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Checking the Sources: Why I Questioned Nimmer on Copyright
May 20, 2013 by Rick Sanders | Category: Blawg, Blog | Tags: copyright, digital content, digital distribution, distribution right, file-sharing, internet, making available theory
Practitioner’s POV: Treatises Must Be Reliable
So, I’m very grateful to the Vanderbilt Journal of Entertainment and Technology Law (“JETLaw”)* for publishing my article on Nimmer on Copyright‘s about-face on the “making available” theory of the distribution right**. You can read the whole thing here.
* Better known in my day as “JELP”: Journal of Entertainment Law & Practice.
** I explain what this is about near the end of this post.
Oh, are you back so soon? Well, yeah, I guess I failed to mention that it’s about 20 pages of formal prose (but the margins are so big!), there really are 169 footnotes,* and there are zero snarky asides. But you’re still interested, perhaps because you’ve heard this issue directly affects internet-based commerce**. Since you’re not a legal scholar*** and you don’t have tons of time, would I mind summarizing?
* Did I mention that I was grateful to JETLaw? I threw those footnotes together, but do you see how neat and perfect they are, and that they probably actually support the proposition they’re footnoting? You need to thank the JETLaw student editors for that. Since I was once a professional authorities editor, I know what … Read More»
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Shoot that Poison Aereo to My Heart! How a Copyright Decision Can Be So Wrong (Yet So Right)
Free-Riding on a Dream
By coincidence, the SDNY’s rejection of ReDigi’s business model happened at almost the same time as the Second Circuit’s seeming affirmation of Aereo’s business model. This coincidence led to a certain amount of bewilderment. How could one court rule to strengthen copyright at the same time another court ruled to weaken copyright? The answer, of course, is that courts don’t—or shouldn’t—worry about the relatively weakness or strength of copyrights. They’re in the business of implementing the Copyright Act—a task that just gets harder and harder. The main lesson here is that, regardless of the copyright law’s purpose and policies, it is (outside of fair use and a couple of other things) often a highly technical law that can have counterintuitive results.
I believe this images shows part of Aereo’s array of TV antennae, each the size of a dime.
Copyright as Economic Policy
The bewilderment had two sources. First, there are those with an extra-legal interest in the strength or weakness of copyrights. For both content providers, who prefer stronger copyright (but have mixed feelings about fair use), and information providers, who see strong copyright as a nuisance, the courts went 1-for-2. Either ReDigi … Read More»
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Copyright Holders Eat ReDigi’s Cake and Have it, Too
But is the Cake a Lie?
As many of you know, the trial court in Capitol Records v. ReDigi ruled over the weekend that ReDigi’s business model of re-selling digital music files infringed the copyright. Here’s the opinion. I’ve written about ReDigi quite a lot because (1) ReDigi’s business model poses lots of unresolved legal problems and (2) I had to create a new set of posts once I (along with the rights holders) learned how ReDigi really worked. My previous ReDigi posts are collected here. I only have time for a quick post before I have to go somewhere*, so here’s my quick analysis.
* I’ll be moderating a panel on gTLDs at the ABA Intellectual Property Meeting in Crystal City. You should totally come, if you can, because my panelists are awesome and the topic is timely, important and fascinating, which will more than make up for my bumbling attempts to ask incisive questions.
I couldn’t find a free image of a Portal Cake, but this cake looks pretty good.
Background: Is ReDigi’s Cake Just Mostly Frosting?
Here’s how ReDigi works, in a very tiny nutshell. You sign up. You upload songs you want … Read More»
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Toward an Analytical Framework for Determining Statutory Copyright Damages
Part I: Why Williams Isn’t the Answer
Sorry, but I can’t let go of the Thomas-Rasset affair quite yet. It is not my habit to criticize court opinions. They are what they are, and the important thing for us lawyers is to understand them. But in this case, I’d like to criticize the Eighth Circuit’s decision in Thomas-Rasset to move toward a better way of thinking about statutory damages in copyright cases.
In between the snarks, the main narrative of my last two posts about Thomas-Rasset was that:
1. The Eighth Circuit had to choose between two different U.S. Supreme Court decisions:
a. Williams, which was directly on point but very old; and
b. Gore, which was not on point but relatively recent.
2. The Eighth Circuit rationally chose to follow Williams.
3. That choice dictated the result: affirmation of the statutory damages of $9250 per song.
4. Although that choice was defensible, the result felt unjust because it punished the wrongdoer far more than her net worth.
I want to question assumption 1a: that Williams was directly on point. It isn’t. That doesn’t necessarily change the Eighth Circuit’s result, but it does show that there’s much … Read More»
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Music Industry v. Thomas-Rasset: Constitutional Challenge to Copyright Statutory Damages Turned Aside
But Should Juries Have This Much Discretion?
Last time we celebrated the finality* of the music industry’s case against Jammie Thomas-Rasset. The parties, for different reasons, decided to stop insisting on remittitur, let the judge rule on the constitutionality of the $1.5 million award (for 24 songs), and appeal that ruling. The judge duly found the award unconstitutional, reduced it to $54,000, and both sides appealed. (Here’s the result.)
* Unless the U.S. Supreme Court decides to get involved. That’d be something.
The music industry didn’t care about the amount—any amount was, as practical matter, uncollectable—but cared deeply about a previous ruling by the trial court that dispensed the industry’s beloved “making available” theory of distribution. Since that ruling scotched an earlier $222,000 judgment*, the music industry sought only that amount on appeal, in effect turning back the clock. Thomas-Rasset, who cared deeply about the constitutional issue and didn’t have much to lose, out-maneuvered** the music industry by not disputing liability, which put all the focus on the constitutionality issue and took the “making available” theory off the table.
* Which was replaced by a $1.92 million verdict, then again by the $1.5 million verdict.
** I’m being … Read More»
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Thomas-Rasset File-Sharing Saga Finally Ends, with Tactical Victory for Rights-Holders
How Many Licks? One, Two-hoo, *Crunch*, Three
Er, how many trials does it take to get to the center of a file-sharing case, where the plaintiffs have a point to prove and the defendant has nothing left to lose? Three, apparently (because no one can get there without biting). The Eighth Circuit Court of Appeals has made sure that there will be no more foolishness (opinion here).
I really did say that the music industries’ lawsuit against Jammie Thomas-Rasset could, in theory, last forever. A judge with a sense of humor could have issued remittitur after remittitur, and the music industry could have rejected it over and over, and new trials on damages could have been had again and again, and still no final order would exist to be appealed.
Fortunately for all involved, three trials are enough. As the trial court pointed out in its opinion, you can have as many trials as you like, but all you’re doing is skirting the constitutional question of how high statutory damages* can get in copyright cases. So, with what I take to be the tacit approval of all the parties, the judge ruled on the … Read More»
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I Has Moar Flava: Nine Copyright Observations About the myVidster Case
Heh, He Said “Dicta”
Last time, I tried to explain the main holdings from the important but maddening Flava Works v. Gunther (a/k/a myVidster) opinion by Judge Posner. Because so much of the decision is dicta (material that is unnecessary to the holding), and fascinating and bizarre dicta at that—basically, it’s Judge Posner arguing with himself—there’s a lot to react to.
So here they are: nine observations about the dicta in Judge Posner’s Opinion, in no particular order:
Are Wieners Copyrightable?
1. Judge Posner can’t help but spend an unnecessary but interesting paragraph (again, complete dicta) on whether pornography is copyrightable.* He seems to think it is, and the current legal authority (somewhat old and creaky) backs him up. Under First-Amendment principles, what constitutes pornography (“obscenity,” really) is a combination of national principles (whether it lacks some sort of artistic merit) and local values (the jury going, “Ewwwww!”). Copyright is a national system, so it shouldn’t change from locale to locale. If the local populace is truly disgusted by it, it can use other laws to discourage it, just leave copyright out of it.
* Judges who are stuck adjudicating mass-defendant BitTorrent cases involving pornography (as most of them … Read More»
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Music Industry v. ReDigi: The Problem with Phonorecords: Copyright
When Is a Phonorecord Not a Phonorecord?
Last time, we finally figured out how ReDigi operates and how it plans to get around the fact that it must make at least one (and often two) intermediate copies of a song file in order to complete the sale of the song file. ReDigi’s solution is to structure itself as an Amazon-style music locker and rely on space/format shifting for those intermediate copies.
But this doesn’t get around the other concern I raised (way back here), which we might call the “phonorecord problem.” Recall that the nub of the RIAA’s argument is that the First-Sale Doctrine is limited the distribution right. The RIAA’s point was that the intermediate copies exercised the reproduction right and, therefore, fell outside the scope of the First-Sale Doctrine. While I thought there might be a different way of looking at that issue, it turns out ReDigi is fine with the RIAA’s argument, since it thinks it has an alternate (and better) legal theory regarding those intermediate copies.
The “phonorecord problem” is more fundamental. Under a strict and plain reading of the Copyright Act, the distribution right is limited to the distribution of physical embodiments … Read More»
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UMG Swings for the Copyright Fences … And Misses Everything
Ninth Circuit: It’s OK to Let the Public Access User-Uploaded Content
I think by now you’ve read a few headlines about Ninth Circuit’s decision in UMG Recordings v. Shelter Capital, which is better known as the “Veoh case,” just before Christmas. Mostly, the headlines say something like: Veoh Dodges Universal Music’s Copyright Claims, or Universal Loses DMCA Lawsuit Against Veoh.
But when you read the opinion, you should be struck by two things that have nothing to do with Veoh. First, Universal Music wasn’t just trying to get some compensation from a specific video site–it was trying to put video sites out of business. There’s no other way to explain the strategic choices Universal Music made. Second, as a result, in part, of Universal Music’s choices, the Ninth Circuit has just made Viacom’s life a lot harder for its case against YouTube.
Understanding Universal’s Peculiar Legal Strategy
If you’ve been reading my blogs on the DMCA defense (mostly in connection with the Nashville lawsuit against Grooveshark), you know that, even after 12 years, there are several very basic unanswered questions about DMCA safe-harbor protection. Off the top of my head, the most significant are:
- What does it
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ReDigi Finale: Comparing Apples to Amazons (Part 20 in Our Online Music Services Series)
And Other Loose Ends.
This is going to be (I hope) the last post about the ReDigi situation, at least for a while. I’ll admit I got distracted by the RIAA’s little missive to ReDigi. I want to sum up and wrap up. First, the summing:
The Three Legal Obstacles to a Digital First-Sale Right
Looking over the five (!) previous posts about ReDigi, we see three obstacles to its legality:
- Do the consumers who wish to sell their digital singles actually own, or merely license, the music files? That’s what Vernor helps us answer, as discussed here.
- Is the First-Sale Doctrine limited to the same physical item that was the subject of the “first sale”? I discuss this question here and here.
- By what right can ReDigi make the temporary, intermediate copies necessary to transfer the song file? I discuss this issue here and here.
So. There. Now, let’s tie up a few loose ends.
What About Amazon?
When I first discussed whether ReDigi’s system could comply with Vernor (to answer the question of whether the potential sellers “own” the digital downloads), I focused exclusively on the iTunes Store license agreement. I did so … Read More»
