Categorize this as dog-bites-man news but since I’ve posted about the Tenenbaum case many times ($675k, More on Tenenbaum, More on the Tenenbaum Judgment, Tenenbaum Postscript, $.70 a Song, and Court Reinstates Tenenbaum Damage Award), and discuss it in class I’ll note that the U.S. Supreme Court, without comment, decided not to hear Joel Tenenbaum’s appeal in his music-piracy case. This is not the end of the case; the federal district court in Boston must decide whether to leave standing the jury’s award of $675,000 in damages to the recording industry.
This is a strange case whose longevity (it began in 2007) reflects its status as an ideological battleground over music piracy–however poorly chosen a field of battle it offers to file-sharing’s true believers.
Among the interesting legal issues raised by the U.S. Justice Department’s shutdown of Megaupload.com and criminal prosecution of its managers is whether those who used the site to store non copyright-infringing works will be able to retrieve their data. The government claims Megaupload’s legitimate data-transfer service was a front for systematic copyright-infringement, but there’s no claim that those engaged in legitimate uses were benefiting from or knowingly contributing to unlawful activity. So while the government prepares its case those legitimate users hang in limbo, unable to retrieve their data. The Electronic Frontier Foundation, with the support of Carpathia Hosting, is gathering information from those affected through megaretrieval.com and may initiate legal action to hasten the effort.
*not me personally.
For analysis of SOPA that focuses on its legal requirements critically but without hyperbole see “A Close Look at SOPA” by Jonathan Zittrain, Kendra Albert and Alicia Solow-Niederman.
While Congress considers passing legislation that imposes duties on ISP’s to monitor for and take affirmative steps to counter copyright infringement the European Court of Justice–the EU’s high court–held this week “that Internet service providers could not be required to monitor their customers’ online activity to filter out the illegal sharing of music and other copyrighted material.”
The First Circuit reinstated the jury’s $675,000 damage award to Sony BMG in its copyright infringement case against music-sharer Joel Tenenbaum, but the decision did not reach the merits of District Court Judge Nancy Gertner’s holding that the original award was so excessive as to violate Tenenbaum’s Constitutional right to due process. Instead the court ruled that before addressing the Constitutional issue Gertner should have used her power of remittur (“the procedural process by which a verdict of the jury is diminished by subtraction,” Black’s Law Dictionary, 5th Ed.*) to reduce the award, which would have given Sony the choice either to accept the reduced award or seek a new trial. Sony wins this round with a warning that the court or Congress may drop the other shoe.
*Old I know–it’s the edition I bought in law school. The current edition is the 9th.
RIAA file-sharing punching bag Jammie Thomas-Rasset lost for the third time, a Minnesota jury finding her liable on Wednesday for copyright infringement and ordering that she pay damages of $1.5 million. A 2007 jury trial resulted in a $222,000 RIAA damage award against Thomas-Rasset. She appealed, there was a retrial in 2009, and she lost again: liability for copyright infringement and $1.92 million in damages to the RIAA. The trial judge reduced that “monstrous and shocking” award to $54,000. The RIAA offered to settle for $25,000, Thomas-Rasset refused, and the RIAA tried its case again, which brings us back to Wednesday’s verdict. Thomas-Rasset’s counsel said she would appeal–to the federal judge who reduced the $1.92 million award.
“If file-sharing copyrighted songs is against the law, why is LimeWire still operating?” Students have asked this question countless times, and countless times I’ve answered it. There are no copyright police; copyright holders must pursue civil lawsuits to remedy claims of copyright infringement; they must prove their claims in court; civil litigation is slow. Some imagine that all a copyright holder need do to shut down a file-sharing site is to show the court a copy of the decision shutting down Napster. It’s not that simple, efficient, quick, or inexpensive.
Students can discard the question because yesterday a federal judge ordered LimeWire “to disable [its] ‘searching, downloading, uploading, file trading and/or file distribution functionality.'” This injunction does not end file-sharing, of course. It moves the RIAA’s focus to its next litigation target.
An Ars Technica story provides more information about the U.S Copyright Group’s litigation campaign against movie downloaders. As mentioned here in March (see Bit Torrent-ers Beware) the Group is the revenue-generating brainchild of a Virgina law firm. As reported by Ars Technica it’s a simple idea: identify downloads of an independent film, team up with film’s producers, sue the anonymous John Does for copyright infringement, subpoena their identities, agree to settle for short money (compared to going to trial), split the proceeds with the film’s producers, rinse, repeat. Ars Technica identifies the films and number of defendants named in the eight suits, all filed since January 2010 in D.C. federal court ; The Hurt Locker is the best-known. U.S. Copyright Group has sued over 14,800 defendants to date. If the plaintiffs obtained an average of just $500 per defendant (a number I pulled out of the thin air) they would gross $7.4 million. From where I sit $500 per defendant seems plausible–some John Does will remain unidentified, some won’t exist, some will be judgment-proof, but even so an average of $500 per defendant is not a ridiculous plug number. Whether the lawyers’ costs come off the top or not, and even if the costs are $100/defendant, the net would be about $6 million. Ars Technica plugs in larger numbers to calculate a settlement pot of close to $20 million. Whoever is closer, it’s real money.
A story in today’s Globe is a lock to appear in the coming academic year’s copyright law discussions. Titled “Pay to Play–Strict enforcement of copyrights jeopardizing live music in small venues,” the story addresses campaigns by Performance Rights Organizations (PROs)–ASCAP, BMI, and SESAC–to require coffeehouses, cafes, and other small dining venues to obtain performance licenses and pay licensing fees for live music on site. Venue owners claim the PROs are “aggressive” and “brusque” and are over-reaching: “Magret Gudmundsson, who until recently hosted a monthly acoustic open mike in her Middleborough cafe, Coffee Milano[, said] ‘I like having it here, but we’re not making any money from it and they wanted $332 a year. The town really needs something like this. They ruined it.’’ ASCAP has a different view: “‘They’re selling coffee for four dollars and they can’t afford a dollar a day for music? If they don’t think it’s worth it, that’s their choice. But I have to say that most people recognize that music is a value to their business. Every now and then we run into people that think, ‘I’m just a small little bar; they’re not going to sue me,’ and that’s a mistake. Frankly, once you’re on our radar we can’t let you go.’’’ Which reminds me, but not quite, of the Jackson Five song, Never Can Say Goodbye.*
In 1996 ASCAP’s sledgehammer tactics–or alleged sledgehammer tactics, if you prefer–created a public-relations nightmare, when it (in the Globe’s words) “attempt[ed] to collect licensing fees from the Girl Scouts for singing campfire songs.” Coincidentally, Legal Blog Watch points to a post on Overlawyered that asks why the Fox network’s high-school musical show “Glee” has failed to address copyright law, since “some of the activities depicted could result in some hefty fines.” Legal Blog Watch also mentions–and provides a link to a 1996 NYTimes article about–the ASCAP-Girl Scouts dustup. If you have any interest in music performance licenses, or would just enjoy reading about a PRO falling splat! on its face, the Times article is worth a look.
*Or maybe I Can’t Quit You, Baby
Discussing copyright law and file-sharing over the years I’ve lost track of how many times students have asked “what about Limewire? Why does it still exist?” The answer has always been “because a court hasn’t shut it down yet.” While a court still hasn’t enjoined Limewire from operating, it took a giant step in that direction yesterday. Federal district court Judge Kimba Wood (why didn’t may parents name me Kimba?) granted various of the plaintiff record companies’ motions for summary judgment in their four-year old copyright infringement suit against Limewire, ruling they had induced users’ copyright infringement and engaged in vicarious copyright infringement, among other things. The court also held Limewire’s founder Mark Gorton personally liable, saying he “directed and benefited from many of the activities that gave rise to LW’s liability.” The 57-page opinion is here. And I have the first post-semester case to include in the 2010-2011 version of my Internet Law Casebook.