Fair Use Fridays: Kutiman Mashes Jerusalem - Beautifully

More beautiful music and images here

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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

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The Black Keys "Tighten Up" and Sue Della Femina for Copyright Infringement

Enjoy the YouTube video of "Tighten Up" from the album Brothers by the Black Keys, above. The Black Keys are not happy with the Della Femina advertising agency and Valley National Bank and claim that the agency has used Tighten Up without permission in an advertisement.

Complaint filed in the Southern District of New York below:

Nonesuch Records v Della Femina Complaint

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Fair Use Fridays: You Are Listening To New York - Ambient Music and Live Police Radio Feed

Mixture of police radio and ambient music here, beautiful .... thanks to BoingBoing's post here.

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Music Copyright PSA

Copyright PSA: interviews with music industry execs about music filesharing, illegal downloads, how musicians make money, watch a guy get fired because of Limewire.

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Copyright Law: Boston Judge Holds Jury Award Unconstitutional in Music Dowloading Statutory Damages Case

In Sony BMG Music Entertainment (07cv11446-NG)(D. Mass July 9, 2010), Judge Nancy Gertner has written a 61-page decision that is an intellectual tour-de-force - concluding that a $675,000 statutory damages award against a student named Joel Tenenbaum who illegally downloaded music and then shared the songs on peer-to-peer file sharing services.  Judge Gertner's decision is linked below via Scrib'd.

The judge reduced the statutory damages award to $2,250 for each of the thirty infringed works.  This was a reduction of 90% from the jury's award of $22,500 per song.

The Tenenbaum case was debated in an IP Colloquium moderated by Prof Doug Lichtman, free CLE and audio here.   On this blog I rarely try to handicap the outcome of ongoing copyright cases.  All too often the casual observer doesn't have all of the operative facts.   But after listening to the excellent debate on the IP Colloquium I disagreed with Doug Lichtman's apparent conclusion that statutory damages clearly wouldn't be held unconstitutional based on Prof. Charlie Nesson's arguments.  My post on the Tenenbaum case here.

Both Doug Lichtman and Charlie Nesson, counsel for Tenenbaum hopped on the blog and commented on my post.   Check out the debate here.   I think that it's the most interesting discussion held on this blog since I started it.

I think that Doug Lichtman ended up being right about the analysis that would be applied to the case, you can see his thinking in his comments to my March 28, 2009 post (I had expressed sympathy for Nesson's arguments that excessive statutory damages were penal in nature).

The RIAA originally wrote a cease and desist letter to Tenenbaum asking for $3500.  Tenenbaum mailed them $500.  They rejected it.  RIAA sued and demanded $12,500.  He refused and this litigation ensued.

A key fact that all should know and that escapes many media posts is that the court found that Joel Tenenbaum first lied about his responsibility for file sharing (he tried to blame family members), then he claimed he'd deleted files, which he hadn't.   This is a key fact when we look at statutory damages, because wilfullness/innocence is a factor that is taken into account.   Courts routinely whack people who lie and who cause property owners to incur hassles and increased damages due to their untruthfulness.

So the basic first lesson to be taken from this and any other case is that if you want to be a martyr for a great cause and to vindicate some great principle through our courts, don't compound any initial error by lying about your actions.  Tenenbaum is not a pop hero, he should count his lucky stars and work out a settlement.  If Harvard wants another test case, find a fourteen year-old.   Tenenbaum should consider quitting school, getting a job and paying off the debt.  The Boston Globe interview (video posted below) shows that Tenenbaum shows little inclination to accept any responsibility for his actions, and as attorneys fees mount, his downside keeps getting worse.

Turning to Judge Gartner's decision -  it is a landmark work of scholarship in the area of punitive damages and the rules that should apply to copyright.  If you care about this area, read it. It also explains the relationship between remittitur and a judge's ability or obligation to address the constitutionality of a statutory damages award.  Her decision is groundbreaking, thoughtful, and accords with the thinking of the federal judge in Minnesota who vacated the jury's award in the Jammie Thomas case.  My post on that case here.

The case is at a point that the RIAA and Tenenbaum can each claim victory.  Charlie Nesson's arguments made during the IP Colloquium were vindicated, although not in the way he envisioned, and he has created law that is sensible, humane and realistic in the field of statutory damages and punitive damages in copyright cases.  Doug Lichtman's analytical approach was adopted by the court, although not quite the way he envisioned.

Settle it.

Related post:  2d Cir Rejects "Independent Economic Value" Test.





Boston Judge Holds Music Filesharing Damages Unconstitutional in Tenenbaum Case



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DC Cir: RIAAA Must Pay Copyright Owners Late Fees - Ruling on Compulsory Licensing of Musical Works

In Recording Indus. Ass'n of America, Inc. v. Librarian of Congress, --- F.3d --- (D.C. Cir. June 22, 2010), the D.C. Circuit upheld the Copyright Royalty Board's imposition of late fees on the RIAA when it fails to pay copyright owners.

The issue arises in the case of "compulsory licenses" - that is where someone uses a musical work without the owner's permission.   Like a cover band recording a Led Zep tune without the band's permission.  The DC Circuit's decision has a nice explanation of compulsory licensing and how it works.  Excerpt below in italics:

Most songs played on the radio, sold on CDs in music stores, or digitally available on the Internet through services like iTunes embody two distinct copyrights-a copyright in the “musical work” and a copyright in the “sound recording.” See 17 U.S.C. § 102. The musical work is the musical composition-the notes and lyrics of the song as they appear on sheet music. The sound recording is the recorded musical work performed by a specific artist.



Although almost always intermingled in a single song, those two copyrights are legally distinct and may be owned and licensed separately. One party might own the copyright in the words and musical arrangement of a song, and another party might own the copyright in a particular artist's recording of those words and musical notes.


This case involves licenses in a limited category of copyrighted musical works-as opposed to sound recordings. Section 115 of the Copyright Act allows an individual to make and distribute phonorecords (that is, sound recordings) of a copyrighted musical work without reaching any kind of agreement with the copyright owner. That right does not include authorization to make exact copies of an existing sound recording and distribute it; if a musical work has been recorded and copyrighted by another artist, a licensee “may exercise his rights under the [§ 115] license only by assembling his own musicians, singers, recording engineers and equipment, etc. for the purpose of recording anew the musical work that is the subject of the [§ 115] license.” 2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 8.04[A], at 8-58.5 (2009). For example, a § 115 licensee could pull together a group of musicians to record and sell a cover version of Bruce Springsteen's 1975 hit Born to Run, but that licensee could not make copies of Springsteen's recording of that song and sell them.


The § 115 licensing regime operates in a fairly straightforward manner. When a copyright owner distributes work “to the public,” § 115's provisions are triggered. 17 U.S.C. § 115(a)(1). Once that occurs, anyone may “obtain a compulsory license to make and distribute phonorecords of the work” under § 115 so long as the “primary purpose in making [the] phonorecords is to distribute them to the public for private use.” Id. Assuming the copyright has been registered with the Copyright Office, the licensee owes the copyright owner a royalty for every phonorecord “made and distributed in accordance with the [§ 115] license.” Id. § 115(c)(2). For purposes of the Copyright Act, a phonorecord is “distributed”-and an obligation to pay the copyright owner a royalty created-when “the person exercising the [§ 115] license has voluntarily and permanently parted with” the phonorecord. Id . In other words, the licensee's sale of its recording of the copyright owner's work triggers the royalty payment obligation. See Nimmer § 8.04[H][1], at 8-77.


Because the § 115 license issues without any agreement between the copyright owner and the licensee, the system needs a mechanism to figure out how much the licensee owes the copyright owner and what the terms for paying that rate should be. Although that mechanism has changed over time, the Copyright Royalty Board currently serves as the rulemaking body for this system. See generally Procedural Regulations for the Copyright Royalty Board, 70 Fed.Reg. 30,901 (May 31, 2005) (discussing the history of royalty ratemaking). The Board is a three-person panel appointed by the Librarian of Congress and removable only for cause by the Librarian.FN1 The Board sets the terms and rates for copyright royalties when copyright owners and licensees fail to negotiate terms and rates themselves. See Nimmer § 7.27[C], at 7-243.


FN1. RIAA has not raised a constitutional challenge to the method of appointment of the members of the Copyright Royalty Board. Cf. Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 574 F.3d 748, 755-56 (D.C.Cir.2009); SoundExchange, Inc. v. Librarian of Congress, 571 F.3d 1220, 1226-27 (D.C.Cir.2009) (Kavanaugh, J., concurring).


As relevant here, the Copyright Act requires the Board to set “reasonable terms and rates” for royalty payments made under the § 115 license when the parties to the license fail to do so. 17 U.S.C. § 801(b)(1). When establishing terms and rates under that license, the Copyright Act requires the Board to balance four general and sometimes conflicting policy objectives: (1) maximizing the availability of creative works to the public; (2) providing copyright owners a fair return for their creative works and copyright users a fair income; (3) recognizing the relative roles of the copyright owners and users; and (4) minimizing any disruptive impact on the industries involved. Id. § 801(b)(1)(A)-(D).


At specified intervals, the Board holds ratemaking proceedings for licenses issued under the Copyright Act. Section 115 ratemaking proceedings can occur every five years “or at such other times as the parties have agreed.” Id. § 804(b)(4).

In 1996, the parties with an interest in the § 115 license (such as the Recording Industry Association of America, the Songwriter's Guild of America, and the National Music Publishers' Association) agreed on various terms and rates for the compulsory license. They also agreed that the settlement with respect to those terms and rates would expire 10 years later. In 2006, after the parties found they could not reach a new compromise, the Board instituted proceedings to set certain terms and rates governing the operation of the § 115 license. The process was long and complicated, involving 28 days of live testimony, more than 140 exhibits, and more than 340 pleadings, motions, and orders. See Mechanical and Digital Phonorecord Delivery Rate Determination Proceeding, 74 Fed.Reg. 4510, 4511 (Jan. 26, 2009).

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SDNY: System of a Down: Mistakes in Copyright Registrations and Supplementary Registrations

System of a Down's Mezmerize on Amazon.com

The Code of Federal Regulations provides for "supplementary registration" in the following cases:

§201.5 Corrections and amplifications of copyright registrations; applications for supplementary registration. (a)  General. (1) This section prescribes conditions relating to the filing of an application for supplementary registration, to correct an error in a copyright registration or to amplify the information given in a registration, under section 408(d) of title 17 of the United States Code, as amended by Pub. L. 94-553. For the purposes of this section: (i)


A basic registration means any of the following:
(A) A copyright registration made under sections 408, 409, and 410 of title 17 of the United States Code, as amended by Pub. L. 94-553;
(B) a renewal registration made under section 304 of title 17 of the United States Code, as so amended;
(C) a registration of claim to copyright made under title 17 of the United States Code as it existed before January 1, 1978; or
(D) a renewal registration made under title 17 of the United States Code as it existed before January 1, 1978; and


(ii) A supplementary registration means a registration made upon application under section 408(d) of title 17 of the United States Code, as amended by Pub. L. 94-553, and the provisions of this section.


(2) No correction or amplification of the information in a basic registration will be made except pursuant to the provisions of this § 201.5. As an exception, where it is discovered that the record of a basic registration contains an error that the Copyright Office itself should have recognized at the time registration was made, the Office will take appropriate measures to rectify its error.


(b)  Persons entitled to file an application for supplementary registration; grounds of application. (1) Supplementary registration can be made only if a basic copyright registration for the same work has already been completed. After a basic registration has been completed, any author or other copyright claimant of the work, or the owner of any exclusive right in the work, or the duly authorized agent of any such author, other claimant, or owner, who wishes to correct or amplify the information given in the basic registration for the work may file an application for supplementary registration. n1 n1 If the person who, or on whose behalf, an application for supplementary registration is submitted is the same as the person identified as the copyright claimant in the basic registration, the Copyright Office will place a note referring to the supplementary registration on its records of the basic registration.


(2)  Supplementary registration may be made either to correct or to amplify the information in a basic registration. For the purposes of this section:


(i)  A correction is appropriate if information in the basic registration was incorrect at the time that basic registration was made, and the error is not one that the Copyright Office itself should have recognized;
(ii) An amplification is appropriate:  (A) To supplement or clarify the information that was required by the application for the basic registration and should have been provided, such as the identity of a co-author or co-claimant, but was omitted at the time the basic registration was made, or

(B)  To reflect changes in facts, other than those relating to transfer, license, or ownership of rights in the work, that have occurred since the basic registration was made.


(iii)  Supplementary registration is not appropriate:


(A)  As an amplification, to reflect a change in ownership that occurred on or after the effective date of the basic registration or to reflect the division, allocation, licensing or transfer of rights in a work; or
(B)  To correct errors in statements or notices on the copies of phonorecords of a work, or to reflect changes in the content of a work; and
(iv) Where a basic renewal registration has been made for a work during the last year of the relevant first-term copyright, supplementary registration to correct the renewal claimant or basis of claim or to add a renewal claimant is ordinarily possible only if the application for supplementary registration and fee are received in the Copyright Office within the last year of the relevant first-term copyright. If the error or omission in a basic renewal registration is extremely minor, and does not involve the identity of the renewal claimant or the legal basis of the claim, supplementary registration may be made at any time. In an exceptional case, however, supplementary registration may be made to correct the name of the renewal claimant and the legal basis of the claim at any time if clear, convincing, objective documentation is submitted to the Copyright Office which proves that an inadvertent error was made in failing to designate the correct living statutory renewal claimant in the basic renewal registration.

In Maxwood v. Malakian, 2010 WL 2010936 (May 18, 2010), SDNY USDJ Sweet analyzed the dilemma of a rock band System of a Down.  The facts were roughly these:

Band invites friend to jam while new album being prepared.
Band member wishes to gift a portion of writer's royalties to friend on one song.
Friend thanks band member in writing for 2% gift of writer's royalties.
When credits sent to SONY by band, the gift is mistakenly identified as a writing credit.
SONY files copyright registration with mistake.
Band notices mistake, asks SONY to fix it.
SONY files supplementary registration, but identifies giftee as a "silent writer".
When mistake pointed out again, SONY finally fixes it and gets it right.
Giftee decides he co-wrote song.
Giftee sues friend who gave him gift.

In a 16 page decision, Judge Sweet analyzes evidence presented at trial.   The court rejects claims of co-authorship, states emphatically that "mistakes are not admissions" and points out the Copyright Office's procedures to correct errors.

"Evidence in a supplemental registration that rebuts information in an original registration similarly rebuts any presumption accorded the facts on the original registration."

citing Estate of Hogarth v. Edgar Rice Burroughs, Inc., 342 F.3d 149, 165-167 (2d Cir. 2003).

The decision is an excellent primer for musicians on how to keep good records of the creative process.  Judge Sweet relied heavily on poetry journals, lyric sheets and spreadsheets created by band members showing writing and royalty splits.

I discuss Copyright Ownership and Licensing Litigation in Chapter 8 of Copyright Litigation Handbook, including disputes over joint authorship.

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Synchronizing Art to a Sound Recording: Do Financial Incentives Demotivate Creativity and Problem Solving?

HT to Mike Masnick of Techdirt.  Not only is Dan Pink's video by RSA Animate (embedded below) thought-provoking and relevant to whether or not money stimulates creative activity.  It is also relevant to the core purpose of the Copyright Act and arguments raised in defense of draconian copyright: whether or if financial incentives stimulate creativity.  Studies by the Federal Reserve and MIT raise the question of whether financial incentives actually decrease creativity.

Anyone trying to get more productivity out of an organization without spending more money ought to take these studies very seriously.

Far Copyleft folks see copyrighted works as mere free raw materials for creating new works.  The far Copyright folks see a copyrighted work as a sacred, inviolable and untouchable iconic thing that may only be accessed when, how, for how long and as often as the copyright owner dictates.

Far Copyright folks see a copyright as a complete monopoly from which windfall profits are to be extracted every time a new technology emerges to make a consumer's old licensed copy of a work obsolete or every time a consumer wants to use or dispose of the copy as he or she sees fit. The first sale doctrine lets us resell a car we've purchased without paying the manufacturer. Restraints on the alienation of property are disfavored in the common law because this blocks free economic activity.

Should we have to pay a German copyright holder because we want to make fun of Hitler using the German copyright holder's ridiculously earnest economic exploitation of the Hitler theme in the film Downfall? Or does the exploiter of a theme have to take crap from people who want to laugh at them or laugh at sometimes serious, sometimes silly themes using them?

The issue I think was wrongly decided in Dr. Seuss v. Penguin Books, a Ninth Circuit case decided in 1997.  Here is how the court handled the issue of parody?
It is the rule in this Circuit that though the satire need not be only of the copied work and may . . . also be a parody of modern society, the copied work must be, at least in part, an object of the parody, otherwise there would be no need to conjure up the original work. . . . By requiring that the copied work be an object of the parody, we merely insist that the audience be aware that underlying the parody there is an original and separate expression, attributable to a different artist.

* * *
We now turn our attention to The Cat NOT in the Hat! itself. The first two pages present a view of Los Angeles, with particular emphasis on the connection with Brentwood, given the depiction of the news camera lights. The story begins as follows:



A happy town Inside L.A. Where rich folks play The day away.
But under the moon The 12th of June. Two victims flail Assault! Assail! Somebody will go to jail!
Who will it be? Oh my! Oh me!


The third page reads: "One Knife? / Two Knife? / Red Knife / Dead Wife." This stanza no doubt mimics the first poem in Dr. Seuss' One Fish Two Fish Red Fish Blue Fish: "One fish / two fish / red fish / blue fish. Black fish / blue fish / old fish / new fish." For the next eighteen pages, Katz writes about Simpson's trip to Chicago, the noise outside Kato Kaelin's room, the bloody glove found by Mark Fuhrman, the Bronco chase, the booking, the hiring of lawyers, the assignment of Judge Ito, the talk show interest, the comment on DNA, and the selection of a jury. On the hiring of lawyers for Simpson, Katz writes:


A plea went out to Rob Shapiro Can you save the fallen hero? And Marcia Clark, hooray, hooray Was called in with a justice play.
A man this famous Never hires Lawyers like Jacoby-Meyers. When you're accused of a killing scheme You need to build a real Dream Team.
Cochran! Cochran! Doodle-doo Johnnie, won't you join the crew? Cochran! Cochran! Deedle-dee The Dream Team needs a victory.
These stanzas and the illustrations simply retell the Simpson tale. Although The Cat NOT in the Hat! does broadly mimic Dr. Seuss' characteristic style, it does not hold his style up to ridicule. The stanzas have "no critical bearing on the substance or style of" The Cat in the Hat. Katz and Wrinn merely use the Cat's stove-pipe hat, the narrator ("Dr. Juice), and the title (The Cat NOT in the Hat! ) "to get attention" or maybe even "to avoid the drudgery in working up something fresh." Acuff-Rose, 114 S. Ct. at 1172. While Simpson is depicted 13 times in the Cat's distinctively scrunched and somewhat shabby red and white stove-pipe hat, the substance and content of The Cat in the Hat is not conjured up by the focus on the Brown-Goldman murders or the O.J. Simpson trial. Because there is no effort to create a transformative work with "new expression, meaning, or message," the infringing work's commercial use further cuts against the fair use defense. 9 Id. at 1171.


So if I want to draw former President George W. Bush as Mickey Mouse and parody him by placing him in a Mickey/Minnie scenario, by this logic Disney can stop me from engaging in this core political speech because I am not making fun of Mickey, only of the former President.

How to permit political speech, promote creativity and maximize economic welfare for both copyright creators and society in general are questions implicated in these debates, with the cultural pendulum slowly swinging towards the Remix culture camp. There are a few signs that legal culture is moving in that direction, with judges taking a more expansive view of fair use.

When the Copyright Society had its convention in New Orleans a few years back, I was struck by the plight of Jazz musicians: they didn't have the right to a compulsory license.   So a bunch of white kids doing an exact cover of a Led Zep tune can force Led Zep to license the song at a cheap rate.  

But Jazz - which remixes, rearranges and is an art form that is derivative - can't get a compulsory license, and the changes and modifications to the original can't be protected without an additional license from the copyright owner - even though a sound recording in a cover song can.

According to the jazz musicians, the licensing practices of copyright owners have put them out of making a living and basically strangled their creativity.  It was a heartbreaking presentation. Jazz and its successors which rely on sampling, borrowing, remixing - all activities emanating from African-American traditions - have been severely penalized, to the point of practical extinction.




The Remix movie- with a white kid p/k/a Girl Talk at its center - shows how new technologies open up new creative possibilities.   And as white kids start looking to play a kind of American jazz with video, it is more likely that the courts will be more reluctant to penalize and criminalize that activity.

The video below is also a great example of using art to make a sound recording come alive through a new layer of creative labor.



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Copyright Litigation Blog on Google - Number One "Copyright Litigation" Search

Search results from Google put Copyright Litigation Blog and Copyright Litigation Handbook at number one in search engine results for the search "copyright litigation".

Thanks, Google, and thanks to everyone who enjoys the content, your readership, comments and feedback are all appreciated.

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Jurisdiction and Venue Become Issue In DC BitTorrent Litigation

Due process claims are being asserted in the mass litigations filed against John Doe BitTorrent users in the District of Columbia.

Rights groups enter illegal downloading fight

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Fair Use Fridays: Peanuts Hey Ya

Note the credits: "used without permission - please don't sue us".   This is a genius video and if Outkast is letting it survive (note the "buy this song" ad from Amazon), more credit to them.

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Fair Use Fridays - Girl Talk - Overtime

Music and video sampling - pushing the limits of fair use?

SDNY: MobiTV Victory Over ASCAP for Delivery of Video To Cellphones

Find Mobitv here.

In re Application of Mobitv, Inc., 2010 WL 1875706, 1 (S.D.N.Y. May 11, 2010)

It is hard to overstate the importance of music in most of our lives. Every concert we attend, every song we listen to, virtually every entertainment we enjoy reinforces that lesson. The task at hand is to determine the fair market value of a blanket license for the public performance of music. The challenges of that task include discerning a rate that will give composers an economic incentive to keep enriching our lives with music, that avoids compensating composers for contributions made by others either to the creative work or to the delivery of that work to the public, and that does not create distorting incentives in the marketplace that will improperly affect the choices made by composers, inventors, investors, consumers and other economic players.

Judge Cote has written a very thoughtful opinion explaining the history of blanket licenses for musical compositions and how they relate to new digital media.  The opinion really explains how the industry works, the economics involved, and is a nice explanation of the history of the technology involved.

Mobitv scored a big victory, which is a good thing for this fledgling technology.   The issue at hand was how much Mobitv had to pay ASCAP and the court's job was to set a reasonable rate.  Since Mobitv had demanded a license from ASCAP, no copyright infringement was found.

My Old Kentucky Home Remixer Punk'd: Court Tosses Copyright Infringement Action For Failure To Disclose Pre-Existing Material

In Rich & Rich Partnership v. Poetman Records USA, Inc. 2010 WL 1978800, 1 (E.D.Ky. May 17, 2010) the court found that a copyright registration certificate that did not disclose that a work was a remix including a sound recording of the late Gov. Happy Chandler's "Old Kentucky Home" rendered the copyright unenforceable.   The plaintiff did not offer any excuse for the omission, such as a mistake (the case law is pretty forgiving).

Please note that 17 USC 409 (9) provides:

§ 409. Application for copyright registration


The application for copyright registration shall be made on a form prescribed by the Register of Copyrights and shall include —
(9) in the case of a compilation or derivative work, an identification of any preexisting work or works that it is based on or incorporates, and a brief, general statement of the additional material covered by the copyright claim being registered;

Practice Tip:  In Chapter 4 of my Copyright Litigation Handbook I review how to correct mistakes in ownership and registration forms with the Copyright Office before going to court.  It is better to do this prior to bringing a litigation.

More from the decision:

“[W]hen an applicant knowingly fails to identify the derivative nature of the work, or the use of elements not of the applicant's own creation, the court may decline to enforce the copyright.” Lenert v. Duck Head Apparel Co. Inc., No. 95-31122, 1996 WL 595691, at *4 (5th Cir. Sept.25, 1996) (citing Russ Berrie & Co., Inc. v. Jerry Elsner Co., Inc., 482 F.Supp. 980, 987-89 (S.D.N.Y.1980) (court declined to enforce copyright where applicant knowingly failed to disclose pre-existing work); GB Mktg. USA Inc. v. Gerolsteiner Brunnen GmbH & Co., 782 F.Supp. 763, 774-76 (W.D.N.Y.1991) (knowing omission of derivative nature permits grant of summary judgment refusing to enforce copyright)). In other words, a “ ‘knowing failure to advise the Copyright Office of facts which might have occasioned a rejection of the application constitute[s] reason for holding the registration invalid and thus incapable of supporting an infringement action ... or denying enforcement on the ground of unclean hands.’ ” Eckes v. Card Prices Update, 736 F.2d 859, 861-62 (2d Cir.1984) (quoting Russ Berrie, 482 F.Supp. at 988). In 1998, David E. Rich registered a work entitled “The Kentucky Wildcat Basketball Experience.” R. 125, Ex. 1 at 1-2. In that registration, the nature of the copyrighted work was described as a “[c]ompilation of sound recordings of Kentucky Wildcat games and band recordings, with some new sound recording.” Id. at 1. The registration form asked Rich & Rich to “[i]dentify any preexisting work or work that this work is based on or incorporates.” Id. at 2. In response, Rich & Rich identified, “some sound recording.” Rich & Rich did not identify Chandler's original rendition of “My Old Kentucky Home” in its response. The Copyright Office, without knowing what the pre-existing work was and which track contained the remix, could never have determined whether Rich & Rich's contribution to the Chandler rendition qualified as a derivative work.FN1


FN1. Rich & Rich knew that it was taking a work from Chandler and putting it on its album. Cf. Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 828 (11th Cir.1982) (omission of pre-existing work did not invalidate the registration because of lack of scienter). That is not disputed and, hence, lack of knowledge cannot excuse the error here.

Courts can overlook immaterial mistakes in a registration. See Lenert, 1996 WL 595691, at *4 (collecting cases where the failure to disclose the derivative nature of a work did not invalidate the registration). But Rich & Rich has neither attempted to show evidence that this was a simple mistake nor provided an explanation of why the registration was done in this manner. See Masquerade Novelty, Inc. v. Unique Indus., Inc., 912 F.2d 663, 668 n. 5 (3d Cir.1990) (“[A] misstatement or clerical error in the registration application if unaccompanied by fraud will not invalidate the copyright nor render the registration incapable of supporting an infringement action.” (quoting M. Nimmer & D. Nimmer, Nimmer on Copyright § 7.20, at 7-197-98)); see also Advisers, Inc. v. Wiesen-Hart, Inc., 238 F.2d 706, 708 (6th Cir.1956) ( “innocent misstatement ... in the affidavit and certificate of registration, unaccompanied by fraud” does not invalidate copyright).

Copyrights & Campaigns

Ben Sheffner posts SG Elena Kagan's amicus brief on behalf of the RIAA and talks about what music does not turn her on:

Copyrights & Campaigns

Fair Use Friday: How To Create A Music Mashup - Girl Talk

Justia Ranks Copyright Litigation Blog in Top 10 Copyright Blogs

Of the 59 copyright blogs tracked by the Justia Blawsearch the Copyright Litigation Blog now ranks number 8 in popularity.   Below, the top 10 with their respective Justia Blawgsearch rankings:

1. IPKat 37

2. Recording Industry v the People 95

3. Plagiarism Today 117

4. Chilling Effects Clearinghouse 124

5. Nolo Presents the Law 183

6. Chicago IP Litigation Blog 207

7. Likelihood of Confusion 215

8. Copyright Litigation Blog 292

9. Lessig Blog 359

10. TechnoLlama 360

Unfortunately, Bill Patry stopped publishing his copyright blog, it was unquestionably the strongest player in the field.

Limewire: Some Stats From the Decision

In Arista Records LLC v. Lime Group LLC (SNDY KMW May 11, 2010) - article and a copy of the decision here Judge Kimba Wood found Lime Wire guilty of copyright infringement.  Basically, LimeWire did the same thing that Napster did, leaving an evidence trail similar to Napster's but using Grokster technology.  Remember the Supreme Court said that peer-to-peer filesharing was a technology capable of non-infringing uses.  

So just distributing the technology won't get you in trouble.  But using it to actively promote, facilitate and profit from infringement will, particularly where technological measures that would make it difficult or inconvenient to infringe could easily have been put in place.  An expert found that 98.8% of the uses of this peer-to-peer file sharing technology were infringing uses.  He found that 93 percent of the materials in LimeWire were highly likely to be copyright protected.  Over past years, the record companies filed over 6,000 lawsuits against LimeWire users.  They obtained 700 judgments and settled 4,000 cases.

LimeWire was launched in 2000.  By 2003 it had 2 million users per month.  At the time the suit was filed, LimeWire had 4 million users per day.

From 2004 - 2006 annual revenue grew from $6 million to about $20 million.  LimeWire's CEO has been held personally liable.

There will be a trial on a number of other issues raised.   A troubling allegation surfaced that an attorney from the Electronic Frontier Foundation gave some bad advice to LimeWire regarding a document retention policy.

The short answer is that pre-infringement evidence can be used to prove intent to infringe for those infringement claims brought within the statute of limitations.   So documents from ten years ago can show that you intended to promote infringement three years ago.

ABA Journal Blawg Review: Thanks for Covering Copyright Litigation Blog

You can access the Copyright Litigation Blog through the ABA Journal Blawgs directory here.