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»
Wherein I Explain My Behavior
I’ve been MIA from the Blog with No Name for a while. Sorry about that. I’ve been struggling with a guest blog, which might turn into a full-blown article, about why it was wrong, wrong, wrong for Nimmer on Copyright to so definitively change its position on the “making available theory of distribution” (a/k/a the question of whether just keeping copyrighted files in a file-sharing folder infringes the distribution right).*
* Spoiler/rant: It’s not because I support file sharing of copyrighted works. I don’t. And it’s not because Prof. Nimmer (being impersonated by Prof. Menell) is necessarily wrong. They make a fairly strong case (though with substantial holes). It’s that they aren’t necessarily right, either. The problem is that they aren’t necessarily right, either. Nimmer on Copyright is a treatise, probably the most authoritative treatise on copyright law, and practitioners pay a tidy sum for the privilege of accessing it. What we pay for is reliability and authority (with the latter flowing from the former). But only a crazy person would say, as Nimmer/Menell now do, that this question has been definitively answered, and a practitioner reading the revised section uncritically—and, again, we pay money … 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»
Part 1: Situation Normal: The Sky’s Falling
I’ve put off blogging about MegaUpload (“MU”) for several weeks now–too long, really–for a few perfectly good reasons. I’ve been busy. I’ve been sick. Mostly, though, although I can talk about the DMCA at length, I’m not super familiar with criminal procedure. I do, however, have some experience with FBI investigations, since sometimes a lawyer has to ask the Department of Justice to intervene in a criminal matter, and the FBI is usually pretty good about keeping you informed.
In the meantime, the dramatic events of January 20, when New Zealand authorities descended on the multi-million dollar pad of Megaupload founder Kim Dotcom (and cutting him out of a “safe room”*), is old news now. The fall-out has shaken out, with several music-sharing/locker services radically altering their business practices.
* What’s the point of a “safe room” if the police can still cut you out?
But I have been given a reprieve, because just a few days ago, the Department of Justice filed a superseding indictment against MU (which you can access here). It’s honestly not that big a deal, but I can pretend it’s significant enough to write a couple … Read More»
A Primer on the Most Notorious File-Sharing Case
Late Friday (July 22, 2011), the judge overseeing the Jammie Thomas-Rassett case again reduced a jury’s judgment against her to $2,250 per song, this time down from $62,500 a song, for 24 songs. This is the second time he has done so (and the third trial), and in theory, he could do so again and again, ad infinitum. A copy of his order is available here.
Several years ago, the RIAA adopted a strategy of directly suing the users of file-sharing software who used the software to download and distribute copyrighted music over the internet. The way this software typically works is that you create a public folder, which you fill with song files, that other users of the system can access and from which they can download copies of the song files. Most of the accused users settled with the RIAA, reportedly for a few thousand dollars each, but a few fought all the way to trial, arguing variously that file-sharing wasn’t technically a copyright violation, that they couldn’t be linked to the downloads in question, or (less plausibly) that it was a fair use.
One of these stubborn … Read More»