Class Action style P2P law suits not allowed; forced to file individual cases

Large scale copyright infringement cases against multiple "John Doe" persons need to be broken up into individual cases according to a Texas judge.

MDY INDUSTRIES v. BLIZZARD ENTERTAINMENT

The 9th Cir. has released their opinion in the case of MDY Industries v. Blizzard Entertainment and determined that MDY violated the DMCA.

MDY sought a declaratory judgment to determine whether their Glider, a bot that automates the actions for early leveling allowing the WOW user to leave his PC, infringed Blizzard's copyrights.

"The district court found MDY ... liable for secondary copyright infringement, violations of DMCA §§ 1201(a)(2) and (b)(1), and tortious interference with contract. [The 9th. Cir] reverse[d] the district court except as to MDY’s liability for violat[ing the] DMCA § 1201(a)(2) and remand[ed] for trial on Blizzard’s claim for tortious interference with contract."

In finding that MDY violated the anti-circumvention provisions of the DMCA, the 9th circuit concluded that MDY's Glider attempted to evade Blizzard's anti-bot detection system (Warden).

Below is the full opinion:
MDY INDUSTRIES v. BLIZZARD ENTERTAINMENT

Original District Court Order:
MDY v. Blizzard (District Court Order)

Charges Dropped Against Xbox Modder

Matthew Crippen was being charged with 2 counts of violating anti-circumvention provisions of the Digital Millennium Copyright Act ("DMCA"). Mr. Crippen was allegedly running a chip-modding business where he would modify an Xbox so that it could run copies of games. Normally, and Xbox can only run official copies of games, and games that are burned to DVDs will not play. Modifying allows the Xbox to play backup copies of games you already own, but it also allows you to play pirated games you downloaded from the web.

Needing to prove Mens rea, that the defendant willfully broke the law, the Prosecution's first witness testified that he secretly videotaped Matthew Crippen modify an xbox and tested the mod job with a pirated copy of a game. While relevant, the testimony that Mr. Crippen tested his modification with a pirated game was not first submitted to Mr. Crippen's attorneys, a huge procedural misstep. In addition, the act of secretly videotaping the defendant was likely in violation of California's privacy laws.

Prosecutor Allen Chiu admitted that the evidence should have been shared with the defendant's attorneys beforehand and requested the case be dropped for “fairness and justice.”

This was an interesting case and I will dig deeper into the facts and pleadings in later installments.

See also Wired's reporting of the case.

Who Owns Facebook?: The Ceglia Zuckerberg Contract

Mr. Ceglia claims to have a right to own 84% of Facebook. Below is the alleged contract involved in the case between Zuckerberg and Ceglia.

Facebook Ceglia and Zuckerberg Contract

ACA Litigation Blog

I highly recommend the ACA Litigation Blog for those interested in the ongoing litigation concerning the Obama Administration's Health Care Law: The Patient Protection and Affordable Care Act as amended by the Health Care and Education Reconciliation Act of 2010.

Several states including Florida have challenged the constitutionality of the new law, and the ACA Litigation Blog provides links to court pleadings, academic articles, and legal commentary.

Warner Bros. Wins "We Are Marshall" Copyright Appeal

Warner Bro. won in the 9th Circuit Court of Appeals on a copyright infringement case involving the Warner Bro. movie "We Are Marshall" and a previously made independent film "Ashes to Glory". The Court of Appeals agreed with the lower court that the tragic events surrounding the Marshall football team were "matters of public record which cannot be copyrighted."

The Courts opinion is below:
Warner Bros. We Are Marshall Opinion

Copyright Infringement Complaint: Warner Bros. Records Inc., v. RK Netmedia Inc.

Several record companies have sued the corporation behind the porn site, RealityKings, for playing their artists music in the background during porn videos without a license. RK Netmedia Inc. defends against the accusation under the fair use doctrine. I recommend downloading the pdf. of the complaint if it looks blurry on your browser.

  Warner Bros. Complaint

iProcrastination: Apple waits until the last minute to obtain "iPad" trademark

Procrastination is not just for students, Apple waited until the month the iPad was to begin shipping to stores to finally obtain a trademark in the name, "iPad". "iPad" was already trademarked by another person, Thomas La Pearle. Mr. La Pearle originally refused to give up his rights in the mark. But, on March 17, 2010, Mr. La Pearle assigned his rights in the "iPad" mark to Apple for an undisclosed and likely large amount of money, stock, or iPads.


Learn more here

Trend Spotting: The Free Album

Radiohead made headlines back in 2007 when it offered its newest album for free on the internet. For established artists that have more bargaining power with their labels, free albums appear to be an increasingly popular way to get music to their fans.

The most recent artist to venture into the realm of free will be Angels & Airwaves, fronted by Blink-182's Tom DeLonge.

The group's third studio album, "Love," will arrive February 14 as a free digital download. DeLonge and Angels & Airwaves manager Rick DeVoe agree that self-releasing the 10-song set is a financial risk, especially with DeLonge spending up to $500,000 of his own money to fund the process. But the artist hopes to recoup through corporate sponsorships, touring, merchandise sales, premium exclusive tracks and videos on the band's Web site and by selling a deluxe version of "Love" with 30 minutes of exclusive bonus material.

(From Billboard.com)

As more artists go this route and are able to make money from the venture, expect to see more free albums.

This Week in Legal Reading: Article on Statutory Damages Reform

From Ray Beckerman over at Recording Industry vs The People...

The article by Pamela Samuelson and Tara Wheatland of the University of California law school, on statutory damages under the Copyright Act, has now been published at 51 William & Mary L. Rev. 439, and is available for download:

Samuelson & Wheatland, "Statutory Damages in Copyright Law: A Remedy in Need of Reform"

Thomas-Rasset's Judgment Reduced From Nearly $2m to $54k

Jammie Thomas-Rasset, one of only to defendants in the RIAA's legal battle against illegal music downloaders, has had her judgment reduced from from $1.92 million to only $54,000. The Judge, finding the size of the judgment "so grossly excessive as to shock the conscience of the court", granted a remitter. This is wholly different than the Constitutional argument that a large statutory damage judgment violates due process under the law. If the RIAA strategy was to get a few big judgments to scare people into complying with copyright laws, they will likely appeal. Having such a large remitter in the case law would hurt a future litigation strategy.

The court noted:

Although Plaintiffs highlight valid reasons that Thomas‐Rasset must pay a statutory damages award, these facts simply cannot justify a $2 million verdict in this case. Thomas‐Rasset was not a business acting for profit. Instead, she was an individual consumer illegally seeking free access to music for her own use. ...
The need for deterrence cannot justify a $2 million verdict for stealing and illegally distributing 24 songs for the sole purpose of obtaining free music.

You can read and download the Court's order granting remitter below. (Copyrights & Campaigns blog has further analysis.)

Thomas Rasset Remitter

The Battle Over The Beatles: Judge Hits BlueBeat With Preliminary Injunction

I am back from my break for law school exams with plenty of news to catch up on.

First up involves the Capital v. BlueBeat trial that concerned uploading the Beatles songs for 25 cent downloads. The Judge has granted a preliminary injunction, going a step further than the previously issued temporary injunction. This time the Judge went into greater detail about why he finds BlueBeat's "psycho-acoustic simulation" defense:

However, Mr. Risan is very clear on one critical fact: In order to create the recordings on the BlueBeat Website, he admits that he had to create and use a digital copy of Plaintiffs’ Recordings.4 Given this admission, the Court concludes that it is virtually impossible that the recordings on the BlueBeat Website consist “entirely of an independent fixation of other sounds” pursuant to 17 U.S.C. § 114(b). Indeed, although Mr. Risan claims that “artistic operators” made changes to parameters such as pitch, loudness, rhythm, timbre, and space, Defendants’ conduct appears to be substantively no different than the defendants in United States v. Taxe, 540 F.2d 961 (9th Cir. 1976). There, the defendants used “specially adapted electronic tape equipment” to re-record sound recordings, and change them by increasing or decreasing the recording speed, introducing reverberation or echo, eliminating or reducing portions of the musical sounds, and producing additional sounds by synthesizers. Taxe, 540 F.2d at 964. The district court rejected any claim that this re-recording constituted an “independent fixation,” and the Ninth Circuit agreed, stating: “The copyright owner’s right to reproduce the sound recording is limited to recapture of the original sounds, but that right can be infringed by an unauthorized re-recording which, despite any changes in the sounds duplicated, results in a work of ‘substantial similarity.’” Id. at n. 2.

For more information on the recent ruling against BlueBeat, check out analysis by Copyrights and Campaigns Blog and Ars Technica.

Music Monday - Bon Iver

Bon Iver is an upincomming folk rock band fronted by Wisconsin native Justin Vernon. The bands only album thus far is "For Emma, Forever Ago". The majority of the album was recorded in three months in a remote cabin in Northwestern Wisconsin. Songs of note on the album are "Skinny Love" and "Creature Fear". Bon Iver's songs have been used in several TV shows such as Grey's Anatomy, Chuck, and House.

Google Scholar Adds Legal Search: Can It Compete with Westlaw or Lexis Nexis?

Google announced this week that its Google Scholar now allows you to search for legal opinions:

"Starting today, we're enabling people everywhere to find and read full text legal opinions from U.S. federal and state district, appellate and supreme courts using Google Scholar."

A quick search using the terms "copyright infringement fair use" gave me access to several of the major opinions including: Sony v. Universal; Harper & Row; Campbell v. Acuff-Rose; and A&M v. Napster. The amazing thing is that Google Scholar even utilizes links to citations. For example, Google Scholar provided links to 2,704 court cases and legal papers that cited Campbell v. Acuff-Rose.

What Google Scholar does is bring relatively easy access to court cases to the masses for free. However, at present it does not flag negative authority; a must for most lawyers. Google Scholar appears to be a great free source to quickly nab a specific published case. Westlaw and Lexis Nexis just lost a lot of business.

Apple v. Psystar: Apple Granted Summary Judgment in Copyright Infringement Lawsuit

Apple has prevailed in its copyright infringement lawsuit against Psystar corporation. The court granted Apple's motion for summary judgment on Nov. 13th.

Basically, Apple sued Psystar for copyright infringement because Psystar used a modified version of Apple's operating system on Psystar's line of computers called "Open Computers". Apple has three copyright registrations on its Mac OS X operating. Apple alleged that Psystar's "reproduction, modification, and distribution of Mac OS X on non-Apple computers constituted copyright infringement under the Copyright Act and a violation of the Digital Millennium Copyright Act."

Psystar's defenses were "the first-sale doctrine" and that Apple engaged in a misuse of copyright. Psystar failed to convince the court that either defense had merit.

The court granted summary judgment for copyright infringement and violation of the DMCA, but several claims still remain for trial: (1) breach of contract; (2) induced breach of contract, (3) trademark infringement; (4) trademark dilution; (5)trade dress infringement; and (6) state unfair competition under California Business and Professions Code § 17200; and (7) common law unfair competition.

Apple v. Psystar: Court Order Granting Summary Judgment

Psystar’s Response to Apple's Motion for Summary Judgment

Apple's Reply Brief in Support of Summary Judgment