Judge Wake surprises. That is, he suprises me, at least. This is not surprising in the sense that Federal Court judges face imposing very terrible fines on individuals for copyright infringement in file sharing, and he statute provides little room for them to show any mercy.
How did he surprise? By taking on the difficult issue of proving infringement through deemed distribution. Some background first.
Copyright infringement requires actual distribution of the copryighted work. As Judge Wake notes, "[t]he general rule, supported by the great weight of authority, is that 'infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.' Nat’l Car Rental Sys. v. Computer Assocs. Int’l, Inc., 991 F.2d 426, 434 (8th Cir. 1993). See also Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 718 (9th Cir. 2007)" The buzz has been around the Fourth Circuit's library case, Hotaling, where, by placing the copyright works for use by the public was enough to prove distribution because they failed to keep records. The record companies wanted to analogize the library to a shared file on one's computer.
The crafty Judge Wake said no, though. Judge Wake noted that the Ninth Circuit, in Perfect10, agreed with the district court’s conclusion that distribution requires an "actual dissemination," consistent with the language of the Copyright Act. Judge Wake says the Ninth Circuit rejects Hotaling. Judge Wake emphasizes that Hotaling is inconsistent with the Copyright Act.
Further, Judge Wake discards the argument that an offer to distribute are not sufficient to meet the distribution requirement. Judge Wake says that "[t]he scope of the term distribution is only defined within § 106(3) itself, as a “sale or other transfer of ownership” or a “rental, lease, or lending” of a copy of the work. The plain meaning of that section requires an identifiable copy of the work to change hands in one of the prescribed ways for there to be a distribution." The record companies argued that the word "distribution" would be equated with "publication."
So? There were 54 copyrighted tunes in the Defendant's shared folder. The Plaintiffs downloaded only 12. The Court allowed these 12 as an investigative scheme. The Defendant has other defenses, but damages have been reduced from 54 times the minimum amount ($750) to 12 times that amount.
Friday, May 16, 2008
Judge Wake Surprises -- Holds Back RIAA for the Moment
Judge Wake surprises. That is, he suprises me, at least. This is not surprising in the sense that Federal Court judges face imposing very terrible fines on individuals for copyright infringement in file sharing, and he statute provides little room for them to show any mercy.
How did he surprise? By taking on the difficult issue of proving infringement through deemed distribution. Some background first.
Copyright infringement requires actual distribution of the copryighted work. As Judge Wake notes, "[t]he general rule, supported by the great weight of authority, is that 'infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.' Nat’l Car Rental Sys. v. Computer Assocs. Int’l, Inc., 991 F.2d 426, 434 (8th Cir. 1993). See also Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 718 (9th Cir. 2007)" The buzz has been around the Fourth Circuit's library case, Hotaling, where, by placing the copyright works for use by the public was enough to prove distribution because they failed to keep records. The record companies wanted to analogize the library to a shared file on one's computer.
The crafty Judge Wake said no, though. Judge Wake noted that the Ninth Circuit, in Perfect10, agreed with the district court’s conclusion that distribution requires an "actual dissemination," consistent with the language of the Copyright Act. Judge Wake says the Ninth Circuit rejects Hotaling. Judge Wake emphasizes that Hotaling is inconsistent with the Copyright Act.
Further, Judge Wake discards the argument that an offer to distribute are not sufficient to meet the distribution requirement. Judge Wake says that "[t]he scope of the term distribution is only defined within § 106(3) itself, as a “sale or other transfer of ownership” or a “rental, lease, or lending” of a copy of the work. The plain meaning of that section requires an identifiable copy of the work to change hands in one of the prescribed ways for there to be a distribution." The record companies argued that the word "distribution" would be equated with "publication."
So? There were 54 copyrighted tunes in the Defendant's shared folder. The Plaintiffs downloaded only 12. The Court allowed these 12 as an investigative scheme. The Defendant has other defenses, but damages have been reduced from 54 times the minimum amount ($750) to 12 times that amount.
How did he surprise? By taking on the difficult issue of proving infringement through deemed distribution. Some background first.
Copyright infringement requires actual distribution of the copryighted work. As Judge Wake notes, "[t]he general rule, supported by the great weight of authority, is that 'infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.' Nat’l Car Rental Sys. v. Computer Assocs. Int’l, Inc., 991 F.2d 426, 434 (8th Cir. 1993). See also Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 718 (9th Cir. 2007)" The buzz has been around the Fourth Circuit's library case, Hotaling, where, by placing the copyright works for use by the public was enough to prove distribution because they failed to keep records. The record companies wanted to analogize the library to a shared file on one's computer.
The crafty Judge Wake said no, though. Judge Wake noted that the Ninth Circuit, in Perfect10, agreed with the district court’s conclusion that distribution requires an "actual dissemination," consistent with the language of the Copyright Act. Judge Wake says the Ninth Circuit rejects Hotaling. Judge Wake emphasizes that Hotaling is inconsistent with the Copyright Act.
Further, Judge Wake discards the argument that an offer to distribute are not sufficient to meet the distribution requirement. Judge Wake says that "[t]he scope of the term distribution is only defined within § 106(3) itself, as a “sale or other transfer of ownership” or a “rental, lease, or lending” of a copy of the work. The plain meaning of that section requires an identifiable copy of the work to change hands in one of the prescribed ways for there to be a distribution." The record companies argued that the word "distribution" would be equated with "publication."
So? There were 54 copyrighted tunes in the Defendant's shared folder. The Plaintiffs downloaded only 12. The Court allowed these 12 as an investigative scheme. The Defendant has other defenses, but damages have been reduced from 54 times the minimum amount ($750) to 12 times that amount.
Thursday, May 15, 2008
Good (or lucky) Drafting Wins: “Now or Hereafter Known”
Joey Ramone sued Walmart and Real Network over downloading songs he wrote. The problem? Mr Ramone had a recording agreement with Ramones Productions who licensed the works. Mr Ramone had authorized Ramones productions to use the works and exploit them in “forms of reproduction” which were “now or hereafter known.” The Court said that covered digital forms and was the most reasonable reading of the agreement. Sorry Joey. Punked. I should say Joey's estate: Joey died in 2001.
Good (or lucky) Drafting Wins: “Now or Hereafter Known”
Joey Ramone sued Walmart and Real Network over downloading songs he wrote. The problem? Mr Ramone had a recording agreement with Ramones Productions who licensed the works. Mr Ramone had authorized Ramones productions to use the works and exploit them in “forms of reproduction” which were “now or hereafter known.” The Court said that covered digital forms and was the most reasonable reading of the agreement. Sorry Joey. Punked. I should say Joey's estate: Joey died in 2001.
RIAA Sues Project Playlist
As one attorney said, "another day, another RIAA lawsuit." What is different about this one?
Project Playlist gives users the opportunity to find, play and share music with others for free, as well as allowing them to embed personalised playlists on their social networking homepages on sites such as MySpace and Facebook, according to the lawsuit. It's "Terms of Service" states:
The record companies claim that: "In short [Project Playlist's] entire business amounts to nothing more than a massive infringement."
What does Project Playlist say about copyright?
Project Playlist gives users the opportunity to find, play and share music with others for free, as well as allowing them to embed personalised playlists on their social networking homepages on sites such as MySpace and Facebook, according to the lawsuit. It's "Terms of Service" states:
Project Playlist is an information location tool and social networking website that provides users with an integrated set of services to (i) enable users to locate music files hosted on websites controlled by third parties for promotional or other legal purposes, (ii) stream those legally posted music files using the Project Playlist music player (the “Player”) so the music can be heard, (iii) create hyperlinks to legally posted music files discovered by the user and add those hyperlinks to the Project Playlist search index, (iv) create and publish a series of such hyperlinks to form playlists on a member’s webpage, (v) share those playlists with friends and browse other members playlists on other members’ web pages by embedding the Player in other webpages, where permitted, (vi) purchase music found using the Project Playlist search engine or browsing other members playlists, (vii) obtain current information about new song releases from music blogs, (viii) obtain current information on the popularity of songs as measured by frequency of appearance on other members’ playlists, and (ix) network with other members through a variety of social networking and communications tools.
The record companies claim that: "In short [Project Playlist's] entire business amounts to nothing more than a massive infringement."
What does Project Playlist say about copyright?
Project Playlist is an information location tool intended to help you find and enjoy music legally posted by others on the Internet. Project Playlist intends to organize in its search index location information about music posted on the Internet for promotional and other legal purposes to serve artists and their fans. Project Playlist is also committed to respecting the legitimate interests of copyright owners. Therefore, where possible, Project Playlist negotiates reasonable copyright licenses that also respect the public’s legitimate interest in gaining access to public information and preserving the freedom and functionality of the Internet. Project Playlist pays performance royalties to ASCAP, BMI and SESAC, the three performance rights organizations (“PSOs”) based in the Untied States.It appears that Project Playlist is used, like a VCR, for legitimate non-infringment purposes and purports to pay royalties. Stay tuned.
RIAA Sues Project Playlist
As one attorney said, "another day, another RIAA lawsuit." What is different about this one?
Project Playlist gives users the opportunity to find, play and share music with others for free, as well as allowing them to embed personalised playlists on their social networking homepages on sites such as MySpace and Facebook, according to the lawsuit. It's "Terms of Service" states:
The record companies claim that: "In short [Project Playlist's] entire business amounts to nothing more than a massive infringement."
What does Project Playlist say about copyright?
Project Playlist gives users the opportunity to find, play and share music with others for free, as well as allowing them to embed personalised playlists on their social networking homepages on sites such as MySpace and Facebook, according to the lawsuit. It's "Terms of Service" states:
Project Playlist is an information location tool and social networking website that provides users with an integrated set of services to (i) enable users to locate music files hosted on websites controlled by third parties for promotional or other legal purposes, (ii) stream those legally posted music files using the Project Playlist music player (the “Player”) so the music can be heard, (iii) create hyperlinks to legally posted music files discovered by the user and add those hyperlinks to the Project Playlist search index, (iv) create and publish a series of such hyperlinks to form playlists on a member’s webpage, (v) share those playlists with friends and browse other members playlists on other members’ web pages by embedding the Player in other webpages, where permitted, (vi) purchase music found using the Project Playlist search engine or browsing other members playlists, (vii) obtain current information about new song releases from music blogs, (viii) obtain current information on the popularity of songs as measured by frequency of appearance on other members’ playlists, and (ix) network with other members through a variety of social networking and communications tools.
The record companies claim that: "In short [Project Playlist's] entire business amounts to nothing more than a massive infringement."
What does Project Playlist say about copyright?
Project Playlist is an information location tool intended to help you find and enjoy music legally posted by others on the Internet. Project Playlist intends to organize in its search index location information about music posted on the Internet for promotional and other legal purposes to serve artists and their fans. Project Playlist is also committed to respecting the legitimate interests of copyright owners. Therefore, where possible, Project Playlist negotiates reasonable copyright licenses that also respect the public’s legitimate interest in gaining access to public information and preserving the freedom and functionality of the Internet. Project Playlist pays performance royalties to ASCAP, BMI and SESAC, the three performance rights organizations (“PSOs”) based in the Untied States.It appears that Project Playlist is used, like a VCR, for legitimate non-infringment purposes and purports to pay royalties. Stay tuned.
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