Select Page

I Was a Guest on URBusiness Network’s “CHAOS Tuesday” Internet Radio Show

Whew, that is a mouthful.  I was a teenage werewolf?  No, I was a guest on URBusiness Network’s CHAOS Tuesday Internet Radio Show. Here’s what it means.

URBusiness Network, or “URBN,” is, in its own words, an “online radio station streaming 24/7 with business specific programing.”  This is, needless to say, not your father’s radio station. In fact, it is “radio” only by analogy. Think “entirely new business technology model made possible by increases in Internet bandwidth.” In other words, this is a relatively new industry, with minimal barriers to entry (low cost, no FCC regulation) and unlimited geographic reach. URBN is a small but serious player in this market.

One of the many Internet radio shows URBN produces is “CHAOS Tuesday,” the brainchild of Jim Johnson, founder of The Standish Group.  The Standish Group is an organization with expertise in large (and I mean very large) software projects.  Many large software implementation projects to over cost or fail, and Standish’s mission is to figure out why and try to reduce the frequency of failure.

One of my clients retained Standish to consult in a litigation involving a large software implementation, and I made the acquaintance of Jim Johnson. Recently, he asked me if I would be a guest on The Standish Group’s weekly Internet radio show, CHAOS Tuesday, hosted by URBN. I agreed to discuss the Communications Decency Act (the “CDA”), a federal statute which relieves Internet hosts of liability for content posted by users (excluding copyright violations, which are covered by the DMCA, and violations of federal criminal law). This is a hugely important statute which, to a significant extent, defines the social media elements of  the Internet. Without it you would not be able to read Amazon and Yelp reviews, and it’s questionable whether social media such as Facebook and Twitter would even exist.

In September I visited URBN’s beautiful offices in Woburn, Mass., where Jim Johnson and Rick Brutti, one of URBN’s founders (with the help of his talented and extremely friendly staff), hosted the show.

Despite the fact that one of the show’s hosts (along with Jim Johnson and me, URBN had two hosts in the studio, for a total of four people “on-air”) mangled both “Gesmer” and “Updegrove,” after a few rocky minutes at the start the show settled down and I was able to provide some commentary on the CDA — although nowhere nearly as much as I had prepared or the law deserves.

I learned two things from this experience: first, before you go into the studio make sure the host can pronounce your name; and second, you can’t anticipate every problem (yes, I already knew that).

You can listen to the show here: CHAOS Tuesday #25 (hint: click on “Listen to the Radio Show ….”).

Supreme Court to Review 9th Circuit Decision in “Raging Bull” Copyright Case

The Supreme Court accepts fewer than 1% of the requests for review submitted to it, and review of copyright cases is relatively rare.* Yesterday, the Court accepted review (or, in lawyer-speak, granted a “petition for writ of certiorari”) in Petrella v. Metro-Goldwyn-Mayer, Inc.

*Based on my quick count, the Court has decided 15 copyright cases since 1985.

Since 1981 Paula Petrella has been the owner (by way of copyright reversion and inheritance) of her father Frank Petrella’s copyright interest in a book and two screenplays about the life of Jake LaMotta, the central character portrayed in the film Raging Bull. She claims that Raging Bull is a derivative work of the book and screenplays, and that she is entitled to royalties based on MGM’s continuing commercial use of the film.

Ms. Petrella threatened MGM with a suit for copyright infringement as far back as 1998, but she didn’t actually file suit until 2009. In fact, Raging Bull was released in 1980, and there is evidence that Ms. Petrella was aware of her copyright infringement claim as far back as 1981, in which case she delayed for almost 30 years before filing suit for copyright infringement.

The U.S. Copyright Act contains a three year statute of limitations, and this has been interpreted not to mean that that a copyright owner must bring suit within three years of learning of an infringement, but that if a copyright owner does bring suit, the owner can recover damages only for the preceding three years of unauthorized use.

However, there is a non-statutory or “common law” legal principle known as “laches” (a bothersome term derived from French law), that states that a party may not unreasonably delay in pursuing a legal right of action. MGM invoked this doctrine, arguing that Ms. Petrella’s 18-year delay in bringing the suit was unjustifiable, and resulted in substantial prejudice to MGM. The Ninth Circuit agreed, and dismissed Ms. Petrella’s case.

The issue presented in Ms. Petrella’s appeal to the Supreme Court is whether the nonstatutory defense of laches is available without restriction to bar all remedies for civil copyright claims, including the copyright statute’s “trailing” three-year statute of limitations. In other words, can laches trump the copyright statute’s three year statute of limitations?

The appeal drew an amicus brief from the California Society of Entertainment Lawyers, which not only argued in favor of Supreme Court review of the narrow issue raised by this case, but criticized the “Ninth Circuit’s broader hostility to copyright plaintiffs – specifically, creators filing suit against conglomerates within the entertainment industry for violation of their intellectual property rights.”

Truthfully, setting aside its tie-in to the film Raging Bull (frequently listed as one of the greatest films of all time) and Robert De Niro (back when he was selective about his choice of movie roles), this is not a copyright case of earthshaking importance. Defendants raise the laches defense infrequently, since most copyright plaintiffs act within a reasonable period of time to enforce their rights. Why did the Court agree to take this case? Because the closest thing to a guarantee of review by the Supreme Court is a circuit split, and that is what Ms. Petrella was able to present in this case. Three circuits forbid any application of laches to restrict copyright damages, two circuits permit it only in exceptional circumstances, and the Ninth Circuit not only applies laches in copyright cases, but has adopted a presumption in favor of applying laches to continuing copyright infringements. Apparently, these divisions within the federal circuit courts were enough to convince the Supreme Court that it was time to step in and resolve the circuit split.

More to come, as the parties file their merits briefs, and the Court hears argument sometime early next year, with a decision expected before the 2013-2014 term ends in June.

Decision under review: Petrella v. Metro-Goldwyn-Mayer, Inc., 695 F.3d 946 (9th Cir. 2012)

SCOTUSblog page on Petrella case