methodological flaws.

Five Hard Lessons We Learned Making GHOST SHARK 2: URBAN JAWS — Some perhaps helpful advice for new filmmakers, as well as an interesting look into DIY filmmaking. And the filmmakers conclude by saying, “Enjoy our strange little movie, and please, for the love of God, don’t pirate it.”

40 states line up with Mississippi in Google Adwords pharma scrap — “‘In my ten years as Attorney General, I have dealt with a lot of large corporate wrongdoers. I must say that yours is the first I have encountered to have no corporate conscience for the safety of its customers, the viability of its fellow corporations or the negative economic impact on the nation which has allowed your company to flourish,’ Hood wrote in a letter to Google chairman Eric Schmidt.”

Copyright Office modernization efforts deserve broad support — From Tom Sydnor at American Enterprise Institute: “the outdated and ineffective IT procurement processes at the Library of Congress have forced the US Copyright Office to try to run a 21st century copyright system with 19th and 20th century technologies. That anachronism disserves the legitimate interests of everyone affected by copyrights – creators, creative industries, content distributors, and users of expressive works. The Copyright Office needs independent IT funding and procurement authority, and internal IT personnel, in order to use the latest technologies to make copyright registration, recordation, and search far more effective, efficient and accessible than they are today.”

Supreme Court Recognizes that Patents are Property — In a case involving raisins, obviously. The Court’s discussion applies just as much to copyright.

Authorship and Authority in the Moral Foundations of Moral Rights — Brian Cwik sketches out an alternative justification for moral rights, one that shows that moral rights and copyright have more in common than often suggested.

How Television Won the Internet — Reports of “old media’s” demise have been premature. “The fundamental recipe for media success, in other words, is the same as it used to be: a premium product that people pay attention to and pay money for. Credit cards, not eyeballs.”

 

‘Mad Men’ era Copyright Office needs to be brought into the 21st century — “Let’s start with where the U.S. Copyright Office is housed: in the Library of Congress. Why? Well, in 1890, placing it there was a convenience to help the Library build its collection of books that were deposited for registration. Of course, this is meaningless in the electronic era and allows the Library to re-direct funding to other projects. Although knowledge of copyright law is not a requirement to be Librarian of Congress, that person is in charge of issuing copyright regulations. Congressional hearings have produced a consensus that the Copyright Office needs budget and operational autonomy to function properly.”

Making John Lasseter Cry: Pete Doctor and Jonas Rivera on “Inside Out” — Great interview with the producer and director of Pixar’s latest, “Inside Out”, out today. The original story took five years to develop.

Justin Bieber Must Face Copyright Suit, Appeals Court Rules — The Fourth Circuit reversed the decision of a lower court to dismiss a copyright complaint alleging Usher and Bieber infringed an existing song. The Circuit held, after listening to the two songs itself, that “a reasonable jury could find the songs intrinsically similar,” so the litigation should survive the pleadings stage.

Jenner & Block Accuses Google of Abusive Litigation Tactics — “‘The most fundamental purpose of these subpoenas is to send a message to anyone who dares to seek government redress for Google’s facilitation of unlawful conduct: If you and your attorneys exercise their First Amendment right to seek redress from a government official, Google will come after you,’ Jenner & Block partner David Handzo wrote. ‘The court should not allow Google’s abuse of the litigation process.'”

Canadian court reflects common sense in rejecting Google appeal — Google lost an attempt in Canada to ignore a court order to restrain infringement. Here’s David Newhoff’s take. “The case of Equustek v Google demonstrates that a very narrow and carefully weighed judicial approach to de-indexing clearly criminal sites can coexist with free speech and of course not break the Internet. More importantly, the Canadian court places what seems like a very fair and minimal degree of burden on the site owner, rejecting the all-too-popular claim that sites are to be treated exclusively and universally as neutral, passive entities in these matters.”

Top Nine Myths About Trade Promotion Authority And The Trans-Pacific Partnership — A bit of trade-related posts this morning since the House is set to vote on Trade Promotion Authority today (and trade agreements include important provisions setting minimum standards for copyright protection). “Despite the tireless efforts of trade policy experts to explain why TPA and the U.S. trade agreements it’s intended to facilitate are, while imperfect, not a secret corporatist plot to usurp the U.S. Constitution and install global government, myths and half-truths continue to infect traditional and social media outlets.”

Three letters that spell a better economic future — BSA CEO Victoria Espinel pens this op-ed in favor of TPA, noting, “In the 1980s, we took stock of how our economy was changing and where our future strengths lay. We found that we were innovators, so intellectual property protection was essential. We also found that we were strong in a broad range of services. But at that time there were not trade rules in place to ensure we could reap the full benefits from those advantages. So the U.S. took the lead in negotiating strong trade rules to ensure we could take full and fair advantages of these strengths.”

Copyright’s Republic: Copyright for the Last and the Next 225 Years — In case you missed it, Mark Schultz and Devlin Hartline introduced a series of essays that will show that “Copyright laid the foundation for, and continues to support, the largest, most enduring, and most influential commercial culture in human history. That commercial culture is uniquely democratic, progressive, and accessible to both creators and audiences.” So far, part one is up, Promoting an Independent and Professional Class of Creators and Creative Businesses.

“YouTube for YouTube” — Chris Castle asks the question, how innovative is Google’s “YouTube for Artists” initiative? He gets insightful responses from David Lowery and Blake Morgan.

CloudFlare Enjoined From Aiding Infringers: Internet Unbroken — Last week, a federal court rejected CloudFlare’s (and EFF’s) argument that the service did not have to comply with a court-ordered injunction because it wasn’t aiding and abetting infringing activity. Here is excellent analysis of that decision.

The Pharaohs Of Silicon Valley: My Journey Through Google Headquarters — “With elegant, deliberate precision, the Google Car starts its own motor and makes a slow, controlled trip around the quarter-mile track. It comes to a perfect, gradual stop at the finish line. The door to the car opens and the scientist emerges. He now has the head of a falcon. He emits frightened birdlike shrieks from his new beak as he grasps in horror at his monstrous new head.”

The Ninth Circuit’s en banc decision in Garcia v. Google was hugely popular when it came out several weeks ago, though talk about it has quickly died down. 1No. 12-57302, May 18, 2015. Despite that, part of the court’s discussion is troubling and worth note.

To recount the facts quickly, actress Cindy Lee Garcia performed a cameo in what she thought was an “action-adventure thriller set in ancient Arabia.” The film ended up being an offensive anti-Islam film Innocence of Muslims. Garcia appeared for five seconds with a dubbed-over voice asking, “Is your Mohammed a child molester?” A 14 minute version of the film was uploaded to YouTube, causing widespread outrage in the Middle East. A fatwa was issued by an Egyptian cleric against all participants in the film, and Garcia received “multiple death threats” because of her appearance. 2See Cindy Lee Garcia’s declaration for a detailed account of many of these threats.

Garcia took legal action through a number of avenues. On November 30, 2012, a federal district court denied a preliminary injunction based on a copyright claim. A Ninth Circuit panel reversed this decision in 2014 and granted the injunction, causing widespread outrage on the internet. 3766 F.3d 929 (9th Cir. 2014). On May 18th, however, an en banc court dissolved the panel’s injunction and affirmed the district court’s decision.

The En Banc Decision

When deciding whether to grant a preliminary injunction, a court considers four factors: (1) the likelihood a plaintiff will succeed on the merits of her claim, (2) the likelihood a plaintiff will suffer irreparable harm absent an injunction, (3) the balance of hardships between the two parties, and (4) the public interest.

The Ninth Circuit held that the district court did not abuse its discretion in denying the injunction for two reasons. First, it concluded that Garcia was unlikely to succeed on the merits, saying “neither the Copyright Act nor the Copyright Office’s interpretation supports Garcia’s claim.” And second, it held that “Garcia failed to muster a clear showing of irreparable harm.” Because of these two conclusions, the court found it unnecessary to consider the final two factors.

I think the Ninth Circuit reached the correct result on the merits in holding that Garcia did not have an independent copyrightable interest in her five second performance—and there are doctrines the court didn’t look at, such as the de minimis doctrine, that may have separately provided grounds for such a result. However, its discussion regarding irreparable harm does not rest on as solid legal grounds. It’s easy to gloss over the discussion of irreparable harm if one is thinking about it in terms of Garcia’s weak claim. But when one realizes it applies across the board to all copyright owners, then the concern becomes apparent.

The Ninth Circuit starts its discussion of irreparable harm by asserting that “there is a mismatch between [Garcia’s] substantive copyright claim and the dangers she hopes to remedy through an injunction.” That is, says the court, because Garcia is seeking an injunction under copyright law, her “harm must stem from copyright—namely, harm to her legal interests as an author.” The Ninth Circuit cites to the Second Circuit’s remark in Salinger v. Colting that “The relevant harm is the harm that … occurs to the parties’ legal interests” 4607 F.3d 68, 81 & n.9 (2d Cir. 2010). in support.

It then turns immediately to the Constitution, asserting that the “purpose of copyright underscores the disjunction Garcia’s case presents.” The Ninth Circuit finds copyright’s purpose is explicitly commercial and not to “protect secrecy.”

Having defined copyright’s purpose in such a way, the court then describes the harms Garcia is seeking to prevent as “damage to her reputation, unfair[,] forced promotion of a hateful Film, and death.” However, it says, these “harms are untethered from—and incompatible with—copyright and copyright’s function as the engine of expression.”

For example, the court finds “privacy is not a function of the copyright law” because the goal of copyright is “to encourage public access to the creative work of the author.” Similarly, emotional distress damages are unavailable under the Copyright Act “because such damages are unrelated to the value and marketability of their works.”

Finally, the court finds no refuge for Garcia in the “right to be forgotten” or “moral rights”, since it says neither are recognized in the United States. It ultimately concludes that “the gravamen of Garcia’s harm is untethered from her commercial interests as a performer, and instead focuses on the personal pain caused by her association with the film.”

The Legal Interests of an Author

The court gets so much incorrect in so little time. Perhaps it’s the case that the weakness of Garcia’s substantive claim casts a shade over the court’s discussion of irreparable harm. The problem is that this discussion is just as applicable to a meritorious copyright claim.

So what went wrong?

First, the court improperly narrows the interest at stake from the legal interest to the “legal interest as an author” (and, later, narrows this further to the commercial interest as a performer). There is no statutory basis for this interpretation. Copyright protection subsists in a work. 517 USC 102(a). It accords a set of exclusive rights in that work. 617 USC 106. Infringement occurs simply through violation of any of these exclusive rights. 717 USC 501. Nowhere does the Copyright Act qualify infringement or an author’s exclusive rights as the Ninth Circuit has.

Ironically, the very case the court cites in support provides a counterargument. After the Second Circuit says in Salinger that the relevant harm is the one that “occurs to the parties’ legal interests”, as the Ninth Circuit quotes, it goes on to say that “The plaintiff’s interest is, principally, a property interest in the copyrighted material.” An invasion of a property interest causes a legal harm. This is contrary to the Ninth Circuit’s suggestion here that only certain types of invasions cause legal harms which may give rise to irreparable harm, particularly only harms to commercial interests.

The Supreme Court has provided support for this interpretation a number of times over the decades. In eBay v. MercExchangewhich, though it involved an injunction for patent infringement, is just as applicable to copyright injunctions— 8The Ninth Circuit is among the Federal Circuit Courts of Appeal to explicitly hold so, see Perfect 10 Inc. v. Google Inc., 653 F. 3d 976, 980 (9th Cir. 2011). the Court said that “a copyright holder possesses ‘the right to exclude others from using his property.’” 9547 US 388, 392 (2006). It cautioned against adopting “expansive principles suggesting that injunctive relief could not issue in a broad swath of cases.” Of particular relevance here, it chastised the lower court’s conclusion that “’[a plaintiff’s] lack of commercial activity in practicing the patents’ would be sufficient to establish that the patent holder would not suffer irreparable harm if an injunction did not issue.”

As the Court said in Sony, “It is not the role of the courts to tell copyright holders the best way for them to exploit their copyrights.” 10Sony Corp v Universal City Studios, 464 US 417, 450 (1984). But it was most direct in Fox Film Corp. v. Doyal when it said, “The owner of the copyright, if he pleases, may refrain from vending or licensing and content himself with simply exercising the right to exclude others from using his property.” 11286 US 123, 127 (1932).

Elsewhere, the Ninth Circuit has said, “Even an author who had disavowed any intention to publish his work during his lifetime was entitled to protection of his copyright”. 12Worldwide Church of God v. Philadelphia Church of God, 227 F. 3d 1110, 1119 (9th Cir. 2000).

The legal interest in a copyright, based on the statutory text and Supreme Court precedent, is an interest in exercising exclusively the rights enumerated in the Copyright Act. It is not, as the Ninth Circuit suggests, limited to a narrow subset of invasions, such as those that only affect a copyright owner’s commercial interests. That’s not to say that there is a presumption of irreparable harm once a likelihood of infringement has been established; the Supreme Court cautioned against such “categorical rules” in eBay. 13547 US at 392. See also Salinger v. Colting, 607 F. 3d 68 at 82 (2nd Cir. 2010) (“After eBay, however, courts must not simply presume irreparable harm.”). But as the Second Circuit pointed out when applying eBay, “This is not to say that most copyright plaintiffs who have shown a likelihood of success on the merits would not be irreparably harmed absent preliminary injunctive relief. As an empirical matter, that may well be the case, and the historical tendency to issue preliminary injunctions readily in copyright cases may reflect just that.” 14607 F. 3d at 82.

Garcia, however, did not argue for a presumption of irreparable harm. She asserted a number of irreparable harms that were likely to result in the absence of an injunction. 15Ex parte application for a temporary restraining order and an order to show cause re preliminary injunction, and order of impoundment, No. CV 12-8315 (Oct. 17, 2012) (No. 12). These harms included the risk of death, that most irreparable of injuries.

Non-economic Interests

The Ninth Circuit marshals a number of points to support its conclusion that Garcia failed to show irreparable harm. First, the court’s discussion of the Constitutional purpose of copyright is both premature and misconceived.

Its emphasis on copyright’s role in encouraging “public access to the creative work of the author” and its ability to override a copyright owner’s legal interest leads to a logical contradiction. In a sense, the court is suggesting that copyright’s purpose is served by ignoring copyright. One must instead read the Copyright Clause conjunctively: Congress “promote[s] the progress of science and useful arts by securing… to authors… the exclusive right to their… writings.” Copyright’s purpose, in other words, is served when authors’ exclusive rights are secured.

The court then asserts that relief from the injuries Garcia seeks to avoid—”damage to her reputation, unfair[,] forced promotion of a hateful Film, and death”—”is not easily achieved under copyright law” because those harms are incompatible with “copyright’s function as the engine of free expression.”

This is an incomplete statement about the relationship between copyright and the First Amendment. The First Amendment protects not only the freedom to speak, but the freedom not to speak. 16Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston , 515 U.S. 557 (1995). at 573; see also, e.g., Pac. Gas & Elec. Co. v. Pub. Util. Comm’n of Cal., 475 U.S. 1 (1986) (plurality opinion). Courts—including the Supreme Court—have recognized this principle applies equally in copyright cases. The Court in Harper & Row said that “freedom of thought and expression ‘includes both the right to speak freely and the right to refrain from speaking at all.’” 17471 US 539, 559 (1985). Copyright, it said, serves this “First Amendment value.” Indeed, the Second Circuit observed in Salinger, which the Ninth Circuit quotes in its discussion, that “[t]he loss of First Amendment freedoms,” and hence infringement of the right not to speak, “for even minimal periods of time, unquestionably constitutes irreparable injury.” 18Salinger at 81. It would certainly be the case, then, that being threatened with death for words that one did not speak but that have been attributed to her would constitute irreparable injury.

The court is correct when it says that “authors cannot seek emotional distress damages under the Copyright Act.” But the case it cites is speaking about actual damages, not injunctive relief, so that statement is irrelevant here.

The court’s dismissal of a copyright owner’s privacy interests is similarly misguided. Copyright and privacy have long shared common ground. In 1849, a British court said, “That there is property in the ideas which pass in a man’s mind is consistent with all the authorities in English law. Incidental to that right is the right of deciding when and how they shall first be made known to the public. Privacy is a part, and an essential part, of this species of property.” 19Prince Albert v. Strange, 1 McN. & G. (1849). Warren and Brandeis’ seminal article, The Right to Privacy, also observe this kinship. There, the legal giants say, “[T]he legal doctrines relating to infractions of what is ordinarily termed the common-law right to intellectual and artistic property are, it is believed, but instances and applications of a general right to privacy.” 204 Harv. L. Rev. 193 (1890).

Right Results, Wrong Approach

To reiterate, establishing irreparable harm here does not necessarily mean Garcia should get an injunction. As noted above, the weak merits of the copyright claim weighs against an injunction. And though the Ninth Circuit did not look at the third factor, the balance of hardships or equities, that likely weighs against injunctive relief as well, given Google’s attenuated participation in the infringement.

So it is all the more unfortunate that the court expounded erroneously on irreparable harm. At its heart, copyright provides the author with the exclusive right to decide how, when, and where their expression is disseminated to the public (subject, of course, to exceptions and limitations like fair use). Any given author will have a range of equally valid interests motivating those decisions, both economic and non-economic. Courts should exercise caution in second guessing those motivations as the Ninth Circuit did here in its discussion on irreparable harm.

References   [ + ]

1. No. 12-57302, May 18, 2015.
2. See Cindy Lee Garcia’s declaration for a detailed account of many of these threats.
3. 766 F.3d 929 (9th Cir. 2014).
4. 607 F.3d 68, 81 & n.9 (2d Cir. 2010).
5. 17 USC 102(a).
6. 17 USC 106.
7. 17 USC 501.
8. The Ninth Circuit is among the Federal Circuit Courts of Appeal to explicitly hold so, see Perfect 10 Inc. v. Google Inc., 653 F. 3d 976, 980 (9th Cir. 2011).
9. 547 US 388, 392 (2006).
10. Sony Corp v Universal City Studios, 464 US 417, 450 (1984).
11. 286 US 123, 127 (1932).
12. Worldwide Church of God v. Philadelphia Church of God, 227 F. 3d 1110, 1119 (9th Cir. 2000).
13. 547 US at 392. See also Salinger v. Colting, 607 F. 3d 68 at 82 (2nd Cir. 2010) (“After eBay, however, courts must not simply presume irreparable harm.”).
14. 607 F. 3d at 82.
15. Ex parte application for a temporary restraining order and an order to show cause re preliminary injunction, and order of impoundment, No. CV 12-8315 (Oct. 17, 2012) (No. 12).
16. Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston , 515 U.S. 557 (1995). at 573; see also, e.g., Pac. Gas & Elec. Co. v. Pub. Util. Comm’n of Cal., 475 U.S. 1 (1986) (plurality opinion).
17. 471 US 539, 559 (1985).
18. Salinger at 81.
19. Prince Albert v. Strange, 1 McN. & G. (1849).
20. 4 Harv. L. Rev. 193 (1890).