Category Archives: Copyright Infringement

Nothing left to lose – the ongoing war on copyrights

Kris Kristofferson and Fred Foster once penned one of my favorite lyrics in the song Me and Bobby McGee, i.e., “freedom’s just another word for nothing left to lose.”  The sentiment is perhaps appropriate for the ongoing war that is being waged against copyright laws as we know them.  The latest battle in this war was fired by the esteemed Lawrence Lessig, famous lawyer and copyright scholar, in his new book Remix: Making Art & Commerce Thrive in the Hybrid Economy.  If Lessig has his way, the songwriter and music publisher will, indeed, have nothing left to lose.

Remix Lawrence Lessig The main goal of the book is the demolishment of existing copyright laws, which Lessig has described as Byzantine.  He believes our current copyright laws are futile, costly and culturally stifling. The "hybrid economy" is described by Lessig as one in which a “sharing economy” coexists with a “commercial economy.”  See this very humorous interview by Stephen Colbert.  He gives examples such as YouTube, Flikr and Wikipedia, which rely on user-generated "remixes" of information, images and sound to illustrate his point.  This “hybrid economy,” in Lessig-speak, is identical to what he calls a "Read/Write (RW)" culture — as opposed to "Read/Only (RO)" — i.e., a culture in which consumers are allowed to "create art as readily as they consume it."  Thus, the “remix” to which he refers is the concept of taking another persons copyrighted work and “making something new” or “building on top of it.”  This is what us less-published copyright lawyers like to refer to as a derivative work!  And that is the crux of Lessig’s problem:  the copyright law DOES in fact make provision for this type of creative endeavor, provided that the creator of the derivative work gains the permission of the copyright owner.  This is that with which Lessig seeks to do away.

In the Colbert interview, Lessig drolly points out that 70% of our kids are sharing files illegally and that the “outdated” copyright laws are “turning them in to criminals.”  This reminds me just a bit of what my Daddy used to tell me: just because everybody’s doing it doesn’t make it right!   Or, as Colbert blithely responded, “isn’t that like saying arson laws are turning our kids into arsonists?”  The obvious conclusion is that perhaps the law is simply not the problem.

Colbert then comically crosses out Lessig’s name on the cover of his his advance copy of Lessig’s book, draws a picture of Snoopy inside, and then questions Lessig as to whether the book was now his (Colber’t’s) work of art, to which Lessig says “that’s great,” we “jointly” own the copyright.  That’s a point to which Lessig’s publisher, Penguin Press, would surely not acquiesce.  In the final retort to Lessig, Colbert makes the point that he likes the current system, and I quote, “the system works for me.”  I might add that the system seems to be working extremely well for Lawrence Lessig as well.  Lessig is making a fortune exploiting the very system he criticizes as antiquated – the very essence of free speech, I suppose, but in the final analysis, a bit disingenuous.

While I do admire Professor Lessig for working toward a solution to a perceived problem, it’s very difficult to believe that tearing down the entire system of copyright laws in order to accommodate a large percentage of prepubescent teenagers who are too cheap to pay for their music is the appropriately measured response we need in this instance.   Call me crazy.

Here are several good critiques of Lessig’s work and ideas here for further exploration of this issue:

The Future of Copyright, by Lawrence B. Solum (download PDF from this page)

Lessig’s call for a “simple blanket license” in Remix, by Adam Thierer

Copyright in the Digital Age, by Mark A. Fischer

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Filed under Copyright Infringement, Digital Downloads, Entertainment Law, Internet Law, Life on the Row, Music Industry, Music Law, Music Row News

Thomas verdict vacated; new trial ordered

The trial in Capital v. Thomas was one of the first stories I began tracking over a year ago.  See Jury Awards RIAA $222,000 against Thomas:  My Thoughts on the Verdict and Jammie Thomas to appeal verdict in RIAA Litigation.  

Now, in a decision issued on September 24, 2008 – only eight days shy of the one-year anniversary of the verdict – Judge Michael J. Davis of the United States District Court in Minnesota, who heard the case originally, vacated the $222,000 verdict against Jamie Thomas in Capital v. Thomas and ordered a new trial.  Read the 44-page verdict.

Judge Davis found that he provided the jury with an erroneous instruction, Jury Instruction No. 15, which read:

The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown.

A fter reviewing case law in other circuits, Judge Davis reached the opposite conclusion in this memorandum and order, i.e. that “Liability for violation of the exclusive distribution right found in § 106(3) requires actual dissemination” and, therefore, the contrary assertion in the instruction substantially prejudiced the jury against Thomas.

In his opinion generally, the Judge Davis examined the reproduction right, the effect of MediaSentry’s involvement in the distribution,  the plain meaning of the term “distribution,” whether the term “distribution” is synonymous with the term “publication” under the Copyright Act, and whether a plaintiff has the exclusive right to authorize a distribution.

The Judge refutes the RIAA’s theory that making a copyright available for distribution violates Section 106(3) of the Copyright Act, which gives the owner the exclusive right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.”   Judge Davis examines the dictionary definition of the term “distribute,” other sections of the Copyright Act, and provisions of the analogous Patent Act, to arrive at the conclusion that “the term ‘distribution’ does not including making available and, instead, requires actual dissemination.”  The Court noted that if it had intended to include “making available” as one of the means of distributing a copyright, Congress would have specifically added the language as it had done in the Patent Act when Congress amended it to forbade “offers to sell.”

Judge Davis also refuted the Plaintiff’s argument that the definitions of “publication” and “distribution” under the Copyright Act are synonymous as incorrect.  His conclusion regarding this issue is worth quoting in its entirety:

The Court concludes that simply because all distributions within the meaning of §106(3) are publications does not mean that all publications within the meaning of § 101 are distributions. The statutory definition of publication is broader than the term distribution as used in § 106(3). A publication can occur by means of the “distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease or lending.” § 101. This portion of the definition of publication defines a distribution as set forth in § 106(3). However, a publication may also occur by “offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display.” § 101. While a publication effected by distributing copies or phonorecords of the work is a distribution, a publication effected by merely offering to distribute copies or phonorecords to the public is merely an offer of distribution, not an actual distribution. 

Congress’s choice to use both terms within the Copyright Act demonstrates an intent that the terms have different meanings. “It is untenable that the definition of a different word in a different section of the statute was meant to expand the meaning of ‘distribution’ and liability under § 106(3) to include offers to distribute.” Atl. Recording Corp. v. Howell, 554 F. Supp. 2d 976,
985 (D. Ariz. 2008). The language of the Copyright Act definition of  publication clearly includes distribution as part of its definition – so all distributions to the public are publications, but not all publications are distributions to the public.

Finally, in reaching its opinion that the jury verdict should be vacated because of the erroneous instruction, Judge Davis clearly states that it is not necessary to reach Thomas’ issue of whether the award was excessive (See page 40 of his opinion).  Nonetheless, he did indicate his leanings on this issue in dicta as follows:

The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer-to‐peer network cases such as the one currently before this Court. The Court
begins its analysis by recognizing the unique nature of this case. The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts. The myriad of copyright cases cited by Plaintiffs and the Government, in which courts upheld large statutory damages awards far above the minimum, have limited relevance in this case. All of the cited cases involve corporate or business defendants and seek to deter future illegal commercial conduct. The parties point to no case in which large statutory damages were applied to a party who did not infringe in search of commercial gain.

The statutory damages awarded against Thomas are not a deterrent against those who pirate music in order to profit. Thomas’s conduct was motivated by her desire to obtain the copyrighted music for her own use. The Court does not condone Thomas’s actions, but it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market. Cf. Lowry’s Reports, Inc. v. Legg Mason, Inc., 271 F. Supp. 2d 42 737, 741‐42 (D. Md. 2003) (describing defendants as a “global  financial‐services firm” and a corporation that brokers securities). While the Court does not discount Plaintiffs’ claim that, cumulatively, illegal  downloading has far‐reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs ‐ the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000 – more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs.  While the Copyright Act was intended to permit statutory damages that are larger than the simple cost of the infringed works in order to make infringing a far less attractive alternative than legitimately purchasing the songs, surely damages that are more than one hundred times the cost of the works would serve as a sufficient deterrent.

Thomas not only gained no profits from her alleged illegal activities, she sought no profits. Part of the justification for large statutory damages awards in copyright cases is to deter actors by ensuring that the possible penalty for infringing substantially outweighs the potential gain from infringing. In the case of commercial actors, the potential gain in revenues is enormous and enticing to potential infringers. In the case of individuals who infringe by using peer‐to‐peer networks, the potential gain from infringement is access to free music, not the possibility of hundreds of thousands – or even millions – of dollars in profits. This fact means that statutory damages awards of hundreds of thousands of dollars is certainly far greater than necessary to accomplish Congress’s goal of deterrence.

Unfortunately, by using Kazaa, Thomas acted like countless other Internet users. Her alleged acts were illegal, but common. Her status as a consumer who was not seeking to harm her competitors or make a profit does not excuse her behavior. But it does make the award of hundreds of thousands of dollars in damages unprecedented and oppressive.

One issue I note in this dicta by Judge Davis is that statutory damages, as provided in the Copyright Act, were not necessarily intended only as a deterrent, but also were established because it is sometimes difficult to determine the value of an intellectual property.   This does not, however, negate his primary point that a factor of 100x the actual damages might have been a more reasonable award than 500x the actual damages. 

Expect to hear more about this case as the new trial unfolds.

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Second Circuit gets it wrong in Cartoon Network v. Cablevision

On August 4, 2008, the Second Circuit court of appeals overturned a lower courts opinion that Cablevision’s Remote Storage” Digital Video Recorder (“RS-DVR”) system violated the Copyright Act by infringing plaintiffs’ exclusive rights of reproduction and public performance.  The full 44-page opinion is available at Cartoon Network, LLP, et al. v. Cablevision.  In my humble yet fully animated opinion, the Second Circuit’s opinion was not at all well reasoned nor, for that matter, even common sense — I believe it misinterprets at three very important areas of the Copyright Act and interpretation thereof:

When is a work “Fixed” According to Section 101

Through a system of buffers, Cablevision’s RS-DVR will allow customers who do not own stand alone DVR’s to record programming, which resides on Cablevision’s servers, and “time-shift” it to view it at a later date.  Certainly a great concept, but one which, in my opinion, should require authorization from the owners of the copyrights. 

In arriving at its conclusion, the court determined that the buffer used to process the steam of data only “copies” the data for a duration of 1.2 seconds, before transferring it to another buffer used to reconstruct a copy of the program for any customer who has asked to view it at a later time.  The court concluded that this “embodiment,” i.e. the copy, was transitory in duration and therefore not “fixed” pursuant to Section 101 of the Copyright Act.  Therefore, the copyright owners’ right of reproduction was not violated.  This is clearly erroneous reasoning:

The definition of “fixed” in Section 101 of the Copyright Act states, in its entirety:

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

In arriving at its determination, the Second Circuit focused on its condensed version of the definition, i.e. a work is “fixed” when its embodiment “. . . sufficiently permanent or stable to permit it to be . . . reproduced . . . for a period of more than transitory duration.”  The court concluded, based on this shortened version of the definition, that the “language plainly imposes two distinct but related requirements, i.e. an “embodiment requirement” and a “duration requirement.”

The Second Circuit’s error is grammatical in nature:  it misinterprets the language of the definition of “fixed” by assuming that the phrase “for a period of more than transitory duration” modifies the words “permanent or stable” when in fact it actually modifies the antecedent phrase “permit it to be perceived, reproduced or otherwise communicated.”  This is certainly the case with regard to the RS-DVR – it fixes the copies for in sufficiently permanent state in one buffer (i.e. the 1.2 seconds) to permit them to be reproduced in another buffer for a period of more than transitory duration.  Thus, the court got it wrong.

Without getting into too much detail, the court also incorrectly analyzes a 9th Circuit cases, MAI Systems and its progeny which correctly apply the definition of fixed to a copy of a work created in RAM memory for a period of minutes.  The effect of this misinterpretation is to put legal practitioners in the precarious position of trying to determine at what point between 1.2 seconds and 2 minutes does a reproduction arrive at a “more than transitory” state.

Ironically, the Second Circuit ignores the U.S. Copyright Office’s analysis of this precise issue in its 2001 report on the Digital Millennium Copyright Act which elaborated that a work was fixed “unless a reproduction manifests itself so fleetingly that it cannot be copied, perceived or communicated.”  This clarification is in line with my earlier interpretation that the phrase “more than transitory in duration” modifies the communication or perception, not the embodiment itself.  The Second Circuit stated that, in its mind, the U.S. Copyright Office’s interpretation “reads the ‘transitory duration’ language out of the statute.”  To the contrary, however, it is the correct interpretation in that it incorporates the transitory duration requirement into the appropriate section of the definition.

Finally, the Second Circuit completely ignores the last sentence of the definition, to wit:  A work . . . is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.”  In this instance, the court readily admitted that an unauthorized copy of the work was stored, i.e. “fixed” on Cablevision’s servers simultaneously with its transmission.

When is an infringer not an infringer?

In extending recent trends by some circuits to weaken the strict liability component of the Copyright Act, the Second Court refused to find that Cablevision was a direct infringer.  Instead, it rules that the customer is the direct infringer in this instance of digital recording, showing his or her intent to make a copy when he or she presses the record button on the remote.  The court reasons as follows:

In this case . . . the core of the dispute is over the authorship of the infringing conduct.  After an RS-DVR subscriber selects a program to record, and that program airs, a copy of the program–a copyrighted work–resides on
the hard disks of Cablevision’s Arroyo Server, its creation unauthorized by the copyright holder. The question is who made  this copy. If it is Cablevision, plaintiffs’ theory of direct infringement succeeds; if it is the customer, plaintiffs’ theory fails because Cablevision would then face, at most, secondary liability, a theory of liability expressly disavowed by plaintiffs.

Emphasis mine.  The first thing to note about the court’s conclusion is that it realizes, right off the bat, that the copy created on the servers of Cablevision is an infringement.  In its mind, however, the only question is who made the copy.  Now, that, of course, flies directly in the face of a host of copyright concepts which I will not address here, but suffice it to say that this is problematic.

But, for the moment, let’s just examine how the court ultimately determines who had the “volition” to infringe in this specific case:

There are only two instances of volitional conduct in this case: Cablevision’s conduct in designing, housing, and maintaining a system that exists only to produce a copy, and a customer’s conduct in ordering that system to produce a copy of a specific program. In the case of a VCR, it seems  clear–and we know of no case holding otherwise–that the operator of the VCR, the person who actually presses the button to make the recording, supplies the necessary element of volition, not the person who manufactures, maintains, or, if distinct from the operator, owns the machine. We do not believe that an RS-DVR customer is sufficiently distinguishable from a VCR user to impose liability as a direct infringer on a different party for copies that are made automatically upon that customer’s command.

The court then continues its analysis by example, offering the examples of a retailer who owns a photocopier and rents it out to the public as reinforcement of its conclusion, finding that because the retailer would not be liable for infringement, neither should Cablevision.   Despite the fact that there is case law holding that such a retailer WOULD, in fact, be liable for infringement, the Second Circuit errs in failing to see the difference between a VCR in the analog world, a single, stand-alone device used express by the customer, and a process devised by a company which makes infringement as simple as pressing my record button on my remote.  The court does not find this a “sufficient” distinction.  The court’s error in logic is apparent in this prose when it examines a 6th Circuit case on the issue:

In determining who actually “makes” a copy, a significant difference
exists between making a request to a human employee, who then volitionally operates the copying system to make the copy, and issuing a command directly to a system, which automatically obeys commands and engages in no volitional conduct.

Is this 2001 Space Odyssey?  Did H.A.L. take over when I wasn’t looking?  Who programmed the system?  

If this were not enough, the Second Circuit then performs a great deal of legal gymnastics to support its finding:  First, it examines the video on demand process to illustrate that Cablevision does not have control over the transmissions being recorded by the subscribers in the RS-VCR system.  Are they for real?  Ever heard of apples and oranges.  The VOD system is a fully licensed process which is, dare we say it, nothing like the RS-VCR system.  Secondly, the Second Circuit uses the distinction between “active” and “passive” infringement under the Patent Act to jump to the almost humorous, if it weren’t so wrong, conclusion that:

If Congress had meant to assign direct liability to both the person who actually commits a copyright-infringing act and any person who actively induces that infringement, the Patent Act tells us that it knew how to draft a statute that would have this effect.

Every intellectual property attorney worth his or her salt knows that the Copyright Act and the Patent Act are very limited in their usefulness for purposes of using one to interpret the other.  That’s why it’s said that the Copyright Act is a strict liability statute, whereas, the Patent Act is not so much.

When is work “publicly performed”?

The final error committed by the court is in its analysis of whether the buffered copy delivered to individual customers was “publicly performed.” In this regard, the Second Circuit concluded:

under the transmit clause, we must examine the potential audience of a given transmission by an alleged infringer to determine whether that transmission is “to the public.” And because the RS-DVR system, as designed, only makes transmissions to one subscriber using a copy made by that subscriber, we believe that the universe of people capable of receiving an RS-DVR transmission is the single subscriber whose self-made copy is used to create that transmission.

Again, the Second Circuit has to do a hatchet job on the definition of “public performance” in order to arrive at this convoluted conclusion.  The definition of “public performance” in the Copyright Act is actually found in the “publication” definition of Section 101.  It states, in its entirety:

To perform or display a work “publicly” means — 

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Emphasis mine.  Whereas the Second Circuit zeroed in on the phrase “to the public” in making its determination, the definition clearly intends to define public performance as any process that allows the public, in general, the ability to receive the transmission, whether or not it is in the same place or the same time.  Its not very difficult to see the fallacy of the Second Circuit’s reasoning.   The Cablevision RS-DVR clearly does precisely what the definition anticipates, it creates multiple copies stored in the buffers for individual subscribers in multiple places, who then view the (buffered) transmissions at different times. 

While this seems simple, the Second Circuit jumps through numerous irrational hoops to arrive at the idea that:

the transmit clause directs us to identify the potential audience of a given transmission, i.e., the persons “capable of receiving” it, to determine whether that transmission is made “to the public.”

Nothing in the statute dictates this conclusion, to the contrary, the legislators probably thought that the word “public” was generic enough to not need interpretation. 

The effect of this ruling, at least for now, is that anyone can make digital copies of any copyrighted work on their servers for purposes of transmitting to an individual customer, so long as that individual customer makes a request for it, and there is no implication of the performance rights.

This is a fine example of a court “reasoning” the meaning completely out of a statute. 

Conclusion

If it is not obvious by now, I think this is one of the most poorly reasoned and drafted opinions by a Circuit Court that I have read in a long time.  If there is a bright side, it is that the effect of this decision is primarily that it overturns the grant of a summary judgement by the lower court.  From a broader perspective, however, and the more unfortunate result is that, because of the concept of stare decisis, this reasoning can now be cited in other cases in other jurisdictions across the country as good law.  So, unfortunately, we entertainment attorneys will be dealing with the negative impact of this decision for some time to come, until perhaps some higher court, in this case the Supremes, decides to rectify it.

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All that glitters is not gold – tips on analyzing a songwriting/band contest

When is the last time you heard of someone getting a really “big break” in the music industry through any contest, other than perhaps American Idol?  That’s because most artists and songwriters are not discovered through contests, they are discovered through relationships in the industry. 

Yet, there are literally hundreds of such contests out there promising thousands of dollars in prizes or a opening slot for a well-known band, or a recording label or songwriting deal — everything but the kitchen sink! 

I don not, by any means, mean to say that all contests are rip-offs.  There are, in fact, many legitimate contestsSongwriters_And_Poets_Critique in which songwriters and entertainers may participate.  I do mean to recommend, however, that you do a bit of research and exercise some good judgment prior to sending your submission off into the digital divide.

First, there are some very simple questions to ask yourself initially as you examine these “one in a lifetime opportunities.  Look at the source or sponsor of the contest.  Often times, their reputation proceeds them.  Have you ever personally heard of the contest sponsor?  What are the credentials of the sponsoring entity?  Have you read about them in any public forum such as a magazine, news article, or online resource?  What successes have they achieved in songwriting and/or the music industry, if any?  Who are the judges?  What are their credentials.  Are there any major advertising sponsorships associated with the contests?   What are the prizes?  Are they substantial?  Answers to most, if not all, of these questions can be derived through a simple online search.

Let’s say you’ve done all of the above research and determined that the contest is sponsored by none other than MTV?  To most songwriters and artists, there could be no greater sponsor than MTV, correct?  But before acting too hastily, let’s move into the second phase of analysis, i.e., taking a look at the RULES.

Now, assume that you determined that since MTV was the sponsor, it must be a great opportunity, so you jump right in with both feet, or in this case, your best demo tape!  A chance to open for a great headline act is waiting for the lucky winner!  Unfortunately, if you did not read the fine print, you just agreed to the following:

release and hold harmless Sponsor Entities against any and all claims, injury or damage arising out of or relating to participation in this Contest and/or the use or misuse or redemption of a Grand Prize and for any claims based on publicity rights, defamation, invasion of privacy, copyright infringement, trademark infringement or any other intellectual property related cause of action. . . . (emphasis added)

This language comes straight from the rules and regulations in a ongoing “Rock the Revolution” contest sponsored by mtv2.com.  See the Rules and Regulation page.  This is typical hold harmless clause, which effectively negates any rights or claims you may have otherwise had to bring a civil action against MTV in the event that you are injured as a result of the contest.

In addition, MTV also states in their terms of agreement that:

The approximate retail value (the “ARV”) of the Grand Prize is $150.00. Any difference between the ARV and the actual value, if any, will not be rewarded. If, for any reason, the Grand Prize related event is delayed, cancelled or postponed, MTV reserves the right, but is not obligated, to cancel or modify the Contest in its discretion and may award a substitute prize of equal or greater value.

This effectively means that you could end up getting only $150 as the “grand prize winner” if the concert is canceled for any reason by the headlining act.  A corollary effect  net effect is that, at most, your damages in a civil lawsuit probably would be limited to $150, the agreed retail value (i.e., by agreeing to their terms, you and MTV agreed to this amount).

Finally, by simply clicking the “I Agree” button on your web browser without first reading the fine print, you also agreed to grant MTV a non-exclusive right, among other things, to record your submission by virtue of the fact that you are a finalist?  See this clause from a real contest:

Finalists and Winner agree that by entering into this Contest they are granting  MTVN. . . the non-exclusive, irrevocable right and license to exhibit, broadcast, copy, reproduce, encode, compress, encrypt, incorporate data into, edit, rebroadcast, transmit, record, publicly perform, create derivative works of, and distribute and synchronize in timed relation to visual elements, the Submission Materials and/or any portions or excerpts thereof, in any manner, an unlimited number of times, in any and all media, now known or hereafter devised, throughout the world, in perpetuity. . . .

While this is non-exclusive license, meaning that you can issue other non-exclusive licenses to third parties, it does give MTV pretty broad rights to use your submission in almost any form they want.  This doesn’t necessarily mean that you shouldn’t participate in this contest, it is just something you should certainly understand and use in weighing your decision.

Believe it or not, this grant is pretty tame compared to the language of other contests I have reviewed for clients.  I’ve seen situations where a contestant ostensibly assigns the copyright in a song submitted for a contest to the sponsor.  So beware.  Make sure there is something in the rules that indicates that you are not transferring any rights or licenses in the submission.

These are just few examples of some of the lawyerly devices that can be utilized in the rules and regulations of a contest, particularly an online contest which a “click agreement” in place.  Before you submit your intellectual property, it is probably worth the money to pay a few hundred dollars to an entertainment attorney to advise you as to what the legal ramification are for you and/or your band.

 

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Hey, what’s the big idea? Protecting your ideas when submitting them to a third party.

One question clients often asked me is whether an idea can be protected.  The question frequently arises when a client has an idea for a screenplay, or an outline for a story, or a unique title for a song or book, and wishes to submit or  “pitching” that idea to a major movie house, publisher or record company.  While it is fairly common knowledge that an “idea” cannot be copyrighted, it is important to know that there may be certain types of protection be available for the intellectual properties contained in such a proposal pursuant to current laws, specifically trademark and copyright laws.  This article analyzes and summarizes your rights under each of these two areas of law and offers suggestions for protecting your legal rights when “pitching” ideas.

    Protection Under Trademark Law

Titles and names may be entitled to trademark protection at both the state and federal levels by anyone claiming a right to use such a title or name in connection with certain specified trades or services.   These types of marks are commonly designated by use of the “™” and “®” symbols, indicating respectively that registration of the mark has been applied for and registered on the Primary Register.  To be entitled to use these symbols in respect to a mark, a person must apply for and receive a federal or state trademark.

In most states, a state trademark can be applied for in the Secretary of State’s office.  The application is a simple form and payment of a nominal fee is required.  Protection at the state level is, however, somewhat more geographically limited than that of a federal mark.  The application process for a federal mark is much more tedious, complicated and costly than that of the state trademark process.  In addition to legal fees which will, most likely, be incurred, the application fee for each international classification of goods and services is $325.

     Protection Under Copyright

As stated earlier, with regard to copyright law, and speaking very generally, an idea, in and of itself, is not entitled to copyright protection.  Rather, it is the expression of an idea that can be copyrighted.[1]

It is not always clear from the case precedents, however, when an idea becomes developed enough to rise to the level of an “expression.”  Some examples of expressions of ideas that have been protected are a screenplay similar to the old television series A-Team,[2] an employee survey regarding employee satisfaction,[3] and a particular section of categories appearing on a form for collecting baseball pitcher statistics.[4] On the other end of the spectrum, courts found that (1) a manual of operation for patented leaching system. [5] and (2) the addition and arrangement of facts to legal opinions [6] were not protectible expressions of ideas.  The only general rule that can seemingly be extracted from this convoluted line of cases is that the more an expression diverges from the mere recitation of raw facts, the closer it gets to expression, as that the courts legally recognize that term.

    Is your Idea Literary or Business in Nature

There is another, albeit tangential issue which is relevant and should be briefly discussed here, i.e., whether an idea is literary or business in nature: 

Literary ideas are those that, upon development, would become literary property and hence clearly eligible for copyright protection.  Literary ideas include ideas for motion pictures,[7] radio programs,[8] and television programs.,[9]

Business ideas, on the other hand, even when fully developed, may not be copyrightable. ,[10]  Business ideas are those that relate to methods of conducting businesses, such as bank night in theaters,[11]contests, [12]and credit rating systems.[13] Here again, however, the more an idea, even a business idea, departs from mere factual recitation, the more it is likely to be considered literary, and therefore entitled to protection under copyright law.

    When does an idea rise to the level of expression?

So, let’s now return to the primary issue of when an idea rises to the level of an expression entitled to copyright protection?

In their attempts to deal with the dilemma, courts have created a body of case law which attempts to strike a middle ground between the comprehensive protection of copyright on the one hand, and the complete denial of any legal protection for ideas on the other.  I will attempt to delineate and evaluate some of the legal theories on which a person may be able to rely to render an idea legally protectible, the underlying tort theory of which is known in legal circles as “idea misappropriation.” 

In brief, the elements for a claim of idea misappropriation are, first, the idea must be novel and concrete, and, second, there must be a legal relationship between the parties, whether by an express contract, a contract implied-in-fact, a quasi-contract, or a fiduciary relationship.[14]

    Novel & Concrete Element

In instances where they have dealt with the protectibility of an idea, the courts hold the plaintiff to a greater burden of proving not merely that the idea is original (as in copyright protection) but that it is actually novel,[15] i.e., “not formerly known; of a new kind.”[16] This standard is, for most courts, a great standard to meet than that required by copyright, i.e., that a work be original – although some courts do confusingly use the terms interchangably.

The second component of the first prong, “concreteness,” in essence requires that an idea be sufficiently developed so as to constitute “property.”  By its very nature, this requirement is intentionally vague, allowing the courts great flexability in applying it.  One court described the concept as follows

    while we recognize that an abstract idea as such may not be the subject of a property right, yet when it takes upon itself the concrete form which we find in the instant case, it is our opinion that it then becomes a property right subject to sale.[17]

This is, as pointed out, a rather vague element.  This is sort of like how U.S. Justice Potter Stewart described hard-core pornography in Jacobellis v. Ohio, i.e., it’s difficult to define, but “I know it when I see it.” So, in short, the more developed an idea becomes, the further it goes toward dispelling any doubt as to whether the idea is “concrete.”

    Legal Relationship Requirement

The second prong of the test, i.e., the legal relations prong,  can complicate matters when it comes to submitting an idea to a third party.  Whether a legal relationship exists between the parties depends, as does everything in law, on countless fact scenarios to the degree that one small change in a fact pattern can affect the outcome of interpretation. 

Most often, clients “pitch” their ideas to a third parties for consideration in hopes that they will take the idea and “run with it.”  But in such instances, it is important to be aware that the method by which an idea is submitted can directly impact whether or not there is a legal relationship.

A non-disclosure and confidentiality agreement with a publisher, for example, would create such a relationship beyond any doubt.  This is one end of the spectrum.  This method can easily be dispensed with since it is difficult enough to get a publisher’s attention, for example, much less without the added complexity of having to get their legal department involved. Most people will likely submit the idea directly to a publisher, either with or without permission, without any such NDA, or they will submit the idea through an agent of some sort.  Each of these variations result in different treatment.

For example, courts have held that if an idea is submitted without solicitation and without advance warning, the idea is not protectible, even if it later turns out to be valuable.[18] There is one variation of this fact pattern, however, where one might successfully argue that an implied contract results because of an implied solicitation by the idea recipient. This occurs where the recipient is engaged in a trade or industry (such as the entertainment or publishing industry) that, by custom, purchases ideas of the type submitted. A book or music publisher, as an idea recipient, makes a continuing offer to pay for any submitted ideas that it elects to use. Thus, an unsolicited submission is not an offer that necessarily requires further conduct by the publisher to establish an acceptance, but rather can be viewed as an acceptance of the publisher’s implied continuing offer. Although no court has expressly recognized this theory, courts have implicitly adopted it by recognizing an implied agreement based upon custom where such a factual pattern can be established.[20] I caution in advance, however, that this is a minority opinion, not expressed by the majority of courts.

Some courts, particularly but not exclusively those in California, imply an affirmative duty on the part of a publisher to reject an unsolicited submission or else the legal relationship is created – hence the practice of most publishers to advertise “no unsolicited submissions.”  Under this so-called “failure to reject” theory, any means of notice that gives the publisher some sort of advance warning of, and an opportunity to prevent, a proposed idea submission is sufficient to establish an implied contract if the recipient then permits the submission to be made. 

Thus, the following examples may create such an affirmative obligation on the part of the publisher: (1) enclosing the proposed idea in a sealed envelope accompanying an unsolicited transmittal letter that explains that the contents of the sealed envelope contains such a submission, or (2) a series of two unsolicited letters, the first explaining the intended submission and the second in fact containing the idea to be submitted. [20]

If a publisher specifically requests the submission of an idea, a legal relationship is clearly established creating an obligation to pay the creator if the idea submitted is used. [21]   So finding a creative way to solicit a request from a publisher is also a very good means of securing protection for you idea.

Finally, it may come as no surprise that utilizing the services of a agent will help protect your ideas.  It may be inferred that the recipient of an idea submission has knowledge of an expectation of payment for the idea when the submission is arranged by a person whose known occupation is that of representing idea purveyors, such as a book or movie agent. “This fact alone must have indicated to [the recipient of an idea submission] that the persons whom the agent brought together with him were not social callers.” Donahue v. Ziv Television Programs, Inc. 54 Cal. Rptr. 130, 138 (Cal. App. 1966).

    Conclusion

As you can clearly see, the question of whether an idea can be protected is not an easy one to answer in any specific situation because the answer depends so heavily on the individual fact pattern of each case.  Although it may not be apparent from its length, this article in no way exhausts the body of legal information and case law that exists with regard to the protectible nature of an idea.   Therefore, if you have questions concerning this issue, please contact a respected entertainment attorney.

Having stated this, with regard to submission of ideas in general, the following are recommendations that can be followed:

    (1)    First, trademark all slogans, titles or name, at the very least your state level, but preferably at the federal level;

    (2)    Make sure the idea is as fleshed out as it can be, i.e. as “concrete” as possible.  Rather than a mere outline, insert summaries of each bullet point.  Then, flesh out selected points, e.g., create a summary of each chapter of a particular example book, or maybe even two or more examples of each.  Then, create a few complete chapters of a books, for example;

    (3)    Mark everything confidential and, in addition to the copyright notice generally included, add the phrase “All rights reserved” after it.  The copyright notice and your intent to be the owner of the copyright should be clearly indicated in the beginning of the correspondence;

    (4)    Attempt to procure an agent, and ask if the agent is willing to enter into a non-compete and confidentiality agreement;

    (5)    As an alternative to paragraph (4), solicit the publishers by telephone or in some other general fashion, preferably with written followup, to encourage them to “solicit” the work in advance; and

    (6)    As an alternative to paragraphs (4) and (5), place your idea submission in an envelope, draft a summary cover letter explaining that this is the submission of a copyrighted idea and that by opening the envelope, they are agreeing to the confidentiality and non-disclosure of the submission and further, agree to pay for it if they decide to use it.

While these ideas may not be “iron-clad,” they will go a long way toward establishing the necessary elements of an idea misappropriation claim.

 

[1] 17 U.S.C. §  102(b) . See e.g., Holmes v. Hurst, 174 U.S. 82 (1899); Kalem Co. v. Harper Bros., 222 U.S. 55 (1911) ; Dymow v. Bolton, 11 F.2d 690 (2d Cir. 1926) ; Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930) ; Dellar v. Samuel Goldwyn, Inc., 150 F.2d 612 (2d Cir. 1945) ; Gaye v. Gillis, 167 F. Supp. 416 (D.C. Mass. 1958 ). This was also the rule under common law copyright. Fendler v. Morosco, 253 N.Y. 281, 171 N.E. 56 (1930) ; Weitzenkorn v. Lesser, 40 Cal.2d 778, 256 P.2d 947 (1953) ; Desny v. Wilder, 46 Cal.2d 715, 299 P.2d 257 (1956) ; Ware v. Columbia Broadcasting Sys., Inc., 61 Cal. Rptr. 590, 155 U.S.P.Q. 413 (Cal. App. 1967).[Back]

[2]Ernest Olson, V. National Broadcasting Company, Inc., 855 F.2d 1446 (9th Cir. 1988).[Back]

[3]Gallup, Inc. V. Talentpoint, Inc., 2001 U.S. Dist. LEXIS 18560; 61 U.S.P.Q.2D (BNA) 1394 (M.D. PA. 2001).[Back]

[4]George L. Kregos v. Associated Press and Sports Features Syndicate, Inc., 937 F.2d 700; 1991 U.S. App. Lexis 12113; 19 USPQ2d (BNA) 1161; Copy. L. Rep. (Cch) P26,744 (Ct. App. 2nd Cir. 1991).[Back]

[5]Presby Construction, Inc., v. Normand Clavet, et al, 2001 DNH 210; 2001 U.S. Dist. LEXIS 20951; 61 U.S.P.Q.2D (BNA) 1184 (Dist. NH 2001).[Back]

[6]Matthew Bender & Company, Inc., et al v. West Publishing Co. et al, 158 F.3d 674; 1998 U.S. App. LEXIS 30790; 48 U.S.P.Q.2D (BNA) 1560 (App. Ct. 2nd Cir 1998). [Back]

[7]Desny v. Wilder, 46 Cal.2d 715, 299 P.2d 257 (1956).[Back]

[8]Stanley v. Columbia Broadcasting Sys., 35 Cal.2d 653, 221 P.2d 73 (1950).[Back]

[9]Stone v. Goodson, 8 N.Y.2d 8,200 N.Y.S.2d 627 (1960).[Back]

[10]This exclusion also applies to scientific ideas.[Back]

[11]Affiliated Enterprises, Inc. v. Gruber, 86 F.2d 958 (1st Cir. 1936).[Back]

[12]Lewis v. Kroger, 109 F. Supp. 484 (S.D. W.Va. 1952).[Back]

[13]Burnell v. Chown, 69 Fed. 993 (N.D. Ohio 1895).[Back]

[14]See Kienzle v. Capital Cities/American Broadcasting Co., Inc. , 774 F. Supp. 432, 436 n.8, 438 n.13 (E.D. Mich. 1991) (Treatise cited). McGhan v. Ebersol, 608 F. Supp. 277, 284 (S.D.N.Y. 1985) (New York law). [Back]

[15] Noble v. Columbia Broadcasting Sys., 270 F.2d 938 (D.C. Cir. 1959) ; Santilli v. Philip Morris & Co., 283 F.2d 6 (2d Cir. 1960) ; Stevens v. Continental Can Co., Inc., 308 F.2d 100 (6th Cir. 1962) ; Pittman v. American Greeting Corp., 619 F. Supp. 939 (W. D. Ky. 1985) ; Downey v. General Foods Corp., 31 N.Y.2d 56, 286 N.E.2d 257 (1972) (no promise to pay for an idea will be implied or enforced if the idea is not both novel and original).[Back]

[16]Webster’s New Int’l Dictionary (2d ed.) 1670.[Back]

[17]Williamson v. N.Y. Central R.R., 16 N.Y.S.2d 217, 258 App. Div. 226 (1939) ; Bailey v. Haberle-Congress Brewing Co., 193 Misc. 723, 85 N.Y.S.2d 51 (1948 ) ; Masline v. New York, New Haven and Hartford R.R., 95 Conn. 702, 112 Atl. 639 (1921) ; contra Brunner v. Stix, 352 Mo. 1225, 181 S.W.2d 643 (1944).

[18]  Giangrasso v. CBS, Inc., 534 F. Supp. 472 (E.D.N.Y. 1982) ; Curtis v. United States, 168 F. Supp. 213 (Ct. Cl. 1958), cert. denied, 361 U.S. 843 (1959) ; see Borden & Barton Enters. v. Warner Bros., 99 Cal. App. 2d 760, 222 P.2d 463 (1950) ; Donahue v. Ziv Television Programs, Inc., 54 Cal. Rptr. 130 (Cal. App. 1966) ; Official Airlines Schedule Info. Serv., Inc. v. Eastern Air Lines, Inc., 333 F.2d 672, 674 (5th Cir. 1964) (concurring opinion); Sterner v. Hearst Corp., 144 U.S.P.Q. 237 (N.Y. Sup. Ct. 1964) .[Back]

[19]Desny v. Wilder, 46 Cal. 2d 715, 739, 299 P.2d 257, 270 (1956) ; Aliotti v. R. Dakin & Co., 831 F.2d 898, 903 (9th Cir. 1987).[Back]

[20]  Cole v. Lord, 262 A.D. 116, 28 N.Y.S.2d 404 (1st Dep’t 1941) ; Kurlan v. Columbia Broadcasting Sys., 40 Cal. 2d 799, 256 P.2d 962 (1953) ; Vantage Point, Inc. v. Parker Bros., Inc., 529 F. Supp. 1204 (E.D.N.Y. 1981) (Treatise cited), aff’d mem., 697 F.2d 301 (2d Cir. 1982); Bevan v. Columbia Broadcasting Sys., Inc., 329 F. Supp. 601 (S.D.N.Y. 1971) (Treatise cited); cf. McGhan v. Ebersol, 608 F. Supp. 277, 285 (S.D.N.Y. 1985) (New York law); Bailey v. Haberle Congress Brewing Co., 193 Misc. 723, 85 N.Y.S.2d 51 (Mun. Ct. 1948).[Back]

[21] See, e.g., Whitfield v. Lear, 751 F.2d 90 (2d Cir.) , where in advance of submission, plaintiff sent a mailgram to defendants advising that a submission was being sent.[Back]

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Why "Freeconomics" – and the Music Industry’s Five Point Plan – won’t work in the long term

There is a great deal of talk these days about the concept of “freeconomics,” spurned by the fact that most teenagers and college students are still ripping music and sharing it online.  Most recently, the major record labels commissioned a study from two think tanks, The Leading Question and Music Ally, which resulted in a five recommendations for the music industry, including “bundling” of product.  Another of the points was “Free doesn’t mean no money.”  How original.  And oh, by the way, IT DOES ACTUALLY MEAN THAT!  You can read the full article about the study here.

Dollar Bill Let me start out by observing an old adage, which still holds true in life, that you tend to “get what you pay for.”  I’ve always believed in that adage.  There is generally a direct correlation in the amount of sawbucks you shell out to the quality of the product you receive.   When I cook, for example, I use the freshest ingredients.  I spare little expense.  Sure, I try to find bargains, but if you skimp on the quality of your ingredients, you always skimp on taste.  I have always resisted the impulse to buy meat on clearance!

What about “free” goods?  Just think about how many junk e-mails you receive every day offering you a “free” iPhone, or a “free” laptop, or a free whatever. . . the list goes on and on.  Don’t you automatically just delete those?  Of course you do — because everyone knows these types of things are given out for free:  first, someone is actually paying for those goods; secondly, you have to subscribe to a certain number of paying offers in order to actually receive the “free” iPhone or laptop.  There is another adage:  nothing is life is free.   Fact of the matter is, if I wanted an iPhone, I’d go out and buy it.

Now, let’s turn our attention to “freeconomics” and honestly call it what it really is:  freakenomics!  Again, nothing in life is free. 

Nonetheless, we are lead by these researchers to examine Google and its model of giving out free software as an example of how the music industry can give away music and still achieve a profit.  This analogy is wrong on so many levels, but I’ll just point out one basic incongruity:  the software developers that are writing software for Google work for the conglomerate under a work for hire agreement – Google does not have to compensate multiple rights owners.  It owns the entire product. 

This is not so with a musical composition/sound recording combination.  That is bundle that is not so readily united.  The record label generally owns the sound recording of a musical composition, but does not always own the underlying music compositions.  There may be multiple owners of the underlying compositions which have to be compensated – multiple songwriters and multiple publishers.  The producer also must be compensated.  The musicians who play on the record have to be compensated, not to mention their union fees and retirement fund.  The engineers who work on the project are compensated. The artist has to be compensated for their performance.  The people who master the product must be compensated. 

What the simplistic – dare I say naive – five point plan laid out by the record “think tank” overlooks is that in order to accomplish the equivalent of something like a Google in the music industry, one has to completely rewrite the industry.  While this is not a new idea, it is also not an idea that can be accomplished in today’s copyright structure nor within the current orientation of the music industry.  Hundreds of years of practice have to be completed abolished for the Google model to work in the music industry.

Let’s look an entity that has actually tried to make such a paradigm shift:  MySpace.  It is most definitely the place where independent artists go to get their music heard.  The music is generally free.  How many artists have you listened to on MySpace in the last month?  I’m in the industry, and I have listened to maybe two, but only because I received a specific request to do so. 

How many artists on MySpace actually make a lucrative living doing what they are doing there?  Again, the music is free isn’t it?  Freecomonics will get us something akin to the quality of music that you find on MySpace in general.  There is no realistic way to sift the wheat from the chaff. 

The instant you stop rewarding the songwriters and artists that create the music — removing a real incentive for creating their art full time — the sooner you’ll find a void in the really high quality music.  Yes, there are some who say that artists will produce art regardless of whether they receive compensation, because that is what they do.  However, this is not historically accurate in music or any of the arts.  If you find an artist who is thriving, you will generally find a source of money, whether it be selling the artwork to a famous benefactor or having financial muscle behind him or her. 

In music, the major labels have historically been the finders and funders of the talent.  They spend a lot of money discovering, developing and marketing the talent.  For the most part, it is the major label product that gets traded on the P2P networks.  That is one factor that is often overlooked.  What the general public wants to hear, and shares on P2P, is generally the music that is marketed heavily – generally by the major labels.  That will not change until someone constructs a better way to get music heard by the public in general. 

So, I believe if you remove the economic component of music, you will ultimately eliminate the talent altogether.  Otherwise, the talented will have to get day jobs to support their art and the art will most certainly diminish and/or suffer.

Let’s turn to some of the other suggestions made by The Leading Question and Music Ally:

(1)  Music needs to be bundled with other products and entertainment packages.  They conclude that “music needs to move away from per unit sales and become more of a service than a product.”  Can we say YAWN class?  The record labels cannot break themselves of the idea that people want a package deal.  We don’t.  We want ala carte!  The sooner that the industry comes to this realization, the better off they will be.  Isn’t this what the labels have been feeding us for years?  This is but the “record album” in another iteration.  Buy this collection of 10 songs, 2 of which are what you actually want and 8 of which bite!  Come on guys, hasn’t the digital revolution taught you anything?  Wake up and smell the single downloads.  That IS what the consumer wants.  Build a model that incorporates the single download.  Don’t build a model that ignores it.

(2)  Labels needs to experiment with new release schedules and formats.  Seriously?  Again, the think tanks suggest that “single . . . releases have run [their] course.”  Ditto what I said above.  Check out the success of iTunes, emusic, Amazon, etc. etc.  Check out what happens on P2P networks when a new digital single is released.  The single is NOT a thing of the past.  Now, granted, I agree that digital only releases and new pricing models are going to be part of the new model — couldn’t any fourth graders could tell you that?  But again, people want their music ala carte.  They want good music.  They don’t want the bundles, the fillers, the parasitical crap that the industry wants to latch onto what they really want.

(3)  Change the charts.  Yes, people actually get paid to say this stuff!  The conclusion is that the charts don’t make sense anymore because fewer people are buying music.  In fairness, I understand this one to some degree. But, has anyone noticed that Billboard already tracks digital downloads?  Has anyone noticed any of the other p2p tracking devices, such as Big Champagne, just to name one.  Sure they have and so have the major labels.  In fact, that is in part where many of the researchers get their data.  No doubt, the tracking of general overall consumption should be an important factor in consideration.  While we are at it, why not pay more attention to the portion of the market called baby boomers.  The older generation that buys music, but rarely gets consulted when discussing these issues.

(4)  Trust the DJ.  Next to the CD format, the other big thing the record industry has a hard time letting go of is the radio format.  The record industry likes to control the advise given about music so that they control what the listener “wants” to hear.  The think tanks concludes that “the instant and massive availability of music on demand means you need a trusted guide like John Peel more than ever.”  I disagree with this conclusion because I believe that this “advisor model” is antiquated.   These days, most people rely more on social networking – either virtual or real — and trending algorythms to determine what music they enjoy.  I don’t know of any teenager that listens to terrestrial radio any more.  For them, a DJ is someone at a wedding reception and they are not likely to take advise from that person. 

Yet, the file sharing continues and, more importantly, so does the need for change.  Now that I have ranted a little about the suggestions made by these industry think tanks, let me say that I do, in fact, appreciate their efforts to come up with solutions to the declining music industry.  I wholly agree with what the managing director of Music Ally, Paul Brindley says in the article, that the

“business models need to change radically if the music business is to stand any chance of halting the current decline in sales.”  Without a doubt, something truly has to be done or the industry will fail.

As I heard one venture capitalist put it, for him to consider an investment in the music industry, it must be a paradigm shifting, industry changing business model.  These suggestions by The Leading Question and Music Ally just don’t quite rise to that level, in my humble opinion.  In my opinion, the ultimate solution will be a fair priced – but not free – digital download model.  The most important component that is missing thus far, and that is critical, is a means of getting the music heard by the general population.  We have many services which may be close, but as of yet, we are not quite there.

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You Say You Want A REVOLUTION?

You say you want a revolution

Well, you know

We all want to change the world . . .

 

You say you’ve got a real solution

Well, you know

We’d all love to see the plan

You ask me for a contribution

Well, you know

We are doing what we can

 

But if you want money

for people with minds that hate

All I can tell is, brother, you’ll have to wait

 

Don’t you know it’s gonna be alright?

 

-John Lennon

 

Perhaps John Lennon said it best:  if you push people hard enough and long enough, they will revolt.  The question is, has the RIAA gone too far for too long? A recent motion filed in their case against students at the University of Maine may very well answer that question.

The RIAA named numerous “John Doe” students in their complaint in Arista Records v. Does 1-27, as is their practice in all of their lawsuits.   The RIAA’s purpose of naming the John Doe defendants is so that they may obtain an ex parte (i.e., without the other party being notified) order from the Judge requiring the targeted university to provide the various students’ name, address, and, particularly, their IP address.

Student lawyers at the University school of law Cumberland Legal Clinic have filed a motion for Rule 11 sanctions against the RIAA claiming that this practice improperly seeks to circumvent the student’s rights under the Family Educational Rights and Privacy Act, §1232g(b)(2)(B) (“FERPA”), gain publicity for its cause, and coerce students into settling for “nominal” amounts in the $3-5000 range.

Rule 11 of the Federal Rules of Civil Procedure allows sanctions against an attorney who signs a pleading without properly investigating the facts and the law and does so with an improper purpose.

The motion also questions whether the joinder of plaintiffs and defendants under the RIAA-type lawsuits is proper because the actions do not, in fact, arise out of the same transaction.  Rule 20 of the Federal Rules of Procedure provides that multiple plaintiffs can join in one action if “they assert any right to relief jointly, severally, or in the alternative with respect or arising out of the same transaction, occurrence, or series of transactions or occurrences…and any question of law or fact common to all plaintiffs will arise in the action.” Fed. R. Civ. P. 20(a).  Similarly, multiple defendants can be joined in one action if “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transaction or occurrences . . . and any question of law or fact common to all defendants will arise in the action.” Id.  The student motion alleges that the RIAA does not, in fact, believe that all of these copyright infringements arise out of the same facts, but join together against multiple defendants for the sole purpose of trimming litigation and discovery costs.

In this case, the student lawyers are seeking more than just monetary damages under this Rule 11 motion:  they also seek dismissal of the complaint and a permanent injunction preventing the RIAA from filing “fishing expedition” type complaints against “unconnected” defendants in the future.  These types of injunctions may be applied in jurisdictions other than the one in which it was issued, so in theory such an order may be applied to thwart lawsuits in other Federal courts across the country.

This in one ruling that should be very interesting.

 

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