More Legal Stupidity – Brought to you by “The Innocence of Muslims”

October 7, 2012

The Innocence of Muslims seems to be the place wehre really stupid free speech positions intersect with the Arab-Israeli conflict.

In the latest installment, we have the dumbest copyright infringement suit filed by anyone whose name does not end in “haven.”

Actress Cindy Lee Garcia appeared in the now-infamous online film “The Innocence of Muslims.” She first filed a lawsuit in California state court, trying to get a state judge to order YouTube to remove the film from publication. (Complaint) She claimed that the director told her that she would star in a “desert adventure film,” but the actual movie was one in which the Prophet Mohammed appeared to perform cunnilingus on Garcia’s character. The state court judge refused to pull the film, and opined that Garcia was not likely to prevail on the merits of her lawsuit. (Order). Garcia then dropped her case and re-filed in federal court. Her complaint is attached. [PDF]

For the purposes of this piece, let us presume that Ms. Garcia was indeed duped and that she had no idea that she was going to appear in such a movie. If that is the case, she might have claims for fraud; she might have claims for unfair business practices; she might even have a valid claim under some other theory.

However, this article is about the truly moronic claim that her lawyers decided to bring – copyright infringement.

Before we even get into that claim, let’s take a look at the press release that came out along with the complaint. I guess her lawyers live by the credo of making sure to yell “look y’all, watch this!” before doing something completely stupid.

“We are seeking the legally appropriate mechanism and the least politically controversial one to allow Google and YouTube to do the right thing,” according to M. Cris Armenta, counsel to Ms. Garcia. “Again, this is not a First Amendment case. But, the First Amendment does protect American’s [sic] rights to freedom to express, and also the right to be free from expression.” In Ms. Garcia’s case, the words that were dubbed over her performance were not hers and she finds them personally and profoundly offensive. Ms. Garcia has publicly stated worldwide, including in live broadcasts to Middle Eastern television stations that she does not condone the message in the film and would never willingly participate in such a hateful venture.

You get that? This is not a First Amendment case. Why not? Because M. Cris Armenta says it isn’t. That might make her feel better as she is sitting around her conference room table, but it doesn’t make it so. Of course, someone with their head so far up their ass that they believe that the First Amendment protects “the right to be free from expression,” probably looks really funny sitting at a conference room table – what with the head in the ass and all.

Ms. Garcia “filed an application for a federal copyright registration for the rights in her dramatic performance ‘Desert Warrior.'” (Complaint at ¶ 11) Further, she “has issued five DMCA ‘takedown notices’ to Defendants YouTube and Google.” (Complaint at ¶ 13) But let us all remember, “this lawsuit is not an attack on the First Amendment, nor on the right of Americans to say what they think, but does request that the offending content be removed from the Internet because not only is it not speech protected by the First Amendment, it violates Plaintiff Garcia’s copyright in her performance.” (para 29) How convenient. It is not an “attack on the First Amendment” because Ms. Garcia’s lawyers cleverly simply declare that the content is “not speech.” Meanwhile, I guess that she owns the copyright in the film because she filed an application for a registration.

The press release sent out by Garcia’s lawyers claims that the attorneys responsible for this monstrosity were “previously affiliated” with Skadden Arps Slate Meagher & Flom LLP and both are former federal law clerks. What does that tell you? Being at the top of your class doesn’t mean that you don’t have shit for brains. Those of you attending TTT law schools take note. While chances are that your counterparts at the T14 did better on the LSAT, it doesn’t mean that you can’t wipe the floor with them when it comes to really practicing law.

Ms. Armenta and Ms. Sol’s complaint really is a piece of crap that no worthwhile attorney would have signed. Not only do the claims expose them as abject idiots, but the complaint exposes their client to a serious potential downside. First and foremost, Ms. Garcia most certainly does not own the copyright that she claims to. Thus, she does not have standing to bring this claim under the Copyright Act. This is not some obscure issue that it takes an IP law expert to figure out, but is clear from the plain language of 17 U.S.C. § 501(b), limiting actions for infringement to legal or beneficial owners of a registered work. When you don’t own anything, you don’t get to sue. Incredibly, Garcia filed suit in a court residing within the Ninth Circuit – which means there’s a small mountain of precedent examining this exact issue with a fine point. Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137, 1146 (9th Cir. 2008); Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881, 889-90 (9th Cir. 2005); Righthaven LLC v. Hoehn, 792 F. Supp. 2d 1138 (D. Nev. 2011).

Welcome to the Pwn-Dome.

An actor’s performance in a film is not an independently copyrightable work. I am surprised that these two attorneys are unfamiliar with this rule of law. They might be well-served to review Aalmuhammed v. Lee, 202 F.3d 1227 (2000). You know, the case that is in pretty much every single copyright textbook published since before the Clinton administration ended. Jesus fucking christ, is it so much to ask that someone take a copyright course before filing a copyright infringement lawsuit?

Anyhow, back to Aalmuhammed v. Lee: In that case, Mr. Aalmuhammed contributed a significant amount of work to the Spike Lee movie, The Autobiography of Malcolm X. Mr. Aalmuhammed sought to be deemed to be a co-author of the film. However, the Ninth Circuit held:

Aalmuhammed did not at any time have superintendence of the work. Warner Brothers and Spike Lee controlled it. Aalmuhammed was not the person “who has actually formed the picture by putting the persons in position, and arranging the place ….” Spike Lee was, so far as we can tell from the record. Aalmuhammed, like Larson’s dramaturg, could make extremely helpful recommendations, but Spike Lee was not bound to accept any of them, and the work would not benefit in the slightest unless Spike Lee chose to accept them. Aalmuhammed lacked control over the work, and absence of control is strong evidence of the absence of co-authorship.

Under the law, the director of the film (and not any other contributor) is the author of the work. Not the consultants, not the actors, and not the guy who brought everyone coffee. If it were otherwise, then every actor or anyone else who had any part in the creation of the film would then engage in a feeding frenzy over who actually owned the rights to the film. For a creative work, the author, and not “helpers” owns the copyright.

The Aalmuhammed court stated:

The Constitution establishes the social policy that our construction of the statutory term “authors” carries out. The Founding Fathers gave Congress the power to give authors copyrights in order “[t]o promote the progress of Science and useful arts.” Progress would be retarded rather than promoted, if an author could not consult with others and adopt their useful suggestions without sacrificing sole ownership of the work. Too open a definition of author would compel authors to insulate themselves and maintain ignorance of the contributions others might make. Spike Lee could not consult a scholarly Muslim to make a movie about a religious conversion to Islam, and the arts would be the poorer for that.

The broader construction that Aalmuhammed proposes would extend joint authorship to many “overreaching contributors,” like the dramaturg in Thomson, and deny sole authors “exclusive authorship status simply because another person render[ed] some form of assistance.” Claimjumping by research assistants, editors, and former spouses, lovers and friends would endanger authors who talked with people about what they were doing, if creative copyrightable contribution were all that authorship required.

The arts would certainly be more impoverished if every director had to contend with every actor, especially any actor who is disgruntled, claiming copyright in the film and thus, the right to suppress the film’s publication. ‘Cause that is what this is really about: suppressing the publication of the work. It has nothing to do with an “author” claiming her rights under Art. I, Sect. 8, of the Constitution or Title 17.

Remember that? The Constitution? It grants “authors” the right to profit from their works. The Copyright Clause was not put there so that Ms. Garcia could use it as a tool to try and deal with actress regret.

If she’s going to regret anything, it very well may be filing this case. Remember those consequences I mentioned above? Yeah, they can bite her in the ass pretty hard. If Mr. Nakoula has counsel that is even remotely competent, the first thing he will do is file a special motion to strike under California Civ. R. Pro. 425.16, the California Anti-SLAPP Statute. While this statute does not stop discovery in its tracks in federal court, the way it does in state court, it still places the fear of a quick dismissal and attorney’s fees on Garcia’s head. Furthermore, the Copyright Act, under 17 U.S.C. § 505 provides for prevailing party attorney’s fees. There is no way that Garcia can non-fraudulently claim a copyright interest in the motion picture. How her lawyers missed that is beyond me. If I were judging this case, she still might win (on some of her claims) but in the end, the Plaintiff would be the one writing a check.

Ms. Armenta and Ms. Sol have walked their client into a buzzsaw. They clearly either have no idea what they are doing when it comes to copyright law, don’t care what they copyright law is, or have some other ulterior motive for bringing this claim. Whatever their motivation, this is one of the dumbest copyright infringement suits I have ever seen. For the love of god, if this happens to wind up in front of their eyes, I have a message for them: STOP. FIND SOMEONE WHO KNOWS WHAT THE FUCK THEY ARE DOING TO HELP YOU.

While Mr. Nakoula does not seem to be the most savory guy in the world, sometimes the bad guy wins. In this case, I certainly hope that he gets competent counsel, because this complaint deserves to be met with an anti-SLAPP motion and an award of attorneys fees heaped upon Ms. Garcia’s head. Otherwise, other idiots will see it and be emboldened to bring even more idiotic litigation into our already crowded federal courts.


Primer On the Law of User-Generated Content

September 1, 2012

This blog often features articles on developments in § 230 of the Communications Decency Act, or the Digital Millennium Copyright Act, but the significance – and nuance – of such rulings may not be immediately appreciable to many readers.  Hopefully such posts are helpful to lawyers.  However, they are important to non-lawyers and even only casual users of the Internet.  In order to provide retroactive context to those articles and background for future ones, we provide this brief history of Internet-related laws.

In the two decades since the Internet reached large-scale consumer adoption, its role in business, recreation and every facet of life has been largely taken for granted.  However, it interacts with the law in a number of ways that some might not expect.  With services such as Google, Facebook and YouTube thoroughly integrated with every facet of life – with established brands as banal as Tide laundry detergent vying to be “liked” by you on facebook, to political campaigns posting videos directly to the user-generated video site – that it is easy to overlook the patchwork of federal law that allows the internet to operate.

Federal law embraced the internet with some of its existing measures, such as the Cable Privacy Act of 1984, 47 U.S.C. § 551 (requiring cable companies – which have today become internet service providers including Time Warner and Comcast – to provide notice to subscribers before turning over personally identifying information pursuant to a lawful subpoena).  This law remains particularly significant in protecting anonymous activity and speech online, ranging from blog comments to the use of BitTorrent – all of which can be done without behind an IP address until the user’s internet service provider is subpoenaed and provides notice to its customer that his or her personally identifying information will be produced unless the subpoena is quashed.

Criminal law has also been instructive in shaping the law of the internet.  The Stored Communications Act, 18 U.S.C. §§ 2701-2712, prohibits service providers such as Google and Facebook from turning over users’ passwords and internal messages (such as messages and chat logs from one Facebook user to another) without a court order.  Additionally, hacking – a topic given great attention in the 1990s, but still persisting today – was made punishable with both criminal and civil penalties by 18 U.S.C. § 1030.

Perhaps the greatest tool of all for the internet, though, has been Section 230 of the Communications Decency Act, 47 U.S.C. § 230.  Section 230 immunizes service providers like Yahoo and Google for the acts of its users.  When someone opens a blogspot blog that allegedly defames someone, it is not Google’s fault – rather, liability falls on the shoulders of the blog’s author.  Similarly, message board operators are not liable for the torts of their users who may post tortious material to the website.  If they were, services such as Yahoo’s finance message boards and (unintentionally hilarious) Yahoo Questions would have never taken off.  This protection is not vitiated if a web service edits or deletes a user’s submission. 47 U.S.C. § 230(c)(2).

While courts have consistently upheld § 230’s protections for online service providers, the law has not been an absolute shield.  Where a site creates its own content that is tortious, then the service can be held liable.  Similarly, if the site requires a user to post tortious material as a condition of using its service, then the site is not afforded § 230 protections. Fair Housing Counsel v. Roommates.com LLC, 521 F.3d 1157, 1166 (9th Cir. 2008)  (“By requiring subscribers to provide the information as a condition of accessing its service, and by providing a limited set of pre-populated answers, Roommate becomes much more than a passive transmitter of information” and thus not entitled to § 230’s immunity).  For pure social media sites, § 230 provides valuable immunity against litigation from angry parents and the thin-skinned.  In states with strong anti-SLAPP statutes, § 230 has worked in tandem with these laws to create a fortress around internet companies, protecting them from common law claims and requiring parties with attorneys foolish enough to bring these claims to pay the companies attorney’s fees in most cases. (California and Seattle, where numerous social media companies are based, allow defendants to recover attorneys’ fees incurred in successful anti-SLAPP motions).

There is, however, one hole in § 230 – it expressly does not apply to intellectual property claims. 47 U.S.C. § 230(e)(2).  Thus, online service operators were potentially liable for hundreds of thousands of dollars in damages if their users copied and distributed copyrighted content on their sites.  In 1998, however, Congress enacted the Digital Millennium Copyright Act (“DMCA”) to combat this problem. 17 U.S.C. § 512.  Within this legislation, Congress granted certain entities, such as internet service providers, immunity from infringement as transitory networks where the infringing data does not reside – but it imposed burdens onto both web hosts, web sites and even right holders.

For most self-hosting bloggers and other internet users, the DMCA is fairly straightforward.  The service provider must register an agent to receive DMCA notices with the U.S. Copyright Office for $105, which is listed in an online registry of DMCA agents.  When receiving a proper DMCA take-down notice under 17 U.S.C. § 512(c)(3)(A), the service operator must remove the infringing content within a reasonable period of time, or risk being held liable for infringement.  The DMCA take-down process requires rights holders to seek out instances of infringement and send notices to infringers, but unlike a lawsuit for infringement, does not require the right holder to obtain a copyright registration certificate (or, in some circuits, merely an application).

While many small website operators do not comply with the DMCA, rights holders often send DMCA-compliant take-down notices, which are honored with the removal of allegedly infringing content.  For large services that stake their entire existence on user-submitted content, however, complying with the DMCA becomes remarkably more complicated.  For a service such as YouTube (or, more in your author’s practice area, a “tube site” containing pornography) the DMCA takes no complex new dimensions that are still unsettled despite the DMCA being more than a decade old, and the user-generated segment of web entertainment not being significantly younger.

For instance, the Second Circuit’s recent decision in Viacom v. YouTube, vacating many of the Southern District of New York’s 2010 conclusions about how the DMCA operates,  has created significant uncertainty about the meaning of 17 U.S.C. § 512(c)(1).  For a service such as a large “tube” site, particularly one that monitors its submissions to avoid unlawful or inappropriate content, there is a question as to what is required in addition to a DMCA take-down notice to constitute “actual notice” of infringement, or “facts or circumstances from which infringing activity is apparent.” Id.  The Second Circuit’s decision also re-opens the question of what constitutes the “right and ability” to control infringing material: Namely, whether this standard is contiguous with the same standard articulated in the doctrine of vicarious copyright infringement, or subject to a different, DMCA-specific standard as previously found by the Southern District of New York (requiring “specific knowledge” of infringement in order to have the right and ability to control it).

The DMCA contains additional twists and turns for both service operators and rights holders.  If a service provider has users who consistently engage in copyright infringement, it must ban them in accordance with an established, publicized policy to terminate these repeat infringers. 17 U.S.C. § 512(i).  Additionally, there is a question as to what constitutes an effective termination – while banning by e-mail address may satisfy the procedural requirements of this provision, the ease of creating new e-mail addresses ensures that this action would fall short of substantively fulfilling it.  Service operators must also act as an ombudsman for counter-notifications seeking the reinstatement of non-infringing content under § 512(g)(3).

For right holders, fair use of the copyrighted work must be considered before sending a takedown notice. § 512(c)(3)(A) (requiring “good faith belief” of infringement and signing of notice under penalty of perjury).  Failing to satisfy this requirement, or sending a DMCA take-down notice that is otherwise improper – such as to remove critical, non-infringing material, or to assert the rights of a third party who the notice-sender does not represent – makes the misrepresenting notifier liable for the uploader’s damages, costs and attorneys’ fees under § 512(f). (Similarly, a misrepresentation in a § 512(g) counter-notification also triggers the penalties of § 512(f)).  Counterbalancing this restriction, though, is the right holder’s power to issue a federal subpoena under § 512(h) – again, without even a copyright registration – in order to identify an infringer.  While this provision of the DMCA is infrequently used, the jurisprudence of § 512(h) is a fascinating sub-topic for another time.

However, the DMCA provides no protection for trademark infringement committed by a third party.  While proposed laws like PIPA and SOPA addressed the full theater of potential intellectual property infringement, the DMCA protects only against copyright infringement liability.  Thus, a novel theory from plaintiff’s attorneys is that a third party’s use of a trademarked name in an internet posting constitutes trademark infringement and unfair competition under 15 U.S.C. §§ 1114 and 1125.  While this is a frivolous claim to bring against a service provider, it can be pled to avoid a motion to dismiss in jurisdictions without robust anti-SLAPP statutes that allow for the inclusion of evidence in anti-SLAPP motions.  This leads to summary judgment and, in many cases, settlement – a detriment to the companies falling prey to these questionable suits.

Acting in conjunction, federal criminal, telecommunications and copyright law has created an ecosystem ripe for enormous online commerce.  Without these laws, the multi-billion dollar companies that dominate the internet likely would not exist.  While the ecosystem is still in flux, and will be as both technology and IP laws change, services such as Facebook, YouTube, Pinterest and Tumblr are here to stay.


The Copyrightability of Porn

August 18, 2012

Back in April, I wrote an article “Challenging The Copyrightability Of Porn” (html versiondigital mag version)

This was to confront a growing chorus of voices questioning whether porn can be copyrighted. You likely don’t need to read my article to know where I come down on it.

Over the past week, The First Amendment Lawyers’ Association has honored me by permitting me to file amicus briefs on its behalf in Colorado and Massachusetts, confronting this issue in the courts. (The MA one is a little better refined)


One of the dumbest articles ever written about Righthaven

July 4, 2012

A lot has been written about Righthaven v. Hoehn (my case), but the following article was so idiotic, so uninformed, such shoddy work, that I feel the need to show my readers this idiocy in its entirety so that they can’t claim that I selectively edited it. Further, I want the content preserved, just in case the author (Steven Shaw) decides to edit it after the fact to remove some of the idiocy.

As you read, you’ll find that there is not a single intelligent sentence in the entire article:

Remember Righthaven, the “copyright troll” that was threatening to sue anyone and everyone who reposted copyrighted content online? The company was ultimately drummed out of existence, in part for its distasteful tactics.

But the ouster of Righthaven left one issue on the table: can reposting an entire article ever be fair use?

I don’t think it can. But a federal judge in Nevada, probably in his understandable eagerness to make Righthaven go away, issued a ruling that leaves the door open for infringing bloggers to argue that posting entire articles can be fair use or at least so harmless as to be non-actionable.

No matter how distasteful we find a company like Righthaven, that distaste should not be allowed to gut the body of intellectual property law upon which our global economy — moving steadily away from production of goods — depends. Republishing an entire article should be an absolute no no. I hope Righthaven gets the opportunity to appeal on that issue.

Outlets like Ars Technica and Wired have nothing but contempt for Righthaven. I’m interested to see how they react when bloggers reprint entire articles from their websites. (source)

Amazing. Simply amazing. The Author lists among his qualifications that he “used to be a litigation attorney at Cravath, Swaine & Moore.” I presume that in his career, maybe he handled a matter that was at least tangentially related to copyright. Ok, I presumed no such thing, since he obviously doesn’t know anything about fair use. But, I figured I would find that he was sixth chair on a bankruptcy case or something… you know, I’d find a pile of cases that had nothing to do with copyright, and make some snarky remark about how antitrust or bankruptcy have nothing to do with copyright.

Imagine my surprise when I tried to find a single case he worked on as a “litigation attorney at Cravath, Swaine & Moore” and found this as the result.

Some illustrious copyright litigation career Mr. Shaw has there, huh?

Ok, maybe a better search string would have found his illustrious copyright litigation experience. If anyone has access to Lexis or Westlaw and finds contrary results, let me know and I’ll update.

Since he was admitted to the New York bar in 1995 (source), and then left Cravath in January of 1996 (source), I’d say that saying he “used to be a litigation attorney at Cravath” may be truthful, but its a bit of a dishonest repackaging of the facts. Lets not call him a “liar,” but lets call him “full of shit.”

Of course, we can figure that out from his statement here:

“But the ouster of Righthaven left one issue on the table: can reposting an entire article ever be fair use?

I don’t think it can. (source) “

There is absolutely no reason why reposting an entire article can never be fair use. Of course, I take no quarrel with commenters who might think that Righthaven v. Hoehn was decided incorrectly on the fair use prong. Reasonable people might have non-stupid theories about that. But, to say that reposting an entire article can NEVER be fair use is another way of saying “I am a blowhard idiot who doesn’t know squat about copyright law, but I am desperate to say something relevant about it.”

Before that, he wrote:

Remember Righthaven, the “copyright troll” that was threatening to sue anyone and everyone who reposted copyrighted content online? The company was ultimately drummed out of existence, in part for its distasteful tactics (source)

Maybe Shaw could put down the fork and do some research? Righthaven was not “drummed out of existence” for its “distasteful tactics.” It was “drummed out of existence” because every single judge that looked at it determined that it did not have standing. Shaw might have known that, had he actually done any research.

Later, Shaw writes:

a federal judge in Nevada, probably in his understandable eagerness to make Righthaven go away, issued a ruling that leaves the door open for infringing bloggers to argue that posting entire articles can be fair use or at least so harmless as to be non-actionable. (source)

Really? This guy claims that he “used to be a litigation attorney,” yet he impugns the work of a federal judge without, it seems, ever so much as reading his opinion. Shaw says that since Judge Pro just wanted Righthaven to go away, he ginned up some new rule that posting an entire article can be fair use? And, Shaw thinks that Pro’s decision “leaves the door open?” If Mr. Shaw had ever so much as researched 17 USC Sect. 107, he would find that the door was already wide open. Pro just rode through it.

Still looking for an intelligent word in this crock of shit, lets move on to the next paragraph:

No matter how distasteful we find a company like Righthaven, that distaste should not be allowed to gut the body of intellectual property law upon which our global economy — moving steadily away from production of goods — depends. Republishing an entire article should be an absolute no no. I hope Righthaven gets the opportunity to appeal on that issue.

Righthaven v. Hoehn “gut[s] the body of intellectual property law upon which our global economy — moving steadily away from production of goods — depends” ????

What?

The whole global economy is threatened because a district court agreed with the premise that yes, sometimes, you can even take an entire work and call it “fair use.” Wow. I’ll start stocking up on gold bars, canned goods, and ammunition right away.

Mr. Shaw’s work is clearly shoddy. The article is void of any actual knowledge, and anyone who reads it (absent this kind of criticism) will actually be markedly stupider after they finish reading.

If Mr. Shaw is correct, then I don’t get to cut apart his dumb crap, line by line, because “Republishing an entire article should be an absolute no.”

As far as “I hope Righthaven gets the opportunity to appeal on that issue” goes, I finally agree with him. As just an ego-driven boor, I am DYING for Righthaven v. Hoehn to be decided by the 9th Circuit. Then, I get more fees, I get my name on a 9th Circuit win, and I get to grind my boot into Righthaven’s face some more.

But, as a lawyer, I need to think of my client. For his sake, I hope that the case just ends. It is like a bad zombie movie.

Now, Shaw finally shows his agenda:

Outlets like Ars Technica and Wired have nothing but contempt for Righthaven. I’m interested to see how they react when bloggers reprint entire articles from their websites.(source)

I know how they would react. They would react by asking themselves “is this fair use?” If so, they would move on.


What What, Fair Use on a 12(b)(6)?

June 8, 2012

“What what, in the butt?” was the question recently before justices Easterbrook, Cudahy and Hamilton in the appeal of Brownmark Films LLC v. Comedy Partners from the Eastern District of Wisconsin. (Opinion)  At issue was whether South Park’s interpretation of Samwell’s “What What In The Butt,” as performed by Butters in the episode “Canada on Strike,” was non-infringing fair use under 17 U.S.C. § 107.  More interestingly, though, was that Comedy Partners raised the defense on a 12(b)(6) motion to dismiss – without any discovery or opportunity therefor (see FRCP 56(d), formerly Rule 56(f)).  The Eastern District of Wisconsin agreed that South Parks’ rendition of What What In the Butt was fair use, and dismissed the Complaint at the pleading stage.

Brownmark did not include the original What What In the Butt video, nor South Park’s adaptation, in its Complaint.  South Park Digital Studios did, however, attach both videos to its motion to dismiss, relying on the incorporation by reference doctrine.  On appeal, the Seventh Circuit resolved this issue in South Park’s favor:

Because the claim was limited to the production and distribution of a single episode, the district court was correct to rely solely on the two expressive works referenced in Brownmark’s amended complaint and attached to SPDS’s motion, as well as the allegations in the complaint, to decide on the fair use defense.

SPDS relies on the incorporation-by-reference doctrine to maintain that reliance on the attached works does not violate Rule 12(d), which requires that Rule 12(b)(6) or 12(c) motions containing materials outside of the pleadings be converted into motions for summary judgment. It is well settled that in deciding a Rule 12(b)(6) motion, a court may consider “documents attached to a motion to dismiss . . . if they are referred to in the plain- tiff’s complaint and are central to his claim.” Wright v. Assoc. Ins. Cos. Inc., 29 F.3d 1244, 1248 (7th Cir. 1994). In effect, the incorporation-by-reference doctrine provides that if a plaintiff mentions a document in his complaint, the defendant may then submit the document to the court without converting defendant’s 12(b)(6) motion to a motion for summary judgment. The doctrine prevents a plaintiff from “evad[ing] dismissal under Rule 12(b)(6) simply by failing to attach to his complaint a document that prove[s] his claim has no merit.” Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002). (Op. at 5)

But the Seventh Circuit noted a curious wrinkle to this analysis:

While the application of this doctrine to the present case would seem to allow SPDS’s action, no court of appeals has ruled that the content of television programs and similar works may be incorporated by reference. Several district courts have concluded that the doctrine does apply to such works. See, e.g., Burnett v. Twentieth Century Fox, 491 F. Supp. 2d 962, 966 (C.D. Cal. 2007); Zella v. E.W. Scripps Co., 529 F. Supp. 2d 1124, 1131-32 (C.D. Cal. 2007); Daly v. Viacom, 238 F. Supp. 2d 1118, 1121-22 (N.D. Cal. 2002). And we think it makes eminently good sense to extend the doctrine to cover such works, especially in light of technological changes that have occasioned widespread production of audio-visual works. The parties, however, did not brief this issue, and so we reserve the resolution of the question for a later date. (Op. at 5-6)

Ultimately finding that the Eastern District of Wisconsin was within its jurisdiction to grant dismissal, the appellate court engages in a relatively truncated fair use analysis under the four factors of 17 U.S.C. § 107.  The reason for the brevity?

Since Brownmark never opposed SPDS’s fair use argument in the district court, we consider the argument waived. (Op. at 9)

Ouch.  And, since it’s the Seventh Circuit, that means automatically shifting attorney’s fees and costs under 17 U.S.C. § 505.  What What In the Butt, Indeed.

Perhaps the overlooked gem of this opinion is that the Seventh Circuit has forever enshrined my favorite South Park meme: Internet Money.

The South Park Elementary school boys—Cartman, Stan, Kyle and But- ters—decide to create a viral video in order to accrue enough “Internet money” to buy off the striking Canadians. The boys create a video, “What What (In The Butt),” (WWITB) in which Butters sings a paean to anal sex. Within the show, the video is a huge hit, but the boys are only able to earn “theoretical dollars.”

As the South Park episode aptly points out, there is no “Internet money” for the video itself on YouTube, only advertising dollars that correlate with the number of views the video has had. It seems to this court that SPDS’s likely effect, ironically, would only increase ad revenue. Any effect on the derivative market for criticism is not protectable. Id. at 592. And the plaintiff has failed to give the district court or this court any concrete suggestion about potential evidence indicat- ing that the South Park parody has cut into any real market (with real, non-Internet dollars) for derivative uses of the original WWITB video. (Op.)

Of course, when I use “Internet Money,” it refers to settlements from BitTorrent infringers and others who pay for their wrongdoing.  But, it is evocative of the constant challenge of monetizing the digital ether of the World Wide Web.


Blogger Asserts Copyright, Newspaper Editor Gets Irate – YouTube

May 17, 2012

How to properly assert your copy rights:
Blogger Asserts Copyright, Newspaper Editor Gets Irate – YouTube.


h/t Ethics Alarms


ABA Journal Magazine Tackles Righthaven in May 2012 Issue

April 23, 2012

Remember Righthaven?  While it has been stripped of its intellectual property and claims against it keep piling up, the fat lady has not yet sung – and the ABA has noticed.

The May 2012 ABA Journal’s cover story is the aftermath of Righthaven.  Eriq Gardner, who Righthaven once sued for posting an image of an exhibit from one of its court pleadings, examined both sides of the copyright enforcement equation.  Marc Randazza and Ron Coleman are quoted in the lengthy piece, which centers on Righthaven but touches on the RIAA’s litigation campaign, the mass-joinder suits brought by porn studios, and the realities of plaintiff-side copyright enforcement.

Righthaven’s CEO, Steven Gibson, is quoted with the following observation:

“One of the questions for the article is why is it so difficult for copyright owners to hire competent copyright litigation counsel?” he said. “There’s not a lot across the country. Definitely not like personal injury lawyers. You can’t go into the phone book and find a listing. Why is it this difficult? Why isn’t there more copyright litigation?”

Yet, even with Righthaven.com no longer belonging to Nevada’s Righthaven LLC, he is optimistic about the venture’s future.

“Righthaven remains the vehicle for dealing with infringements on the Internet,” Gibson told me recently.

A motion by the EFF seeking personal sanctions against Gibson at a rate of $500 per day is still pending as of this writing.

The problems of online copyright infringement and enforcement are real, and few would argue that there is not some useful role of copyright in society.  These controls, however, cannot and should not completely gobble up protected speech – especially since the 1976 Copyright Act codified fair use in 17 U.S.C. § 107.  Even allowing breathing space for hilarious derivative works, much work needs to be done with respect to fighting infringement, even as the law for doing so remains in flux.


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