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»
Also, There Really Is Such Thing as Copyright Inducement
Hot on the heels of the new and improved opinion in the Veoh case (discussed last time), we also have Columbia Pictures Industries, Inc., et al. v. Gary Fung & IsoHunt Web Technologies, Inc., another important 9th Circuit decision construing the major DMCA safe harbors. We’ve actually discussed the case before because it was—and as far as I am aware—the only case in which a service provider was found to have had enough “red flag” knowledge to be deprived of the DMCA safe harbor.
The Red-Flagged Sapsucker
I’ve said previously that “red flag” knowledge will be found only in extraordinary situations, and nothing since then has changed my mind. The problem is that “red flag” knowledge is clearly objective knowledge (in contrast to the subjective nature of actual knowledge). Lawyers are actually used to these standards, more classically stated as “knew or should have known.” In many cases, knowledge requirements are important, but even so, we don’t like to limit them to purely subjective … Read More»
One of my favorite conferences of the year is the Copyright Society of the USA’s Mid-Winter meeting. CSUSA is an excellent organization all around, but the Mid-Winter meeting is always a treat because it’s a smaller crowd, and we’re always in great places. This year it was Austin, Texas. So while I’ll admit that barbecue, tex-mex and live music largely dominated the conversations, we did occasionally talk about some copyright issues worth sharing. And some of the law getting made outside the United States are definitely worth taking a look at.
The recurrent copyright theme of the two-day event was pretty much, “What the f#*! is happening in Canada??” (And a special thanks to the brilliant Casey Chisick at Cassels Brock for summarizing all of this so well). Canada’s highest court issued 5 copyright opinions in two days last year. The Canadian Parliament amended and modernized their Copyright Act just a few weeks before. Here are a couple of things you really really need to know if you or your clients do business in Canada at all:
- Courts in the U.S. have been struggling with whether merely making copyrighted works available through a file-sharing site
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»
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»
Richard Posner LOLs a Bad Preliminary Injunction. But Does Anyone Get the Joke?
Is Richard Posner’s opinion in Flava Works v. Gunter (better known as the “myVidster” case) already a month old? For such an anticipated decision, it sure flew under the radar after a little bit of buzz. It’s already been pronounced something of a dud*, which is perceptive, if not entirely fair.
The decision was so anticipated because it was appealed from a lower-court opinion that, according to popular (but slightly erroneous) report, implied that merely linking to unauthorized material was an act of infringement (though there might be a DMCA safe harbor for that). The truth was only slightly less alarming: the lower-court decision held that merely framing content that is hosted elsewhere is an act of infringement.
To add to the drama, the appeal was heard by a panel that included one of America’s best known and highly regarded jurists, Richard Posner, whose copyright opinions were known to be somewhat erratic. Oh, and the copyrighted material in question? Hardcore porn*. That gets everyone’s attention.
* If it weren’t for porn, how much less would copyright and … Read More»
Unappreciated Joinder Is Playing a Decisive Role in BitTorrent Cases
Last time, I said that the real action in these BitTorrent cases (including the one we’re discussing, In Re BitTorrent Adult Film) is “joinder,” where multiple parties are placed on the same side of the “V” in a court case—in the BitTorrent cases, sometimes hundreds, thousands or even tens of thousands of parties are placed on the defendants’ side of the “V.” A plaintiff can try to “join” as many defendants as it wants, but courts have the power to split the defendants off into their own cases, a process known as “severance.”
It’s a relatively dull topic*, but it’s proving pivotal in the BitTorrent cases. Cases in which the defendants are severed are almost never re-filed.** At first, this might seem strange. The cases are not dismissed permanently. The plaintiffs just need to re-file against the defendants as separate, individual cases. And pay the $350 filing fee for each case.
* Which is fine with me because I’m a HUGE civil procedure nerd.
** Based on my own observations and anecdotal evidence. I’m not sure if anyone has been tracking all of these cases.
All for … Read More»
Dissecting a Remarkable Ruling
* The blog title is a reference to this Order of the Stick comic. (It’s safe for work, so long as you don’t read it out loud.)
Last time we surveyed the forces that lead to this recent extraordinary magistrate’s opinion. It was handed down May 1, but already it’s become notorious for its almost gleeful taking down of the four porn-industry rights-holding plaintiffs. The key is to read the snerk-inducing footnotes. Highlights include these gems:
Footnote 7, in which the concept of “moral high ground” is discussed:
Plaintiff K-Beech’s rambling motion papers often lapse into the farcical. In its papers, counsel for K-Beech equate its difficulties with alleged piracy of its adult films with those faced by the producers of the Harry Potter books, Beatles songs and Microsoft software, and compare its efforts to collect from alleged infringers of its rights to the efforts of the FBI to combat child pornography. In an ironic turn, the purveyors of such works as Gang Bang Virgins, explain how its efforts in this matter will help empower parents to prevent minors from watching “movies that are not age appropriate” by ensuring that viewers must
Are Pornographers Ruining it for Everyone? Identifying and Outing Anonymous Online Copyright Infringers
Judges: Courts Aren’t Litigation Clearinghouses
Last summer, I started to blog about mass-defendant bittorrent cases pending in Washington, D.C., some of which involved over 10,000 anonymous defendants. Since the plaintiffs didn’t know who the defendants were, but they did know to IP address to which a bittorrent was sent, they would sue the defendants as “John Doe,” then ask the court for permission to send subpoenas to the defendants’ internet service providers. The subpoenas would ask for the contact information of the subscriber who was assigned that particular IP address at that particular time.* In theory, the subscriber would be your defendant, or at least someone who knew the real defendant (e.g., a family member).
* Since most consumers are dynamically assigned an IP address by their ISP for each internet session, and that IP address will likely change from session to session, you need to know not only the IP address but also the exact time the IP address was being used.
Recall that the first hurdle that the plaintiff must clear is a request for early discovery. Normally, discovery in federal court can’t start until there’s been a conference among the parties’ lawyers, which is … Read More»
Part 2 (of 2): Welcome Nice Pinterest Users to the Bizarro World of Copyright and the Internet!
I’ll preface the rest of what I’m going to say by emphasizing that, although I’m a lawyer in this field (i.e., copyright and the internet), I’m not giving you legal advice here. A lot of this is reasoned speculation, but I could turn out to be wrong, and I don’t know your specific legal situation and speak to it. OK?
Is Someone Really Going to Sue Nice Pinterest Users?
How much should you worry if you’re using Pinterest? I suspect you don’t have that much to worry about. Unlike Napster, Pinterest isn’t threatening an entire livelihood here. Flickr has already done all the damage the internet is going to do to professional photographers, in a perfectly legal manner, by … Read More»