COPYCENSE

[Editor’s Note: Due to technical difficulties, we were unable to publish this week’s Clippings during our regular Tuesday, Oct. 9 slot. We apologize for the inconvenience. To compensate, we have extended our coverage of the RIAA’s jury verdict victory against Duluth, MN resident Jammie Thomas.]

Issue of the Week

Given the jury verdict against Jammie Thomas, a Minnesota woman found liable for copyright infringement, we have decided to transform our Article of the Week into an Issue of the Week. Here, we will round up some of the Web’s best coverage in Virgin v. Thomas. Categories: Cases & Litigation; File Sharing, P2P & Downloads; Infringement; Music.

Threat Level (Wired). RIAA Juror: ‘We Wanted to Send a Message’. Oct. 9, 2007. Wired reports the jurors deliberated only five minutes before they concluded Jammie Thomas had committed copyright infringement. It seems the general consensus within the jury was Thomas was not a credible witness. With so much on the line in the larger perspective, we wondered if Thomas’ lawyers ever doubted her story, or whether a Minnesota jury would believe that story. Within the last decade or so, it seems many of these music download cases have had two things in common: the defendants rarely win, and the defendants rarely are “ideal defendants” given their actions, their political views, their alibis, or their circumstances. It’s unfortunate that so many of these cases seem to involve defendants who are not ideal witnesses.

The Iconoclast. Will Appeal Succeed In RIAA’s $222,000 ‘Making Available’ Case? Oct. 8, 2007. Declan McCullagh reviews the likely issues that Thomas and her lawyers will raise on appeal. We will be interested in seeing if another legal team handles the appeal, since federal appellate work is a special niche. And while we’re on the topic of legal representation, where was the Electronic Frontier Foundation in this case. EFF certainly provides legal representation in select cases, so why not a high profile case like this one?

Eric Bangeman. How the RIAA Tasted Victory: A Perfect Storm Which Might Not Be Repeated. ArsTechnica. Oct. 7, 2007. After Ars’ Bangeman wrote the verdict story, he returns later in the week to write a postscript: “With the RIAA having successfully tried a case, there’s now a template for how to handle future cases that go to trial. First, the RIAA will need to make sure that the evidence is as exhaustive as possible. Second, the labels will need to be able to make a concrete connection between the screen name on KaZaA (or whatever application is in use) and the human being at the keyboard, something they were able to do with Thomas. If the defendant doesn’t have a wireless access point or a router, so much the better. Lastly, try to keep the legal team together. The RIAA’s lead counsel, Rich Gabriel, did an excellent job shepherding the evidence and presenting the case.”

Media 3.0 with Shelly Palmer. Episode 43. Oct. 6, 2007. A nearly 17-minute interview with Ray Beckerman, who co-authors the Recording Industry vs. The People Web log.

Recording Industry vs. The People. My Comment on the Jury Verdict in Virgin v. Thomas. Oct. 5, 2007. Beckerman expresses incredulity at the verdict and an urgent call to arms. “I hope it is a wakeup call to the world that we all need to start supporting the defendants in these cases, and the attorneys who are sacrificing so much to represent them. And the support cannot be with words, it must be with check books. And it cannot be next year, it must be now.” This Web site also maintains a compendium of trial documents; we expect it soon will include a trial transcript.

The Iconoclast (News.com). Four Reasons Why the RIAA Won a Jury Verdict of $220,000. Oct. 5, 2007. Razor sharp Declan McCullagh provides a cogent analysis on the how the recording industry was able to persuade a Minnesota jury that Thomas committed infringement by making available more than 1,700 songs through the Kazaa network. McCullagh’s coverage also links to important case documents. Particularly interesting is McCullagh’s synthesis of the jury instructions and how they connected with the a doctrine that alleges that merely making music files available online constitutes copyright infringement, even if no other users download those files. William Patry noted the rise of this doctrine earlier this year in a Pennsylvania case, and Columbia’s Jane Ginsburg also has discussed this issue.

The Patry Copyright Blog. The RIAA’s Jury Verdict. Oct. 5, 2007. William Patry focuses his comments on the relative reasonableness of the jury’s damages award, and the unlikelihood that part of the decision will be overturned on appeal. Patry’s post is brief, but the post’s comments are extensive and interesting.

Technology & Marketing Law Blog (Eric Goldman). “Making Available” as Copyright Infringement–Capitol v. Thomas. Oct. 4, 2007. Goldman’s coverage does not differ significantly from the other outlets’, but he links to several other posts where he has discussed the “making available” cause of action upon which the verdict seemingly hinged.

Quotes of the Week

“The Washington Post has an article on the entertainment industry’s efforts to increase penalty’s [sic] for copyright violations. The article wrongly claims that [copyright] violations cost the economy money. This is untrue on its face. The losses to the industry are gains to consumers, and those who know economics would know immediately that the gains to consumers vastly exceed the losses to the industry. Some economic analysis would be useful in this article. … The monopoly status of copyrights mean as a logical proposition that the gains to consumers from ending copyright will be greater than the losses to producers. In addition, there are also all the costs associated with enforcement (e.g. software locks, lawyers police to invade bedrooms), which are a pure loss from a social standpoint.”

Beat the Press (The American Prospect). The Attack of the Protectionists: Where are the Economists? Oct. 3, 2007. Dean Baker’s quote is one of the few times in which we have found an unbiased economic voice that challenges the entertainment industry’s endless (and questionable) assertions that so-called “piracy” hurts the American economy. But it is refreshing to hear another point of view. Even we had not considered that the end copyright’s “life plus 70” monopoly (also called the public domain) would provide greater gains to consumers than the losses copyright owners suffer. What is unsettling, though, is that the one-sided views of the entertainment industry are used, for example, by U.S. trade representatives to develop trade policy that governs intellectual property.

Which leads us to our second Quote of the Week from Mr. Baker.

“Government imposed monopolies like patents and copyrights arguably have no place in a free market economy. These monopolies have a large and growing impact on the economy, affecting the distribution of trillions of dollars of goods and services worldwide. They have also been the topic of heated dispute in recent trade agreements.”

Beat the Press. Pew Finds Worldwide Opposition to Patents and Copyrights. Oct. 5, 2007. Categories: Business & Commerce; Framing & Rhetoric; Public Domain & Term.

Clippings

Jonathan Bailey. Copyright Cases to Watch: Lenz v. Universal. The Blog Herald. Oct. 8, 2007. We disagree: this is not a case to watch; it is a case that begs to be settled. This is a relatively simple issue: an aggressive, questionable DMCA takedown, followed by a lengthier than required restoration period. Questionable DMCA takedowns are unfortunate and should be stopped, but why make a mountain out of this case when the Jammie Thomas trial is being prepared and occurring? Ultimately, EFF’s decision to select this case instead of the Thomas case begs the question why (besides publicity) would the Electronic Frontier Foundation get involved? YouTube has restored the video, harm is no longer evident or even calculable. EFF says this is about halting copyright abuse. Wouldn’t the organization’s members and mission have been served more admirably by trying to get some clear guidance on the “making available” doctrine that is at the core of the Thomas litigation? Categories: Cases & Litigation; DMCA; Film & Video; Web & Online.

Rocky Mountain News. Copyright Wrongs. Oct. 8, 2007. The editorial board at the News rejects provisions in H.R. 3476 that would require the education secretary to keep a tally of reported copyright violations involving students using campus online networks. Categories: Education; Legislation & Regulation; Politics & Government.
Bobby Jordan. Drug Companies Looting SA’s Bounty of Medicinal Plants. The Times (South Africa). Oct. 7, 2007. We’ve not devoted much coverage to patenting plants, genome sequences, and other forms naturally occurring substances or traditional knowledge. (We have enough of a challenge covering copyright adequately.) The patent reform debate in the U.S. has focused mostly on business process patents, but clearly this is an area in which reform also is critical. Categories: Patent; Science & Medical.

BBC News. Kwik-Fit Sued Over Staff Radios. Oct. 5, 2007. Here’s the latest joke: “So a guy is hacking away at a tailpipe, listening to his radio when all of a sudden a suit walks in the shop. Guy says, ‘Howdy mate.’ Suit says, ‘You’ve been served.'” A lawsuit because employees are listening to the radio at work? That sounds like the height of stupidity and desperation. Categories: Broadcasting & Journalism; Cases & Litigation.

BBC News. Procol Harum Battle Back in Court. Oct. 4, 2007. Lead singer Gary Brooker is appealing against last year’s ruling that organist Matthew Fisher was entitled to a portion of the song’s royalties from the group’s hit “A Whiter Shade of Pale.” Categories: Cases & Litigation; Infringement; International.

Ellen Lee. Cal Offers Full Courses on YouTube – But Not for Credit. SFGate.com. Oct. 4, 2007. Cal-Berkeley has been a consistent innovator in education delivery (broadcasting classes online in 1995; distributing courses via free podcasts through the iTunes store as of last year), so this initiative is novel for them, but not a stretch. Categories: Education; Film & Video; Web & Online.

News Blog (News.com). AT&T Defends Plan to Detect Customers’ Net Piracy. Oct. 3, 2007. In June, AT&T announced that it would work with film studios to develop technological solutions that would prevent subscribers from exchanging large amounts of content. This story is about AT&T’s attempt to diminish potential customer service criticisms. Categories: DRM & Copy Protection; Web & Online.

Frank Ahrens. With Video, Music Piracy on the Rise, NBC Chief Calls for Tougher Penalties. WashingtonPost.com. Oct. 3, 2007. This is all you need to know about Zucker’s stance: “If we don’t continue our education campaign, I fear that we will lose that momentum that we have gained.” NBC in the copyright education business? Just what we need. Also, see our Quote of the Week. Categories: Legislation & Regulation; Politics & Government.

Jason Marks. Arizona State Univ. Contacts Va. Beach H.S. Alleging Copyright Infringement. WAVY-TV (Portsmouth, VA). Oct. 2, 2007. The editorial staff made an egregious error by claiming the alleged violation is copyright infringement; in fact, ASU is alleging Salem High School’s logo is a trademark infringement of the Sun Devil logo. But a visual comparison of the two logos (available in the story) clearly shows that there is no resemblance between the logos, which suggests ASU is looking to bully a smaller institution into ceding its nickname. Categories: Education; Trademark.

Rewind: Ones We Missed
(Interesting stories we missed after we sent previous editions to press.)

Nate Anderson. Copyright Lawyer Tells Universities to Resist “Copyright Bullies.” ArsTechnica. Sept. 28, 2007. Northeastern University School of Law professor Wendy Seltzer talks (RealMedia player needed) to an audience at Cornell, and urges universities to fight the RIAA. We find it significant that Seltzer’s talk occurred at Cornell because around this time last year, Cornell decided not to fight the Association of American Publishers and its accusations of copyright infringement. Categories: Education; Events; File Sharing, P2P & Downloads.

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