JOLT Digest

by Michael Adelman

Copyright Suit Fails to Prevent Memorial Day Weekend Release of The Hangover: Part II

On Tuesday May 24, the New York Times reported that Judge Catherine D. Perry of the U.S. District Court for the Eastern District of Missouri denied tattoo artist Victor Whitmill’s preliminary injunction that would have halted the release of the film The Hangover: Part II over Memorial Day weekend. Mr. Whitmill claims that Warner Brothers has infringed on his exclusive rights to the Maori-inspired tattoo which he designed and inked on boxer Mike Tyson’s face by putting it on the face of the character Stu, played by Ed Helm, in the film and promotional merchandise. Wired reports that the litigation has prompted an about face by the nation’s preeminent copyright scholar, UCLA law professor David Nimmer, who testified that tattoos should not be copyrightable while serving as an expert witness for Warner Brothers. Likelihood of Confusion noted that Judge Perry strongly indicated Mr. Whitmill stands to recover on his claim in the future, but that she declined to issue the injunction after finding the public interest in letting the movie be released outweighed the harm of infringement.

G8 Nations Issue A Statement on Internet Governance

Ars Technica reports on the recent G8 summit that produced a Declaration of Renewed Commitment for Freedom and Democracy, which extolled the power of the Internet in increasing democratic participation and as a driver of economic growth. The document emphasized the need to safeguard against “arbitrary or indiscriminate censorship” in preserving the Internet as a democratic forum. The G8 nations also announced their commitment to enhancing protections of intellectual property (copyright in particular) through greater international cooperation of governments and private entities.

New Legislation Would Make Unauthorized Internet Streaming a Felony

Ars Technica reported on the testimony of new Register of Copyrights, Maria Pallante, before the House Judicicary Committee about whether illegal online streaming should be upgraded from the current misdemeanor status to a felony punishable by up to 5 years in jail. Pallante asserted that increased bandwidth and greater scrutiny of file-sharing networks have made video streaming sites that display pirated material increasingly popular, and that the law needed to be adjusted to keep pace with technology. This is also the position espoused by the Obama Administration’s White Paper on Intellectual Property Enforcement. But Techdirt warned that by making “performance” of a copyrighted work a felony, the proposed bill (via GovTrack.us) could potentially render the act of embedding or hosting an infringing video a felony.

Amazon Launches New Mac Software Store to Compete with Apple’s App Store

Amazon has recently launched a subsection of its online downloads store specifically oriented to Mac OSX software. Ars Technica reports that Amazon has called this service the “Mac Downloads Store”, probably to avoid another legal dispute with Apple. Slashdot has covered Apple previously filed lawsuit against Amazon for trademark infringement over Amazon’s ‘Appstore for Android’. ComputerWorld analyzes some of the differences between Amazon’s Mac Download Store and Apple’s Mac App Store, speculating that these differences are largely driven by differences in Amazon and Apple’s licensing agreements with software developers.

Federal Court Upholds Subpoenas Compelling ISP to Identify Over 1000 Alleged File-Sharers
By Paul Cathcart – Edited by Jad Mills

Call of the Wild Movie, LLC v. Does 1-1,062, 2011 U.S. Dist. LEXIS 29153 (D.D.C. March 22, 2011)
Memorandum Opinion hosted by Scribd.com

In two copyright cases, Judge Beryl A. Howell of the United States District Court for the District of Columbia denied Time Warner Cable’s (“TWC’s”) motions to quash subpoenas compelling the identification of subscribers associated with allegedly infringing IP addresses. In a third case, the court granted TWC’s motion on procedural grounds but permitted the plaintiff ten days to re-issue the subpoena.

The court rejected TWC’s claim of “undue burden,” finding that TWC failed to demonstrate hardship sufficient to outweigh the information’s “critical” value to the plaintiffs’ cases. The court additionally rejected three arguments submitted in amicus briefs. Considering judicial efficiency, the potential for prejudice, and the alleged relationship among defendants, the court ruled that defendants were not improperly joined as of this “nascent” stage in the case. The court also rejected amici’s challenge to personal jurisdiction, pending additional discovery. Finally, the court ruled that defendants’ First Amendment rights to anonymity did not outweigh plaintiffs’ need for the information sought, applying a five-part test laid out in Sony Music Entm’t v. Does 1-40, 326 F. Supp. 2d 556, 564-65 (S.D.N.Y. 2004).

Internet Cases provides an overview. The Electronic Frontier Foundation commented prior to the decision. (more…)

By Nathan Lovejoy

Lime Wire Damages Limited To One Statutory Damage Award Per Work

Judge Kimba Wood ruled on March 10th that the statutory damages provision of the Copyright Act authorizes only one damage award per work infringed rather than one award for every infringement. Wood noted that had she adopted the record industry plaintiff’s interpretation the potential damages against the file-sharing software company would be “more money than the entire recording industry has made since Edison’s invention of the phonograph in 1877.” Wood granted summary judgment against Lime Wire in May, and issued an injunction in October which required Lime Wire to cease distribution of its popular program. The trial for damages is set for May 2nd.

AT&T’s Acquisition of T-Mobile May Face Serious Scrutiny

An FCC official indicated to the Wall Street Journal that AT&T’s planned acquisition of T-Moble — which would make the company the largest mobile phone service, surpassing Verizon — would undergo serious scrutiny, saying “[i]t will be a steep climb.” This likely comes as no surprise to AT&T, as the WSJ notes elsewhere that “AT&T seems to understand what it’s up against.” The acquisition deal was announced last week.

Netflix’s Customer Data Practices Challenged

Five plaintiffs have alleged that Netflix has violated the Video Privacy Protection Act (“VPPA”) through its practice of collecting and retaining records of streaming and rental activity of its customers. The VPPA mandates that video rental companies destroy old records that contain personally identifiable information. This law was passed in the wake of Judge Robert Bork’s Supreme Court nomination hearings, during which his video rental history was published.

Righthaven Lawsuit Dismissed On Fair Use Grounds

At a hearing last week, U.S. District Judge James Mahan said that he would dismiss a copyright infringement claim brought by the private enforcement outfit Righthaven on behalf of the Las Vegas Review Journal (“LVRJ”). After the Oregon-based non-profit Center for Intercultural Organizing posted a full-text copy of a LVRJ article on their website, Righthaven filed suit last August without any prior contact or take-down requests. In November, Judge Mahan requested that the parties brief the fair use issue. Righthaven’s for-profit approach to copyright enforcement has been heavily criticized; Mahan’s ruling was welcomed by critic EFF, who represent defendants in other Righthaven cases. Righthaven has filed 250 lawsuits since March 2010, and has suffered one other loss on a fair use claim.

By Andrew Crocker

Supreme Court to Hear “Major Test of Copyright Power”

SCOTUSblog reports that the Supreme Court has granted certiorari in Golan v. Holder to consider a challenge to the federal law that restored U.S. copyrights to certain foreign works that had previously been in the public domain. The petitioners are “orchestra conductors, educators, performers, film archivists, and motion picture distributors” who claim to have relied upon the formerly public domain works. The petitioners have twice appealed to, and been denied by, the United States Circuit Court for the Tenth Circuit. In its next term, the Supreme Court will rule on both arguments rejected by the Tenth Circuit — that the law violates both the First Amendment and the Copyright Clause of the Constitution. According to Publisher’s Weekly, the works restored to copyright include “symphonies by Shostakovich and Stravinsky, books by Virginia Woolf, artwork by Picasso, and films by Fellini and Hitchcock.”

JOLT Digest has previously reported on filing of the writ of petition for certiorari, the Tenth Circuit’s original ruling in Golan, the district court’s subsequent decision, and the Tenth Circuit’s most recent decision.

Sony Subpoenas IP Records of Visitors to PS3 Jailbreak Site

Wired reports that a magistrate judge in the United States District Court for the Northern District of California has granted Sony’s subpoena request to require a website host to turn over IP addresses of visitors to a New Jersey hacker’s site. George Hotz, the site owner, posted encryption keys and other software that allow owners of Sony’s Playstation 3 (“PS3”) to “jailbreak” the console. Sony argues that Hotz violated the Digital Millennium Copyright Act’s prohibition on distributing tools that allow circumvention of technological copy protections, since jailbreaking the PS3 allows owners to run pirated games. The court also granted Sony the right to subpoena related information from Hotz’s accounts on Twitter, YouTube and Blogger.

Lime Wire Settles Suit with Music Publishers

Bloomberg reports that a group of music publishers, including EMI and Warner Brothers, has settled their lawsuit against Lime Wire LLC, creator of the now defunct file-sharing service LimeWire. The terms of the settlement have not been disclosed. Last year, in a suit brought by the Recording Industry Association of America (“RIAA”), Lime Wire was found liable for copyright infringement and forced to shut down. According to CNET, the music publishers filed suit after the RIAA ruling — as did a separate group of record labels, whose suit is still pending. The Hollywood Reporter notes that in the pending suit, Lime Wire has been attempting to use discovery “to show that [labels’] claims of revenue losses are exaggerated.”

Techcrunch Using Facebook “Real Name” Commenting System

Techcrunch announced recently that it is the latest in a series of major sites to use a Facebook-based plugin for user comments on the site’s posts. Because the plugin requires a Facebook account to post, users’ comments will now be associated with their real names, and the comments will be added to their Facebook feed by default. Although Techcrunch says it is responding to “trolls and spammers,” PC Mag wonders if the lack of anonymity will have chilling effects on online debate. Additionally, on the Huffington Post Larry Magid points out that the move further isolates users who choose not to register for Facebook accounts.

District of Massachusetts reduces jury-awarded damages by 90 percent in copyright infringement lawsuit
By Abby Lauer – Edited by Jad Mills

Sony BMG Music Entertainment et. al. v. Tenenbaum, No. 07cv11446-NG (D. Mass. July 9, 2010)
Slip Opinion

In a decision by Judge Nancy Gertner, the United States District Court for the District of Massachusetts reduced the damages awarded by a jury to members of the recording industry in a copyright infringement lawsuit. After finding defendant Joel Tenenbaum guilty of illegally downloading copyrighted music, the jury awarded statutory damages of $22,500 per song, $675,000 total for 30 songs. Judge Gertner held that the damages award should be reduced to $2,250 per song or $67,500 total. In so holding, Judge Gertner maintained that the jury’s award was far greater than necessary to serve the government’s interest in deterring copyright infringement and compensating copyright owners whose rights have been infringed. She argued that Congress never intended the extraordinary damages provisions of copyright law to apply to situations where a defendant did not receive pecuniary benefit from his infringing activities.

Ars Technica provides an overview of the case. The Electronic Frontier Foundation commends the court’s decision. (more…)