How much of a sample is too much?  That is what a Sixth Circuit District Court will have to decide when considering the copyright infringement claim filed by jazz legend, Michael Henderson, against Snoop Dogg and a number of other rappers.  In his July 6, 2010 complaint, Henderson alleges that the defendants “have been and are engaging in copyright infringement by redistributing, sampling, and offering the general public the opportunity to download, stream, listen to, and/or purchase the infringing work.”

Having toured with Stevie Wonder and Miles Davis, Henderson is considered one of the most influential jazz musicians of the past forty years, which is why his music has been sampled by artists like Jay-Z, Eminem, Notorious B.I.G., and others.  With that kind of notoriety one would guess that if you are to use nearly half of the first verse of one of Henderson’s songs (i.e., “Riding” from Henderson’s Do It All album) you would pay him.  Apparently Snoop thought differently.  Perhaps that is because sampling can be legal, if, for example, it is fair use or de minimus.  We will have to wait to see what the Sixth Circuit thinks of Snopp’s sampling.

In response to an interlocutory appeal filed by Mattel Inc., on July 22, 2010, in Mattel Inc. v. MGA Entertainment Inc., Ninth Circuit Chief Judge Kozinski vacated a grant of equitable relief in favor of Mattel, which included, among other things, an injunction prohibiting Defendant MGA Entertainment Inc. from producing or marketing virtually every current and future Bratz doll substantially similar to Mattel’s copyrighted Bratz works.  Judge Kozinski justified his ruling by pointing to errors in the jury instruction and the district court’s copyright infringement analysis.

Introduced in 2001, the Bratz line of dolls have proven to be wildly successful and a significant competitor with Mattel’s Barbie – which is why Mattel is not happy that their former employee, Carter Bryant, designed the preliminary Bratz sketches and sculpt while still employed with Mattel.  In fact, Mattel argues that it owns Bryant’s preliminary drawings and sculpt.  Assuming Mattel does own the drawings and sculpt, Mattel’s copyrights in the works would cover only its particular expression of the bratty-doll idea, not the idea itself.  In determining if MGA impermissibly copied the expression of Mattel’s bratty-doll or permissibly lifted the ideas, the district court applied the “extrinsic/intrinsic” test, which Judge Kozinski ruled was incorrectly applied.

Specifically, Judge Kozonski posited that the expression of an attractive young, female fashion doll with exaggerated proportions is highly constrained and falls within a narrow range of expression, which means the preliminary sculpt is entitled to only thin copyright protection against virtually identical copying; not the broad protection against substantially similar works that the district court afforded.  Regarding the drawings, Judge Kozonski found that the district court erred in applying the substantially similar test in that the court did not “filter out all the unprotectable elements of Bryant’s sketches.”

Though it may sound bratty, in light of the fact that Mattel is the number one toy maker in the world, with its top-selling line being the Barbie dolls – which accounts for 80% of the company’s revenue – the final words of Judge Kozinki’s opinion amount to much more than child’s play: “America thrives on competition; Barbie, the all-American girl, will too.”

According to Steve Gibson, CEO of Righthaven, Copyrights are the biggest assets in the world of journalism. So he’s buying them, then suing anyone who re-hosts the articles on their blog or website. His business model essentially is to use the threat of statutory damages, up to $150,000 per willful infringement, to force bloggers and other online sites to settle for a fraction. A Google search for Gibson’s company reveals a torrent of litigation against various entities, ranging from marijuana legalization group NORML to the conservative blog Free Republic, though there doesn’t seem to be a website for the group as of yet.

This strategy echoes that of U.S. Copyright Group, a coalition of independent movie producers to enforce their P2P lawsuit claims, though the infringements vary significantly. For Righthaven, they are targeting the wholesale plagiarism of online news content from for-profit media outlets. According to Gibson in an article from Wired Magazine, there are, “millions, if not billions, of infringements out there”. While going after publishers who re-post content is a valid claim for a right holder to pursue (especially if the blog is making money off content they did not create), using the Copyright Act to intimidate those who utilize RSS feeds or other forms of linking is more dubious. Mediapost.com ran a story in March pointing out Rightshaven is suing without even following the §512(c)(3) DMCA take down procedures, simply making its demand to settle or go to Court. This is likely a cost-saving measure designed to avoid spending more in legal fees than it makes in settlements, unlike the RIAA.

The issue here arises in light of cases such as Arriba Soft, Perfect 10, and the recent Google-Viacom dispute: at what point does using content published somewhere else infringe on those rights, and what is sufficient to avoid liability? Arribasoft and Perfect 10 both stand for the prospect that deep linking, where content from one site is displayed as a link on another, is protected Fair Use. Specifically, the Court in both cases relied on the highly transformative nature of the link combined with the relatively marginal market harm caused by the linking. Google recently had a summary judgment granted in its favor in a case brought by Viacom over content on YouTube, where DMCA take down procedures weighed heavily in a finding that Google did not infringe on Viacom’s Copyrights. So, in these cases, where a blogger merely links to a case should be distinguished from one who copy-pastes content from another site without proper quotations or citations. It is unclear if this distinction is part of Righthaven’s plan.

So, is Righthaven merely being brazen in their approach, or just economic? Practices such as this are an effective way of enforcing rights online when done right (by respecting the various rights and defenses available to using other people’s content). When not done right, it makes for good litigation. However, in the context here, the combination of a deep pocked and strong philosophical conviction makes decreases the odds of anyone mounting any serious defense in Court.

Capitol Records and Jammie Thomas-Rassett have agreed to disagree when it comes to mediation on the file-sharing case brought against her. As Copyright Guru and Attorney Ben Sheffner points out on his blog, Campaigns and Copyrights, the two sides failed to reach an agreement in court-ordered mediation, and as a result the case will proceed to trial for a third time this coming October.

This news comes just as the Judge in another high-profile file sharing case slashed the damages owed by file sharer Joel Tenenbaum by a factor of 10. In a July 9th order, District Court Judge Nancy Gertner set the damages for each infringed work to $2,500 for each of the 30 files at issue, an amount mirroring the damages awarded in Capitol v. Thomas.

What sets Tenenbaum’s case apart from Jammie Thomas’ is his team of lawyers and law students who took on his cause. Their argument focuses not on the legitimacy of Joel’s actions, but on the constitutionality of the excessive damages permitted in current copyright law. As Tenenbaum’s team puts it,

We believe that 1) the extent of the damages this statute permits are unconstitutional; and 2) the music industry is abusing federal power by using the court system capriciously

The cases underscore the trend in Federal courts towards a more rational approach to enforcing copyright. While it is essential to give rights holders adequate means to protect their property, Judges are recognizing the disparity in damages between non-commercial and commercial infringement. As of yet, such cases have not made their way to the Supreme Court yet, nor has there been an explicit constitutional ruling on the Constitutional issues. However, instances such as this indicate that Judges may be starting to show some frustration with the way cases brought by members of the RIAA are handled, hinting the “abusive lawsuit” argument is growing some teeth.

The fourth book in the Harry Potter series is the subject of another lawsuit!

Representatives for the late British author Adrian Jacobs have extended their plagiarism lawsuit and filed a copyright infringement suit against publishing house Scholastic Inc. in federal court in New York.  Jacobs’ estate alleges that the best-selling “Harry Potter and the Goblet of Fire” is “substantially similar” to a book written by Jacobs in 1987.

As Bloomberg reports, the estate claims that Harry Potter author, J.K. Rowling, and Jacobs were represented by the same literary agent.  According to the estate, the agent, Christopher Little, had copies of Jacobs’ book titled “The Adventures of Willy the Wizard” years before “Goblet” was published.  “The central theme of each work – a yearlong wizard contest – unfolds as similar characters enact parallel plot points,” the complaint alleges.  Jacobs’ book was published in the U.K. in 1987 and has not come out in the U.S.  “Goblet” was published in 2000.  The suit calls for Scholastic to recall all copies of the “Goblet” books and pay Jacobs’ estate all profits derived from its sale.

The Scholastic suit extends from a lawsuit currently pending in England.  As reported online, last year the estate sued Bloomsbury Publishing, the British publisher of “Goblet” for copyright infringement.  The suit added Rowling individually earlier this year.  Applications for summary judgment filed by Bloomsbury and Rowling are pending before the High Court. Rowling has previously described the initial lawsuit as “absurd.”

On July 1, 2010, the US Patent & Trademark Office and the National Telecommunications and Information Administration hosted a conference, “Copyright Policy, Creativity, and Innovation in the Information Economy,” that sought to ameliorate the ongoing struggle between fighting copyright piracy and encouraging creativity in today’s e-commerce ecosystem. The vast range of participants included law professors, economic policy analysts, the U.S. Secretary of Commerce, the U.S. Intellectual Property Enforcement Coordinator, and members of the Recording Industry Association of America, AT&T, Verizon Communications, the Motion Picture Association of America, Sony Music Entertainment, Microsoft, NBC Universal, Macmillan Publishers U.S.A., the American Society of Media Photographers, and the Entertainment Software Association spoke at the conference.

Amidst recent lawsuits like Viacom Int’l, Inc., et al. v. YouTube, Inc., et al., 07 Civ. 2103 (LLS), where the court’s decision turned on compliance with the 1998 Digital Millennium Copyright Act (DMCA), some at the conference voiced concern over the effectiveness of the DMCA’s safe harbor provisions and questioned how beneficial the twelve year old DMCA is in today’s marketplace.  In the legislative history of the DMCA, Congress recognized that “by limiting the liability of service providers, the DMCA ensures that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will continue to expand.”  Thus, in the interest of fostering the growth of the Internet and the creative free expression thereof, the DMCA’s safe harbor provision shields the provider from liability as long as a service provider takes down infringing material when notified.  When the ISP is not notified, online copyright infringement inevitably persists.

Focusing on the sheer amount of money lost to infringement and the chilling effect that is created when a lack of competition exists due to consumers finding products for free, many at the conference believe that in order for the DMCA to work today there needs to be more participation from content providers, platform providers, and consumers – the key player being internet service providers.  Whether you are an ISP seeking the limited liability of the DMCA or the producer of online copyrighted material seeking to prevent infringement, it seems clear that finding the best balance between the two not only requires cooperation, but a clear division of responsibility thereof.

Two years ago, the entertainment industry drafted colleges and universities into its ongoing war on piracy. Now it’s time for them to go to battle. As the AP reports, a provision of the Higher Education Opportunity Act of 2008 (PDF) will go into effect this month that will force institutes of higher education to police their Internet networks for piracy. If a college or university fails to implement “at least one ‘technology based deterrent,’” such as blocking file transfers, traffic shaping, or preventing access to peer-to-peer file transfer sites, then it risks losing its access to federal student financial aid.

Both the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA) vigorously lobbied for this provision.  In most circumstances, it will not lead to increased enforcement, as most colleges and universities already employ these anti-piracy methods as well as respond quickly to “takedown notices” sent by copyright holders. The content industry hopes that this new requirement, along with other rules and regulations, will gradually change the way people think about piracy and lead to more people downloading files legally.

On July 9, 2010, the Honorable Nancy Gertner, U.S.D.C. granted defendant Joel Tenenbaum’s Motion for a New Trial or Remittitur in statutory damages, insofar as it seeks a reduction in the jury’s award  of $675,000.00.  The award was reduced by a factor of ten, $67,500.00, on the grounds that it is so grossly excessive as to violate the Constitution.  Defendant Joel Tenebaum used file-sharing software to illegally download and distribute thirty works of music, including Beck’s Loser and Nirvana’s Come As You Are, while a student at Boston University.

Although Tenebaum’s liability for infringement was not seriously in question, and Plaintiffs’ chosen statutory damages fell within the broad range of damages set by Congress, Tenenbaum argued the award exceeded any plausible estimate of the harm suffered by the plaintiffs and the benefits he reaped.  In her Opinion, Judge Gertner stated:

This award is far greater than necessary to serve the government’s legitimate interests in compensating copyright owners and deterring infringement. In fact, it bears no meaningful relationship to these objectives. To borrow Chief Judge Michael J. Davis’ characterization of a smaller statutory damages award in an analogous file-sharing case, the award here is simply “unprecedented and oppressive.” Capitol Records Inc. v. Thomas, 579 F. Supp. 2d 1210, 1228 (D. Minn. 2008). It cannot withstand scrutiny under the Due Process Clause.

While the plaintiffs, a group of the country’s biggest recording companies (Sony BMG Music Entertainment, Warner Bros. Records Inc., Atlantic Recording Corp., Arista Records LLC, and UMG Recordings, Inc.), may not be satisfied with the outcome, they should not feel like all is lost.  After all, their lawsuit against Tenenbaum is only one of thousands that they have brought against file sharers throughout the country.

Swedish intellectual property anarchists and abolitionists, the Pirate Party (Piratpartiet), are threatening to up the ante when it comes to bit torrent file sharing. The party, which rose from the ashes of the infamous “Pirate Bay” torrent tracking site, announced plans to host the controversial website from within Swedish Parliament. The party is relying on a provision in the Swedish Constitution that grants parliamentary immunity to members of the “Riksdag” governing body carrying out their mandate. Chapter 4, Section 8 of the Constitution reads:

No person may take legal action against a person who holds a mandate as a member of the Riksdag, or who has held such a mandate, deprive him of liberty, or restrict his movements within the Realm on account of an act or statement made in the exercise of his mandate

The immunity is limited to crimes punishable by less than 2 years imprisonment:

If, in any other case, a member of the Riksdag is suspected of having committed a criminal act, the relevant rules of law concerning arrest, detention or remand are applied only if he admits guilt or was caught in the act, or the minimum penalty for the offence is imprisonment for two years.

The Pirate Party is a limited-issue party, with its agenda focusing on non-commercial exploitation of copyright-protected material, abolishing the patent system, and protecting the privacy of citizens in an open society. Currently, no member of the party hold a seat in the Riksdag, and they need to capture roughly 4% of the vote to earn one. If they can pull off a victory similar to the 2009 European Parliament elections, where they earned 7.1% of the vote, running a non-commercial torrent index would be part of their elected mandate, thus allowing for their proposed immunity.

Furthermore, unless they admit to breaking the law, it does not appear that their immunity would be waived by the 2-year limitation since that is the maximum penalty under Swedish law.  The Swedish Copyright Act provides in Chapter 7, Article 53:

Anyone who, in relation to a literary or artistic work, commits an act which infringes the  copyright enjoyed in the work . . . shall, where the act is committed wilfully or with gross negligence, be punished by fines or imprisonment for not more than two years.

How the rest of the Riksdag would react to these maneuvers remains to be seen. Swedish elections are held every 4 years, and the last election was in 2006 (the same year the Pirate Party was established). Sweden heads to the polls again on September 19th, and although a Pirate victory would not cause the collapse of WIPO or world-wide IP anarchy, it would at the very least be a very strange twist in the fight to enforce digital rights.

On June 30, 2010, the U.S. District Court for the Southern District of New York authorized the U.S. Department of Justice (DOJ) and the U.S. Immigration and Customs Enforcement agency (ICE) to seize the domain names of web sites accused of criminal copyright infringement for showing films and television shows without permission (United States v. TVShack.net, S.D.N.Y., No. 10 MAG 1421, warrants unsealed 6/30/10).  The seizures are part of “Operation In Our Sites,” a new initiative that targets illegal films, music, counterfeit pharmaceuticals, software, electronics, games and other products distributed via the Internet that threaten public safety and health.  To that end, the U.S. Attorney for the S.D.N.Y. drew attention to the mass scale infringement over the Internet, which results in billions of dollars in losses to the U.S. economy and real hardships for millions of ordinary working people who are employed by the U.S. motion picture and television industry.

The sites targeted include Movies-Links.tv, TVShack.net, Now-Movies.com, PlanetMoviez.com, FilesPump.com, ZML.com., and ThePirateCity.org, all of which have obtained global popularity.  Instead of linking visitors to infringing first-run movies that are often available online within hours of their theatrical release, these sites now display a seizure notice.  Reportedly, the DOJ will request that the domain names be forfeited.

In its efforts to discourage those who seek to profit from the copyrighted, intellectual property of others, ICE manages the National Intellectual Property Rights Coordination Center, which has united the U.S. government agencies that combat intellectual property theft.  In addition to ICE, the partners include: U.S. Customs and Border Protection; the FBI; the Department of Commerce; the Food and Drug Administration; the Postal Inspection Service; the General Services Administration, Office of the Inspector General; the Naval Criminal Investigative Service; the Defense Criminal Investigative Service; the Army Criminal Investigative Division’s Major Procurement Fraud Unit; and the Government of Mexico’s Tax Administrative Service.