1. Who Owns the Goldmine? Bob Marley’s Missing Copyright

    The Mysteries of Copyright Ownership

    If there were a goldmine in your town—one that produced a worthwhile amount of gold every year and wouldn’t run out for many, many years—you’d probably expect any dispute about who owns it to have long since been resolved. It’s true that the folks who sell you real estate might not actually own it, which is why you buy “title insurance,” but real estate transactions are pretty well-recorded, so such awful surprises are pretty rare, which is why anyone would dare to offer “title insurance.” At a minimum, you wouldn’t expect two different people to be mining the gold without, you know, their coming to blows.

    But this sort of thing happens with copyrights and royalty streams with surprising frequency. It can be very difficult to tell who owns a copyright. Copyrights can be sold just like real or personal property can, but you don’t need to record the sale anywhere.* True, transfers of copyright have to be in writing, but many industries that deal with copyright—I’m looking right at you, music industry—suck at keeping records.


    Jamaica, where, apparently, they didn’t do paperwork in the 1960′s.

    Copyright ownership vests initially in the author, or maybe … Read More»

  2. 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»

  3. Tara’s Webinar “Content Wars” Now Available for CLE

    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!

  4. Universal Copyright Knowledge: No Red Flags for Veoh

    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»

  5. 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:

    1. What does it
    2. Read More»

  6. 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:

    1. 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.
    2. 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.
    3. 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»

  7. 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 … Read More»

  8. ReDigi RIAA ReDux: New Wine, Old Skins (Part 19 of Our Online Music Services Series)

    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.

    In its demand letter, the RIAA … Read More»

  9. 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»

  10. Copyright: Is it Fair Use? What What (in the Butt) vs. South Park

    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

    Read More»

Rick and Tara are experienced lawyers who have set out to serve clients in a new way. Rick's roots reach back to his Silicon Valley home, where he first developed his litigation-oriented practice before moving to Nashville in 2004. Tara got her start in the music publishing business in Nashville in 1998 and has used that experience to form the basis of her transactional law practice since graduating from law school in 2004.
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