What? What?...Fair Use That's What!

A federal district court judge in Wisconsin has ordered Brownmark Films to pay Viacom and Comedy Central more than $30,000 in attorney's fees after finding that their case alleging copyright infringement was as worthwhile as their "hit" YouTube video, "What What (In the Butt)." If you haven't seen the video and need a good "what the hell is this crap?!" give it a watch here: But (not butt), the more interesting thing to my musical ear is the striking similarity to an old Eddie Murphy song called "Boogie in You Butt." If Samwell and Brownmark really believed in their case and it wasn't just your typical Hollywood extortion, maybe they should get ready to defend a copyright infringement suit coming the other direction. Turnabout is fair play when it comes to "in the butt" videos, right? And yes, I seriously posted this.

Is this the Period Before the (Legal) War for Lady Antebellum?

Here we go again. A YouTuber has altered the tempo and pitch of the Lady Antebellum hit "Need You Now" and the Alan Parsons Project's "Eye In The Sky" to create a mashup suggesting the former ripped off the latter. And the blogosphere masses are now on the case debating its merits.

This isn't new territory, of course. The last couple times we saw this involved Steve Vai and Radiohead. But this is Alan Parsons! The genius pushing the faders on Dark Side of the Moon and running tape for the Beatles. Will he (well, his legal folks) take up the investigation? Apparently Parsons' camp is aware of the online grumbling (Wendy Geller in Our Country).

We shall see. Take a look at the video mashup and you be the judge.

Satriani Sues Coldplay for Copyright Infringement

This isn't the first time Coldplay has been accused of ripping someone off for the melody of their song Viva La Vida. Of course, this time there's a lot more muscle behind the complaint.

Guitar God Joe Satriani (presumably at the urging of his record/publishing company) has sued the members of Coldplay alleging they ripped off his riff from the song If I Could Fly.

In order to prove an allegation of copyright infringement, the plaintiff (Satriani) must show:

1) Ownership of a valid Copyright
2) Unauthorized copying by the defendant(s)

#2 can be shown by "access and substantial similarity." Substantial similarity is a question for the fact finder (judge or jury). Access is pretty much presumed when a work has been published.

In all likelihood, this case will settle. The parties don't want to take this to court when they could otherwise be out on the road playing music and making money. However, in the unlikely event it does go to trial:

The two songs certainly sound substantially similar to me. Take a listen:

Are Statutory Copyright Damages Unconstitutional?

It was only a matter of time before someone raised the constitutionality of copyright damages as a defense in the context of RIAA file sharing lawsuits. As I had suggested in my comments regarding the Jammie Thomas case, the awards of thousands or hundreds of thousands of dollars in statutory damages for offenses that create actual damages of perhaps $3.50 is fertile ground for accused infringers interested in fighting the RIAA.

Denise Barker, a defendant in an RIAA file sharing case, settled with the group yesterday for $6,050. This, after raising the constitutionality of the Copyright Act's damages provisions, though admitting to sharing major label, copyrighted files over KaZaA. Clearly the RIAA wanted no part of this fight or its sure-to-be-exorbitant legal costs.

I expect this constitutionality question and criminal copyright penalties to be the next battlegrounds for the RIAA and its defendants.

Busy Week for P2P Law - Damages Awarded in Atlantic v. Howell

There's a term we lawyers use: "spoliation." In normal terms that means destroying (or allowing to be destroyed) evidence that is relevant to pending or foreseeable litigation. In even more blunt terms, it means: the stupidest thing you can do if you're being sued by the RIAA and you're moving in a winning direction.

As I discussed several months ago, a federal court in Arizona had handed a significant setback to the RIAA in their case against Jeffrey Howell for sharing copyrighted music with KaZaA. So how did Howell follow up his small victory? He destroyed evidence that he was expressly instructed to preserve by deleting KaZaA from his computer, removing all shared files, reformatting the drive and using software to wipe the drive. That will quickly turn your fortunes around. Howell was just ordered to pay nearly $41,000 to the RIAA - a damage award that may never have been had he simply followed the court's directive.

More details at Ars Technica.

Blogger Who Posted Unreleased Guns N' Roses Tunes May Soon Be a Singing Jailbird

The story of Kevin Cogill, the blogger who posted unreleased tracks from Axl Roses' unreleased Chinese Democracy has seen a lot of coverage over the last week. My thoughts on the matter can be found in the following story at eCommerceTimes.com.

Doug Panzer Comments in Blogger Faces Hard Time for Posting Guns N' Roses Music.

YouTube Happy with Veoh's Win, But Not Off the Hook in Viacom Litigation

A recent district court decision in which a San Jose judge ruled that YouTube competitor Veoh was not liable for copyright infringement based on infringing material posted by users is being batted about in the blogosphere and the news media in hopes of gleaning some insight into any affect it may have on the outcome of the pending Viacom v. YouTube litigation.

The ruling is clearly a win for Veoh and a good sign for YouTube, but not dispositive of the YouTube/Viacom litigation in any way. While the San Jose court's decision may be persuasive to the judge in the YouTube case, it is not binding precedent.

The Digital Millennium Copyright Act (DMCA) provides a safe harbor for service providers as long as they act as a "conduit," meaning they do not select or modify the content that is transferred. They also have to respond to take-down notices from copyright owners. While the Veoh court has clearly said that Veoh falls within the safe harbor, there are still other cases out there (such as the Aimster case) that say turning a blind eye to wrongdoing does not excuse you from liability. And more importantly, Viacom can still rely on the Supreme Court's holding in Grokster, which hinges on "intentionally inducing or encouraging direct infringement." If Viacom can convince a judge that YouTube's business model is based on encouraging users to upload infringing content in order to attract more users to the site, the fact that YouTube later responds appropriately to take-down notices may not absolve them of liability.

Bottom line, YouTube is very happy with the Veoh decision, but it doesn't necessarily affect the outcome of the Viacom/YouTube suit.

For articles regarding the Veoh decision, see:

• Washington Post
  
• AllHeadlineNews
  

RIAA's Bad Week

The Recording Industry Association of America hit a couple bumps this past week in its anti-file sharing litigation march. In two separate cases, the RIAA was ordered to pay $103,000 in legal fees to defendant Tanya Andersen and also learned that the judge in the Jammie Thomas case is leaning toward granting a new trial to the woman who has so far been the biggest loser in the RIAA law suits.

In Atlantic v. Andersen (Oregon)the RIAA had filed a John Doe suit based upon the discovery of files shared through a Kazaa user account having Andersen's IP address. Andersen denied any involvement and even produced her computer's hard drive for review. She also denied that her 7-year-old daughter, the only other person in the house, had shared music online. Nearly two years into the litigation, the RIAA voluntarily dismissed its case. Andersen then sought nearly $299,000 in legal fees and approximately $5,000 in costs. In a 33-page opinion, the court thoroughly investigated the number of hours expended and the rates charged, finally concluding that Andersen should be awarded $103,175 in fees and $4,659 in costs. The RIAA will likely object by the May 27 deadline. However, the cautionary tale may have some slowing effect on the RIAA's filing of John Doe suits.

In the infamous RIAA case against Jammie Thomas, the trial judge is considering granting a new trial to Thomas, who was previously found liable for copyright infringement and ordered to pay the RIAA $222,000. The judge has stated that he is leaning toward granting the new trial based on a faulty jury instruction, which told jurors that simply making files available for download constitutes infringement.

For Thomas, this may prove to be only a small victory. The fact is, even though the court has clarified that its jury instruction was wrong and that actual distribution is required, the RIAA may be able to prove actual distribution based solely on the downloading by its investigator, MediaSentry. In the end, Thomas may end up being found liable again. The bigger impact of this 180 by the court is that if the court vacates its earlier judgment, it removes the largest victory the RIAA has on the books to date - a victory that is certainly making people think twice about downloading music online without paying for it.

For more of my thoughts on this decision, see the E-Commerce Times story "RIAA's Legal Steamroller May Grind to a Halt.

"Making Available" Is Not Enough for the RIAA to Show Infringement

I was recently interviewed for a story in EcommerceTimes.com discussing the District of Arizona's decision in Atlantic v. Howell, the latest RIAA file-sharing case to make it to a trial court. While the court's holding in its denial of summary judgment is not Earth-shattering, it does slightly alter the landscape on which the RIAA will work going forward.

The court's holding, requiring actual distribution for a showing of infringement, certainly weighs against the RIAA’s “making available” argument. This is not the first time that the argument has been shot down. The RIAA bases the “making available” argument largely upon a Fourth Circuit case called Hotaling v. Church of Jesus Christ of Latter-Day Saints. They can’t seem to find any other case that clearly says that infringement can occur without actual distribution. That case involved a library making microfiche copies of books and the decision seemed to be largely policy based. Its use by the RIAA has been unsuccessful in other cases and it failed in Perfect 10 v. Amazon where the plaintiff also tried to argue that “making available” constitutes distribution.

In Atlantic v. Howell, the court is essentially saying that the RIAA can absolutely prove that files were available from Howell’s computer via Kazaa. However, because there’s a question as to who made those files available through Kazaa, there’s a genuine issue of fact and summary judgment is inappropriate.

The court also emphasizes that infringement requires a copy to change hands between unauthorized parties. That express statement by the court is the biggest loss for the RIAA here, but it doesn’t stop their cause.

This holding is useful by other people in fighting summary judgment, but it may not save them from an ultimate finding of infringement. The court seemed to disagree with the Electronic Frontier Foundation’s opinion that MediaSentry’s downloading as part of the RIAA’s investigation cannot constitute distribution because MediaSentry is an authorized agent of the RIAA and therefore cannot infringe RIAA members’ own copyrights.

The bottom line is that Howell may make it more difficult for the RIAA to win on summary judgment, but it won’t completely get defendants off the hook. The “making available” argument is moving in the direction of being a confirmed loser. But, by this court’s logic, MediaSentry’s act of downloading may be sufficient to complete the act of distribution by the defendant. If that argument holds up at trial, the RIAA still wins.

Network Traffic Shaping a Threat to DMCA Safe Harbor for Network Providers

My reading of the article from University of Georgia student newspaper RedAndBlack.com, cited in the entry below discussing "Ruckus", left me with the uneasy thought that universities and employers, in trying to subtly dissuade downloading on their networks are choosing methods that may strip them of the protections from secondary liability under the Digital Millennium Copyright Act (17 USC § 512) for copyright infringement by network users.

The above cited article quotes University of Georgia communications director Bert DeSimone as saying that his network is largely unaffected by peer-to-peer file sharing because "[t]he system rates activities like peer-to-peer file sharing and limits it in favor of other activities...More bandwidth is given to the research mission of the University."

The practice described by Mr. DeSimone is known as network traffic shaping. Traffic Shaping is a practice by which network administrators attempt to give priority to digital transmissions of one type of information over another. This method, while effective in assigning greater bandwidth to desired network traffic and less bandwidth to undesirable traffic, is arguably an abrogation of the DMCA online service provider safe harbor when read in light of the Supreme Court's holding in MGM v. Grokster 125 S.Ct. 2764, 2767 (2005).

In order to shape network traffic, the network is configured to read the identifiers of data packets traveling over that network and read basic information from those identifiers that specifies what type of data is being sent. Because this gives the network provider (in this case the University) knowledge of the transmission of potentially infringing material over the network, yet allows that traffic to proceed and funnels the traffic into what is essentially the "slow lane" of the network highway, the provider may be charged with participating in the selection of content and/or ceasing to act as a conduit delivering content through automatic processes.

Either of the conclusions above places the university-provider squarely into the shoes of Grokster and Streamcast, the liable defendants in the MGM case. The Supreme Court wrote that there was "no evidence that either company made an effort to filter copyrighted material from users’ downloads or otherwise impede the sharing of copyrighted files" on the Grokster and Streamcast systems and was persuaded by the fact that "[the defendants did not] attempt to develop filtering tools or other mechanisms to diminish the infringing activity using their [software]."

When combined with the Ninth Circuit's language in Napster that "[i]f a computer system operator learns of specific infringing material available on his system and fails to purge such material from the system, the operator knows of and contributes to direct infringement," the network provider who shapes traffic and knowingly allows downloading to continue may be secondarily liable for copyright infringement accomplished over the network.