Friday’s Endnotes – 09/09/11

By , September 09, 2011.

The 2011 Music-Sales Boost, By the Numbers — Billboard reports some good news: music sales are up in 2011. Nielsen presented the numbers at a NARM-sponsored webinar and looked at possible causes. One of them: the shutdown of LimeWire late last year. “The spike in sales was immediate, noticeable and lasting.”

Great Digital Expectations — The Economist surveys the rapidly-changing publishing industry. This year, for the first time, e-book sales overtook adult hardcover sales. And shuttering physical book stores — long the primary promotional channel for publishers — cast a gloom over the industry.

Visual Cues Impact Judgment of Piano Performances — Very interesting article about recent research that shows that what we see effects what we hear. “Despite the fact the soundtracks were identical, ‘Nearly all participants identified differences between the pairs of video recordings,’ the researchers report. Duplicating the results of the 1990 study, the ‘performances’ by the male pianists were perceived as more precise, while the female pianist’s ‘performance’ of Chopin was judged as more dramatic.”

Tunes on the Tube, What Does it all Mean? — “Have you noticed how much more music is on television today?” asks the RIAA’s Mitch Glazier. From shows like The Voice, Glee, and Dancing With the Stars to the record-high ratings for music award shows, the common theme seems to be “fans’ healthy appetite for music discovery and their desire to be blown away by a voice, a song, a talent.”

Copyright law puts brakes on Internet traffic — After New Zealand’s recent graduated response laws went into effect, ISPs have reported that international P2P traffic has dropped by as much as 10% before a single warning notice had even been sent.

Tech Execs Should Read the PROTECT IP Act Before Attacking It — The MPAA responds to yesterday’s letter from tech company bosses opposing the PROTECT IP Act. It notes specifically that the definition of infringing sites is anything but “vague” and the “burdens for smaller tech companies” are largely imaginary.

Still a Long Way to Go for Anti-Counterfeiting Trade Agreement — The ACTA largely dropped from the news once negotiations wrapped up last year, but it is open for signature until May 2013. IP Watch takes a look at where that process is at and some of the issues that have cropped up.

In the Courts

To the extent that Perfect 10 can be read to stand for the proposition that inline linking can never cause a display of images or videos that would give rise to a claim of direct copyright infringement, we respectfully disagree. In our view, a website’s servers need not actually store a copy of a work in order to “display” it. The fact that the majority of the videos displayed on myVidster reside on a third-party server does not mean that myVidster users are not causing a “display” to be made by bookmarking those videos. The display of a video on myVidster can be initiated by going to a myVidster URL and clicking “play”; that is the point of bookmarking videos on myVidster—a user can navigate to a collection of myVidster videos and does not have to go to each separate source site to view them.

FLAVA WORKS, INC. v. Gunter, No. 10 C 6517, Memorandum Order (N.D.Illinois September 1, 2011)

Does Posting on the Internet Trigger US Copyright Registration Requirement?

By , September 08, 2011.

Back in June, I wrote about Kernel Records Oy v. Mosley, where a Norwegian chiptune producer sued hip-hop producer Timbaland for allegedly sampling one of his tracks (“Acid Jazzed Evening”) without permission, using it in the track “Do It” by Nelly Furtado.

In somewhat of a twist, the court granted summary judgment in favor of Timbaland since Kernel Records had not timely registered its copyright. Although foreign copyright owners are generally not required by US law to register their copyright with the US Copyright Office as a prerequisite to filing an infringement suit, the magistrate judge noted that the Copyright Act does require registration when the work is published “simultaneously in the United States and another treaty party” — and since the judge found that Kernel had first published its work on the Internet, this amounted to a simultaneous publication that triggered the registration requirement.

Only one other court had previously confronted the issue of whether first publication on the Internet triggers the registration requirement for foreign copyright holders under this statute, and that court held that it doesn’t. 1Moberg v. 33T LLC, 666 F.Supp.2d 415 (D. Dela 2009).

Kernel Records quickly filed a notice of appeal with the Eleventh Circuit and last week filed its appellate brief with the court, embedded below. (Link).

[scribd id=64219598 key=key-2inkrzrc0dgmemzdv4p3 mode=list]

In the well-argued brief, Kernel says that the court’s interpretation of the Copyright Act’s registration requirement was incorrect. It also raises two other issues. It argues that the district court should not have dismissed its claim so quickly for failure to register its copyright — Kernel eventually did register its copyright on March 31, 2011, but the court denied its motion to amend its claim to reflect this fact. Kernel also argues that the court erred in granting summary judgment since there was a factual dispute over whether the work was even first published on the Internet in the first place.

The last point is interesting, as it seems to involve a faulty reading of a transcription from a deposition where two people are speaking at the same time — one of whom doesn’t speak English as his primary language. Kernel raises some policy issues with its second argument that are worth taking a look at. But it’s the first point that seems to me to be the main attraction in this appeal.

While copyright protection automatically vests in a work as soon as it is in a fixed medium, under the US Copyright Act, “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” 217 USC § 411(a). The Copyright Act states that

For purposes of section 411, a work is a “United States work” only if—

(1) in the case of a published work, the work is first published—
(A) in the United States;

(B) simultaneously in the United States and another treaty party or parties, whose law grants a term of copyright protection that is the same as or longer than the term provided in the United States;

(C) simultaneously in the United States and a foreign nation that is not a treaty party; or

(D) in a foreign nation that is not a treaty party, and all of the authors of the work are nationals, domiciliaries, or habitual residents of, or in the case of an audiovisual work legal entities with headquarters in, the United States 317 USC § 101.

The lower court held that “publishing AJE [Acid Jazzed Evening] on a website in Australia was an act tantamount to global and simultaneous publication of the work, bringing AJE within the definition of a “United States work” under §101(1)(C) and subject to §411(a)’s registration requirement.”

Kernel Record’s first argument in its appeal is that this holding interprets the statute incorrectly.

The statute specifies four ways a published work qualifies as a United States work, three of which are relevant to the inquiry herein. A work is a United States work under Definition 1(A) if it is first published in the United States; under Definition 1(B) if it is first published simultaneously in the United States and a longer-term party or parties; and under Definition 1(C) if it is published in the United States and a non-treaty party. 17 U.S.C. § 101. Definition 1(D) is inapplicable as it is undisputed the author of AJE, Gallefoss, is not a national, domiciliary, or habitual resident of the United States.

Kernel notes that the statutes use of “only” means that these four definitions are exclusive — it notes the familiar interpretive canon of expressio unius est exclusio alterius (“the mention of one thing implies the exclusion of another”). Thus, a work first published simultaneously in the US and a treaty country with a longer copyright term is a US work under (B), but a work simultaneously published in the US and a treaty country with a shorter term — or a work published in the US, a treaty country with a longer term, and a treaty country with a shorter term — is not.

If posting a work online, then, results in “simultaneous global publication”, it does not fall within this definition of a US work. Posting a work on the Internet amounts to publication in every country with Internet access, as Kernel notes. This would include treaty parties with shorter terms, treaty parties with longer terms, and non-treaty parties, and none of the definitions of a US work includes all of these together.

It’s a strong argument, and one that is bolstered by Kernel’s second argument: this interpretation tracks the Berne Convention’s definition of “country of origin” in Article 5(4). The legislative history of the Berne Convention Implementation Act is explicitly clear that it was Congress’s intent to do so. As Kernel points out, “The District Court‘s interpretation unnecessarily creates a conflict between United States law and the very treaty the United States was attempting to implement.”

Given that Kernel Records has solid arguments for this and the other two issues it has raised, I think it’s likely that the Eleventh Circuit will remand back to the lower court, where the litigation will move forward. Mosley has 30 days to file his reply brief.

References

References
↑1 Moberg v. 33T LLC, 666 F.Supp.2d 415 (D. Dela 2009).
↑2 17 USC § 411(a).
↑3 17 USC § 101.

htmlComics: Domain Name Forfeiture Before Operation in Our Sites

By , September 07, 2011.

Before Operation in Our Sites, there was htmlComics.

Though the US Government’s seizure of over 100 domain names as property facilitating the commission of copyright infringement over the past year has received a lot of attention, the story of htmlComics has mostly stayed out of the limelight (except within the comics community).

The case of htmlComics.com is, as far as I know, the first time a domain name has been forfeited under 18 USC § 2323(a) as property “used, or intended to be used, in any manner or part to commit or facilitate the commission of” criminal copyright infringement. 1I’ve uploaded some of the court filings for this case to Scribd. The rest are available through PACER, or at the RECAP archive. For this reason, it’s worth taking another look at — although the circumstances are very different than the forfeiture case against the Rojadirecta domain names (the only domain name seized during Operation in Our Sites that has been disputed so far).

It’s just like a library

A man by the name of Gregory Hart (no relation) registered the htmlcomics.com domain in December 2008, and shortly after began creating a large library of digitized comic books. The site soon grew to include hundreds of thousands of complete copies of comics, attracting thousands of visitors and plenty of speculation over its legality.

Several online postings by Hart shed some light on his motivations for creating the site. In one, he says he’s never “read even one entire comic book!!!!!!!” and created the site as a sort of proof of concept of a large-scale digitized library project. In another, he asks about legal issues relating to the site, operating under the assumption that his site is no different from any public library.

htmlComics.com quickly attracted the attention of most major comic book publishers. Some sent cease and desist letters, but soon, a consortium of publishers — including Marvel Comics, DC Comics, Dark Horse Comics, Bongo Comics, Archie Comics, Conan Properties Int’l LLC, Mirage Studios Inc., and United Media — enlisted the aid of the FBI.

The Feds Get Involved

The FBI began an investigation of the site and Hart in July 2009. On April 20th, 2010, agents executed a search warrant on Hart’s residence, seizing various paper records and computer equipment. On May 27th, the FBI filed a complaint for forfeiture of the htmlComics.com domain name (along with five related domain names). A warrant for the seizure of the domain names was made the same day.

Like the forfeiture complaints filed against the domain names seized during Operation in Our Sites, 2Along with Rojadirecta, the US has filed a complaint against tvshack.net, movies-link.tv, zml.com, now-movies.com, thepiratecity.org, planetmoviez.com, and filespump.com. the htmlcomics.com complaint alleges that the domain name is subject to forfeiture under 18 USC § 2323(a) because it is property used to facilitate the commission of criminal copyright infringement.

Hart filed a claim as an owner of the domain names and represented himself in the forfeiture proceedings. He filed his answer to the complaint on June 29th, along with several counterclaims against the government. The answer denied any wrongdoing. Hart repeated his assertion that the site was just like any public library:

The presentation of htmlComics.com was not in violation of U.S. Statutory laws. If it is, then so too is every private library within an apartment community, libraries within private clubs, every schoolhouse library, every prison library, and every military base library.

Hart counterclaimed for violations of the First Amendment, Fourth Amendment, Privacy Protection Act (42 USC § 2000AA), and trespass to chattels.

The US moved to dismiss the counterclaims, arguing that they were a “legal nullity” — the defendant in an in rem proceeding is the property, not the claimant, and any claim the claimant may have against the government must be brought in a separate action. As for the constitutional counterclaims, the US further argued that

the only conceivable basis for the Court’s subject matter jurisdiction is Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), under which an individual may bring a cause of action “against a federal agent who, while acting under the color of federal law, has violated the constitutional rights of [the] individual. Bivens actions are brought directly under the Constitution, but damages can be obtained only when (1) the plaintiff has no alternative means of obtaining redress, and (2) no “special factors counseling hesitation” are present. In essence, a plaintiff must meet heightened pleading requirements to even pursue a claim under Bivens. Under this standard, the Claimant’s First and Fourth Amendment counterclaims are grossly deficient and must be dismissed.

The court granted the motion to dismiss Hart’s counterclaims. The only success Hart would have came early on, when the court dismissed the claim against one of the six domain names because, unlike the others, it pointed to a blank page.

By January 2011, the US and Hart reached a pretrial settlement agreement, where Hart agreed the remaining five domain names were subject to forfeiture and released any future claims against the US and the FBI. The court entered the final judgment of forfeiture on February 2, 2011.

htmlComics, Operation in Our Sites, and the PROTECT IP Act

The differences between this case and Operation in Our Sites are obvious. This was a singular action, investigated by the FBI, against a specific site while Operation in Our Sites constituted a broader, coordinated enforcement effort by ICE. htmlComics.com hosted infringing content on its own servers while many of the domains seized by ICE, including Rojadirecta, did not host the content themselves — though, under the language of the forfeiture statute, this is not as relevant a distinction as some critics of the operation make it out to be.

It’s the similarities, however, that I find interesting. Both involve the use of 18 USC § 2323 to forfeit the domain names of websites aiding piracy. Both htmlComics and Rojadirecta raised First Amendment arguments against the seizures — though not too much should be read into the failure of the argument in htmlComics since it flopped procedurally, and the outcome of Rojadirecta’s arguments are still pending. This case especially highlights the advantage of the forfeiture provision, added by the PRO-IP Act in 2008 — it gives the federal law enforcement agencies more options to carefully craft efforts to reduce online piracy. The FBI could have brought criminal charges against Hart himself or the comic book publishers could have sued Hart and his company in civil court. Instead, it proceeded in rem against the offending site itself, which is probably the most direct route. In the same way, ICE has targeted the domain names of rogue sites through the forfeiture process, making it more difficult for them to operate and profit.

Congress is back in session this week, and work on the proposed PROTECT IP Act is expected to begin shortly. The bill will give the US an additional option to use against pirate sites. Through a process similar to the in rem forfeiture proceedings used in htmlComics and Operation in Our Sites, the Attorney General will be able to request court orders against the often unwitting partners of pirate sites — advertising and financial service providers. This process is especially useful for taking the profit out of pirate sites where the operators are, unlike Hart and htmlComics, unknown or operating overseas.

References

References
↑1 I’ve uploaded some of the court filings for this case to Scribd. The rest are available through PACER, or at the RECAP archive.
↑2 Along with Rojadirecta, the US has filed a complaint against tvshack.net, movies-link.tv, zml.com, now-movies.com, thepiratecity.org, planetmoviez.com, and filespump.com.

The Copyright Infringement isn’t Theft Trope

By , September 06, 2011.

Spend any amount of time reading or talking about copyright and you’re bound to have come across a debate over infringement and theft. Like many internet debates, it is very much a dead horse that has been beaten — I personally have written not one but two posts on the topic — yet the subject never dies.

Case in point: a couple weeks ago, Ben Jones at TorrentFreak resurrected the debate in an article called Copyright Infringement and Theft – The Difference. In it, Jones says, “A common recurring theme in the comments here on TorrentFreak is that P2P file-sharing is ‘stealing’. While such sentiments are often expressed by the industry lobby groups, it’s completely at odds with the law. It could also be the very LAST thing those bodies want.”

In the article, Jones makes the argument that since copyright infringement is enforced in courts through infringement claims rather than theft claims, it is wrong to ever use theft-type language to describe the harm caused by infringement. While this is not the only argument used by the “infringement is not theft” crowd, it is one of the more common ones.

It is also semantic nonsense.

At the risk of belaboring this point, here are five reasons why this argument fails.

#1. It’s based on an imaginary rule

According to the argument advanced in the TorrentFreak article, it’s wrong to call copyright infringement theft because it isn’t prosecuted under theft statutes.

This argument implies a rule: you’re only allowed to use words in their formal, legal manner. Throw away your Merriam-Webster’s, because the Blacks Law Dictionary is the only proper source for learning the meaning of a word.

Even the strictest language prescriptivist would cringe at the thought of such a rule. Many words have different meanings in different contexts — a certain definition in one context doesn’t preclude other definitions in other contexts.

#2. It assumes there’s only one legal definition for theft

If we accept this arbitrary, made-up rule, we still run into problems. Which legal definition of “theft” do we use? Every jurisdiction has its own specific definition; in the US, that means there is a different definition in each state.

Some states don’t call it “theft” at all. In West Virginia, for example, the criminal deprivation of personal property is prosecuted as either grand or petit larceny, depending on the value of the property. 1W.Va.Code § 61-3-13. Cries of “Larceny isn’t theft!” would be the nonsensical result of this argument. Stealing is stealing no matter what a lawyer is required to call it for pleading purposes.

#3. The same argument doesn’t make sense with other words

Suppose, for the sake of argument, that we can get around the previous two objections: it’s a settled rule that we should only use words in their formal, legal sense, and we can agree on a legal definition for “theft.” We still run into absurd results under this argument.

“Theft” is commonly used to describe the criminal offense of depriving someone of personal property. But in most jurisdictions, someone can sue for a wrongful deprivation in civil court rather than pressing charges. Such a claim would be for conversion — the “unauthorized dominion over personal property in interference with a plaintiff’s legal title or superior right of possession” 2LoPresti v. Terwilliger, 126 F.3d 34, 41 (2nd Cir. 1997).. It’s entirely accurate, then, to say that “conversion isn’t theft”, but so what? The nature of the act itself doesn’t change depending on which court the claim is brought in.

#4. Stealing or theft?

The crux of the argument advanced in the TorrentFreak article is that infringement isn’t theft, but it kicks off with an example of a comment that “P2P file-sharing is ‘stealing'”. So which is it? Even if this particular argument was valid, does that mean it extends to the characterization of infringement as stealing? Stealing isn’t a legal term, after all — though it should be noted that, in the US, criminal copyright infringement is codified under the heading “Stolen Property“.

This little switch-a-roo just highlights the semantic shenanigans involved in the “infringement isn’t theft” argument.

#5. Some pretty smart people disagree

The argument that calling copyright infringement “theft” is “completely at odds with the law” takes on a patronizing air — i.e., “you’re only calling it theft because you don’t understand the law as well as we do.” This is no more than hubris, however; many people whose job it is to know the law know better.

In Metro-Goldwyn-Mayer v. Grokster, Justice Breyer, joined by Justices Stevens and O’Connor, said, “deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft.” 3545 US 913, 961 (2005) (concurrence). The Supreme Court has been comfortable referring to copyright infringement as theft on other occasions. 4For example, Harper & Row Publishers v. Nation Enterprises, 471 US 539, 558 (1985) (citing Iowa State University Research Foundation v. American Broadcasting Cos., 621 F.2d 57, 61 (2nd Cir. 1980): “The fair use doctrine is not a license for corporate theft, empowering a court to ignore a copyright whenever it determines the underlying work contains material of possible public importance” ; Teleprompter Corp. v. Columbia Broadcasting System, 415 US 394, 417 (1974) (J. Blackmun, dissent in part): “A CATV that builds an antenna to pick up telecasts in Area B and then transmits it by cable to Area A is reproducing the copyrighted work, not pursuant to a license from the owner of the copyright, but by theft”; Dun v. Lumberman’s Credit Assn, 209 US 20,22 (1908): “[a] number of instances are disclosed in the evidence which have strong tendency to establish the charge that defendants have used some of complainants’ copyright material in making their book … such indicia is held to indicate a substantial theft of copyright property.” Lower courts and Congress have also used “theft” to describe copyright infringement on various occassions. 5See, for example, In re Verizon Internet Services, 240 F.Supp.2d 24, 35 (D. DC 2003): “There is little doubt that the largest opportunity for copyright theft is through peer-to-peer (“P2P”) software”; A&M Records v. Napster, 114 F.Supp.2d 896, 900 (ND Cali 2000): “The matter before the court concerns the boundary between sharing and theft, personal use and the unauthorized world-wide distribution of copyrighted music and sound recordings”; Protecting Intellectual Rights Against Theft and Expropriation Act, S.2863 (2004); Artists’ Rights and Theft Prevention Act, S.1932 (2003); Digital Theft Deterrence and Copyright Damages Improvement Act, PL 106-160 (1999); No Electronic Theft Act, PL 105-147 (1997).

Perhaps TorrentFreak and the rest of the “infringement isn’t theft” crowd knows more about the law than Supreme Court Justices, federal court judges, and Congress, but I’m willing to bet that that’s not the case.

Copyright infringement is theft

Language is incredibly malleable; we use words in a variety of ways. Many people over the centuries have described the deprivation of the exclusive rights in the fruits of their creative endeavors as “theft”, there’s no question about that.

But I think it is fair to ask why some bristle at any mention of theft in connection with infringement and piracy. I highly doubt their motives are solely to increase legal literacy by ensuring that words are used in their exact legal sense — mistakenly, in this case, as shown above. After all, one doesn’t have to look very far to see losing civil defendants being described as having been found “guilty”, or statutory damages for infringement being described as “fines” by these same critics — both terms that aren’t accurate in their strictly legal sense.

It’s my sense that this linguistic peeving is explained by the fact that “theft” has definite moral overtones to it, while “infringement” is still capable of euphemistically avoiding any moral concerns. Perhaps proponents of this argument hope that by straining semantics, they don’t have to confront the very real harm that infringement causes to creators and the public.

In other words, the “infringement isn’t theft” argument is often just cover for some other point.

References

References
↑1 W.Va.Code § 61-3-13.
↑2 LoPresti v. Terwilliger, 126 F.3d 34, 41 (2nd Cir. 1997).
↑3 545 US 913, 961 (2005) (concurrence).
↑4 For example, Harper & Row Publishers v. Nation Enterprises, 471 US 539, 558 (1985) (citing Iowa State University Research Foundation v. American Broadcasting Cos., 621 F.2d 57, 61 (2nd Cir. 1980): “The fair use doctrine is not a license for corporate theft, empowering a court to ignore a copyright whenever it determines the underlying work contains material of possible public importance” ; Teleprompter Corp. v. Columbia Broadcasting System, 415 US 394, 417 (1974) (J. Blackmun, dissent in part): “A CATV that builds an antenna to pick up telecasts in Area B and then transmits it by cable to Area A is reproducing the copyrighted work, not pursuant to a license from the owner of the copyright, but by theft”; Dun v. Lumberman’s Credit Assn, 209 US 20,22 (1908): “[a] number of instances are disclosed in the evidence which have strong tendency to establish the charge that defendants have used some of complainants’ copyright material in making their book … such indicia is held to indicate a substantial theft of copyright property.”
↑5 See, for example, In re Verizon Internet Services, 240 F.Supp.2d 24, 35 (D. DC 2003): “There is little doubt that the largest opportunity for copyright theft is through peer-to-peer (“P2P”) software”; A&M Records v. Napster, 114 F.Supp.2d 896, 900 (ND Cali 2000): “The matter before the court concerns the boundary between sharing and theft, personal use and the unauthorized world-wide distribution of copyrighted music and sound recordings”; Protecting Intellectual Rights Against Theft and Expropriation Act, S.2863 (2004); Artists’ Rights and Theft Prevention Act, S.1932 (2003); Digital Theft Deterrence and Copyright Damages Improvement Act, PL 106-160 (1999); No Electronic Theft Act, PL 105-147 (1997).

Friday’s Endnotes – 09/02/11

By , September 02, 2011.

Founders of The Pirate Bay launch new file sharing service — Displaying the kind of innovation that the dinosaurs of traditional industries lack, the inventive geniuses behind The Pirate Bay have launched an exciting new service. Called a “cyber-locker”, this revolutionary service allows users to actually store files on a web server. No more using hard drives like chumps! What’s next? Some kind of “engine” that lets you “search” through other web sites?

Fair-Weather Friends — Next week, Congress gets back to work, and one of the first things on their plate is the proposed PROTECT IP Act. The National Journal’s Sara Jerome notes, echoing a point made by Rob Levine in his upcoming book Free Ride, “tech giants such as Google, in part citing a need to protect free speech, have pledged to fight the transformative measure. Yet, in reality, the tech giants’ objections are economic, not ideological.” Highly recommended reading.

Terminating Music Copyright Licensing Agreements — Copyright termination has been in the news lately. Jess Robinson at the American University Intellectual Property Brief takes a look at what artists need for viable termination claims and what effects these terminations will have on the industry.

Property and Monopoly — Another great piece from Faza. The point he raises — how a copyright “monopoly” differs from the common meaning of “monopoly” — isn’t novel, but one worth repeating. As usual, the comments are as much worth reading as the article itself.

Getting it right with cyberlockers and safe harbours — James Gannon reports on the recent MP3Tunes decision. He uses it to draw lessons to keep in mind for Canada’s upcoming efforts to reform its copyright laws. “What this decision really demonstrates is the importance of having well-crafted, balanced copyright safe harbours for online intermediaries. Legally-savvy pirate website operators will always try to take advantage of any perceived loophole in copyright exemptions in attempt to shield themselves from liability.”

We have no budget for photos — Though I can imagine photographers hear this line more often, creative professionals in just about any field have probably heard some variation. Photographer Tony Sleep offers his brusque response to those who plead poverty or promise exposure in order to convince others to work for nothing.

Kirtsaeng asks for en banc review; let’s hope he gets it — Kirtsaeng, who recently lost his case in the 2nd Circuit, is asking the court to review the decision that held that the Copyright Act’s first sale doctrine doesn’t apply to goods manufactured abroad. Andrew Berger examines Kirtsaeng’s petition.

South Sudan: A little news on copyright and trade marks — Afro-IP has updates on the state of IP law in the world’s newest nation.

Proposed Indian Copyright Amendment — Nandita Saikia has been reporting on India’s efforts to amend its 1957 Copyright Act. A 2011 revision to the proposed 2010 amendment has recently been released; you can see more posts on the topic here.

Hulu Japan Launches With Movies, TV From CBS, Sony, Fox & More But No Ads — The TV and movie streaming service debuts in Japan with a slightly different service than US users are familiar with. Expect more expansion in the near future, as Hulu races with competitor Netflix to roll out around the world.

Scott Vener Q&A: Meet the Man Behind ‘Entourage’s’ Music — I’ve actually never seen an episode of Entourage, but this is an interesting (though short) interview of the show’s against-the-grain music supervisor.

Congestible Intellectual Property and Impure Public Goods — Copyright critics sometimes try to justify piracy by tossing around economic terms like “public goods” and “non-rivalrous”. This recent scholarly article by law professor David Barnes questions the conventional view that intellectual property is a public good, concluding that it is actually partially rivalrous and excludable. Barnes’s conclusions are focused primarily on this view’s implications for trademark law, but it’s worth a read for anyone interested in economic analysis of copyright law.

Studios ask SCOTUS if state law can protect uncopyrightable ideas

By , August 29, 2011.

There’s a story of a proposed bike path in Los Angeles that met opposition from NBC Universal, which had a production studio in the area. Several Universal executives apparently feared the path would be used by aspiring screenwriters to toss unsolicited scripts into the studio parking lot. 1Steve Hymon and Andrew Blankstein, Studio poses obstacle to riverfront bike path, LA Times, Feb 27, 2008.

True or not, companies in the creative fields are typically wary of accepting unsolicited ideas. It’s not uncommon for successful projects to be met with claims of “idea theft” — recent examples in the news include Ugly Betty, Alien vs. Predator, and Premium Rush.

That list also includes the Syfy program Ghost Hunters, produced by Pilgrim Films in partnership with NBC Universal. Last May, in Montz v. Pilgrim Films & Television, the 9th Circuit reversed the district court’s decision to dismiss claims that the studio had taken the idea for the show from someone else without compensation. Now, the studios have asked the Supreme Court to reverse.

SCOTUSBlog highlighted the studio’s cert petition in Pilgrim Films & Television v. Montz (PDF) last Wednesday.

Ghost Hunters

This story begins in 1981, when parapsychologist Larry Montz came up with an idea for a TV show that followed paranormal investigators as they looked for evidence of paranormal activity in real-world locations. Montz and his publicist pitched the idea to several studios from 1996 to 2003, including NBC and the Sci-Fi channel. All the studios passed on the idea.

The Sci-Fi channel, however, eventually premiered Ghost Hunters, a TV show that followed a team of paranormal investigators to real-world locations looking for signs of ghosts. Montz sued the producers of Ghost Hunters in 2006, along with NBC Universal (which had partnered with the producers of the show), claiming that they had based the show on his idea.

Montz specifically claimed that he had pitched the idea to the producers under the condition that he would be compensated if they used it. By creating a show based on his idea without paying him, the studios breached an implied-in-fact contract with Montz.

The district court dismissed the state claims on the grounds that they were preempted by federal copyright law. On appeal, the 9th Circuit affirmed. 2Montz v. Pilgrim Films & Television, 606 F.3d 1153 (2010). But then the Circuit ordered a rehearing en banc. It reversed the lower court’s holding, finding that Montz’s implied-in-fact contract and breach of confidence claims were not preempted by the Copyright Act.

It is this decision that is being appealed to the Supreme Court.

Idea/Expression Distinction

Before looking at the details of copyright preemption, I think it’s worthwhile to take a look at one of the broader issues raised by this appeal — the idea-expression distinction.

Copyright protection extends not to physical objects, but to the immaterial aspects conveyed by those objects in the form of words, images, sound, etc. But the scope of copyright protection is limited even further. William Blackstone, describing copyright in his seminal Commentaries on the Laws of England (1765), distinguished between sentiment and language;  today we use the terms idea and expression to make the same distinction. Copyright gives authors exclusive rights in their expression, but the ideas conveyed in any given work are free to all.

The cert petition explains the importance of this distinction:

For more than a century, it has been settled law that “[n]o author may copyright his ideas.” This is, indeed, “[t]he most fundamental axiom of copyright law.” Even before the Copyright Act of 1976, therefore, only an author’s expression could be copyrighted: The “general rule of law” was “that the noblest of human productions” — including “ideas” — “become, after voluntary communication to others, free as the air to common use.”

The Copyright Act of 1976 retained this longheld distinction between ideas and expression: Section 102 expressly declines to “extend [copyright protection] to any idea,” “regardless of the form in which it is … embodied in [a] work.” [Citations removed].

Since the Copyright Act of 1976, the Supreme Court has held that the idea-expression distinction has another important purpose: serving as one of copyright’s “built-in free speech safeguards.” Distinguishing between ideas and expression “strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression.” 3Eldred v. Ashcroft, 537 US 186, 219 (2003), quoting Harper & Row v. Nation Enterprises, 471 US 539, 556 (1985).

Federal Preemption of Copyright Claims

By the time the US Constitution was drafted, twelve of the thirteen colonial state governments had copyright laws. 4William Patry, Copyright Law and Practice, chapter 1 (BNA 1994). The Framers, specifically James Madison, gave the new federal Congress exclusive power to enact copyright laws primarily to ensure national unity. “The States cannot separately make effectual provision for” author’s rights, wrote Madison in the Federalist 43 about why the Copyright Clause was needed.

Since then, the federal government and the states shared the power to grant copyrights. In 1973, the Supreme Court noted, “the language of the Constitution neither explicitly precludes the States from granting copyrights nor grants such authority exclusively to the Federal Government.” 5Goldstein v. California, 412 US 546, 560. This dual system of copyright was done away with, however, when Congress passed the Copyright Act of 1976.

Under the Act:

On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright … are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State. 617 USC § 301(a).

Courts determine if a state cause of action is preempted by the Copyright Act by looking at whether the work in question is within the subject matter of copyright and whether the state claim protects rights equivalent to those protected by copyright. The state claim isn’t equivalent if it has an “extra element” — one that makes the claim qualitatively different from a copyright claim, changing the nature rather than the scope of the action.

Ideas are certainly not subject matter protected by copyright law; the question always comes down to whether a state claim contains the necessary “extra element” that would preclude it from preemption.

State claims that have been found by courts to be preempted by the Copyright Act include, to name a few, conversion, trespass to chattels, unfair competition, and tortious interference with business expectancy. 7See for example, Globeranger Corp v. Software AG, No. 3:11-CV-0403-B (ND Tex, Aug. 15, 2011); Two Palms Software v. Worldwide Freight Managment, No. 4:10-CV-1045 (ED Miss, Feb. 18, 2011); 78th Infantry Division, WWII Living History Association v. Oprendek, No. 11-165 (RBK/JS) (D.NJ, Aug. 4, 2011).

But Circuit courts are split on cases like Montz. As the studios point out in their cert petition, the Second and Fourth Circuits would have dismissed Montz’s state law claims under their interpretation of the Copyright Act’s preemption provision.

Not so in California and the Ninth Circuit. For over 50 years, California courts have recognized “an implied contractual right to compensation when a writer submits material to a producer with the understanding that the writer will be paid if the producer uses the concept.” 8Desny v. Wilder, 299 P.2d 257 (Cali. 1956). In 2004, the Ninth Circuit held that such claims are not preempted by the Copyright Act. 9Grosso v. Miramax Film Corp., 383 F.3d 965.

Montz v. Pilgrim Films & Television

The decision in Montz reaffirmed what the Circuit judges saw as a long-standing protection of ideas under contract law when there is a “bilateral expectation” of compensation. This promise of payment, said the court, is the “extra element” that makes contractual claims “substantially different” from copyright claims.

The court also believes its decision to protect ideas in this fashion is good policy, considering the nature of the entertainment industry. “Without such legal protection,” it said, “potentially valuable creative sources would be left with very little protection in a dog-eat-dog business.”

Pilgrim Films & Television v. Montz

The studios argue that the Supreme Court should grant its petition because the Ninth Circuit incorrectly interpreted the scope of copyright preemption, the decision further deepens the previously mentioned circuit split on preemption, and the question presented is important to maintaining national unity in copyright law.

They first note the difficulty courts have had applying the “extra element” test in preemption cases. It provides little guidance to courts, and this case is a prime example:

The Ninth Circuit’s analysis began and ended with the fact that, under California law, Montz was required to allege a “promise” to pay for his ideas. But this analysis simply highlights the danger of the “extra element” approach: The “implied agreement of payment for use of a concept” is, at least formally, an extra element, but it does not render Montz’s claims qualitatively different from a copyright infringement claim. Rather, the core of Montz’s allegations is that the defendants copied his ideas and developed derivative works based on his screenplays, videos, and other materials–and the right to prevent them from doing so is protected, if at all, only under the Copyright Act.

The studios next argue that the circuit split on this issue is largely a result of the “extra element” test — the inconsistency of its application illustrates the challenges courts face. This is a particular concern, the studios argue lastly, since the goal of preemption is to ensure consistency and uniformity in copyright law.

The studios also counter the Ninth Circuit’s policy argument, saying that its decision would actually hurt more than help those looking to get their foot in the door of the entertainment industry:

[The decision] has the potential to frustrate the public interest in obtaining fresh ideas and scripts from previously unknown writers. Even before that decision, producers were “already extremely wary about accepting unsolicited idea submissions, leaving only the slightest crack in the door for an aspiring unknown writer to get through.” But to avoid potential liability, producers are now forced to “pull the door shut entirely, leaving unknown writers with even less bargaining power than they had before.” Because of “fear that [they] could unintentionally enter into an implied contract with the screenwriter,” studios have “limit[ed]” their “willingness … to consider unsolicited ideas or pitches.”

Will the Supreme Court grant the petition? Only time will tell. The Court grants only a tiny percentage of all petitions filed. The fact that the Court hasn’t dealt with an issue relating to the Copyright Act’s preemption provision raises the chances, as does the fact that there’s a Circuit split on this question. The petition is also likely to attract a lot of attention — both the MPAA and the major television networks filed amici briefs when the 9th Circuit heard the case.

References

References
↑1 Steve Hymon and Andrew Blankstein, Studio poses obstacle to riverfront bike path, LA Times, Feb 27, 2008.
↑2 Montz v. Pilgrim Films & Television, 606 F.3d 1153 (2010).
↑3 Eldred v. Ashcroft, 537 US 186, 219 (2003), quoting Harper & Row v. Nation Enterprises, 471 US 539, 556 (1985).
↑4 William Patry, Copyright Law and Practice, chapter 1 (BNA 1994).
↑5 Goldstein v. California, 412 US 546, 560.
↑6 17 USC § 301(a).
↑7 See for example, Globeranger Corp v. Software AG, No. 3:11-CV-0403-B (ND Tex, Aug. 15, 2011); Two Palms Software v. Worldwide Freight Managment, No. 4:10-CV-1045 (ED Miss, Feb. 18, 2011); 78th Infantry Division, WWII Living History Association v. Oprendek, No. 11-165 (RBK/JS) (D.NJ, Aug. 4, 2011).
↑8 Desny v. Wilder, 299 P.2d 257 (Cali. 1956).
↑9 Grosso v. Miramax Film Corp., 383 F.3d 965.

Friday’s Endnotes – 08/26/11

By , August 26, 2011.

Consumption is a Human Right? — Another great post from Faza, taking on the weakness of the “access to culture” argument. “As human rights go, access to culture is a rather weak one. I mean, seriously, whatever happened to food, housing and healthcare? Compared to a lack of any of those, not being able to listen to the new album from [X] is a minor tickle. So why aren’t we getting any of those for free?”

Bill would help combat copyright offenders on the Internet — The Washington Post weighs in on the PROTECT IP Act. “[It] takes pains to protect Internet service providers, search engines and others that may have done business with a rogue site … But there is a need for a legal tool that stops those who persistently leech off of the innovations of others.”

Ontario Court of Appeal Rules In Tucows v. Renner: Domain Names Are Personal Property — Before this, no Canadian appellate court had reached the issue. Matt Lonsdale of IP Osgoode examines the decision, which aligns Canada with the dominant view that domain names can be treated as property, a view shared by US courts.

HSI agents arrest website operator for illegally streaming copyrighted sporting events — ICE announced it had arrested the operator of one of the sites whose domain names had been seized as part of Operation in Our Sites. The owner of HQ-Streams.com and HQ-Streams.net has been charged with one count of criminal copyright infringement for allegedly streaming live sporting events through the website.

Hollywood Buzz in Cleveland, Ohio — Film production creates jobs and boosts local economies. Recent local news channels highlighted these positive effects in Cleveland, currently home for production of The Avengers and I, Alex Cross.

The Jobs Program — Rob Levine weighs in on Steve Jobs resignation and the success of Apple despite the company doing the opposite of what technology pundits consistently preach.

Petition of the Day: Pilgrim Films & Television v. Montz — SCOTUSBlog highlights this petition to the Supreme Court from Pilgrim and NBCUniversal, stemming from a dispute between them and a parapsychologist, who alleged the idea for the Syfy program Ghost Hunters was taken from him without compensation. The 9th Circuit ruled in favor of him; Pilgrim appeals to the Supreme Court on the basis that such a claim should be pre-empted by the Copyright Act.

Bestselling Self-Published Author Signs Deal with Simon & Schuster — John Locke, who became popular in the blogosphere after selling millions of copies of his self-released books, becomes the latest in the line of such authors to join forces with a traditional publisher.

Crowdfunding Concerns — It’s all fun and games till someone gets poked by the IRS. “Crowdfunding”, or micro-patronage, is becoming a popular alternative for raising money for a variety of creative endeavors. However, as Leslie Burns explains, creators interested in crowdfunding a project need to be careful to consider tax considerations and other legal issues before beginning.

The Potential Cost of PROTECT IP: Our Take — The MPAA comments on the Congressional Budget Office’s $47 million cost estimate for implementing the proposed legislation.

The Copyright Alert System — A couple of recent pieces exploring July’s announcement of an agreement between US ISPs and the music and film industry to fight online piracy. Songwriters Guild of America president Rick Carnes discusses the agreement at the Arts+Labs blog, while the Kluwer Copyright Blog looks at it in the context of similar international and European measures.

Book Review: Robert Levine, Free Ride — The Cynical Musician reviews Levine’s Free Ride. “Levine’s single biggest contribution to the debate on the future of online media is that he manages to demonstrate, very clearly, that rather than a question of morality or ideology, it is one of economics.”

Stop Criminalizing Our Kids: Google Drugs Pays Record $500 Million Fine to Avoid Jail … For Now — Chris Castle discusses the record forfeiture of Google’s profits in connection with ads for illegal importation of prescription drugs. The settlement agreement between the Department of Justice and Google is available here.

Documenting how a bill becomes a law — Many of the documents produced during the legislative process are available online, but compilations of a bill’s entire legislative history are not as readily available, meaning lawyers and researchers have to do a lot of legwork to piece together the reports, hearings, committee prints, and draft bills that shed light on the intent of a law. The US Department of Justice has just released a collection of compiled legislative histories for a number of landmark bills that its staff uses internally. Kudos to the DOJ for making this valuable resource available to the public.

The Modern Contrivance of Copyright (1875)

By , August 25, 2011.

The following is from the beginning of Appleton Morgan’s 1875 treatise, “Law of Literature,” which has been said to have “codified the law of literary property in the United States.” 1The National Cyclopedia of American Biography, “Morgan, Appleton“, Volume 9, pg 452, James T. White & Co. (New York, 1899).

Before the invention of the art of printing, we have seen that literary compositions were published, either by delivery, by word of mouth, or by a laborious and careful copying of the manuscript upon parchment, which was then wound upon rollers into a volume or book. Still later, writings were published by being inscribed upon parchment, and scattered broadcast along the highways, or over the fields. Says the outlaw’s song of Trail le Baston:

Escrit estoit en parchemyn pur mont remember
Egitté en haut chemyn qe urn le dust trover. 2“It was written on parchment to be well remembered / And cast into the highway, that some one should find it.”

This method of publication seems to have been employed until quite the sixteenth century. We find mention of “a libel or book entitled ‘The Supplication of Beggars/ thrown and scattered at the procession in Westminster, on Candlemas day (2 February, 1562), before King Henry the Eighth, “for him to read and peruse”; and of Wolsey, complaining to that king, “of divers seditious persons having scattered abroad books.” So, too, Burdett was tried “for conspiring to kill the king and prince by casting their nativities, fortelling the speedie death of both, and scattering letters containing the prophecy among the people.” Copyright is a modern contrivance by which an author may, if he will, still scatter his productions to the four winds, and yet retain, if he will, the exclusive control over them, and over their further multiplication. It is a provision by which the contents of the scattered page are still his (disconnected from any possession in plate, or type, or paper, or in any other physical existence), constituting a property in which he can traffic, and which he can buy and sell and bestow.

The privilege of an author to the exclusive sale of his works for a limited number of years, although practically in the nature of a monopoly, is not a monopoly in the odious meaning of the term.

A monopoly proper is a right given to one individual to produce or traffic in a commodity which others are fully as able to produce or traffic in as he, if permitted to do so. A monopoly is a rule against competition. But there can be no competition in the productions of a man’s own brain. A man has, by natural law, a right to the exclusive power of first disposing of his own productions or manufactures; and the pursuit and enjoyment of that exclusive right can never be a monopoly. The author only has given him, by law, what in morality, equity, and good conscience, he had before. Or, to speak more accurately, the law gives him a method of asserting and protecting his right. Statutes of copyright only shift the burden of proof in favor of the author.

That copyright laws are beneficial to the public, as well as to the author, cannot be questioned. Rich and vast as are our stores of literature, how much richer and vaster might they have been, if the first English copyright act had been the act of Elizabeth instead of the act of Anne; or if the days of Chaucer, no less than the days of Dryden, had been enlightened by such protective legislation!

It is not improbable that we owe to the fact, that, in his day, a manuscript or published work, was practically without protection and not to be intrusted beyond the writer’s hand, that no authentic and authoritative text of Shakespeare exists, and nothing but inaccurate, interpolated, and expurgated texts of Fletcher, Beaumont, Webster, and a score of other contemporary writers. So long as a service to literature is a service to the people, copyright laws cannot be classed as mere individual monopolies. The only property which is reserved to the author, and which the law gives him, is the exclusive right to multiply copies of that particular combination of character which exhibits, to the eye of another, the ideas he intends to convey.

The Law of Literature, by James Appleton Morgan. Vol. II, James Cockcroft & Co. (New York, 1875).

References

References
↑1 The National Cyclopedia of American Biography, “Morgan, Appleton“, Volume 9, pg 452, James T. White & Co. (New York, 1899).
↑2 “It was written on parchment to be well remembered / And cast into the highway, that some one should find it.”

A Pirate’s Tall Tales

By , August 24, 2011.

Rick Falkvinge, founder of the Pirate Party and self-described “political evangelist“, loves to tell stories.

Last week on TorrentFreak, Falkvinge wrote a post called Nobody Asked for a Refrigerator Fee. In it, he tells the story of the refrigerator and how it displaced the need for home delivery of ice blocks. The broader point is that this industry “had been made totally obsolete by technical development.”

Falkvinge compares this story to today, where some monolithic “copyright industry” is being displaced by “new expressions of culture” and file-sharing. The difference is that when the “ice distribution industry became obsolete”, “no refrigerator owner was sued for making their own cold and ignoring the existing corporate cold distribution chains.”

It’s a neat story, one that plays well with the anti-copyright crowd, but unfortunately gets a number of things wrong.

For starters (and this is only a sidenote), anyone who has been to a convenience store lately and seen bags of ice for sale can tell you that the “ice distribution industry” did not become obsolete with the arrival of the refrigerator. It is, in fact, a $2.5 billion industry today.

Secondly, Falkvinge’s equating of distributors of a single product to the entire “copyright industry” is inexact. The “copyright industry”, as it were, includes not only distributors, but also creators, producers, publishers, and various other component companies. The International Intellectual Property Alliance divides copyright industries in four general groups, and describes them like this:

The core industries include newspapers and periodicals, book publishing and related industries, music publishing, radio and television broadcasting, cable television, records and tapes, motion pictures, theatrical productions, advertising and computer software and data processing. Most of these industries are engaged primarily in the generation, production and dissemination of new copyrighted material. Some, such as software (including business, education and entertainment applications) and data processing, include both the generation of copyrighted material and its application.

The second group comprises the partial copyright industries, a disparate collection of industries, only part of whose products are copyrighted materials. These industries range from fabric to business forms to architecture. The third group, distribution, includes the industries that distribute copyrighted materials to businesses and consumers. Examples include transportation services, libraries, and wholesale and retail trade involved in the distribution of copyrighted products. The fourth group involves the copyright-related industries, those that produce and distribute products that are used wholly or principally in conjunction with copyrighted materials, such as computers, radios, televisions, and consumer recording and listening devices. We refer to the four groups together — core, partial, distribution, and related — as the total copyright industries. 1Copyright Industries in the US Economy, the 2002 Report, Stephen E. Siwek (2002).

Most importantly, just as “no refrigerator owner was sued for making their own cold and ignoring the existing corporate cold distribution chains,” no one has been sued for making their own music, or films, or any other product of creative effort.

No one has been sued either for the business model they’ve adopted, or the technology they use. And there are plenty of new ones in place, with varying levels of success. Jamendo uses BitTorrent technology to distribute its members’ music; Bandcamp gives emerging musicians a variety of methods for selling to fans, from pay-what-you-want digital sales to physical merchandise fulfillment — authors, filmmakers, and other creative professionals have a wealth of options alongside “traditional” avenues for distributing and marketing their works, all legal. The “copyright industries” themselves continue to innovate as well, with new, legal ways for people to experience existing content appearing every day.

What isn’t legal, however, is distributing or selling other people’s work without appropriate permission. Those companies and individuals that have done that — Napster, Aimster, Grokster, Limewire, Isohunt, et al. — have indeed been sued. Not because they “ignored the existing corporate distribution chain” but because they ignored the exclusive rights creators have to the products of their labor. Whatever business model or technology they used to do that is irrelevant.

I’m continually amazed that those like Falkvinge have such a difficult time with such a simple concept. Then again, it’s a lot easier to justify piracy by falsely characterizing it as simply a new way of doing business.

References

Win, Lose, or Draw? Mixed Bag in Capitol v. MP3Tunes Decision

By , August 23, 2011.

Yesterday’s court opinion from the record labels’ lawsuit against “online music entrepreneur familiar with high-stakes copyright litigation” Michael Robertson’s latest venture is a mixed bag — no big win for either side, though plenty of little items of interest. 

Capitol Records v. MP3Tunes, Memorandum and Order, No. 07 Civ. 9931 (SDNY Aug. 22, 2011).

Background on MP3Tunes and this litigation:

Here’s a quick rundown of the court’s holdings on the cross-motions for summary judgment:

  • EMI’s claim against MP3Tunes and Robertson for contributory copyright infringement for songs described in takedown notices but not removed from users’ lockers is granted.
  • MP3Tunes’ DMCA defense for all other infringement arising from its service is granted.
  • EMI’s direct infringement claim against Robertson  for unauthorized songs added to his personal locker is granted.
  • EMI’s direct infringement claims against other employees for unauthorized songs in their lockers remain.
  • EMI’s infringement claim as to MP3Tune’s reproduction of album cover art on its site remains.
  • EMI’s state unfair competition claim remains.

Other observations:

Unsurprisingly, no “red flag” knowledge of infringement was found. As Ben Sheffner noted in last years’ Viacom v. YouTube decision, this level of knowledge triggers a requirement to takedown infringing content in order to qualify for the DMCA safe harbor yet has been narrowed by this court so much as to become almost a “dead letter.” Here, the court rejected EMI’s argument that even keywords like “file-sharing” are not the kinds of facts that should make infringement apparent to MP3Tunes.

MP3Tunes had tried to discount many of the songs at issue by arguing that EMI had registered the copyrights in them as “works for hire” but hadn’t provided proof that they were, in fact, works made for hire. Last week, the NY Times ran several articles about the looming battle over copyright termination. The big issue is whether or not many popular sound recordings are works made for hire; had MP3Tunes successfully made this argument, it could have foreshadowed the outcome of any litigation over terminations. However, a copyright registration creates a presumption of the validity of the facts stated within it. MP3Tunes had the burden to rebut that presumption, so although it raised the argument, it hadn’t provided any evidence to back it up, so the argument fails.

Perhaps MP3Tunes’ most audacious argument was that, since EMI made some songs available for promotional download on some third-party sites, it essentially authorized all downloads of the song from any site: essentially abandoning its copyright in those songs. This argument didn’t convince the court at all. It noted, “Far from proving EMI’s intent to abandon its rights, the record reveals that EMI placed careful restrictions on the use of its promotional songs and required consumers to visit certain websites or provide valuable marketing information before downloading a song.”

Following the court order, Michael Robertson brought up the tired false conflict between the music and tech industries,  remarking, “Few companies have been able to stand up to the record labels attacks and get rulings from the court on key issues relevant to the future of the internet music.”

It’s true that few companies that have operated with reckless disregard for musicians’ copyrights have gotten favorable rulings from courts. But it’s also true that many other companies which respect those rights have become successful. There are currently hundreds of legal online music services that include tracks from the major record labels. 1IFPI Digital Music Report 2011. The success of these services prove that everyone — creators, service providers, and consumers — can win.

Both EMI and MP3Tunes have indicated this litigation is far from over. Several issues remain to be resolved — and either side can appeal this ruling. The Second Circuit’s decision in Viacom v. YouTube is also pending — since that decision will deal with many of the same DMCA issues raised here, parts of this decision may have a short shelf-life.

References

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