Copyright

Defendant Choses a New Trial in Minnesota File Sharing Case

February 1, 2010

When I wrote about the trial judge’s remittitur order in the Jamie Thomas case last week, I didn’t mention that a legal aspect of remittitur is that the plaintiff may accept it, or reject it and demand a new trial. I now understand that the plaintiff in this case has not accepted the judge’s remittitur, and has informed the court that it elects instead to proceed with a new trial. This would be the third trial in this case, since the first was set aside by the judge following verdict.  Obviously, this decision is a matter of principle, not finances, since the cost of the new trial alone will likely exceed the damages offered by the judge. However, this case, like the Tenenbaum case in Boston, is all about principle, and very little about hard, cold cash. There’s an interesting discussion of remittitur on the Copyrights and Campaigns web site, here.

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“$2 Million for Stealing 24 Songs for Personal Use is Simply Shocking” Says Minnesota Federal Judge, Issuing Remittitur Order

January 23, 2010

Out of more than 30,000 cases filed against downloaders by the record companies only two end-user download cases have gone to trial and judgment: the Tenenbaum case in Boston, and the case against Jammie Thomas-Rassett in Minnesota. In the second case, the jury awarded the copyright owners $2 million for downloading (and allegedly distributing) 24 songs.  The federal judge to whom the case is assigned has now lowered that amount to $2,250 per song (the legal term of the judge’s action is “remittitur”). Some quotes from the Thomas-Rassett January 22, 2010 decision: After long and careful deliberation, the Court . . . remits the damages award to $2,250 per song – three times the statutory minimum. The need for deterrence cannot justify a $2 million verdict for stealing and illegally distributing 24 songs for the sole purpose of obtaining free music. . . . although Plaintiffs were not required to prove their actual damages, statutory damages must still bear some relation to actual damages. . . .  This reduced award is significant and harsh. It is a higher award than the Court might have chosen to impose in its sole discretion, but the decision was not entrusted to this Court. . . . Thomas‐Rasset argues that the ratio of the statutory damages award to actual damages in this case, when measured in songs, is 1:62,015. She bases this calculations on…

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Tenenbaum Final Judgment

December 8, 2009

Update: Link to First Circuit’s Decision Rejecting Constitutional Grounds for Reducing Statutory Damages, issued September 16, 2011. ____________________ Final judgment in Sony v. Tenenbaum entered by Judge Nancy Gertner today.  The 30 day appeal clock starts to run.  Should be interesting to see what the First Circuit does with this one, although I suspect that the betting is heavy in favor of quick affirmance. A few choice quotes from Judge Gertner’s opinion, which is provided in full below on scribd.com. “the Court, deeply concerned by the rash of file-sharing lawsuits, the imbalance of resources between the parties, and the upheaval of norms of behavior brought on by the Internet, did everything in its power to permit Tenebaum to make his best case for fair use.…The Court did what it could to focus the issue, notwithstanding what can only be described as a truly chaotic defense.” … Tenenbaum “tailor[ed] his fair use defense to suggest a modest exception to copyright protections,” he “mounted a broadside attack that would excuse all file sharing for private enjoyment. It is a version of fair use so broad that it would swallow the copyright protections that Congress created, defying both statute and precedent.” … “As this Court has previously noted, it is very, very concerned that there is a deep potential for injustice in the Copyright Act as it is currently written. It urges –…

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First Circuit: Judge Gertner, You Do Not Have the Authority to Permit Webcasting in Your Courtroom

April 17, 2009

The First Circuit’s decision upholding the RIAA’s challenge to Judge Gertner’s decision to permit webcasting of a motion hearing in the RIAA v. Tenenbaum case was issued on April 16, 2009, very shortly after oral argument. The First Circuit, interpreting a D. Mass. Local Rule, held that U.S. District Judge Nancy Gertner’s interpretation of the local rule concerning photographing recording and broadcasting of courtroom proceedings was “palpably incorrect”. This result is quite disappointing for many people who had hoped that the First Circuit would hold that Massachusetts District Court Judges have have the discretion to webcast court proceedings in their courtrooms, and that this would be a first step toward allowing the public to view federal district court civil proceedings. The decision will, many hope, lead to a change in the pre-Internet Age Rule that was found to prohibit the webcast.

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First Circuit Affirms Preliminary Injunction in Copyright Case

April 13, 2009

Here is the First Circuit’s recent decision upholding a preliminary injunction in a copyright case  out of D. Puerto Rico.  The sole issue on appeal was the holding on substantial similarity.  The products were stuffed animals, specifically, frogs.  Or, more specifically, the Puerto Rican tree frog, the Coqui.   I’ve tried to find a picture of the defendant’s stuffed animal frog  with no luck. Link: Coquico, Inc. v. Rodriguez-Miranda.

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"Copyright in the Age of YouTube"

April 8, 2009

Great article by Steven Seidenberg in the February 2009 ABA Journal on the legal tensions between user-generated content sites (UGC, in the lingo) and the content owners under the “notice and take down” regime established by the DMCA. Interesting fact from the article: On YouTube alone ten hours of video content are put online every minute of every day, more than 250,000 clips per day. Link to article. Cases and sites mentioned in the article: Lenz v. Universal Music Corp Io Group, Inc. v. Veoh Networks, Inc. Viacom page on the YouTube case

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First Circuit Reverses Judge Young in Situation Management Case

March 23, 2009

Are business training materials sufficiently original to be protected by copyright law? The answer, of course, is “it depends.” First and foremost it depends on the materials themselves, but it also depends on the judge. In Situation Management v. ASP, Massachusetts U.S. District Court Judge William Young thought the training materials created by the plaintiff, Situation Management, were not entitled to copyright protection. (I posted on this case when Judge Young’s decisionwas issued – click here for earlier post). Judge Young was not complimentary toward Situation Management’s training materials. In the process of holding that the materials were not entitled to copyright protection he described them as nothing more than “a summary of common-sense communication skills . . . “fodder for sardonic workplace humor” and as “aggressively vapid”. He observed that “the works at issue are so dominated by nonprotectable material that it is impossible to reduce the work to a copyrightable essence or structure.” He found that the materials were filled with generalizations, platitudes, and observations of the obvious” . . . [contained] “not-so-stunning revelation[s],” and taught “[a]t their creative zenith, . . . common-sense communication skills.” Not finished, he observed that “these works exemplify the sorts of training programs that serve as fodder for sardonic workplace humor that has given rise to the popular television show The Office and the movie Office Space. They are aggressively vapid —…

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Rambus Files Its Opposition to Cert.; Gatehouse/New York Times Copyright Case Settles

January 28, 2009

[Update: the FTC did file a reply brief.  Link here] All the briefs are in on the FTC petition for cert in its antitrust case against Rambus, (unless the FTC decides to file a reply brief, which is unlikely to change things much). I’ve added the Rambus opposition to the Rambus Group page on scribd.com, here. Now its time for the antitrust community to hold its breath and see whether the Court takes the case. Some knowledgeable commentators have opined that FTC/Rambus case has the best chance of any antitrust case obtaining review this year, but that plus a dime will get you …. well, nothing I guess. If the petition is allowed, it will be very exciting times for antitrust and standards setting law and policy wonks. In federal court in Boston the Gatehouse Media v. New York Times case (described in these two (1, 2) earlier posts) has settled, as I suspected it would. The settlement agreement (or a preliminary agreement which is binding in the event a “definitive agreement” is not reached), is on scribd.com, here. It appears that this agreement was not intended to be made public (at least not yet), but apparently someone leaked it, so it’s public now. As I read this, Gatehouse prevailed, hands down over the NYT/Boston.com. Gatehouse will erect “technical solutions” to prevent Boston.com from copying the Gatehouse original content, and…

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"Talkin ‘Bout My [Internet] Generation" and Gatehouse Media says, "Give Us A Break Judge, the Registration is in the Mail"

January 16, 2009

Some interesting goings on on the copyright front in D. Mass. are worth a brief mention. First, U.S. District Court Judge Nancy Gertner has ruled that proceedings in the RIAA’s case against Joel Tenenbaum, alleging illegal downloading, may be “webcast” by the Berkman Center. Whether the actual trial will be webcast is undecided as yet, but upcoming in-court motions will be. The audio-visual will be streamed live by the Berkman Center at no charge to viewers. Tune in on January 22nd to see the circus.  [Update: the First Circuit held that the trial could not be webcast]. I find the following quote from the decision to be quite humorous: In many ways, this case is about the so-called Internet Generation — the generation that has grown up with computer technology in general, and the Internet in particular, as commonplace. It is reportedly a generation that does not read newspapers or watch the evening news, but gets its information largely, if not almost exclusively, over the Internet. . . Consistent with the nature of these file-sharing cases, and the identity of so many of the Defendants, this case is one that has already garnered substantial attention on the Internet. While the Plaintiffs object to the narrowcasting of this proceeding, . . . their objections are curious. At previous hearings and status conferences, the Plaintiffs have represented that they initiated these lawsuits…

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Massachusetts Federal District Court Presented With Lawsuit Involving Copying of Online Newspaper Headlines – Gatehouse Media v. The New York Times

January 3, 2009

An interesting copyright case has been filed in Federal District Court in Massachusetts. In Gatehouse Media v. The New York Times, Gatehouse Media contends that the Times has infringed its copyrights by copying the headlines and first sentences from Gatehouses’ local online newspapers, and displaying them verbatim on a Boston.com website (the New York Times owns Boston.com). To see this in action click here and your browser should open a page on Boston.com labeled “Needham.” Scrolling down the center column of the page, you’ll see news “headlines”, followed by the first sentence of each story. If you click on one of the headlines you should be taken to the “WickedLocalNeedham” web page and presented with the full article. If you repeat this a few times with other headlines, you’ll see that the Boston.com site has copied the headlines, and the first sentences of the stories, from the WickedLocal site, which is owned by Gatehouse Media.  Most likely, this is accomplished “automatically” by the Boston.com computers, which “scrape” the headlines and “ledes” from the WickedLocal site and “aggregate” them on the Boston.com site. At present, the Boston.com “Your Town” site covers three towns in this way – Needham, Newton and Waltham. All three Boston.com web pages use the headlines and first sentences from articles owned by Gatehouse Media. Is this permissible, or is Boston.com infringing copyrights owned by Gatehouse?  The answer to…

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11th Circuit: Courts Lack Jurisdiction Over Declaratory Judgment Action for Noninfringement of Copyright, Where Defendant's Work Not Registered

October 23, 2008

The 11th Circuit has ruled on a somewhat obscure but interesting issue of federal jurisdiction in copyright cases. The Declaratory Judgment Act allows one who has been threatened with a suit to file suit first, and ask for a “declaration” of non-liability. In other words, the declaratory judgment makes one who fears becoming a defendant the procedural plaintiff. The roles of “plaintiff” and “defendant” are reversed, but the underlying issue remains the same. Declaratory judgment is simply a way that a threatened party who is unwilling to live with the risk of a lawsuit at some uncertain point in the future can force the issue. However, the Declaratory Judgment Act is procedural; it does not give rise to federal court jurisdiction. This can create a problem for the declaratory judgment plaintiff, as demonstrated in the 11th Circuit case. Registration with the U.S. Copyright Office is a jurisdictional prerequisite to a copyright infringement suit – no registration, no jurisdiction. What if you are threatened with copyright infringement, but the owner of the work who has threatened you has not registered the work? According to the 11th Circuit, you’re out of luck – the federal courts lack jurisdiction, and you cannot seek declaratory judgment. And, since the federal courts have exclusive jurisdiction over copyright claims you can’t seek relief in state court either. You just have to wait until the party threatening…

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Looking for a New Job? How About Federal IP Czar?

October 20, 2008

So, you’re unhappy in your law firm job? Ready to move on to a job that has lots of responsibility but doesn’t require hourly billing and client headaches? A job that puts you in close proximity to the President and his closest advisers?  You’d like a job that provides security and good benefits? A federal pension to offset the losses in your 401K account? Well, you can thank President Bush for creating this exciting new job when he signed the “Prioritizing Resources and Organization for Intellectual Property Act of 2008” last week. The legislation calls this the “short title” of the law. Yes, Congress does have a sense of humor. We’ll call the new law PRO-IP, which is even shorter, and tells you almost as much about the law as the slightly longer title (but still short, no disrespect meant) assigned by Congress. Copyright lawyers always get excited when the Copyright Act is amended, but as I suggested above, there is even greater cause for excitement this time: the new law creates the position of “International Intellectual Property Enforcement Coordinator.” This is a mouthful, so we’d prefer the term “IP Czar” (or perhaps simply “the Czar” to the Czar’s subordinates when they’re talking about her ourside of her hearing). This is a great job. You get to work in the Executive Office of the President, (the “EOP” as its known…

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