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»
Tara’s webinar “Content Wars: A History of the Recent Battles Between Owners and Users of Intellectual Property” is now available. Tara delivered the webinar to the Tennessee Bar Association on June 27th. The presentation covers the last fifteen years of the copyright law behind the lawsuits, legislation, and every new online content delivery service to come down the pike, as well as thoughts about where the fight between content owners and users might be headed next. One hour of general CLE credit is available in Tennessee. The cost is $45.00 for members of the Tennessee Bar Association and $65.00 for non-members – a great bargain for CLE or for anyone wanting to catch up on what’s been going on in copyright!
Think the DMCA Is Outmoded? Complain to Congress, Not to the Courts
This is the second post on the recent Ninth Circuit opinion in the “Veoh case” (actually styled, UMG Recordings v. Shelter Capital). Last time, we focused on (marveled at, really) Universal’s surprising leading argument: that pretty much any website that makes user-uploaded content publicly accessible (with a probable exception for pure displayed text) is not covered by the DMCA safe harbor on grounds that the safe harbor covers only passive storage, not display, performance or internal copying. We also worried about the fate of user-created videos of cute kittens.
In this post, we’ll look at one of Universal’s two remaining arguments, which are much more conventional.
Recall that, to be eligible for the DMCA safe harbor governing user-provided content, the website must meet three general requirements: (1) a knowledge requirement (or, more accurately, an ignorance requirement); (2) a financial-benefit requirement (or, more accurately, a financial-non-benefit requirement); and (3) a notice-and-takedown requirement (which is intertwined with the first requirement*). Universal attacked both the knowledge and financial-benefit requirements.
* As we’ll see next time, it turns out all three requirements are intertwined with each other.
This … Read More»
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
December 2, 2011 by Rick Sanders | Category: Blawg, Blog, Online Music Series | Tags: #onlinemusicseries, Amazon, Apple, copyright, digital content, Eminem case, first sale, licensing, music, ReDigi, Vernor
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»
ReDigi Redux: Essentials of the Essential Step Defense (Part 16 of our Online Music Services Series)
Digital Content: Dumb Data or Clever Instructor?
I received so many comments on my ReDigi post that I need to write a couple of follow-up posts to address the good questions. This post and the next will focus on questions raised about the fact that ReDigi needs to make an intermediate copy of the song files, and the one after that will clean up some lingering issues about the first sale doctrine itself.
The Intermediate Copy
My last post was focused on the first-sale doctrine and the Vernor decision, but several people pointed out that, in order to transfer a music file from the seller to the buyer, ReDigi has to make at least one intermediate copy. It doesn’t matter ReDigi erases the seller’s copy of the file at the same time it makes a copy of the file on its own server–it’s still making a copy, and making a copy requires exercise of the reproduction right. See Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992). So, assuming ReDigi isn’t licensed* and assuming ReDigi may avail itself of the first-sale doctrine**, what defense might it have against a claim that this intermediate copy is an infringement?… Read More»
What Old Cases Don’t Teach us About New Tricks
In my last post, we started to look at the legal claims made by the RIAA in the demand letter it sent to ReDigi. We focused on the plain language and legislative history of the first-sale statute–banged our heads against it, really. I concluded that the statute is simply not equipped to resolve a situation in which a digital download is sold by its owner (under Vernor) by sending it to the buyer over the internet while simultaneously removing the song file from the seller’s storage.
The RIAA will argue that the statute’s failure means victory for it: if the first-sale statute does not specifically provide for digital transfers, then they must fall outside the statute’s scope. ReDigi will argue that the statute shouldn’t be so rigidly and technically applied. Its purpose is to facilitate re-sale (and re-transfer) of copies that had previously been sold. The only reason the statute seems so limited is that it was only codifying old case law, and the case law, by its very nature, couldn’t predict how the technology for re-transferring digital content would evolve.
ReDigi: Can the First-Sale Doctrine Ever Apply to Digital Downloads? (Part 18 of our Online Music Series)
The RIAA Strikes Back
So it turns out that the RIAA isn’t cool with ReDigi. So much for the maybe-they’re-secretly-licensed theory. You can read the RIAA’s demand letter to ReDigi here. It raises an issue I hadn’t considered before, so wrapped up was I in applying Vernor and the first-sale doctrine. RIAA questions whether the first-sale doctrine even applies in the first instance. If the RIAA is right, then my previous analyses about ReDigi’s right to the first-sale doctrine are cut off at the knees.
Warning: this is an unusually long post (even for me), but there was no way to split it up without ending with a misleading conclusion. In light of the controversy that ReDigi (and by extension your blogger) has gotten into, I thought it best to keep this as one long post rather than split it up.
The RIAA’s Legal Position
The RIAA’s logic goes like this. When you sell a music file over the internet, you aren’t selling the copy that’s actually resident on your computer (or wherever). You’re selling a copy that ReDigi made of your song. According to the RIAA, the first-sale doctrine applies only to the exact copy of a … Read More»
Welcome to Our Second Episode of “Is it Fair Use?”
This opinion by Judge J.D. Stadtmueller in Brownmark Films, LLC v. Comedy Partners is pretty close to priceless, dealing, as it does, with South Park’s send-up of the notorious “What What (in the Butt)” viral video sensation. Here’s how Judge Stadtmueller introduces the issues and the parties:
Federal lawsuits seldom touch on such riveting subjects and regard so many colorful parties as the present matter. The plaintiff, Brownmark Films, LLC (“Brownmark”), is the purported co-owner of a copyright in a music video entitled “What What (In the Butt)” (“WWITB”), a nearly four minute ditty regarding the derrière of the singer of the underlying work. The music video begins with an array of bizarre imagery – from a burning cross to a floating pink zeppelin – and only gets stranger from there. The heart of the video features an adult African American male ensconced in a bright red, half-buttoned, silk shirt, dancing, grinning creepily at the camera, and repeatedly singing the same cryptic phrases: “I said, what what, in the butt” and “you want to do it in my butt, in my butt.” Meanwhile, the defendants are the entities involved
September 28, 2011 by Rick Sanders | Category: Blawg, Blog, Online Music Series | Tags: #onlinemusicseries, Apple, consumer, eCommerce, Grooveshark, internet, licensing, market dynamics, music, Pandora, Spotify, streaming
Or, the Attractions (and Distractions) of Licensing
Spotify has been available in the United States for a few months now. Until the recent kerfuffle involving its Facebook integration, the reviews have been positive. If you review the features list with which we started this Online Music Services Series, you’ll see that Spotify comes as closer to giving consumers what they want than any other service. In fact, it’s not even that close:
- Portability: check: with Spotify Premium, you can listen to longs off-line and you gain access to Spotify’s mobile apps.
- On-demand: check: you can listen to any song you want to in either your or Spotify’s catalog;
- Music discovery: half-check: Spotify has a feature that allows others to share music with you, which should help you discover music you like, but nothing quite as robust as Pandora’s Music Genome.
- Extensive catalog: check: Spotify’s catalog has about 15 million songs.
- Low cost: half-check: Spotify Free has all of the features above except portability; for that, you need to shell out $9.99 a month, and you lose all access should your subscription expire.*
* If I were starting this series over again, I might have … Read More»