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” ????


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 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.

Potential DMCA Game Change in 2d Circuit Ruling on Viacom v. YouTube

April 5, 2012

By J. DeVoy

The Second Circuit released its opinion in Viacom v. YouTube today, partially vacating  the Southern District of New York’s order granting summary judgment in favor of the online video service.  Ultimately, the case is to be remanded to the district court for fact-finding on whether YouTube had knowledge of infringement, had the right and ability to control infringing content, and YouTube’s willful blindness.

Almost as soon as the Court starts writing, it delivers the gut punch:

Although the District Court correctly held that the § 512(c) safe harbor requires knowledge or awareness of specific infringing activity, we vacate the order granting summary judgment because a reasonable jury could find that YouTube had actual knowledge or awareness of specific infringing activity on its website. We further hold that the District Court erred by interpreting the “right and ability to control” infringing activity to require “item-specific” knowledge. (Opinion at 2)

While the Second Circuit held that YouTube qualified for DMCA protections under § 512(c), the easy work of the opinion ends there.  What follows are a range of questions that the Second Circuit believed needed to be supported by more facts – potentially changing the landscape for user-generated content.

The Second Circuit is not interested in relegating the operators of user-generated content services to constantly policing their sites for infringement, and believe that § 512(c)(1)(A) does not require this conduct:

Under § 512(c)(1)(A), knowledge or awareness alone does not disqualify the service provider; rather, the provider that gains knowledge or awareness of infringing activity retains safe-harbor protection if it “acts expeditiously to remove, or disable access to, the material.” 17 U.S.C. § 512(c)(1)(A)(iii). Thus, the nature of the removal obligation itself contemplates knowledge or awareness of specific infringing material, because expeditious removal is possible only if the service provider knows with particularity which items to remove. Indeed, to require expeditious removal in the absence of specific knowledge or awareness would be to mandate an amorphous obligation to “take commercially reasonable steps” in response to a generalized awareness of infringement. Viacom Br. 33. Such a view cannot be reconciled with the language of the statute, which requires “expeditious[ ]” action to remove or disable “the material” at issue. 17 U.S.C. § 512(c)(1)(A)(iii) (emphasis added). (Opinion at 16)

However, this does not absolve YouTube for potential liability for red flag knowledge.  Since the internet has changed much since the DMCA’s enactment, the examples of red-flag knowledge articulated by Congress are largely inapplicable now.  Those availing themselves of these protections hold up the examples of red-flag knowledge described by the Senate (e.g., domain names with words like “illegal,” “stolen” or “pirate” in them), while copyright enforcers have advocated for a broader standard of red flag knowledge, along the lines of “I know it when I see it.”  Seeing this hole in the law, the Second Circuit tried to reconcile a question a question that has befuddled many a copyright lawyer: What the hell, exactly, is red flag knowledge?

The difference between actual and red flag knowledge is thus not between specific and generalized knowledge, but instead between a subjective and an objective standard. In other words, the actual knowledge provision turns on whether the provider actually or “subjectively” knew of specific infringement, while the red flag provision turns on whether the provider was subjectively aware of facts that would have made the specific infringement “objectively” obvious to a reasonable person. The red flag provision, because it incorporates an objective standard, is not swallowed up by the actual knowledge provision under our construction of the § 512(c) safe harbor. Both provisions do independent work, and both apply only to specific instances of infringement. (Opinion at 17-18)

Actually proving red flag knowledge is a factual question.  It is also part of the reason the case is remanded to the S.D.N.Y.  Indeed, the Court of Appeals spends pages reviewing and discussing the record evidence it believes creates a question of fact as to whether YouTube had actual knowledge of infringement on its service. (Opinion at 19-22)  The same is true of willful blindness, the equivalent of knowledge in copyright cases. (Opinion at 19-24)

As to the “right and ability” to control user-uploaded content under § 512(c)(1)(B), the Second Circuit also remanded this issue to the District Court for further fact-finding.  The Court of appeals rejected both interpretations of this standard as advanced by the parties – for Viacom, a codification of common law vicarious liability standards; and for YouTube, a requirement that the provider must know of the particular case before it can control the infringement. (Opinion at 19-25)  The court agreed that the right and ability to control under § 512(c)(1)(B) requires more than the mere ability to remove or block access to materials on the defendant’s website – but how much more, or what that “more” might be, is unclear – other than the fact that it does not require specific knowledge.

Another issue remanded to the District Court is the question of YouTube’s syndication of its videos to others:

In or around March 2007, YouTube transcoded a select number of videos into a format compatible with mobile devices and “syndicated” or licensed the videos to Verizon Wireless and other companies. The plaintiffs argue—with some force—that business transactions do not occur at the “direction of a user” within the meaning of § 512(c)(1) when they involve the manual selection of copyrighted material for licensing to a third party. The parties do not dispute, however, that none of the clips-in-suit were among the approximately 2,000 videos provided to Verizon Wireless. In order to avoid rendering an advisory opinion on the outer boundaries of the storage provision, we remand for fact-finding on the question of whether any of the clips-in-suit were in fact syndicated to any other third party. (Opinion at 31-32)

The court rounds out its opinion by considering YouTube’s repeat infringer policy and other software tools used to avoid the posting of infringing content.  Neither are sufficient to exclude YouTube from the safe harbor provisions of § 512(c).  Because more fact-finding is needed, the Court of Appeals declined to determine whether the trial court erred in denying Viacom’s cross-motion for summary judgment.

While not likely to become an Alameda Books, this litigation is far from over.  Even if Youtube had won, Viacom likely would have petitioned the Supreme Court for certiorari.  Based on the Grokster case, there is some likelihood the Supreme Court would have granted it.  But by sending the case down to the S.D.N.Y. yet again, another appeal to the Second Circuit is all but ensured.

Latest Righthaven Developments

March 28, 2012

The Gametime IP blog discusses them here.

All Righthaven’s Intellectual Property Are Belong To Us

March 5, 2012

So sayeth the Honorable Philip Pro of the District of Nevada. (source)

Proposals to fix Copyright

February 29, 2012

Public Knowledge proposes some ideas for how to fix copyright. (source)

Curb abuses of DMCA takedown notices. The best part of this is is that they propose broadening the penalties for bogus takedowns. I think this is a pretty good idea, as I have seen my share of DMCA takedown requests that targeted clearly fair use or were used to simply take down material that the requester did not like (for example, alleged defamation). I think it goes a little too far in seeking to penalize parties who use automated scripts to send takedown requests. While I appreciate that such a scattergun approach creates collateral damage, I also can see how copyright owners are fighting such a game of whack-a-mole, that I wouldn’t support this idea without some give-back to the content producers. The rest of the proposal seems pretty spot on.

Another proposal is to shorten copyright terms. I’m fully in favor of that. The continuous extension of copyright terms, to a now absurd length of “life of the author plus 70 years” is a threat to a robust public domain. These guys suggest trimming it to “life plus 50.” I actually think this is not radical enough. I think that copyright should be limited to an initial term of 25 years with a renewal period (sort of like the old act handled things) with the author or his heirs only being able to assign the initial period.

The best part is the proposal to strengthen fair use. Right now, if you are accused of copyright infringement and you have a viable fair use defense, it usually is still worth it to settle. Fair use is the compromise we make between free speech and protecting the rights of authors. PK suggests that statutory damages (and attorneys fees awards) in fair use cases should be reduced (or eliminated), even if the infringer loses on that defense. However, the alleged infringer must have had a good faith belief that he was engaged in fair use. Actual damages would still be available. I love this idea. This removes the chill that currently hangs over building upon prior works. Again, though, I think they should go further. I believe that if a copyright defendant wins on a fair use defense, that defendant has done us all a public service. Therefore, I believe that if someone wins on fair use, there should be a strict requirement that the losing plaintiff pays the defendant’s attorneys’ fees as well as some kind of statutory damages penalty. I’m all for enforcement of copyright, and I’m certainly not a copyright minimalist. However, I believe that fair use needs a much thicker spine.

Read the rest here.

Artist alleges mural drove aesthetics of music video

February 28, 2012

Artist Maya Hayuk of Brooklyn filed a complaint against RCA Records and Sony Music alleging that several aspects of her mural “Sunshine” were incorporated into the music video for “I Only Wanna Give It To You” by Elle Varner.

In her complaint, Hayuk states that she her career includes more than 75 group an solo gallery shows, installations, and murals throughout the U.S. and several countries.  Her work has been licensed for use on several different goods, and she normally commands “premium fees and royalties” for their use in commercial settings.

According to the complaint, Hayuk originally created the mural for a music video, also called “Sunshine,” for a video by recording artist Rye Rye and M.I.A. In that music video, the artists rap in front of her mural. Hayuk claims, however, that she did not authorize the use of her mural in Varner’s video.

One of the most often-cited cases involving “incidental use” of artwork is Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997). In that case, a television show used a copyrighted poster as a piece of set decoration. In one scene, the poster was partially visible for 26.75 seconds. There was nothing in the show that called attention to the poster. It was never referenced, discussed, nor focused upon. The Defendant argued that this mere glimpse of a poster was a de minimis use or fair use. The Second Circuit, reversing the lower court, held that 26.75 seconds was enough to overcome the de minimis use defense. With respect to fair use, the Second Circuit held that the use was not allowed under that doctrine because there was no transformative element to the use.

The video at issue in this lawsuit differs from other similar suits in that the mural does not merely appear in the video as an incidental use, but that it includes scenes incorporating “videographic reproductions of Hayuk’s Sunshine.”

Indeed, the video seems to be aesthetically based upon the mural. The performers wear the same bright colors and patterns featured in the mural, with several scenes cutting to Varden dancing and singing in front of a brightly colored bed that looks similar to the mural, walking through a line of actors carrying boxes of similar colors, and, one of the biggest similarities, colorful circles that seem to be pulled right from the mural indicating cuts between scenes. While previous cases have dealt mainly with artists’ work being used in the background in movies, television shows, and music videos without permission, the difference here is that the music video director seems to have used the mural as the aesthetic basis for the video.

Because the mural seems to dominate the overall theme of the video rather than appearing just for a moment, it seems the claim has some traction.

Watch the video in question below.

And in other copyright news … some bad news

January 19, 2012

The supreme court has ruled in Golan v. Holder that works that enter the public domain may be pushed back under the cover of copyright protection. (source)

This is an absolute abomination. No surprise that our “wise latina” on the Court went with the majority.

The Megaupload Indictment

January 19, 2012

The indictment is here.

The indictment tells the story of cyberlockers in a perfect narrative — how the owners of the site knew that their site was a massive clearinghouse of stolen content, they profited from it, and they did whatever they could to mask it.

The charges include Racketeering, conspiracy to commit copyright infringement, and money laundering.

It looks like the Department of Justice cooperated with foreign law enforcement to actually take the owners of the site into custody. (source)

Receiving DMCA protections while remaining anonymous: Having your cake and eating it too

October 19, 2011

By J. DeVoy

A significant portion of the blogosphere – or at least what I read of it – acts under cover of anonymity.  I think this is important, especially given the candid statements these authors make about political matters and issues of public concern – particularly because these sentiments are far outside the mainstream.  In some cases, their voices cannot be heard elsewhere.  Society cannot grapple with the truth.  When this ultimately has career consequences, or some psychotic antagonist gets too close to the writer’s identity, he can pull the plug immediately, and then work to purge his writings from Google’s cache and the internet archive – leaving it as if he never existed.

Part of blogging is borrowing – ideas, links, inspiration – and sometimes copying outright, things like images and large chunks of copyrighted (or copyrightable) works.  While possibly frivolous or fair use, such copying could be infringement – and carry a frightening $150,000.00 price tag.  Wordpress and Moniker might not reveal your personally identifying information to some scrawny basement virgin who is outraged that you advocate cheating on your girlfriend, and provide specific instructions for doing it, that he demands your name so he can send you a very erudite e-mail.  Colorable legal demands with a screen shot and copyright registration or application, though, tend to go a lot farther, and an anonymous author’s cloak of anonymity is looking awfully threadbare.  This even bigger pisser comes if the writer is not even liable for the copying, and a full article or image is left by some unknown third party in the site’s comments.  (By the way, this is an excellent way to torpedo blogs you dislike.)  Another option is to create a special purpose business entity to run the blog, such as a LLC, but this requires money, attention, and a public filing with the secretary of state – things that defeat the purpose of anonymity, and even at just a few hundred dollars a year, are not worth the benefit to most anonymous bloggers.

Having established the value – and fragility – of anonymity, the question turns to how one can preserve it and inoculate against liability for copyright infringement.  Technically, this is impossible, and may carry a substantial penalty.  I do not recommend this, but it warrants consideration from an academic standpoint because copyright trolling is real and unlikely to simply disappear.

The Digital Millennium Copyright Act (“DMCA”) requires online service providers, including blogs, to register a designated agent with the copyright office to receive the statute’s protections. 17 U.S.C. § 512(c)(2).  The process for registering this agent, known as an “interim designation,” is governed by the Code of Federal Regulations, and available here.  While the DMCA was passed in 1998, we are still working off of interim regulations – but proposed final rules are pending, and open for comment under the APA until November 28, 2011.

This raises a few issues.  First, the designated agent must provide his or her full legal name, address, e-mail address and phone number, and for this information to be included on the designator’s website.  The precedent that has grown up around the DMCA requires only substantial compliance with the statute in order to enjoy its protections. See Wolk v. Kodak Imaging Network, Inc., 2011 U.S. Dist. LEXIS 27541 *18-19 (S.D.N.Y 2011) (noting appearance of DMCA agent’s contact information on website and granting safe harbor partly based thereon); Perfect 10, Inc. v., Inc., 2009 U.S. Dist. LEXIS 42341, *20-21 (C.D. Cal. 2009) (holding that failure to provide email address was insubstantial, but only where the agent’s name, address, and telephone number were published on website); see also H.R. REP. 105-551 (II) (1998), at 55-56 (giving examples of insubstantial departures, such as “misspelling a name, supplying an outdated area code if the phone number is accompanied by an accurate address, supplying an outdated name if accompanied by an e-mail address that remains valid for the successor of the prior designated agent or agent of a copyright owner”).

The question then becomes whether using an assumed name for the DMCA agent allows for substantial compliance.  There are two ways of approaching this: On one hand, so long as the address, phone number and e-mail address reach an actual person who can remove infringing content as required by statute, there’s a colorable argument for substantial compliance.  Moreover, there is a significant First Amendment interest in anonymity that should not necessarily be trammeled if the DMCA’s goals are still being effected, with take-down notices being received and honored by an agent, even if misnamed.  Simultaneously, how can there be substantial compliance when the agent is not who the agent claims to be?  This is not a case of the actual agent leaving, with someone else standing in his place and still reachable by the designation form’s contact information.  To the contrary, a false name for an agent gives rise to the inference that the designator was misrepresenting the agent’s true identity to the copyright office – potentially a felony and criminally false statement under 18 U.S.C. § 1001.

Now, an anonymous site could use an actual person as its DMCA agent, no pseudonyms needed.  This chips away at the author’s anonymity, though, and may bring unnecessary problems onto the DMCA agent.  Those of us who remember what transpired between Roissy and Lady Raine know not to underestimate the psychosis of e-stalkers, nor the damage they can cause.  The relationship between the DMCA agent and his acquaintances/friends, as seen on twitter, facebook or ascertained by other means, would be analyzed and reverse-eningeered until the anonymous blogger’s identity was known. (Or, worse, thought to be known, leading to a false allegation of authorship.)  In a more extreme context, this may arise in litigation – since the DMCA agent’s identity is known, and he or she surely had contact with the blog’s anonymous author, the agent is a subpoena target.

The same issues present themselves if one tries to designate an agent as a representative of the blog, whether anonymously or through a separate party under his or her true name.  Designating an agent under a false name calls into question whether the designation of a DMCA agent substantially complies with the statute, and is another avenue for the designator to risk felony conviction under 18 U.S.C. § 1001.  Having a third party act as the blog’s representative raises the same issues above, potentially jeopardizing anonymity and giving opponents a good target for harassment and discovery, in the event of litigation – or applying enough pressure that he or she crumbles.  Using someone else as a representative of an anonymous blog can create other headaches.  If the relationship is unclear, the third person’s representations as an authorized actor for the blog (an informal, unorganized entity as it may be) can be used to cloud any claims the author has to the blog’s copyrighted material, trademarks and associated goodwill, and other assets.  Even if the representative for the blog served no other purpose but to authentically designate a DMCA agent, the question of what relationship that person had with the blog should come to an inquisitive litigant.

There are narcissistic reasons not to use an outsider as a designator, too.  Namely, he or she will be accused of writing the blog.  All credit could be given to someone who may not be able to string a sentence together, but stepped in to serve a ministerial function.  Where’s the justice and glory in that?  Depending on the blog, too, one must wonder about the person who would volunteer to be the designator and to have his or her name publicly attached to controversial, politically incorrect content.  It works well for some people – but not the majority.

There are definite risks and problems associated with running an anonymous blog and trying to achieve safe harbor protections under the DMCA.  These risks, however, must be weighed against the sheer volume of service providers with registered agents.  Final rules for agent designation may close the loopholes that could make an anonymous registration with the copyright office feasible (even if legally improper), and possibly even substantially compliant with the DMCA.  The risks being an ineffective DMCA registration, though, and running up through criminal liability, likely do not warrant the effort required to attempt outwitting the DMCA.

More Righthaven Fun – Urgent Appeal

October 17, 2011

Since my firm is handling this litigation, I will keep my comments somewhat neutral.

Our old friend, Righthaven was ordered to pay $34,000 to a guy they wrongly sued. Righthaven didn’t pay. Righthaven begged the court to excuse it from paying. The Court told it to pay or it post a bond for that amount. Righthaven filed an “urgent” motion with the 9th Circuit Court of Appeals. (here)

We, naturally, opposed the urgent motion. Opposition here.

I need not comment where others have done such a good job.

Ken at Popehat gives us an homage to “A Few Good Men,” with Oh, Well, If It’s An URGENT Motion, That’s TOTALLY Different.

Steve Green at Vegas Inc. provides a less opinionated, but very informative article. Righthaven facing fraudulent transfer claim.

We jump back over to the opinionated side of the coin with Mike Masnick, over at Techdirt, and his Righthaven Still Trying To Avoid Paying Any Legal Fees Of Those It Illegally Sued.

Shocking revelation: Piracy hurts individuals!

October 10, 2011

By J. DeVoy

In a stunning revelation sure to be devastating to freetards everywhere, not everyone who creates copyrightable work is Lars Ulrich or some ponytailed douchebag driving a BMW 7-series while demanding that the RIAA sue more people so his fat, dumb and entitled daughter can have a pony.  The common plea from the anti-enforcement community can be summarized as: “How can you sue PEOPLE?!”

Well, it’s easy – people commit piracy.  We don’t let thieves and rapists off the hook because they’re people.  And while copying files is not analogous to either of those crimes, it is still an unlawful act, and one committed by individuals.  In fact, there is no one better to sue, and more deserving of a lawsuit, than the individual infringer.

Here’s an example why.  Athol Kay wrote a book about how to save and improve your marriage.  He’s been writing a blog for at least a few years now, and consolidated all of his knowledge into an impressive tome about how to keep your wife thin, happy, and sexual.  Pretty important stuff if you ask me, or even if you just don’t want to be one of the nearly half of married men who get financially pwned by divorce.  He sold a PDF copy for a modest sum of money – $10 – that let him keep a decent chunk of change for himself.

Kay knew that piracy of his book was inevitable.  He possibly even bought into the meme that free content generated sales.  He thought it would balance out because people would pay the $10 in recognition of his work in compiling a sizable and massively important book.  He was wrong.

40,000 illegal downloads later, Kay is out about $300,000 in royalties that he would have earned if people had purchased his book legally.  He did everything the freetards told him to – he optimized his model for portability and low cost, efficient sales.  He still got screwed by the basement dwelling turds who think everything should be free because the creator has not exhausted every last possible option in protecting his intellectual property.

To be fair, I would not have advised Kay to distribute a PDF copy of his book.  But he made a business decision with his eyes open.  He did not recognize, however, the extent of piracy for such a niche book.  Kay also recognizes that not every one of those 40,000 downloads would have translated into a sale.

Now I know that if people actually had to pay for the book, 40,000 extra people wouldn’t have purchased it, but if even 10% of them did, that’s still a fair chunk of change and to be completely blunt… I deserve it. (source.)

Indeed he does, and the Constitution itself even says so, as it empowers congress:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. U.S. Const., Art. I, Section 8, cl. 8

Not everyone who benefits from copyright laws is some fat cat raking in millions of dollars.  In fact, few are.  Most are just regular guys who had an idea, poured their heart and soul into creating it, and hope to get a return on investment for being smart and motivated enough to see their vision through to completion.  I’m sure Kay is flattered that so many people want his book.  But warm fuzzies don’t put food on the table – money does.  If creators cannot get it on the front end with sales, they’ll recoup it on the back end with litigation.

UPDATE 10/21 – As Mike Masnick and others point out, including Kay, his initial figures were way off due to illusory downloads stated in order to generate interest in the files.  His estimates were off, as were the stated lost profits.  Sorry, I was busy.