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

COPYRIGHT LAW - COPYRIGHT INFRINGEMENT - INTERNATIONAL LAW -PLEADING COPYRIGHT INFRINGEMENT - MAKING AVAILABLE RIGHT - PEER-TO-PEER FILESHARING - INTELLECTUAL PROPERTY - CHARMING BETSY DOCTRINE - MUSIC DOWNLOADS - WIPO COPYRIGHT TREATY

 

"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..."  https://en.wikipedia.org/wiki/Statutory_interpretation

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 Infringement: Making Available Right Report of US Copyright Office

www.dunnington.com
 Copyright law, fine art and navigating the courts. All practice, no theory.Copyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) by Raymond J. Dowd
 

Statutory Damages Under The Copyright Act - Lessons From LimeWire

Arista Records - Throwing a Funeral Party Over Lime Wire?



Arista Records LLC et a. v. Lime Group LLC (Lime Wire) (06 CV 5936) has recently spawned a series of decisions of interest for those who follow the Copyright Act's provisions on statutory damages.   More posts on statutory damages here.

Right now the First Circuit is deciding the Tenenbaum case which includes a challenge to an award of statutory damages against a student downloader.  More on Tenenbaum here and here.

But in the Lime Wire case (background here), Judge Kimba Wood granted summary judgment on May 11, 2010 finding Lime Wire liable as a secondary infringer for running a service that facilitates peer-to-peer file sharing, full decision here.   An interesting aspect of the case is that Lime Wire's founder was held to be personally liable.

But following Judge Wood's grant of summary judgment, a recent flurry of decisions relating to the Copyright Act's statutory damages provisions, 17 USC 504(c) have emerged.

In Chapter 17 of Copyright Litigation Handbook (West 2010), I cover issues relating to damages under the Copyright Act.   Chapter 18 covers the related issues of costs and attorneys fees.

On March 10, 2011, Judge Wood considered the issue of whether Lime Wire, a secondary infringer, was liable for multiple awards of statutory damages for each copyrighted work it permitted to be infringed, or only one.   Analyzing the provisions of 17 USC 504(c) and its legislative history, Judge Wood found that the record companies could only recover from Lime Wire one statutory damages award for each copyrighted work infringed.   The decision is worth the read, find it here.

But how does one prove ownership and infringement of 11,000 plus works?  And how do you prove that each owner owned it at the time the work was infringed?   Judge Wood's decision of March 29, 2011 is here.   Review each category, and you have a neat primer on how to prove copyright ownership in a variety of contexts.   A unique angle is that Plaintiffs hired private investigators in 2010 to illegally download one of each of the works.   Defendants challenged the "timing" of ownership.   Judge Wood granted summary judgment on ownership, since that was essentially unchallenged by the evidence.

Practice Tip:   Judge Wood points to the Second Circuit's case law showing that if a litigant challenges evidence submitted on a summary judgment motion, the proper remedy is a motion to strike the evidence.

On April 4, 2011, Judge Wood looked at the question of whether a statutory damages award was available for each song, or for each sound recording (an album is one sound recording and ordinarily supports only one statutory damages award).   Judge Wood's decision here.    Judge Wood ruled that if infringements of individual songs could be shown prior to release of the album, statutory damages awards would be available for infringements of those individual songs.

On April 6, 2011, Judge Wood considered the question of whether Lime Wire was "off the hook" as a secondary infringer where the record companies had already obtained judgments against primary infringers.  Judge Wood's answer: "no".   The damages trial is scheduled for May 2, 2011.

The April 6, 2011 decision below:

Lime Wire Partial Summary Judgment April 6, 2011



http://www.dunnington.com/rdowd_bio.html
 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Music Copyright PSA

Copyright PSA: interviews with music industry execs about music filesharing, illegal downloads, how musicians make money, watch a guy get fired because of Limewire.

 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Fair Use Fridays: Mashup of Billboard Top 25 on YouTube

DJ Earworm is back, this 2010 mashup had over nine million viewers on YouTube.


This DJ Earworm 2009 mashup had over 34 million viewers on YouTube.

More posts on mashups here
 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Copyright Law: Tenenbaum and Statutory Damages - Comments from the Blogosphere

Derek Bambauer is critical of Judge Nancy Gertner's decision in Sony BMG v Tenenbaum.

Info/Law » Tenenbaum and Statutory Damages

My admiring post on Judge Gertner's decision in Tenenbaum here.

The Electronic Frontier Foundation's  Corynne McSherry writes on the Deeplinks blog

But the most interesting aspect of the ruling may be the court's conclusion that Congress never intended copyright's extraordinary statutory damages provisions — which permit an award of up to $150,000 per work if the defendant has willfully infringed — to apply to noncommercial users of peer-to-peer networks, even if they are found liable for willful infringement. After a lengthy review of the legislative history, Judge Gertner found that there was "substantial evidence indicating that Congress did not contemplate that the Copyright Act’s broad statutory damages provision would be applied to college students like Tenenbaum who file-shared without any pecuniary gain."

Full Deeplinks post here

Expect the opposite from Ben Sheffner, who is thinking about it here.

Purchase Copyright Litigation Handbook from West here

Copyright Law: Boston Judge Holds Jury Award Unconstitutional in Music Dowloading Statutory Damages Case

In Sony BMG Music Entertainment (07cv11446-NG)(D. Mass July 9, 2010), Judge Nancy Gertner has written a 61-page decision that is an intellectual tour-de-force - concluding that a $675,000 statutory damages award against a student named Joel Tenenbaum who illegally downloaded music and then shared the songs on peer-to-peer file sharing services.  Judge Gertner's decision is linked below via Scrib'd.

The judge reduced the statutory damages award to $2,250 for each of the thirty infringed works.  This was a reduction of 90% from the jury's award of $22,500 per song.

The Tenenbaum case was debated in an IP Colloquium moderated by Prof Doug Lichtman, free CLE and audio here.   On this blog I rarely try to handicap the outcome of ongoing copyright cases.  All too often the casual observer doesn't have all of the operative facts.   But after listening to the excellent debate on the IP Colloquium I disagreed with Doug Lichtman's apparent conclusion that statutory damages clearly wouldn't be held unconstitutional based on Prof. Charlie Nesson's arguments.  My post on the Tenenbaum case here.

Both Doug Lichtman and Charlie Nesson, counsel for Tenenbaum hopped on the blog and commented on my post.   Check out the debate here.   I think that it's the most interesting discussion held on this blog since I started it.

I think that Doug Lichtman ended up being right about the analysis that would be applied to the case, you can see his thinking in his comments to my March 28, 2009 post (I had expressed sympathy for Nesson's arguments that excessive statutory damages were penal in nature).

The RIAA originally wrote a cease and desist letter to Tenenbaum asking for $3500.  Tenenbaum mailed them $500.  They rejected it.  RIAA sued and demanded $12,500.  He refused and this litigation ensued.

A key fact that all should know and that escapes many media posts is that the court found that Joel Tenenbaum first lied about his responsibility for file sharing (he tried to blame family members), then he claimed he'd deleted files, which he hadn't.   This is a key fact when we look at statutory damages, because wilfullness/innocence is a factor that is taken into account.   Courts routinely whack people who lie and who cause property owners to incur hassles and increased damages due to their untruthfulness.

So the basic first lesson to be taken from this and any other case is that if you want to be a martyr for a great cause and to vindicate some great principle through our courts, don't compound any initial error by lying about your actions.  Tenenbaum is not a pop hero, he should count his lucky stars and work out a settlement.  If Harvard wants another test case, find a fourteen year-old.   Tenenbaum should consider quitting school, getting a job and paying off the debt.  The Boston Globe interview (video posted below) shows that Tenenbaum shows little inclination to accept any responsibility for his actions, and as attorneys fees mount, his downside keeps getting worse.

Turning to Judge Gartner's decision -  it is a landmark work of scholarship in the area of punitive damages and the rules that should apply to copyright.  If you care about this area, read it. It also explains the relationship between remittitur and a judge's ability or obligation to address the constitutionality of a statutory damages award.  Her decision is groundbreaking, thoughtful, and accords with the thinking of the federal judge in Minnesota who vacated the jury's award in the Jammie Thomas case.  My post on that case here.

The case is at a point that the RIAA and Tenenbaum can each claim victory.  Charlie Nesson's arguments made during the IP Colloquium were vindicated, although not in the way he envisioned, and he has created law that is sensible, humane and realistic in the field of statutory damages and punitive damages in copyright cases.  Doug Lichtman's analytical approach was adopted by the court, although not quite the way he envisioned.

Settle it.

Related post:  2d Cir Rejects "Independent Economic Value" Test.





Boston Judge Holds Music Filesharing Damages Unconstitutional in Tenenbaum Case



 Purchase Copyright Litigation Handbook from West here  

Jurisdiction and Venue Become Issue In DC BitTorrent Litigation

Due process claims are being asserted in the mass litigations filed against John Doe BitTorrent users in the District of Columbia.

Rights groups enter illegal downloading fight

Purchase Copyright Litigation Handbook from West here

Limewire: Some Stats From the Decision

In Arista Records LLC v. Lime Group LLC (SNDY KMW May 11, 2010) - article and a copy of the decision here Judge Kimba Wood found Lime Wire guilty of copyright infringement.  Basically, LimeWire did the same thing that Napster did, leaving an evidence trail similar to Napster's but using Grokster technology.  Remember the Supreme Court said that peer-to-peer filesharing was a technology capable of non-infringing uses.  

So just distributing the technology won't get you in trouble.  But using it to actively promote, facilitate and profit from infringement will, particularly where technological measures that would make it difficult or inconvenient to infringe could easily have been put in place.  An expert found that 98.8% of the uses of this peer-to-peer file sharing technology were infringing uses.  He found that 93 percent of the materials in LimeWire were highly likely to be copyright protected.  Over past years, the record companies filed over 6,000 lawsuits against LimeWire users.  They obtained 700 judgments and settled 4,000 cases.

LimeWire was launched in 2000.  By 2003 it had 2 million users per month.  At the time the suit was filed, LimeWire had 4 million users per day.

From 2004 - 2006 annual revenue grew from $6 million to about $20 million.  LimeWire's CEO has been held personally liable.

There will be a trial on a number of other issues raised.   A troubling allegation surfaced that an attorney from the Electronic Frontier Foundation gave some bad advice to LimeWire regarding a document retention policy.

The short answer is that pre-infringement evidence can be used to prove intent to infringe for those infringement claims brought within the statute of limitations.   So documents from ten years ago can show that you intended to promote infringement three years ago.

Some Misleading Headlines from Techie Buzz About Copyright Infringement and Zapshares

Source  http://techie-buzz.com/utilites/zapshares-protects-p2p-users-from-copyright-infringement.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+techiebuzz+%28Techie+buzz%29

How NOT To Challenge a YouTube Takedown

This is a really funny, foul language rant by a guy who is furious that he bought a CD, he gave credit in his video, but someone named WMG still keeps taking down the music he BOUGHT and PAID FOR!  Synch rights are the issue.

Better analysis in the previous video posted here.

SDNY Judge Whacks Limewire, Holds Founder Personally Liable

Opinion here courtesy WSJ Law blog, article here.

Judge Tosses $2 Million Jury Verdict for Downloading 24 Songs as "Simply Shocking"

From Capitol Records Inc. v. Thomas-Rasset, 680 F.Supp.2d 1045, 1054 (D.Minn. 2010)

The Court has considered the strong need for deterrence in this particular case, the difficulty in quantifying the damages caused by the chain effect of Thomas-Rasset's distribution of copyrighted sound recordings over the Internet, the large scale damages caused by online piracy in aggregate, and the substantial impediments to identifying and pursuing infringers. However, despite the combination of these justifications and the Court's deference to the jury's verdict, $2 million for stealing 24 songs for personal use is simply shocking. No matter how unremorseful Thomas-Rasset may be, assessing a $2 million award against an individual consumer for use of Kazaa is unjust. Even Plaintiffs admit that Thomas-Rasset is unlikely to ever be able to pay such an award. Having determined that the current verdict is so shocking that it must be remitted, the Court next faces the task of assessing the proper amount of remittitur

Copyright Infringement Public Service Announcement - "Cloned"