By , September 16, 2011.

Senate Judiciary Committee report on PROTECT IP, July 22, 2011:

The Committee notes that protecting intellectual property in the form of copyrighted material is not only important to our economy and jobs, but is also important for advancing the goals of the First Amendment. The United States Supreme Court has long held that copyright protection advances the goals of the First Amendment by “supply[ing] the economic incentive to create and disseminate ideas.” The “clause [of the Constitution] empowering Congress to grant patents and copyrights is [based] in the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.'”

Further, Justice O’Connor wrote that copyright law is the very “engine of free expression.” It exists not to prevent free speech, but to promote it. Justice O’Connor went on to recall that “freedom of thought and expression ‘includes both the right to speak freely and the right to refrain from speaking at all.'” As rogue Internet sites evade U.S. intellectual property laws, they not only cause economic harm, but they trample on these First Amendment values.

UK Culture Secretary calls for boldness in dealing with online piracy — Barry Sookman reports on the speech given by UK Culture Secretary Jeremy Hunt to the Royal Television Society on September 14, 2011. The talk deals broadly with UK communications policy, but does address the problem of unlawfully distributed content online. Just a taste: “John Stuart Mill defined liberty as the freedom to do anything provided it does not impinge on the freedom of others. Unlawfully distributing copyrighted material is theft – and a direct assault on the freedoms and rights of creators of content to be rewarded fairly for their efforts. Fundamental to our concept of both freedom and the law is that it should apply to everyone without fear or favour. This means it must apply equally in the virtual world as in the physical world.”

Do it, or we’ll do it for you: Jeremy Hunt and Ed Vaizey stand up for human rights of UK artists — Chris Castle also comments on Hunt’s recent remarks, paying specific attention to the relationship between Google and Prime Minister David Cameron.

Study: 92% of music fans still prefer ownership — Digital Music News highlights a recent study by eMusic, administered by Insight Research Group that found this and other interesting statistics concerning consumer attitudes toward digital music, streaming services, and buying habits.

If free culture is going to be so great, why are bullies in charge of it? — John Degen looks at the far-too-common backlash that creators and creator advocates get from free culture advocates when they say something provocative like people should get paid for their work. Good article, but this comment from Degen, FTW: “it’s always been easy to NOT make a living at being a professional artist. The free culture movement is just making it easier.”

Found one! We re-unite an author with an “orphaned work” — On Monday, the Authors Guild and others filed suit against five universities and the HathiTrust for plans to release digital scans of “orphan works”, books that are still under copyright protection but where the rights-holder is unable to be found. In this blog post, the Authors Guild finds one of the authors on the list of orphan works the trust plans to release after a few minutes on Google.

Entrepreneurs Demonstrate It Is Time To Act On The Protect Ip Act — The Copyright Alliance looks at last week’s letter from tech entrepreneurs against the proposed rogue sites legislation. “By rehashing generations old history and repeating myths and misstatements about the bill, the main thing the signatories have shown is that there is nothing new they can bring to the debate, and that it is time for Congress to act on the legislation.”

The Supreme Court of Canada Copyright Tariff Pentalogy — The Supreme Court of Canada, which historically has heard copyright cases relatively infrequently, is set to hear five cases December 6-7. James Gannon presents a summary of the cases, all involving judicial review of Copyright Board decisions on collective licensing.

With Great Power Comes No Responsibility — Rob Levine questions Google’s apparent position that it has absolutely no responsibility when its services are used, exactly the way they were designed to be used, for illegal purposes. “On a literal level, the company abides by its public relations mantra, ‘Don’t Be Evil.’ But that’s only because it prefers to outsource bad behavior in a way that enables it to make money and still abide by the letter of the law. ”

Backstage helps out on September 11th — Last week, many US bloggers shared there thoughts on the 10th anniversary of the 9/11 attacks. Here, Eric Hart (my brother) looks at how NYC theater professionals and IATSE members pitched in to assist with rescue efforts and the aftermath.

Turntable comes clean about funding. Next up: label deals, more users — Some more updates on the much-buzzed new music service. I previously wrote about and licensing; here, Peter Kafka reports that “Basically they’re gunning for a hybrid license which would have them paying more per stream than Pandora does, but less than a full-fledged, on-demand interactive service like Spotify ponies up.”

Tenenbaum: an alternative view — An older article, but with the Tenenbaum appeal currently awaiting decision and the Thomas-Rasset appeal to begin briefing in October, I thought it would be of interest. Both appeals concern what, if any, due process (Fifth Amendment) limitations are placed on a jury award of statutory damages. But here, attorney Emily Maruja Bass asks a different question: does the reduction of the jury’s award violate the Seventh Amendment rights of the plaintiffs? With great analysis, Bass presents a persuasive argument that it might.


  1. Love the alternative view of Tenenbaum. Great find!

    • I would not call it an “alternative” view because it directs itself to the second issue underlying this and the JRT case, namely, a plaintiff’s right to what is conferred by the 7th Amendment.

      Unfortunately, I do not find this second issue to be so simple. Is a “number” selected by a jury within the statutory range truly a finding of “fact”, or is it something else (e.g., a mixed question of law and fact…a common circumstance associated, for example, within the province of claim construction under patent law). Perhaps even the phrase “common law” may have significance such that it limits the breadth of the amendment. I have not researched these, so I dare not express an opinion one way or the other.

      • I know next to zip about the Seventh Amendment, but I found the arguments to be persuasive at first blush. I’m curious: Do you predict affirmance for either Tenenbaum or Thomas-Rasset on appeal? I’ll be floored if either one wins on appeal.

        • On straight “due process” grounds the two cases should be reversed and remanded. However, it is usually a foolish exercise to try and predict how a court will decide.

        • First Circuit just handed down its opinion in Tenenbaum.

          It rejected all Tenenbaum’s arguments and remanded for consideration of remittitur.

          • Speak of the devil. Sort of. 🙂

          • Footnote 28 of the opinion raises such a fundamental issue that I am somewhat surprised it was relegated to a mere footnote.

            In its most elemental sense, it seems to suggest that the standard for “remittitur”, which appears to relate most closely to the 7th Amendment (right to jury trial and jury verdicts), would have to be “balanced” against the standard for “due process” under the 5th Amendment.

            I believe the standard for “due process” as applied to statutory damages would quite likely turn in favor of the plaintiffs in this case (i.e., Williams prevailing over Gore). It is the standard for “remittitur” that leaves me perplexed. Why this is so can be gleaned, in part, from an article ( remittitur and common law at the time the 7th Amendment was enacted (1791). If, as the article proposes, that remittitur runs afoul of the 7th Amendment by essentially removing the jury from the process, then I am hard pressed to understand why remittitur even needs to be balanced against the 5th Amendment.

            I believe it fair to say that while the original verdict has been reinstated and the case remanded for the reason noted in the opinion, my “gut” leads me to believe that Footnote 28 will play a prominent role when the case is received by Judge Gertner for reconsideration.

          • It is an interesting question.

            To add to the interest, I’m wondering what exactly the difference is between the standard for remittitur and the Williams standard for due process review of jury verdicts of statutory damages. They seem very similar to me, which would lead to odd results: jury returns verdict, judge doesn’t like it and remits, plaintiff rejects, new jury returns verdict, judge doesn’t like it and reduces under Williams which plaintiff has to accept. In other words, the seventh amendment only gives you a right to the first jury trial.

          • I note with interest that the Court has acknowledged the bartering aspect of Tenenbaum’s conduct (II.B.), even though this has no actual bearing on the question of liability. Perhaps we can finally lay the term “sharing” to rest and start calling it what is. “Commercial” need not mean “involving money”.

          • Mr. Hart,

            Just curious. What leads you to believe that the 7th Amendment may give one only a single bite at the apple?

          • Just curious. What leads you to believe that the 7th Amendment may give one only a single bite at the apple?

            Because I think that’s one way of looking at the Thomas-Rasset case. The first jury award was remitted by the judge. The 7th Amendment requires that the plaintiffs be given the option of accepting the remitted award or having a new trial — in this case they chose the latter. The second jury award was reduced on due process grounds, and as I understand it, such a reduction on constitutional grounds, if proper, doesn’t implicate the 7th Amendment.

            According to the court, and now the First Circuit, a court has to consider remittitur first, but if that leads to a second verdict the court doesn’t like, it can properly reduce on due process grounds.

            But look at the standards for each:

            When the court remitted the award, it said the verdict was “so grossly excessive as to shock the conscience of the court. A verdict is not considered excessive unless there is plain injustice or a monstrous or shocking result.”

            When it reduced on due process grounds, it said that was proper because the verdict was “so severe and oppressive as to be wholly disproportioned to the offense or obviously unreasonable.”

            Is there a workable difference between these two standards? I don’t see one, which is what led me to believe that if this line of analysis is correct, the 7th Amendment gives you one bite at the apple.

  2. Backstage helps out on September 11th — Last week, many US bloggers shared there* thoughts on the 10th anniversary of the 9/11 attacks.