Sunday, February 28, 2016

Copyright Infringement Online: New Report on Pleading Prima Facie Copyright Claims Under The Charming Betsy Doctrine

"Charming Betsy" Canon 
National statute must be construed so as not to conflict with international law. See Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64 (1804): "It has also been observed that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains..."

I checked my copy of Reading Law: The Interpretation of Legal Texts by the late Justice Antonin Scalia and Brian Garner and found no reference to this case or this canon.

More on the Charming Betsy doctrine from the Constitutional Law Reporter (quoted below) here:

          As Chief Justice Marshall explained: “An act of Congress ought never to be construed to      violate the law of nations if any other possible construction remains, and consequently can never be construed to violate neutral rights or to affect neutral commerce further than is warranted by the law of nations as understood in this country.”

On February 22, 2016 Register of Copyrights Maria Pallante and the U.S. Copyright Office issued a report (embedded in this post below) to the House Committee on the Judiciary titled:  The Making Available Right in the United States.  The Report is very important reading for copyright litigators because it deals with basic questions of how much a copyright owner needs to investigate and prove in order to go into federal court and file a copyright infringement complaint.  Because the Report purports to provide guidance to resolve differences among federal district  courts, the Report is of tremendous practical import for litigators at the initial stages of a case.

The key question is:  If I represent a copyright owner, can I go to court and successfully plead a copyright infringement claim by showing that a defendant has made my client's copyrighted work available online without authorization, but with no evidence that the copyrighted work was actually downloaded or copied?

Jumping to the punchline, the Copyright Office says "yes."  As an administrative agency to which deference is owed, the Report is likely to be helpful fodder for a the plaintiff acting on shaky evidence.

Restating the practical issues:

1. what do I have to plead to establish a prima facie case of copyright infringement where a defendant has facilitated access to copyrighted works online?

2. what evidence do I need to support a claim for online copyright infringement against a motion to dismiss?

The Report was issued in response to a December 2013 letter from Rep. Melvin L. Watt, Ranking Member, Subcommittee on Courts, Intellectual Property & The Internet.   Rep. Watt had the following three main questions for the Copyright Office:

1. how the existing bundle of rights under Title 17 covers the making available right in the context of digital on-demand transmissions such as peer-to-peer networks, streaming services, and music downloads, as well as more broadly in the digital environment;
2. how foreign laws have interpreted and implemented the relevant provisions of the WIPO Internet Treaties; and
3. the feasibility and necessity of amending U.S. law to strengthen or clarify our law in this area.  Report at 4.

The Report concludes the following:

  • 17 U.S.C. 106 already gives a right of action for "making available"
  • U.S. law should be read to not require evidence that a copy has been disseminated or received as a condition for an infringement claim
  • Offers of access to a copyrighted work implicate a copyright owners distribution right under 17 U.S.C. 106(3) and the U.S. courts ruling otherwise have gotten the law wrong
  • Internet streaming or online display of an image are rights granted to copyright owners and thus covered by 17 U.S.C. 106 (4-6) - public performance and display.  17 U.S.C. 106(1) covers rights of digital reproduction.
  • Changes to the U.S. Copyright Act "would likely prove more disruptive, not less, to the rule of law in this area.
The Report is a fascinating read, particularly since it involves an academic debate between Professor Menell and Nimmer, where Professor Nimmer was persuaded to change his copyright law treatise by the strength of Menell's arguments.  Nimmer had previously insisted that the Copyright Act required actual copies to be transmitted to have a claim for copyright infringement. but Menell persuaded him that the Copyright Act dictated otherwise.  Now that Nimmer's treatise is in line with the Copyright Office's thinking, the Report concludes that judges who relied on Nimmer's prior incorrect thinking will get things right.

The reason that this is important in the international law context is that the U.S. signed WIPO Internet Treaties (WIPO Copyright Treaty and WIPO Performance and Phonogram Treaty) prior to enacting the Digital Millenium Copyright Act of 1998 ("DMCA").  The argument is that in 1998 Congress thought that Title 17 already protected the "making available" right required by the WIPO Treaties.

The Copyright Office argues that a contrary reading would violate the  Charming Betsy doctrine.

The Report is thoughtful, but it is not without its critics.  Check out Techdirt's detailed post:  Copyright Office Decides To Rewrite Copyright Law Itself, Blesses A 'Making Available' Right That Isn't There.

Chapter 3 of my book Copyright Litigation Handbook is titled Client Interviews and Initial Investigations.  Chapter 7 is titled Drafting The Infringement Complaint.  Where it is financially and factually feasible to collect evidence of an actual download before commencing an action, it would appear prudent to do so, rather than relying on uncertain legal precedent, unclear statutory language, and the charm of the Charming Betsy doctrine.

The Report contains many instances of other countries working the "making available" right into their copyright legislation.  If having an effective "making available" right is so important to compliance with the WIPO Treaties, clarifying the Copyright Act might be the job of Congress, rather than the courts.
 Copyright law, fine art and navigating the courts. All practice, no theory.Copyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) by Raymond J. Dowd
 Copyright Litigation Handbook on Westlaw

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