Yes, if You Hired Someone to Design it for You.
Remember when Second Life was all the rage? I’ll admit that my memory is a little hazy, but I swear it was a huge deal a few years ago. Anyway, it’s still around, with a new slogan: YOUR IMAGINATION, YOUR WORLD.* If you’re not familiar, Second Life is an interactive virtual world that emphasizes the creation of virtual lands, complete with topography, buildings, etc. Subscribers operate avatars that may move through and interact with these worlds.
* Judging from this promotional video: ALSO BOOBS. Seriously.
Subscribers can also purchase virtual land and “terraform” it—i.e., give it mountains, forests, buildings, beaches, caves—to their liking. These lands can be private—i.e., cut off except for those specifically invited—in which case they’re called “islands.”
In this post, I’ll be discussing a recent decision in a lawsuit about whether terraformed virtual “islands” are copyrightable. More practically, the lawsuit is an object-lesson how badly things can go when copyright is involved in what appears to be “just a business transaction.”
Prelude to an Accidental Copyright Dispute
A teacher (we’ll call her the Teacher) working for a particular school district (we’ll call it the District) … Read More»
May 30, 2013 by Rick Sanders | Category: Blawg, Blog | Tags: copyright, digital content, digital distribution, distribution right, file-sharing, internet, making available theory, Menell's Lost Ark, Nimmer
So, I’m talking about this article of mine that was kindly published by the Vanderbilt Journal of Entertainment and Technology Law (“JETLaw”). See part I here. The issue has to do with one of copyright law’s “exclusive rights”—i.e., things only the copyright owner and his or her authorized licensees may do with a copyrighted work—the right to distribute copies of the work to the public, which we’ll just call the “distribution right.” The question is whether the distribution right includes only consummated acts of distribution, or can also include attempts and offers to distribute.* Most (but not all) courts have held that the right is limited to consummated distributions, but rights holders would very much prefer the broader interpretation. The issue used to be academic, but with file-sharing, it matters now because it’s very difficult to detect consummated downloads**, but it’s easy to prove that the unlicensed works were “made available” for download on the file-sharer’s computer.
* Remember that the distribution right has an important exception: the first sale doctrine. Once you legally obtain a physical embodiment of the work, you may dispose of it as you see fit.
** Putting aside what I … Read More»
May 20, 2013 by Rick Sanders | Category: Blawg, Blog | Tags: copyright, digital content, digital distribution, distribution right, file-sharing, internet, making available theory, Menell's Lost Ark, Nimmer
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»
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»
April 3, 2013 by Rick Sanders | Category: Blawg, Blog, Online Music Series | Tags: #onlinemusicseries, consumer-technology disconnect, copyright, digital content, fair use, first sale, phonorecord problem, ReDigi, space shifting, Vernor
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»
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.
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»
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»
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»
September 19, 2012 by Rick Sanders | Category: Blawg, Blog | Tags: copyright, digital content, DMCA, economic theory, fair use, free speech, Google, internet, market dynamics, safe-harbor, secondary liability
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»
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»