From Daniel Lee, Undergraduate Services Librarian at the University of Arizona (full text on American Library Association website here)
Section 107 of the Copyright Act of 1976 defines fair use. It is a vague definition, intentionally so, presenting broad principles with no reference to numerical limits on the portion of a work used, or the length of time a work can be used. This vagueness provides tremendous flexibility, but also leads to much uncertainty. Applying the statute to a particular proposed project can result in multiple, quite reasonable interpretations. In an effort to combat this uncertainty and make fair use more predictable, representatives of both copyright holders and consumers have often met to develop guidelines that provide the sort of specificity that many find desirable.
The most well known of these guidelines are the CONTU Guidelines on Photocopying Under Interlibrary Loan Arrangements, adopted in 1978, and the Agreement on Guidelines for Classroom Copying in Not-for-profit Educational Institutions with Respect to Books and Periodicals (often referred to as the "Classroom Guidelines"), adopted in 1976. More recently, attempts were made to reach similar agreements for educational multimedia, electronic reserve, and distance learning. For the most part, agreement could not be reached as copyright owners believed the proposed guidelines to be overly permissive, and library and educational representatives found the proposals to be too restrictive.
The failure of the recent negotiations and almost 25 years of experience with the earlier guidelines have led many to conclude that fair use guidelines, by their very nature, fail to capture the principles embodied in fair use and are of little practical help.
A Powerpoint on fair use for librarians here.
CONTU Guidelines here.
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Showing posts with label copyright infringement. Show all posts
Showing posts with label copyright infringement. Show all posts
Friday, August 19, 2011
Thursday, August 18, 2011
Second Circuit: Copyright Class Action Settlement Fails - Unregistered Copyrights Not Adequately Represented
The Tasini v. New York Times drama has been going on for many, many years. The issue: freelancers wrote articles for the New York Times and other publications. When technology permitted the articles to be put into searchable electronic databases, could the publishers do this without seeking permission from the copyright holder? The U.S. Supreme Court's 2001 decision in Tasini taught us that doing so without getting the copyright owner's permission was copyright infringement. So in the decade that followed, we had Reed Elsevier v Muchnick in which the US Supreme Court decided that 17 USC 411 (the requirement that a copyright be registered before a federal claim for copyright infringement may be filed) was not jurisdictional.
Now following remand from the Supreme Court's decision in Muchnick, we have In re Literary Works in Electronic Databases Copyright Litigation (2d Cir. August 17, 2011) - a decision deciding a matter that was originally argued on March 7, 2007.
The decision is embedded below. In it the Second Circuit rejects the district court's certification of a class action for settlement purposes because the holders of unregistered copyrights were not adequately represented. Holders of unregistered copyrights were classed as "Category C".
Category A - Holders of copyrights registered in time to qualify for statutory damages. To be paid $1,500 for first 15 works written for any one publisher, $1,200 for the second fifteen works for that publisher, and $875 for all works written for that publisher after the first 30.
Category B - The greater of $150 or 12.5% of the original price of the work.
Category C, The greater of $5 or 10% of the original price of the work with sliding scale for works over $249 ($25- $60).
The settlement capped the publishers' total exposure at $18 million. Key to the Second Circuit's reasoning was that only Category C would be reduced if the global settlement exceeded $18 million.
This decision is an important one in interpreting Rule 23 of the Federal Rules of Civil Procedure, which governs certification of class actions and requires that each class or subclass be adequately represented.
Judge Straub wrote a 16 page dissent in favor of class certification.
In Re Literary Database Litigation
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Now following remand from the Supreme Court's decision in Muchnick, we have In re Literary Works in Electronic Databases Copyright Litigation (2d Cir. August 17, 2011) - a decision deciding a matter that was originally argued on March 7, 2007.
The decision is embedded below. In it the Second Circuit rejects the district court's certification of a class action for settlement purposes because the holders of unregistered copyrights were not adequately represented. Holders of unregistered copyrights were classed as "Category C".
Category A - Holders of copyrights registered in time to qualify for statutory damages. To be paid $1,500 for first 15 works written for any one publisher, $1,200 for the second fifteen works for that publisher, and $875 for all works written for that publisher after the first 30.
Category B - The greater of $150 or 12.5% of the original price of the work.
Category C, The greater of $5 or 10% of the original price of the work with sliding scale for works over $249 ($25- $60).
The settlement capped the publishers' total exposure at $18 million. Key to the Second Circuit's reasoning was that only Category C would be reduced if the global settlement exceeded $18 million.
This decision is an important one in interpreting Rule 23 of the Federal Rules of Civil Procedure, which governs certification of class actions and requires that each class or subclass be adequately represented.
Judge Straub wrote a 16 page dissent in favor of class certification.
In Re Literary Database Litigation
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Wednesday, August 17, 2011
Second Circuit: First Sale Doctrine Does Not Apply to Foreign-Made Works - Importer Is Copyright Infringer
In John Wiley & Sons Inc. v. Kirtsaeng, 09-4896 (2d Cir. August 15, 2011), the Second Circuit decided a case of first impression, with a powerful dissent from Judge J. Garvan Murtha of Vermont.
Facts: Foreign student residing in US has family members purchase English-language textbooks from foreign country and ship them to US where he resells them on Ebay. The textbooks are substantially similar to those sold in the US, although of inferior quality of manufacture (thinner paper, fewer inks). The manufacture and distribution of the textbooks in the foreign country was authorized by the US copyright owner, but importing them into the United States was not.
Issue: Where a US copyright owner permits textbooks to be lawfully manufactured and distributed in a foreign country, can the US copyright owner charge persons importing such lawfully-made textbooks with copyright infringement?
Answer: Yes.
The Second Circuit upheld a judgment against the student for hundreds of thousands of dollars following a jury trial.
The statutes at issue are 17 USC 602(a) which refers to copyrighted works lawfully "made" under the Copyright Act and
The "first sale doctrine" which is embodied in 17 USC 109(a)
§ 109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord42
(a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. [...]
Essentially, the Second Circuit determined that a copy made in a foreign country was not lawfully made under the Copyright Act. I commend Judge Murtha's dissent for careful study, the decision is embedded below.
More on the first sale doctrine and the Costco/Omega case here.
John Wiley & Sons v Kirtsaeng
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Facts: Foreign student residing in US has family members purchase English-language textbooks from foreign country and ship them to US where he resells them on Ebay. The textbooks are substantially similar to those sold in the US, although of inferior quality of manufacture (thinner paper, fewer inks). The manufacture and distribution of the textbooks in the foreign country was authorized by the US copyright owner, but importing them into the United States was not.
Issue: Where a US copyright owner permits textbooks to be lawfully manufactured and distributed in a foreign country, can the US copyright owner charge persons importing such lawfully-made textbooks with copyright infringement?
Answer: Yes.
The Second Circuit upheld a judgment against the student for hundreds of thousands of dollars following a jury trial.
The statutes at issue are 17 USC 602(a) which refers to copyrighted works lawfully "made" under the Copyright Act and
The "first sale doctrine" which is embodied in 17 USC 109(a)
§ 109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord42
(a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. [...]
Essentially, the Second Circuit determined that a copy made in a foreign country was not lawfully made under the Copyright Act. I commend Judge Murtha's dissent for careful study, the decision is embedded below.
More on the first sale doctrine and the Costco/Omega case here.
John Wiley & Sons v Kirtsaeng
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Friday, August 12, 2011
Ninth Circuit: Specific California Jurisdiction Over Ohio Celebrity Gossip Website Publishing Black-Eyed Peas Infringing Photographs
In Mavrix Photo Inc. v Brand Technologies (09-56134) (Ninth Circuit August 8, 2011), embedded below, the Ninth Circuit reversed a district court's dismissal of a copyright infringement lawsuit brought in California against an Ohio celebrity gossip website http://www.celebrity-gossip.net/ by Mavrix, the operator of http://www.mavrixonline.com/.
The opinion, by Circuit Judge William Fletcher, found no general jurisdiction over the Ohio website. However, the court found specific jurisdiction based on the activities of the Ohio website directed towards California residents, the serious commercial purpose and national fame of the Ohio website, its expectation knowledge that California residents would be its clients, and its purposeful infringement of a copyright owned by a California resident.
Specific jurisdiction is now a very hot topic in copyright law, following the American Buddha case (more on American Buddha here or scroll down to the bottom of the blog and select "American Buddha"). The issue is whether New York or California long-arm statutes will permit an exercise of jurisdiction over out of state infringers, so it is an example of federal courts relying on state law for their jurisdiction. The test is "due process" and the citations are to cases that are the bane of first-year law students. In the American Buddha case, the Second Circuit certified the question to the New York Court of Appeals. We are seeing an expansion of effective remedies for New York and California copyright owners for serious infringers who are located out-of-state.
Required reading for copyright practitioners.
Mavrix Technologies v Brand 09-56134
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Fair Use Fridays: Myths About the Copyright Act's Fair Use Provisions
Myths about the fair use doctrine, article here
Academics fighting back....
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Academics fighting back....
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Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Tuesday, August 9, 2011
Copyright Infringement: Ninth Circuit Requires Proof of Irreparable Harm For Preliminary Injunctions
If you thought that the Perfect 10 v. Google case had been resolved long ago, you, like me, would be wrong. Perfect 10 v. Google, 10-56316 (Ninth Circuit August 3, 2011) is the latest decision by the Ninth Circuit deciding that Perfect 10 should not get an injunction. In this latest decision again denying Perfect 10 a preliminary injunction, the Ninth Circuit expressly adopted the Supreme Court’s logic in the EBay case which rejected a presumption of irreparable harm in a patent infringement case. Ebay Inc v. MercExchange, 547 U.S. 388 (2006).
For some time, if a copyright owner showed ownership of a copyrighted work and showed that the defendant had engaged in unauthorized copying, courts presumed that irreparable harm had been shown and shifted the burden of proof to the defendant. The EBay standard makes getting a preliminary injunction much tougher for copyright owners, reducing the immediate settlement value of many infringement claims.Perfect 10 is a rather unsympathetic plaintiff, suing Google for its caching of the entire internet and its practice of sending copies of all cease and desist letters to the Chilling Effects website. Perfect 10 alleges that because someone could look at a cease and desist letter, then click on the link to view an unauthorized photograph, that it has lost millions of dollars, since consumers won’t pay a subscription for its soft-core pornography when it can be found for free. At the core of most of Perfect 10’s complaints is that its own subscribers repost images on such services as Blogger.
Since Google is so useful and has adopted what appear to be reasonable anti-infringement policies, it is a sympathetic defendant. There may be more sympathy for Perfect 10’s position to be found in an amicus brief filed by the Picture Archive Council of America and others, I didn’t dig into this. An unsympathetic plaintiff who fails to develop a proper record may sometimes shape the law in ways that is undesirable for many others, particularly working photographers needing legitimate protections against republication of original images. This may well be such a case. Treating copyrights as fungible goods may not necessarily serve the best interests of society and shifting the cost burden to copyright owners may well be unfair in the case of individual authors who may well be deprived of all bargaining power in cases of legitimate and truly irreparable injury.
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South Park Copyright Infringement Decision Tackles Joint Authorship and Fair Use Issues
In Brownmark Films, LLC v. Comedy Partners, 2011 WL 2648600, --- F.Supp.2d --- (E.D. Wisc. July 6, 2011), on a motion to dismiss a copyright infringement claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the district court resolved two important issues. First, the district court tackled the issue of whether two joint authors had standing to commence a copyright infringement proceeding when a third sat the litigation out. In this case, plaintiff Brownmark was an assignee of two of the three authors. The district court, taking issue with the Ninth Circuit’s holding and reasoning in the Sybersound case, held that two of the three joint authors could proceed. Since the district court unravels some tricky language in the Copyright Act regarding who may grant an “exclusive license” and since this is likely to be an issue upon which circuits will split, this decision is worth reading (the district court adopts the views of Nimmer and Patry, both of whom criticize Sybersound).
Second, the district court took the unusual step of resolving a “fair use” defense on a Rule 12(b)(6) motion. Ordinarily, affirmative defenses are not considered on Rule 12(b)(6) motions. The exception is where the affirmative defense is fully pleaded in the complaint. The district court found that two videos were referred to in the complaint and the circumstances warranting a finding of “fair use” under 17 U.S.C. 107, the Copyright Act’s fair use section, were pleaded.
The facts involved the creation of a video for the television series South Park from the episode “Canada on Strike” using the song “What What In the Butt”. The opinion is well written, but may concern those who find that Iqbal and Twombly have unduly shifted burdens onto plaintiffs too early in the game.
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Sunday, July 31, 2011
Copyright Infringement: Photographer Sues News Corp, Fox News Over Assata Shakur Photograph
In Buford v. News Corp, complaint here the plaintiff photographer has sued Fox News and Dow Jones over the use of an allegedly rare photograph of the fugitive Assata Shakur (aka Joanne Chesimard).
According to the complaint, there is a one million dollar reward out for Shakur by the FBI because she killed a NJ State Trooper in 1973. She was granted asylum by Cuba. The photographer travelled to Cuba and took Shakur's photographer. Because of the difficulty of accessing Shakur, the photograph is alleged to be very valuable.
The O'Reilly Factor on Fox and the Jon Stewart show allegedly used the photograph with a caption mentioning the murder of the state trooper.
Fox News criticized the Obama Administration for inviting rapper Common who had glorified Shakur's murder of the state trooper in a song, story here. More from assata.org, in which Assata discusses a "Nazi subculture" in the New Jersey police here.
The complaint claiming copyright infringement is here.
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Friday, July 29, 2011
Fair Use Fridays: A Fair Use Evaluator Webmachine
Another tool for evaluating fair use and keeping a record that you've thought things through. http://librarycopyright.net/fairuse/index.php
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Fair Use Fridays: Copyright Act Section 108: Reproduction by libraries and archives
Via @spellboundblog, you can find a "Section 108 Spinner" here. 17 USC 108 governs reproductions by libraries and archives.
While not exactly under the "fair use" section of the Copyright Act 17 U.S.C. 107, Section 108 provides a lot more detailed guidance for librarians and archivists in determining what types of uses are fair or reasonable.
Please note the "Know your rights, these are your rights" quote from The Clash on the spinner....
The Section 108 Spinner permits a librarian to create a PDF that shows the librarian has considered the proper factiors under 17 U.S.C. 108.
Just so you know why 17 USC 108 makes librarians' heads spin...
§ 108. Limitations on exclusive rights: Reproduction by libraries and archives41
(a) Except as otherwise provided in this title and notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, except as provided in subsections (b) and (c), or to distribute such copy or phonorecord, under the conditions specified by this section, if —
(1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;
(2) the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and
(3) the reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section.
(b) The rights of reproduction and distribution under this section apply to three copies or phonorecords of an unpublished work duplicated solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a), if —
(1) the copy or phonorecord reproduced is currently in the collections of the library or archives; and
(2) any such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format and is not made available to the public in that format outside the premises of the library or archives.
(c) The right of reproduction under this section applies to three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if —
(1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and
(2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.
For purposes of this subsection, a format shall be considered obsolete if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.
(d) The rights of reproduction and distribution under this section apply to a copy, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, of no more than one article or other contribution to a copyrighted collection or periodical issue, or to a copy or phonorecord of a small part of any other copyrighted work, if —
(1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and
(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.
(e) The rights of reproduction and distribution under this section apply to the entire work, or to a substantial part of it, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, if the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price, if —
(1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and
(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.
(f) Nothing in this section —
(1) shall be construed to impose liability for copyright infringement upon a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises: Provided, That such equipment displays a notice that the making of a copy may be subject to the copyright law;
(2) excuses a person who uses such reproducing equipment or who requests a copy or phonorecord under subsection (d) from liability for copyright infringement for any such act, or for any later use of such copy or phonorecord, if it exceeds fair use as provided by section 107;
(3) shall be construed to limit the reproduction and distribution by lending of a limited number of copies and excerpts by a library or archives of an audiovisual news program, subject to clauses (1), (2), and (3) of subsection (a); or
(4) in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections.
(g) The rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions, but do not extend to cases where the library or archives, or its employee —
(1) is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group; or
(2) engages in the systematic reproduction or distribution of single or multiple copies or phonorecords of material described in subsection (d): Provided, That nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work.
(h)(1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply.
(2) No reproduction, distribution, display, or performance is authorized under this subsection if —
(A) the work is subject to normal commercial exploitation;
(B) a copy or phonorecord of the work can be obtained at a reasonable price; or
(C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies.
(3) The exemption provided in this subsection does not apply to any subsequent uses by users other than such library or archives.
(i) The rights of reproduction and distribution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news, except that no such limitation shall apply with respect to rights granted by subsections (b), (c), and (h), or with respect to pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to works of which copies are reproduced or distributed in accordance with subsections (d) and (e).
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Thursday, July 28, 2011
Copyright Law: Captain America Comic Artist Kirby Copyrights KO'd - SDNY
Captain America Comics #1 (March 1941) Copyright Marvel
In Marvel v. Kirby, 10 civ. 141 (SDNY July 28, 2011), District Judge Colleen McMahon of the Southern District of New York determined that Jack Kirby's artistic contributions to such characters as The Incredible Hulk, The Mighty Thor, Spider-Man, Iron Man, the X-Men and the Avengers were works for hire under the 1909 Copyright Act.Accordingly, the Court found notices of copyright termination sent by Kirby's heirs to be invalid and granted summary judgment to Marvel based largely on the written testimony of Stan Lee.
The decision is detailed and interesting for students of comic books and those interested in the "instance and expense" test of the 1909 Copyright Act.
The complaint is here. Decision below:
Marvel v Kirby McMahon Order 7 28 11
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Wednesday, July 27, 2011
Seventh Circuit: Addition to Architectural Plans Not Original, But Submission of Reconstructed Computer Plans Sufficient for Copyright Filing
In Nova Design Build Inc. v. Grace Hotels, LLC, 2011 WL 3084929 (7th Cir. July 26, 2011), the Seventh Circuit considered a case where an architectural design firm registered a copyright in improvements made to a Holiday Inn Express project. The builder got in a dispute with the architectural designer. The builder proceeded to use the plans, and claimed that the contract permitted the use. On summary judgment, the district court ruled for the defendant builder and against the plaintiff designer.
First, the court applied the T.B. Harms v Eliscu test to determine subject matter jurisdiction. Since the complaint alleged copyright infringement, the court had subject matter jurisdiction. The builder's allegation that the use was permitted by contact (licensed) was a defense - and defenses do not affect jurisdiction under 28 USC 1331 or 1338.
Second, the court overruled the district court's finding that Nova's reconstruction of its computerized designs to support its copyright filing relied on Nova's memory and thus was invalid. Nova's computers had been stolen, so the precise files were unavailable. In overruling, the Seventh Circuit found that Nova's reconstruction was based on hard copies and a meticulous recreation of the plan and that on summary judgment the district court's adverse ruling was not appropriate.
On this point, Nova is correct. Indeed, before the digital world made exact copies common, many copies may have had tiny discrepancies in them. There is no hard evidence in the record supporting the district court's speculation that Nova had to resort to the memories of its employees to re-create its designs. And even if there were, Nova has pointed to evidence to the contrary. With the hard copies and the restored CAD files, Nova could meticulously and mechanically piece together a copy of its original designs.
Practice Tip: This is a quote that copyright practitioners will want to keep in their back pockets.
Third, the Seventh Circuit found that Nova's additions to the Holiday Inn Express plans were not original and thus Nova could not satisfy a key element of copyright infringement.
We think that Nova fails at the initial step: it has not identified anything in these particular designs that was original and thus protectable. Nova's designs were, for the most part, based on the Holiday Inn Express prototype. Nova does not assert that it has the right, either through contract or otherwise, to enforce Holiday Inn Express's copyright in its own plans. Instead, Nova protests that it added features to the prototype, such as an extra floor, a larger meeting area, different closet and door placements in the rooms, and different pool, exercise, and laundry areas, but that is not enough. Though Nova's designs do possess added features (and these additions are the only elements that may be protectable), they are devoid of originality. Merely adding an extra floor, identical to the floor layout of the prototype, is not original. The other features Nova mentions were specifically requested by Grace, mostly through written requests accompanied by graphic designs. In light of that, there was no creative element to these features in Nova's designs. See Tiseo Architects, Inc., 495 F.3d at 347 (holding that architectural sketches that incorporated owner's suggestions and drawings, and were limited by zoning requirements, did not possess requisite originality for copyright protection). The aspects of Nova's designs that went beyond the Holiday Inn Express prototype were insufficiently original to qualify for copyright protection, and with that Nova's claim for copyright infringement must fail.
The Seventh Circuit thus affirmed the District Court's grant of summary judgment against the plaintiff designer.
A short, but important case illustrating how the Seventh Circuit is looking at copyright claims, copyright filings, and demonstrations of originality on a summary judgment motion.
Nova Design Build Inc v Grace Hotels
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Wednesday, July 20, 2011
Copyright Law: Interview With Register of Copyrights Maria Pallante
"If you're looking for certainty, fair use is not going to help you sleep at night."
- Maria Pallante, Register of Copyrights, on copyright law's fair use doctrine
Ars Technica has published an excellent interview with Maria Pallante, the new Register of Copyrights here.
If you want to know where copyright law is going, it is important to follow the activities of the Register of Copyrights whose activities and views carry extraordinary weight in shaping U.S. copyright policy. More on the office of the Register of Copyrights here.
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- Maria Pallante, Register of Copyrights, on copyright law's fair use doctrine
Ars Technica has published an excellent interview with Maria Pallante, the new Register of Copyrights here.
If you want to know where copyright law is going, it is important to follow the activities of the Register of Copyrights whose activities and views carry extraordinary weight in shaping U.S. copyright policy. More on the office of the Register of Copyrights here.
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Saturday, July 16, 2011
New Copyright Litigation Search Tool on the Copyright Litigation Blog - Powered By Google
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Friday, July 15, 2011
Fair Use Fridays: Copyright Professors To Academia: "Flex Your Fair Use Muscles!"
Fair Use and Fairness on Campus
Deborah R. Gerhardt
University of North Carolina (UNC) at Chapel Hill - School of Law
Madelyn F. Wessel
University of Virginia
North Carolina Journal of Law and Technology, Vol. 11, Spring 2010
UNC Legal Studies Research Paper No. 1594934
Conclusion below, full paper free download here
The educational community must assert and defend fair use if it is to retain some autonomy over academic content and preserve some equity in the delivery of its mission. Access to information is a theme resonating within legal and philosophical constructs of both free speech and equal protection in a society that considers
itself just. In a world where technology makes so much content available for educational use, the copyright laws that were originally conceived to promote education are instead often routinely applied to inhibit it. Unequal access to counsel and profound disparities in the content available on campus exacerbate the problem.
Fair use is the primary means to restore that balance. Despite the myths that abound, fair use jurisprudence is a dynamic, factbased, ever changing body of law and courts are more willing than one might expect to find fair use when equity demands it. Whether the issue is classroom access to research and scholarship or the
publication of a substantive scholarly critique, we think both copyright jurisprudence and equity will often support fair use. We have seen fair use muscles atrophy and flex and can vouch for the fact that the latter is far more empowering to the academic mission and far better aligned with the Founders’ understanding that
copyright is intrinsically entwined with public access.
http://www.dunnington.com/rdowd_bio.html
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Deborah R. Gerhardt
University of North Carolina (UNC) at Chapel Hill - School of Law
Madelyn F. Wessel
University of Virginia
North Carolina Journal of Law and Technology, Vol. 11, Spring 2010
UNC Legal Studies Research Paper No. 1594934
Conclusion below, full paper free download here
The educational community must assert and defend fair use if it is to retain some autonomy over academic content and preserve some equity in the delivery of its mission. Access to information is a theme resonating within legal and philosophical constructs of both free speech and equal protection in a society that considers
itself just. In a world where technology makes so much content available for educational use, the copyright laws that were originally conceived to promote education are instead often routinely applied to inhibit it. Unequal access to counsel and profound disparities in the content available on campus exacerbate the problem.
Fair use is the primary means to restore that balance. Despite the myths that abound, fair use jurisprudence is a dynamic, factbased, ever changing body of law and courts are more willing than one might expect to find fair use when equity demands it. Whether the issue is classroom access to research and scholarship or the
publication of a substantive scholarly critique, we think both copyright jurisprudence and equity will often support fair use. We have seen fair use muscles atrophy and flex and can vouch for the fact that the latter is far more empowering to the academic mission and far better aligned with the Founders’ understanding that
copyright is intrinsically entwined with public access.
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Electronic Frontier Foundation: Oppose Criminal Streaming Bill in Senate
The above YouTube video had over 500K views
The EFF is organizing a letter writing campaign to the US Senate - to use the letter tool, visit here
The EFF's take:
Oppose Congress' Criminal Streaming Bill
S. 978 is a reckless attempt to attack online streaming by focusing on the "unlawful public performance" area of copyright law. By increasing the criminal penalties for certain online public performances, the bill will impose a chilling effect around the posting and creation of online video. Moreover, it will hamper the pace of innovation as users, websites, and investors cope with the uncertainty of running afoul of one of the more vague sections of copyright law. Act now and tell your Senators to oppose this shortsighted bill!
Under certain conditions, an "unlawful public performance" of a copyrighted work is already a crime. But this bill targets online streaming in an effort to give the government more enforcement power to bear—particularly against websites that the entertainment industry believes to be threatening.
Techdirt reports on YouTube protests here
Text of the bill below:
112th CONGRESS
1st Session
S. 978
To amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes.
--------------------------------------------------------------------------------
IN THE SENATE OF THE UNITED STATES
May 12, 2011
Ms. Klobuchar (for herself, Mr. Cornyn, and Mr. Coons) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
----------------------------------------------------------------------------
A BILL
To amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. Criminal infringement of a copyright.
(a) Amendments to section 2319 of title 18.—Section 2319 of title 18, United States Code, is amended—
(1) in subsection (b)—
(A) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively; and
(B) by inserting after paragraph (1) the following:
“(2) shall be imprisoned not more than 5 years, fined in the amount set forth in this title, or both, if—
“(A) the offense consists of 10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works; and
“(B)(i) the total retail value of the performances, or the total economic value of such public performances to the infringer or to the copyright owner, would exceed $2,500; or
“(ii) the total fair market value of licenses to offer performances of those works would exceed $5,000;”; and
(2) in subsection (f), by striking paragraph (2) and inserting the following:
“(2) the terms ‘reproduction’, ‘distribution’, and ‘public performance’ refer to the exclusive rights of a copyright owner under clauses (1), (3), (4), and (6), respectively of section 106 (relating to exclusive rights in copyrighted works), as limited by sections 107 through 122, of title 17;”.
(b) Amendment to section 506 of title 17.—Section 506(a) of title 17, United States Code, is amended—
(1) in paragraph (1)(C), by inserting “or public performance” after “distribution” the first place it appears; and
(2) in paragraph (3)—
(A) in subparagraph (A), by inserting “or public performance” after “unauthorized distribution”; and
(B) in subparagraph (B), by inserting “or public performance” after “distribution”.
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BitTorrent Litigation: Joinder of Swarm Improper But Expedited Ex Parte Discovery Granted Against Peer To Peer Filesharer Doe Number 1
Decision in full:
United States District Court,
N.D. California.
PACIFIC CENTURY INTERNATIONAL LTD., Plaintiff,
v.
DOES 1–101, Defendants.
No. C–11–02533–(DMR).
July 8, 2011.
Brett Langdon Gibbs, Steele Hansmeier, PLLC, Mill Valley, CA, for Plaintiff.
ORDER GRANTING PLAINTIFF'S EX PARTE APPLICATION FOR LEAVE TO TAKE EXPEDITED DISCOVERY IN PART; SEVERING DOE DEFENDANTS FROM CASE; AND ORDERING DISMISSAL OF THEIR CLAIMS
DONNA M. RYU, United States Magistrate Judge.
*1 Plaintiff Pacific Century International, Ltd. (“Plaintiff”) moves the court ex parte pursuant to Federal Rules of Civil Procedure 26 and 45 for leave to take expedited discovery so that it may unearth the identities of the as-of-yet unnamed defendants (“Defendants”) in this action. For the reasons provided below, the court grants Plaintiff's motion in part, severs Defendants Does 2–101 from this action, and orders that the claims against Does 2–101 be dismissed due to improper joinder.
I. Expedited Discovery
This action seeks to stop Defendants from reproducing and distributing Plaintiff's copyrighted work Amateur Cream Pies—Erin Stone (“the Work”) via peer-to-peer (“P2P”) file swapping networks. (Compl.¶¶ 1, 7.) Specifically, Plaintiff contends that by using the BitTorrent protocol, Defendants have committed copyright infringement under 17 U.S.C. §§ 101–1322 and engaged in a civil conspiracy under California law to do so. (Compl.¶¶ 25–39 .) Because the alleged infringement occurred on the Internet, Defendants acted under the guise of their Internet Protocol (“IP”) addresses rather than their real names. (Compl.¶ 8.) Therefore, Plaintiff cannot determine Defendants' true identities without procuring the information from Defendants' respective Internet Service Providers (“ISPs”), which can link the IP addresses to a real individual or entity. (Compl.¶ 8.) Consequently, Plaintiff asks the court to grant it expedited discovery to issue subpoenas to the relevant ISPs so that the ISPs will produce the name, address, telephone number, email address, and Media Access Control information attached to each IP address that Plaintiff to date has discovered through its own investigations. (Pl.'s Ex Parte Application for Leave to Take Expedited Discovery (“Pl.'s Mot.”) 1–3, Ex. A.) Plaintiff also notes that “time for discovery is of the essence. Typically, ISPs keep log files of subscriber activities for only limited periods of time before erasing the data.” (Pl.'s Mot. 4 (citing Hansmeier Decl. ¶¶ 21–22, May 26, 2011; Gibbs Decl. ¶ 5, May 26, 2011) (internal citation omitted).)
Although in the Ninth Circuit courts disfavor exceptions to the general rules of discovery, Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D.Cal.1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.1980)), a court will grant a motion for expedited discovery “upon a showing of good cause,” Am. Legalnet, Inc. v. Davis, 673 F.Supp.2d 1063, 1066 (C.D.Cal.2009) (quoting In re Countrywide Fin. Corp. Derivative Litig., 542 F.Supp.2d 1160, 1179 (C.D.Cal.2008)) (quotation marks omitted); accord Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275 (N.D.Cal.2002), unless the court finds that discovery “would not uncover [the defendants'] identities, or that the complaint would be dismissed on other grounds.” Gillespie, 629 F.2d at 642 (citations omitted). Good cause exists where “the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party.” FN1 Am. Legalnet, Inc., 673 F.Supp.2d at 1066 (quoting In re Countrywide Fin. Corp. Derivative Litig., 542 F.Supp.2d at 1179) (quotation marks omitted); accord Semitool, Inc., 208 F.R.D. at 276. The court must perform this evaluation in light of “the entirety of the record ... and [examine] the reasonableness of the request in light of all the surrounding circumstances.” Semitool, Inc., 208 F.R.D. at 275 (citation & quotation marks omitted) (emphasis removed); see Am. Legalnet, Inc., 673 F.Supp.2d at 1067. In this particular context, the court must balance “the need to provide injured parties with an [sic] forum in which they may seek redress for grievances” against “the legitimate and valuable right to participate in online forums anonymously or pseudonymously .... without fear that someone who wishes to harass or embarrass them can file a frivolous lawsuit and thereby gain the power of the court's order to discover their identity.” Columbia Ins. Co., 185 F.R.D. at 578; see also London–Sire Records, Inc. v. Doe 1, 542 F.Supp.2d 153, 163 & nn. 10–11, 179 (D.Mass.2008) (noting that even copyright infringing file downloading entitled to degree of First Amendment protection) (holding that court must consider “the expectation of privacy held by the Doe defendants, as well as other innocent users who may be dragged into the case (for example, because they shared an IP address with an alleged infringer.)” (citation omitted)); Sony Music Entm't, Inc. v. Does 1–40, 326 F.Supp.2d 556, 564 (S.D.N.Y.2004).
FN1. The court notes that due to the necessarily ex parte nature of Plaintiff's motion, Plaintiff faces no adversaries to fully expound on the prejudices that Defendants may face if the court grants Plaintiff expedited discovery. However, other measures to at least partially compensate for this inequity are at the court's disposal. See, e.g., Brief for Amici Curiae at 3, 18–19, Call of the Wild Movie, LLC v. Does 1–358, No. 10–CV–455 (D.D.C. Jan. 3, 2011) (recommending that courts order ISPs to notify customers of impending subpoenas so that customers have opportunity to quash); see also Doe v. 2TheMart.com, 140 F.Supp.2d 1088, 1097 (W.D.Wash.2001) (granting motion to quash subpoena seeking identities of non-party anonymous posters to Internet chat room).
*2 Plaintiff has shown good cause to partake in limited expedited discovery. First, without issuing subpoenas to the ISPs at this time, Plaintiff will “have no other way to obtain this most basic information,” Defendants' identities, without which the lawsuit cannot proceed. UMG Recordings, Inc. v. Does 1–4, No. 06–652, 2006 WL 1343597, at *1 (N.D.Cal. Apr.19, 2006) (not reported in F.Supp.); accord Diabolic Video Prods., Inc. v. Does 1–2,099, No. 10–CV–5865, at *4–5 (N.D.Cal. May 31, 2011) (order granting in part motion for leave to take limited discovery prior to Rule 26(f) conference); Io Group, Inc. v. Does 1–435, No. 10–4382, at *1 (N .D.Cal. Oct. 15, 2010) (order granting plaintiff's request for leave to take early discovery); Semitool, Inc., 208 F.R.D. at 276. ( Accord Hansmeier Decl. ¶ 21; Gibbs Decl. ¶ 2.) Furthermore, there exists a high risk that the ISPs may destroy the information Plaintiff seeks and thereby preclude Plaintiff from discovering Defendants' true identities. UMG Recordings, Inc., 2006 WL 1343597, at *1. ( Accord Hansmeier Decl. ¶ 22; Gibbs Decl. ¶ 5.) Finally, copyright infringement claims “necessarily involve[ ] irreparable harm to Plaintiff[ ], as a copyright holder is presumed to suffer irreparable harm as a matter of law” when the ambit of its copyright is invaded. UMG Recordings, Inc., 2006 WL 1343597, at * 1. Nevertheless, the court grants Plaintiff expedited discovery only in part because the court dismisses the complaint against all but Doe 1 for improper joinder. See Gillespie, 629 F.2d at 642.
II. Joinder of Defendants
Rule 20 of the Federal Rules of Civil Procedure, in relevant part, permits a plaintiff to join multiple defendants into one action if “(A) any right to relief is asserted against them ... arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action.” Fed.R.Civ.P. 20(a)(2). When determining whether defendants are joined properly, the court should “liberally construe[ ] [the requirements] in the interest of convenience and judicial economy in a manner that will secure the just, speedy, and inexpensive termination of the action.” Call of the Wild Movie, LLC v. Does 1–1,062, No. 10–455, 2011 WL 996786 (D.D.C. Mar.22, 2011) (citation & quotation marks omitted); see United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Diabolic Video Prods., Inc., No. 10–CV–5865, at *5. If defendants do not satisfy the test for permissive joinder, the court may sever the misjoined parties, “so long as no substantial right will be prejudiced by the severance.” Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir.1997) (citation omitted); see Fed.R.Civ.P. 21 (“Misjoinder of parties is not a ground for dismissing an action.”).
Attempts to join numerous defendants in a single action for copyright infringement over P2P networks historically have failed. For example, in Interscope Records v. Does 1–25, No. 4–CV–197, 2004 U.S. Dist. LEXIS 27782 (M.D.Fla. Apr. 1, 2004) (not reported in F.Supp.), and Elektra Entertainment Group, Inc. v. Does 1–9, No. 04–Civ–2289, 2004 WL 2095581 (S.D.N.Y. Sept.8, 2004) (not reported in F.Supp.), courts found misjoinder when plaintiffs brought suit against multiple defendants for downloading copyrighted materials using the Fast Track P2P network. Fast Track “allows users to have their computers function as an interactive Internet site, disseminating files for other users to copy.” Elektra Enter. Group, Inc., 2004 WL 2095581, at * 1. An individual accessing the Fast Track network thus may download an entire file directly from another user's computer. See id. The Interscope Records and Elektra Entertainment Group courts held that the respective complaints fell afoul of Rule 20(a)(2)(A) because they claimed only that the defendants used Fast Track to perform their illegal downloads and did not suggest that the defendants engaged in the same transaction, occurrence, or series of transactions or occurrences. 2004 U.S. Dist. LEXIS 27782, at *10, 2004 WL 2095581, at *7. Notably, the Interscope Records court suggested that a showing that a defendant downloaded protected works from another defendant “could conceivably link” them for joinder purposes. 2004 U.S. Dist. LEXIS 27782, at *10. This scenario also arose in cases involving the P2P network Gnutella. In Fonovisa, Inc. v. Does 1–9, the court granted severance to a defendant who claimed misjoinder because the “Plaintiffs have failed to allege any facts tending to show that one or more of the Defendants has actually downloaded songs from another Defendant, which could conceivably link the Defendants or show they acted in concert[;]” the plaintiffs simply alleged that the defendants had used the same P2P network. No. 07–1515, 2008 WL 919701, at *5–6 (W.D.Pa. Apr.3, 2008) (not reported in F.Supp.). Suits against users of the more sophisticated P2P network eDonkey2000 faced the same obstacles. In Io Group, Inc. v. Does 1–435, the court stated that the complaint contained “no factual allegations to support the assertion that the Does defendants are connected to the same transaction, occurrence or series of transactions or occurrences, or any facts that show they specifically acted in concert,” and therefore severed the defendants. No. C–10–4382, 2011 WL 445043, at *3 (N.D.Cal. Feb.3, 2011); accord Io Group, Inc. v. Does 1–435, No. C–10–4382, 2011 WL 1219290 (N.D.Cal. Jan.10, 2011).
*3 Plaintiff insists that the BitTorrent protocol now before the court differs from these older forms of P2P transfer due to the newer technology's “deep and sustained collaborati[ve]” nature. (Pl.'s Mot. 10, 13.) Unlike most earlier means of file sharing, BitTorrent can link up to hundreds of users, colloquially known as a “swarm,” to distribute data. (Pl.'s Mot. 14–15 (citing Hansmeier Decl. ¶ 10).) As Plaintiff explains, BitTorrent operates as follows:
First, the protocol breaks a single large file into a series of smaller distributable pieces. Then, an initial file-provider (the “seeder”) intentionally elects to distribute the pieces to third parties.... Other users (“peers”) on the network download a small “torrent” file that contains directions on where to find the seeder as well as an index of the pieces. The torrent file is loaded into BitTorrent software, and the software follows the directions in the torrent file to connect to the seeder. When peers connect to the seeder, they download random pieces of the file being seeded. When a piece of download is complete, the peers automatically become seeders with respect to the downloaded pieces. In other words, each peer in a swarm transforms from a pure downloader ... to a peer that is simultaneously downloading and distributing pieces of a file.
(Pl.'s Mot. 15–16 (citing Hansmeier Decl. ¶¶ 4–10) (internal citations omitted).) For example, an initial “seeder” may upload a low definition file of an episode of a television show that she enjoys, which the BitTorrent protocol divides into tiny pieces. Other users who wish to obtain this low definition version will begin downloading pieces of the file until they have a complete version. Users who successfully have downloaded pieces of the file will commence “seeding” them to other users as they download the remainder of that file. Eventually, numerous users come to download and/or distribute pieces of the file with each other. Together, these individuals constitute a “swarm”—users seeding and/or downloading the specific file. According to Plaintiff, it is this swarming capability that sets BitTorrent apart from the more limiting, individual-to-individual nature of earlier P2P platforms.
However, Plaintiff glosses over the fact that BitTorrent users may upload different initial files of a given work, which results in the creation of distinct swarms. See Lin Ye et al., A Measurement Study on BitTorrent System, 3 Int'l J. Comm, Network & Sys. Sci 916, 916 (2000); see also Ankur Patel, Comment, BitTorrent Beware: Legitimizing BitTorrent Against Secondary Copyright Liability, 10 Appalachian J.L. 117, 119 (2011). Turning back to the example above, a second initial “seeder” may not enjoy television shows in low definition and instead decide to upload a high definition file of the same episode for distribution. Notably, because of the differences between the first, low definition file and the second, high definition file, the participants in the first swarm would not interact with those in the second swarm. ( See Hansmeier Decl. ¶ 9 (noting that swarms develop around originally seeded file, as opposed to a particular work ).) That BitTorrent users have downloaded the same copyrighted work does not, therefore, evidence that they have acted together to obtain it.
*4 Because of this fundamental constraint on the collaboration between copyright infringers using the BitTorrent protocol, the court finds that Plaintiff cannot meet the permissive joinder requirement of Rule 20(a)(2)(A).FN2 Although Plaintiff explains the protocol and how it differs from its predecessor P2P programs, and specifically claims that Defendants have engaged in a civil conspiracy (Compl.¶¶ 32–39), Plaintiff still has failed to demonstrate that it has “any right to relief against [Defendants] .... arising out of the same transaction, occurrence, or series of transactions or occurrences.” Fed.R.Civ.P. 20(a)(2)(A). This deficiency proves fatal to Plaintiff's attempt to join Defendants because the only commonality between copyright infringers of the same work is that each “commit [ted] the exact same violation of the law in exactly the same way.” LaFace Records, LLC v. Does 138, No. 07–CV–298, 2008 WL 544992, at *2 (E.D.N.C. Feb. 27, 2008) (not reported in F.Supp.) (citation & quotation marks omitted); accord Diabolic Video Prods., Inc., No. 10–CV–5865, at *6 (“[T]he mere allegation that defendants have used the same peer-to-peer network to infringe a copyrighted work is insufficient to meet the standards for joinder set forth in Rule 20.”). The court therefore severs Defendants Does 2–100 from this action. Fed.R.Civ.P. 21; see Coughlin, 130 F.3d at 1350.
FN2. Because the court makes its ruling on the first prong of the permissive joinder test, it need not address the second prong. Moreover, the court does not touch on other critical questions, such as whether joinder of Defendants “would prejudice any party,” “result in needless delay,” Call of the Wild Movie, LL C, 2011 WL 996786, at *4 (citing Lane v. Tschetter, No. 05–1414, 2007 WL 2007493, at *7 (D.D.C. July 10, 2007); M.K. v. Tenet, 216 F.R.D. 113, 138 (D.D.C.2002)); see BMG Music v. Does 1–203, No. 04–650, 2004 WL 953888, at *1 (E.D.Pa. Apr.2, 2004) (not reported in F.Supp.), or impair the administrative efficiency of the Court. See id. at 6 (citing London–Sire Records, Inc., 542 F.Supp.2d at 161). It also does not address whether the court may exercise personal jurisdiction over Defendants. See GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1349–50 (D.C.Cir.2000); Block Indus. v. DHJ Indus., Inc., 495 F.2d 256, 259 (8th Cir.1974).
III. Conclusion
For the reasons above, the court ORDERS that Plaintiff's Motion for Ex Parte Application for Leave to Take Expedited Discovery is GRANTED IN PART; it is further ORDERED that Defendant Does 2–100 are SEVERED from this action; and it is further ORDERED that Plaintiff's claims against Defendants Does 2–100 be DISMISSED without prejudice for improper joinder.
Moreover, it is hereby ORDERED that Plaintiff is allowed to serve immediate discovery on Doe 1's ISP by serving a Rule 45 subpoena that seeks information sufficient to identify Doe 1, including the name, addresses, telephone numbers, and email addresses of Doe 1. The subpoena shall include a copy of this order.
It is further ORDERED that the ISP will have 30 days from the date of service upon it to serve Doe 1 with a copy of the subpoena and a copy of this order. The ISP may serve Doe 1 using any reasonable means, including written notice sent to Doe 1's last known address, transmitted either by first-class mail or via overnight service. The ISP and Doe 1 each shall have 30 days from the date of service to file any motions in this court contesting the subpoena (including a motion to quash or modify the subpoena). If that 30–day period lapses without Doe 1 or the ISP contesting the subpoena, the ISP shall have 10 days to produce to Plaintiff the information responsive to the subpoena with respect to Doe 1.
It is further ORDERED that the ISP shall not assess any charge to Plaintiff in advance of providing the information requested in the subpoena, and that the ISP that receives a subpoena and elects to charge for the costs of production shall provide a billing summary and cost reports that serve as a basis for such billing summary and any costs claimed by the ISP.
*5 It is further ORDERED that the ISP shall preserve all subpoenaed information pending the ISP's delivering such information to Plaintiff or the final resolution of a timely filed and granted motion to quash the subpoena with respect to such information.
It is further ORDERED that Plaintiff may use any information disclosed in response to a subpoena solely to protect its rights under the Copyright Act, 17 U.S.C. § 101 et seq.
To the extent that this order may be dispositive, the court does not require the consent of Defendants because they have not been served and therefore are not parties under the meaning of 28 U.S.C. § 636(c). See Ornelas v. De Frantz, No. 00–1067, 2000 WL 973684, at *2 n. 2 (N.D.Cal. June 29, 2000) (citing Neals v. Norwood, 59 F.3d 530, 532 (5th Cir.1995)).
IT IS SO ORDERED.
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United States District Court,
N.D. California.
PACIFIC CENTURY INTERNATIONAL LTD., Plaintiff,
v.
DOES 1–101, Defendants.
No. C–11–02533–(DMR).
July 8, 2011.
Brett Langdon Gibbs, Steele Hansmeier, PLLC, Mill Valley, CA, for Plaintiff.
ORDER GRANTING PLAINTIFF'S EX PARTE APPLICATION FOR LEAVE TO TAKE EXPEDITED DISCOVERY IN PART; SEVERING DOE DEFENDANTS FROM CASE; AND ORDERING DISMISSAL OF THEIR CLAIMS
DONNA M. RYU, United States Magistrate Judge.
*1 Plaintiff Pacific Century International, Ltd. (“Plaintiff”) moves the court ex parte pursuant to Federal Rules of Civil Procedure 26 and 45 for leave to take expedited discovery so that it may unearth the identities of the as-of-yet unnamed defendants (“Defendants”) in this action. For the reasons provided below, the court grants Plaintiff's motion in part, severs Defendants Does 2–101 from this action, and orders that the claims against Does 2–101 be dismissed due to improper joinder.
I. Expedited Discovery
This action seeks to stop Defendants from reproducing and distributing Plaintiff's copyrighted work Amateur Cream Pies—Erin Stone (“the Work”) via peer-to-peer (“P2P”) file swapping networks. (Compl.¶¶ 1, 7.) Specifically, Plaintiff contends that by using the BitTorrent protocol, Defendants have committed copyright infringement under 17 U.S.C. §§ 101–1322 and engaged in a civil conspiracy under California law to do so. (Compl.¶¶ 25–39 .) Because the alleged infringement occurred on the Internet, Defendants acted under the guise of their Internet Protocol (“IP”) addresses rather than their real names. (Compl.¶ 8.) Therefore, Plaintiff cannot determine Defendants' true identities without procuring the information from Defendants' respective Internet Service Providers (“ISPs”), which can link the IP addresses to a real individual or entity. (Compl.¶ 8.) Consequently, Plaintiff asks the court to grant it expedited discovery to issue subpoenas to the relevant ISPs so that the ISPs will produce the name, address, telephone number, email address, and Media Access Control information attached to each IP address that Plaintiff to date has discovered through its own investigations. (Pl.'s Ex Parte Application for Leave to Take Expedited Discovery (“Pl.'s Mot.”) 1–3, Ex. A.) Plaintiff also notes that “time for discovery is of the essence. Typically, ISPs keep log files of subscriber activities for only limited periods of time before erasing the data.” (Pl.'s Mot. 4 (citing Hansmeier Decl. ¶¶ 21–22, May 26, 2011; Gibbs Decl. ¶ 5, May 26, 2011) (internal citation omitted).)
Although in the Ninth Circuit courts disfavor exceptions to the general rules of discovery, Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D.Cal.1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.1980)), a court will grant a motion for expedited discovery “upon a showing of good cause,” Am. Legalnet, Inc. v. Davis, 673 F.Supp.2d 1063, 1066 (C.D.Cal.2009) (quoting In re Countrywide Fin. Corp. Derivative Litig., 542 F.Supp.2d 1160, 1179 (C.D.Cal.2008)) (quotation marks omitted); accord Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275 (N.D.Cal.2002), unless the court finds that discovery “would not uncover [the defendants'] identities, or that the complaint would be dismissed on other grounds.” Gillespie, 629 F.2d at 642 (citations omitted). Good cause exists where “the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party.” FN1 Am. Legalnet, Inc., 673 F.Supp.2d at 1066 (quoting In re Countrywide Fin. Corp. Derivative Litig., 542 F.Supp.2d at 1179) (quotation marks omitted); accord Semitool, Inc., 208 F.R.D. at 276. The court must perform this evaluation in light of “the entirety of the record ... and [examine] the reasonableness of the request in light of all the surrounding circumstances.” Semitool, Inc., 208 F.R.D. at 275 (citation & quotation marks omitted) (emphasis removed); see Am. Legalnet, Inc., 673 F.Supp.2d at 1067. In this particular context, the court must balance “the need to provide injured parties with an [sic] forum in which they may seek redress for grievances” against “the legitimate and valuable right to participate in online forums anonymously or pseudonymously .... without fear that someone who wishes to harass or embarrass them can file a frivolous lawsuit and thereby gain the power of the court's order to discover their identity.” Columbia Ins. Co., 185 F.R.D. at 578; see also London–Sire Records, Inc. v. Doe 1, 542 F.Supp.2d 153, 163 & nn. 10–11, 179 (D.Mass.2008) (noting that even copyright infringing file downloading entitled to degree of First Amendment protection) (holding that court must consider “the expectation of privacy held by the Doe defendants, as well as other innocent users who may be dragged into the case (for example, because they shared an IP address with an alleged infringer.)” (citation omitted)); Sony Music Entm't, Inc. v. Does 1–40, 326 F.Supp.2d 556, 564 (S.D.N.Y.2004).
FN1. The court notes that due to the necessarily ex parte nature of Plaintiff's motion, Plaintiff faces no adversaries to fully expound on the prejudices that Defendants may face if the court grants Plaintiff expedited discovery. However, other measures to at least partially compensate for this inequity are at the court's disposal. See, e.g., Brief for Amici Curiae at 3, 18–19, Call of the Wild Movie, LLC v. Does 1–358, No. 10–CV–455 (D.D.C. Jan. 3, 2011) (recommending that courts order ISPs to notify customers of impending subpoenas so that customers have opportunity to quash); see also Doe v. 2TheMart.com, 140 F.Supp.2d 1088, 1097 (W.D.Wash.2001) (granting motion to quash subpoena seeking identities of non-party anonymous posters to Internet chat room).
*2 Plaintiff has shown good cause to partake in limited expedited discovery. First, without issuing subpoenas to the ISPs at this time, Plaintiff will “have no other way to obtain this most basic information,” Defendants' identities, without which the lawsuit cannot proceed. UMG Recordings, Inc. v. Does 1–4, No. 06–652, 2006 WL 1343597, at *1 (N.D.Cal. Apr.19, 2006) (not reported in F.Supp.); accord Diabolic Video Prods., Inc. v. Does 1–2,099, No. 10–CV–5865, at *4–5 (N.D.Cal. May 31, 2011) (order granting in part motion for leave to take limited discovery prior to Rule 26(f) conference); Io Group, Inc. v. Does 1–435, No. 10–4382, at *1 (N .D.Cal. Oct. 15, 2010) (order granting plaintiff's request for leave to take early discovery); Semitool, Inc., 208 F.R.D. at 276. ( Accord Hansmeier Decl. ¶ 21; Gibbs Decl. ¶ 2.) Furthermore, there exists a high risk that the ISPs may destroy the information Plaintiff seeks and thereby preclude Plaintiff from discovering Defendants' true identities. UMG Recordings, Inc., 2006 WL 1343597, at *1. ( Accord Hansmeier Decl. ¶ 22; Gibbs Decl. ¶ 5.) Finally, copyright infringement claims “necessarily involve[ ] irreparable harm to Plaintiff[ ], as a copyright holder is presumed to suffer irreparable harm as a matter of law” when the ambit of its copyright is invaded. UMG Recordings, Inc., 2006 WL 1343597, at * 1. Nevertheless, the court grants Plaintiff expedited discovery only in part because the court dismisses the complaint against all but Doe 1 for improper joinder. See Gillespie, 629 F.2d at 642.
II. Joinder of Defendants
Rule 20 of the Federal Rules of Civil Procedure, in relevant part, permits a plaintiff to join multiple defendants into one action if “(A) any right to relief is asserted against them ... arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action.” Fed.R.Civ.P. 20(a)(2). When determining whether defendants are joined properly, the court should “liberally construe[ ] [the requirements] in the interest of convenience and judicial economy in a manner that will secure the just, speedy, and inexpensive termination of the action.” Call of the Wild Movie, LLC v. Does 1–1,062, No. 10–455, 2011 WL 996786 (D.D.C. Mar.22, 2011) (citation & quotation marks omitted); see United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Diabolic Video Prods., Inc., No. 10–CV–5865, at *5. If defendants do not satisfy the test for permissive joinder, the court may sever the misjoined parties, “so long as no substantial right will be prejudiced by the severance.” Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir.1997) (citation omitted); see Fed.R.Civ.P. 21 (“Misjoinder of parties is not a ground for dismissing an action.”).
Attempts to join numerous defendants in a single action for copyright infringement over P2P networks historically have failed. For example, in Interscope Records v. Does 1–25, No. 4–CV–197, 2004 U.S. Dist. LEXIS 27782 (M.D.Fla. Apr. 1, 2004) (not reported in F.Supp.), and Elektra Entertainment Group, Inc. v. Does 1–9, No. 04–Civ–2289, 2004 WL 2095581 (S.D.N.Y. Sept.8, 2004) (not reported in F.Supp.), courts found misjoinder when plaintiffs brought suit against multiple defendants for downloading copyrighted materials using the Fast Track P2P network. Fast Track “allows users to have their computers function as an interactive Internet site, disseminating files for other users to copy.” Elektra Enter. Group, Inc., 2004 WL 2095581, at * 1. An individual accessing the Fast Track network thus may download an entire file directly from another user's computer. See id. The Interscope Records and Elektra Entertainment Group courts held that the respective complaints fell afoul of Rule 20(a)(2)(A) because they claimed only that the defendants used Fast Track to perform their illegal downloads and did not suggest that the defendants engaged in the same transaction, occurrence, or series of transactions or occurrences. 2004 U.S. Dist. LEXIS 27782, at *10, 2004 WL 2095581, at *7. Notably, the Interscope Records court suggested that a showing that a defendant downloaded protected works from another defendant “could conceivably link” them for joinder purposes. 2004 U.S. Dist. LEXIS 27782, at *10. This scenario also arose in cases involving the P2P network Gnutella. In Fonovisa, Inc. v. Does 1–9, the court granted severance to a defendant who claimed misjoinder because the “Plaintiffs have failed to allege any facts tending to show that one or more of the Defendants has actually downloaded songs from another Defendant, which could conceivably link the Defendants or show they acted in concert[;]” the plaintiffs simply alleged that the defendants had used the same P2P network. No. 07–1515, 2008 WL 919701, at *5–6 (W.D.Pa. Apr.3, 2008) (not reported in F.Supp.). Suits against users of the more sophisticated P2P network eDonkey2000 faced the same obstacles. In Io Group, Inc. v. Does 1–435, the court stated that the complaint contained “no factual allegations to support the assertion that the Does defendants are connected to the same transaction, occurrence or series of transactions or occurrences, or any facts that show they specifically acted in concert,” and therefore severed the defendants. No. C–10–4382, 2011 WL 445043, at *3 (N.D.Cal. Feb.3, 2011); accord Io Group, Inc. v. Does 1–435, No. C–10–4382, 2011 WL 1219290 (N.D.Cal. Jan.10, 2011).
*3 Plaintiff insists that the BitTorrent protocol now before the court differs from these older forms of P2P transfer due to the newer technology's “deep and sustained collaborati[ve]” nature. (Pl.'s Mot. 10, 13.) Unlike most earlier means of file sharing, BitTorrent can link up to hundreds of users, colloquially known as a “swarm,” to distribute data. (Pl.'s Mot. 14–15 (citing Hansmeier Decl. ¶ 10).) As Plaintiff explains, BitTorrent operates as follows:
First, the protocol breaks a single large file into a series of smaller distributable pieces. Then, an initial file-provider (the “seeder”) intentionally elects to distribute the pieces to third parties.... Other users (“peers”) on the network download a small “torrent” file that contains directions on where to find the seeder as well as an index of the pieces. The torrent file is loaded into BitTorrent software, and the software follows the directions in the torrent file to connect to the seeder. When peers connect to the seeder, they download random pieces of the file being seeded. When a piece of download is complete, the peers automatically become seeders with respect to the downloaded pieces. In other words, each peer in a swarm transforms from a pure downloader ... to a peer that is simultaneously downloading and distributing pieces of a file.
(Pl.'s Mot. 15–16 (citing Hansmeier Decl. ¶¶ 4–10) (internal citations omitted).) For example, an initial “seeder” may upload a low definition file of an episode of a television show that she enjoys, which the BitTorrent protocol divides into tiny pieces. Other users who wish to obtain this low definition version will begin downloading pieces of the file until they have a complete version. Users who successfully have downloaded pieces of the file will commence “seeding” them to other users as they download the remainder of that file. Eventually, numerous users come to download and/or distribute pieces of the file with each other. Together, these individuals constitute a “swarm”—users seeding and/or downloading the specific file. According to Plaintiff, it is this swarming capability that sets BitTorrent apart from the more limiting, individual-to-individual nature of earlier P2P platforms.
However, Plaintiff glosses over the fact that BitTorrent users may upload different initial files of a given work, which results in the creation of distinct swarms. See Lin Ye et al., A Measurement Study on BitTorrent System, 3 Int'l J. Comm, Network & Sys. Sci 916, 916 (2000); see also Ankur Patel, Comment, BitTorrent Beware: Legitimizing BitTorrent Against Secondary Copyright Liability, 10 Appalachian J.L. 117, 119 (2011). Turning back to the example above, a second initial “seeder” may not enjoy television shows in low definition and instead decide to upload a high definition file of the same episode for distribution. Notably, because of the differences between the first, low definition file and the second, high definition file, the participants in the first swarm would not interact with those in the second swarm. ( See Hansmeier Decl. ¶ 9 (noting that swarms develop around originally seeded file, as opposed to a particular work ).) That BitTorrent users have downloaded the same copyrighted work does not, therefore, evidence that they have acted together to obtain it.
*4 Because of this fundamental constraint on the collaboration between copyright infringers using the BitTorrent protocol, the court finds that Plaintiff cannot meet the permissive joinder requirement of Rule 20(a)(2)(A).FN2 Although Plaintiff explains the protocol and how it differs from its predecessor P2P programs, and specifically claims that Defendants have engaged in a civil conspiracy (Compl.¶¶ 32–39), Plaintiff still has failed to demonstrate that it has “any right to relief against [Defendants] .... arising out of the same transaction, occurrence, or series of transactions or occurrences.” Fed.R.Civ.P. 20(a)(2)(A). This deficiency proves fatal to Plaintiff's attempt to join Defendants because the only commonality between copyright infringers of the same work is that each “commit [ted] the exact same violation of the law in exactly the same way.” LaFace Records, LLC v. Does 138, No. 07–CV–298, 2008 WL 544992, at *2 (E.D.N.C. Feb. 27, 2008) (not reported in F.Supp.) (citation & quotation marks omitted); accord Diabolic Video Prods., Inc., No. 10–CV–5865, at *6 (“[T]he mere allegation that defendants have used the same peer-to-peer network to infringe a copyrighted work is insufficient to meet the standards for joinder set forth in Rule 20.”). The court therefore severs Defendants Does 2–100 from this action. Fed.R.Civ.P. 21; see Coughlin, 130 F.3d at 1350.
FN2. Because the court makes its ruling on the first prong of the permissive joinder test, it need not address the second prong. Moreover, the court does not touch on other critical questions, such as whether joinder of Defendants “would prejudice any party,” “result in needless delay,” Call of the Wild Movie, LL C, 2011 WL 996786, at *4 (citing Lane v. Tschetter, No. 05–1414, 2007 WL 2007493, at *7 (D.D.C. July 10, 2007); M.K. v. Tenet, 216 F.R.D. 113, 138 (D.D.C.2002)); see BMG Music v. Does 1–203, No. 04–650, 2004 WL 953888, at *1 (E.D.Pa. Apr.2, 2004) (not reported in F.Supp.), or impair the administrative efficiency of the Court. See id. at 6 (citing London–Sire Records, Inc., 542 F.Supp.2d at 161). It also does not address whether the court may exercise personal jurisdiction over Defendants. See GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1349–50 (D.C.Cir.2000); Block Indus. v. DHJ Indus., Inc., 495 F.2d 256, 259 (8th Cir.1974).
III. Conclusion
For the reasons above, the court ORDERS that Plaintiff's Motion for Ex Parte Application for Leave to Take Expedited Discovery is GRANTED IN PART; it is further ORDERED that Defendant Does 2–100 are SEVERED from this action; and it is further ORDERED that Plaintiff's claims against Defendants Does 2–100 be DISMISSED without prejudice for improper joinder.
Moreover, it is hereby ORDERED that Plaintiff is allowed to serve immediate discovery on Doe 1's ISP by serving a Rule 45 subpoena that seeks information sufficient to identify Doe 1, including the name, addresses, telephone numbers, and email addresses of Doe 1. The subpoena shall include a copy of this order.
It is further ORDERED that the ISP will have 30 days from the date of service upon it to serve Doe 1 with a copy of the subpoena and a copy of this order. The ISP may serve Doe 1 using any reasonable means, including written notice sent to Doe 1's last known address, transmitted either by first-class mail or via overnight service. The ISP and Doe 1 each shall have 30 days from the date of service to file any motions in this court contesting the subpoena (including a motion to quash or modify the subpoena). If that 30–day period lapses without Doe 1 or the ISP contesting the subpoena, the ISP shall have 10 days to produce to Plaintiff the information responsive to the subpoena with respect to Doe 1.
It is further ORDERED that the ISP shall not assess any charge to Plaintiff in advance of providing the information requested in the subpoena, and that the ISP that receives a subpoena and elects to charge for the costs of production shall provide a billing summary and cost reports that serve as a basis for such billing summary and any costs claimed by the ISP.
*5 It is further ORDERED that the ISP shall preserve all subpoenaed information pending the ISP's delivering such information to Plaintiff or the final resolution of a timely filed and granted motion to quash the subpoena with respect to such information.
It is further ORDERED that Plaintiff may use any information disclosed in response to a subpoena solely to protect its rights under the Copyright Act, 17 U.S.C. § 101 et seq.
To the extent that this order may be dispositive, the court does not require the consent of Defendants because they have not been served and therefore are not parties under the meaning of 28 U.S.C. § 636(c). See Ornelas v. De Frantz, No. 00–1067, 2000 WL 973684, at *2 n. 2 (N.D.Cal. June 29, 2000) (citing Neals v. Norwood, 59 F.3d 530, 532 (5th Cir.1995)).
IT IS SO ORDERED.
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Wednesday, July 13, 2011
51 Twitter Lists Following Copyright Litigation Blog @raydowd
Lists following @raydowd
@unyil_13/photography @TriangleTM_Esq/admktinglaw
Advertising, marketing, trademark, copyright law @TriangleTM_Esq/ip-lawyers @cyberpunknews/enemies-of-a-happy-net @CPA_Fans_Page/dailycheckacctgusa
Related mostly with financial/accounting/tax in USA, and have to check on a daily basis.
@revjaydub/copyright-law @GryphonLtd/international-law @GryphonLtd/litigation @GryphonLtd/fraud-lawyers @AdrianLurssen/jdsupra-lawyers-firms
Lawyers, law firms, and legal professionals distributing content on the @JDSupra network.
@rachaelvaughn/soft-ip
copyright and trademark tweeting
@rachaelvaughn/attorneys
tweeting lawyers
@rachaelvaughn/bloggers
bloggers who tweet
@joygarnett/arty-world-2 @CPA_Fans_Page/accountingnews
Accounting Related News
@CPA_Fans_Page/accountants-taxes
Certified Public Accountants (CPA) and other accounting designations @joygarnett/copyfog @theglipper/first-amendment-media
Folks that tweet about journalism, media, and Amendment 1.
@Diggingpitt/art-bloggers-writers
This is a random list of critics, bloggers, artists and media that tweet about art.
@sawagner30/business-media @CPA_Fans_Page/businessinfo1-21
Tweeps/followers who are into business and other professions @IPblawger/i-p-lawyers
Intellectual Property Lawyers on Twitter
@aaron_ef/ip-attorneys @rgauss/rgauss-copyright @neild1/copyright @njAtty/attorneys @IP360Asia/us-canada2 @mjmartell/esq
legal
@RickJLaRue/head-of-christ-by-richard
I drew a depiction of Christ in 1979. It was stolen from me and is currently being sold by cph.org @Maurism1/derecho @lods1211/ip-it-law
Copyright, Internet/Cyber Law, Media & Entertainment Law, Defamation
@Borty/lawyers @LegalEyeGirl/lawyers-legalbiz-network
Loving the Law and LegalNews-Fighting for Justice-Staying Informed
@HarvardLaw74/ip-attorneys @IPLawToday/hollywood-law
Legal Developments in Hollywood
@mmasnick/news @ballard_ip/intellectual-property
US intellectual property law practitioners who limit their personal tweets
@ksuzan/attorneys @mridgwayjones/ip
Intellectual Property
@JohnPruitt/justiceleague
Attorneys and others who are doing their part to share information to the legal industry
@steve_jacobs/ip-law @Lumpy/podcasters-broadcasters
Anyone who produces Audio and/or Video content.
@davidsanger/photography-law @GlennEsq/law-blogs
a List of Law-related blogs I recommend
@GoetzFitz/interesting-lawyers @RobertAPaul/law @RobertAPaul/intellectual-property @sulilaw/legal @ernieattorney/lawdawgs @ARTnewsmag/artsorgs @asilverstein/ip
Intellectual Property
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
@unyil_13/photography @TriangleTM_Esq/admktinglaw
Advertising, marketing, trademark, copyright law @TriangleTM_Esq/ip-lawyers @cyberpunknews/enemies-of-a-happy-net @CPA_Fans_Page/dailycheckacctgusa
Related mostly with financial/accounting/tax in USA, and have to check on a daily basis.
@revjaydub/copyright-law @GryphonLtd/international-law @GryphonLtd/litigation @GryphonLtd/fraud-lawyers @AdrianLurssen/jdsupra-lawyers-firms
Lawyers, law firms, and legal professionals distributing content on the @JDSupra network.
@rachaelvaughn/soft-ip
copyright and trademark tweeting
@rachaelvaughn/attorneys
tweeting lawyers
@rachaelvaughn/bloggers
bloggers who tweet
@joygarnett/arty-world-2 @CPA_Fans_Page/accountingnews
Accounting Related News
@CPA_Fans_Page/accountants-taxes
Certified Public Accountants (CPA) and other accounting designations @joygarnett/copyfog @theglipper/first-amendment-media
Folks that tweet about journalism, media, and Amendment 1.
@Diggingpitt/art-bloggers-writers
This is a random list of critics, bloggers, artists and media that tweet about art.
@sawagner30/business-media @CPA_Fans_Page/businessinfo1-21
Tweeps/followers who are into business and other professions @IPblawger/i-p-lawyers
Intellectual Property Lawyers on Twitter
@aaron_ef/ip-attorneys @rgauss/rgauss-copyright @neild1/copyright @njAtty/attorneys @IP360Asia/us-canada2 @mjmartell/esq
legal
@RickJLaRue/head-of-christ-by-richard
I drew a depiction of Christ in 1979. It was stolen from me and is currently being sold by cph.org @Maurism1/derecho @lods1211/ip-it-law
Copyright, Internet/Cyber Law, Media & Entertainment Law, Defamation
@Borty/lawyers @LegalEyeGirl/lawyers-legalbiz-network
Loving the Law and LegalNews-Fighting for Justice-Staying Informed
@HarvardLaw74/ip-attorneys @IPLawToday/hollywood-law
Legal Developments in Hollywood
@mmasnick/news @ballard_ip/intellectual-property
US intellectual property law practitioners who limit their personal tweets
@ksuzan/attorneys @mridgwayjones/ip
Intellectual Property
@JohnPruitt/justiceleague
Attorneys and others who are doing their part to share information to the legal industry
@steve_jacobs/ip-law @Lumpy/podcasters-broadcasters
Anyone who produces Audio and/or Video content.
@davidsanger/photography-law @GlennEsq/law-blogs
a List of Law-related blogs I recommend
@GoetzFitz/interesting-lawyers @RobertAPaul/law @RobertAPaul/intellectual-property @sulilaw/legal @ernieattorney/lawdawgs @ARTnewsmag/artsorgs @asilverstein/ip
Intellectual Property
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Tuesday, July 12, 2011
Fair Use: Response to YouTube's Copyright School - Copyright Law
Mike Madison's take on Madisonian.net here
More on YouTube copyright school here.
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Thursday, July 7, 2011
First Circuit: Attorneys Fees and Costs May Far Exceed Damages In Copyright Infringement Cases
In Spooner v. EEN, Inc., 2011 WL 261178 (1st Cir. July 5, 2011), the First Circuit court of appeals considered a case where statutory damages were greatly outweighed by the attorneys fees awarded by the district court. The decision, helpful to any attorney hoping to get a sizeable fee award, is embedded below.
My book Copyright Litigation Handbook has an entire Chapter 18 titled Costs and Attorneys fees. In Spooner, the First Circuit clarified that attorneys fees may be awarded "as costs". So the appellate court does not have jurisdiction unless ALL costs have been fixed below, since it is then not a final judgment. The Spooner court let the parties remedy the jurisdictional defect.
The various circuit courts of appeal take different approaches in awarding fees and costs. A knowledge of the case law is important to ensure that an application for attorneys fees and costs will be successful.
Spooner v EEN Inc
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
My book Copyright Litigation Handbook has an entire Chapter 18 titled Costs and Attorneys fees. In Spooner, the First Circuit clarified that attorneys fees may be awarded "as costs". So the appellate court does not have jurisdiction unless ALL costs have been fixed below, since it is then not a final judgment. The Spooner court let the parties remedy the jurisdictional defect.
The various circuit courts of appeal take different approaches in awarding fees and costs. A knowledge of the case law is important to ensure that an application for attorneys fees and costs will be successful.
Spooner v EEN Inc
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
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