Oh Tenenbaum

By , April 21, 2011.

Stories of heroic legal battles, typically involving underdogs fighting against all odds for truth and justice, are popular fodder for books and films.

Gideon’s Trumpet tells the tale of a poor, uneducated man, in and out of jail most of his life, who doggedly pushes his latest conviction all the way to the Supreme Court and wins — in turn, setting the precedent that the Constitutional right to an attorney applies in State courts.

The Buffalo Creek Disaster recounts the aftermath of a devastating coal mining disaster that wiped out a West Virginia town and the efforts of a group of attorneys to hold the mining company responsible for failing to prevent the bursting of the dam.

The film Erin Brockovich portrays the tale of a single mother without a formal legal education who launched a successful fight against a large utility company alleged to be contaminating groundwater and sickening the local population, leading to the largest settlement paid in a direct action lawsuit in US history. 1According to Wikipedia.

Perhaps Joel Tenenbaum and his legal team are hoping one day to have their legal battle memoralized in a similar story. Regarding Tenenbaum’s appeal of the $675,000 — $22,500 per song for 30 songs — awarded as damages for copyright infringement, one of the law students working on the case expressed “real hope for Joel, for justice, and for rationality.”

Justice, it seems, must save college students from the tyranny of having to pay 99 cents to own a song.

Don’t get me wrong, $675,000 is a lot of money, and Tenenbaum was one of the unlucky quarter of 1/10 of one percent of illegal filesharers to be sued by the record labels between 2003 and 2008, 2This is a back-of-the-envelope calculation, derived from InternetWorldStats number of US internet users in 2005, Interpret’s percentage of internet users who have downloaded illegally, and record label court filings indicating the number of named defendants contacted during the litigation campaign. and of those, one of only 2 out of 18,000 defendants to have gotten a jury award of statutory damages against him.

But is $675,000 an unconstitutional amount to be awarded against an individual who has engaged in P2P infringement? That is the question currently facing the First Circuit.

On July 9, 2010, Judge Gertner reduced the jury’s award of $675,000 to $67,500 on constitutional grounds in Sony BMG Music Entertainment v. Tenenbaum. 3721 F.Supp.2d 85 (D. Mass). This is in contrast to the reduction of the jury award in the Jammie Thomas case, which was made under the common law procedure of remittitur 4Capitol Records v. Thomas-Rasset, 680 F.Supp.2d 1045 (D. Minn 2010). — and, in fact, Judge Gertner relied in part on the fact that the plaintiffs in Thomas-Rasset had rejected the remitted award to support her conclusion that the constitutional question in Tenenbaum could not be avoided. 5As Gertner observed, it is a generally accepted principle that courts should “avoid confronting constitutional questions when they can reasonably rest their holdings on other grounds.”

Both parties appealed the decision to the First Circuit, joined by the United States as plaintiff-intervenor. You can read the appellate briefs here.

Oral arguments were held April 4, you can listen to them here:

[wpaudio url=”http://www.ca1.uscourts.gov/files/audio/10-1883.mp3″ text=”Oral arguments – Sony BMG Music Entertainment v. Tenenbaum” dl=”0″]

Several bloggers attended the oral arguments in person and have written up their accounts: these include Joel Sage at Legally Sociable and Steven Ayr at AyrLaw.

Background

There is a wealth of information online that explores the issues involved in this appeal.

Just yesterday, the NYU IP and Entertainment Law Ledger published What are the Constitutional Limits on Awards of Statutory Damages? by Andrew Berger, which examines the Tenenbaum appeal and its legal issues in depth.

First up is an excellent debate between Ben Sheffner and Pamela Samuelson about whether statutory damages in P2P cases are unconstitutionally large at PENNumbra.

Also from Sheffner, check out Due Process Limits on Statutory Civil Damages? Unprecedented Ruling in Copyright Case a Double-edged Sword for Businesses, published by the Washington Legal Foundation.

The Intellectual Property Colloquium has a podcast available on the same subject. UCLA professor Doug Lichtman hosts the thorough examination of many of the issues raised in Tenenbaum’s case with guests that include Tenenbaum’s attorney Charles Nesson, general counsel for the RIAA Steven Marks, and several academic experts on punitive damages.

The Progress & Freedom Foundation hosts The ‘Lessigation’ of Copyright Scholarship: A Review of Statutory Damages in Copyright Law: A Remedy in Need of Reform, which provides an overview of the history and purpose of copyright’s statutory damages.

Finally, Copygrounds has a post written by Matthew Oppenheim explaining the role of statutory damages in P2P cases from the record labels’ perspective that’s worth a read.

Issues at Stake

The key issue in the Tenenbaum appeal is whether the Due Process Clause of the Constitution can limit the amount of damages awarded by a jury under copyright’s statutory damages provision — and if it can, how is that determined?

The lower court noted that due process “prevents the awarding of damages without adequate procedural protections, but it also seeks to define the outer limits of what excessive punishment is,” noting also that it has both a procedural and a substantive component.

Judge Gertner concluded that the damages were unconstitutional using the analysis from BMW of North America v. Gore. 6517 US 559 (1996). There, the Supreme Court set out three guideposts for determining whether an award of punitive damages runs afoul of the Due Process Clause: (1) “the degree of reprehensibility of” the defendant’s acts, (2) “the disparity between the harm or potential harm suffered by [the plaintiff and the] punitive damages award”, and (3) “the difference between this remedy and the civil penalties authorized or imposed in comparable cases.”

The record labels and government disagree with Gertner’s choice of standard. They argue that the damages should be analyzed under the more deferential standard of St. Louis v. Williams 7251 US 63 (1919). because, unlike the punitive damages involved in Gore, statutory damages are set by law. The Court in Williams was tasked with determining whether a penalty set by statute violated the Due Process Clause. It concluded that governments “possess a wide latitude of discretion” in setting statutory penalties, and the limitations of the Due Process Clause only come into play when a penalty is “so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.”

Due process certainly plays a role in punitive damages awards. Since the amount of such an award is not set by law, potential defendant’s have no notice of the amount of liability they may face in the course of their business, the amounts awarded by different juries for similar cases may vary so greatly as to be unfair, and juries may award damages that are simply unreasonable in light of the harm caused.

These due process concerns are attenuated when the amount of damages, even a range of damages available as in copyright infringement, is set by Congress rather than left to the discretion of a jury. Potential defendants have a sense of what their maximum liability can be — and given the FBI warnings on every DVD, it’s fair to say that statutory damages for copyright are one of the most well-known federal statutes concerning damages. The range of damages may be broad, but they are confined. And Congress presumably considers the reasonableness of the damages in light of the range of behaviors that would trigger an award.

The record labels, along with Sheffner and Berger, point out that the Gore guideposts are inapt for testing the constitutionality of statutory damages for these reasons.

What’s more, the issue of whether the award is unreasonable or unfair has to be viewed in light of the fact that it is roughly half the average of every jury award of statutory damages in P2P infringement cases that reached a jury verdict. 8Tenenbaum’s liability of $675,000 for 30 songs comes out to $22,500/song. The award in Jammie Thomas’s first civil trial was $9,250/song, in her second $80,000/song, and in the third trial, which concerned the amount of damages only, the jury awarded $62,500/song. All four juries that considered these cases, seeing the evidence with their own eyes and hearing the testimony for themselves, and weighing the amount of damages to award in light of the circumstances, have found it appropriate to hold P2P infringers liable for an average of $43,662.50 a song. The argument is essentially that each and every jury has acted unreasonably and unfairly.

Of course, both sides argue that it doesn’t matter which standard is applied. According to the record labels, the damages award is constitutional under both Gore and Williams; Tenenbaum argues it is unconstitutional under either.

If the First Circuit reaches the Due Process issue, much of the conclusion may rest on what measure of the harm caused by Tenenbaum is accepted. Were his actions, as Judge Gertner held, similar to the theft of a small number of individual songs? In that case, the harm would be relatively small — $21 by Gertner’s calculations. Or are his actions more like those of an unrestricted licensee of the songs at issue — meaning the potential harm caused approaches the entire value of the copyrighted work.

It’s also likely that the court will have to take a look at whether or not Congress intended for the statutory damages provision to apply to the type of conduct Tenenbaum engaged in, though even here, both sides disagree over how to characterize his conduct. Is it simply personal, noncommercial copying, or is it “easy and ubiquitous” infringement that harms copyright holders on a scale beyond even large-scale commercial physical piracy? Whichever view the court takes will play a role in determining the reasonableness of the damages award.

A Broad Attack on Statutory Damages

All the parties raise other issues besides Due Process in their appellate briefs. Most notably, Tenenbaum raises two issues attacking the very validity of copyright’s statutory damage provision.

Tenenbaum first argues that statutory damages were “never intended for consumer copying,” relying primarily on legislative history to reach this conclusion. Commenting at Legally Sociable, one of the members of Tenenbaum’s legal team expressed dismay that First Circuit Chief Judge Lynch expressed “hostility” toward this point during oral arguments and intends to “elevate textualism over Congressional intent and rationality.”

But, with all due respect to Tenenbaum’s legal team, this seems to conflate textualism, a theory of statutory interpretation, with textual rules of statutory construction — specifically, the plain meaning rule.

Statutory interpretation, under any theory, is used by courts when the plain meaning of a statute can’t be determined. Perhaps a term or phrase is ambiguous, or perhaps the language of the statute can be taken more than one way. In these situations, courts need to look at other things to determine what the law means, like the intent of its drafters or the underlying goals of the statute.

But if the meaning of the statute is plain on its face, there is typically no need for further interpretation. 9US v. Ron Pair Enterprises, 489 US 235 (1989). Presumably, Congress intended the law to mean what it wrote it to say.

And I think the language of the statutory damage provision of the Copyright Act is quite clear. Statutory damages apply to any “infringer of copyright.” 1017 USC § 504(a). An “infringer of copyright” is “anyone who violates any of the exclusive rights of the copyright owner.” (Emphasis added). 1117 USC § 501(a). In contrast, other provisions expressly take commercial use into consideration: for example, fair use (“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”) 1217 USC § 107. and criminal copyright infringement (“Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed—(A) for purposes of commercial advantage or private financial gain”). 1317 USC § 506(a). There’s simply nothing in the language of the Copyright Act that supports a commercial/noncommercial distinction for awards of statutory damages.

Tenenbaum’s second argument asserts that the Supreme Court declared the current statutory damages provision unconstitutional in Feltner v. Columbia Pictures Television. 14523 US 340 (1998). It’s a creative argument, and one Feltner himself made after his case was remanded from the Supreme Court. 15Columbia Pictures v. Krypton Broadcasting, 259 F.3d 1186, 1192-93 (9th Cir. 2001). The 9th Circuit rejected this argument as unpersuasive, a position “contrary to the express language of the Supreme Court’s decision” and one based on a failed understanding of the holding in that case. Nevertheless, Tenenbaum hopes to convince the First Circuit that the 9th Circuit was mistaken.

Implications

It’s unclear what effect an affirmance by the First Circuit would have on P2P litigation specifically. The record labels are no longer pursuing lawsuits against individual infringers; only one other case has reached the jury stage. And while other copyright holders have notably tried the strategy of suing end-users in the past year, I have doubts that this is an effective strategy from a financial standpoint. Individual copyright holders don’t have the resources that an industry group has to sustain mass lawsuits through the trial stage, these lawsuits are already facing procedural setbacks, and at the end of the day, judgments, whether thousands of dollars or hundreds of thousands of dollars, are difficult to collect — especially from individuals. They just don’t have the money. In other words, litigation of end users as a “business model” is, I think, unlikely to be sustainable no matter if there are limitations on statutory damages or not.

But the effect of an affirmance will have an effect on lawsuits outside this specific arena, and that effect will be felt most by smaller copyright holders. Andrew Berger writes:

Affirming the result in Tenenbaum will negatively impact copyright enforcement for years to come for a number of reasons.

First, affirmance will cause many meritorious copyright claims never to be litigated. That is because Tenenbaum, contrary to the Copyright Act, requires copyright owners to prove actual damage as a pre-condition to recovering statutory damages. But many copyright holders will be unable to show actual damages. The value of a copyright, especially at inception, is often impossible to estimate. How much is an unpublished novel by a first-time author worth?

Second, removing the teeth from the statutory damage scheme, which is what Judge Gertner essentially did, relegates litigants to actual damages. But they are often inadequate for a number of reasons. First, actual damages may be less than the cost of detecting, investigation and, for sure, litigating. So why bother? Second, actual damages, often requiring extensive accounting analysis, may be prohibitively expensive to prove. Third, although actual damages in copyright litigation include the infringer’s profits attributable to the infringement, there may be none to collect either because an infringer earned none, conveniently lost its sales records or never kept any.

 

References

References
↑1 According to Wikipedia.
↑2 This is a back-of-the-envelope calculation, derived from InternetWorldStats number of US internet users in 2005, Interpret’s percentage of internet users who have downloaded illegally, and record label court filings indicating the number of named defendants contacted during the litigation campaign.
↑3 721 F.Supp.2d 85 (D. Mass).
↑4 Capitol Records v. Thomas-Rasset, 680 F.Supp.2d 1045 (D. Minn 2010).
↑5 As Gertner observed, it is a generally accepted principle that courts should “avoid confronting constitutional questions when they can reasonably rest their holdings on other grounds.”
↑6 517 US 559 (1996).
↑7 251 US 63 (1919).
↑8 Tenenbaum’s liability of $675,000 for 30 songs comes out to $22,500/song. The award in Jammie Thomas’s first civil trial was $9,250/song, in her second $80,000/song, and in the third trial, which concerned the amount of damages only, the jury awarded $62,500/song.
↑9 US v. Ron Pair Enterprises, 489 US 235 (1989).
↑10 17 USC § 504(a).
↑11 17 USC § 501(a).
↑12 17 USC § 107.
↑13 17 USC § 506(a).
↑14 523 US 340 (1998).
↑15 Columbia Pictures v. Krypton Broadcasting, 259 F.3d 1186, 1192-93 (9th Cir. 2001).

Friday’s Endnotes – 04/08/11

By , April 08, 2011.

5 Mistakes “Anti-Copyrights” Constantly Make — PlagiarismToday’s Jonathan Bailey has an excellent article looking at the common errors of those who want to drastically reduce or eliminate copyright protection. I think number one is an especially common mistake: “Blaming the law for morons.”

A Mounting Crusade for Criminal Activity — A news conference was held this past week addressing recent efforts to reduce the ease and profit of digital piracy. The Copyright Alliance notes the predictable and troubling rhetoric from those opposed to such efforts — including the misuse of terms like “censorship”, which “is at best silly and at worst a dramatic and somewhat shocking shift in the definition of the very important principle of free speech.”

Direct Reporting: Tenenbaum Oral Argument — Oral argument for Sony BMG Music Entertainment v. Tenenbaum was heard this week. Joel Sage, at Legally Sociable, attended in person and shares his thoughts. You’ll find lots of links to the briefs and other analysis there, a link to the audio of the arguments, and a lengthy comment from one of the law students working on Tenenbaum’s appeal.

Google Books Settlement Unraveled — On March 30th, the Copyright Clearance Center presented a webinar to discuss the rejection of the Amended Settlement Agreement in the Google Books Settlement. The webinar is archived on the site, along with a link to a text transcript. Really great discussion regarding the issues in the case and what the rejection means, as well as an excellent and succinct history of the litigation. That alone is well worth a read if you want to know what the Settlement is all about.

The Discography — Billing itself as the “Legal Encyclopedia of Popular Music”, this site features “1,300 entries covering 2,400 court opinions (including over 30,000 pieces of data) spanning almost 200 years, fully summarized and searchable by numerous variables, featuring nearly every artist you’ll think of (many you won’t), covering copyrights and contracts, trusts, torts and more.” Quite a great resource!

Facebook Self-Publishing Ventures Keep Cloning — Not particularly copyright related, but fascinating nevertheless. Did you know there are currently at least seven different services that offer on-demand publishing of your Facebook profile in book form? Leading future archaeologists to the inevitable conclusion that ” Gosh, twenty-first century people sure ‘liked’ a lot of stuff.”

Beastie Boys – Make Some Noise — Finally, for any Beastie Boys fans out there, the group has released a track from their upcoming album, Hot Sauce Committee Part 2. The trio also has a companion short film with quite a cast list: Will Ferrell, Elijah Wood, Seth Rogen, Danny McBride, John C. Reilly, Jack Black, Susan Sarandon, Stanley Tucci, Will Arnett, Ted Danson, Steve Buscemi, and many more.

Check the preview below (warning: adult language).

[youtube]rBa5qp9sUOY[/youtube]

Is YouTube a Service Provider or Content Provider?

By , April 07, 2011.

The briefs for Viacom’s appeal against the District Court’s decision in its lawsuit against YouTube have been filed. Last June, the Southern District of New York granted the video hosting site’s motion for summary judgment, saying the DMCA’s safe harbor immunizes YouTube from liability for copyright infringement by its users.

The crux of the case involves the interpretation of 17 USC § 512(c)(1)(A) and §512(c)(1)(B) — whether YouTube had actual knowledge of infringing works that were uploaded and whether it had the right and ability to control the uploading of infringing videos.

Today, however, I wanted to look at one of the other, and (to me, at least) more interesting issues raised on appeal. Does YouTube even qualify as a “service provider” under the DMCA in the first place?

Title II of the DMCA, the Online Copyright Infringement Liability Limitation Act, provides “safe harbors” for online service providers that limit their liability for copyright infringement arising out of specific situations. The one YouTube and most user-generated content sites claim protection under regards “information residing on systems or networks at direction of users” and is found in §512(c). Specifically, 17 USC § 512(c)(1) provides that “A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider”.

Viacom argues that YouTube’s activities go beyond the collateral scope of the storage functions described in §512(c). If the 2nd Circuit agrees, this means YouTube wouldn’t receive the DMCA’s harbor no matter what “knowledge” or “right and ability to control” mean — its liability would be analyzed under traditional secondary liability doctrines. And some have suggested that, absent this safe harbor, there is a likelihood that YouTube could end up liable for copyright infringement of its users — at least as far as its operation during the time that is at issue in this lawsuit. 1Trevor Cloak, The Digital Titanic: The Sinking of YouTube.com in the DMCA’s Safe Harbor, Note, 60 Vanderbilt Law Review 1559, 1573-78 (2007).

Under Construction

The internet looked a lot different in 1998 when Congress passed the DMCA. The amicus brief filed by the Washington Legal Foundation provides a good look at the differences:

At that time ‘service providers’ were generally thought of as the ‘doorways’ to the Internet — the means by which individual users accessed the Internet to exchange electronic mail, view websites, and download files.  Common service providers in the 1990’s were America Online, Compuserve, and individual educational and work institutions.

User content was typically located on that user’s individual web page, which was ‘hosted’ on the service provider’s computer systems.  In this manner, a user’s individual web page was made available to other Internet users around the world.  These individual web pages often contained copyrighted material belonging to others — at that time mainly photographs and music recordings.

Content owners, to protect their intellectual property, brought lawsuits against both the website owner (often an individual) for placing the content on the web page and the service provider for ‘hosting’ the web page.  Service providers were thus faced with exposure to copyright liability solely by virtue of their desire to provide to individuals the ‘doorway’ to the Internet.

The problem confronted by Congress in the 1990’s with respect to the Internet and intellectual property rights was how to strike the balance between protecting a content owner’s rights, on one hand, and encouraging service providers to continue to offer Internet access on the other.  Congress thus sought, through the DMCA, to address this problem.

As stated in the floor debates: ‘One of the things we do here is to say:  ‘If you are on-line service provider, if you are responsible for the production of all of this out to the public, you will not be held automatically responsible if someone misuses the electronic airway you provide to steal other people’s property. There is a balance here.  We want to protect property, but we do not want to deter people from making this [the Internet] widely available.  We have a problem here of making sure that intellectual property is protected, but we do not want freedom of expression impinged upon'” …

The DMCA was enacted with that balance in mind:  encouraging access to the Internet while at the same time protecting intellectual property.

It’s easy to forget how much has changed since then. According to an article on Buzzle.com, the top 10 websites in 1997 were:

  1. Geocities
  2. Yahoo and Yahooligans, Yahoo Sports and My Yahoo
  3. Starwave Corporation – Where More People Click
  4. Excite, Magellan and City.Net
  5. PathFinder, and Time/Warner and CNN sites: Warner Bros., HBO, DC Comics, Extra TV, Babylon5, CNN , CNN Financial Network and AllPolitics
  6. AltaVista Search Engine
  7. AOL Member Home Pages
  8. CNET, Search.Com, News.Com and Download.com
  9. The New York Times on the Web
  10. Ziff Davis and HotFiles

Many of the things we take for granted on the internet today had yet to arrive back then. Wikipedia launched in 2001. Social networking sites didn’t take off until after the new millennium — Friendster launched in 2002, Myspace in 2003, Facebook in 2004. Terms like “blog” and “Web 2.0” were years away from becoming over-used. And, of course, YouTube itself didn’t launch until 2005.

But perhaps nothing illustrates the evolution of the internet from the time of the DMCA to now better than this note from the Working Group on Intellectual Property Rights White Paper. Established as part of the Information Infrastructure Task Force (IITF), the Working Group was charged with examining the adequacy of IP law in the online world and recommending any changes needed. It released a preliminary draft of its report (the “Green Paper”) in 1994, and the final draft (the “White Paper”) in ’95; the DMCA was largely the end result of the IITF’s work.

The note in the White Paper explains to readers how to access copies of the Green Paper and other IITF documents online:

“The IITF Bulletin Board can be accessed through the Internet by pointing the Gopher Client to iitf.doc.gov or by telnet to iitf.doc.gov (log in as gopher).  The Bulletin Board is also accessible at 202-501-1920 using a personal computer and a telephone modem.” 2White Paper, pg. 4, n.11.

This comparison of the internet at the time the DMCA was passed and now illustrates the challenges courts face in interpreting its provisions. Despite being little more than a decade old, the law is called upon to deal with circumstances largely unforeseen when it was written.

Service Provider or Content Provider?

Viacom argues in its brief that “YouTube’s performance and licensing of user-uploaded copyrighted content are not the type of storage activities that the DMCA immunizes from liability.” 3The entire argument is found at pp. 49-55 of the Opening Brief for Plaintiffs-Appellants. The “storage” services protected by the safe harbor of § 512(c) were meant to cover things like “server space for a user’s web site, for a chatroom, or other forum in which material may be posted at the direction of users” — the safe harbor doesn’t “suspend liability for other [non-storage] acts in which the service provider might engage with respect to the user-posted content.”

Viacom points to several YouTube functions that it considers “non-storage acts.” (1) “YouTube transcodes user uploaded material into a standard format for display, distribution, and performance of the content on its website and third-party platforms”; (2) YouTube’s playback function, where a visitor can view a video stored by another user on a “watch” page containing an embedded video player; (3) the automatic recommendation of additional videos that YouTube displays after playback of a video has finished; and (4) YouTube’s licensing of uploaded videos to third parties, such as Verizon Wireless.

“Congress did not intend to give content-based entertainment enterprises an unfair advantage over traditional media merely because they operate on the Internet,” says Viacom, casting the safe harbor as one intended to apply to “passive providers of storage” that provide “server space for a user’s web site, for a chatroom, or other forum in which material may be posted at the direction of users.”

But YouTube, as Viacom argues, “is an integrated media business that ‘compare[es] [it]sel[f] to, say, abc/fox/whatever.'” The functions YouTube engages in are done “not to facilitate storage, but to facilitate activities that are necessary for wide public dissemination of the works” and “performed ‘as a course of its normal operation … uninstructed by the user.'”

Bruce Lehman, who chaired the previously-mentioned Working Group on Intellectual Property Rights and helped develop the DMCA, adopts a similar argument in the amicus brief filed by the International Intellectual Property Institute:

Companies who receive their value from hosting or otherwise enabling the spread of infringing content are not service providers — and they certainly are not proving a service that contributes to the ‘speed and capacity of the internet.’ … These companies provide content.

The defendant’s stated goal was to create a media business ‘just like TV.’ … It succeeded: users who upload media provided programming which the defendant licensed, controlled, and broadcasted in order to receive ad revenue. This business model is not new, unique, or worthy of a special status under the law simply because it disseminates its media over the Internet.

Lehman relies on the Working Paper to support a distinction between companies providing internet infrastructure — which are protected by the DMCA safe harbors — and “content providers.” YouTube, the brief argues, is a content provider. It calls itself a “consumer media company.” It provides “user access to its servers to upload video files” and “reformats the videos and broadcasts them over its website for its customers” in order to” create a business model which was ‘just like TV.'”

Such a model depends on advertising revenue, which depends on “attracting the greatest possible viewership”; high-value, infringing content draws a lot of traffic, giving YouTube an incentive to do as little as possible to prevent users from uploading this type of content. In short, a “content-based business model” like YouTube forecloses protection under the DMCA.

Interpreting the Statute

Viacom’s interpretation of the storage activity safe harbor was rejected by the District Court. The court relied largely on how the provision was interpreted by other courts dealing with similar situations to come to its conclusion.

In Io Group v. Veoh Networks, the plaintiff argued that a video-hosting site very similar to YouTube was engaged in acts beyond the storage activities protected by the DMCA. But the court disagreed based on the “structure and language” of the safe harbor provisions:

The statute itself is structured in a way that distinguishes between so-called “conduit only” functions under Section 512(a) and those functions addressed by Section 512(c) (and other subsections as well). Perhaps most notably, OCILLA contains two definitions of “service provider.” 17 U.S.C. § 512(k). The narrower definition, which pertains only to service providers falling under Section 512(a), “means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the materials as sent or received.”

By contrast, no such limitation as to the modification of material is included in the broader definition of “service provider,” which the parties agree applies to Veoh. Instead, “the term ‘service provider’ means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).” Had Congress intended to include a limitation as to a service provider’s modification of user-submitted information, it would have said so expressly and unambiguously. (Citations removed.) 4586 F.Supp.2d 1132 (ND Cali 2008).

A different court came to the same conclusion in UMG Recordings’ lawsuit against Veoh:

Under UMG’s interpretation, § 512(c) would apply only to operational features that provide or constitute storage—and nothing more. But there is no language in § 512(c) that so limits its applicability. Congress did not provide merely that “a service provider shall not be liable for storing material at the direction of the user” or that “a service provider’s liability shall be limited only for conduct that is storage.” Instead, as the language makes clear, the statute extends to functions other than mere storage; it applies to “infringement of copyright by reason of the storage at the direction of a user ….” In short, the narrow construction of the statute that UMG advocates is not the one Congress enacted. (Citation removed.) 5UMG Recordings v Veoh Networks, 620 F.Supp.2d 1081, 1089 (CD Cali 2008).

The court in UMG Recordings also accepted Veoh’s argument that the “by reason of the storage” language in § 512(c) is “broad causal language that is clearly meant to cover more than mere electronic storage lockers.” Its reasoning was adopted wholesale by the Viacom court to reach its conclusion. Said UMG Recordings:

Common sense and widespread usage establish that “by reason of” means “as a result of” or “something that can be attributed to ….” So understood, when copyrighted content is displayed or distributed on Veoh it is “as a result of” or “attributable to” the fact that users uploaded the content to Veoh’s servers to be accessed by other means. If providing access could trigger liability without the possibility of DMCA immunity, service providers would be greatly deterred from performing their basic, vital and salutary function—namely, providing access to information and material for the public.

The Viacom court described those acts “attributable” to a user uploading content as within the “collateral scope of ‘storage’ and allied functions.” Anything outside that collateral scope would fall outside the protection of the safe harbor and have to be analyzed under traditional doctrines of secondary liability, but in this case, YouTube’s “replication, transmittal, and display of videos” are within the provision’s scope.

The Issue on Appeal

The case law doesn’t seem to give Viacom much room to argue on this point, but keep in mind that the above-cited cases are only district court cases. Viacom argues that the lower court’s broad interpretation of the “by reason of” language goes against Supreme Court precedent that interprets the same language in other contexts as implying some form of proximate causation rather than the mere “but for” causation embraced by the lower court.

Moreover, YouTube notably doesn’t address the fact that it actually licensed user content to third parties in its reply brief; if anything would fall outside the collateral scope of storage functioning, I would think this type of act would.

We may get a preview of how successful Viacom ultimately is on this issue before the 2nd Circuit issues its ruling. The 9th Circuit is currently hearing UMG Recordings appeal in the case discussed in the previous section. UMG advances the same argument in its brief. Considering the similarities between the two cases, and the fact that the UMG appeal began months before Viacom’s appeal, the 9th Circuit’s eventual holding could forecast the willingness of appellate courts in narrowing the currently accepted scope of § 512(c) at the district court level.

Left unsaid at the district court level is any sense of the “outer bounds” of what service providers can do with material stored at the direction of users and remain within the DMCA’s safe harbor. Each part of the statutory language has been given its broadest meaning. A service provider obviously has to meet the other requirements of the DMCA to be immune from liability — but considering how broadly the Viacom court read the “knowledge” and “right and ability to control” requirements, the DMCA seems to be stretched far beyond what Congress had intended in 1998.

Is YouTube a service provider or a content provider? Should this distinction play a role in whether it qualifies for safe harbor? And, in the broader sense, is the DMCA as a whole, considering the evolution of online communications since it passed, still capable of striking the balance between innovation and protecting that content that gives value to that innovation?

 

References

References
↑1 Trevor Cloak, The Digital Titanic: The Sinking of YouTube.com in the DMCA’s Safe Harbor, Note, 60 Vanderbilt Law Review 1559, 1573-78 (2007).
↑2 White Paper, pg. 4, n.11.
↑3 The entire argument is found at pp. 49-55 of the Opening Brief for Plaintiffs-Appellants.
↑4 586 F.Supp.2d 1132 (ND Cali 2008).
↑5 UMG Recordings v Veoh Networks, 620 F.Supp.2d 1081, 1089 (CD Cali 2008).

Friday’s Endnotes – 04/01/11

By , April 01, 2011.

I suspect that by the time this post appears, there will be many April Fool’s jokes fluttering around the Internet, but rest assured, all the following links are to actual stories.

Game on! Viacom, YouTube briefs on file in 2nd Circuit — The popular video site submitted its appellate brief yesterday. Shades of Gray has links to the document, as well as Viacom’s opening brief and the numerous amici briefs filed in the case.

There is no two without three: Bill C-32 is Dead — Late last week, the Canadian government dissolved, along with the latest attempt at reforming the country’s copyright law. IP Osgoode takes a look at the decade-plus effort to modernize the Copyright Act and implement changes needed under WIPO treaties, as well as what the future will hold after elections.

The Value of the Village — The Copyright Alliance blog discusses self-publishing superstar Amanda Hocking’s recent move to traditional publishing. “Having a variety of options as an emerging artist is great. But just as Ms. Hocking discovered, there is more to being a successful novelist than just the writing.”

Music Recommendation Engines Not Satisfying Fans — A new survey shows that music recommendation still has a long way to go before it’s ready for prime time. That much hasn’t changed since 2009, when researcher Paul Lamere gave his excellent talk on why music recommendation systems aren’t working, Help! My iPod thinks I’m emo. Meanwhile, MIT’s Technology Review reports on Myna, the music recommendation engine currently in development by the commissioners of the survey. I thought this part was particularly funny: “Music discovery, after all, is littered with media that aggregate the opinions of insufferable young people.”

The P2P Rebellion: Are Copyrights the Vietnam of Today’s Youth — The always entertaining Moses Avalon compares the P2P crusade against “Big Content” to the 60’s youth opposition to the Vietnam War. One notable difference between the two: “At the heart of the anti-war movement was the hope to stop bloodshed. Hippies rebelled against something serious– the draft. What is today’s P2P “sharing” movement about? Free tunes? Cheaper flicks?”

$100k appraisal for single page of original art from Frank Miller’s Dark Knight comic book — Heritage Auctions estimates the iconic image from one of comicdom’s most esteemed series will bring over six figures at auction. The full image of the page is quite amazing to see if, like me, you consider yourself a fan of comics. I especially like the inkwork of Klaus Janson and found this interesting interview of him for Comic Foundry magazine from 2005, in which he expounds on art, storytelling, and the comics industry over the past several decades.

Billboard’s Twitter 140 — Finally, for all of you on Twitter, Billboard.biz shares its list of some of the most influential and informative Tweeters in the music industry.

If you have any stories, articles, blog posts, upcoming events, or anything else you think would interest Copyhype readers, drop me a line on the contact page. Hope everyone enjoys their weekend!

What is Piracy?

By , March 29, 2011.

What is piracy? When used to describe copyright infringement, the term causes a lot of debate.

Some say the term is inaccurate, since “piracy” only describes sea-faring buccaneers of the “Aaargh, matey” type. 1Richard Stallman, 21 Words to Avoid (1996). Others suggest it is inappropriate when applied to anything but large-scale, commercial counterfeiting of copyrighted works — an effort to invoke negative connotations of all unauthorized uses of copyrighted works in order to increase the scope of laws and enforcement in favor of copyright holders. 2William Patry, Moral Panics and the Copyright Wars, pp. 92-96 (Oxford University Press 2009); Jessica Litman, Digital Copyright, pp. 85-86 (Prometheus Books 2006).

Even setting aside these arguments, debate remains over the meaning of the term. Is all copyright infringement piracy? Or does it only refer to specific types of copyright infringement?

This post isn’t about addressing the arguments about the term or coming to a settled definition of the word — not to say either is unimportant or not interesting. Instead, I want to focus only on how I use the term on this site. Words are important, and I use the term piracy quite frequently here, so I want to clarify what I mean when I use it and why I use it that way.

I use “piracy” to refer to a subset of copyright infringement, specifically, the widespread reproduction and distribution of exact copies of an entire work without authorization. In this sense, the term is merely shorthand since I write a lot about the issues revolving around this type of infringement. Put another way, my use is descriptive rather than normative. This definition reflects how the term is commonly used today — I’ll leave to others the question of whether this definition reflects how the term should be used.

Historical Usage

“Pirate” comes from the latin Pirata, meaning “sailor” or “sea robber,” which itself comes from the Greek peirates, “brigand.” 3“Pirate“, Online Etymology Dictionary. Since the time of the Ancient Greeks, the term has been used to describe those who plunder at sea.

The term “piracy” began to be applied to the plundering of intellectual property around the mid-1600s — give or take a few decades, depending on who you ask. 4Adrian Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates, pg. 23 (University of Chicago Press 2009); The Oxford English Dictionary has 1603 as the earliest use in this manner, while the Online Etymology Dictionary dates the first recorded use to 1701.

The earliest appearances of the term, pre-dating the Statute of Anne and our modern idea of copyright, used it more to describe personal plagiary — the passing off of another’s work as one’s own — then the unauthorized reproduction of a work. It’s interesting to note that the term “plagiarism” itself comes from the classical Latin term plagiarius, meaning “kidnapper, seducer, plunderer.” 5“Plagiarism,” Online Etymology Dictionary. By the 18th century, “piracy” was being used to describe copyright infringement. 6It has, throughout history, also been used to refer to certain practices outside of copyright infringement — pirate radio and pirate buses, for example.

Indeed, in the early 19th century, the two terms were often used interchangeably. In Cary v. Kearsley, an 1803 English case that serves as a sort of godfather to the modern U.S. doctrine of fair use, the court explained, “That part of a work of one author is found in another, is not itself piracy, or sufficient to support an action; a man may fairly adopt part of the work of another; he may so make use of another’s labours for the promotion of science, and the benefit of the public.” 74 Esp. 168, via William Patry, Fair Use and Fair Abridgment, Patry Copyright Blog (Oct. 14, 2005); see also Campbell v. Acuff-Rose Music, 510 US 569, 575-576 (1994).

Justice Story also used the term piracy as a synonym of copyright infringement. In Folsom v. Marsh, he refers to “the question of piracy” where today a court would refer to the question of copyright infringement. 89 F. Cas 342 (1841). Likewise, in Emerson v. Davies, he wrote, “The question is, whether the latter work is a piracy upon any part of the former work, which the author of that work had a right to claim as his own property, in respect that it was his own composition.” 98 F. Cas. 615 (Cir. Ct D. Mass 1845).

Current Usage

Nowadays, the scope of the term has been narrowed; most courts, scholars, and commentators use piracy to refer to only a specific type of copyright infringement rather than all infringement. 10Though, as always, there are exceptions. See, e.g., SAS Institute v. S&H Computer Systems, 605 F.Supp. 816, 829-30 (MD Tenn 1985): “The question of the substantiality of the similarity is also a question of fact; the piracy of even a quantitatively small fragment (‘a rose by any other name would smell as sweet’) may be qualitatively substantial.”

The Supreme Court in Goldstein v. California explained that the petitioners were engaged in “what has commonly been called “record piracy” or “tape piracy”—the unauthorized duplication of recordings of performances by major musical artists.” 11412 US 546, 549 (1973). Though a patent case, the Court in Graver v. Linde implied that pirating a copyrighted work is an act of “unscrupulous” copying, where any variations are made not out of a creative nature, but only to “conceal and shelter the piracy.” 12339 US 605, 607 (1950).

Many scholars adopt the same definition as courts. Mark Lemley and Eugene Volokh talk about “outright piracy” as those cases where a defendant makes “identical or nearly identical copies” of a protected work, “and there is no claim of fair use.” 13Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147, 211 (1998). Law professor Michael J. Meurer defines piracy as “the unauthorized public distribution of literal copies of a copyrighted work,” making a pirate, in the economic sense, “a competing supplier of the copyright holder.” 14Price Discrimination, Personal Use and Piracy: Copyright Protection of Digital Works, 45 Buffalo Law Review 845 (1997).

While “piracy” is not a legal term, it has been used descriptively by Congress when holding hearings or passing legislation. The law making certain types of copyright infringement a felony was called the Piracy and Counterfeiting Amendments Act of 1982. 15PL 97-180, 96 Stat 91, 93. The infringement covered by the act must be both willful and “for purposes of commercial advantage or private financial gain” — with higher penalties for the unauthorized reproduction and distribution of multiple copies.

Industry groups also limit the scope of what types of infringement are defined as piracy. The RIAA describes some of the forms piracy can take on its website: “individuals who illegally upload or download music online, online companies who build businesses based on theft and encourage users to break the law, or criminals manufacturing mass numbers of counterfeit CDs for sale on street corners, in flea markets or at retail stores.” The IFPI, in discussing online piracy, is referring only to file-sharing type activities.

Based on these (and many other) examples, I think my definition of piracy fairly represents the commonly accepted usage of the term.

References

References
↑1 Richard Stallman, 21 Words to Avoid (1996).
↑2 William Patry, Moral Panics and the Copyright Wars, pp. 92-96 (Oxford University Press 2009); Jessica Litman, Digital Copyright, pp. 85-86 (Prometheus Books 2006).
↑3 “Pirate“, Online Etymology Dictionary.
↑4 Adrian Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates, pg. 23 (University of Chicago Press 2009); The Oxford English Dictionary has 1603 as the earliest use in this manner, while the Online Etymology Dictionary dates the first recorded use to 1701.
↑5 “Plagiarism,” Online Etymology Dictionary.
↑6 It has, throughout history, also been used to refer to certain practices outside of copyright infringement — pirate radio and pirate buses, for example.
↑7 4 Esp. 168, via William Patry, Fair Use and Fair Abridgment, Patry Copyright Blog (Oct. 14, 2005); see also Campbell v. Acuff-Rose Music, 510 US 569, 575-576 (1994).
↑8 9 F. Cas 342 (1841).
↑9 8 F. Cas. 615 (Cir. Ct D. Mass 1845).
↑10 Though, as always, there are exceptions. See, e.g., SAS Institute v. S&H Computer Systems, 605 F.Supp. 816, 829-30 (MD Tenn 1985): “The question of the substantiality of the similarity is also a question of fact; the piracy of even a quantitatively small fragment (‘a rose by any other name would smell as sweet’) may be qualitatively substantial.”
↑11 412 US 546, 549 (1973).
↑12 339 US 605, 607 (1950).
↑13 Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147, 211 (1998).
↑14 Price Discrimination, Personal Use and Piracy: Copyright Protection of Digital Works, 45 Buffalo Law Review 845 (1997).
↑15 PL 97-180, 96 Stat 91, 93.

Friday’s Endnotes – 03/24/11

By , March 25, 2011.

There’s an old joke that, after the Bible, Johann Gutenberg’s second book printed was about the demise of the publishing industry.

The future of the book continues to be the subject of a great deal of debate over 500 years later. This week especially, I’ve noted quite a bit of interesting book-related news and articles. Enjoy!

Why I originally self-published my now traditionally published book — Author and playwright Hillary DePiano offers a fascinating and thorough history explaining why she made the jump from successful self-publisher to signing a traditional book deal. Later posts explain what she sees as the disadvantages of self-publishing: Piracy copyright and having to be the bad guy, being your own publisher is a lot of work, and a third yet to be posted.

What about the content? — Almost as though it was planned, this week brought news of one successful “traditional” writer turning down a  publishing deal to self-publish, while a highly successful self-publishing writer announced she was negotiating a “traditional” book deal. Writer Lee Goldberg posts an insightful comment on his site, noting that in much of the discussion about self-publishing vs. traditional publishing, very little is said about the quality of the work. Also worth checking out Lee’s other related posts: Eisler & Hocking and A Peek in Barry’s Brain.

Google Books Settlement rejected — Finally, one of the bigger news items this week was Judge Chin’s rejection of the proposed class action settlement between authors and the tech giant. Publishers Weekly, the Copyright Alliance, and Ars Technica report on the story. Glenn Lammi at the Washington Legal Foundation looks at the Class Action Do’s and Don’ts from the ruling. And MusicTechPolicy’s Chris Castle says, “Score round 1 for the authors.”

And now, some non-book related items:

The Problems With the Fifth Fair Use Factor — Jonathan Bailey at PlagiarismToday takes a look at the role of good faith (i.e., “does the judge like you”) in a couple recent fair use decisions.

Do bad things happen when works fall into the public domain? — The 1709 Blog shares notes from a recent talk by Professor Paul J. Heald, who presented his research on usage of public domain works compared to usage of copyrighted works. Surprisingly, he finds no significant difference between price and availability. See Heald’s publications here.

Island Def Jam opens up their catalogue to the world of apps — IP Osgoode reports on the joining of forces between Island Def Jam, a division of Universal Music Group, and music app developer the EchoNest. App developers will now have access to Island’s entire catalog. Says Jon Vanhala, SVP of digital and business development at Island, “this view that labels are these big companies just clutching onto their rights and not thinking about innovation is just so not true.”

The MP3: A history of innovation and betrayal — NPR’s story of the development of the popular audio file format.

Friday’s Endnotes – 03/18/11

By , March 18, 2011.

Reports this week — The US Intellectual Property Enforcement Coordinator’s White Paper on Legislative Recommendations to Congress was released this week, as well as ICE and CBP’s 2010 report on counterfeit seizures.

Is Netflix building a ‘House of Cards’ in original programming? — The LA Times Blog reports on Netflix’s efforts to produce original content. Game changer? Meanwhile, The Onion reports that the company is also switching over to “convenient new physical locations.”

How to Become an Internet Music Sensation — Speaking of The Onion, this is too good to pass up. Tip #1: “Take advice from your video’s helpful YouTube comments section.”

Stanford Encyclopedia of Philosophy: Intellectual Property — The Stanford Encyclopedia of Philosophy is an excellent online resource if you like thinking and whatnot. A new entry on IP has just been added this past week.

Kluwer Copyright Blog — International publisher Wolters Kluwer has recently launched this new blog focusing on European copyright issues, written by a group of legal experts and practitioners.

Dust-Up: How big a risk does piracy pose to the entertainment industry — As far as debates over piracy go, nothing particularly new here. Just very well-written arguments on both sides. Of course, one side is wrong, but the writing is still good.

Cry Baby: The Pedal That Rocks The World — If you’re into rock and roll and the gear that drives the sound, check this out. The hour-long documentary presents a fun and engaging look at the history of the wah wah pedal, featuring “interviews with Brad Plunkett, the inventor of the pedal, plus many other musical luminaries such as Ben Fong-Torres, Eddie Van Halen, Slash, Buddy Guy, Art Thompson, Eddie Kramer, Kirk Hammett, Dweezil Zappa, and Jim Dunlop.”

Copyright and Buggy Whips

By , March 14, 2011.

A familiar trope of copyright critics is that those involved in creating content — whether record labels, movie studios, or book publishers — are stuck in the past. The challenges facing these industries stem from their refusal to embrace innovation.

The tech industry is especially fond of this trope and seem to have settled on the “buggy whip” as their analogy of choice. A notable example is last August’s statement by Gary Shapiro, president of the Consumer Electronics Association, who said, “Rather than adapt to the digital marketplace, NAB [National Association of Broadcasters] and RIAA act like buggy-whip industries that refuse to innovate and seek to impose penalties on those that do.”

On its face, this claim doesn’t hold up.

As pointed out on Copyright Alliance last week, “the motion picture studios and other members of the creative community are licensing new technology models daily and have embraced an evolving technological landscape to create legal and innovative products and markets.” We have a wealth of different ways to experience content nowadays. The MPAA and RIAA both have pages listing just dozens of legal and convenient examples.

It’s true that people are changing the way they access and consume content, but the transition is gradual and ongoing. Traditional forms of consumptions — terrestrial radio, cable TV, CDs, for example — still make up the majority of how media is experienced. 1Glenn Peoples, Paper Sheds New Light on Music Listening Habits, Billboard, Nov. 3, 2009; Americans Watching More TV Than Ever; Web and Mobile Video up Too, Nielsen Wire, May 20, 2009.  It doesn’t make sense to rush in gutting existing business models for unproven models, models that don’t yet sustain the production of the type of content people love.

In addition, many of the oft-touted suggestions for how the media industries should be adapting have yet to produce substantial returns. According to NPD analyst Russ Crupnick, the past 10 years has seen greater “ubiquity, disaggregation, fragmentation, liberal licensed, disabled DRM, and disinflation” but less growth in music buyers.

Content Industries are not Buggy-whip Makers

On a deeper level, this claim make even less sense.

The buggy-whip analogy comes from an article written by a Harvard Business School professor in the 1960s. 2Randall Stross, Failing Like a Buggy Whip Maker? Better Check Your Simile, New York Times, Jan. 9, 2010. It describes a business that refuses to adapt in the face of technological innovation. When automobiles replaced horse-drawn carriages, buggy-whip manufacturers either had to change their business models or risk obsolescence.

How are content industries like buggy-whip manufacturers? It’s not like they are making something no one wants. People haven’t switched entirely to new forms of entertainment; people haven’t to a large extent embraced alternatives to the content created by traditional industries.

Note that complaints about outdated business models are often not that the RIAA’s and MPAA’s make it difficult for others to create their own music or movies. The complaints largely come from those who want to get the benefits of other people’s content. Service providers and hardware manufacturers certainly recognize the value of this content, they just want more of that value for themselves.

To put it another way, if media industries are making buggy-whips, and buggy-whips are obsolete, why are people pirating buggy-whips?

Piracy is not the Automotive Industry

But even if media industries can be described as buggy-whip industries, it doesn’t follow that copyright infringement is the automobile.

Piracy is not an innovation.

I sometimes wonder if those who compare content creation to the buggy-whip industry and piracy to the automotive industry realize that piracy was around long before the internet. Prior to mp3s and torrents, the record industry faced unauthorized CD and vinyl pressing operations. When the major product of the music industry was sheet music, pirate printers hawked “wretchedly-got-up versions” of popular songs on the streets. And through the centuries, authors and publishers had to contend with reprinters and copyists. The only difference between then and now is that copying is cheaper and more diffuse — a quantitative, rather than qualitative, difference.

But no matter how cheap and easy copying gets, it’s still only copying; no new works are created through piracy.

No doubt, the way people experience media will continue to evolve. Media industries will need to continue to adapt to remain successful. But the comparison between copyright industries and metaphorical buggy-whip manufacturers is inaccurate.

References

References
↑1 Glenn Peoples, Paper Sheds New Light on Music Listening Habits, Billboard, Nov. 3, 2009; Americans Watching More TV Than Ever; Web and Mobile Video up Too, Nielsen Wire, May 20, 2009.
↑2 Randall Stross, Failing Like a Buggy Whip Maker? Better Check Your Simile, New York Times, Jan. 9, 2010.

Friday’s Endnotes – 03/11/11

By , March 11, 2011.

A Blogging Hiatus — Ben Sheffner has put his site, Copyrights and Campaigns, on hiatus after his recent move from NBC Universal to Content Protection Counsel at the MPAA. Since the end of 2008, Ben has brought solid, in-depth reporting and analysis on copyright issues from a reasonable, pro-copyright-owner perspective. His voice will be missed in the blogosphere.

Stuck on Rewind — The Copyright Alliance takes aim at a remark by Public Knowledge about the film industry’s supposed fear of technology. As the Alliance’s Sandra Aistars responds: “Seriously? The notion that the creative world is somehow afraid of, opposed to or otherwise unable to co-exist with a 21st Century technology world is about as up-to-date as the Betamax recorder.”

Copyright PSA for the Reel Challenge via Ray Dowd’s Copyright Litigation Blog. More from the filmmakers behind the video at http://www.yellyfishblog.blogspot.com/

[youtube]NbbdXWY6JOA[/youtube]

Golan v. Holder: Supreme Court to Review Copyrighting Works in Public Domain — Edward Lee (a former professor of mine) shares some thoughts on the case he helped bring which was recently granted cert by the Supreme Court. I wrote a brief summary of the case last week.

Are Canada’s copyright laws friendly or unfriendly towards wealth destroyers according to Prof. Geist? — Barry Sookman thoroughly examines the inconsistent and contradictory claims of law professor Michael Geist concerning litigation between the CRIA and IsoHunt. Worth a read, especially since many of Geist’s copyright claims are repeated as gospel among copyright critics.

Isaac Newton’s Shamefully Unpublished Calculus Book — I’m currently reading a book on the history of mathematics and came across this gem of an article from the mid-90s. For over a decade, we’ve heard of how computers and the internet will free artists from the evils of book publishers (or record labels, or film studios, etc). Much of the talk is hype, but sometimes, as this article demonstrates, things are just flat-out made up.

Friday’s Endnotes – 03/04/11

By , March 04, 2011.

I’m out of town this weekend, so today’s endnotes is a bit short. Enjoy!

The Cost of Free Music — The Arbiter Online, Boise State’s Independent Student Media, presents this well-written piece by Eva Hart (no relation) exploring the harm of illegally downloading music. Appearing less than three months after a similar student op-ed in the Harvard Crimson, it’s refreshing to see the next generation express such concerns. I had to laugh at this comment though: “How many hours does a song take to manufacture… Uh how about ZERO!” Did you know that in the time it took to write that last sentence, I was able to write 37 songs?

Conflict and Compromise: A Review of Selected Bill C-32 Position Papers — I spend a lot of time on US issues because that’s where I live, but for those interested in all things Canada, Kyle Lavender at IP Osgoode has a comprehensive collection of position papers on the Copyright Modernization Act (Bill C-32) currently making its way through the Canadian House of Commons. The bill tackles a wide spectrum of issues, unsurprisingly causing some lively debate.

Even Obscure Title Still Selling Mostly CDs and LPs — Some interesting statistics from Nielsen Soundscan. CDs still make a significant proportion of artist sales, but the percentage of digital sales goes down the more popular an artist is.

B.S. Chart of the Week: Propaganda by the Tech Industry Gets Dumber as They Get More Desperate — Record producer Moses Avalon takes on the “music biz revenue down = RIAA is evil” thought process.

« Older articles
Newer articles »